Review - HR 4432 Introduced – FY 2022 DOD Spending

Last month, Rep McCollum (D,MN) introduced HR 4432, the Department of Defense Appropriations Act, 2022. This bill was marked up by the House Appropriations Committee prior to introduction, as is normal for spending bills. The Committee Report on the bill is available. There is one cyber operations mention of interest in the bill. There are also three cyber-workforce mentions and two cyber-earmarks in the Report.

While there is a chance that the House will take-up HR 4432 before September 30^th, it is highly unlikely to make it through the Senate. Thus, we are most likely to see yet another Continuing Resolution with some sort of omnibus spending bill(s) closer to the end of the calendar year. Typically, the Committee Reports for each of the spending bills in each chamber are made to apply to the final bill. This means that the three ‘Cyber Work Force’ comments will remain in effect. The earmarks I am not so sure about.

 

For further details about the mentions briefly described above, see my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/hr-4432-introduced - subscription required.

Bills Introduced – 7-15-21

Yesterday with just the Senate in session, there were 33 bills introduced. Two of those bills will receive additional coverage in this blog:

HR 4431 Making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2022, and for other purposes. Rep. Roybal-Allard, Lucille [D-CA-40]

HR 4432 Making appropriations for the Department of Defense for the fiscal year ending September 30, 2022, and for other purposes. Rep. McCollum, Betty [D-MN-4]

Both of these bills are being reported by the House Appropriations Committee. The text of the bills is already available, but we are waiting on the actual publication of the Committee Report for each bill. While the bills do provide spending totals and limited guidance (at this point, the floor amendment process will change that) most of the meat of committee requirements will be found in the Committee Report for each bill.

That being the case, I will hold off on conducting my reviews until the Committee Reports are actually published by the GPO in the next day or two.

HR 4432 Passed in House – UAS Threat Assessment

Yesterday the House passed HR 4432, the Protecting Critical Infrastructure Against Drones and Emerging Threats Act by a voice vote. There was only about six minutes of ‘debate’ on the bill with no voices heard in opposition.

The language that disappeared between the Committee Hearing and the publication of the Report stayed gone. The reported language was the version that the House adopted.

If this bill is taken up in the Senate it will be considered under the Senate’s unanimous consent process. The major draw back to that process is that a single Senator could block consideration of the bill for reasons totally unrelated to the provisions being considered.

Committee Hearings – Week of 2-9-20

The President’s budget comes to Capital Hill this week, but apparently chemical safety and security (and cybersecurity) will have to wait until next week. There will be four other hearing of interest; two markups, autonomous vehicles and cybersecurity.

Markup Hearings

The House Homeland Security Committee will hold a markup hearing on Wednesday. Among the ten bills that are scheduled for consideration are:

• HR 5780, the Safe Communities Act of 2020;

• HR ____, the State and Local Cybersecurity Improvement Act

The official version of HR 5780 has not yet been published and the second has not yet been introduced (okay it probably was today, but we will not see it until tomorrow).

The House Science, Space, and Technology Committee will hold a markup hearing on Wednesday. Among the five bills that are scheduled for consideration are:

• HR 5428, Grid Modernization Research and Development Act of 2019; and

• HR 5760, Grid Security Research and Development Act

HR 5760 has not yet been officially published.

Autonomous Vehicles

On Tuesday the Consumer Protection and Commerce Subcommittee of the House Energy and Commerce Committee will hold a hearing on “Autonomous Vehicles: Promises and Challenges of Evolving Automotive Technologies”. The witness list includes:

• John Bozzella, Alliance for Automotive Innovation

• Cathy Chase, Advocates for Highway and Auto Safety

• Daniel Hinkle, American Association for Justice

• Mark Riccobono, National Federation of the Blind

• Gary Shapiro, Consumer Technology Association

• Jeffrey Tumlin, San Francisco Municipal Transportation Agency

Cybersecurity

On Tuesday the Senate Homeland Security and Governmental Affairs Committee will hold a hearing on “What States, Locals and the Business Community Should Know and Do: A Roadmap for Effective Cybersecurity”. The witness list includes:

• Christopher C. Krebs, CISA;

• Amanda Crawford, Department of Information Resources, Texas;

• Christopher DeRusha, Cybersecurity and Infrastructure Protection Office, Michigan

On the Floor

The House is scheduled to take up HR 4432, the Protecting Critical Infrastructure Against Drones and Emerging Threats Act tonight or perhaps tomorrow under the suspension of the rules process. There will be limited debate, no floor amendments and the bill will require a supermajority to pass. This bill will almost certainly receive strong bipartisan support.

