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S. 2502: American Security Drone Act of 2020


The text of the bill below is as of Sep 15, 2020 (Reported by Senate Committee).

Summary of this bill

Should America be purchasing drones from places like China and Iran? And if America stops, would they be able to sufficiently replace them with drones manufactured elsewhere?

Context

At least 14 federal agencies have purchased drones, in some cases hundreds or more. This includes the Department of Homeland Security and the Federal Emergency Management Agency (FEMA).

The world’s largest producer of drones is DJI, a company based in Shenzhen, China. Many fear that the Chinese government may be using these products to spy or steal data, as the Chinese smartphone and telecommunications company Huawei has been repeatedly accused of.

What the legislation does

The American Security Drone Act would ...


II

Calendar No. 547

116th CONGRESS

2d Session

S. 2502

[Report No. 116–268]

IN THE SENATE OF THE UNITED STATES

September 18, 2019

(for himself, Mr. Cotton, Mr. Hawley, Mr. Rubio, Mr. Murphy, Mr. Blumenthal, and Mrs. Blackburn) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs

September 15, 2020

Reported by , with an amendment

Strike out all after the enacting clause and insert the part printed in italic

A BILL

To ban the Federal procurement of certain drones and other unmanned aircraft systems, and for other purposes.

1.

Short title

This Act may be cited as the American Security Drone Act of 2019.

2.

Definitions

In this Act:

(1)

Covered foreign entity

the term covered foreign entity means—

(A)

a covered entity (as determined by the Secretary of Commerce);

(B)

any entity that is subject to extrajudicial direction from a foreign government, as determined by the Director of National Intelligence;

(C)

any entity the Secretary of Homeland Security, in coordination with the Director of National Intelligence, the Secretary of Defense, and the Secretary of State, determines poses a national security risk;

(D)

any entity subject to influence or control by the Government of the People Republic of China or the Communist Party of the People’s Republic of China, as determined by the Secretary of Homeland Security; and

(E)

any subsidiary or affiliate of an entity described in subparagraphs (A) through (D).

(2)

Covered unmanned aircraft

The term covered unmanned aircraft means an unmanned aircraft system and any related services and equipment.

3.

Ban on procurement of foreign off-the-shelf drones and unmanned aircraft systems

(a)

In general

Except as provided under subsections (b) and (c), the head of an executive agency may not procure any commercial off-the-shelf drone or covered unmanned aircraft system manufactured or assembled by a covered foreign entity, including any Original Equipment Manufacturer flight controllers, radios, data transmission devices, cameras, or gimbals manufactured in a covered foreign country or by an entity domiciled in a covered foreign country.

(b)

Exemption

The Secretary of Homeland Security and the Secretary of Defense are exempt from the restriction under subsection (a) if the operation or procurement—

(1)

is for the purposes of training, testing, or analysis for—

(A)

Counter-UAS surrogate intelligence;

(B)

electronic warfare; or

(C)

information warfare operations; and

(2)

is required in the national interest of the United States.

(c)

Waiver

The head of an executive agency may waive the prohibition under subsection (a) on a case-by-case basis with the approval of the Secretary of Homeland Security or the Secretary of Defense and notification to Congress.

4.

Prohibition on operation of foreign commercial off-the-shelf drones and small unmanned aircraft systems

(a)

Prohibition

(1)

In general

Beginning not later than 180 days after the date of the enactment of this Act, no Federal department or agency may operate a commercial off-the-shelf drone or covered unmanned aircraft system manufactured or assembled by a covered foreign entity.

(2)

Phase-in period for existing contracts

The prohibition under paragraph (1) shall not apply, during the 1-year period beginning on the date of the enactment of this Act, to commercial off-the-shelf drones and covered unmanned aircraft systems procured through a contract entered into before the date of the enactment of this Act.

(b)

Exemption

The Secretary of Homeland Security and the Secretary of Defense are exempt from the restriction under subsection (a) if the operation or procurement—

(1)

is for the purposes of training, testing, or analysis for—

(A)

Counter-UAS surrogate intelligence;

(B)

electronic warfare; or

(C)

information warfare operations; and

(2)

is required in the national interest of the United States.

