Leveraging Unmanned Systems for Coast Guard Missions (2020) / Chapter Skim
Currently Skimming:
Appendix E: Legal and Policy Issues
Appendix E: Legal and Policy Issues
Pages 135-180
The Chapter Skim interface presents what we've algorithmically identified as the most significant single chunk of text within every page in the chapter.
Select key terms on the right to highlight them within pages of the chapter.
From page 135... ...
PART I A discussion of legal and policy considerations for each UxS domain now follows. Unmanned Maritime Vehicles/Vessels (UMVs)
|
From page 136... ...
operations, the Coast Guard needs to clearly identify what legal requirements must be met for lawful UMV operation under relevant and prevailing authorities in order to identify potential legal obstacles, and if necessary, overcome them.3 To date, the committee understands that the Coast Guard has not developed any formal legal opinions on UMV compliance under prevailing legal frameworks, although sister services and near-peer competitors are developing and utilizing UMVs.4 Specifically, the area of law surrounding UMVs is both emerging and relatively untested as the development of emerging UMV technologies are challenging current applications of legal regimes governing UMV opera tions, which in turn is spurring significant debate in the domestic and international legal communities. Essentially, technology has outpaced the relevant regulations because existing legal regimes generally contemplated manned ship operations, or at least with a "human in the loop," when they were initially developed, such as the International Regulations for Preventing Collisions at Sea 1972 (COLREGS)
|
From page 137... ...
2018. Determining the legal status of unmanned maritime vehicles: formalism vs functionalism.
|
From page 138... ...
13 See World Maritime University, "Transport 2040 Autonomous Ships: A New Paradigm for Norwegian Shipping -- Technology and Transformation" at https://commons.wmu.se/cgi/ viewcontent.cgi? article=1072&context=lib_reports.
|
From page 139... ...
. As UxS platform concepts mature, and in parity with sister services, the Coast Guard could take into account whether arming UxS in support of operations is desirable (i.e., use of warning shots or disabling fire to support Maritime Law Enforcement [MLE]
|
From page 140... ...
And, the Coast Guard RDC has started a project to coordinate and conduct lab and field tests of long-range autonomous underwater vehicles, remote environmental monitoring units, autonomous underwater vehicles and unmanned aircraft systems (UASs) in ice conditions to verify accuracy of sensors and UxSs.23 20 A Ghost Fleet Overlord unmanned surface vessel (USV)
|
From page 141... ...
26 For purposes of this section, the term UAS is used as defined in COMDTINST M3710.1H as "an unmanned aircraft and the equipment necessary for the safe and efficient operation of that aircraft. An unmanned aircraft is a device that is used, or is intended to be used, for flight in the air with no onboard pilot." Other terms include UAV, drone, remotely piloted vehicle, remotely piloted aircraft, and remotely operated aircraft.
|
From page 142... ...
authorizing statutes,31 and therefore Coast Guard UAS operations in the National Airspace System (NAS) 32 are subject to FAA regulations.33 The FAA imposes stringent legal requirements that restrict government operations of UASs to personnel who have UAS pilot licenses, and there are numerous rules concerning where UASs can be flown.
|
From page 143... ...
38 U.S. Department of Homeland Security Science & Technology Directorate.
|
From page 144... ...
When operating outside the NAS, Coast Guard UASs are required to operate in accordance with appropriate international authorities, specifically, the International Civil Aviation Organization (ICAO) flight rules that govern operations in international airspace.43 When UAS operations from a Coast Guard cutter (e.g., NSC)
|
From page 145... ...
AND VIGNETTES. 46 DoDI 4540.01; see also CUTTER-BASED SMALL UNMANNED AIRCRAFT SYSTEMS (sUAS)
|
From page 146... ...
, issued August 14, 2018, at https://www.faa.gov/uas/public_safety_gov/media/FAA_UAS-PO_LEA_Guidance.pdf. 50 See DHS Counter Unmanned Aircraft Systems Legal Authorities, at https://www.dhs.
|
From page 147... ...
