Protecting the Sky over CI

Yesterday the American Chemistry Council issued a press release commending the Senate Commerce, Science and Transportation Committee on their adoption of a much modified version of S 2658, the Federal Aviation Administration Reauthorization Act of 2016. An official copy of the bill has yet to be printed by the GPO, but a committee draft was used for mark-up process. The press release said (in part):

“ACC and its members commend Chairman Thune for his leadership on aviation safety and for working closely with Senator Blunt to include a provision to the Senate’s Federal Aviation Administration (FAA) reauthorization bill that will address the troubling gap in current policies regarding the safe operation of drones around chemical facilities. With today’s vote, Congress has taken another important step toward addressing the serious security concerns that have come with this new and rapidly growing technology.”

Background

There were over 50 amendments acted upon during that markup and most were adopted (I’ll have more on that hearing and the bill provisions in a later post). I searched through all of the amendments and could not find anything about protecting chemical plants. I then went back through the substitute language upon which the Committee actually acted. Sure enough I found the provision in §2144.

Now let me first start out by saying that this provision is not the same language that the ACC applauded last month in the House version of the FAA authorization, HR 4441. That bill was passed in committee but will apparently not work its way to the floor because of some intra-party problems.

First a procedural matter; there are a large number of provisions in S 2658 that are applicable to unmanned aircraft systems. Many of those would include additions to 49 USC in a new Chapter 448, Unmanned Aircraft Systems. The provisions of §2144 do not include instructions for adding language to Chapter 448. This may cause some minor administrative problems for the regulations that the FAA Administrator is supposed to craft, but those would be future problems of little interest to Congress. As a side note, the provision in HR 4441 would have been included in 49 USC.

Bill Provisions

Section 2144 would require the Administrator to establish new regulations within 180 days of the enactment of this bill; a very short time frame for any agency, but especially for the FAA, to complete the regulatory process. The purpose of the regulations would be to allow facilities to petition the FAA to “prohibit or otherwise limit the operation of aircraft, including an unmanned aircraft [emphasis added], over a fixed site facility” {§2144(a)}.

While the similar language in the House bill applied only to security regulated chemical facilities (CFATS and MTSA facilities) the coverage in this bill is much more expansive. It includes {§2144(b)(1)(C)}:

• Critical infrastructure;

• Oil refineries and chemical facilities;

• Amusement parks; and

• Other locations that may benefit from such restrictions

The bill provides only the broadest standards for the approval or disapproval of those applications. It allows the Administrator to consider {§2144(b)(2)(C)}:

• Aviation safety;

• Personal safety of the uninvolved public;

• National security; or

• Homeland security

The FAA is required to review those petitions within 90-days. The bill does not require the FAA to provide a notice of why the petition was denied. The Administrator, however, may allow a resubmission of the petition that addresses the reasons for its disapproval. If the petition is approved the FAA will outline {§2144(b)(2)(B)}:

• The boundaries for unmanned aircraft operation [emphasis added] near the fixed site facility; and

• Such other limitations that the Administrator determines may be appropriate.

Moving Forward

This bill is going to the floor of the Senate; the only question is when. I expect that it will get to the floor pretty quickly for the Senate. The current FAA authorization ends at the end of March, but HR 4721 was just approved by the Senate and is on its way to the President to extend that until July 15^th (which just happens to be the last day the House and Senate plan to be in session before their election year lengthened summer recess). It would appear that the House and Senate committee staffs have been hard at work crafting a version of this bill that should be able to pass in both bodies.

It will probably take most of a week of floor debate and amending in the Senate. As long as there are no poisoned amendments tacked on to the bill it will pass in the House the following week. The big question is can the Senate get this to the floor before things start to get clogged up with spending bills. Hopefully, it will get to the floor in early April.

Commentary

I never can understand why staff members fail to make legislative mandates such as this a part of the US Code. It really does not make much difference, but it makes it look like this is a temporary measure that does not deserve a place in formal federal law. It does provide another problem which this section very carefully ignores, without being included in a portion of the US Code that includes key definitions, a bill should provide those definitions internally; this bill did not do that for this section.

There is an important internal disconnect in this Section of the bill. It starts off by allowing facilities to petition to limit the operation of aircraft, including an unmanned aircraft. It concludes, however, by only allowing the FAA to set the boundaries for unmanned aircraft operation. I’m pretty sure that many facility owners would prefer to include all aircraft, but the petition and approval processes should apply to the thing.

This bill also has the same severe problem that I identified with the similar provisions in HR 4441; making flight illegal does not stop the aircraft overflights. The bill does include in other sections proposals to require real-time identification of UAS and their pilots sometime in the future, there does not yet exist technology to accomplish that requirement, especially for aircraft currently in the field.

Without being able to identify aircraft violating facility airspace, the only way this prohibition can be effective is to allow the facility owner to take action to take down offending aircraft. That is currently illegal under FAA interpretation of the law that makes it illegal to interfere with an aircraft in flight in the National Air Space (NAS; with exceptions, of course, for actions by duly ordered military aircraft). To be effective, this section should provide some sort of active legal recourse to facility owners.

The provisions of §2144 do not explain how the limitations authorized in {§2144(b)(2)(B)} compare or interact with other restricted airspace designations that the FAA is required to maintain. Nor does it explain how the FAA should go about communicating this information to the UAS flying public. While commercial UAS pilots should be expected to have flight charts available that should allow them to avoid designated restricted air space, it is extremely unlikely that most ‘model aircraft’ UAS pilots would have them available or know how to read them. Ultimately, most experts would prefer to see these designations included in mandatory geofencing firmware within the drone, but we are a long way from being able to require that level of control system sophistication in all covered UAS, much less have a reasonable way to update that firmware with changes to restricted airspace in the NAS.

What probably needs to be added to §2144 is a few study and report provisions that would address these and other not quite so obvious problems with adding additional airspace restrictions to the operations in the NAS. If such provisions were included in this bill with a related sunshine date to force Congress to deal with the results of those studies and reports, then this would probably be a very good first step in limiting the flight of aircraft, including UAS, near critical infrastructure.