This resource serves as the first in a series of annual updates to Taking Off: State Unmanned Aircraft Systems Policies. This update includes information on all enacted legislation related to unmanned aircraft systems (UAS), also referred to as "drones" in the 2016 legislative session. Because the report was released in June 2016, there will be some overlap between this resource and the original report.
NCSL’s report was released on June 21, 2016, the same day the Federal Aviation Administration (FAA) released the Small Unmanned Aircraft Rule (Part 107). The rule became effective Aug. 29, 2016. The rule offers safety regulations for unmanned aircraft drones weighing less than 55 pounds that are conducting non-hobbyist (commercial) operations.
The final rule requires drone pilots to keep an unmanned aircraft within visual line of sight and operations are only allowed during daylight and during twilight (if the drone is equipped with “anti-collision lights”.) The new regulation also establishes height and speed restrictions and other operational limits, such as prohibiting flights over unprotected people on the ground who aren’t directly participating in the UAS operation. There is a process through which users can apply to have some of these restrictions waived, while those users who were operating under section 333 exemptions (which allowed commercial use to take place prior to Part 107) are still able to operate based upon the conditions of their exemption.
The person actually operating a drone must be at least 16 years old and have a remote pilot certificate with a small UAS rating, or be directly supervised by someone with such a certificate. To qualify for a remote pilot certificate, an individual must either pass an initial aeronautical knowledge test at an FAA-approved knowledge testing center or have an existing non-student Part 61 pilot certificate.
Additionally, in July 2016, Congress approved a 17-month extension of the FAA. The extension included multiple provisions regarding UAS and critical infrastructure, specifically sections 2209 and 2210.
Section 2209 requires FAA, by the end of 2016, to establish a process for applicants to petition the FAA to prohibit or restrict the operation of an unmanned aircraft in close proximity to a fixed site facility. The section specifically lists critical energy infrastructure, oil refineries, chemical facilities and amusement parks.
Section 2210 tasks the FAA with establishing a process that allows a person to apply to the FAA for an exemption from certain aspects of its small commercial UAS rule if the operation of the UAS specifically pertains to critical infrastructure. Such exemptions might be for line-of-sight or nighttime operations. The section also includes language as to what may be considered a critical infrastructure facility.
As this extension expires at the end of FY 2017, Congress is in the early stages of a longer-term FAA reauthorization which will almost assuredly include numerous UAS related provisions.
The Drone Advisory Committee (DAC), announced by the FAA in May 2016, has started work, holding the first meeting in September 2016. At the meeting, it was determined that a DAC subcommittee should be developed and, within the subcommittee, three task groups were established: Roles and Responsibilities, Access to Airspace, and Budget and Costs. The Roles and Responsibilities task group is exploring “consideration of the relative roles and responsibilities of the Federal and of state/local governments for regulating certain UAS operations in low-altitude airspace…” NCSL staff presented an overview of state legislative action and the current debate on federal preemption to the Roles and Responsibilities task group in February 2017. The second meeting of the DAC occurred on Jan. 31, 2017 and the third will be in May 2017. The task groups will provide interim recommendations to the DAC in May and will provide final reports to the DAC in October.
State UAS Legislative Action
“Taking Off” discussed a provision of the FAA Reauthorization Act of 2016 that had been passed by the Senate which included language that would have preempted state legislative action on UAS. However, following publication, the provision was not included in the final version passed by the Congress in July, before being signed by the president.
States have continued to pass legislation that preempts localities from enacting their own drone regulations. At the time of publishing, seven states have enacted legislation preempting localities from regulating UAS—Arizona, Delaware, Maryland, Michigan, Oregon, Rhode Island, and Virginia. Five of those laws were enacted in 2016.
Arizona SB 1449 (2016) prohibits cities, towns and counties from regulating the ownership or operation of UAS unless the UAS is owned by the locality. Similarly, Michigan SB 992 (2016), known as the “unmanned aircraft systems act,” prohibits localities from regulating UAS, except when the regulated drone belongs to the locality.
Delaware HB 195 (2016) specifies that only the state may enact a UAS law or regulation, preempting the authority of counties and municipalities. Rhode Island HB 7511/SB 3099 gives exclusive regulatory authority over UAS to the state of Rhode Island and the Rhode Island Airport Corporation, subject to federal law. Virginia HB 412 (2016) prohibits localities from regulating the use of UAS.
