BILL ANALYSIS Ó
AB 2148
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Date of Hearing: April 5, 2016
ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION
Ed Chau, Chair
AB 2148
(Holden) - As Amended March 16, 2016
SUBJECT: Unmanned aircraft systems: regulation
SUMMARY: Requires both the Department of Fish and Wildlife and
the Department of Parks and Recreation to develop guidelines for
the use of unmanned aircraft systems (UAS) over the public lands
they manage. Specifically, this bill:
1)Requires the Department of Fish and Wildlife to develop
guidelines for the use of UAS over the public lands managed by
the department.
2)Requires the Department of Parks and Recreation to develop
guidelines for the use of UAS over the public lands managed by
the department.
EXISTING LAW:
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1)Vests the Federal Aviation Administration (FAA) with the
authority to regulate airspace use, management and efficiency,
air traffic control, safety, navigational facilities, and
aircraft noise. (49 U.S.C. Sec. 40103, 44502, and
44701-44735)
2)Requires, under the FAA Modernization and Reform Act of 2012,
the FAA to integrate safely UAS operation into the national
airspace system by September 30, 2015, and to develop and
implement certification requirements for the operation of UAS
in the national airspace system. (Public Law Number 112-095)
3)Requires, under FAA rules, as of February 19, 2016, federal
registration of UAS before first flight outdoors, for UAS
weighing more than 0.55 pounds (250 grams) and less than 55
pounds (approx. 25 kilos), including payloads such as on-board
cameras, and requires UAS owners to be at least 13 years old
to register and to provide name, home address, and email
address. Upon registration, UAS owners receive a Certificate
of Aircraft Registration/Proof of Ownership along with a
unique identification number, which must be marked or affixed
to the UAS. (14 CFR Parts 1, 45, 47, 48, 91, and 375)
4)Bans UAS in the national park system. (36 Code of Federal
Regulations Section 2.17(a)(3))
5)Requires the Department of Parks and Recreation to promote and
regulate the use of the state park system in a manner that
conserves the scenery, natural and historic resources, and
wildlife in the individual units of the system for the
enjoyment of future generations. (Public Resources (PRC) Code
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Section 5001.2)
6)Authorizes the Department of Parks and Recreation to establish
rules and regulations not inconsistent with law for the
administration of the state park system. (PRC 5003)
7)Prohibits, by regulation, aircraft (or parachute, hang glide,
parasail, or balloon) below 500 feet over a state park unless
specifically authorized by the Department of Parks and
Recreation (14 CCR 4304)
8)Authorizes Parks and Recreation Department District
Superintendents, who oversee state parks in a specific region
of the state, to restrict or prohibit the use of unmanned
aircraft on or over California State Parks lands. (14
California Code of Regulations (CCR) Sections 4301(i), 4319,
and 4326)
9)Requires the Department of Fish and Wildlife to hold fish and
wildlife resources in trust for the people of the state.
(Fish and Game Code (FGC) Section 711.7)
10)Authorizes the Department of Fish and Wildlife to issue
lifetime "sportsman's licenses" authorizing the taking of
birds, mammals, fish, reptiles, or amphibians anywhere in this
state in accordance with law for sport, not profit. (FGC 714)
11)Establishes numerous restrictions by statute and regulation
on the methods that may be used for hunting and fishing in
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California. (FGC 2000 et seq.)
FISCAL EFFECT: Unknown
COMMENTS:
1)Purpose of this bill . This bill is intended to protect the
ecosystem and promote clear rules for the use of UAS (or
drones) by instructing the Department of Fish and Wildlife and
the Department of Parks and Recreation to develop guidelines
governing the use of UAS on public lands and in state parks.
This bill is sponsored by Audubon California.
2)Author's statement . According to the author, "A growing body
of evidence suggests that drone use poses risks to wildlife.