Department of Homeland Security (DHS) to explicitly counter UAS threats.55 This law permits authorized DHS personnel to take protective measures that are necessary to mitigate a credible threat that an unmanned aircraft or UAS poses to the safety or security of a covered facility or asset and permits authorized DHS component personnel to detect, identify, monitor, and track UAS without prior consent; warn the operator of a UAS, including by electromagnetic means; disrupt control, seize control, or confiscate a UAS without prior consent; and use reasonable force to disable, damage, or destroy a UAS.
|
From page 148... ...
Coast Guard Counter-Unmanned Aircraft Systems Pilot DHS/USCG/PIA-030, October 28, 2019, at https://www.dhs.gov/sites/default/ files/publications/privacy-pia-uscg030-cuas-october2019.pdf. The Coast Guard will conduct the pilot testing through 2020, after which its C-UAS program may become fully operational.
|
From page 149... ...
No. 107-296 (The Homeland Security Act)
|
From page 150... ...
and inter national geographic regimes, and thus add to jurisdictional complexity. Therefore, it is imperative to understand the maritime zones and airspace in which Coast Guard UxS operations will be conducted throughout the maritime domain to ensure compliance with applicable laws and regulations.59 To this end, the United Nations' Law of the Sea (UNCLOS)
|
From page 151... ...
laws, the territorial sea extends only 3 miles seaward of the baseline. Under the Chicago Convention, "National Airspace" composes the land and territorial waters, thus the non-sovereign portion of airspace is beyond 12 nautical miles.61 • Customs Waters.
|
From page 152... ...
SOURCE: U.S. Department of Defense.62 Legal Considerations for UMV As discussed in Chapters 3 and 6 and Part I, in order to determine legal rights and obligations when operating a particular UMV, a threshold issue will be how to characterize the UMV given the language in key domestic statutes, regulations, and international laws, which primarily govern operations by "vessels" or "ships."63 Efforts toward compliance with governing legal authorities has invariably raised issues of fact, policy, and law, including the critical question of "is it a vessel?
|
From page 153... ...
"Maritime Zones of the United States." https://nauticalcharts.noaa.gov/data/docs/gis 153 learnaboutmaritimezones1pager.pdf.
|
From page 154... ...
• Marine Unmanned Vehicle • Marine Unmanned Vessel • Maritime Autonomous Surface Ship • Maritime Autonomous Vehicle • Merchant Autonomous Surface Ship (MASS) • Ocean Data Drone • Optionally Manned Vessel (OMV)
|
From page 155... ...
.65 65 Norwegian Forum for Autonomous Ships. "Definitions for Autonomous Merchant Ships," p.
|
From page 156... ...
Allen, Determining the legal status of unmanned maritime vehicles: formalism vs functionalism, Journal of Maritime Law & Commerce 49:488–490, at 477 (including more expansive list of similar questions)
|
From page 157... ...
Notably, the United States is not a party to UNCLOS, but sserts that the navigation and overflight provisions of the Con a vention are reflective of customary international law and that the United States therefore operates in conformity with those provisions. See Ronald Reagan, Statement by the President, 19 WEEKLY COMP.
|
From page 158... ...
2019. Maritime autonomous vehicles within the international law framework to enhance maritime security.
|
From page 159... ...
Others suggest pragmatic or "functional" approaches to COLREGS interpretation are appropriate and that legal risk can be justified if UMV can prove safe and prudent operations; in support, some opine that the IMO has not adopted a strictly literal interpretation of the Rule 5 requirements in the past, and it "is therefore possible that electronic instruments and equipment can replace the human function of observation, assuming that the technologies used are at least as effective and safe as diligent humans performing the lookout functions." See European Maritime Safety Agency, "SAFEMASS Study of the Risks and Regulatory Issues of Specific Cases of MASS," at http://www.emsa.europa.eu/emsa-documents/atest/item/3892 l safemass-study-of-the-risks-and-regulatory-issues-of-specific-cases-of-mass.html.
|
From page 160... ...
states: "Any action taken to avoid collision shall be taken in accordance with the Rules of this Part and shall, if the circumstances of the case admit, be positive, made in ample time and with due regard to the observance of good seamanship…." o n re Ocean Foods Boat Co., 692 F
|
From page 161... ...
