[Senate Report 118-87]
[From the U.S. Government Publishing Office]
Calendar No. 190
118th Congress} { Report
SENATE
1st Session } { 118-87
======================================================================
AMERICAN SECURITY DRONE ACT OF 2023
__________
R E P O R T
OF THE
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
TO ACCOMPANY
S. 473
TO PROVIDE FOR DRONE SECURITY
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
August 22, 2023.--Ordered to be printed
Filed, under authority of the order of the Senate of July 27, 2023
__________
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
Christopher J. Mulkins, Director of Homeland Security
Benjamin J. Schubert, Professional Staff Member
William E. Henderson III, Minority Staff Director
Christina N. Salazar, Minority Chief Counsel
Kendal B. Tigner, Minority Professional Staff Member
Laura W. Kilbride, Chief Clerk
Calendar No. 190
118th Congress} { Report
SENATE
1st Session } { 118-87
======================================================================
AMERICAN SECURITY DRONE ACT OF 2023
_______
August 22, 2023.--Ordered to be printed
Filed, under authority of the order of the Senate of July 27, 2023
_______
Mr. Peters, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany S. 473]
[Including cost estimate of the Congressional Budget Office]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 473) to provide for
drone security, having considered the same, reports favorably
thereon 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..............................................4
IV. Section-by-Section Analysis of the Bill, as Reported.............4
V. Evaluation of Regulatory Impact..................................7
VI. Congressional Budget Office Cost Estimate........................8
VII. Changes in Existing Law Made by the Bill, as Reported............9
I. PURPOSE AND SUMMARY
S. 473, the American Security Drone Act of 2023, 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. 473 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), Defense (DOD), the Office of the Director of
National Intelligence, 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. 473 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 exempts state, local,
or territorial law enforcement and emergency service agencies
from procurement or operation restrictions for a covered UAS
that was purchased with non-federal funding. Further, the bill
allows the federal government to continue entering into
contracts, grants, and other federal funding instruments with
state, local, or territorial law enforcement and emergency
service agencies who will purchase or operate a covered UAS
under a waiver process. The prohibition on the federal
government's procurement of UAS manufactured or assembled by
covered foreign entities terminates five years after the bill's
enactment.\1\
---------------------------------------------------------------------------
\1\On May 12, 2021, the Committee approved S. 73, the American
Security Drone Act of 2021. That bill is substantially similar to S.
473. Accordingly, this committee report is, in many respects, similar
to the committee report for S. 73. See S. Rept. 117-267.
---------------------------------------------------------------------------
II. BACKGROUND AND NEED FOR THE LEGISLATION
The market for UAS, commonly called ``drones,'' has grown
substantially in the last decade. American businesses,
governments, and citizens use UAS for a variety of purposes,
including: law enforcement, recreation, assessing property
value and damage for insurance purposes, and surveilling and
fertilizing crops.\2\
---------------------------------------------------------------------------
\2\Drone market outlook in 2023: industry growth trends, market
stats, and forecast, Insider Intelligence (Jan. 7, 2023)
(www.insiderintelligence.com/insights/drone-industry-analysis-market-
trends-growth-forecasts/).
---------------------------------------------------------------------------
Federal agencies use UAS for tasks like land-use research,
data collection, search and rescue operations, and monitoring
the border.\3\ DHS, for example, uses UAS along U.S. borders
and over territorial waters for Customs and Border Protection
surveillance missions.\4\ Information security is imperative
when data is collected, stored, and transmitted by UAS for
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% of
UAS in the globally were manufactured and assembled by foreign-
owned entities with affiliations that have divergent interests
than the United States.\5\
---------------------------------------------------------------------------
\3\5 Ways Drone Technology Is Used in Federal IT, FedTech (Mar. 28,
2019) (fedtechmagazine.com/article/2019/03/5-ways-drone-technology-
used-federal-it-perfcon).
\4\Congressional Research Service, Unmanned Aircraft Operations in
Domestic Airspace: U.S. Policy Perspectives and the Regulatory
Landscape (R44352) (Jan. 27, 2016).
\5\The Best Drone Manufacturers in 2021, Droneii (Nov. 1, 2021)
(www.droneii.com/the-best-drone-manufacturers-in-2021).
---------------------------------------------------------------------------
Federal agencies have already begun to limit the
procurement of foreign-made UAS to protect national
security.\6\ 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. For example,
cybersecurity and data sharing vulnerabilities associated with
DJI products could allow sensitive national security
information to be shared with nation-state adversaries and
other hostile actors.\7\ Hostile foreign actors could also use
drones to collect intelligence and enable espionage, steal
sensitive technology and intellectual property, and conduct
cyber-attacks against wireless devices or networks, which could
have significant implications for sensitive U.S. facilities and
critical infrastructure, the defense industrial base,
technology firms, and others.\8\
---------------------------------------------------------------------------
\6\Interior Dept. Grounds Its Drones Over Chinese Spying Fears, New
York Times (Jan. 29, 2020) (www.nytimes.com/2020/01/29/technology/
interior-chinese-drones.html) and U.S. Army calls for units to
discontinue use of DJI equipment, UAS News (Aug. 4, 2017)
(www.suasnews.com/2017/08/us-army-calls-units-discontinue-use-dji-
equipment/).