(c)

Waiver

The head of an executive agency may waive the prohibition under subsection (a) on a case-by-case basis with the approval of the Secretary of Homeland Security or the Secretary of Defense and notification to Congress.

(d)

Regulations

Not later than 180 days after the date of the enactment of this Act, the Secretary of Homeland Security shall prescribe regulations to implement this section.

5.

Prohibition on use of Federal funds for purchases and operation of commercial off-the-shelf drones and unmanned aircraft systems from China

No Federal funds awarded through a contract, grant, or cooperative agreement or otherwise made available may be used to purchase a commercial off-the-shelf drone or covered unmanned aircraft system, or a system to counter unmanned aircraft systems, that is manufactured or assembled by a covered foreign entity or in connection with the operation of such a drone or system.

6.

Comptroller General report

Not later than 90 days after the date of the enactment of this Act, the Comptroller General of the United States shall submit to Congress a report on the amount of commercial off-the-shelf drones and covered unmanned aircraft systems procured by Federal departments and agencies from covered foreign entities.

1.

Short title

This Act may be cited as the American Security Drone Act of 2020.

2.

Definitions

In this Act:

(1)

Covered foreign entity

The term covered foreign entity means—

(A)

a covered entity designated by the Secretary of Commerce;

(B)

an entity included on the Consolidated Screening List;

(C)

any entity that is subject to extrajudicial direction from a foreign government, as determined by the Secretary of Homeland Security;

(D)

any entity the Secretary of Homeland Security, in coordination with the Director of National Intelligence and the Secretary of Defense, determines poses a national security risk;

(E)

any entity domiciled in the People's Republic of China or subject to influence or control by the Government of the People Republic of China or the Communist Party of the People’s Republic of China, as determined by the Secretary of Homeland Security; or

(F)

any subsidiary or affiliate of an entity described in subparagraphs (A) through (D).

(2)

Covered unmanned aircraft system

The term covered unmanned aircraft system has the meaning given the term unmanned aircraft system in section 44801 of title 49, United States Code.

3.

Prohibition on procurement of covered unmanned aircraft systems from covered foreign entities

(a)

In general

Except as provided under subsections (b) and (c), the head of an executive agency may not procure any covered unmanned aircraft system that are manufactured or assembled by a covered foreign entity, which includes associated elements (consisting of communication links and the components that control the unmanned aircraft) that are required for the operator to operate safely and efficiently in the national airspace system.

(b)

Exemption

The Secretary of Homeland Security, the Secretary of Defense, and the Attorney General are exempt from the restriction under subsection (a) if the operation or procurement—

(1)

is for the sole purposes of research, evaluation, training, testing, or analysis for—

(A)

electronic warfare;

(B)

information warfare operations;

(C)

development of UAS or counter-UAS technology;

(D)

counterterrorism or counterintelligence activities; or

(E)

Federal criminal investigations, including forensic examinations; and

(2)

is required in the national interest of the United States.

(c)

Waiver

The head of an executive agency may waive the prohibition under subsection (a) on a case-by-case basis with the approval of the Secretary of Homeland Security or the Secretary of Defense and notification to Congress.

4.

Prohibition on operation of covered unmanned aircraft systems from covered foreign entities

(a)

Prohibition

(1)

In general

Beginning on the date that is 2 years after the date of the enactment of this Act, no Federal department or agency may operate a covered unmanned aircraft system manufactured or assembled by a covered foreign entity.

(2)

Applicability to contracted services

The prohibition under paragraph (1) applies to any covered unmanned aircraft systems that are being used by any executive agency through the method of contracting for the services of covered unmanned aircraft systems.

