BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 868 Hearing Date: April 19, 2016
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|Author: |Jackson |
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|Version: |April 7, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|MK |
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Subject: State Remote Piloted Aircraft Act
HISTORY
Source: Author
Prior Legislation:SB 167 (Gaines) not heard 2015
SB 170 (Gaines) Vetoed 2015
SB 262 (Galgiani) Failed Senate Judiciary 2015
SB 263 (Gaines) not heard 2015
SB 271 (Gaines) Vetoed 2015
AB 56 (Quirk) inactive Senate Floor
SB 15 (Padilla) failed Assembly Public Safety
2014
AB 1327 (Gorell) Vetoed 2014
Support: California League of Conservation Voters; City of West
Hollywood; League of California Cities; a number of
individuals
Opposition:Academy of Model Aeronautics; Association for
Unmanned Vehicle Systems International; California
Chamber of Commerce; California Manufacturers and
Technology Association; Consumer Technology
Association; CTIO Wireless Association; DJI; GoPro,
Inc.; Small UAV Coalition; State Farm Mutual
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Automobile Insurance Company (unless amended);
TechNet; 3D Robotics; Yuneec USA Inc.
PURPOSE
The purpose of this bill is to regulate the use of unmanned
aircraft and to provide penalties for the violation of those
prohibitions.
Existing law authorizes certain persons who are not peace
officers to exercise the powers of arrest under certain
circumstances, if they have completed a specific training
course prescribed by the Commission on Peace Officer
Standards and Training. (Penal Code § 830.7).
This bill gives officers and employees of the Department of
Transportation who are designated by the Director of
Transportation the right to exercise the powers of arrest
to enforce the provisions of the State Remote Piloted
Aircraft Act, any rule or order issued under that part or
any other law applicable to remote piloted aircraft or
unmanned aircraft systems.
Existing federal regulations require all drone owners to
register their drones with the Federal Aviation Administration
(FAA). Commercial drone operators, but not recreational drone
operators, must also obtain FAA authorization, which is granted
on a case-by-case basis.
Existing law establishes a Division of Aeronautics within the
California Department of Transportation (Caltrans). (Public
Utilities Code §§ 21001 et seq)
This bill creates the "State Remote Piloted Aircraft Act."
This bill provides that it shall not be construed to either
of the following:
Limit any power of the state or a
political subdivision to regulate the operation
of remote piloted aircraft if the regulations do
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not conflict with the provision of this part.
Preempt any local ordinance that
regulates remotely piloted aircraft or unmanned
aircraft systems if the ordinance is consistent
with this part.
This bill prohibits the operation of a drone in the following
circumstances without consent of the property owner or manager
or Office of Emergency Services (OES), as specified:
a) Within 500 feet of critical infrastructure designated by
the OES, unless the operator is an FAA authorized
commercial operator who does not interfere with the
operation of the critical infrastructure;
b) Within 1,000 feet of a heliport;
c) Within five miles of an airport;
d) Within any other area where Caltrans or OES determines
that drone usage creates an imminent danger to public
health and safety;
e) Within the airspace of the state park system;
f) Within the airspace of lands or waters managed by the
Department of Fish and Wildlife; and
g) Within 500 feet of the State Capitol or other building
housing state legislative offices and chambers, unless the
operator is an FAA-authorized commercial operator who does
not interfere with the operation of the critical
infrastructure.
This bill prohibits the operation of a drone in a manner that:
a) Interferes with manned aircraft;
b) Is prohibited by federal statute or regulation;
c) Is careless or reckless and endangers life or property;
d) Constitutes a nuisance under section 3479 of the Civil
Code;
e) Violates an individual's right to privacy under the
California constitution; and
f) Constitutes trespass under California law.
This bill prohibits the weaponization of drones.
This bill authorizes operating a drone:
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a) Above any property to which the drone operator has a
right of entry.
b) Above state property if the operator has received a
permit from the California Film Commission.
c) In any airspace deemed necessary by the operator to
avoid imminent danger to the life and safety of another
person or the public.
This bill requires:
a) Every commercial operator of a drone to procure adequate
protection against liability.
b) Every drone to give way to manned aircraft.
c) Every drone operator to comply with all licensing,
registration, and marking requirements of the FAA.