HR 4432 Reported in House – UAS Threat Assessment

Last month the House Homeland Security Committee published their report on HR 4432, the Protecting Critical Infrastructure Against Drones and Emerging Threats Act along with the amended version of that bill.

An interesting thing happened on the way to the Government Printing Office. Section 2(c) of the original bill seems to have disappeared. Readers will remember that I complained about that section of the bill that would have exempted DHS from the Information Collection Request requirements of the Paperwork Reduction Act. Now changes made to a bill after it has been approved in Committee are not too unusual, but there is language in the Report’s ‘Section-by-Section Analysis of the Legislation’ (pg 6, last paragraph). It will be interesting to see if the language is in the bill when it is passed in the House.

Yes, the bill will almost certainly be passed in the House after it is taken up under the suspension of the rules process and it will pass with a substantial bipartisan vote.

HR 4432 Introduced – Drone Threat Assessment

Last month Rep. Richmond, (D,LA) introduced HR 4432, the Protecting Critical Infrastructure Against Drones and Emerging Threats Act. The bill would require DHS to “develop and disseminate a terrorism threat assessment regarding unmanned aircraft systems and other emerging terrorism threats associated with such new technologies” {§2(a)(1)}.

Threat Assessment

Section 2 of the bill would require the Department’s Under Secretary for Intelligence and Analysis to work with other agencies within the government and with the private sector to collect the information required to prepare the threat assessment. Additionally, the Department would be required to stand up a “secure communications and information technology infrastructure” {2(a)(3)} (presumably on-line) to collect information from the private sector on “emerging terrorism threats, such as the terrorism threat posed by unmanned aircraft systems”.

The Department would be required to report to Congress within one year on their threat assessment.

Markup

This bill was marked up by the House Homeland Security Committee last month. There was one amendment offered and adopted. The bill was ordered to be reported favorably by a unanimous consent.

The amendment (2^nd page of document) added a requirement that the report to congress should include a “classified plan to mitigate such threat as appropriate”.

Moving Forward

Since the markup hearing was held before a copy of the bill was publicly available from either the GPO or the Committee website, it seems clear that there is a significant intent to move this bill forward. The unanimous consent adoption of the bill in Committee makes it clear that the bill will move to the full House under the House suspension of the rules process; limited debate, no floor amendments and a supermajority required for passage. There is a chance that this bill will come up for consideration before the end of the month.

Commentary

With the reported use of drones in the oilfield attack in Saudi Arabia, the threat from unmanned aircraft systems became more real to many Americans. While those were almost certainly military drones (similar if less sophisticated than the ones the CIA has been using in its War on Terror) and not the ‘quad-copters’ that most people think of as UAS, it is quickly becoming clear that UAS of all sorts may be, at some level, a threat to the homeland. This formal assessment of that threat is clearly long-overdue.

Having said that, this bill has some significant problems. First off, there is no funding for the assessment (not big problem as the people collecting and analyzing the information are already in place) or for the ‘secure communications and information technology infrastructure’ that will support the ongoing collection effort. The programming and support for that infrastructure will cost money and it will have to come from someplace. Without authorizing funding for this effort, congress will ensure that the money comes from other intelligence collection/analysis efforts within DHS. Something is going to lose, and it will not come from the Wall.

Second, the added classified report bothers me. Sure, some details of an anti-drone effort will have to be classified. There does need to be, however, a significant public discussion about how such a program would operate, how the legal hurdles would be addressed, and how the private sector would be involved in the process. That cannot happen if the DHS plan is classified. The plan should have been unclassified with a classified annex for specific operational details.

