HR 4 Further Amended and Passed in House – FAA Authorization

Today the House finished consideration of the amendments cleared by the House Rules Committee for HR 4, the FAA Reauthorization Act of 2018. They then passed the bill by a strongly bipartisan vote of 393 to 13; the No votes were nearly evenly split between Republicans and Democrats.

There were two remaining amendments from those I described earlier left to be considered today. Amendment #111 (FEMA emergency response plan support) was passed by a voice vote as part of en block amendment 4. Amendment #98 (FAA artificial intelligence report) was not offered during the consideration of the bill either today or yesterday.

The Senate will probably take up the bill with a substitute language amendment that will address a number of different issues with some language in common. This typically would lead to a conference committee to work out the differences between the two bills.

House Amends HR 4 – FAA Authorization Act

The House started consideration of HR 4, the FAA Reauthorization Act of 2018, today. Amendments were taken in numerical order with a number of en bloc considerations. The last amendment considered this evening was #97.

Of the UAS amendments that I described in my earlier post, all have been adopted by voice votes. Amendments #25 and #26 were considered as part of en block #1. Amendment #47 was taken up on its own. And amendment #80 was taken up as part of en block #3.

The House will resume consideration of HR 4 on Friday morning (okay, technically that is this morning now).

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.

Committee Hearings – Week of 04-22-18

With both the House and Senate in Washington this week things start to get busy before the primary season starts to make Congress really political. In addition to marking up the FY 2019 National Defense Authorization bill and budget hearings we have three hearings that may be of potential interest to readers of this blog; HR 4 and cybersecurity.

NDAA Markup

The introduced version of HR 5515, the National Defense Authorization Act for Fiscal Year 2019 was published last week. It has a number of large holes in it that will be filled this week by subcommittee markups. The full Armed Services Committee will not finish the markup process until the House comes back from their spring break the week after next. These two subcommittee hearings may be of specific interest:

April 26^th – Readiness Subcommittee;

April 26^th – Emerging Threats and Capabilities Subcommittee;

Budget

There are still a number of hearings being held looking at the President’s proposed budget. This week there is only one that may be of specific interest here:

April 26^th, DHS, House Homeland Security;

HR 4 Rule

As I mentioned over the weekend, the House Rules Committee will be holding a hearing on Tuesday to formulate the rule for the consideration of HR 4, the FAA Reauthorization Act of 2018, later this week. Two hundred and thirty-one proposed amendments have been submitted to the Committee for possible consideration on the floor of the House; the vast majority will not make it. Fourteen of those amendments deal with unmanned aircraft systems and two deal with cybersecurity issues. A large number of the rest deal with airport noise issues, a perennial concern of congresscritters. The bill will probably make it to the floor on Thursday.

Cybersecurity

On Tuesday the Senate Homeland Security and Governmental Affairs Committee will hold a hearing on “Mitigating America’s Cybersecurity Risk”. The witness list includes:

• Jeanette Manfra, DHS;

• Gregory C. Wilshusen, GAO; and

• Eric Rosenbach; Harvard University

This hearing could go one of two ways; most likely a look at cybersecurity issues in the Federal government (always a problem), or it could look at the cybersecurity concerns in critical infrastructure that we have been hearing about in the mainstream news. In either case it will likely be a high-level policy type discussion rather than focusing in-depth on any actual security issues.

HR 4 Introduced – FAA Reauthorization

Earlier this month Rep. Schuster (R,PA) introduced HR 4, the FAA Reauthorization Act of 2018. The bill includes a number of provisions that address unmanned aircraft system (UAS) operations and aviation cybersecurity.

UAS Provisions

The bill addresses UAS issues in two separate sub-titles; Sub-Title B of Title 3 and Sub-Title C of Title 7. Between these two sub-titles there are 17 separate sections addressing a wide variety of UAS topics. Of those, the following may be of specific interest to readers of this blog:

§337. Evaluation of aircraft registration for small unmanned aircraft;

§338. Study on roles of governments relating to low-altitude operation of small unmanned aircraft;

§341. Cooperation related to certain counter-UAS technology.

Section 337 of the bill requires FAA to “develop and track metrics to assess compliance with and effectiveness of the registration of small unmanned aircraft systems” {§337(a)} required by the interim final rule published in December of 2015. It would also require the DOT Inspector General to report to Congress on both the metric development required and the overall “reliability, effectiveness, and efficiency of the Administration’s registration program for small unmanned aircraft” {§337(b)(2)}.