This bill provides that Caltrans and OES may adopt rules and
regulations relating to the provisions in this bill.
Existing law provides that a violation of the State Aeronautics
Act is punishable as a misdemeanor with a penalty of up to six
months in jail and/or a fine of not more than $1,000 (plus
penalty assessments).
This bill provides that a violation of any provision, except as
otherwise specified, shall be punishable in the same manner as
provided in the State Aeronautics Act.
This bill provides that operating an unmanned aircraft within
the airspace overlaying units of the state park system without a
permit or other authorizations is a wobblet with a misdemeanor
penalty of imprisonment in the county jail not exceeding 90 days
and/or a fine not exceeding $1,000 (plus penalty assessments) or
an infraction punishable by a fine of not more than $1,000 (plus
penalty assessments).
This bill provides that operating an unmanned aircraft with in
airspace overlaying lands or waters managed by the Department of
Fish and Wildlife without a permit or other authorization is a
wobblet with a misdemeanor penalty of up to six months in jail
and/or a fine of $1,000 (plus penalty assessments) or an
infraction with a fine of $100 to $1,000 (plus penalty
assessments).
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This bill provides that operating an unmanned aircraft within
500 feet of the State Capitol or other building housing the
state legislative offices and chambers without a permit or other
authorizations is a misdemeanor punishable by up to six months
in jail and/or a fine of $1,000 plus penalty assessments.
This bill provides that the provisions of this bill are
severable. If any part of this bill is found to be invalid, the
remaining parts of the bill are unaffected.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
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2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Need for The Bill
According to the author:
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The development of small unmanned aircraft systems -
known as "unmanned aerial vehicles," "remote piloted
aircraft," or simply "drones" - promises to
revolutionize the way Californians interact with each
other and their environment. Drone technology may
transform the way California's farmers and ranchers
manage livestock and agricultural resources. Drone
technology could also fundamentally alter the way goods
move across the state and greatly improve the capacity
of emergency personnel to respond to disasters.
However, the lack of clear rules governing the use of
this emerging technology threatens to harm California's
natural resources and undermine public safety. To
date, the lack of regulation has led to disputes
between neighbors concerned about invasions of their
privacy, impacts to wildlife, near-collisions with
airplanes and helicopters, interference with
firefighting efforts, and accidents injuring innocent
bystanders. Some individuals are reportedly modifying
drones to carry weapons, and, in at least one instance,
a drone was used to land radioactive material on the
roof of a government building.
Commonsense rules are needed to ensure that drones are
used in a safe and responsible manner, consistent with
the values of the people of the State of California.
This bill creates a comprehensive set of sensible and
intelligent drone regulations that strike an
appropriate balance between protecting public safety
and privacy, and encouraging innovation and technology.
SB 868 avoids the threat of frivolous litigation by
vesting primary enforcement authority with the Division
of Aeronautics within the Department of Transportation.
The bill also directs the Division of Aeronautics to
work cooperatively with local governments, state
agencies, and the federal government to enforce this
regulatory framework.
2. Current Drone Regulation
The FAA does not permit commercial drone operation except on a
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case-by-case basis. However, in February 2015, the FAA proposed
regulations on commercial drone users. Among the proposals was
a 55-pound weight limitation, line-of-sight operation, maximum
airspeed of 100 mph, a ban on operation over any people, a
maximum operating altitude of 500 feet, and training and
licensing for the operator. Those rules have not been finalized
but are expected by mid-year.
In December 2015, the FAA required commercial and recreational
drone users to register their drones. Nearly 300,000 drone
users registered within the first 30 days, according to the FAA.
This is modest success given the more than 1 million drones in
use.
Several California local governments have enacted their own
drone regulations. In October 2015, the City of Los Angeles
enacted drone regulations similar to the FAA proposal. In
December, the city filed the first criminal charges under the
ordinance, citing two individuals for operating a drone which
interfered with a Los Angeles Police Department air unit,
causing it to change its landing path. In northern California,
the Golden Gate Bridge, Highway and Transportation District
banned drones near the Golden Gate Bridge after a drone crashed
on the roadway.
