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Calendar No. 547
116th Congress } { Report
SENATE
2d Session } { 116-268
_______________________________________________________________________
AMERICAN SECURITY DRONE ACT OF 2020
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 2502
TO BAN THE FEDERAL PROCUREMENT OF CERTAIN DRONES AND OTHER UNMANNED
AIRCRAFT SYSTEMS, AND FOR OTHER PURPOSES
September 15, 2020.--Ordered to be printed
______
U.S. GOVERNMENT PUBLISHING OFFICE
99-007 WASHINGTON : 2020
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
RON JOHNSON, Wisconsin, Chairman
ROB PORTMAN, Ohio GARY C. PETERS, Michigan
RAND PAUL, Kentucky THOMAS R. CARPER, Delaware
JAMES LANKFORD, Oklahoma MAGGIE HASSAN, New Hampshire
MITT ROMNEY, Utah KAMALA D. HARRIS, California
RICK SCOTT, Florida KYRSTEN SINEMA, Arizona
MICHAEL B. ENZI, Wyoming JACKY ROSEN, Nevada
JOSH HAWLEY, Missouri
Gabrielle D'Adamo Singer, Staff Director
Joseph C. Folio III, Chief Counsel
Brian P. Kennedy, Senior Professional Staff Member
Caroline K. Bender, Research Assistant
David M. Weinberg, Minority Staff Director
Zachary I. Schram, Minority Chief Counsel
Roy S. Awabdeh, Minority Counsel
Laura W. Kilbride, Chief Clerk
Calendar No. 547
116th Congress } { Report
SENATE
2d Session } { 116-268
======================================================================
AMERICAN SECURITY DRONE ACT OF 2020
_______
September 15, 2020.--Ordered to be printed
_______
Mr. Johnson, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany S. 2502]
[Including cost estimate of the Congressional Budget Office]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 2502) to ban the
Federal procurement of certain drones and other unmanned
aircraft systems, and for other purposes, having considered the
same, reports favorably thereon with an amendment in the nature
of a substitute and recommends that the bill, as amended, 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......................................4
V. Evaluation of Regulatory Impact..................................6
VI. Congressional Budget Office Cost Estimate........................6
VII. Changes in Existing Law Made by the Bill, as Reported............7
I. PURPOSE AND SUMMARY
S. 2502, the American Security Drone Act of 2020, prohibits
the Federal Government from procuring unmanned aircraft systems
(UAS) manufactured or assembled by covered foreign entities
beginning two years from the enactment of this bill. The bill
includes exemptions for the Departments of Homeland Secretary
(DHS), Defense (DOD) and Justice (DOJ) for the purposes of
research, evaluation, training, testing, and analysis of
counterterrorism activities and counter-UAS technology, among
other things. With some exceptions, all executive branch
agencies are required to account for and inventory any existing
UAS manufactured or assembled by covered foreign entities.
In addition, the bill requires the Office of Management and
Budget (OMB) to develop a government-wide procurement policy of
UAS to address the risks associated with processing,
transmitting, and storing sensitive information collected from
a UAS. The bill also requires an industry study to cover the
current and future UAS domestic and global marketplace,
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.
II. BACKGROUND AND THE NEED FOR LEGISLATION
The emergence of new technologies and capabilities presents
both an opportunity and challenge to the security of the United
States. For instance, our nation deploys UAS for everything
from the surveillance and fertilization of crops, delivering
packages and prescriptions, recreational uses, to national
security purposes. However, the reliance on UAS for a wide
range of national security applications has called into
question the ability of the Federal Government to protect the
integrity of data and information collected by these systems,
as an estimated 60 percent of UAS operating in the United
States are manufactured and assembled by foreign-owned
entities.\1\
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\1\Skylogic Research Report Unveils Drone Industry Market Share
Figures, Drone Analyst (Sept. 18, 2017), https://droneanalyst.com/
press-release/skylogic-research-report-unveils-drone-industry-market-
share-figures.
