Review - S 1631 Introduce – Counter UAS Authority

Last month, Sen Peters (D,MI) introduced S 1631, 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.

NOTE: The current §124n was supposed to have expired on October 5^th, 2022 {§624n(i)}. Late last year §547 of Title V, Division F of the Consolidated Appropriations Act of 2023 (PL 117–328) extended that termination date to September 30^th, 2023.

This bill is very similar to S 4687 [removed from paywall], the Safeguarding the Homeland from the Threats Posed by Unmanned Aircraft Systems Act of 2022, that was introduced last session. That bill was reported favorably by the Senate Homeland Security and Governmental Affairs Committee, but it was not taken up by the full Senate. Changes included a variety of wording changes to increase clarity, but the most important change was providing numerous vague and broad references to ‘protecting privacy and civil liberties’.

Moving Forward

Peters is the Chair, 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.

Lacking a incident where a UAS is used in a successful major-attack on critical infrastructure or government facility, this bill is not going to be considered ‘important’ enough to go through the regular order process in the full Senate. The bill is too controversial to be considered under the unanimous consent process. This means that the most likely way for this bill to become law would be to be included in some sort of must pass legislation like a spending bill or an authorization bill.

Commentary

It is hard to take seriously any effort to authorize counter UAS actions at critical infrastructure facilities without the Federal Aviation Administration having taken action on their rulemaking (RIN: 2120-AL33) for establishing a process by which critical infrastructure facilities could request designation as a UAS No Fly Zone. Congress required that regulation in §2209 of the FAA Extension, Safety and Security Act of 2016 (PL 114-190) with a due date of January 11^th, 2017. But, to date, the FAA has taken no visible action on that rulemaking.

Without that process in place, it will be hard to justify taking counter UAS actions without the drone taking obviously dangerous actions. Of course, by the time ‘obviously dangerous actions’ are taken, counter UAS activities are probably too late.

 

For more details about the provisions of this bill, see my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/s-1631-introduce - subscription required.