(b)

Exemption

The Secretary of Homeland Security, the Secretary of Defense, and the Attorney General are exempt from the restriction under subsection (a) if the operation or procurement—

(1)

is for the sole purposes of research, evaluation, training, testing, or analysis for—

(A)

electronic warfare;

(B)

information warfare operations;

(C)

development of UAS or counter-UAS technology;

(D)

counterterrorism or counterintelligence activities; or

(E)

Federal criminal investigations, including forensic examinations; and

(2)

is required in the national interest of the United States.

(c)

Waiver

The head of an executive agency may waive the prohibition under subsection (a) on a case-by-case basis with the approval of the Secretary of Homeland Security or the Secretary of Defense and notification to Congress.

(d)

Regulations and guidance

Not later than 180 days after the date of the enactment of this Act, the Secretary of Homeland Security shall prescribe regulations or guidance to implement this section.

5.

Prohibition on use of Federal funds for purchases and operation of covered unmanned aircraft systems from covered foreign entities

(a)

In general

Beginning on the date that is 2 years after the date of the enactment of this Act, except as provided in subsection (b), no Federal funds awarded through a contract, grant, or cooperative agreement, or otherwise made available may be used—

(1)

to purchase a covered unmanned aircraft system, or a system to counter unmanned aircraft systems, that is manufactured or assembled by a covered foreign entity; or

(2)

in connection with the operation of such a drone or unmanned aircraft system.

(b)

Exemption

A Federal department or agency is exempt from the restriction under subsection (a) if—

(1)

the contract, grant or cooperative agreement was awarded prior to the date of the enactment of the bill; or

(2)

the operation or procurement is for the sole purposes of research, evaluation, training, testing, or analysis, as determined by the Secretary of Homeland Security, the Secretary of Defense, or the Attorney General, for—

(A)

electronic warfare;

(B)

information warfare operations;

(C)

development of UAS or counter-UAS technology;

(D)

counterterrorism or counterintelligence activities; or

(E)

Federal criminal investigations, including forensic examinations; and

(3)

is required in the national interest of the United States.

(c)

Regulations

Not later than 180 days after the date of the enactment of this Act, the Federal Acquisition Regulatory Council shall prescribe regulations or guidance, as necessary, to implement the requirements of this section pertaining to Federal contracts.

6.

Prohibition on use of Government-issued Purchase Cards to purchase covered unmanned aircraft systems from covered foreign entities

Effective immediately, Government-issued Purchase Cards may not be used to procure any covered unmanned aircraft system from a covered foreign entity.

7.

Management of existing inventories of covered unmanned aircraft systems from covered foreign entities

(a)

In general

Effective immediately, all executive agencies must account for existing inventories of covered unmanned aircraft systems manufactured or assembled by a covered foreign entity in their personal property accounting systems, regardless of the original procurement cost, or the purpose of procurement due to the special monitoring and accounting measures necessary to track the items' capabilities.

(b)

Classified tracking

Due to the sensitive nature of missions and operations conducted by the United States Government, inventory data related to covered unmanned aircraft systems manufactured or assembled by a covered foreign entity may be tracked at a classified level.

(c)

Exceptions

The Department of Defense and Department of Homeland Security may exclude from the full inventory process, covered unmanned aircraft systems that are deemed expendable due to mission risk such as recovery issues or that are one-time-use covered unmanned aircraft due to requirements and low cost.

8.

Comptroller General report

Not later than 275 days after the date of the enactment of this Act, the Comptroller General of the United States shall submit to Congress a report on the amount of commercial off-the-shelf drones and covered unmanned aircraft systems procured by Federal departments and agencies from covered foreign entities.

9.

Government-wide policy for procurement of unmanned aircraft systems

(a)

In general

Not later than 180 days after the date of the enactment of this Act, the Director of the Office of Management and Budget, in coordination with the Department of Homeland Security, Department of Transportation, the Department of Justice, and other Departments as determined by the Director of the Office of Management and Budget, and in consultation with the National Institute of Standards and Technology, shall establish a government-wide policy for the procurement of UAS—

(1)

for non-Department of Defense and non-intelligence community operations; and

(2)

through grants and cooperative agreements entered into with non-Federal entities.

