Critical Infrastructure Drone Restrictions

Earlier this evening I received a heads up that the House Transportation Committee, during their markup of HR 4441, the Aviation Innovation, Reform, and Reauthorization Act of 2016, the Committee passed an amendment that would restrict small unmanned aircraft systems from flying over critical infrastructure facilities.

Somehow I over looked this bill when it was introduced last week, but it has an entire sub-title dealing with small unmanned aircraft systems, commonly referred to as drones. I’ll go back and review that entire sub-title in a subsequent post.

There were actually two nearly identical amendments (#081 and #084) introduced by Rep. Babin (R,TX) that dealt with drones and critical infrastructure facilities. It is not clear from the Committee web site tonight which of the two amendments was adopted, but it really does not matter much at this point for reasons that I will discuss later in this post.

Definitions

The underlying bill defines ‘small unmanned aircraft’ as “an unmanned aircraft weighing less than 55 pounds, including everything that is on board the aircraft” {new 49 USC §45501(8)}.

The other critical definition (pardon the repetition here) is that for critical infrastructure. Instead of the typical weasel worded definition that can be stretched to fit everything or nothing these amendments get very specific. They use coverage by other federal security programs as the basis for the definition. Those specifically listed programs are {{new 49 USC §45509(d)}:

• MTSA program;

• CFATS program;

• Public water system program;

• Public treatment works program;

• Facilities owned by DOD or DOE; and

• Facilities regulated by NRC

New Regulations

The amendments would require the Administrator of the FAA to issue final regulations (in an unreasonably short 6 months) “concerning the operation of small unmanned aircraft systems in the proximity of critical infrastructure facilities” {§45509(a)}. The regulations would be required to {§45509(b):

• Describe the critical infrastructure facilities to which the regulations would apply;

• Ensure that the designated facilities are part of an established federal security laws;

• Establish boundaries for permissible unmanned aircraft operations;

• Permit facility owners to operate unmanned aircraft over the facilities; and

• Establish criminal penalties for violating the regulations.

The difference between the two amendments is that #081 would require eligible facilities to register with the Administrator for the regulations to have effect. Amendment #084 automatically covers all of the eligible facilities.

Moving Forward

Until the complete committee record for this markup becomes available and we can look at the votes I will not be able to tell for sure if this bill has bipartisan support. As it clearly has the support of the Chair of the Transportation and Infrastructure Committee {Rep Shuster (R,PA) is the author and Committee Chair}, the bill will make its way to the House floor and it will pass. If it has bipartisan support it may make it whole to the Senate floor for consideration.

Given the very large number of amendments that were offered in Committee, I suspect that this bill may require a rule for consideration in the House, which would open it up for more amendments there.

It is way too early to know if one of these amendments will make it into the final FAA authorization act.

Commentary

I strongly suspect that industry will support this amendment (either version). The American Chemistry Council has provided me with a statement of support that the vote for the amendment will “help address a mounting security concern and help safeguard chemical facilities”. I really expect other industry organizations to chime in.

Now I have frequently written about the potential hazards that drones pose to chemical facilities (most recently here), so one would expect that I would be supportive of these amendments, and I suppose that I am. They are a good first pass at attempting to address the obvious security problems with drones. But there are three glaring problems with these amendments.

First, they missed a couple of types of very important critical infrastructure facilities in their definition; electric grid facilities and gas transmission facilities come quickly to mind. The gas transmission facilities I almost understand; they are not covered by a formal federal security program (TSA security coverage is very vague and voluntary). Large portions of the electric grid, however, are covered under the NERC CIP program which should count as a federal security program.

The second and certainly more important problem is that making flying drones over one of these protected facilities a crime is not going to stop someone who intends to do the facility harm; its just another law to be broken in the process. To make this restriction really mean something it has to authorize covered facility owners to take action to stop a drone from flying over their facility.

Currently the FAA has made clear that shooting down a drone is just as illegal as shooting down any other aircraft in the national airspace. There are a number of good reasons for taking; probably the most important is that shooting down aircraft results in uncontrolled crashes that may do more damage than the unrestricted drone ever word.

There are, however, a number of emerging technologies are being designed for active drone defense that would allow a defender to take control of a drone in a specified area and cause it to make a controlled landing in a designated area. Unfortunately, a critical infrastructure owner would be unlikely to try to employ such a system, fearing running afoul of the current rules that protect aircraft.

For legislation to provide real protection to critical infrastructure from drone attacks of whatever sort, it will have to provide legal cover for taking action against the drones. While I don’t think we want the local chemical company to employ air-defense weapons to protect their air space (like nuclear facilities did after 9-11), but specifically taking control of drones violating very clearly defined airspace near and over designated facilities to force a controlled landing would seem to me to be very reasonable.

Finally, there is the problem of identifying the restricted air space defined in the required regulations well enough so that a non-adversarial drone hobbyist does not inadvertently violate that air space. Currently pilots have very detailed maps of restricted air space that they are supposed to maintain and they have received training in how to read those maps as part of their required pilot training. Even so, there are a relatively large number of inadvertent restricted air space incursions every year.

How we are going to get that level training to the over 350,000 currently registered sUAV owners is completely beyond me.