3. Regulation of Drones
This bill sets up a regulation of remote piloted aircraft
prohibiting their use in specified public locations without
authorization. Specifically it:
Limits drone use within 500 feet of critical
infrastructure, within 1,000 feet of a heliport, or
within 5 miles of an airport, without permission;
Limits disruptive drone use within the immediate
airspace of private property without permission;
Limits drone use over state parks, wildlife refuges,
the State Capitol, or other designated safety areas,
without a permit or permission;
Prohibits the weaponization of drones;
Prohibits the reckless operation of drones and drone
interference with manned aircraft;
Requires commercial drone operators to obtain liability
insurance; and
Continues to allow local governments to regulate drone
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use in their communities.
4. Criminal Penalties
a. Penalties by reference
This bill creates criminal penalties by cross-referencing
other code sections. Because when imposing criminal penalties
it is important to be clear what they are and because the
cross-referenced sections could change or be deleted, it would
be more appropriate for the penalties to appear in the actual
act this bill creates.
b. General penalty
Unless otherwise provided, the penalty for a violation of this
section is a misdemeanor with a penalty of up to 6 months in
jail and/ or a fine up to $1,000. Because there are
approximately 310% in penalty assessments added to criminal
fines, the actual fine will be closer to $4,100. Is this an
appropriate penalty?
c. Penalty for unmanned aircraft over land or state parks
This bill provides that it is a wobblet for a person to
operate an unmanned aircraft within airspace over the state
park system unless the person has a permit or it is authorized
by rule or regulation. The misdemeanor penalty is
imprisonment in the county jail not exceeding 90 days and/or a
fine not exceeding $1,000 ($4,100 with penalty assessments)
and the infraction penalty is a fine of not more than $1,000 (
$4,100 with penalty assessments).
The standard fine for an infraction is not more than $250
($1025 with penalty assessments). A person charged with an
infraction has not right to a jury trial or representation.
Is a fine that will be $4,100 with penalty assessments
appropriate for an infraction in this case?
The bill creates an exception the prohibition against using an
unmanned aircraft over state parks if there are rules or
regulations authorizing the operation of the unmanned
aircraft. Will these rules and regulations be easily
accessible for the general public so as not to create
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confusion or to make the crime void for vagueness?
d. Penalty for unmanned aircraft over Fish and Wildlife
lands and waters
This bill provides that it is a wobblet for a person to
operate an unmanned aircraft with in airspace overlaying lands
or waters managed by the Department of Fish and Wildlife
unless the person has a permit or it is authorized by a rule
or regulation. The misdemeanor penalty is up to six months in
jail and/or a fine of $1,000 ($4,100 with penalty assessments)
or an infraction with a fine of $100 to $1,000 ($410-$4,100).
The standard fine for an infraction is not more than $250
($1025 with penalty assessments). A person charged with an
infraction has not right to a jury trial or representation.
Is a fine that will be $4,100 with penalty assessments
appropriate for an infraction in this case?
The bill creates and exception the prohibition against using
an unmanned aircraft over lands and waters managed by the
Department of Fish and Wildlife if there are rules or
regulations authorizing the operation of the unmanned
aircraft. Will these rules and regulations be easily
accessible for the general public so as not to create
confusion or to make the crime void for vagueness?
e. Penalty for operating an unmanned aircraft near the
State Capitol
This bill makes it a misdemeanor to operate an unmanned
aircraft within 500 feet of the State Capitol or other
building housing the state legislative offices and chambers
situated in the area bounded by 10th, L, 15th and N Streets
without a permit or authorization by rule or regulation. The
misdemeanor penalty is up to six months in jail and/or a fine
of $1,000 ($4,100 with penalty assessments)
The bill creates and exception the prohibition against using
an unmanned within 500 feet of the State Capitol if there are
rules or regulations authorizing the operation of the unmanned
aircraft. Will these rules and regulations be easily
accessible for the general public so as not to create
confusion or to make the crime void for vagueness?
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It is not clear if the bill intends to cover the LOB, it
states "other building housing legislative offices and
chambers" but puts the boundary at N street which would not
seem to cover LOB which extends beyond N street.