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Specific uses across the Federal Government of UAS include,
but are not limited to, wildfire tracking by the Department of
Interior (DOI)\2\, researching land use by the Department of
Agriculture\3\, and data collection by the Department of
Transportation.\4\ DHS uses UAS for law enforcement
investigations, surveillance of drug routes along the coast,
and other sensitive missions.\5\ Because the Federal Government
uses UAS for a variety of mission sets, including sensitive
missions, information security is imperative when data is
collected, stored, and transmitted. The procurement of UAS
manufactured by certain foreign-owned entities calls into
question the Federal Government's ability to employ adequate
information security safeguards.
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\2\ Press Release, U.S. Dep't of the Interior, Interior Announces
2017 Drone Mission Report (Feb. 21, 2018), https://www.doi.gov/
pressreleases/interior-announces-2017-drone-mission-report.
\3\ USDA may use drones to monitor vast Western rangeland, Farm
Progress (Apr. 17, 2020), https://www.farmprogress.com/government/usda-
may-use-drones-monitor-vast-western-rangeland.
\4\ U.S. Dep't of Transportation, Unmanned Aerial Systems (Oct. 3,
2019), https://www.fhwa.dot.gov/uas/.
\5\ U.S. Dep't of Homeland Security, Unmanned Aerial Systems (last
visited Apr. 26, 2020), https://www.dhs.gov/science-and-technology/
unmanned-aerial-systems.
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DHS' Cybersecurity and Infrastructure Security Agency
(CISA) released a bulletin in May 2019, warning private
industry about the ``potential risk to an organization's
information'' when acquiring and operating Chinese-made UAS.\6\
The bulletin goes on to explain, ``Those concerns apply . . .
to 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.''\7\
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\6\ David Shortell, 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.
\7\ Id.
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In 2017, the U.S. Army issued guidance discontinuing the
use of DJI drones due to security concerns.\8\ The DOD went a
step further in May 2018, and banned all purchases of
commercial-off-the-shelf UAS while they researched and
developed a strategy to deal with the potential cybersecurity
risks.\9\ Ultimately, Congress included a provision in the
National Defense Authorization Act for Fiscal Year 2020
prohibiting DOD from using Chinese-made UAS.\10\
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\8\ Gary Mortimer, US 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/.
\9\ Shawn Snow, `Quads for Squads' grounded over cyber concerns,
Marine Corps Times (Jun 15, 2018), https://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, available at https://www.congress.gov/bill/
116th-congress/senate-bill/1790/text.
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There are conflicting views within the Federal Government
on the extent of the threat posed by the utilization of
foreign-made UAS, how best to minimize potential negative
effects of these technologies, and the ability of the American
market to fill demand. For instance, after deploying the
technology, DOI recognized DJI's privacy policy and data
management systems did not meet the necessary requirements to
be utilized in their small UAS fleet.\11\ Therefore, DOI
contracted with an American-based company that met all
technology requirements at an affordable cost to the
taxpayer.\12\ Unfortunately, the American company halted its
UAS manufacturing due to foreign competition, leaving DOI
without a cost-effective alternative.\13\ In response, DOI
coordinated with DJI to produce a ``government edition'' that
would meet DOI's data management requirements.\14\ In order to
confirm the suitability of the government edition, DOI's Office
of Aviation Services, along with industry and Federal partners,
tested the data management and risk mitigation
requirements.\15\ DOI found that DJI's new technology met the
required security criteria allowing DOI to manage the flow of
data information sharing by the aircraft, the software, and all
relevant applications.\16\ Similarly, CISA partnered with Idaho
National Laboratory to test data flow and management from
foreign-made UAS.\17\ The study called for more testing of the
technology, but confirmed that DJI's government-edition UAS
provided the necessary data management and information security
tools to meet the Federal agency's requirements.\18\
Ultimately, the DOI grounded its non-emergency drone program to
review cybersecurity concerns.\19\
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\11\ U.S. Dep't of the Interior, Flight Test and Technical
Evaluation Report: DJI Unmanned Aircraft System (UAS) Mission
Functionality and Data Management Assurance Assessment (July 2, 2019),
available at https://www.doi.gov/sites/doi.gov/files/uploads/
oas_flight_test_and_
technical_evaluation_report_-
_dji_uas_data_managment_assurance_evaluation_-_7-2-19_v2.0.pdf.
