The U.S. House of Representatives recently released a draft amendment to their version of the 2025 National Defense Authorization Act (NDAA). Since 1961, the National Defense Authorization Act (NDAA) has been an annual crucial piece of legislation enacted to establish the spending levels and operational authorizations for the United States Departament Obrony. In addition to its primary focus on defense, the NDAA often includes provisions that impact other federal agencies. This year’s House NDAA proposal may include a Counter-UAS amendment, the Counter-UAS Authority Security, Safety and Reauthorization Act. I’ve had a chance to review this amendment and have highlighted important aspects for consideration as the legislative process continues.

How did we get to this point?

The Ustawa o reautoryzacji FAA z 2018 r., signed into law on October 5, 2018, was a comprehensive measure that granted the Federal Aviation Administration (FAA) new authority and responsibilities across a broad range of aviation issues, including enhancing safety, improving infrastructure, and fostering innovation. The Act also extended the FAA’s funding and authorities through Fiscal Year 2023.

A significant part of the Ustawa o reautoryzacji FAA z 2018 r. was Division H, also known as the Ustawa o zapobieganiu pojawiającym się zagrożeniom z 2018 r.. This section authorized the Department of Justice (DOJ) and the Department of Homeland Security (DHS) to conduct counter-UAS activities that would otherwise violate federal laws. This authority is commonly referred to within the industry as “124n Authority.”

The Ustawa o zapobieganiu pojawiającym się zagrożeniom z 2018 r. did not provide any legislative relief to state, local, tribal, and territorial (SLTT) law enforcement agencies or owners and operators of infrastruktura krytyczna to use detection and mitigation technologies that would otherwise violate federal laws.

The authorities for DOJ and DHS originally wygasły in early October 2022 and have been extended through a series of reauthorizations in other legislation. The most current extension was in the FAA Reauthorization Act of 2024, Section 1112, which rozszerzony the authorities of the DOJ i DHS until October 1, 2024.

The Counter-UAS Authority Security, Safety, and Reauthorization Act Amendment

There is a lot to unpack with this draft amendment. The United States hasn’t had any meaningful counter-UAS legislation passed and signed into law since October 2018. They say you shouldn’t look a gift horse in the mouth, but I will do that in this article. Federal agencies, as well as State, Local, Tribal, and Territorial (SLTT) law enforcement and owners and operators of critical infrastructure, might not get another chance after any new legislation is passed until October 2028, so we’ve got to get this right.

Keep in mind that as you read this article, the use of small commercial off-the-shelf and custom-built drones by criminal groups, terrorists, non-state actors, as well as state actors is evolving at an alarming rate. Dron technology is transforming modern armed conflict and is available for hundreds of dollars. The technology and tactics know no boundaries.

Another thing to remember is that the United States will soon be hosting two of the most important high-profile sporting events in the world over the next four years- the 2026 FIFA World Cup and the 2028 Olympic Games. Świadomość przestrzeni powietrznej and protection will be key components of the security posture for both of these events and countless others.

Also, remember there are 60 Major League Baseball and National Football League stadiums combined. There are over 130 Division 1 college football stadiums. NASCAR has or will hold races at 24 different tracks nationwide this year. Aside from sporting events and mass gatherings, there are countless important critical infrastructure sites that include chemical plants, the defense industrial base, dams, ports, energy, nuclear, and communications sectors, to name a few, scattered throughout each state and territory.

What I like about the NDAA Counter-UAS Amendment

There are quite a few things that I like about this amendment. Some components are found in other documents, such as the Krajowy plan działania w zakresie krajowych systemów zwalczania bezzałogowych statków powietrznych released by the Biden Administration in April 2022.

  • The term “counter-UAS detection and mitigation system” was used around five times throughout the draft amendment. This shows a progression in lawmakers’ understanding of the two major technology categories that comprise a counter-UAS system – detection i mitigation technology. Thankfully, the list of people who believe that counter-UAS technology only includes technologies that disrupt, disable, or destroy an uncrewed aircraft system is getting shorter by the day.
  • The legislation expands the use of detection technology to SLTT and creates a mitigation pilot program. Both of these topics are extremely important to the safety of the homeland. Unfortunately, both fall short of what is needed. I’ll explain why this amendment falls short later in this article.
  • The legislation reauthorizes the existing authorities of DOJ and DHS until October 1, 2028.
  • The legislation requires the FAA, DOJ, and DHS, in coordination with the FCC, to develop a list of authorized equipment not later than one (1) year after the enactment of this Act. The approved list will include considerations that include whether the equipment meets any applicable minimum performance requirements, its impact on aviation safety, its use in the national airspace system, and its impact on the spectrum, to name a few.
  • In coordination with the DOJ and DHS, the legislation requires the FAA to establish minimum performance requirements for the safe and reliable deployment or use of counter-UAS detection and mitigation systems, equipment, and technology within the national airspace system. Considerations include the impact on aviation safety, the efficacy of the technology, and interference on the communications spectrum. The FAA will also be required to develop a standardized process by which a manufacturer or end-user of a counter-UAS detection or mitigation system, equipment, or technology may demonstrate that such system, equipment, or technology meets the established requirements.

Wait…what did I just read?

Section 383 of the Ustawa o reautoryzacji FAA z 2018 r. required the FAA to ensure that any technologies or systems developed, tested, or deployed by authorized federal departments and agencies to detect and mitigate risks posed by errant or hostile uncrewed aircraft systems (UAS) or drone operations do not negatively impact or interfere with the safe and efficient operation of the national airspace system.

The FAA did just that. Several companies jumped at the opportunity to participate in the program, including:

This amendment continues to authorize the FAA to conduct testing, evaluation, and validation of counter-UAS detection and mitigation systems, equipment, and technology to ensure that they don’t adversely impact the safe and efficient operation of the national airspace or transportation safety.

