Tuesday, September 25, 2018

House Set to Pass Anti-UAS Provisions?

Yesterday I ran across (and was pointed to by a couple of readers) an interesting NBC News article that was headlined: “New law would give federal government the right to shoot down private drones inside U.S.”. I thought that it was an oddly timed article on a couple of bills that I had previously reviewed here (HR 6401 or S 2836), but I went on and read it anyway. It turns out that I was right and woefully wrong.

HR 302 – FAA Reauthorization

The article noted that the bill was part of the FAA reauthorization bill that will be considered in the House tomorrow. I quickly did a search on my machine for FAA reauthorization bills and came up with HR 4, which was passed in the House in April and awaits Senate action. That bill did not contain any anti-UAS provisions and would not be reconsidered in the House until the Senate took action.

So next I looked at the House Majority Leader’s schedule page and scanned down to Wednesday, and sure enough there was a listing for HR 302, the FAA Reauthorization Act of 2018. Its not listed in my files, so I have not covered it; odd.

Then I looked on the Congress.gov web site and found HR 302, the Sports Medicine Licensure Clarity Act of 2017 (well that explains why I did not cover it). The listing for HR 302 on that site contains no mention of the FAA nor UAS; something is starting to smell here.

So I go back to the Majority Leader’s page and click on the link provided there to HR 302 and low and behold I find a monstrosity; a very much amended version of HR 302 that is indeed renamed the FAA Reauthorization Act of 2018 that includes so much more.

One last thing to check, I go to the House Transportation and Infrastructure Committee web site and see what I can find there. On that site I find a press release on HR 302 that explains that:

“House and Senate Committee leaders tonight announced that they have reached a bipartisan final agreement on legislation that provides long-term stability and critical reforms to the Federal Aviation Administration (FAA) and transforms federal disaster programs to better prepare communities for disaster.  The agreement also includes a reauthorizations and reforms of the Transportation Security Administration (TSA) and the National Transportation Safety Board (NTSB).”

The press release concludes by explaining:

“The announced agreement includes the FAA Reauthorization Act of 2018, the Disaster Recovery Reform Act of 2018, a three-year reauthorization of the Transportation Security Administration (TSA), and a four year reauthorization of the National Transportation Safety Board. Also included in H.R. 302 are sports medicine licensure legislation, the BUILD Act of 2018, a requirement for an assessment of the situation in Syria, the Preventing Emerging Threats Act of 2018, and supplemental appropriations for disaster relief.”

UAS Provisions

The new bill greatly expands the number of UAS provision from those found in HR 4. The version of HR 4 that was passed in the House included 19 sections in Subtitle B of the Safety title of the bill. HR 302 includes 43 sections. Some of the interesting provisions include:

§363 – Prohibition regarding weapons [on UAS, with exceptions];
§364 – US Counter-UAS system review of interagency coordination processes;
§365 – Cooperation related to certain counter-UAS technology;
§366 – Strategy for responding to public safety threats and enforcement utility of unmanned aircraft systems;
§370 – Sense of Congress on additional rulemaking authority;
§371 – Assessment of aircraft registration for small unmanned aircraft;
§372 – Enforcement;
§376 – Plan for full operational capability of unmanned aircraft systems traffic management; and
§382 – Prohibition [flying over wildfires].

Counter-UAS Provisions

Division H of the bill is the Preventing Emerging Threats Act of 2018. This is essentially a combination of HR 6401 and S 2836 that I have addressed separately. It does contain the more restrictive ‘notwithstanding’ clause in the new §210G(a) that was found in the House bill; limiting the laws that may be ignored in the process of identifying, tracking and bringing down a threatening UAS.


The NBC News article that started off the search for this bill with a number of vague or lacking definitions in the bill. I would have preferred to see some of those concerns addressed in the bill, but it is probably more appropriate for those details to be hashed out in the regulatory process required in the new §210G(d).

My specific concerns about the language in the Counter-UAS section of the bill have been addressed in my earlier posts about the two bills that form the basis of the provisions in HR 302. It is clear to me, however, that some sort of authority needs to be provided to address specific threats posed by weaponized UAS. I am not sure that this language is the best way to deal with that, but it is limited enough to be a decent first step.

I do have, however, a major concern with the way this bill is being slid through the House. The FAA provisions have been greatly expanded from those found (and debated) in HR 4. Those provisions have been worked out behind closed doors and likely have many problems associated with them. Pushing them through the House with 40 minutes of debate that will be mainly limited to congratulating the Chair and Ranking Member of the Transportation and Infrastructure Committee on their bipartisan coordination in putting this bill together is an egregious misuse of the suspension of the rules process.

This revised bill is, however, an excellent example of the old-fashioned, horse-trading legislative process that Tip O’Neal would have been proud of. The crafters just kept adding divisions to the bill until they bought off every committee chair and ranking member that might have objected to the bill. We will see how well their efforts have paid off tomorrow when this bill comes up for consideration early in the session, though I expect that the vote will come later in the day. The leadership apparently thinks that this will pass and I suspect that they are correct.

There is a good chance, however, that even if this bill slides through the House it will die in the Senate. There it takes only a single senator to object to the political shenanigans involved in this Frankenstein’s monster of a creation to stop the bill from being considered in any abbreviated forum. And there are a number of bomb-throwers in the Senate who might take objection to this bill.

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