National Defense Authorization Act for Fiscal Year 2022
SEC. 6445. REQUIREMENTS RELATING TO UNMANNED AIRCRAFT SYSTEMS.
(a) Definitions.–In this section:
(1) Appropriate congressional committees.–The term
“appropriate congressional committees” means–
(A) the congressional defense committees;
(B) the Committee on Science, Space, and
Technology, and the Committee on Transportation and
Infrastructure of the House of Representatives; and
(C) the Committee on Commerce, Science, and
Transportation of the Senate.
(2) Covered foreign entity.–The term “covered foreign
entity” means an entity included on a list developed and
maintained by the Federal Acquisition Security Council that
includes 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’s 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).
(3) Executive agency.–The term “executive agency” has
the meaning given that term in section 133 of title 41, United
States Code.
(4) Unmanned aircraft system; uas.–Except as otherwise
provided, the terms “unmanned aircraft system” and “UAS”
mean an unmanned aircraft and 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.
(b) Prohibition on Procurement of Unmanned Aircraft Systems From
Covered Foreign Entities.–
(1) In general.–Except as provided under paragraphs (2)
and (3), the head of an executive agency may not procure any
unmanned aircraft system that is manufactured, assembled,
designed, or patented by a covered foreign entity 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.
(2) Exemption.–The Secretary of Homeland Security, the
Secretary of Defense, and the Attorney General are exempt from
the restriction under paragraph (1) if the operation or
procurement–
(A) is for the sole purposes of research,
evaluation, training, testing, or analysis for–
(i) electronic warfare;
(ii) information warfare operations;
(iii) development of UAS or counter-UAS
technology;
(iv) counterterrorism or
counterintelligence activities; or
(v) Federal criminal investigations,
including forensic examinations; and
(B) is required in the national interest of the
United States.
(3) Waiver.–The head of an executive agency may waive the
prohibition under paragraph (1)–
(A) with the approval of the Secretary of Homeland
Security or the Secretary of Defense; and
(B) upon notification to Congress.
(c) Prohibition on Operation of Unmanned Aircraft Systems From
Covered Foreign Entities.–
(1) Prohibition.–
(A) In general.–Beginning on the date that is 2
years after the date of the enactment of this Act, an
executive agency may not operate an unmanned aircraft
system manufactured, assembled, designed, or patented
by a covered foreign entity.
(B) Applicability to contracted services.–The
prohibition under subparagraph (A) applies to any
unmanned aircraft systems that are being used by any
executive agency through the method of contracting for
the services of unmanned aircraft systems.
(2) Exemption.–The Secretary of Homeland Security, the
Secretary of Defense, and the Attorney General are exempt from
the restriction under paragraph (1) if the operation or
procurement–
(A) is for the sole purposes of research,
evaluation, training, testing, or analysis for–
(i) electronic warfare;
(ii) information warfare operations;
(iii) development of UAS or counter-UAS
technology;
(iv) counterterrorism or
counterintelligence activities; or
(v) Federal criminal investigations,
including forensic examinations; and
(B) is required in the national interest of the
United States.
(3) Waiver.–The head of an executive agency may waive the
prohibition under paragraph (1) on a case-by-case basis–
(A) with the approval of the Secretary of Homeland
Security or the Secretary of Defense; and
(B) upon notification to Congress.
(4) 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.
(d) Prohibition on Use of Federal Funds for Purchases and Operation
of Unmanned Aircraft Systems From Covered Foreign Entities.–
(1) In general.–Beginning on the date that is 2 years
after the date of the enactment of this Act, except as provided
in paragraphs (2) and (3), Federal funds awarded through a
contract, grant, or cooperative agreement entered into on or
after such effective date, or otherwise made available, may not
be used–
(A) to purchase a unmanned aircraft system, or a
system to counter unmanned aircraft systems, that is
manufactured, assembled, designed, or patented by a
covered foreign entity; or
(B) in connection with the operation of such a
drone or unmanned aircraft system.
(2) Exemption.–An executive agency is exempt from the
restriction under paragraph (1) if 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;
(E) Federal criminal 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
(G) is required in the national interest of the
United States.
(3) Waiver.–The head of an executive agency may waive the
prohibition under paragraph (1) on a case-by-case basis–
(A) with the approval of the Secretary of Homeland
Security or the Secretary of Defense; and
(B) upon notification to Congress.
(4) 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 relating to
Federal contracts.