\7\DHS warns of `strong concerns' that Chinese-made drones are
stealing data, CNN (May 20, 2019) (www.cnn.com/2019/05/20/politics/dhs-
chinese-drone-warning/index.html).
\8\Senate Committee on Homeland Security and Governmental Affairs,
Testimony Submitted for the Record of Acting Assistant Secretary for
Counterterrorism, Threat Prevention, and Law Enforcement Samantha
Vinograd, Department of Homeland Security, Hearing on Protecting the
Homeland from Unmanned Aircraft Systems, 117th Cong. (July 14, 2022)
(S. Hrg. 117-XX).
---------------------------------------------------------------------------
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.\9\ Congress later included a provision in
the National Defense Authorization Act for Fiscal Year 2020
prohibiting DOD from using Chinese-made UAS.\10\ In May 2019,
DHS's Cybersecurity and Infrastructure Security Agency 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.''\11\ In January
2021, the General Services Administration largely restricted
federal agencies from procuring UAS in response to the
cybersecurity threat posed by foreign-made UAS.\12\
---------------------------------------------------------------------------
\9\`Quads for Squads' grounded over cyber concerns, Marine Corps
Times (June 15, 2018) (www.marinecorpstimes.com/news/your-marine-corps/
2018/06/15/quads-for-squads-grounded-over-cyber-concerns/).
\10\National Defense Authorization Act for Fiscal Year 2020, Pub.
L. No. 116-92, Sec. 848.
\11\DHS warns of `strong concerns' that Chinese-made drones are
stealing data, CNN (May 20, 2019) (www.cnn.com/2019/05/20/politics/dhs-
chinese-drone-warning/index.html).
\12\U.S. Government to Stop Buying Chinese-made Drones, VoA News
(Feb. 16, 2021) (www.voanews.com/a/east-asia-pacific_voa-news-china_us-
government-stop-buying-chinese-made-drones/6202125.html).
---------------------------------------------------------------------------
S. 473 is intended to respond to this threat by prohibiting
federal agencies from procuring UAS manufactured or assembled
by designated foreign entities. This would prevent nation-state
adversaries and other hostile actors from utilizing these
emerging technologies to obtain sensitive national security
information. The bill would also support American UAS
manufacturers by permitting them time to grow and evolve to
changing market needs. Increased domestic UAS manufacturing
would provide the United States with increased safety,
security, and economic benefits based 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 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
procured UAS meet a minimum threshold of security regardless of
their country of origin.
III. LEGISLATIVE HISTORY
Senator Rick Scott (R-FL) introduced S. 473, the American
Security Drone Act of 2023, on February 16, 2023, with original
cosponsors Senator Mark Warner (D-VA), Senator Marco Rubio (R-
FL), Senator Richard Blumenthal (D-CT), Senator Marsha
Blackburn (R-TN), and Senator Christopher Murphy (D-CT). The
bill was referred to the Committee on Homeland Security and
Governmental Affairs. Senator Josh Hawley (R-MO) and Senator
Mitt Romney (R-UT) joined as additional cosponsors on March 1,
2023 and April 27, 2023, respectively.
The Committee considered S. 473 at a business meeting on
May 17, 2023. At the business meeting, the bill was ordered
reported favorably by roll call vote of 9 yeas to 1 nay, with
Senators Peters, Hassan, Sinema, Rosen, Padilla, Ossoff,
Blumenthal, Lankford, and Romney voting in the affirmative, and
Senator Paul voting in the negative. Senators Carper, Johnson,
Scott, Hawley, and Marshall voted yea by proxy, for the record
only.
V. SECTION BY SECTION ANALYSIS OF THE BILL, AS REPORTED
Section 1. Short title
This section establishes the short title of the bill as the
``American Security Drone Act of 2023.''
Section 2. Definitions
This section defines ``covered foreign entity,'' ``covered
unmanned aircraft system,'' ``intelligence,'' and
``intelligence community.''
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, the Director of National
Intelligence, and the Attorney General from the procurement
prohibition in subsection (3)(a) for specified activities if
the procurement of foreign UAS is in the national interest of
the United States or maintenance of public safety.
Subsection (c) exempts the Secretary of Transportation from
the procurement prohibition in subsection (3)(a) if the
operation or procurement is deemed to support the safe, secure,
or efficient operation of the National Airspace System (NAS).
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 meeting NOAA's science or
management objectives or operational mission.
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 the Director of OMB after consultation with the
Federal Acquisition Security Council (FASC).
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, the Director of National
Intelligence, and the Attorney General from the operation
prohibition in subsection (4)(a) for specified activities if
the procurement of foreign UAS is in the national interest of
the United States.
Subsection (c) exempts the Secretary of Transportation from
the operation prohibition in subsection (4)(a) if the operation
is deemed to support the safe, secure, or efficient operation
of the NAS or maintenance of public safety.
