Recent security breaches with small unmanned aircraft systems (“sUAS”) have garnered much attention. Last fall, UAS overflew 13 of France’s 19 nuclear power plants in an apparent coordinated fashion. In January, a private UAS crashed onto the lawn of the White House. In April, Japanese security forces found a UAS on the roof of the Japanese prime minister’s office carrying a small camera and a bottle containing radioactive Cesium-137.

Nuclear facility operators now operate sUAS under Federal Aviation Administration (“FAA”) exemptions for beneficial purposes, including electrical facility inspections, but others may operate UAS for destructive and subversive purposes. sUAS could be used to monitor a facility’s security activities, divert security forces’ attention from a second threat to physical security, or carry and release destructive conventional, chemical, biological, or radiological payloads. As sUAS become more popular and less expensive, it is likely that nuclear and other sensitive facilities will face an increasing number of potentially-problematic flyovers.

Physical protection at nuclear facilities (including nuclear reactors, fuel cycle facilities, and spent fuel storage and disposal facilities) consists of a variety of measures to protect those against sabotage, theft, diversion, and other malicious acts. The U.S. Nuclear Regulatory Commission (“NRC”) and its licensees use a graded approach for physical protection, consistent with the significance of the facilities or material to be protected. In so doing, the NRC establishes the regulatory requirements and assesses compliance, and licensees are responsible for providing the protection.

Currently, the regulatory framework to address physical security at these facilities is incomplete. The NRC has recognized the risks that UAS pose to nuclear facilities, but has not issued either regulations or guidance related to physical protection. The Nuclear Energy Institute (“NEI”) has recommended that operators of nuclear facilities respond to UAS overflights in the same way that they respond to overflights by manned aircraft. Accordingly, operators of nuclear facilities and their security contractors may be applying their current physical protection programs to respond to this potentially new and unique threat.

The FAA’s long-standing general Notice to Airmen (“NOTAM”) “strongly advise[s]” that pilots avoid the airspace above or in the proximity to nuclear power plants. UAS operators must also follow specific NOTAMs or other flight restrictions that may prohibit overflights of certain facilities. When granting commercial operations exemptions for small UAS, the FAA also conditions that such operations are at least 500 feet away from non-participating structures and are conducted in accordance with an air traffic certificate of waiver or authorization (“COA”). For hobbyists and recreational operators, the FAA has issued guidance regarding where non-commercial users should, and should not, operate UAS, but this guidance is nonbinding and, due to the rapid expansion of the UAS industry and the increase in the number of people flying UAS, may not be widely understood and appreciated.

In an effort to develop a framework for the regulation of sUAS, the FAA issued a Notice of Proposed Rulemaking in April 2015. The proposed rules do not prohibit a sUAS operator from flying a UAS above or near nuclear facilities. Under the proposed rules, operators will be prohibited from operating in prohibited or restricted areas unless that person has permission from the using or controlling agency and operations in areas designated in a NOTAM must be authorized by air traffic control or a COA.

Against this backdrop, the NRC is actively engaging with the departments of Homeland Security, Energy, and Defense to address the use of UAS in airspace around nuclear and other sensitive facilities. The NRC is working with the FAA to examine available legal and regulatory options regarding the regulation of UAS activities in that airspace, and is coordinating with other federal agencies to better understand how they are addressing potential impacts from UAS. Further, the NRC will participate in a U.S.-initiated UAS working group under the nuclear counterterrorism umbrella with the governments of France and the United Kingdom.

Although several companies are developing technologies to detect, intercept, and engage UAS, many legal and practical obstacles exist. Of principal legal concern is the unclear jurisdiction among the several implicated regulatory agencies, including the NRC, FAA, and Federal Communications Commission. Meanwhile, utilities will likely question their rights and responsibilities should a UAS enter a facility’s airspace. Although nuclear facility operators may elect to modify their physical security plans in response to this new potential threat, they should do so keeping in mind both the advantages and legal implications of such modifications.