Since 2013, 24 states—Alaska, Arkansas, California, Florida, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Michigan, Mississippi, Montana, Nevada, North Carolina, North Dakota, Oregon, Tennessee, Texas, Utah, Vermont, Virginia and Wisconsin—have passed legislation that falls within the broad category of privacy. This includes legislation related to warrant requirements for UAS use by law enforcement agencies and protection from privacy violations committed by non-government operators, including peeping toms.
18 states—Alaska, Florida, Idaho, Illinois, Indiana, Iowa, Maine, Montana, Nevada, North Carolina, North Dakota, Oregon, Tennessee, Texas, Utah, Vermont, Virginia and Wisconsin— have passed legislation requiring law enforcement agencies to obtain a search warrant to use UAS for surveillance or to conduct a search. One state enacted such requirements in 2016.
Vermont SB 155 (2016) regulates the use of drones by law enforcement, prohibiting the use of drones to investigate, detect, or prosecute crime, or to gather or retain data on citizens peacefully exercise their rights of free speech and assembly. The legislation specifies that law enforcement may use a drone for observational, public safety purposes, and pursuant to a warrant. If a drone is used in exigent circumstances, the law enforcement agency must obtain a warrant for the use within 48 hours.
Protection From Nongovernment Operators
At least 14 states—Arkansas, California, Florida, Idaho, Kansas, Louisiana, Michigan, Mississippi, Nevada, North Carolina, Oregon, Tennessee, Texas and Wisconsin—have passed legislation providing privacy protections from other citizens that are specific to drones. Four states – Kansas, Louisiana, Michigan and Oregon– enacted laws addressing protection from non-government operators in 2016.
Kansas SB 319 (2016) expands the definition of harassment in the Protection from Stalking Act to include “any course of conduct carried out through the use of [UAS] over or near any dwelling, occupied vehicle or other place where one may reasonably expect to be safe from uninvited intrusion or surveillance.” One of the bills enacted in Louisiana, HB 635, modifies the definitions of the crimes of voyeurism, video voyeurism and peeping tom to include UAS technology. Louisiana SB 141 specifies that surveillance by an unmanned aircraft constitutes criminal trespass under certain circumstances. Michigan SB 992 (2016) prohibits the use of a drone to harass an individual, to violate a restraining order, or to capture images in a way that invades an individual’s reasonable expectation of privacy. Oregon’s HB 4066 adds using UAS to take a photo or record a video in certain circumstances to the offense of invasion of privacy in the second degree.
There continues to be limited regulation of UAS operation by hobbyists, beyond laws addressing privacy protections and criminal offenses for misuse. Two states enacted legislation addressing hobbyist operation in 2016.
Michigan’s legislation, SB 992, specifically allows hobby operation so long as the operator complies with federal law. Vermont’s new law, SB 155, states the intent of the General Assembly that “any person who uses a model aircraft … shall operate the aircraft according to the guidelines of community-based organizations such as the Academy of Model Aeronautics National Model Aircraft Safety Code.”
There was no legislation enacted in 2016 that included insurance requirements for UAS operators, though it remains a topic of discussion and debate among legislatures and the industry.
States have recognized the potential for commercial uses of UAS, and several pieces of enacted legislation have addressed this topic. In 2016, Louisiana, Michigan and Tennessee enacted laws addressing commercial use of UAS.
Louisiana enacted HB 335, authorizing the establishment of registration and licensing fees for UAS used in commercial agricultural operations, with a limit of $100. Operators are required to complete a training course prior to applying for a license, and this legislation allows the training to course to be administered by the Southern University Agricultural Research and Extension Center, in addition to the Louisiana Cooperative Extension Service. Michigan’s legislation, SB 992, specifically permits commercial operation in the state if the operator is authorized by the FAA to operate commercially and the operator complies with federal law. The state included similar language addressing hobby use.
Tennessee’s HB 2376 clarifies that it is permissible for a person to use UAS on behalf of either a public or private institution of higher education, rather than just public institutions when the UAS is being used for professional or scholarly research and development. The state’s 2014 legislation enumerated 18 lawful uses of UAS, including the commercial use of UAS under FAA regulations, professional or scholarly research and for use in oil pipeline and well safety.
