HR 3787 Introduced – UAS Coordinator

Last month Rep. Perry (R,PA) introduced HR 3787, 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” {new §321(a)}. The bill is functionally identical to HR 6438 which was passed in the House in the 115^th Congress. A related bill, S 1867, was introduced in June in the Senate.

The only difference in this bill and last years House bill is the absence of some administrative house cleaning measures in §2(b) of the bill that were addressed in Homeland Security spending bill passed earlier this year.

Moving Forward

Perry is no longer a member of the House Homeland Security Committee, the committee to which this bill was assigned for consideration. This means that, unless he gets a cosponsor for the bill who is on the Committee, there is little chance that the bill will be considered.

The bill did get bipartisan support in the 115^th Congress and it almost certainly would in this session as well.

Commentary

As I mentioned last year, this bill does not provide for any exceptions to a number of federal statutes that would currently prohibit private sector organizations taking any actions to intercept, take down, or track the owner of a UAS. DOD has been provided substantial (almost sweeping) authority to take actions against UAS under 10 USC 130i, but similar authority provided to DHS and DOJ (6 USC 124n)was significantly constrained. And more importantly, no such authority has been extended to the private sector.

Interestingly, the Senate bill is closely tied to the authorizations provided in §124n and actually would terminate the authority for the position when §124n terminates on October 25^th, 2022. The House bill is not tied to the DHS counter-UAS authority and has no termination provisions.

I think that this bill could be improved by expanding the authorized activities of DHS under §124n to include the protection of facilities covered under the Chemical Facilities Anti-Terrorism Security (CFATS) program by inserting a new §2(b) into the bill {while re-designating the current (b) as (c)}

(b) Chemical Facility Anti-Terrorism Standards Program

(1) In general – 6 USC 124n(k)(3)(C)(i) is amended by adding (IV):

“(IV) protection of facilities covered under 6 CFR Part 27;

(2) The Secretary will publish regulations amending 6 CFR part 27 providing procedures for covered facilities that report quantities of release security issue chemicals of interest as defined in Appendix A to 6 CFR Part 27 to:

(A) track UAS approaching within ¼ mile of the reported facility boundaries;

(B) intercept communications between the controller and the UAS in accordance with §124n(b)(1)(A);

(C) warn the operator in accordance with §124n(b)(1)(B); and

(D) seize or exercise control of the UAS that is in the air space directly over the reported facility boundaries in accordance with §124n(b)(1)(D) if and only if the operator has been warned as in (C) above.

S 1867 Introduced – UAS Coordinator

Earlier this month Sen. Johnson (R,WI) introduced S 1867, the DHS Countering Unmanned Aircraft Systems Coordinator Act. The bill would require DHS to establish within the Office of Strategy, Policy, and Plans the position of Countering Unmanned Aircraft Systems (UAS) Coordinator. The provisions of the bill are similar to HR 6438 that was introduced, and subsequently passed in the House in the 115^th Congress.

Coordinator

The bill would add a new section 321 to the Homeland Security Act of 2002. It would establish the position of Coordinator who would be responsible for overseeing and coordinating with relevant Department offices and components, including the Office of Civil Rights and Civil Liberties and the Privacy Office, on the development of guidance and regulations to counter threats associated with unmanned aircraft systems as described in 6 USC 124n.

In addition to the promoting research and development in coordination with the Office of Science and Technology, the coordinator would be required to work with “with the relevant components and offices of the Department, including the Office of Intelligence and Analysis, to ensure the sharing of information, guidance, and intelligence relating to countering UAS threats, counter UAS threat assessments, and counter UAS technology” {new §321(a)(2)(C)}.

The Coordinator would also “serve as the principal Department official responsible for sharing to the private sector information regarding counter UAS technology, particularly information regarding instances in which counter UAS technology may impact lawful private sector services or systems” {new §321(c)}.

The position of Coordinator would terminate at the same time as the provisions of §124(n).

Moving Forward

Johnson is the Chair of the Senate Homeland Security and Governmental Affairs Committee so it is very likely that this bill would move forward in Committee. If the bill were to make it to the floor of the Senate, it would likely be considered under the Senate’s unanimous consent process.

If this bill passes in the Senate, it is close enough to the HR 6438 language that it would likely pass in the House with bipartisan support.

Commentary

This bill, like the provisions of §124(n), still fail to resolve the problems that critical infrastructure facilities have with protecting themselves from attack by UAS. The most important of those problems are the legal prohibitions against attacking aircraft in US airspace. Until that problem is adequately resolved, facilities are going to be extremely limited in actions that they can take.