Next, §2(c) of the bill exempts DHS from following the Paperwork Reduction Act (44 USC 3501 et al). This means that DHS will not have to complete an information collection request (ICR) with OMB’s Office of Information and Regulatory Affairs for the information collected via and analyzed by the bills “information technology infrastructure”. While the information being collected by the system may be sensitive (though the bill does not so designate the information or provide for any protection mechanism for the information) the estimates of the number of the responding agencies, the suspected number of responses and the response burden are not sensitive. This exemption should not be in the bill.

Finally, it looks like someone may be trying to slip a ringer in. There are too many places in the bill where it refers to ‘emerging terrorism threats, such as the terrorism threat posed by unmanned aircraft systems’. I understand, that there are constantly emerging threat vectors and DHS needs identify the emerging threats and keep congress advised about their existence and DHS efforts to counter them. That general requirement should be part and parcel of the intelligence and analysis mandate. This bill is purportedly a congressional direction to look at a specific threat, unmanned aerial systems. Lumping in undefined ‘emerging terrorism threats’ gives DHS too much discretion about the information it collects. This is especially true given the ICR exception provided by this bill.

But who can object to DHS conducting a terrorism threat assessment of drones? That is the ultimate motherhood and apple pie objective. Maybe I should not be questioning it.

Committee Hearings – Week of 09-22-19

This week with both the House and Senate in session (but preparing for a 2-week break) there is a full slate of politically oriented hearings slated in the House and the Senate Appropriations Committee will try to address some additional spending bills. Two markup hearings this week (one on each side of the Capital) will look at bills covered in this blog.

Senate Spending Bills – Markups

The Senate Appropriations Committee will try to get four spending bills reported to the Senate this week:

• Interior, Environment, and Related Agencies (IER) – Subcommittee – Tuesday;

• Commerce, Justice, Science, and Related Agencies (CJS) – Subcommittee – Tuesday;

• DHS – Subcommittee – Tuesday;

• IER, CJS, DHS, and Legislative Branch – Full Committee - Thursday

I suspect that the IER and CJS bills may be successfully reported, but the DHS bill (because of ‘the Wall’ and immigration) is at the heart of the controversy holding up Senate consideration of spending bills. I really do not expect the Committee to report a DHS spending bill.

Markup Hearings

On Wednesday the House Homeland Security Committee will hold a markup hearing on three bills:

• HR 1975, the Cybersecurity Advisory Committee Authorization Act of 2019

• HR 4432, the Protecting Critical Infrastructure Against Drones and Emerging Threats Act

• HR ____, the National Commission on Online Platforms and Homeland Security Act

HR 4432 has not yet been published, either by the GPO or the Committee and the final bill has not yet been introduced (expected today?).

With only three bills on the agenda, we may see some amendments offered and very briefly discussed, but none have yet been published on the hearing page.

On Wednesday the Senate Energy and Natural Resources Committee will hold a markup hearing covering 21 bills.

• S 2095, the Enhancing Grid Security through Public-Private Partnerships Act;

• S 2333, the Energy Cybersecurity Act of 2019; and

• HR 1420, the Energy Efficient Government Technology Act

On the Floor

As I mentioned yesterday, the House is scheduled to take up HR 3710, the Cybersecurity Vulnerability Remediation Act on Wednesday. It will likely pass with significant bipartisan support, but I will be surprised if it is taken up in the Senate this year.

There is a good chance that the Senate could take up HR 4378, the continuing resolution that was passed last week. That bill would extend the current funding rate for the federal government through November 21^st. It would be taken up under the unanimous consent process and I suspect that Sen. McConnel (R,KY) would want to try to do that as soon as possible. That would leave room for the House to come up with a ‘cleaner’ CR if there is an objection to the bill in the Senate. The Senator to watch will be Sen. Paul (R,KY).