Each week it seems there are new reports of government entities at the federal, state and local levels using UAS for a range of tasks, from missing person searches to infrastructure maintenance and more. States continue to enact legislation addressing governmental use of drones within their borders. In 2016, four states—Alaska, Indiana, Oregon and Vermont—passed laws addressing governmental use of UAS.
Alaska’s HB 256 requests the Department of Fish & Game to evaluate the use of UAS for aerial survey work and report its findings related to safety and cost-savings compared to manned aircraft. Indiana’s new law, HB 1013, allows the use of UAS to photograph or take video of a traffic crash site.
Oregon’s HB 4066 requires public bodies that operate UAS to establish policies and procedures for the “use, storage, accessing, sharing and retention of data.” Another 2016 Oregon bill, SB 5702, specifies the fees for registration of UAS owned by the government: $25 for UAS under 55 pounds and $50 for UAS that weigh 55 pounds or more.
Vermont’s SB 155 regulates the use of drones by law enforcement through warrant requirements as mentioned above, but permits the use of a drone for search and rescue operations and aerial photography for the assessment of accidents, forest fires and other fire scenes, flood stages, and storm damage. The law also requires law enforcement agencies to report any drone use to the Department of Public Safety annually, and the department is then required to report to the House and Senate Committees on Judiciary and on Government Operations.
Criminal Penalties for Misuse
One of the issues most frequently considered by legislatures addresses creating criminal offenses associated with UAS misuse, whether it be flying near an airport, interfering with firefighting operations, using UAS for “peeping tom” activities or other violations. A drone pilot in Seattle, Wash. was sentenced in February 2017 to 30 days in jail and a $500 fine for reckless endangerment because he lost control of the drone he was operating at the 2015 Seattle Pride Parade and two people were injured. One woman was knocked unconscious.
Seventeen states—Arizona, Arkansas, California, Delaware, Indiana, Kansas, Louisiana, Michigan, Mississippi, Nevada, North Carolina, Oregon, Tennessee, Texas, Utah, Vermont and Wisconsin—have laws criminalizing certain uses of UAS. The Washington law under which the above-mentioned pilot was convicted is not specific to drone operation.
Ten states—Arizona, California, Delaware, Kansas, Louisiana, Michigan, Oregon, Tennessee, Utah and Vermont—created new criminal offenses in 2016. States particularly focused on criminal classification of UAS interference with emergency services, UAS weaponization and other offenses such as reckless aircraft operation and using a drone to conduct surveillance of critical infrastructure.
UAS Interference with Emergency Services
Arizona’s 2016 legislation, SB 1449, made it a class 1 misdemeanor to operate a UAS in violation of a federal law or regulation or to interfere with a law enforcement, firefighter or emergency services operation using UAS.
California’s AB 1680 makes it a misdemeanor to use UAS to interfere with the activities of first responders during an emergency. Similarly, one of Louisiana’s 2016 bills, SB 73, adds intentionally crossing a police cordon using a drone to the crime of obstructing an officer. Delaware’s HB 195 makes it a crime to operate a UAS over an incident where first responders are actively engaged in response or transport. Michigan’s SB 992 prohibits using a drone in a way that interferes with emergency personnel.
Utah’s new law, HB 126, makes it a class B misdemeanor to operate a UAS within a certain distance of a wildfire. It becomes a class A misdemeanor if the UAS causes an aircraft fighting the wildfire to drop a payload in the wrong location or to land without dropping the payload. It is a third degree felony if the UAS crashes into a manned aircraft and a second degree if that causes the manned aircraft to crash. Utah went on to pass HB 3003 which increased the penalties for offenses related to operating within a certain distance of a wildfire.
California, Louisiana and Utah also authorized law enforcement to disable a UAS if it is interfering with emergency services. California’s SB 807 provides immunity for first responders who damage a UAS that was interfering with them while they were providing emergency services. Louisiana’s SB 73 allows law enforcement or fire department personnel to disable the UAS if it endangers the public or an officer’s safety. Utah’s HB 3003 permits certain law enforcement officers to disable a drone that is flying in a prohibited area near a wildland fire.
Weaponization of UAS
Oregon’s HB 4066 made it a class A misdemeanor to operate a weaponized UAS. Similarly, Vermont’s SB 155 prohibits the weaponization of drones. Anyone who violates this prohibition is subject to up to one-year imprisonment, a fine of up to $1,000, or both. Five states—Nevada, North Carolina, Oregon, Vermont and Wisconsin—prohibit the possession or use of a weaponized drone by anyone. Three other states—Maine, North Dakota and Virginia—prohibit weaponized drones for law enforcement.
