BILL ANALYSIS Ó AB 2148 Page 1 Date of Hearing: April 19, 2016 ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE Marc Levine, Chair AB 2148 (Holden) - As Amended April 12, 2016 SUBJECT: Unmanned aircraft systems: regulation SUMMARY: Requires the Department of Fish and Wildlife (DFW) and the Department of Parks & Recreation (DPR) to develop regulations for the use of unmanned aircraft systems (UAS), commonly known as drones, over public lands managed by the departments. Specifically, this bill: 1)Requires DFW and DPR, on or before January 1, 2018, to develop regulations for the use of UAS, commonly known as drones, over public lands managed by the departments. 2)Requires DFW and DPR in developing their respective regulations to consider specified factors, including: a) Protecting wildlife from unnecessary harassment or disturbance; b) Protecting sensitive species, as specified; AB 2148 Page 2 c) Protecting wildlife during times of the year, such as nesting, gestation, or migration; d) Protecting natural, cultural and historic values of state lands; e) Allowing for appropriate use of drones for conservation and scientific research purposes. 3)Requires DFW and DPR in developing the regulations to consider de minimis access by adjacent landowners for agricultural purposes. EXISTING LAW: 1)Under federal law, authorizes the Federal Aviation Administration (FAA) to regulate airspace use, including air traffic control, air safety, and aircraft noise. Requires the FAA to integrate UAS operations into the national airspace system and to develop certification requirements for operation of UAS. 2)Under federal regulations, requires federal registration of UAS before a UAS is flown outdoors, for UAS weighing over .55 pounds and less than 55 pounds. Requires UAS owners who register a UAS to be at least 13 years old. Requires the identification number issued with the certification of registration and ownership to be affixed to the UAS. AB 2148 Page 3 3)Under federal regulations, bans the use of UAS in national parks without a permit. 4)Vests the DPR with responsibility for management of California's state park system. Requires DPR to promote and regulate use of the state park system in a manner that conserves the scenery, natural and historic resources, and wildlife in state parks for the enjoyment of future generations, and to administer, protect, develop, and interpret state parks for the use and enjoyment of the public. Authorizes DPR to establish rules and regulations not inconsistent with law for the administration of state park properties. 5)Prohibits, by regulation, the use of aircraft (or parachutes, hang gliders, parasails, and balloons) below 500 feet over a state park unless specifically authorized by DPR. Prohibits a person from engaging in recreational activities in state parks that endanger the safety of persons, property or resources, or interfere with visitor activities, except as permitted by DPR. Authorizes a state park district superintendent to issue a permit for special events, which are defined to include, among other things, activities or events that will pose a greater potential hazard or liability to the state, or interfere significantly with the public's use. 6)Requires DFW to hold fish and wildlife in trust for the people of the state. Establishes numerous restrictions by statute and regulation on the methods that may be used for hunting and fishing in California. 7)Prohibits the willful interference with participation of any AB 2148 Page 4 individual in lawful hunting or fishing activities. Defines interference as any action that physically impedes, hinders or obstructs these lawful pursuits, including but not limited to frightening away animals. 8)Makes it unlawful to pursue, drive or herd any bird or animal with any motorized water, land, or air vehicle, including an airplane, with specified exceptions. One of the exceptions allows hazing of animals on private property for purposes of preventing damage to the private property. 9)Makes it unlawful to shoot or shoot at a bird or mammal with a gun or other device accessed via an Internet connection, or to create, maintain, or utilize an Internet Web site for purposes of online shooting of a bird or mammal. Defines online shooting as use of a computer or other device to remotely control the aiming and discharge of a weapon. 10)Makes it unlawful to take or disturb the nest of a migrating bird protected under the federal Migratory Bird Treaty Act. Prohibits the take, harassment, injury or disturbance of marine mammals under the federal Marine Mammal Protection Act. FISCAL EFFECT: Unknown COMMENTS: This bill directs DFW and DPR to adopt guidelines for the use of UAS, or drones, over state parks and other public lands managed by the departments. 