(b)

Information security

The policy developed under subsection (a) shall include the following specifications, which to the extent practicable, shall be based on industry standards and technical guidance from the National Institute of Standards and Technology, to address the risks associated with processing, storing and transmitting Federal information in a UAS:

(1)

Protections to ensure controlled access of UAS.

(2)

Protecting software, firmware, and hardware by ensuring changes to UAS are properly managed, including by ensuring UAS can be updated using a secure, controlled, and configurable mechanism.

(3)

Cryptographically securing sensitive collected, stored, and transmitted data, including proper handling of privacy data and other controlled unclassified information.

(4)

Appropriate safeguards necessary to protect sensitive information, including during and after use of UAS.

(5)

Appropriate data security to ensure that data is not transmitted to or stored in non-approved locations.

(6)

The ability to opt out of the uploading, downloading, or transmitting of data that is not required by law or regulation and an ability to choose with whom and where information is shared when it is required.

(c)

Requirement

The policy developed under subsection (a) shall reflect an appropriate risk-based approach to information security related to use of UAS.

(d)

Revision of acquisition regulations

Not later than 180 days after the date on which the policy required under subsection (a) is issued—

(1)

the Federal Acquisition Regulatory Council shall revise the Federal Acquisition Regulation, as necessary, to implement the policy; and

(2)

any Federal department or agency or other Federal entity not subject to, or not subject solely to, the Federal Acquisition Regulation shall revise applicable policy, guidance, or regulations, as necessary, to implement the policy.

(e)

Exemption

In developing the policy required under subsection (a), the Director of the Office of Management and Budget shall incorporate an exemption to the policy for the following reasons:

(1)

In the case of procurement for the purposes of training, testing or analysis for—

(A)

electronic warfare; or

(B)

information warfare operations.

(2)

In the case of researching UAS technology, including testing, evaluation, research, or development of technology to counter UAS.

(3)

In the case of a head of the procuring department or agency determining, in writing, that no product that complies with the information security requirements described in subsection (b) is capable of fulfilling mission critical performance requirements, and such determination—

(A)

may not be delegated below the level of the Deputy Secretary of the procuring department or agency;

(B)

shall specify—

(i)

the quantity of end items to which the waiver applies, the procurement value of which may not exceed $50,000 per waiver; and

(ii)

the time period over which the waiver applies, which shall not exceed 3 years;

(C)

shall be reported to the Office of Management and Budget following issuance of such a determination; and

(D)

not later than 30 days after the date on which the determination is made, shall be provided to the Committee on Homeland Security and Government Affairs of the Senate and the Committee on Oversight and Reform of the House of Representatives.

10.

Study

(a)

Independent study

Not later than 3 years after the date of the enactment of this Act, the Director of the Office of Management and Budget shall seek to enter into a contract with a federally funded research and development center under which the center will conduct a study of—

(1)

the current and future unmanned aircraft system global and domestic market;

(2)

the ability of the unmanned aircraft system domestic market to keep pace with technological advancements across the industry;

(3)

the ability of domestically made unmanned aircraft systems to meet the network security and data protection requirements of the national security enterprise;

(4)

the extent to which unmanned aircraft system component parts, such as the parts described in section 3(a), are made domestically; and

(5)

an assessment of the economic impact, including cost, of excluding the use of foreign-made UAS for use across the Federal Government.

(b)

Submission to OMB

Upon completion of the study in subsection (a), the federally funded research and development center shall submit the study to the Director of the Office of Management and Budget.

(c)

Submission to Congress

Not later than 30 days after the date on which the Director of the Office of Management and Budget receives the study under subsection (b), the Director shall submit the study to—

(1)

the Committee on Homeland Security and Governmental Affairs of the Senate; and

(2)

the Committee on Homeland Security and the Committee on Oversight and Government Reform of the House of Representatives.

11.

Sunset

Sections 3, 4, and 5 shall cease to have effect on the date that is 5 years after the date of the enactment of this Act.

September 15, 2020

Reported with an amendment