Other UAS Criminal Offenses
The new laws in Louisiana, Michigan and Oregon which are discussed in the privacy section each addressed criminal offenses as well. In Louisiana, an individual who commits video voyeurism is subject to a fine of up to $2,000 and imprisonment for up to two years. Voyeurism and peeping tom offenses are subject to a fine of up to $500 and up to six months’ imprisonment. The penalty for criminal trespass is a fine between $100 and $500 and imprisonment for up to 30 days. In Oregon, invasion of privacy is a class A misdemeanor and an individual can be sentenced to up to one year in jail.
In Michigan, anyone who uses a drone in a prohibited way is guilty of a misdemeanor. In addition to the privacy provisions, Michigan’s SB 992 prohibits sex offenders from using a drone to follow, contact or photograph a person that they are prohibited from contacting.
Arizona’s SB 1449 made using a UAS to intentionally photograph or loiter over or near a critical facility in furtherance of a criminal offense a class 6 felony. The law also clarifies that the definition of aircraft includes UAS for the purpose of the offense of careless or reckless aircraft operation.
Delaware’s new law, HB 195, creates the crime of unlawful use of an UAS and prohibits operation over any event with more than 1500 attendees and over critical infrastructure.
Another bill in Louisiana, HB 19, prohibits using a drone to conduct surveillance of, gather evidence or collect information about, or take photo or video of a school, school premises, or correctional facilities. The law establishes a penalty of a fine of up to $2,000 and up to six months in jail. Tennessee’s SB 2106 makes it a crime to use a drone to fly within 250 feet of a critical infrastructure facility in order to conduct surveillance or gather information about the facility.
Oregon’s HB 4066 created the offense of reckless interference with aircraft, making it a class A violation if someone uses a UAS to: “(1) Direct a laser at an aircraft while the aircraft is in the air; (2) Crash into an aircraft while the aircraft is in the air; or (3) Prevent the takeoff or landing of an aircraft.” In addition, the law makes it a class A violation to operate UAS over critical infrastructure.
Six states—Idaho, Indiana, Michigan, North Carolina, Oregon and West Virginia—prohibit the use of UAS for hunting and/or fishing. Seven states—Illinois, Michigan, New Hampshire, North Carolina, Oregon, Tennessee and Wisconsin—prohibit using UAS to interfere with others who are lawfully hunting and/or fishing.
Three of those limits were set in 2016. Idaho SB 1213 prohibits the use of UAS for hunting, molesting or locating game animals, game birds and furbearing animals. Indiana HB 1246 prohibits the use of UAS to scout game during hunting season and Wisconsin SB 338 prohibits using a drone to interfere with hunting, fishing or trapping.
Limiting drone operation near prisons continues to be a topic of significant legislative debate. Six states—Arizona, Louisiana, Nevada, Oregon, Tennessee and Wisconsin—prohibit drone operation near or over prisons. Four states passed legislation protecting correctional facilities in 2016.
Arizona passed legislation this year, SB 1449, that prohibits operating near, or using UAS to take images of, a critical facility, including jails and prisons. Louisiana’s new law, HB 19, prohibits using a drone to conduct surveillance of, gather evidence or collect information about, or take photo or video of correctional facilities. Oregon’s HB 4066 prohibits the use of UAS near critical infrastructure, including correctional facilities and Wisconsin’s AB 670 prohibits the operation of UAS over correctional facilities. Under the Wisconsin law, anyone who operates a drone over a correctional facility is subject to a fine up to $5,000.
Legislatures have passed a number of bills limiting the operation of drones near critical infrastructure. The classification of critical infrastructure varies by state, but generally includes facilities such as petroleum refineries, chemical manufacturing facilities, pipelines, wastewater treatment facilities, power generating stations, electric utilities, chemical or rubber manufacturing facilities, and other similar facilities. In August 2016, NCSL published a report with information specific to drones and critical infrastructure. Five legislatures passed legislation providing protections for critical infrastructure in 2016.
Arizona’s SB 1449 prohibits operating near, or using UAS to take images of, a critical facility. Arizona includes court houses, public safety facilities and military installations in the definition of critical facility, along with many of those listed above. Delaware’s new law, HB 195, creates the crime of unlawful use of UAS which includes a prohibition on operation over critical infrastructure. In addition to many of the facilities listed in the above paragraph, the Delaware legislation also includes government buildings.
