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S. 73 (117th): American Security Drone Act of 2021


The text of the bill below is as of Jan 27, 2021 (Introduced).


II

117th CONGRESS

1st Session

S. 73

IN THE SENATE OF THE UNITED STATES

January 27, 2021

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

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 2021.

2.

Definitions

In this Act:

(1)

Covered foreign entity

The term covered foreign entity means an entity included on a list developed and maintained by the Federal Acquisition Security Council. This list will include entities in the following categories:

(A)

An entity included on the Consolidated Screening List.

(B)

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

(C)

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.

(D)

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.

(E)

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) though (f), 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. The Federal Acquisition Security Council, in coordination with the Secretary of Transportation, shall develop and update a list of associated elements.

(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 or national security investigations, including forensic examinations; and

(2)

is required in the national interest of the United States.

(c)

Federal Aviation Administration Center of Excellence for Unmanned Aircraft Systems exemption

The Secretary of Transportation, in consultation with the Secretary of Homeland Security, is exempt from the restriction under subsection (a) if the operation or procurement is for the sole purposes of research, evaluation, training, testing, or analysis for the Federal Aviation Administration’s Alliance for System Safety of UAS through Research Excellence (ASSURE) Center of Excellence (COE) for Unmanned Aircraft Systems.

(d)

National Transportation Safety Board exemption

The National Transportation Safety Board (NTSB), in consultation with the Secretary of Homeland Security, is exempt from the restriction under subsection (a) if the operation or procurement is necessary for the sole purpose of conducting safety investigations.

(e)

National Oceanic Atmospheric Administration exemption

The Administrator of the National Oceanic Atmospheric Administration (NOAA), in consultation with the Secretary of Homeland Security, is exempt from the restriction under subsection (a) if the operation or procurement is necessary for the sole purpose of marine or atmospheric science or management.

(f)

Waiver

The head of an executive agency may waive the prohibition under subsection (a) on a case-by-case basis—

(1)

with the approval of the Secretary of Homeland Security or the Secretary of Defense; and

(2)

upon 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 or national security investigations, including forensic examinations; and

(2)

is required in the national interest of the United States.

(c)

Federal Aviation Administration Center of Excellence for Unmanned Aircraft Systems exemption

The Secretary of Transportation, in consultation with the Secretary of Homeland Security, is exempt from the restriction under subsection (a) if the operation or procurement is for the sole purposes of research, evaluation, training, testing, or analysis for the Federal Aviation Administration’s Alliance for System Safety of UAE through Research Excellence (ASSURE) Center of Excellence (COE) for Unmanned Aircraft Systems.

(d)

National Transportation Safety Board exemption

The National Transportation Safety Board (NTSB), in consultation with the Secretary of Homeland Security, is exempt from the restriction under subsection (a) if the operation or procurement is necessary for the sole purpose of conducting safety investigations.

(e)

National Oceanic Atmospheric Administration exemption

The Administrator of the National Oceanic Atmospheric Administration (NOAA), in consultation with the Secretary of Homeland Security, is exempt from the restriction under subsection (a) if the operation or procurement is necessary for the sole purpose of marine or atmospheric science or management.

(f)

Waiver

The head of an executive agency may waive the prohibition under subsection (a) on a case-by-case basis—

(1)

with the approval of the Secretary of Homeland Security or the Secretary of Defense; and

(2)

upon notification to Congress.

(g)

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 this Act; 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 or national security investigations, including forensic examinations; or

(F)

the safe integration of UAS in the national airspace (as determined in consultation with the Secretary of Transportation); and

(3)

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—

(1)

with the approval of the Secretary of Homeland Security or the Secretary of Defense; and

(2)

upon notification to Congress.

(d)

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 Governmental 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, 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 and the Select Committee on Intelligence of the Senate; and

(2)

the Committee on Homeland Security and the Committee on Oversight and Reform and the Permanent Select Committee on Intelligence 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.