[Senate Report 117-267]
[From the U.S. Government Publishing Office]
Calendar No. 666
117th Congress } { Report
SENATE
2d Session } { 117-267
_______________________________________________________________________
AMERICAN SECURITY DRONE ACT OF 2021
__________
R E P O R T
OF THE
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
TO ACCOMPANY
S. 73
TO BAN THE FEDERAL PROCUREMENT OF CERTAIN
DRONES AND OTHER UNMANNED AIRCRAFT SYSTEMS
AND FOR OTHER PURPOSES
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
December 19, 2022.--Ordered to be printed
__________
U.S. GOVERNMENT PUBLISHING OFFICE
39-010 WASHINGTON : 2023
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
GARY C. PETERS, Michigan, Chairman
THOMAS R. CARPER, Delaware ROB PORTMAN, Ohio
MAGGIE HASSAN, New Hampshire RON JOHNSON, Wisconsin
KYRSTEN SINEMA, Arizona RAND PAUL, Kentucky
JACKY ROSEN, Nevada JAMES LANKFORD, Oklahoma
ALEX PADILLA, California MITT ROMNEY, Utah
JON OSSOFF, Georgia RICK SCOTT, Florida
JOSH HAWLEY, Missouri
David M. Weinberg, Staff Director
Zachary I. Schram, Chief Counsel
Christopher J. Mulkins, Director of Homeland Security
Benjamin J. Schubert, Professional Staff Member
Pamela Thiessen, Minority Staff Director
Sam J. Mulopulos, Minority Deputy Staff Director
William H.W. McKenna, Minority Chief Counsel
Laura W. Kilbride, Chief Clerk
Calendar No. 666
117th Congress } { Report
SENATE
2d Session } { 117-267
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AMERICAN SECURITY DRONE ACT OF 2021
_______
December 19, 2022.--Ordered to be printed
_______
Mr. Peters, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany S. 73]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 73) to ban the
Federal procurement of certain drones and other unmanned
aircraft systems, and for other purposes, having considered the
same, reports favorably without amendment and recommends that
the bill do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History..............................................3
IV. Section-by-Section Analysis of the Bill, as Reported.............3
V. Evaluation of Regulatory Impact..................................6
VI. Changes in Existing Law Made by the Bill, as Reported............7
I. PURPOSE AND SUMMARY
S. 73, the American Security Drone Act of 2021, prohibits
federal agencies from procuring and operating unmanned aircraft
systems (UAS) and associated elements that are manufactured or
assembled by ``covered foreign entities'' that pose a national
security risk. The prohibition will begin two years after the
enactment of this bill. S. 73 also prohibits entities that
receive federal contracts, grants, and cooperative agreements
from operating or purchasing covered UAS. The bill contains
exemptions for the Departments of Homeland Security (DHS),
Justice (DOJ), and Defense (DOD), and other specific agencies
or entities for the purposes of training, testing, or analyzing
UAS, counter-UAS intelligence gathering, electronic warfare,
and information warfare operations.
Additionally, S. 73 requires the Director of the Office of
Management and Budget (OMB) to establish a government-wide
policy for the procurement of UAS to address the risks
associated with processing, transmitting, and storing sensitive
information collected from UAS. The bill also requires OMB to
contract with a federally funded research center to conduct a
study of the current and future UAS global and domestic
markets, technological advancements in the industry, and an
assessment of the economic impact of banning the use of
foreign-made UAS from the federal government. The prohibition
on the federal government's procurement of UAS by covered
foreign entities terminates five years after the bill's
enactment.\1\
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\1\On March 11, 2020, the Committee approved S. 2502, the American
Security Drone Act of 2020, with an amendment in the nature of a
substitute. That bill is substantially similar to S. 73. Accordingly,
this committee report is, in many respects, similar to the committee
report for S. 2502. See S. Rept. 116-268.
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II. BACKGROUND AND NEED FOR THE LEGISLATION
The market for UAS, popularly called ``drones,'' has grown
substantially in the last decade.\2\ American businesses,
governments, and citizens use UAS for a variety of purposes:
law enforcement, recreation, assessing property value and
damage for insurance purposes, and surveilling and fertilizing
crops.\3\
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\2\Drone market outlook in 2022: industry growth trends, market
stats, and forecast, Business Insider (Apr. 15, 2022) (https://
www.insiderintelligence.com/insights/drone-industry-analysis-market-
trends-growth-forecasts/).
