H.R. 5640 Text - Introduced in House - 117th Congress (2021-2022)

117th CONGRESS
1st Session

H. R. 5640

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

IN THE HOUSE OF REPRESENTATIVES

October 20, 2021

Mr. Gooden of Texas introduced the following bill; which was referred to the Committee on Oversight and Reform

A BILL

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

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. Short title.

This Act may be cited as the “Stop Acquiring Foreign Espionage Act of 2021” or the “SAFE Drones Act”.

SEC. 2. Definitions.

In this Act:

(1) 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.

(2) FOREIGN ADVERSARY.—The term “foreign adversary” has the meaning given such term in section 8(c) of the Secure and Trusted Communications Networks Act of 2019 (47 U.S.C. 1607(c)).

SEC. 3. Prohibition on procurement of covered unmanned aircraft systems from foreign adversaries.

(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 foreign adversary, 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;

(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.

SEC. 4. Prohibition on operation of covered unmanned aircraft systems from foreign adversaries.

(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 foreign adversary.

(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;

(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.

(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.

SEC. 5. Prohibition on use of Federal funds for purchases and operation of covered unmanned aircraft systems from foreign adversaries.

(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 foreign adversary; 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;

(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.

(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.

SEC. 6. Prohibition on use of Government-issued Purchase Cards to purchase covered unmanned aircraft systems from foreign adversaries.

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

SEC. 7. Management of existing inventories of covered unmanned aircraft systems from foreign adversaries.

(a) In general.—Effective immediately, all executive agencies must account for existing inventories of covered unmanned aircraft systems manufactured or assembled by a foreign adversary 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 foreign adversary 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.

SEC. 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 foreign adversaries.

SEC. 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;

(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.

SEC. 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.

SEC. 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.