The most jaw-dropping part of Section 5004 of this amendment is that it provides the FAA with legislative relief to conduct the counter-UAS mission outside of the testing, evaluating, and validating counter-UAS detection and mitigation systems the agency had been performing previously. In other words, it appears to give the FAA the responsibility to protect and secure designated airports around the U.S.

Later in the amendment, in Section 5007, in coordination with the Secretary of Homeland Security and the Attorney General, the FAA was tasked to develop a plan for operating counter-UAS detection and mitigation systems, equipment, or technology at covered airports. The plan must consider, at a minimum, federal agency personnel, including air traffic control personnel and Federal Air Marshal resources, relevant airport personnel, and other stakeholders.

The amendment also tasks the FAA with establishing the “Office of Counter-UAS Activities” to manage and direct the counter-UAS activities of the agency. It is unclear where the funding will come from to build the infrastructure needed for the FAA to succeed with these additional taskings.

This is a significant departure from the traditional mission of the FAA, which is “to provide the safest, most efficient aerospace system in the world.” The FAA has traditionally been a safety and regulatory agency, not a security agency. The Transportation Security Administration (TSA), the agency odpowiedzialny for “protecting the nation’s transportation systems to ensure freedom of movement for people and commerce,” is not specifically mentioned in any part of this amendment.

Where NDAA Counter-UAS Amendment Falls Short

There are some areas where the proposed amendment falls woefully short. In some cases, I can’t help but wonder if the people who wrote or informed those who wrote the text understand drones or the technology used to detect or mitigate them.

  • The amendment expands the use of detection technology to SLTT only. Covered entities, such as critical infrastructure, can procure counter-UAS detection technology, but it must be operated by a trained and certified Federal or SLTT law enforcement agency. This is a significant failure and oversight in this proposed amendment.

This technology should be able to be operated by owners and operators of critical infrastructure, as proposed in S. 1631 and the Biden Administration Domestic Counter-UAS National Action Plan. My best guess as to why owners and operators of critical infrastructure aren’t able to operate this equipment is due to perceived privacy concerns.

I am unaware of any UAS platform that transmits personally identifiable information (PII). What is transmitted between the ground control station and the drone are command and control inputs for the drone, drone telemetry information, and management of the payload.

Information acquired by some radio frequency-based drone detection systems includes the drone’s location, the pilot/home location, drone altitude, speed, heading, etc. What is not transmitted, and therefore not acquired by these drone detection systems, is PII.

Owners and operators of critical infrastructure should not have to rely on law enforcement agencies to operate counter-UAS detection systems. There are not enough extra SLTT law enforcement agency personnel available to staff the countless critical infrastructure sites, some on a 24/7/365 basis.

If the House is concerned about PII, address PII specifically, and don’t limit things that are not PII, such as the telemetry and command and control data mentioned previously.

  • The amendment creates a pilot program that expands the use of mitigation technology outside of the four federal agencies with current authority. The problem with this pilot program is that the use of mitigation technology is only expanded to selected covered sites. Initially, five (5) sites will be selected, with an option to not more than 20 covered sites during the pilot program, which would expire on October 1, 2028.

Trained and certified Federal or SLTT law enforcement agencies will be required to operate the mitigation technology at these sites, but the authority will be site-specific.

For example, if Hard Rock Stadium, the home of the Miami Dolphins and Miami Hurricanes, were designated as one of the 20 covered sites, the Florida Highway Patrol (FHP) could be trained and certified to operate counter-UAS mitigation technology at that location. Other stadiums in Florida, such as Raymond James Stadium (Tampa Bay Buccaneers), Ben Hill Griffin Stadium (University of Florida), Doak S. Campbell Stadium (Florida State University), and other crucial critical infrastructure sites eligible for protection, may not be eligible for coverage by FHP unless they are on the list of 20 covered sites designated through this pilot program.

Congress should adopt similar language from S.1631- “On and after the date that is 180 days after the date of enactment of the [insert name of legislation], the Secretary and the Attorney General, in coordination with the Federal Aviation Administration, may designate a combined total of not more than 12 State, local, Tribal, and territorial law enforcement agencies for participation in the pilot program, and may designate 12 additional State, local, Tribal, and territorial law enforcement agencies each year thereafter, provided that not more than 60 State, local, Tribal, and territorial law enforcement agencies in total may be designated during the 5-year period of the pilot program.”

Training 60 SLTT law enforcement agencies over five years will significantly increase the safety and security of the United States. It will allow for the protection of numerous sites using the policies, procedures, and training established by the DOJ, DHS, and the FAA.  Limiting the pilot program to a maximum of 20 sites is ill-advised and does not take into consideration the exponential growth of this threat around the world.

  • The proposed amendment would prohibit counter-UAS detection and mitigation systems from a ‘covered manufacturer’ to be placed on the authorized equipment list. Technology widely deployed, such as the DJI Aeroscope, would no longer be authorized. While I don’t dispute the potential issue of using counter-UAS detection and mitigation equipment from countries that aren’t entirely friendly with the U.S., the way that the legislation is written doesn’t provide the users of systems such as the Aeroscope a transition period in which to wait for the authorized equipment list to be created and have time to assess, procure, install, test, and train on an equivalent radio frequency detection capability. This also assumes that advanced RF detection capabilities are legally available to SLTT and owners and operators of critical infrastructure.

Co dalej?

We don’t have any final language for the NDAA just yet. Some, none, or all of this amendment may appear in the final legislation that is eventually passed by Congress and sent to the White House for signature by the President. We will continue to monitor this important legislation and provide updates as they become available.

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