\3\Id.
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Federal agencies use UAS for tasks like land-use research,
data collection, monitoring the border, and military
operations.\4\ DHS, for example, uses UAS for missions along
U.S. borders and over territorial waters.\5\ Information
security is imperative when data is collected, stored, and
transmitted by UAS for these sensitive missions. Reliance on
UAS, however, complicates the ability of the federal government
to protect the security of this data, in part because, as of
March 2020, more than 70 percent of UAS in the United States
were manufactured and assembled by foreign-owned entities.\6\
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\4\Cybersecurity and Infrastructure Security Agency, Unmanned
Aircraft Systems (UAS)--Critical Infrastructure (https://www.cisa.gov/
unmanned-aircraft-systems) (accessed Aug. 21, 2022).
\5\Congressional Research Service, Unmanned Aircraft Operations in
Domestic Airspace: U.S. Policy Perspectives and the Regulatory
Landscape (R44352) (Jan. 27, 2016).
\6\The Best Drone Manufacturers in 2021, Droneii (Nov. 1, 2021)
(https://droneii.com/the-best-drone-manufacturers-in-2021).
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Federal agencies have already begun to limit the
procurement of foreign-made UAS to protect national security.
In 2017, the U.S. Army issued guidance discontinuing the use of
UAS sold by DJI, a major foreign manufacturer of UAS, due to
security concerns.\7\ In May 2018, DOD banned all purchases of
commercial, off-the-shelf UAS while the Department researched
and developed a strategy to deal with the potential
cybersecurity risks of using such equipment.\8\ Congress later
included a provision in the National Defense Authorization Act
for Fiscal Year 2020 prohibiting DOD from using Chinese-made
UAS.\9\ In May 2019, DHS' Cybersecurity and Infrastructure
Security Agency (CISA) released a bulletin warning private
industry about the ``potential risk[s] to . . .
organization[al] information'' when acquiring and operating
Chinese-made UAS and of risks posed by ``certain Chinese-made
UAS connected devices capable of collecting and transferring
potentially revealing data about their operations and the
individuals and entities operating them, as China imposes
unusually stringent obligations on its citizens to support
national intelligence activities.''\10\ In January 2021, the
General Services Administration (GSA) largely restricted
federal agencies from procuring UAS in response to the
cybersecurity threat posed by foreign-made UAS.\11\
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\7\U.S. Army calls for units to discontinue use of DJI equipment,
sUAS News (Aug. 4, 2017) (https://www.suasnews.com/2017/08/us-army-
calls-units-discontinue-use-dji-equipment/).
\8\`Quads for Squads' grounded over cyber concerns, Marine Corps
Times (June 15, 2018) (https://www.marinecorpstimes.com/news/your-
marine-corps/2018/06/15/quads-for-squads-grounded-over-cyber-concerns/
).
\9\National Defense Authorization Act for Fiscal Year 2020, Pub. L.
No. 116-92, Sec. 848.
\10\DHS warns of `strong concerns' that Chinese-made drones are
stealing data, CNN (May 20, 2019) (https://www.cnn.com/2019/05/20/
politics/dhs-chinese-drone-warning/index.html).
\11\US Government to Stop Buying Chinese-made Drones, Voa News
(Feb. 16, 2021) (https://www.voanews.com/a/east-asia-pacific_voa-news-
china_us-government-stop-buying-chinese-made-drones/6202125.html).
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S. 73 further responds to this threat by prohibiting
federal agencies from procuring UAS manufactured or assembled
by designated foreign entities. This will prevent nation-state
adversaries and other hostile actors from utilizing these
emerging technologies to obtain sensitive national security
information. The prohibition on foreign-made UAS will also
allow American UAS manufacturers time to grow and evolve to
changing market needs. Increased domestic UAS manufacturing
will provide the U.S. with increased safety, security, and
economic benefits as the market will rely on a secure domestic
supply chain that addresses the needs of UAS users nationwide.
Exemptions on procurement prohibitions are included in the bill
for security and mission-critical reasons, including DHS and
DOJ exemptions for research and testing of existing UAS to
develop countermeasures against malicious UAS. Additionally,
the bill directs OMB to establish a government-wide policy for
technology and data management standards to ensure that all UAS
procured meet a minimum threshold of security regardless of
their country of origin.
