American Security Drone Act (ASDA) of 2023

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The American Security Drone Act of 2023 has caused much discussion. People are asking:

  • I heard there was some Chinese drone ban. Can I keep on flying my drones?
  • I contract with the federal government. Will my contract force me to stop flying drones?
  • We have some of these drones. Are there any exceptions to the law? How do we obtain one?

You are in the right place if any of those questions sound familiar. By the end of this article, you should have a greater understanding of the problems and solutions.


Overview

On December 22, 2023, President Biden signed into law the National Defense Authorization Act of 2024 (Public Law 118-31) which includes in it the “American Security Drone Act of 2023.” It applies to how the Federal Government uses certain drones and how funds are used in connection with certain drones. The law will sunset in 5 years.


Who is affected by the ASDA?

The law is directed at the Federal Government. But it could affect non-government entities. Section 1825 says, “In General.–Beginning on the date that is two 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 procure a covered unmanned aircraft system that is manufactured or assembled by a covered foreign entity; or (2) in connection with the operation of such a drone or unmanned aircraft system.” (Emphasis mine).  That last part is pretty broad.


What drone manufacturers are covered?

Section 1822 defines “covered foreign entity'” as

“an entity included on a list developed and maintained by the Federal Acquisition Security Council and published in the System for Award Management (SAM). This list will include 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 Attorney General, 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).” (Emphasis mine).

If you search the Consolidated Screening List,  DJI and SZ DJI Technology Co., Ltd. pop up.


Are there exemptions from ASDA?

For Use – Section 1824 (b) provides exemptions for “The Secretary of Homeland Security, the Secretary of Defense, the Secretary of State, and the Attorney General are exempt from the restriction under subsection (a) if the operation is required in the national interest of the United States[.]”  Subsections (c) through (e) provide exemptions for the DOT, Federal Aviation Administration, NTSB, and NOAA.  Other agency heads may obtain a waiver under the provisions in subsection (f).

For Funds – Section 1825 provides exemptions for all of the same agencies.  If you are involved in some type of project or contract with these government agencies, or with an entity in control with one of these agencies, you should see if your operations would all into one of the exemptions. If so, it would be wise to work with the agency to make a determination that your operations fall within an exemption.

State, local, or territorial law enforcement or emergency service agency. Section 1830 says, “State, local, or territorial law enforcement or emergency service agency from procuring or operating a covered unmanned aircraft system purchased with non-Federal dollars.” (Emphasis mine).   Note also that (b) says, ” The Federal Government may 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 unmanned aircraft system will be purchased or operated if the agency has received approval or waiver to purchase or operate a covered unmanned aircraft system pursuant to section 1825.”

Wildfire Operations. – Section 1832(a) says, “The appropriate Federal agencies, in consultation with the Secretary of Homeland Security, are exempt from the procurement and operation restrictions under sections 1823, 1824, and 1825 to the extent the procurement or operation is necessary for the purpose of supporting the full range of wildfire management operations or search and rescue operations.”

Intelligence Gathering. “Sections 1823, 1824, and 1825 shall not apply to any activity subject to the reporting requirements under title V of the National Security Act of 1947 (50 U.S.C. 3091 et seq.), any authorized intelligence activities of the United States, or any activity or procurement that supports an authorized intelligence activity.”

Tribal Law Enforcement or Search and Rescue. Section 1832(c) says, “Tribal law enforcement or Tribal emergency service agencies, in consultation with the Secretary of Homeland Security, are exempt from the procurement, operation, and purchase restrictions under sections 1823, 1824, and 1825 to the extent the procurement or operation is necessary for the purpose of supporting the full range of law enforcement operations or search and rescue operations on Indian lands.”


Actual Text of the ASDA

Subtitle B–Drone Security

SEC. 1821. SHORT TITLE.

This subtitle may be cited as the “American Security Drone Act of 2023”.

SEC. 1822. DEFINITIONS.

In this subtitle:
(1) Covered foreign entity.–The term “covered foreign entity” means an entity included on a list developed and maintained by the Federal Acquisition Security Council and published in the System for Award Management (SAM). This list will include 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 Attorney General, 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).