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 meeting NOAA's science
or management objectives or operational mission.
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 Director of OMB after consultation with the
FASC.
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 procurement 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 the Secretary of Homeland Security,
the Secretary of Defense, the Director of National
Intelligence, and the Attorney General from the restriction in
subsection (5)(a) for specified activities if the procurement
of foreign UAS is in the national interest of the United
States.
Subsection (c) exempts the Secretary of Transportation from
the restriction in subsection (5)(a) if the operation is deemed
to support the safe, secure, or efficient operation of the NAS
or maintenance of public safety.
Subsection (d) exempts NOAA from the restriction in
subsection (5)(a) for the purpose of meeting NOAA's science or
management objectives or operational mission.
Subsection (e) authorizes the head of an executive agency
to waive the restriction in subsection (5)(a) on a case-by-case
basis with notification to Congress and the approval of the
Director of OMB after consultation with the FASC.
Subsection (f) 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 UAS manufactured or assembled by a covered
foreign entity within one year of enactment.
Subsection (b) authorizes tracking under subsection (7)(a)
to be conducted at a classified level, as determined by the
Secretary of Homeland Security.
Subsection (c) authorizes DOD, DHS, DOJ, Department of
Transportation (DOT), and NOAA to exclude from the full
inventory process those UAS that are deemed expendable due to
mission risk, or that are one-time-use UAS.
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 UAS 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 UAS for non-DOD
and non-intelligence operations and those UAS 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 in order to implement
that policy.
Subsection (e) instructs the Director of OMB, in developing
the policy under subsection (9)(a), to incorporate policies to
implement the exemptions contained in this bill and incorporate
an exemption to the policy if a department or agency head
determines that no product that complies with the information
security requirements under subsection (9)(b) is capable of
fulfilling mission critical performance requirements.
Section 10. State, local, and territorial law enforcement
and emergency service exemption
Subsection (a) states that nothing in this bill will
prevent a state, local, or territorial law enforcement or
emergency service agency from procuring or operating a covered
UAS purchased with non-federal dollars.
Subsection (b) allows the federal government to continue
entering into contracts, grants, and cooperative agreements or
other federal funding instruments with state, local, or
territorial law enforcement or emergency service agencies under
which a covered UAS will be purchased or operated if the agency
has received approval or waiver to purchase or operate a
covered UAS pursuant to section 5 of the bill.
Section 11. Study
Subsection (a) requires the Under Secretary of Defense for
Acquisition and Sustainment to provide congressional committees
a report on the supply chain for covered UAS, including a
discussion of current and projected future demand for covered
UAS, within one year of enactment.
Section 12. Exceptions
Subsection (a) exempts appropriate federal agencies, in
consultation with the Secretary of Homeland Security, from the
procurement and operation restrictions under sections 3, 4, and
5 if the procurement or operation is necessary to support the
full range of wildfire management operations or search and
rescue operations.
Subsection (b) exempts elements of the intelligence
community, in consultation with the Director of National
Intelligence, from the procurement and operation restrictions
under sections 3, 4, and 5 if the procurement or operation is
necessary to support intelligence activities.
Subsection (c) exempts tribal law enforcement or tribal
emergency service agencies, in consultation with the Secretary
of Homeland Security, from the procurement and operation
restrictions under sections 3, 4, and 5 if the procurement or
operation is necessary to support the full range of law
enforcement operations or search and rescue operations on
Indian lands.
Section 13. Sunset
This section holds that Sections 3, 4, and 5 shall cease to
have effect five 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. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
S. 473 would prohibit most federal agencies and contractors
from procuring or operating unmanned aircraft systems (UAS)
manufactured or assembled by foreign entities that pose
national security risks. Several agencies, including the
Departments of Defense, Homeland Security, and Justice, would
be exempt from the bill's prohibitions under conditions
specified in the bill. Agencies could receive a waiver, on a
case-by-case basis, after receiving approval from the Office of
Management and Budget (OMB) and notifying the Congress. The new
prohibitions would sunset five years after enactment.
S. 473 would require OMB, in coordination with several
agencies, to establish a government-wide policy for procuring
UAS for nondefense and intelligence-related operations. Any
federal agency or department not otherwise subject to the
Federal Acquisition Regulation would be required to follow the
policy. The bill also would require all executive agencies to
inventory their existing UAS and impose various reporting
requirements.
Based on the costs of similar requirements, CBO estimates
that the affected agencies would incur an additional $1 million
in administrative and personnel costs to comply with the bill's
requirements. Any spending would be subject to the availability
of appropriated funds.
Enacting S. 473 could affect direct spending by agencies
that are allowed to use fees, receipts from the sale of goods,
and other collections to cover operating costs. CBO estimates
that any net changes in direct spending would be less than
$500,000 over the 2024-2033 period.
The CBO staff contact for this estimate is Jeremy Crimm.
The estimate was reviewed by H.Samuel Papenfuss, Deputy
Director of Budget Analysis.
Phillip L. Swagel,
Director, Congressional Budget Office.
VII. 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.
[all]