§ 124.3 — Scope of authority and mitigation standards.

§ 124.3 Scope of authority and mitigation standards.

(a) Scope of authority. An SLTT law enforcement or correctional agency exercising authority under 6 U.S.C. 124n(a)(2) may take actions described in 6 U.S.C. 124n(b)(1), which generally include detection, warning, and mitigation, that are necessary to address or eliminate a credible threat that a UAS or unmanned aircraft poses to the safety or security of people, a facility, or an asset; a venue or set of venues used for large-scale public gatherings or events; critical infrastructure; or a correctional facility. These statutory categories are functional and are not a prescribed list of property types. The determination of whether a specific property falls within these categories is made by the agency's Agency Approving Official, consistent with this part and 6 U.S.C. 124n. No “covered facility or asset” designation under 6 U.S.C. 124n(l)(3) is required for SLTT law enforcement or correctional agency operations; however, a risk-based assessment is required as part of the Operations Plan, as outlined in § 124.8. Whether the property falls within a section 124n(a)(2) category is a separate question from the credible threat determination. The credible threat determination required by paragraph (b) of this section must be made before any mitigation action.

(b) Credible threat determination for mitigation actions. Before taking any mitigation action, personnel must reasonably determine, under the totality of the circumstances, that a credible threat exists, as defined in § 124.2. The determination must be made in real time by the certified and trained personnel closest to the operational situation and documented as part of the post-operation report required by § 124.13. An established pattern of unauthorized UAS activity at a specific location is relevant to the totality of the circumstances and may, in combination with a contemporaneous indicator—including, for example, a new detection event at the same location during a period consistent with the established pattern—support a credible threat determination. A contemporaneous indicator need not independently establish a threat. Considered with the totality of the circumstances, which may include an established pattern of unauthorized UAS activity, an intelligence indicator, or other contextual information, the contemporaneous indicator must provide a present-tense basis for concluding that the specific aircraft at issue poses a current risk. This operational standard governs individual mitigation decisions by authorized personnel in the application of reasonable force under the totality of the circumstances and does not limit the information or analysis that may be considered at the approval level in determining whether to authorize a C-UAS operation for a specific event or facility.

(c) Proportionality. Mitigation actions must be proportionate to the credible threat identified. Personnel must employ the least disruptive effective means of mitigation available under the totality of the circumstances. If equipment is available and time permits, a warning to the remote pilot-in-command should precede any mitigation action. Before taking any mitigation action that may result in the disabling, damage, or destruction of an unmanned aircraft, personnel must consider whether the threat posed by the UAS outweighs the risk of collateral harm to public safety. A mitigation action that creates a greater risk to public safety than the threat it is intended to address is not proportionate and must not be taken. Where a non-mitigation measure is sufficient to eliminate the threat, seizure or destruction of the aircraft should be avoided when feasible. The risk of collateral harm to public safety includes the risk of falling debris, damage to persons or property on the ground, disruption to communications systems, and risks to aviation safety, civilian aviation and aerospace operations, aircraft airworthiness, or the use of the airspace.

(d) Protective purpose limitation. The authority of 6 U.S.C. 124n(a)(2) is limited to the protection of people, facilities, and assets; a venue or set of venues used for large-scale public gatherings or events; critical infrastructure; and correctional facilities from credible threats posed by unmanned aircraft and UAS. C-UAS authority under this part may not be exercised for the sole purpose of collecting evidence for criminal prosecution or as a substitute for the authority provided by chapter 119 or 206 of title 18, United States Code. Evidence obtained incidental to lawful protective C-UAS operations may be used in subsequent criminal proceedings consistent with applicable law.

(e) Mitigation operator requirement. (1) The person who takes a mitigation action, including activating an RF-emitting system, executing a cyber-based takeover, or otherwise causing a C-UAS system to affect or otherwise impact the flight, control, or communications of a UAS or unmanned aircraft, must hold a current Mitigation Certification covering the technology category being employed, and must possess a valid 14 CFR part 107 remote pilot certificate. This requirement is not satisfied by supervision of an uncertified person by a certified operator; the certified operator must be the individual who directly executes the mitigation command or function.

(2) Support functions that do not involve the initiation of mitigation actions, such as detection system monitoring, threat triage and prioritization, ground intercept team dispatch, communications, and administrative functions, do not require Mitigation Certification, but must be performed by personnel trained in accordance with the agency's implementation policy and, where the support function involves operation of systems requiring the authority of 6 U.S.C. 124n(a)(2) or the relief it provides from certain laws, by personnel holding a current Detection and Warning Certification.

(3) For operations involving multiple personnel performing distinct roles, the agency's implementation policy must define the roles and responsibilities of each position, identify which positions require Mitigation Certification, and which require Detection and Warning Certification only, and establish the communication and concurrence procedures between the mitigation operator and other personnel.

(f) Independent professional judgment. (1) The certified mitigation operator retains independent professional judgment on whether to initiate a mitigation action.

(2) A supervisor, commander, or other official, regardless of rank, may provide operational direction, tactical context, and coordination guidance to the operator, and may direct the operator to withhold or cease mitigation when broader operational considerations warrant.

(3) A supervisor, commander, or other official may not direct a certified operator to initiate a mitigation action when the operator has determined that the credible threat standard is not met or that the proportionality requirement of paragraph (c) of this section is not satisfied.

(4) The agency's implementation policy must address the chain of command for mitigation decisions and must make clear that non-certified personnel, regardless of rank, may not direct mitigation actions that override the certified operator's professional judgment on whether the conditions for mitigation are present.

(5) An operator who declines to initiate mitigation based on a good-faith professional determination that the conditions for mitigation are not met may not be subjected to adverse employment action for that decision.

(g) Airspace awareness. (1) For operations where known authorized manned or unmanned aviation is operating or anticipated in or near the area of operations, the agency's implementation policy or C-UAS Operations Plan must designate a person or position responsible for maintaining real-time awareness of known authorized aviation within the operational area and for ensuring that this information is communicated to personnel authorized to initiate mitigation actions before any mitigation is executed. For purposes of this paragraph, known authorized aviation means any manned or unmanned aircraft that has been identified in the C-UAS Operations Plan, communicated to the C-UAS team during the operation, or otherwise confirmed as lawfully operating in or near the area of operations. The designated person, or the individual filling the designated position, must have the ability to communicate directly with the mitigation operator. No mitigation action may be initiated without reasonable efforts to confirm that the target is not a known authorized aircraft.

(2) The scope and formality of this role must be commensurate with the complexity of the aviation environment. For operations with minimal or no known authorized aviation, this role may be performed as an additional duty by the certified operator or other command post personnel; for operations with significant aviation activity, the agency must designate a dedicated individual with airspace awareness and coordination responsibilities. When a target cannot be correlated with any known, authorized aircraft and meets the credible threat standard, mitigation may proceed.