(2) 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.
(3) Intelligence; intelligence community.–The terms “intelligence” and “intelligence community” have the meanings given those terms in section 3 of the National Security Act of 1947 (50 U.S.C. 3003).

SEC. 1823. PROHIBITION ON PROCUREMENT OF COVERED UNMANNED AIRCRAFT SYSTEMS FROM COVERED FOREIGN ENTITIES.

(a) In General.–Except as provided under subsections (b) through (f), the head of an executive agency may not procure any covered unmanned aircraft system that is manufactured or assembled by a covered
foreign entity, which includes associated elements related to the collection and transmission of sensitive information (consisting of communication links and the components that control the unmanned aircraft) that enable the operator to operate the aircraft 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, the Secretary of State, and the Attorney General are exempt from the restriction under subsection (a) if the procurement is required in the national interest of the United States and–

(1) is for the sole purposes of research, evaluation, training, testing, or analysis for electronic warfare, information warfare operations, cybersecurity, or development of unmanned aircraft system or counter-unmanned aircraft system technology;

(2) is for the sole purposes of conducting counterterrorism or counterintelligence activities, protective missions, or Federal criminal or national security investigations, including forensic examinations, or for electronic warfare, information warfare operations, cybersecurity, or development of an unmanned aircraft system or counter-unmanned aircraft system technology; or

(3) is an unmanned aircraft system that, as procured or as modified after procurement but before operational use, can no longer transfer to, or download data from, a covered foreign entity and otherwise poses no national security cybersecurity risks as determined by the exempting official.

(c) Department of Transportation and Federal Aviation Administration Exemption.–The Secretary of Transportation is exempt from the restriction under subsection (a) if the operation or procurement is deemed to support the safe, secure, or efficient operation of the National Airspace System or maintenance of public safety, including activities carried out under the Federal Aviation Administration’s Alliance for System Safety of UAS through Research Excellence (ASSURE) Center of Excellence (COE) and any other activity deemed to support the safe, secure, or efficient operation of the National Airspace System or maintenance of public safety, as determined by the Secretary or the Secretary’s designee.

(d) National Transportation Safety Board Exemption.–The National Transportation Safety Board, 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 and Atmospheric Administration Exemption.–The Administrator of the National Oceanic and Atmospheric Administration (NOAA), in consultation with the Secretary of Homeland Security, is exempt from the restriction under subsection (a) if the procurement is necessary for the purpose of meeting NOAA’s science or management objectives or operational mission.

(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 Director of the Office of Management and Budget, after consultation with the Federal Acquisition Security Council; and
(2) upon notification to–

(A) the Committee on Homeland Security and Governmental Affairs of the Senate;
(B) the Committee on Oversight and Accountability in the House of Representatives; and
(C) other appropriate congressional committees of jurisdiction.

SEC. 1824. PROHIBITION ON OPERATION OF COVERED UNMANNED AIRCRAFT SYSTEMS FROM COVERED FOREIGN ENTITIES.

(a) Prohibition.–

(1) In general.–Beginning on the date that is two 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 covered foreign entity.
(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, the Secretary of State, and the Attorney General are exempt from the restriction under subsection (a) if the operation is required in the national interest of the United States and–

(1) is for the sole purposes of research, evaluation, training, testing, or analysis for electronic warfare, information warfare operations, cybersecurity, or development of unmanned aircraft system or counter-unmanned aircraft system technology;

(2) is for the sole purposes of conducting counterterrorism or counterintelligence activities, protective missions, or Federal criminal or national security investigations, including forensic examinations, or for electronic warfare, information warfare operations, cybersecurity, or development of an unmanned aircraft system or counter-unmanned aircraft system technology; or

(3) is an unmanned aircraft system that, as procured or as modified after procurement but before operational use, can no longer transfer to, or download data from, a covered foreign entity and otherwise poses no national security cybersecurity risks as determined by the exempting official.

(c) Department of Transportation and Federal Aviation Administration Exemption.–The Secretary of Transportation is exempt from the restriction under subsection (a) if the operation is deemed to support the safe, secure, or efficient operation of the National Airspace System or maintenance of public safety, including activities carried out under the Federal Aviation Administration’s Alliance for System Safety of UAS through Research Excellence (ASSURE) Center of Excellence (COE) and any other activity deemed to support the safe, secure, or efficient operation of the National Airspace System or maintenance of public safety, as determined by the Secretary or the Secretary’s designee.