III. LEGISLATIVE HISTORY
Senator Rick Scott (R-FL) introduced S. 73 on January 27,
2021, with Senators Rubio (R-FL), Cotton (R-AR), Blackburn (R-
TN), Blumenthal (D-CT), Murphy (D-CT), and Hawley (R-MO). The
bill was referred to the Senate Committee on Homeland Security
and Governmental Affairs. The Committee considered S. 73 at a
business meeting on May 12, 2021. The Committee ordered the
bill reported favorably without amendment by voice vote.
Senators present for the vote were: Peters, Hassan, Sinema,
Rosen, Padilla, Ossoff, Portman, Johnson, Paul, Lankford,
Romney, Scott, and Hawley. Senator Paul was recorded for the
record as voting ``No.''
IV. SECTION-BY-SECTION ANALYSIS OF THE BILL, AS REPORTED
Section 1. Short title
This section provides that the bill may be cited as the
``American Security Drone Act of 2021.''
Section 2. Definitions
This section defines covered foreign entity and covered
unmanned aircraft system.
Section 3. Prohibition on procurement of covered unmanned aircraft
systems from covered foreign entities
Subsection (a) establishes that the head of an executive
agency may not procure any covered unmanned aircraft system
that is manufactured or assembled by a covered foreign entity.
Subsection (b) exempts the Secretary of Homeland Security,
the Secretary of Defense, and the Attorney General from the
procurement prohibition in subsection (3)(a) for the purpose of
researching or testing UAS systems (including for electronic
warfare, information warfare, development of UAS or counter-UAS
technology, counterterrorism or counterintelligence, and
federal criminal or national security investigations) or if
procurement of foreign UAS is in the national interest of the
United States.
Subsection (c) exempts the Federal Aviation Administration
Center of Excellence for Unmanned Aircraft Systems from the
procurement prohibition in subsection (3)(a) for the purpose of
research and analysis for the Alliance for System Safety of UAS
through Research Excellence Center of Excellence for Unmanned
Aircraft Systems.
Subsection (d) exempts the National Transportation Safety
Board (NTSB) from the procurement prohibition in subsection
(3)(a) for the purpose of conducting safety investigations.
Subsection (e) exempts the National Oceanic and Atmospheric
Administration (NOAA) from the procurement prohibition in
subsection (3)(a) for the purpose of marine or atmospheric
science or management.
Subsection (f) authorizes the head of an executive agency
to waive the procurement prohibition in subsection (3)(a) on a
case-by-case basis with notification to Congress and the
approval of either the Secretary of Homeland Security or
Secretary of Defense.
Section 4. Prohibition on operation of covered unmanned aircraft
systems from covered foreign entities
Subsection (a) prohibits any federal department or agency
from operating a covered unmanned aircraft system manufactured
or assembled by a covered foreign entity. This section also
applies to contracted services. The prohibition takes effect
two years after enactment.
Subsection (b) exempts the Secretary of Homeland Security,
the Secretary of Defense, and the Attorney General from the
operation prohibition in subsection (4)(a) for the purpose of
researching or testing UAS systems (including for electronic
warfare, information warfare, development of UAS or counter-UAS
technology, counterterrorism or counterintelligence, and
federal criminal or national security investigations) or if
operation of foreign UAS is in the national interest of the
United States.
Subsection (c) exempts the Federal Aviation Administration
Center of Excellence for Unmanned Aircraft Systems from the
operation prohibition in subsection (4)(a) for the purpose of
research and analysis for the Alliance for System Safety of UAS
through Research Excellence Center of Excellence for Unmanned
Aircraft Systems.
Subsection (d) exempts the NTSB from the operation
prohibition in subsection (4)(a) for the purpose of conducting
safety investigations.
Subsection (e) exempts NOAA from the operation prohibition
in subsection (4)(a) for the purpose of marine or atmospheric
science or management.
Subsection (f) authorizes the head of an executive agency
to waive the operation prohibition in subsection (4)(a) on a
case-by-case basis with notification to Congress and the
approval of the either the Secretary of Homeland Security or
Secretary of Defense.
Subsection (g) requires the Secretary of Homeland Security
to prescribe regulations or guidance to implement this section
not later than 180 days after enactment.