Section 338 of the bill requires the DOT Inspector General to begin a study of the “the regulation and oversight of the low-altitude operations of small unmanned aircraft and small unmanned aircraft systems” {§338(a)(1)} and the appropriate roles of Federal, State, local, and Tribal governments in regulating UAS operations below 400 ft above ground level (AGL). An obligatory report to Congress is required.

Section 341 of the bill would require DOT to consult with DOD about efforts to streamline the deployment of systems “in the national airspace system intended to mitigate threats posed by errant or hostile unmanned aircraft system operations”.

Cybersecurity Provisions

The cybersecurity sub-title includes six sections. Of these, the following three sections may be of specific interest to readers of this blog:

§732. Cabin communications, entertainment, and information technology systems cybersecurity vulnerabilities.

§733. Cybersecurity threat modeling.

§736. Cybersecurity research and development program.

Section 732 would require the FAA to “determine the research and development needs associated with cybersecurity vulnerabilities of cabin communications, entertainment, and information technology systems on civil passenger aircraft” {§732(a)}. Those R&D needs would include an assessment of:

• Technical risks and vulnerabilities;

• Potential impacts on the national airspace and public safety; and

• Identification of deficiencies in cabin-based cybersecurity.

Section 733 would require the FAA, in consultation with the National Institute of Standards and Technology, to “develop an internal FAA cybersecurity threat modeling program to detect cybersecurity vulnerabilities, track how those vulnerabilities might be exploited, and assess the magnitude of harm that could be caused by the exploitation of those vulnerabilities” {§733(a)(1)}.

Section 736 would require the FAA to “establish a research and development program to improve the cybersecurity of civil aircraft and the national airspace system” {§737(a)}. In support of that program the FAA would be required to establish a plan to implement that program. The plan would include objectives, proposed tasks, milestones, and a 5-year budgetary profile. The FAA would also be required to commission a National Academies study of that plan.

Moving Forward

This bill is scheduled to be considered by the House this week. The House Rules Committee will hold a hearing on Tuesday to prepare the rule for the consideration of the bill. There have been 231 proposed amendments to the bill submitted to the Committee for consideration. These amendments include a number that address either UAS or cybersecurity provisions.

I suspect that we will have a managed rule for this bill that will include a relatively small number of those amendments. I suspect that the bill will pass with at least some bipartisan support. This is one of those ‘must pass’ bills that Congress has to deal with every year. We have not yet seen a Senate version of the bill, but the Senate will take up their own version of the bill which typically means that a conference committee will have to be convened to work out the differences between the two versions.

Commentary

I am more than a little concerned that this bill addresses (§341) the deployment of weapon systems to mitigate the threat of UAS systems without addressing the legal issues associated with interfering with the operation of aircraft. While the bill does not specifically mention weapons the vague use of the phrase “systems in the national airspace system intended to mitigate threats” can only be considered weapons. Whether those weapons conduct physical attacks to destroy the UAS or electronic attacks to cause the UAS to crash (any landing outside of the control of the pilot/operator is a crash; controlled or otherwise) still mean that the systems employed are weapons.

See my discussion of HR 5366 to see the extent of the legal complications that are apparently being ignored in this section.

Bills Introduced – 04-13-18

On Friday, with just the House in session, there were 23 bills introduced. Of those, three may be of specific interest to readers of this blog:

HR 4 To reauthorize programs of the Federal Aviation Administration, and for other purposes. Rep. Ryan, Paul D. [R-WI-1]

HR 5515 To authorize appropriations for fiscal year 2019 for military activities of the Department of Defense and for military construction, to prescribe military personnel strengths for such fiscal year, and for other purposes. Rep. Thornberry, Mac [R-TX-13]

HR 5517 To improve assistance provided by the Hollings Manufacturing Extension Partnership to small manufacturers in the defense industrial supply chain on matters relating to cybersecurity, and for other purposes. Rep. Panetta, Jimmy [D-CA-20]

The first two are important authorization bills. The FAA bill has already been printed and includes a title on unmanned aircraft systems that will be looked at here. The NDAA will be watched for cybersecurity provisions. Note that it is odd for Speaker Ryan to introduce the FAA authorization bill and even more so for him to use one of his reserved bill numbers.

I will be looking at HR 5517 for control system security issues. The defense industrial base regulation is always a potential forward indicator of possible congressional action on cybersecurity issues.