(d) National Transportation Safety Board Exemption.–The National Transportation Safety Board, in consultation with the Secretary of Homeland Security, is exempt from the restriction under subsection (a) if the operation is necessary for the sole purpose of conducting safety investigations.

(e) National Oceanic and Atmospheric Administration Exemption.–The Administrator of the National Oceanic and Atmospheric Administration (NOAA), in consultation with the Secretary of Homeland Security, is exempt from the restriction under subsection (a) if the procurement is necessary for the purpose of meeting NOAA’s science or management objectives or operational mission.

(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 Director of the Office of Management and Budget, after consultation with the Federal Acquisition Security Council; and
(2) upon notification to–

(A) the Committee on Homeland Security and Governmental Affairs of the Senate;
(B) the Committee on Oversight and Accountability in the House of Representatives; and
(C) other appropriate congressional committees of jurisdiction.

(g) Regulations and Guidance.–Not later than 180 days after the date of the enactment of this Act, the Secretary of Homeland Security, in consultation with the Attorney General and the Secretary of Transportation, shall prescribe regulations or guidance to implement this section.

SEC. 1825. PROHIBITION ON USE OF FEDERAL FUNDS FOR PROCUREMENT AND OPERATION OF COVERED UNMANNED AIRCRAFT SYSTEMS FROM COVERED FOREIGN ENTITIES.

(a) In General.–Beginning on the date that is two 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 procure a covered unmanned aircraft system that is manufactured or assembled by a covered foreign entity; or
(2) in connection with the operation of such a drone or unmanned aircraft system.

(b) Exemption.–The Secretary of Homeland Security, the Secretary of Defense, the Secretary of State, and the Attorney General are exempt from the restriction under subsection (a) if the procurement or operation is required in the national interest of the United States and–

(1) is for the sole purposes of research, evaluation, training, testing, or analysis for electronic warfare, information warfare operations, cybersecurity, or development of unmanned aircraft system or counter-unmanned aircraft system technology;

(2) is for the sole purposes of conducting counterterrorism or counterintelligence activities, protective missions, or Federal criminal or national security investigations, including forensic examinations, or for electronic warfare, information warfare operations, cybersecurity, or development of an unmanned aircraft system or counter-unmanned aircraft system technology; or

(3) is an unmanned aircraft system that, as procured or as modified after procurement but before operational use, can no longer transfer to, or download data from, a covered foreign entity and otherwise poses no national security cybersecurity risks as determined by the exempting official.

(c) Department of Transportation and Federal Aviation Administration Exemption.–The Secretary of Transportation is exempt from the restriction under subsection (a) if the operation or procurement is deemed to support the safe, secure, or efficient operation of the National Airspace System or maintenance of public safety, including activities carried out under the Federal Aviation Administration’s Alliance for System Safety of UAS through Research Excellence (ASSURE) Center of Excellence (COE) and any other activity deemed to support the safe, secure, or efficient operation of the
National Airspace System or maintenance of public safety, as determined by the Secretary or the Secretary’s designee.

(d) National Oceanic and Atmospheric Administration Exemption.–The Administrator of the National Oceanic and 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 purpose of meeting NOAA’s science or management objectives or operational mission.

(e) 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 Director of the Office of Management and Budget, after consultation with the Federal Acquisition Security Council; and
(2) upon notification to–

(A) the Committee on Homeland Security and Governmental Affairs of the Senate;
(B) the Committee on Oversight and Accountability in the House of Representatives; and
(C) other appropriate congressional committees of jurisdiction.

(f) 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. 1826. PROHIBITION ON USE OF GOVERNMENT-ISSUED PURCHASE CARDS TO PURCHASE COVERED UNMANNED AIRCRAFT SYSTEMS FROM COVERED FOREIGN ENTITIES

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

SEC. 1827. MANAGEMENT OF EXISTING INVENTORIES OF COVERED UNMANNED AIRCRAFT SYSTEMS FROM COVERED FOREIGN ENTITIES.

