Review – DOT Unified Agenda and UAS Regulations

In the DOT portion of the Spring 2022 Unified Agenda that was published earlier this week there are four rulemakings listed that will influence critical infrastructure’s ability to protect their facilities from attacks by unmanned aerial systems, two in the final rule stage of rulemaking and two lingering on the Long-Term Actions page.

FAA	Final Rule Stage	Registration and Marking Requirements for Small Unmanned Aircraft	2120-AK82
FAA	Final Rule Stage	External Marking Requirement for Small Unmanned Aircraft	2120-AL32
FAA	Long-Term Actions	Safe and Secure Operations of Small Unmanned Aircraft Systems	2120-AL26
FAA	Long-Term Actions	Prohibit or Restrict the Operation of an Unmanned Aircraft in Close Proximity to a Fixed Site Facility	2120-AL33

Commentary

These four rulemakings, if fully implemented, would make it easier for critical infrastructure facilities to limit the legal use of unmanned aerial systems above and in the immediate vicinity of their facilities. Unfortunately, other restrictions in 18 USC would still prohibit facility management from doing more than notifying the authorities about illegal aerial activity over or around their facilities. US law still specifically prohibits (with some very limited exceptions for national defense) interfering with the operation of an aircraft (including UAS) in US airspace. Even intercepting the communications between the UAS operator and the drone technically run afoul of several statutes.

Congress has given DOJ and DHS strictly limited authority to intercept drones, but that authority does not generally extend to privately owned facilities. Congress needs to take a hard look at the need for protecting critical infrastructure facilities from attacks like the recent attack on a Russian refinery. While that strike was probably made by the Ukrainian military, similar attacks could be executed by terrorist organizations who have become increasingly sophisticated in drone operations.

For more details on these rulemakings, see my article on CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/dot-unified-agenda-and-uas-regulations - subscription required.