Oklahoma HB 2599 prohibits the operation of UAS within 400 feet of a critical infrastructure facility, which includes telecommunications infrastructure and dams, in addition to a number of energy-related facilities. Oregon’s HB 4066 prohibits the use of UAS near critical infrastructure, including many of the same facilities as the other states.
Tennessee’s legislation, SB 2106, creates the crime of using a drone to fly within 250 feet of a critical infrastructure facility for the purpose of conducting surveillance or gathering information about the facility. Tennessee defines critical infrastructure facility as an electrical power generation system, a petroleum refinery, a manufacturing facility that utilizes any combustible chemicals either in storage or in the process of manufacturing, a chemical or rubber manufacturing facility or a petroleum or chemical storage facility. This is one of the narrower definitions of critical infrastructure.
Studies and Task Forces
Several states have convened task forces or requested studies on the use and implications of unmanned aircraft systems.
- Georgia's governor issued an executive order creating the Commission on Unmanned Aircraft Technology to make state-level rule recommendations to the governor.
- Illinois HB 5808 expanded the membership of the UAS Oversight Task Force and extended the deadline for the task force to issue a report from July 1, 2016 to July 1, 2017. The UAS Recommendations Report was submitted to the Governor and General Assembly on June 30, 2016. The report includes a number of recommendations, including:
- UAS operations should generally be permitted if they do not cause a safety hazard, do not infringe on the privacy or property rights of others, and if performed in accordance with applicable FAA rules and regulations.
- The Task Force recommends the State adopt a single definition for UAS within Illinois’ statutes.
- Flexibility to adapt State-level oversight to the changing UAS regulatory landscape at the Federal level is important.
- As Federal legislation and FAA rules are rapidly evolving, the General Assembly should remain mindful of the pending status of UAS regulation at the Federal level and exercise caution and restraint as it proceeds with State legislation and policy.
- Generally, statutes currently exist that address many of the concerns surrounding unlawful use of UAS. Specific concerns will be discussed later in this Report, but generally the Task Force concluded that UAS-specific legislation, while politically popular, is likely unnecessary at this time for most circumstances.
- Michigan’s legislation, SB 992, created the unmanned aircraft systems task force to “develop statewide policy recommendations on the operation, use, and regulation” of UAS in the state. The legislation specifies the members of the task force, the length of appointment and other specifics related to the task force.
- Pennsylvania’s Joint State Government Commission released the report on Unmanned Aircraft Systems in Pennsylvania in January 2017. The report discussed a number of aspects related to UAS, including types of operation, Part 107, privacy concerns, nationwide responses and Pennsylvania’s regulation of UAS. The report recommended the development of a UAS Management Center within the Bureau of Aviation that would “establish and oversee standards for all agencies conducting UAS operations and work to enhance UAS safety within the Commonwealth.” The Bureau of Aviation recommended the legislature enact legislation that would:
- Prohibit municipalities from regulating UAS activities within their boundaries.
- Prohibit the use of UAS in State and municipal parks without permission.
- Prohibit the use of UAS for hunting and fishing.
- Prohibit the use of UAS for photography or surveillance of an individual without permission (law enforcement agencies excluded).
Other State Action
A handful of other legislation was passed by states in 2016 that doesn’t necessarily fall under the other categories, but should be mentioned. Alaska adopted a resolution supporting the aviation industry and urging the governor to make state land available for the development of UAS technology. Delaware adopted a resolution expressing support for the development of many facets of UAS and the increased economic and training opportunities available within the FAA regulatory framework.
Kansas SB 249 appropriates funds that can be used to focus on research and development efforts related to UAS by state educational institutions. The law specifies a number of focuses for the research, including the use UAS for inspection and surveillance by the department of transportation, highway patrol and state bureau of investigation. It requires that the director of UAS make recommendations regarding state laws and rules that balance privacy concerns and the need for “robust UAS economic development” in the state.
North Dakota's governor issued an executive order establishing the Northern Plains Unmanned Systems Authority to oversee the operation of the UAS test site in the state.
Two pieces of legislation passed in Virginia, HB 29 and HB 30, appropriate funds to Virginia Tech for UAS research and development.