1)Author's Statement: Current California law provides little AB 2148 Page 5 guidance regarding the use of UAS on state owned and managed open spaces, wildland preserves and parks. A growing body of evidence suggests drones impact wildlife in ways that are not readily apparent to humans. A drone was determined to be the cause of a big horn sheep stampede in Zion National Park. Studies and articles also suggest that drones cause distress to bears, sea lions and gulls. To ensure that wildlife on public lands are safe from inadvertent harm from drones, this bill directs the agencies responsible for protecting California's wildlife and bird populations to develop a coherent set of regulations to protect animals and Californians enjoying the outdoors in a manner that maintains drone users' basic rights to use their devices in the outdoors. Background information provided by the author notes that California's wildland management agencies have seen an increase in the use of drones over state lands, including state parks and wildlife preserves. There is growing evidence this increase poses risks to animals and visitors. For example, wildlife organizations have reported waterfowl and migratory birds being struck by drones within the territory of DFW managed lands, and studies indicate drones significantly raise the heart rates of bears when bears are approached by drones. News reports have also included incidents of drones disturbing pregnant seals on state beaches managed by DPR. While drones can encourage enjoyment and appreciation of California's open spaces and natural habitats by allowing access to view or photograph these areas, these uses need to be permitted in a responsible and sustainable manner. This bill, by directing DFW and DPR to adopt regulations governing drones, will protect wildlife and visitors to state lands and also provide regulatory clarity to drone users. 2)Background: Use of drones for recreational and commercial AB 2148 Page 6 activities is increasing significantly nationwide. The Consumer Electronics Association estimated that drone sales would increase by 63% in 2015. The FAA estimates 1 million drones were sold in the 2015 holiday season alone. While there can be many beneficial purposes served by drones, the significant increase in drone use poses a number of issues and potential conflicts, including concerns over public safety, privacy and nuisance concerns. In the wildlife arena, there are concerns regarding potential stress to or disturbance of wildlife, and potential interference with the public's peaceful use and enjoyment of public lands. Drone Use as a Tool for Scientific Research and Wildlife Management : UAS hold significant potential for scientific research and as a tool for wildlife management. Because these devices can be used to observe animals from long distances and over difficult or remote terrain, UAS may offer considerable promise for addressing logistical, cost and safety limitations on use of manned aerial survey flights for wildlife research and management. Experimental use of drones for such purposes produced promising results that were documented in a 2006 Florida study (Jones, Pearlstine & Percival. "An Assessment of Small Unmanned Aerial Vehicles for Wildlife Research." Wildlife Society Bulletin, Vol. 34, No. 3, Oct. 1, 2006.) The authors concluded UAS could become a useful field tool for many wildlife research and management applications, such as collecting low-altitude aerial imagery. Drones are increasingly being used today for a variety of research purposes, including to monitor threats to biodiversity, estimate population abundance, and deter poaching. Drones could also be useful to aid in search and rescue and for wildfire patrols. Stress Impacts on Wildlife : There is evidence under some circumstances that drones may cause physiological stress to AB 2148 Page 7 wildlife and other adverse impacts. In 2014 a drone was determined to be the cause of a big horn sheep stampede in Zion National Park that separated mothers from calves, and prompted the National Park Service to adopt emergency regulations banning drone use in national parks. A 2015 University of Minnesota study examined the effects of UAS on free-roaming black bear movements and heart rates. (Ditmer, et al. "Bears Show a Physiological but Limited Behavioral Response to Unmanned Aerial Vehicles." Current Biology. Volume 25 Issue 17, August 2015.) The study observed consistently strong physiological responses but infrequent behavior changes. All of the bears responded with elevated heart rates, rising as much as 123 beats per minute above the pre-flight baseline. One bear even increased her heart rate by 400%. While the bears seemed to recover quickly after the drones left, assessing longer term effects was deemed to require further study. The authors noted the importance of considering additional stress on wildlife from UAS flights when developing regulations and best scientific practices. The lead researcher in the study also noted in a related article that while UAS "hold tremendous potential for scientific research and as tools for conservation?until we know which species are tolerant of [UAS], at what distance animals react to the presence of [UAS], and whether or not individuals can habituate to their presence, we need to exercise caution when using them around wildlife." ( http://discover.umn.edu/news/science-technology/bears-appear-u nfazed-by-drones-but-their-heart-rates-soar ) Drones in Parks : As noted above, drones are currently banned by regulation in all national parks. In addition to the big horn sheep stampede in Zion National Park, in late 2014 a tourist was fined for crashing a drone into Yellowstone National Park's Grand Prismatic Spring. The National Park Service reported at least 