Will it be clear to the general public that flying an unmanned
aircraft is inappropriate in Capitol Park? Under this
Legislation an unmanned aircraft could be flown in front of
the Library and Courts building but not across 10th Street in
Capitol Park. Since the limitation is within 500 feet of the
building, it appears a person could fly an unmanned aircraft
near the rose garden on 15th Street but would be in violation
at some point as the unmanned aircraft neared the Capitol
building. The penalty for a violation is a misdemeanor so
should some notice be required?
5. Enforcement
This bill provides that along with peace officers the Director
of the Department of Transportation and its officers and
employees may enforce and assist in the enforcement of this bill
and any rule or order issued under this bill.
Under this bill, the Director of the Department of
Transportation may designate any officer or employee of the
department to exercise the powers of arrest pursuant to Penal
Code Section 830.7. Penal Code Section 830.7 authorizes certain
people to exercise the power to arrest provided they have
received the specified POST training.
Instead of giving general power to enforce these laws to anyone
in the Department of Transportation, should that power be
limited to those who have received the Penal Code 830.7
designation?
6. Transportation Committee Amendment
The author will take an amendment in this Committee that she
agreed to in the Committee on Transportation and Housing to
address the opposition by State Farm regarding financial
responsibility.
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7. Support
The League of California Cities supports this bill stating:
The rapid development and increased use of drone
technology in recent years offers a variety of
benefits, but also presents a series of challenges for
state and local government regulatory authority.
Unregulated drone activity has led to a variety of
issues, including interference with first responders,
firefighting efforts, near-collisions with first
responder as well as commercial aircraft and invasions
of privacy.
The California League of Conservation Voters supports this bill
stating:
Drone Technology promises to transform many aspects of
California's economy, and could greatly decrease
environmental costs associated with farming and moving
goods across our state. However, the lack of clear
rules governing the use of this emerging technology
threatens to harm California's natural resources and
undermine public safety. Recent news articles have
described how wildlife are impacted by unregulated
drone use, and research from wildlife biologists has
shown that drones can cause stress to animals like
black bears and raptors even when operated some
distance from an animal. Both Department of Fish and
Wildlife and the California state Parks are beginning
to experience similar issues with drones impacting
wildlife in our parks and refuges.
Commonsense rules are needed to ensure that drones are
used in a safe and responsible manner. This bill
creates a comprehensive set of sensible and intelligent
drone regulations that strike an appropriate balance
between protecting natural resources and encouraging
innovation and technology?.
8. Opposition
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A coalition<1> of companies opposes this bill stating:
The undersigned organizations and companies
(hereinafter the "Coalition"), each of which has a
significant presence in California, are writing today
in strong opposition to enactment of Senate Bill No.
868 ("SB 868"), the "State Remote Piloted Aircraft
Act." Contrary to the legislation's stated purpose of
"[e]ncouraging the development and general use of
remote piloted aircraft," the Bill, if enacted, would
deter future innovation and investment in California by
the unmanned aircraft systems ("UAS") industry. See SB
868, § 21751(i). SB 868 should be rejected because (1)
various provisions needlessly address conduct already
prohibited in California, (2) it creates a new
insurance requirement devoid of empirical support for
the burdens imposed, and (3) various provisions are
preempted by federal law. If the legislation is not
rejected, it should be modified to eliminate the
problems identified above. Such action would be
consistent with the legislature's goal to establish
"only those regulations that are essential" and to
place "the least possible restriction" on UAS usage.
***
For the above reasons, the Coalition opposes enactment
of SB 868. To the extent legislation is adopted, it
should clarify the scope of existing law and its
application to UAS. State statues that conflict with
federal law, redundantly address already-forbidden
conduct, or attach burdensome regulation to UAS
operations would undermine innovation and provide a
strong disincentive to the UAS industry regarding
future developmental and educational activities in
California. The Coalition stands ready to work with
California regarding potential steps that can be taken
to address UAS concerns without adopting legislation
that is unnecessary or preempted.
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<1> The coalition is: Academy of Model Aeronautics; Association
for Unmanned Vehicle Systems International; California Chamber
of Commerce; CMTA; Consumer Technology Association; CTIA-the
Wireless Association; Small UAV Coalition; TechNet; 3D Robotics;
DJI; GoPro, Inc.; Yuneec USA Inc.
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