\12\ Id.
\13\ Id.
\14\ Id.
\15\ Id.
\16\ Id.
\17\ U.S. Dep't of Homeland Sec. Cybersecurity & Infrastructure
Sec. Agency, Aviation Cyber Initiative Unmanned Aircraft System
Information Security Risks Limited Scope Test & Evaluation, Idaho
National Laboratory (Oct. 2019).
\18\ Id.
\19\ Press Release, U.S. Dep't of the Interior, Secretary Bernhardt
Signs Order Grounding Interior's Drone Fleet for Non-Emergency
Operations (Jan. 29, 2020), https://www.doi.gov/pressreleases/
secretary-bernhardt-signs-order-grounding-interiors-drone-fleet-non-
emergency.
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S. 2502 prohibits Federal agencies from procuring UAS from
designated foreign-made countries and entities. The primary
purpose is to prevent nation-state adversaries and other bad
actors from exploiting these emerging technologies to obtain
sensitive national security information. The prohibition on
foreign-made UAS will provide Federal agencies and American
drone manufacturers time to adjust to these new regulations and
allow the domestic market to evolve. Exemptions are included in
the bill for security and mission-critical reasons. One such
exemption is for DHS and DOJ to research and test existing UAS
to ensure these agencies are capable of countering any and all
malicious UAS. Furthermore, the bill creates a government-wide
policy for technology and data management standards to ensure
that all UAS procured meets a minimum threshold of security
regardless of the country of origin. Lastly, the prohibition on
the procurement of covered UAS sunsets five years after the
enactment of the bill.
III. LEGISLATIVE HISTORY
Senator Rick Scott (R-FL) introduced S. 2502, the American
Security Drone Act of 2019, on September 18, 2019, with
Senators Cotton (R-AR), Hawley (R-MO), Rubio (R-FL), Murphy (D-
CT), and Blumenthal (D-CT). The bill was referred to the
Committee on Homeland Security and Governmental Affairs.
Senator Marsha Blackburn (R-TN) later joined as a cosponsor.
The Committee considered S. 2502 at a business meeting on
March 11, 2020. During the business meeting, a substitute
amendment was offered by Senator Scott and accepted by
unanimous consent. The bill, as amended, was ordered reported
favorably by voice vote en bloc. Senators Johnson, Portman,
Lankford, Romney, Scott, Enzi, Hawley, Peters, Carper, Hassan,
Harris, Sinema, and Rosen were present for the votes.
IV. SECTION-BY-SECTION ANALYSIS OF THE BILL, AS REPORTED
Section 1. Short title
This section names the bill as the ``American Security
Drone Act of 2020''.
Sec. 2. Definitions
This section defines ``covered foreign entity'' and
``covered unmanned aircraft system''.
Sec. 3. Prohibition on procurement of covered unmanned aircraft systems
from covered foreign entities
This section prohibits the procurement of a covered UAS by
the Federal Government. This section also includes exemptions
for DHS and DOJ for the purposes of the research, evaluation,
training, testing, or analysis of certain types of warfare,
development of counter-UAS technology, counterintelligence
activities, Federal investigations, and when required for the
national interest. The section also provides the authority to
the head of any executive agency to waive this section on a
case-by-case basis and with the approval of the Secretaries of
Homeland Security or Defense.
Sec. 4. Prohibition on operation of covered unmanned aircraft systems
from covered foreign entities
This section prohibits the operation or use of a covered
UAS by any Federal agency beginning two years after enactment
of the bill. This section also provides the same exemptions and
waivers as Section 3. This section also requires the Secretary
of Homeland Security to issue guidance and produce regulations
to implement the prohibition on the operation of covered UAS by
covered foreign entities within 180 days of the bill's
enactment.