By requiring the development of a unified regulatory system,
AB 2148 ensures a cohesive, statewide system of rules
governing the use of unmanned drones on public lands,
providing protection to animals as well as visitors to state
lands in addition to providing regulatory clarity to drone
users."
"As recreational drone use has become more popular,
California's wildland management agencies have seen an
increase of use on state lands, particularly wildlife
preserves and within state parks. The increase poses risks to
animals and visitors. The risk was severe enough to prompt the
National Park Service to temporarily ban all drone use,
pending final regulations, after a drone provoked a stampede
of bighorn sheep in 2014. This bill provides wide latitude to
the departments to develop the best set of regulations
necessary to protect wildlife, habitats and visitors."
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3)What is a UAS? The FAA defines a UAS as an unmanned aircraft
system and all of the associated support equipment, control
stations, data links, telemetry, and communications and
navigation equipment necessary to operate the unmanned
aircraft. Often more commonly referred to as "drones," a UAS
is flown either by a pilot via a ground control system or
autonomously through use of an on-board computer.
4)Hunting, Fishing and?Droning? In recent years, state fish
and game officials throughout the United States have begun to
see UAS used as a hunting tool. A 2014 Field & Stream article
described "predator drones" outfitted with thermal-imaging
cameras that run missions over 1,000 to 3,000 acres at a time
and can spot and radio the position of wildlife to hunters on
the ground who then find and engage the animals with rifles
equipped with night vision cameras. ("The Drone Report: Do
Unmanned Aerial Systems Have a Place in Hunting and Fishing?"
Field and Stream, March 2014)
There is a growing body of evidence that suggests UAS can
negatively impact wildlife. A University of Minnesota study
found that bears' heart rates increase dramatically in the
presence of UAS, even if the bears appear to be unfazed.
(Current Biology, Ditmer et al.: "Bears Show a Physiological
but Limited Behavioral Response to Unmanned Aerial Vehicles")
The Los Angeles Times reported state park visitors had
observed drones agitating pregnant seals. ("The latest buzz on
flying drones in state and national parks: Rules can still be
vague," Los Angeles Times, January 11, 2016.)
Since then, a number of states have passed laws restricting
the use of UAS in hunting and fishing. For example, in 2015
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Michigan banned the use of UAS to hunt or to harass someone
who is hunting; New Hampshire banned using UAS for hunting,
fishing, or trapping; and Oregon and West Virginia followed
suit and established new laws prohibiting using UAS for
hunting as well. California currently has no restrictions on
the use of UAS in hunting or fishing.
5)State parks and UAS. Current law prohibits planes, parachutes,
hang gliders, parasails and hot air balloons below 500 feet
over a state park, and authorizes state park district
superintendents to limit certain games and recreational
activities (presumably including recreational drone activity).
However, California has no statewide guidelines or
restrictions on the use of UAS in state parks.
In 2014, the National Park System (NPS) banned, by regulation,
the use of UAS within all national parks, including Yosemite.
Yosemite National Park advises visitors that the use of UAS is
prohibited within park boundaries and that the rule applies to
drones of all shapes and sizes. The NPS's action is based on
negative experiences with recreational UAS users approaching
climbers ascending mountains, hovering over hiking paths,
disturbing sensitive wildlife preserves, and generally
interfering with park visitors' quiet enjoyment of nature.
The author argues that while current law vests authority in
District Superintendents of the state Department of Parks and
Recreation to restrict UAS use, this has resulted in an
inconsistent patchwork of rules in California regarding UAS
use in state parks. The author contends this bill will assist
UAS operators by ensuring a consistent and clear set of rules
for drone use throughout the state park system.
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6)Proliferation of recreational UAS and new FAA registration
rules . UAS are widely available to the public. Retail UAS
devices outfitted with cameras now range from roughly $300 to
$1,500. The FAA estimates that nearly one million UAS were
sold during the December 2015 holiday season.