(e) Prohibition on Use of Government-issued Purchase Cards to
Purchase Unmanned Aircraft Systems From Covered Foreign Entities.–
Effective immediately, Government-issued Purchase Cards may not be used
to procure any unmanned aircraft system from a covered foreign entity.
(f) Management of Existing Inventories of Unmanned Aircraft Systems
From Covered Foreign Entities.–
(1) In general.–Effective immediately, all executive
agencies must account for existing inventories of unmanned
aircraft systems manufactured, assembled, designed, or patented
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.
(2) Classified tracking.–Due to the sensitive nature of
missions and operations conducted by the United States
Government, inventory data related to unmanned aircraft systems
manufactured, assembled, designed, or patented by a covered
foreign entity may be tracked at a classified level.
(3) Exceptions.–The Department of Defense and Department
of Homeland Security may exclude from the full inventory
process, unmanned aircraft systems that are deemed expendable
due to mission risk such as recovery issues or that are one-
time-use unmanned aircraft system due to requirements and low
cost.
(g) 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 unmanned aircraft systems procured
by Federal departments and agencies from covered foreign entities.
(h) Government-wide Policy for Procurement of Unmanned Aircraft
Systems.–
(1) 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–
(A) for non-Department of Defense and non-
intelligence community operations; and
(B) through grants and cooperative agreements
entered into with non-Federal entities.
(2) Information security.–The policy developed under
paragraph (1) 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:
(A) Protections to ensure controlled access of UAS.
(B) 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.
(C) Cryptographically securing sensitive collected,
stored, and transmitted data, including proper handling
of privacy data and other controlled unclassified
information.
(D) Appropriate safeguards necessary to protect
sensitive information, including during and after use
of UAS.
(E) Appropriate data security to ensure that data
is not transmitted to or stored in non-approved
locations.
(F) 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.
(3) Requirement.–The policy developed under paragraph (1)
shall reflect an appropriate risk-based approach to information
security related to use of UAS.
(4) Revision of acquisition regulations.–Not later than
180 days after the date on which the policy required under
paragraph (1) is issued–
(A) the Federal Acquisition Regulatory Council
shall revise the Federal Acquisition Regulation, as
necessary, to implement the policy; and
(B) any executive 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.
(5) Exemption.–In developing the policy required under
paragraph (1), the Director of the Office of Management and
Budget shall incorporate an exemption to the policy for the
following reasons:
(A) In the case of procurement for the purposes of
training, testing, or analysis for–
(i) electronic warfare; or
(ii) information warfare operations.
(B) In the case of researching UAS technology,
including testing, evaluation, research, or development
of technology to counter UAS.
(C) In the case of a head of the procuring
executive agency determining, in writing, that no
product that complies with the information security
requirements described in paragraph (2) is capable of
fulfilling mission critical performance requirements,
and such determination–
(i) may not be delegated below the level of
the Deputy Secretary of the procuring executive
agency;
(ii) 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;
(iii) shall be reported to the Office of
Management and Budget following issuance of
such a determination; and
(iv) not later than 30 days after the date
on which the determination is made, shall be
provided to the Committee on Homeland Security
and Government Affairs of the Senate and the
Committee on Oversight and Reform of the House
of Representatives.
(i) Study on the Supply Chain for Unmanned Aircraft Systems and
Components.–
(1) Report required.–Not later than 180 days after the
date of the enactment of this Act, the Under Secretary of
Defense for Acquisition and Sustainment, in consultation with
the Administrator of the National Aeronautics and Space
Administration, shall provide to the appropriate congressional
committees a report on the supply chain for covered unmanned
aircraft systems, including a discussion of current and
projected future demand for covered unmanned aircraft systems.
(2) Elements.–The report under paragraph (1) shall include
the following:
(A) A description of the current and future global
and domestic market for covered unmanned aircraft
systems that are not widely commercially available
except from a covered foreign entity.
(B) A description of the sustainability,
availability, cost, and quality of secure sources of
covered unmanned aircraft systems domestically and from
sources in allied and partner countries.
(C) The plan of the Secretary of Defense to address
any gaps or deficiencies identified in subparagraph
(B), including through the use of funds available under
the Defense Production Act of 1950 (50 U.S.C. 4501 et
seq.) and partnerships with the National Aeronautics
and Space Administration and other interested persons.
(D) Such other information as the Under Secretary
of Defense for Acquisition and Sustainment determines
to be appropriate.
(3) Covered unmanned aircraft system defined.–In this
subsection, the term “covered unmanned aircraft system” means
an unmanned aircraft system (as defined in subsection (a)) and
any components of such a system.