BILL ANALYSIS Ó
AB 2148
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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;
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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.
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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