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Drone Legislation Update

As you know, we’ve been tracking the developments in the drone-space since 2016. For obvious reasons, our primary interest has been, and will continue to be, people on the grounds and in the bowl, as well as the infrastructure itself. A couple of things have happened since April of 2022. At that time, the Administration released its “Domestic Counter-UAS National Action Plan” which enunciated an 8-point strategy for combating the potential threats imposed by the drone phenomenon. Here are the eight elements:
  1. Expand Legislative Exemptions for UAS Detection and C-UAS Mitigation Activities.
  2. Implement a List of U.S. Government Authorized Equipment for UAS Detection Technologies.
  3. Coordinate Oversight and Enablement Mechanisms for Critical Infrastructure Owners and Operators to Purchase C-UAS Mitigation Systems for Use by Authorized Federal and SLTT Law Enforcement Pilot Program Entities. (SLTT refers to State, Local, Tribal, & Territorial)
  4. Establish a National C-UAS Training Center to Increase Training Accessibility for C-UAS Technician Proficiency in UAS Detection and C-UAS Mitigation.
  5. Create a Federal UAS Incident Tracking Database for Threat Analysis.
  6. Enable U.S. Government C-UAS Research, Development, Testing and Evaluation (RDT&E) Coordination.
  7. Expand Criminal Provisions and Penalties for Dangerous and Illegal Activities.
  8. Import Restrictions and Export Controls for C-UAS and Counter-C-UAS Technologies.
And just a couple of days ago, DHS released the Administration’s Legislative Proposal to effectuate the Plan. It updates the Emerging Threats Act, continues it for 7 more years, and engages 4 more agencies in the fight: State Department, NASA, CIA and FAA. Here is my summary of its high points:
Federal Emerging Threats Act Reauthorization
  • DHS and DOJ are authorized to “take such actions as are described in subsection (d)(2) that are necessary to detect, identify, monitor, track, andmitigatea credible threat … that an unmanned aircraft system or unmanned aircraft poses to the safety or security of a covered facility or asset.”
  • A “covered facility or asset” is defined as, among other things, a NSSE or SEAR event, certain mass gatherings, and critical infrastructure.
  • Note that the legislation would arguably authorize DHS and DOJ to use the authority in the Act to protect critical infrastructure—such as stadiums that are not having a NSSE or SEAR event.
  • More specifically, the comments provide: “The legislative proposal will allow DHS to separately establish a process by which (i)critical infrastructure owners/operators may request federal counter-UAS assistance(mirroring established processes for counter-UAS support to Special Event Assessment Rating (“SEAR”) events or emerging processes such as the FAA’s Section 2209 application for flight restrictions) and (ii) requests are adjudicated against a risk-based methodology.”
  • Authority is also granted to State, Local, Tribal, and Territorial law enforcement (SLTT’s) to have limited authority to “detect, identify, monitor, or track” (but not mitigate) a UAS by means of “intercept or other access of a wire communication, an oral communication, or an electronic communication”.
  • In addition, a 5-year pilot program is established that will allow SLTT’s to mitigate a credible threat by using a tiered system of disruption.
  • Training is provided in the pilot program by the FBI to those who are authorized to mitigate the threat.
  • Privacy protection standards are spelled out.
  • Up to 12 SLTT entities, annually, could employ the detection and mitigation authorities in the Act.
  • The Act would also provide for appropriate testing of C-UAS systems as well as personnel training by the FBI.
NASA provisions
  • The proposal would authorize NASA to detect, identify, monitor and track unmanned aircraft systems (UAS) that threaten certain critical facilities and assets. But, it could not “counter” or mitigate a credible threat.
CIA provisions
  • These provisions essentially give the CIA authority to “effectively detect and respond to physical attacks by terrorist actors or hostile foreign states, as well as to foreign intelligence services seeking to collect sensitive national security information about CIA’s personnel, facilities, and activities in the United States.”
FAA provisions
  • The FAA’s mandate is to protect the National Airspace. Consistent with that, these provisions would impose a civil fine, up to $25,000, for any person who “adversely impacts or interferes with safe airport operations, navigation, or air traffic services, or the safe and efficient operation of the national airspace system…”. However, “person” does not include the federal government, anyone employed or authorized by it, or sworn law enforcement officers of a state, local, tribal, or territorial government of the U.S. who is acting “in coordination” with DHS or DOJ.
In my opinion, there are at least 2 important takeaways.If, this legislation passes, stadiums should be able to work with DHS and the FBI to not justdetectthe presence of drones but tomitigatethem as necessary and appropriate—without running afoul of the law. Secondly, the stage is being set for the direct and ongoing involvement of local law enforcement which, because of the national air space, has been cloudy at best.
Lastly, the SMA was invited to participate in a FAA UAS Detection and Mitigation Aviation Rulemaking Committee (ARC) beginning this past May and, although its deliberations are confidential, I can say that they line up pretty well with the National Plan and the Proposed Legislation. Passing this legislation would certainly give the stadium world something they’ve been waiting a long time for.

Memo provided to SMA from Legal Counsel Mike McCormick regarding updated drone legislation.