Section 5. Prohibition on use of federal funds for purchases and
operation of covered unmanned aircraft systems from covered
foreign entities
Subsection (a) bars the use of federal funds awarded
through contracts, grants, or cooperative agreements to
purchase or operate covered unmanned aircraft systems
manufactured by covered foreign entities. This prohibition
takes effect two years after enactment.
Subsection (b) exempts funds from contracts, grants, or
cooperative agreements awarded prior to the date of enactment.
It also exempts the use of funds if the Secretary of Homeland
Security, the Secretary of Defense, and the Attorney General
determine that the use of funds for operation or procurement is
for the purpose of researching or testing UAS systems
(including for electronic warfare, information warfare,
development of UAS or counter-UAS technology, counterterrorism
or counterintelligence, and federal criminal or national
security investigations) or if such operation or procurement is
in the national interest of the United States.
Subsection (c) authorizes the head of an executive agency
to waive the prohibition under subsection (5)(a) on a case-by-
case basis with the approval of the Secretary of Homeland
Security or the Secretary of Defense, and upon notification of
said waiver to Congress.
Subsection (d) requires the Federal Acquisition Regulatory
Council to prescribe regulations or guidance to implement this
section not later than 180 days after the date of enactment.
Section 6. Prohibition on use of government-issued purchase cards to
purchase covered unmanned aircraft systems from covered foreign
entities
This section prohibits the use of government-issued
purchase cards to procure any covered unmanned aircraft system
from a covered foreign entity.
Section 7. Management of existing inventories of covered unmanned
aircraft systems from covered foreign entities
Subsection (a) requires all executive agencies to inventory
existing covered unmanned aircraft systems manufactured or
assembled by a covered foreign entity upon enactment.
Subsection (b) authorizes tracking under subsection (7)(a)
to be conducted at a classified level.
Subsection (c) authorizes DOD and DHS to exclude those UAS
deemed expendable from the full inventory process under
subsection (7)(a).
Section 8. Comptroller General report
This section requires the Comptroller General of the United
States to submit to Congress a report on the amount of
commercial off-the-shelf UAS and covered unmanned aircraft
systems procured by federal departments and agencies from
foreign covered entities not later than 275 days after the date
of enactment.
Section 9. Government-wide policy for procurement of unmanned aircraft
systems
Subsection (a) requires the Director of OMB to establish a
government-wide policy for the procurement of unmanned aircraft
systems for non-DOD and non-intelligence operations and those
unmanned aircraft systems procured through grants and
cooperative agreements entered into with non-federal entities
not later than 180 days after the date of enactment.
Subsection (b) requires the policy developed under
subsection (9)(a) to include certain specifications regarding
the risks associated with processing, storing, and transmitting
federal information in UAS.
Subsection (c) requires the policy developed under
subsection (9)(a) to reflect an appropriate, risk-based
approach to UAS information security.
Subsection (d) requires federal revision of acquisition
regulations not later than 180 days after the date on which the
policy under subsection (9)(a) is issued.
Subsection (e) instructs the Director of OMB to incorporate
an exemption to the policy under subsection (9)(a) for:
training or analysis for electronic warfare or information
warfare; researching UAS or counter-UAS technology, or by
department or agency determination subject to several
conditions.
Section 10. Study
Subsection (a) instructs the Director of OMB enter into a
contract with a federal funded research and development center
to conduct a study of global and domestic UAS markets and
manufacturing capacity and capabilities not later than 3 years
after the date of enactment.
Subsection (b) requires the study under subsection (10)(a)
to be submitted to Director of OMB upon completion.
Subsection (c) requires the Director of OMB to submit the
study under subsection (10)(a) to Congress not later than 30
days after receipt.
Section 11. Sunset
This section holds that Sections 3, 4, and 5 shall cease to
have effect 5 years after enactment.
V. EVALUATION OF REGULATORY IMPACT
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill and determined
that the bill will have no regulatory impact within the meaning
of the rules. The Committee agrees with the Congressional
Budget Office's statement that the bill contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act (UMRA) and would impose no costs
on state, local, or tribal governments.
VI. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
This legislation would make no change in existing law,
within the meaning of clauses (a) and (b) of subparagraph 12 of
rule XXVI of the Standing Rules of the Senate, because this
legislation would not repeal or amend any provision of current
law.
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