Sec. 5. Prohibition on use of federal funds for purchases and operation
of covered unmanned aircraft systems from covered foreign
entities
This section prohibits the use of Federal funds through a
contract, grant, or cooperative agreement to procure or operate
a covered UAS by the defined covered foreign entities beginning
two years after this bill is enacted. This section also
provides exemptions similar to Section 3. Additionally, this
section requires the Federal Acquisition Regulatory Council to
provide guidance and prescribe regulations to implement this
section within 180 days.
Sec. 6. Prohibition on use of government-issued purchase cards to
purchase covered unmanned aircraft systems from covered foreign
entities
Upon enactment, Federal agencies are prohibited from using
government-issued purchase cards to purchase a UAS from a
covered foreign entity.
Sec. 7. Management of existing inventories of covered unmanned aircraft
systems from covered foreign entities
This section requires Federal agencies to account for and
track their inventories of UAS from a covered foreign entity
regardless of how the agency procured the UAS. Inventory data
related to a covered UAS may be tracked at a classified level.
This section also includes an exception for DHS and DOD for
covered UAS deemed expendable due to the mission risks or that
are for one-time-use.
Sec. 8. Comptroller general report
This section requires the Government Accountability Office
to, within 275 days of enactment, submit a report to Congress
on the number of UAS, commercial off-the-shelf and covered UAS
procured by Federal agencies from covered foreign entities.
Sec. 9. Government-wide Policy for procurement of unmanned aircraft
systems
This section requires OMB, along with the National
Institute of Standards and Technology and other related Federal
agencies, to develop a procurement policy for Federal agencies
to procure any UAS. The policy must include provisions related
to protections of software, firmware, and hardware; securing
sensitively collected, stored, and transmitted information, and
other data security requirements. This section also provides
exemptions to when Federal agencies are allowed to procure UAS
outside of this policy. This section is intended to coincide
with the Federal prohibition on the procurement of UAS from
covered foreign entities.
Sec. 10. Study
This section requires OMB to contract with a Federally-
funded research and development center (FFRDC) to study the UAS
industry three years after the enactment of this bill, and
submit the results of the study to Congress within 30 days of
receiving the study from the FFRDC. Specifically, the FFRDC
will study the current and future UAS domestic and global
market; the ability for domestic companies to compete in the
global marketplace; domestic supply chains; and an assessment
of the economic impact of this legislation.
Sec. 11. Sunset
This section sunsets Sections 3, 4, and 5, five years after
the enactment of this bill.
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
U.S. Congress,
Congressional Budget Office,
Washington, DC, September 9, 2020.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental
Affairs, U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 2502, the American
Security Drone Act of 2020.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff is Sofia Guo.
Sincerely,
Phillip L. Swagel,
Director.
Enclosure.
S. 2502 would prohibit most federal agencies from procuring
or operating unmanned aircraft systems manufactured or
assembled by a covered foreign entity, which includes, for
example, an entity that poses a national security risk. The
Department of Homeland Security, the Department of Defense, and
the Attorney General would be exempt from the bill's
prohibitions for such systems that are acquired or operated
under certain conditions. The new prohibitions would sunset
five years after enactment.
The bill would require the Office of Management and Budget
to establish a policy for procuring unmanned aircraft systems
for operations outside of the defense and intelligence
communities and would require any department or agency not
otherwise subject to the Federal Acquisition Regulation to
follow the new policy. The bill also would require executive
agencies to account for their inventories of covered unmanned
aircraft systems and would require various studies and reports.
Using information from the affected agencies, CBO estimates
that implementing S. 2502 would cost $1 million over the 2021-
2025 period for additional administrative activities and new
reporting requirements. Such spending would be subject to the
availability of appropriated funds.
Enacting S. 2502 could affect direct spending by some
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 by those
agencies would be negligible because most of them can adjust
amounts collected to reflect changes in operating costs.
The CBO staff contact for this estimate is Sofia Guo. The
estimate was reviewed by H. Samuel Papenfuss, Deputy Director
of Budget Analysis.
VII. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
Because this legislation would not repeal or amend any
provision of current law, it would not make changes in existing
law within the meaning of clauses (a) and (b) of paragraph 12
of rule XXVI of the Standing Rules of the Senate.
