Committee Hearings – Week of 09-30-18

This week with just the Senate in Washington (the House is officially on the campaign trail and is unlikely to be in Washington until after the November election) there is a substantially lower number of hearings being held. One hearing of note is the Senate version of the review of the implementation of positive train control (PTC).

PTC Implementation

On Wednesday the Senate Commerce, Science, and Transportation Committee will conduct an oversight hearing on the “Implementation of Positive Train Control”. The witness list will include:

• Ronald Batory, Federal Railroad Administration;

• Susan Fleming, Government Accountability Office;

• Kevin Corbett, NJ Transit; and

• Scot Naparstek, Amtrak

This will essentially be a replay of the House hearing that was held a couple of weeks ago. The GAO report from that hearing provides an excellent summary of the PTC program and the problems that the industry is having with implementing this technological nightmare. It also points out some of the problems that the FRA is having (and will continue to have) with the oversight of program. The conclusion from that report will certainly raise the ire of everyone that saw the PTC program as the solution to deadly train wrecks, but were not really read in on what the program was actually attempting to do; that ‘everyone’ includes a whole slew of congresscritters.

On the Floor

On Friday the Senate began their consideration of the House amendment to HR 302 that I mentioned last week. This amended bill will provide a two-year authorization for the FAA. It also includes a number of other (and wildly unrelated) measures designed to ensure that the bill will be considered and ultimately approved. The most interesting provision is found in Division H of the bill; the Preventing Emerging Threats Act of 2018, the counter-UAS language that I have discussed elsewhere.

The Senate is scheduled to take up the bill this afternoon with a cloture vote scheduled for 5:30. It looks like the Senate will stay in session tonight until the bill is passed. Sharp-eyed readers will note that the link above shows that a number of inconsequential amendments were agreed to on HR 502 before the announcement was made concerning this week’s process on HR 302. This is a rather typical example of ‘filling the amendment tree’ to allow the Majority Leader to control the debate on a bill while complying with Senate rules requiring consideration of amendments. No other amendments have been offered on this bill.

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.

Commentary

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.

S 3109 Introduced – FY 2019 DHS Spending

Last week Sen. Moore (R,WV) introduced S 3109, the Department of Homeland Security Appropriations Act, 2019. This bill does not contain language for a one-year extension of the Chemical Facility Anti-Terrorism Standards (CFATS) program, but it does continue to provide funding at FY 2018 levels for that program. There are numerous cybersecurity mentions and one unmanned aircraft system (UAS) provision that may be of interest to readers of this blog.

Cybersecurity

The Committee provided funding for the National Computer Forensics Institute to continue training “to bolstering State and local cyber capabilities and supports USSS Electronic Crimes Task Forces” (pg 75). Funding was provided at $25 million; an increase of $6.2 million over FY 2018 and $21 million more than the Trump Administration requested.

Funding for the National Cybersecurity and Communications Integration Center (NCCIC) was set at $279 million with $186 million of that going to “Computer Emergency Response Teams”; presumably ICS-CERT and US-CERT. They also allocated $29.4 million of the NCCIC funds for “for election security through NCCIC activities, including vulnerability scans and incident detection and response” (pg 82).

DHS Science and Technology (S&T) received $6.5 million for ‘cyber physical systems’ research. This includes $1.5 million “to continue collaborating with the Department of Energy on Cybersecurity of Energy Delivery Systems, which utilizes critical large scale electric power transmission test facilities and relies on active cooperation and integration with operational utility providers” (pg 111).

Counter UAS

The Report allocates $13 million for “supports continued investments in research, development, testing, and evaluation of Counter-Unmanned Aerial Systems” (pg 109) but notes that: “Committee is extremely disappointed that the Department is unable to carry out many such activities because it does not currently have the necessary legal authorities to do so.”

Moving Forward

The Senate Appropriations Committee adopted the bill by a vote of 26 to 5 (pg 122). This level of bipartisan support is necessary to bring the House bill (which is being marked up this week) to the for a vote. This cooperative work in the Senate on spending bills this year provides the best chance we have seen in quite some time for actually getting individual spending bills to the President instead of having to wait for a series of continuing resolutions and a massive spending bill at the last (or beyond the last) minute.

Commentary

I really expected to see language providing a one-year extension of the CFATS program in this bill. Either the Committee was sure that the normal order would prevail and an as-of-yet unwritten authorization bill will pass before the end of the year (and that possibility does exist), or they are relying on the fact that this DHS spending bill continuing the funding for the CFATS program (listed as ‘Infrastructure Security Compliance’ on page 81 of the report) will be sufficient to carry the program through what ever legislative delay occurs between January 18^th, 2019 and a final bill being signed by the President.

An argument can be made that funding the program past the ‘expiration date’ is a defacto continuing authorization. In fact, DHS has not seen authorization language since it was formed in 2002. The difference, though, is that the Homeland Security Act did not include an expiration date for DHS.

I have heard a number of legally knowledgeable individuals say that continued funding is all the program really needs to keep going. I am not enough of a legal scholar to really comment on that. I do know, however, that industry is going to look askance at any program directives that come out of the DHS Infrastructure Security Compliance Division (ISCD) after January 18^th lacking a reauthorization bill, especially if complying with those directives costs any money. And there would be a natural tendency of corporate lawyers to argue against any enforcement actions on the basis of ISCD lacking reauthorization. Such arguments could take years to resolve in the courts.

We could still see a short-term extension of the CFATS program in the House bill, or one could be added in the floor amendment process in either house. I would expect, however, for such an amendment to carry the day that it would have to be authored by the Chair and Ranking Member of the respective homeland security committee. Such an amendment would signal the end of the prospects for a CFATS authorization bill in this session.