S 4687 Introduced
DHS-DOJ Counter UAS Authority
Last month, Sen Peters (D,MI) introduced S 4687, the Safeguarding the Homeland from the Threats Posed by Unmanned Aircraft Systems Act of 2022. The bill would replace 6 USC 124n, Protection of Certain Facilities and Assets from Unmanned Aircraft, with a new version that extends and expands the authority given to DHS and DOJ to conduct limited counter UAS operations. No funding authorization is provided in the bill.
Definitions
The new subsection (a) in the bill would add definitions of eleven key terms used in the section. In the current version of the section, definitions were in subsection (k) and only defined eight terms. The newly added definitions are:
Air navigation facility – defined by reference to 49 USC 40102(a),
Airport – defined by reference to 49 USC 47102, and
Critical infrastructure – defined by reference to 42 USC 5195c(e)
Eight of the definitions in the bill are administrative in nature, but the following terms are key to understanding the provisions of the bill:
The definition of the term ‘risk-based assessment’ has been slightly reformatted in places but remains essentially the same as in the current Section. Both of the other definitions listed above have been significantly changed.
Covered Facility
Most of the definition for covered facility in the revised §124n(a)(5) remains the same as the current definition. Covered facilities as designated by DHS or DOJ are facilities that have been “identified as high-risk and a potential target for unlawful unmanned aircraft or unmanned aircraft system activity” and are directly related to specific:
Missions authorized to be performed by DHS,
Missions authorized to be performed by DOJ,
Other missions authorized to be performed by DHS and/or DOJ,
Missions authorized to be performed by the Coast Guard
Two substantive additions would be made to the mission definitions above. First, under the ‘other missions’ category a new sub-clause (IV) has been added to the list of enumerated missions:
“(IV) the provision of security or protection support to critical infrastructure owners or operators, for static critical infrastructure facilities and assets upon the request of the owner or operator;”
Additionally, a new ‘missions’ category was added in a new clause (v) was added:
“(v) responsibilities of State, local, Tribal, and territorial law enforcement agencies designated pursuant to subsection (d)(2) pertaining to—
“(I) protection of National Special Security Event and Special Event Assessment Rating events or other mass gatherings in the jurisdiction of the State, local, Tribal, or territorial law enforcement agency;
“(II) protection of critical infrastructure assessed by the Secretary as high-risk for unmanned aircraft systems or unmanned aircraft attack or disruption, including airports in the jurisdiction of the State, local, Tribal, or territorial law enforcement agency; or
“(III) protection of sensitive government buildings, assets, or facilities in the jurisdiction of the State, local, Tribal, or territorial law enforcement agency.”
Personnel
Similarly, the definition of the term ‘personnel’ was expanded from just employees of DHS or DOJ to now read:
“(i) an officer, employee, or contractor of the Department or the Department of Justice, who is authorized to perform duties that include safety, security, or protection of personnel, facilities, or assets; or
“(ii) an employee who—
“(I) is authorized to perform law enforcement and security functions on behalf of a State, local, Tribal, or territorial law enforcement agency designated under subsection (d)(2); and
“(II) is trained and certified to perform those duties, including training specific to countering unmanned aircraft threats and mitigating risks in the national airspace.
Authority Statements
Sub-section (b) provides essentially the same authority {with the same ‘notwithstanding clause’ relating to 49 USC 46502 (air piracy), 18 USC 32 (destruction of aircraft), 18 USC 1030 (computer fraud), 18 USC 1367 (operation of a satellite), 18 USC Chapter 119 (communications interception) and 18 USC Chapter 206 (trap and trace)} as the current sub-section (a). A new sub-section (c) provides specific and limited authority to use equipment (with a repeat of the ‘notwithstanding clause’) “necessary to detect, identify, monitor, or track an unmanned aircraft system or unmanned aircraft within the respective areas of responsibility or jurisdiction of the authorized personnel.”
State and Local Pilot
Sub-section (d) authorizes DHS and DOJ to initiate a pilot program to allow a limited number of State, local, Tribal, and territorial law enforcement agencies to evaluate allowing such agencies to take “actions that are necessary to mitigate a credible threat (as defined by the Secretary and the Attorney General, in consultation with the Secretary of Transportation through the Administrator of the Federal Aviation Administration) that an unmanned aircraft system or unmanned aircraft poses to the safety or security of a covered facility or asset.”
The five year pilot program would allow personnel from those agencies to take actions “that are necessary to detect, identify, monitor, track, or mitigate a credible threat (as defined by the Secretary and the Attorney General, in consultation with the Secretary of Transportation, through the Administrator of the Federal Aviation Administration) that an unmanned aircraft system or unmanned aircraft poses to the safety or security of a covered facility or asset under subsection (a)(5)(C)(v).”
Authorized Actions
Subsection (e) outlines the actions that may be taken by “a State, local, Tribal, or territorial law enforcement agency, the Department, the Department of Justice, and any owner or operator of an airport or critical infrastructure” to “detect, identify, monitor, and track the unmanned aircraft system or unmanned aircraft, without prior consent”. Those actions include:
During the operation of the unmanned aircraft system or unmanned aircraft, detect, identify, monitor, and track the unmanned aircraft system or unmanned aircraft, without prior consent.
Warn the operator of the unmanned aircraft system or unmanned aircraft, including by passive or active, and direct or indirect, physical, electronic, radio, and electromagnetic means.
Disrupt control of the unmanned aircraft system or unmanned aircraft, without prior consent of the operator of the unmanned aircraft system or unmanned aircraft, including by disabling the unmanned aircraft system or unmanned aircraft by intercepting, interfering, or causing interference with wire, oral, electronic, or radio communications used to control the unmanned aircraft system or unmanned aircraft.
Seize or exercise control of the unmanned aircraft system or unmanned aircraft.
Seize or otherwise confiscate the unmanned aircraft system or unmanned aircraft.
Use reasonable force, if necessary, to disable, damage, or destroy the unmanned aircraft system or unmanned aircraft.
Moving Forward
Peters is the Chair, and Sen Portman (R,OH) (one of five cosponsors) is the Rankin Member, of the Senate Homeland Security and Governmental Affairs Committee to which this bill was assigned for consideration. This certainly means that there should be sufficient influence to see this bill considered in Committee. While industry would be expected to support the expansion of the authorized counter-UAS operations, there may still be some opposition to this bill from Senators that have concerns about weakening the general protection of aircraft in the national airspace. I would expect that those concerns would be worked out before the bill is considered in Committee.
The current authority for DHS and DOJ counter-drone operations expires on October 5th, 2022. I do not expect that this bill will make it to the President’s desk by that date. In fact, I expect that this bill will be rolled into the National Defense Authorization Act or the year-end spending bill. There may be a short-term extension of the authority in the meantime.
Commentary
The provisions in this bill about authorizing counter-UAS operations at private sector facilities is rather broad and vague. The one key restriction that should be noticed, however, is that actions can only be undertaken at facilities designated by the Secretary of DHS or the Attorney General. As an expansion of existing authority, I think that there should be an additional limitation, it should only apply to facilities which are regulated for physical security by a federal agency. This would allow closer supervision of counter-drone operations by federal authorities.
We could implement this restriction by changing the wording of §1624n(a)(5)(C)(iii)(IV) to read:
“(IV) the provision of security or protection support to critical infrastructure owners or operators upon the request of the owner or operator, for static critical infrastructure facilities and assets for which federal regulations exist to oversee the physical security of the facility; requests to the Secretary or Attorney General for such activities would be made through the oversight agency;”