2018. Determining the legal status of unmanned maritime vehicles: formalism vs functionalism.
|
From page 162... ...
2018. Determining the legal status of unmanned maritime vehicles: Formalism vs functionalism.
|
From page 163... ...
. Coast Guard Legal Interpretations The issue of "what is a vessel" is not a novel matter for the Coast Guard.
|
From page 164... ...
, Au tonomy in Weapon Systems78 The Navy has also granted exemptions from regulatory and certification requirements for certain unmanned surface vehicles under 33 U.S.C. 1605 (Navy and Coast Guard vessels of special construction or purpose)
|
From page 165... ...
provides guidance and information on "Unmanned Maritime Systems Best Practices" to UMS owners and operators on matters concerning UMS development and opera tions in the maritime environment.81 Maritime UK has also published the voluntary Maritime Autonomous Surface Ships (MASS) UK Industry Conduct Principles and Code of Practice, which provides practical guidance for the design, construction, and safe operation of autonomous and semi-autonomous MASS less than 24 meters (November 2019, ver.
|
From page 166... ...
The assumption is that operation of autonomous surface vessels and v ehicles and autonomous underwater vehicles in the Marine Autonomy Research Site will still be subject to USCG regulations that involve the state of maneuverability, commonly accepted Rules of the Road and other requirements. 91 See https://www.nymic.org.
|
From page 167... ...
: The Coast Guard is an active participant in the RSE,94 which focuses only on surface vehicles, and each instrument related to maritime safety and security, and to liability and compensation, and for each degree of autonomy, provisions will be identified which: o pply to MASS and prevent MASS operations; or a o pply to MASS and do not prevent MASS operations and re a quire no actions; or o pply to MASS and do not prevent MASS operations but may a need to be amended or clarified, and/or may contain gaps; or o ave no application to MASS operations. h The IMO's MASS scoping exercise initially decided on four degrees of unmanned surface ship autonomy:95 1.
|
From page 168... ...
101 • EU Advanced, Efficient and Green Intermodal Systems (AEGIS) 102 • Maritime Unmanned Navigation through Intelligence in Networks103 • British Ports Association Autonomous Shipping in Ports Network104 Legal Considerations for UASs As with surface assets, Coast Guard UASs are obligated to comply with legal jurisdictional limitations and operate aircraft under the applicable legal authority.
|
From page 169... ...
. FAA policy dictates conformity with ICAO Standards and Recommended Practices to the maximum extent practicable.107 The ICAO Model UAS Regulations and supporting Advisory Circulars offer a template for Member States to adopt or to supplement their existing UAS regulations.108 And, ICAO has published the UAS Toolkit to "assist States in realizing ffective UAS operational guidance and safe domestic operations."109 e • For a comprehensive summary identifying and prioritizing gaps in UAS operations, see Standardization Roadmap for Unmanned Air craft Systems, Version 2.0, Prepared by the ANSI Unmanned Aircraft Systems Standardization Collaborative (UASSC)
|
From page 170... ...
170 FIGURE E-5 FAA guidance for small UAS operations. SOURCE: FAA.111 111 See https://www.faa.gov/uas/recreational_fliers/where_can_i_fly/airspace_101.
|
From page 171... ...