10 drone incidents in the National Park Service areas of Washington, D.C. in 2015, including a December 16 citation of a man operating a drone near the AB 2148 Page 8 Washington Monument. There is no system-wide drone policy in California for state parks. However, restrictions on drones have been put in place in some state parks by DPR district superintendents. A recent article by the National Recreation & Park Association noted that park agencies that have not anticipated the boom in drone flying will be caught unprepared on both a policy and a management level. (2015-03-01, Feature, "The Drones are Coming", by Richard Dolesh.) Drone Use in Fishing and Hunting : Several states have enacted or are considering laws prohibiting the use of drones in hunting and fishing, as well as the use of drones to interfere with hunters and fishers. A 2014 Field and Stream article described "predator drones" with thermal imaging cameras that can spot and radio wildlife locations to hunters, 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). California law currently prohibits the use of night vision equipment for hunting. California law also prohibits online shooting, defined as the use of a computer or other device to remotely control the aiming or discharge of a weapon. Federal Preemption Question : In December 2015 the FAA began requiring registration of all recreational and commercial drones before they are flown. The FAA reported 300,000 drones were registered in the first 30 days. Additional FAA draft regulations are being considered but have not been finalized. A number of states have adopted or are considering adoption of legislation regulating drone use. Several local governments in California have also enacted local drone ordinances. For example, the City of Los Angeles has a local ordinance and has issued citations for violations. The Golden Gate Bridge, Highway & Transportation District also banned drones near the AB 2148 Page 9 Golden Gate Bridge after a drone crashed on the highway. The FAA on December 17, 2015, issued a guidance document regarding the types of state laws or regulations which might be preempted or for which states should seek FAA consultation. The guidance document also gave examples of state laws that should be permissible. The FAA noted laws traditionally related to state and local police powers, including land use, zoning, privacy, trespass, and law enforcement are generally not subject to federal regulation. Specific examples cited of state laws that should be permissible included prohibiting use of drones for voyeurism, hunting or fishing, or weaponizing of a drone. 3)Double-Referral: This bill was double-referred to the Assembly Committee on Privacy and Consumer Protection which heard and passed this bill on April 5, 2016, on a vote of 10-0. 4)Prior and Related Legislation: SB 868 (Jackson) of 2016 proposes to enact the State Remote Piloted Aircraft Act which, among other things, would prohibit the operation of a remote piloted aircraft within the airspace overlying a state park or land or waters managed by DFW without a permit, or regulations authorizing the use. SB 868 also authorizes the Department of Transportation to enforce the provisions of the Act and prohibits any weaponization of remote piloted aircraft. SB 868 passed the Senate Transportation and Housing Committee on April 7, 2016, on a vote of 7 to 2, and is pending in the Senate Public Safety Committee which is scheduled to hear the bill on April 19, 2016. SB 142 (Jackson) of 2015 would have made the operation of a drone below the navigable airspace overlying the property of another without permission, a trespass. SB 142 was vetoed by the Governor. AB 2148 Page 10 SB 70 (Gaines) of 2015 prohibited the operation of a drone over a jail. SB 70 was vetoed by the Governor. SB 271 (Gaines) of 2015 prohibited operation of a drone over a school. SB 271 was vetoed by the Governor. AB 14 (Waldron) of 2015 proposed to establish a drone task force to recommend policies regulating drone use. AB 14 failed passage in the Assembly Transportation Committee. 5)Support Arguments: 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." 6)Opposition Arguments: Opponents of this bill are concerned this bill could create inconsistencies with federal law, and create a patchwork of regulations over state public lands. They also assert that any guidelines adopted by state departments are premature until federal regulations governing use of UAS are finalized. Opponents also emphasize the number AB 2148 Page 11 of jobs and economic impact increased UAS use is anticipated to generate. 7)Suggested Amendment: To address potential concerns of adjoining landowners regarding de minimis access for agricultural purposes, the committee and author may wish to consider the following technical amendment: On page 3, line 23, delete the word "consider" and insert "allow." REGISTERED SUPPORT / OPPOSITION: Support Audubon California (sponsor) California League of Conservation Voters Central Coast Forest Association Opposition American Insurance Association AB 2148 Page 12 Association of Unmanned Vehicle Systems International California Chamber of Commerce Personal Insurance Federation of California Analysis Prepared by:Diane Colborn / W., P., & W. / (916) 319-2096