Bills Introduced – 06-13-19

Yesterday with both the House and Senate preparing to leave for the weekend (and the House only about half-way through consideration of HR 2740, the first FY 2020 spending minibus) there were 104 bills introduced. Six of those bills are likely to see future consideration in this blog:

HR 3256 To amend the Homeland Security Act of 2002 to reauthorize and improve the Chemical Facility Anti-Terrorism Standards Program, and for other purposes. Rep. Richmond, Cedric L. [D-LA-2]

HR 3261 To direct the Secretary of Transportation to establish a Smart Technology Traffic Signals Grant Program, and for other purposes. Rep. Cardenas, Tony [D-CA-29] 

HR 3266 To direct the Secretary of Defense to carry out a program to enhance the preparation of students in the Junior Reserve Officers' Training Corps for careers in computer science and cybersecurity, and for other purposes. Rep. Fletcher, Lizzie [D-TX-7]

HR 3270 To amend title 18, United States Code, to provide a defense to prosecution for fraud and related activity in connection with computers for persons defending against unauthorized intrusions into their computers, and for other purposes. Rep. Graves, Tom [R-GA-14]

HR 3290 To provide for mandamus actions under chapter 601 of title 49 of the United States Code. Rep. Speier, Jackie [D-CA-14]

S 1867 A bill to amend the Homeland Security Act of 2002 to establish in the Department of Homeland Security an Unmanned Aircraft Systems Coordinator, and for other purposes.

I will be watching HR 3261 for cybersecurity requirements and HR 3266 for control system security language. HR 3270 is the ‘hack back’ bill that was in the news yesterday. Chapter 601 is the Pipeline Safety portion of the USC.

S 1867 Becomes HR 1540

I missed this last Friday when I was looking at the Congressional Record for Thursday. After passing S 1867, the Senate also passed HR 1540, the House passed version of the DOD authorization bill. The passage of HR 1540 was one of those political games that Congress frequently plays; the Senate substituted the language of the just passed S 1867 for the language of the House version of the bill. BTW: no vote, no debate, just maneuvering.

Typically the Senate does this before the debate on a bill starts, but it achieves the same end. HR 1540 will go to Conference unless the House agrees to accept the Senate version of the bill. He House will take this up on the floor tomorrow. According to the Majority Leader's web site it is listed as “Motion to go to Conference on H.R. 1540” so it certainly looks like this will go to Conference. The floor action in the House will go quick tomorrow.

The new Senate language for HR 1540 was published in yesterday’s Congressional Record. It is also available on the GPO site. We’ll have to wait to see what comes out of the Conference Committee.

S 1867 Introduced – DOD Authorization Bill

The Senate has apparently given up work on HR 2354 due to internal political squabbles and has now started work on the DOD authorization bill for FY 2012. Not content with the three bills that had been introduced in the Senate earlier this year covering the same subject (S 0981, S 1253, and S 1254) Sen. Levin (D,MI) this week introduced S 1867, the National Defense Authorization Act for Fiscal Year 2012.

BTW: Levin, the Chair of the Senate Armed Forces Committee, introduced all three previous versions of this bill.

Cybersecurity Provisions

There are four cyber security provisions in this new bill, but they are substantially the same as those found in S 1253. I discussed them in some detail in my blog on that bill’s introduction. The section titles are:

• Section 913. Review to identify interference with national security global positioning system receivers by commercial communications services [LightSquared provision];

• Section 931. Strategy to acquire capabilities to detect previously unknown cyber-attacks;

• Section 932. Program in support of department of defense policy on sustaining and expanding information sharing [WikiLeaks prevention]; and

• Section 1076. Study on the recruitment, retention, and development of cyberspace experts.

I haven’t had a chance to peruse the Committee Report on this new bill yet, but I would bet it contains substantially the same cyber security discussions found in the report from the S 1253. I did a write-up of that earlier report that might be interesting to re-read here.

Amendments to S 1867

As one would expect for an authorization bill for an agency as large and controversial as DOD, there are a lot of amendments that have been introduced for this bill. I’ll probably be doing a couple of blog posts on the amendments that would affect the chemical and cyber security communities.

One, however, did catch my attention as I was scanning the list; Amendment S 1229, introduced Friday by Sen. McCain (R,AZ). It would add §1088, “Cybersecurity collaboration between the Department of Defense and the Department of Homeland Security”, which would define the cybersecurity relationship between DOD and DHS.

There are not a lot of details in this amendment, but it would require the two departments to exchange officials to aid in the coordination of their efforts.