Coast Guard's Inevitable Use of Unmanned Aircraft Capable of Employ ing Airborne Use of Force in the Maritime Counter-Drug Mission, Loyola Maritime Law Journal 18(1) , 2019112 • Craig Allen Jr., Armed Drones: The Coast Guard's Next New Frontier?
|
From page 172... ...
a system manufactured in a covered foreign country or by an entity domiciled in a covered foreign country for the detection or identification of covered unmanned aircraft systems.
|
From page 173... ...
2020) , which effectively calls for the "temporary cessation of non-emergency unmanned aircraft systems fleet operations" in order to ensure that "cybersecurity, technology and domestic production concerns are adequately addressed."114 • The Coast Guard follows these DOD and DOI restrictions on UAS procurement for the sake of comity and in support of its role and requirements in joint, combined, and interagency operations.
|
From page 174... ...
122 • ANSI Unmanned Aircraft Systems Standardization Collaborative123 Law Enforcement, Privacy, and Data Collection Considerations Sensors and systems aboard UxSs that will observe and store data may be subject to legal considerations. Access to information requires appropriate permissions, individual security certification, and system security certification to ensure adherence to legal requirements and domestic and international policies, procedures, and agreements.
|
From page 175... ...
• DHS Unmanned Aircraft Systems Considerations for Law Enforce ment Action • DHS Privacy Impact Assessment for the Aircraft Systems • CBP Office of Air and Marine Unmanned Aircraft System Opera tions and Privacy Policy • CBP (March 27, 2017) , Fiscal Year 2017 Report to Congress, Use of Unmanned Aircraft Systems in Joint Operations with State, Local, and Tribal Partners Presidential Memorandum: Promot ing Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft Systems • U.S.
|
From page 176... ...
U.S. Laws That Protect Civil Aviation/NAS and the Electromagnetic Spectrum/GPS • Signal Interference Laws (47 U.S.C.
|
From page 177... ...
• Coast Guard Use of Force Policy and MSRO Policy Letter 02-18: Authorizes Coast Guard operational units to employ readily avail able kinetic means in defense of self/others critical infrastructure. DHS C-UAS Legislation • The Preventing Emerging Threats Act of 2018 grants DHS statu tory authority to counter credible threats from UASs to the safety or security of a covered facility or asset, including to disrupt con trol of the UAS or unmanned aircraft, without prior consent, in cluding by disabling the UAS or unmanned aircraft by intercepting, interfering, or causing interference with wire, oral, electronic, or radio communications used to control the UAS or unmanned air craft; seize or exercise control of the UAS or unmanned aircraft; seize or otherwise confiscate the UAS or unmanned aircraft; and use reasonable force to disable, damage, or destroy the UAS or unmanned aircraft.128 Acquisition Authorities The acquisition process ensures that affordable, capable, and sustainable systems are obtained within planned cost, schedule, and performance p arameters.
|
From page 178... ...
• Coast Guard Research, Development, Test, and Evaluation (RDT&E) Program: This program enhances acquisition and mis sion execution by helping transition new technologies into the Ser vice's operational forces as the Coast Guard's sole office conducting applied RDT&E experimentations and demonstrations.
|
From page 179... ...
of San Diego, California, $200,000 to begin testing its autonomous small Unmanned Aircraft System (sUAS) in operational settings, August 29, 2019, https://www.dhs.gov/scienceand-technology/news/2019/08/29/news-release-st-awards-200k-san-diego-company-suas-testing.
|
From page 180... ...
implements the AECA.133 • Things to Consider for Unmanned Aircraft Systems (UAS) Procurement.134 • Free Technology Decision Tool to assist in the decision to purchase an sUAS.135 • For a detailed discussion on Coast Guard acquisitions, including UAS programs, see LCDR John Egan, Coast Gaurd, The Unmanned Initiative: A Strategic Appraisal of Coast Guard Unmanned Aerial Systems, Joint Forces Staff College Thesis (June 18, 2011)
|
Key Terms
This material may be derived from roughly machine-read images, and so is provided only to facilitate research.
More
information on Chapter Skim is available.