A new federal plan giving the Transportation Security Administration (TSA) responsibility for countering unmanned aircraft systems (UAS) that pose potential threats to airport operations is “unlawful” and should instead come under the authority of the Federal Aviation Administration (FAA) because nearly all drone incidents are safety related, a Republican congressional aide said on Thursday.

The “vast, vast majority of these UAS fall under the careless and clueless category,” the aide said, adding that this will likely remain the case going forward and that this is viewed as an aviation safety issue, which the FAA is in charge of.

“So, I don’t want the TSA to get out ahead of the FAA,” the aide said at an aviation security conference. “I am deeply concerned that they that they are doing that. I’m deeply concerned that they are clearly outside of their authorities and the program itself is unlawful.”

Congress in October 2018 passed an FAA Authorization Bill that included provisions giving the Departments of Homeland Security and Justice authorities to detect, track, identify and mitigate threats from small drones to covered assets and facilities in the U.S. The bill was signed into law before an incident at London’s Gatwick airport last December that caused the cancellation of flights into and out of the airport for more than a day.

The Gatwick incident triggered the White House National Security Council and interagency partners, including DHS, DOJ and the FAA, to develop a federal concept of operations (CONOPS) that resulted in TSA this fall being given the lead authority for the Counter UAS (CUAS) mission at U.S. airports in the event of a “persistent disruption of the national airspace.”

The new CUAS CONOPS prompted Reps. Mike Rogers (R-Ala.) and Sam Graves (R-Mo.) in fire off a letter in mid-November to Acting Homeland Security Secretary Chad Wolf objecting to TSA being given the authority to detect and mitigate drone threats at airports.

“We believe this concept of operations is wholly inconsistent with, and contrary to the legislative intent of, the limited C-UAS authority provided by Congress to DHS,” they wrote, noting that airports were not included in covered assets and facilities and that the authorities only apply to the Coast Guard, Customs and Border Protection, and the U.S. Secret Service.

The Republican aide said that TSA is “overdue” to provide Congress with a report on any gaps in its authorities. This assessment “was TSA’s opportunity to say, ‘Hey, we’ve done a year of research, we’ve done a year of diligence, we’ve looked at these emergency authorities to protect federal buildings and major events and here’s what we want to do for airports,’” the aide said at the conference, which was hosted by the American Association of Airport Executives (AAAE). “That’s what they should have done.”

Joel Bacon, AAAE’s executive vice president of Government and Public Affairs, who moderated an off the record congressional panel on aviation security, highlighted the concerns of airports related to drone incidents that they are frequently addressing.

“So, what happens next?” Bacon asked. “Does Congress legislate further to provide potential guidance? We have a lot of airport and aviation folks in the room who I think are cognizant of the threat and the danger. They want answers and want to move forward and be part of the conversation moving forward and there’s obviously some frustration about a lack of clarity on where we are right now and where it is we might be going.”

The Republican congressional aide replied that the first thing DHS and TSA need to do is get Congress the assessment on gaps in authorities, which the aide pointed out will include the CUAS mission space. But, the aide said, the assessment was essentially completed before federal stakeholders briefed Congress in November on the CUAS CONOPS.

“Now they are going to have to go and redraft part of it,” the aide said, referring to the assessment. “But if they want to come to Congress in compliance with the law and say, “Hey, we did what you asked. We identified gaps at airports. Here’s what we think we should do,’ that’s when Congress can take the next steps. The problem is, they just spent all their political capital on a program that is not in compliance with the law.”

A Democratic aide on the panel said the House majority is “still working through the issue” of TSA’s leadership in the CUAS mission.

“We do have some discomfort with any kind of delegation within the Department of Homeland Security,” the aide said. Still, based on a recent briefing of the CUAS CONOPS, the aide was “heartened” by FAA’s role in working with DHS through the interagency process.

“The one big takeaway is to date, the way they’ve been using the authorities has been very, very judicious, very, very limited,” the Democratic aide said.

Defense Daily received permission to quote AAAE’s Bacon on the record and the congressional aides on background.

TSA officials on Wednesday at the AAAE conference outlined their general plans for a testbed they hope to have in place sometime next year at Miami International Airport that will allow them to begin testing technologies and sensors for detecting, tracking and identifying drones around airports. Ultimately, TSA wants to be able to test systems that can also mitigate potential UAS threats.

TSA officials at the conference also acknowledged the need to work with Congress related to counter-drone authorities and the need to clarify roles and responsibilities.