Rules Committee Approves Rule for HR 4, FAA Reauthorization Act

Last night the House Rules Committee held their scheduled meeting to formulate the rule for the consideration of HR 4, the FAA Reauthorization Act of 2018. The rule approved is a structured rule that will allow for consideration of 114 amendments from the floor during the debate on the bill. These included amendments on unmanned aircraft systems (UAS), cybersecurity and FEMA emergency response coordination.

UAS Amendments

There were 14 amendments approved that dealt with UAS operations and regulations. Of those there were five that may be of specific interest to readers of this blog:

# 25 - §3XX. Special rules for model aircraft;

# 26 - §45509. Exception for limited recreational operations of unmanned aircraft;

# 47 - §543. Prohibition regarding weapons;

# 80 - §XXX. Applications for designation;

Amendments # 25 and # 26 address issues related to the non-commercial operation of hobby UAS. They would provide for similar limitations on rulemakings on such hobby aircraft; updating the existing limitations provided by §336 of the FAA Modernization and Reform Act of 2012 (PL 112-95). Both would specifically authorize the existing FAA rule on registering operators of hobby UAS.

Amendment # 47 would prohibit the operation of “an unmanned aircraft or unmanned aircraft system that is equipped or armed with a dangerous weapon” {§543(a)}. The definition of the term ‘dangerous weapon’ is taken from 18 USC 930(g)(2). That definition is very expansive and could be argued to include a UAS if used in an attack. Violation of the provisions of this amendment would be subject to a $25,000 civil penalty.

Amendment # 80 would amend §2209 of the FAA Extension, Safety, and Security Act of 2016 (PL 114-190; 130 STAT. 634). It would add “railroad facilities” {§XXX(1)} to the list of facilities in §2209(b)(2)(c) that can petition to have the FAA restrict the operations of UAS near their facility. It would also require the FAA to initiate a rulemaking to implement §2209 by the end of this year and to complete the rulemaking within one year.

Cybersecurity Amendment

There are two cybersecurity amendments that were approved for floor consideration, neither would be of specific interest to readers of this blog. I will, however, mention one in passing; amendment #97 #98 [Corrected 4-26-18, 2357 EDT] This amendment would require the FAA submit to Congress “a report that contains a cybersecurity and artificial intelligence standards plan for Federal Aviation Administration operations that takes into consideration the influence of cybersecurity on artificial intelligence and of artificial intelligence on cybersecurity”.

Emergency Response Coordination

There are a couple of amendments that would modify Title VI, the Disaster Recovery Reform Act, of the bill. One of those may be of specific interest to readers of this blog. Amendment # 111 would add a new section to the bill: §637 - Guidance and training by FEMA on coordination of emergency response plans.

This new section would require FEMA to “provide guidance and training on an annual basis to State, local, and Tribal governments, first responders, and facilities that store hazardous materials on coordination of emergency response plans in the event of a major disaster or emergency, including severe weather events” {§637(a)}. That guidance and training would include:

• Providing a list of equipment required in the event a hazardous substance is released into the environment;

• Outlining the health risks associated with exposure to hazardous substances to improve treatment response;

• Publishing best practices for mitigating further danger to communities from hazardous substances

Moving Forward

The resolution approving the rule will probably be considered today. The actual consideration of HR 4 could begin this evening. With the number of amendments being considered (even with some en bloc groupings) the bill will not be completed any earlier than tomorrow evening. I expect that the bill will pass with substantial bipartisan support.

Commentary

The two ‘model aircraft’ amendments are going to be problematic for the FAA if adopted. Individually they add a probably necessary level of complexity to the current regulation of UAS. I am surprised that the Committee allowed for the consideration of both of these amendments. While not contradictory, they do take different approaches to regulatory scheme. If both pass (a distinct possibility) the FAA will have additional problems (on top of the complex problems associated with regulating UAS operations) meeting the requirement of both amendments.

Amendment #80 presents an interesting look at one of the specific levels of complexity in the regulation of UAS. The §2209 provisions enacted over two years ago allow the FAA to designate air space around certain types of critical infrastructure as restricted air space. Unfortunately, the tools available to monitor (much less than control) access to that airspace are ineffective at best. Furthermore, enforcement of that restriction (even the basic identification of the offenders) would run afoul of a number of other federal laws and regulations that have yet to be addressed (see my discussion here).

The FEMA amendment is an excellent example of congresscritters trying to do something good but failing miserably because of a total lack of comprehension of the complexity of the problem being addressed. I would certainly love to see FEMA address the issue of coordination of emergency action plans for hazardous material facilities, but this amendment is not the way to accomplish that goal.

Since each class of hazardous substances (and frequently each specific hazardous substance) requires a different type of response and mitigation response, it is effectively impossible for FEMA to complete the requirements of the proposed §637 in any detail. A document already exists that provides general guidance (the PHMSA Emergency Response Guidebook), but as anyone familiar with the document knows, the guides provided are very generic and lack any real specificity.

FEMA already has a number of training programs available that address bits and pieces of the requirements in the amendment. To completely comply with even a basic interpretation of the broadly writing requirements would, however, break the bank at FEMA and endanger their entire training program. To meet these requirments FEMA would need a massive infusion of funds and personnel.