In anticipation of the influx of UAS in the skies, the FAA
issued new rules in 2015 requiring UAS weighing between half a
pound and 55 pounds to be registered with the FAA by February
19, 2016. The new FAA registration rules apply specifically
to "model aircraft," i.e., recreational UAS. According to FAA
Commissioner Michael Huerta, who led a March 2016 panel on the
future of UAS at the SXSW "South by Southwest" event in
Austin, Texas, the FAA now has more than 400,000 UAS
registrants, which surpasses the 320,000 piloted airplanes
currently registered with the FAA. At the panel, Huerta
presented the FAA's mobile app, B4UFLY, which lets drone
operators know whether they can safely and legally operate
their UAS at a given location.
7)Arguments in support . According to the bill's sponsor, Audubon
California, "While drones are a typically safe and
entertaining means of experiencing the outdoors, existing law
provides little oversight of drone use, especially in and
surrounding sensitive wildlife areas. Even an experienced,
well-intentioned drone operator may inadvertently cause harm
to sensitive animal populations because the operator is
unaware of the risk to wildlife. AB 2148 empowers the
wildlife management experts at the Department of Fish and
Wildlife and Department of Parks and Recreation to develop a
comprehensive regulatory scheme for the use of drones on state
lands to ensure that sensitive wildlife populations are
protected and that drone users can safely operate their
devices under clear and consistent guidelines."
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8)The federal preemption issue. Because the FAA has
jurisdiction over United States airspace, a court may find
that federal regulations preempt certain state laws - such as
this one, if passed - but this remains uncertain.
According to a December 17, 2015 FAA white paper entitled,
"State and Local Regulation of Unmanned Aircraft Systems
(UAS)," the FAA stated that "[l]aws traditionally related to
state and local police power - including land use, zoning,
privacy, trespass, and law enforcement operations - generally
are not subject to federal regulation." The FAA cited
restrictions on UAS in hunting and fishing as a good example
of a state law that would likely not be preempted.
9)The 'underground regulation' issue . This bill would require
the Departments of Fish and Wildlife, and Parks and
Recreation, to create guidelines that would govern the use of
UAS in hunting and fishing statewide. However, while the
author's stated goal is to create a statewide system of UAS
rules to protect wildlife and public lands, it is important to
note that any guidelines developed by a state agency - as
opposed to regulations - would not be enforceable.
Under current law, the Administrative Procedure Act (APA)
requires a formal, public rulemaking process that integrates
public comment periods from beginning to end in order to
create binding administrative regulations. Any "guidelines"
published by a department that do not comply with the APA
would be unenforceable by that state agency as "underground
regulations."
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10)Questions for the Committee . AB 2148 requires both the
Department of Fish and Wildlife and the Department of Parks
and Recreation to develop guidelines for UAS use over public
lands and state parks. However, as noted above, the bill
would not lead to a binding set of guidelines, nor does it
provide any additional guidance to the departments in the
development of the guidelines (such as a deadline for
completion or elements that must be included.)
The Committee may wish to inquire of the author as to whether or
not it would be more effective to require the formal
promulgation of regulations. The Committee may also wish to
inquire as to whether or not the bill should be amended to
require the guidelines to include a deadline for completion
and also address certain issues of interest to this
Committee's jurisdiction, such as the protection of personal
privacy of users of public lands in relation to UAS and
restrictions on commercial use of images and data collected
over public lands.
11)Related legislation . SB 868 (Jackson) proposes the State
Remote Piloted Aircraft Act, which, among other things, would
restrict operating a UAS in state parks or for hunting or
fishing. SB 868 is pending before the Senate Transportation
and Housing Committee (and thereafter the Senate Public Safety
Committee.
12)Double-referral . This bill has been double-referred to the
Assembly Water Parks and Wildlife Committee, where it will be
heard if it passes this Committee.
REGISTERED SUPPORT / OPPOSITION:
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Support
Audubon California
Opposition
None on file
Analysis Prepared by:Jennie Bretschneider / P. & C.P. / (916)
319-2200