HR 6438 Introduced – Counter UAS Coordinator

Last month Rep. Perry (R,PA) introduced HR 6438, the DHS Countering Unmanned Aircraft Systems Coordinator Act. The bill would require the DHS Secretary to designate a Counter Unmanned Aircraft Systems (UAS) Coordinator to “coordinate with relevant Department offices and components on the development of policies and plans to counter threats associated with UAS”. The bill was adopted in markup hearing by the House Homeland Security Committee on July 24^th, 2018 by unanimous consent without amendment.

Coordination

The bill would add a new §195g to 6 USC. It would require the Counter UAS Coordinator to work with elements of DHS to {new §195g(a)}:

• Counter UAS that may be used in a terrorist attack;

• Promote research and development of counter UAS technologies;

• Ensure the dissemination of information and guidance related to countering UAS threats; and

• Serve as the Department point of contact for Federal, State, local, and tribal law enforcement entities and the private sector regarding the Department’s activities related to countering UAS;

The bill briefly addresses the conflict between counter UAS activities and a variety of current US laws by requiring the Coordinator to work “with relevant Department components and offices to

ensure testing, evaluation, or deployment of a system used to identify, assess, or defeat a UAS is carried out in accordance with applicable Federal laws” {new §195g(b)}.

Moving Forward

With the bill moving quickly through the Homeland Security Committee without opposition it is clear that this bill has bipartisan support. Whether that support is strong enough to have this bill make its way to the floor of the House (and subsequently the Senate) in the short (effective) time left in the 115^th Congress remains to be seen. The saving grace for this bill is that it will almost certainly be considered under the suspension of the rules process in the House and under the unanimous consent process in the Senate; neither process would take up much legislative time.

Commentary

The reason that this bill commands such bipartisan support is that it does so very little. It requires the Secretary to ‘designate’ not appoint the coordinator; thus, no new hire or office is authorized. It does not authorize any spending, nor does it authorize the writing of any new regulations. In short it allows Congress to look like it is doing something to address the potential UAS threat without making any hard-political decisions about how to go about authorizing the government to take down aircraft in the national airspace. Even more importantly, it will allow Congress to point the finger at DHS when the inevitable UAS attack does take place.

There are processes in place to take down full size aircraft in the national airspace. They were discussed, in passing, in the wake of the 9-11 attacks, but there has never been a full public or political discussion about how those tough decisions will be made nor about who will suffer the legal consequences when such decisions are made in error or even just under questionable circumstances.

That may be why Congress is so reluctant to make such decisions on counter UAS activities; the FAA maintains the legal fiction that UAS are no different than manned aircraft. Thus, taking out an attacking UAS is legally the same as taking out a weaponized airliner. The consequences are radically different is scope, the legal fiction remains. Perhaps it is time to reexamine that legal fiction, particularly with regards counter aircraft operations; manned and unmanned.