(a) In General.–All executive agencies must account for existing inventories of covered unmanned aircraft systems manufactured or assembled by a covered foreign entity in their personal property accounting systems, within one year of the date of enactment of this Act, 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 covered foreign entity may be tracked at a classified level, as determined by the Secretary of Homeland Security or the Secretary’s designee.

(c) Exceptions.–The Department of Defense, the Department of Homeland Security, the Department of Justice, the Department of Transportation, and the National Oceanic and Atmospheric Administration 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.

(d) Intelligence Community Exception.–Nothing in this section shall apply to any element of the intelligence community.

SEC. 1828. 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 covered foreign entities, except that nothing in this section shall apply to any element of the intelligence community.

SEC. 1829. 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 an unmanned aircraft system–

(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 an unmanned aircraft system:

(1) Protections to ensure controlled access to an unmanned aircraft system.
(2) Protecting software, firmware, and hardware by ensuring changes to an unmanned aircraft system are properly managed, including by ensuring an unmanned aircraft system 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 an unmanned aircraft system.
(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 an unmanned aircraft system.
(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–

(1) incorporate policies to implement the exemptions contained in this subtitle; and

(2) incorporate an exemption to the policy 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, or Administrator, of the procuring department or agency;

(B) shall specify–

(i) the quantity of end items to which the waiver applies and the procurement value of those items; and
(ii) the time period over which the waiver applies, which shall not exceed three years;

(C) shall be reported to the Office of Management and Budget following issuance of such a determination; and

(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 Accountability of the House of Representatives.

SEC. 1830. STATE, LOCAL, AND TERRITORIAL LAW ENFORCEMENT AND EMERGENCY SERVICE EXEMPTION.

(a) Rule of Construction.–Nothing in this subtitle shall prevent a State, local, or territorial law enforcement or emergency service agency from procuring or operating a covered unmanned aircraft system purchased with non-Federal dollars.

(b) Continuity of Arrangements.–The Federal Government may 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 unmanned aircraft system will be purchased or operated if the agency has received approval or waiver to purchase or operate a covered unmanned aircraft system pursuant to section 1825.

SEC. 1831. STUDY.

(a) Study on the Supply Chain for Unmanned Aircraft Systems and Components.–

(1) Report required.–Not later than one year after the date of the enactment of this Act, the Under Secretary of Defense for Acquisition and Sustainment 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) Appropriate congressional committees defined.–In this section, the term “appropriate congressional committees” means the following:

(A) The Committees on Armed Services of the Senate and the House of Representatives.
(B) The Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Accountability of the House of Representatives.
(C) The Committee on Commerce, Science, and Transportation of the Senate and the Committee on Science, Space, and Technology of the House of Representatives.
(D) The Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives.
(E) The Committee on Transportation and Infrastructure of the House of Representatives.
(F) The Committee on Homeland Security of the House of Representatives.
(G) The Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives.

SEC. 1832. EXCEPTIONS.

(a) Exception for Wildfire Management Operations and Search and Rescue Operations.–The appropriate Federal agencies, in consultation with the Secretary of Homeland Security, are exempt from the procurement and operation restrictions under sections 1823, 1824, and 1825 to the extent the procurement or operation is necessary for the purpose of supporting the full range of wildfire management operations or search and rescue operations.

(b) Exception for Intelligence Activities.–Sections 1823, 1824, and 1825 shall not apply to any activity subject to the reporting requirements under title V of the National Security Act of 1947 (50 U.S.C. 3091 et seq.), any authorized intelligence activities of the United States, or any activity or procurement that supports an authorized intelligence activity.

(c) Exception for Tribal Law Enforcement or Emergency Service Agency.–Tribal law enforcement or Tribal emergency service agencies, in consultation with the Secretary of Homeland Security, are exempt
from the procurement, operation, and purchase restrictions under sections 1823, 1824, and 1825 to the extent the procurement or operation is necessary for the purpose of supporting the full range of law enforcement operations or search and rescue operations on Indian lands.

SEC. 1833. SUNSET.

Sections 1823, 1824, and 1825 shall cease to have effect on the date that is five years after the date of the enactment of this Act.

 

 

https://www.congress.gov/bill/118th-congress/house-bill/2670/text

 

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