Bills Introduced – 09-20-19

Yesterday with just the House in session, there were 34 bills introduced. Of those, one may receive additional attention in this blog:

HR 4432 To require the Department of Homeland Security to prepare a terrorism threat assessment relating to unmanned aircraft systems, and for other purposes. Rep. Richmond, Cedric L. [D-LA-2]

HR 4432 Introduced – Commercial Drones

Earlier this month Rep. Blumenauer (D,OR) introduced HR 4432, the Commercial UAS Modernization Act. The bill would provide interim rules for the use of commercial unmanned aircraft while the FAA is completing their rule making initiated in February of last year. It also provides special treatment for non-commercial drones weighing less than 4.4 pounds.

The bill would add three new sections to the FAA Modernization and Reform Act of 2012 (PL 112–95):

Sec 337. Operation of small unmanned aircraft for commercial purposes;

Sec 338. Micro UAS operations; and

Sec 339. Deputy associate administrator for unmanned aircraft.

Commercial Drones

The new §337 would put interim rules in place while the FAA was completing its current rulemaking process. It would establish the following general requirements for commercial operators {§337(b)}:

• Liability insurance;

• Aircraft registration;

• Operator aeronautical knowledge test;

• Aircraft certification;

It would also establish accident reporting requirements as well as the following operating limitations {§337(c)}:

• May only be operated under visual line of sight rules;

• May not be operated higher than 500 feet above ground level;

• May not be operated unless the operator has prior authorization from the air traffic control facility having jurisdiction over that airspace;

• May only be operated in daylight conditions;

Shall yield right of way to all other users of the National Airspace System;

• May not be operated by any individual with any physical or mental condition that the individual knows, or has reason to know, would interfere with the safe operation of the aircraft; and

• May only be operated after a preflight inspection.

Micro UAS

The new §338 would establish a new class of aircraft called Micro UAS that would have a gross upper weight limit of 4.4 lbs. These UAS would be exempt from operator aeronautical testing and aircraft certification requirements as long as the Micro UAS was operated:

• Less than 400 feet above ground level;

• At an airspeed of not greater than 40 knots;

• Within the visual line of sight of the operator;

• During daylight; and

• At least 5 statute miles from the geographic center of an airport as denoted on a current aeronautical chart published by the FAA

Moving Forward

Blumenauer is on neither of the Committees that have been designated to consider the bill so it is unlikely that he would have the influence necessary to gain committee consideration of the bill. If the bill were to be considered, I do not see anything that would raise significant opposition to the bill.

In his speech on the House floor introducing the bill, Blumenauer made it clear that there is significant constituent interest in his district for moving the regulation of UAS forward and I am relatively sure that there is similar interest in other areas of the country. If he really wants to get this bill to move forward he is going to have to approach members (from both sides of the aisle) of the Transportation and Infrastructure Committee and the Science, Space and Technology Committee to become co-sponsors of the bill.

Commentary

The establishment of a Micro UAS category with a weight limit of 4.4 lbs without addressing the issue of commercial vs hobby operation would make this confusing with the recent FAA changes to the registration of small UAVs. That interim final rule establishes the minimum weight of a small UAV at 250 g (1/4 lb) and a maximum weight of 150 lbs. It also provides for different registration requirements for commercial (air craft registered) and hobby (pilot registered) operations.

BTW: Blumenauer had a great line at the end his floor speech that I completely agree with: “The Commercial UAS Modernization Act provides a much-needed update to federal rules, making it clear that flying smartphones should not be regulated like Predator drones.”

Bills Introduced – 02-02-16

There were 34 bills introduced in the House and Senate yesterday. One of those may be of specific interest to readers of this blog:

HR 4432 To establish an interim rule for the operation of small unmanned aircraft for commercial purposes, and for other purposes. Rep. Blumenauer, Earl [D-OR-3]

This bill will probably drop off my radar pretty quickly, but I will be watching it to see if it contains any cybersecurity provisions. We know that government drones have been hacked, we might want to try to stop commercial drones from suffering the same fate.

There were two Senate resolutions introduced yesterday that deserve consideration in the January 2016 Inept Timing Award:

S Res 353 A resolution raising awareness and encouraging the prevention of stalking by designating January 2016, as "National Stalking Awareness Month". Sen. Klobuchar, Amy [D-MN]

S Res 356 A resolution recognizing January 2016 as National Mentoring Month. Sen. Isakson, Johnny [R-GA]

This is more common than you would expect.