The American Drone Security Act: The Sequel
The original American Drone Security Act (ADSA) proposal had a significant impact on the drone industry, although it was not passed. However, the ADSA has now been reintroduced – with a few changes. Guest author Dawn Zoldi, drone law expert and CEO of P3 Tech Consulting, gives us an in-depth look at this version and explains what’s new, what’s the same, and why it’s important for the drone industry to watch.
By Dawn MK Zoldi, guest author
In the cinema, the sequel often doesn’t come close to the original. Rocky II didn’t quite have the same punch as Rocky. Senator Rick Scott (R-FL) just reinstated the American Drone Security Act (ADSA) in the 117th Congress and is essentially a remake of his original Senate Act 2502 with bonus features. Like Balboa’s right hook, he might be a bit of a wallop to some.
This latest iteration largely follows its predecessor. With limited exceptions, the government would prohibit federal funds for purchase or operation from purchasing, operating, distributing, or using government-issued purchased cards to purchase “covered unmanned aerial vehicle systems (UAS) from covered foreign companies”.
Words are important – and these terms have very specific and nuanced meanings. The simple one is “covered UAS”. It has the same meaning as in Federal Aviation Authority laws: “The unmanned aerial vehicle and its associated elements (including communications links and the components that control the unmanned aerial vehicle) that the operator needs to operate safely and efficiently in the national airspace system. “(49 USC 44801).
The term “covered foreign entity” is a little more complicated. It is a company that is on a list created and maintained by the Federal Acquisition Security Council (FASC). This differs from last year’s proposal in that this bill did not mention the FASC at all.
For the uninitiated, the Federal Acquisition Supply Chain Security Act (FASCSA) of 2018 established the FASC as the Interagency Council of the executive to coordinate the executive, exchange information about the supply chain, and take action to manage supply chain risks in the areas Improve information and communication technology and services.
A senior official from the Office of Administration and Budget (OMB) heads the council, which is made up of representatives from the General Services Administration. Department of Homeland Security (DHS) and its Cybersecurity and Infrastructure Security Agency (CISA); Office of the Director of the National Intelligence Service (ODNI) and its National Counter-Espionage and Security Center; Ministry of Justice and Federal Investigation Office; Department of Defense (DoD) and its National Security Agency; Commerce Department and its National Institute of Standards and Technology and “any other executive agency or agency component as determined by the FASC Chair”.
OMB published a provisional final rule on the FASC effective September 1, 2020, which, however, still allowed public comments until November 2, 2020. A whopping six comments were submitted (compare that to 53,000 for the Federal Aviation Administration’s remote identification rule!). No updates or actions have been carried out since then. So let’s assume that this is a good solution.
The rule is created by the Information Sharing Agency (ISA) under the direction of CISA. The ISA standardizes processes and procedures for the transmission and dissemination of information on the supply chain to the technical expert group of the FASC, the Task Force Supply Chain Risk Management (SCRM). This task force conducts risk assessments and recommends, among other things, that DHS, DoD, and ODNI issue “exclusion orders” to exclude sources or “covered items” from future federal procurement efforts. “Articles covered” include, but are not limited to, “Hardware, systems, devices, software, or services that contain embedded or random information technology” (think of drones). The rule describes certain review criteria and processes that are too lengthy to be addressed here.
Now back to our regular program. As noted above, the American Drone Security Act (ADSA), which contains various prohibitions relating to “Covered Foreign Companies,” defines this term as being on a list developed and maintained by the FASC. The FASC rule does not speak of a specific “list of covered companies” (nor does the FASCSA). However, it can be implied that such a list will be maintained as part of the Task Force’s recommendation to DHS, DoD and / or ODNI for their various assignments. In the ADSA, Congress (outside of FASCSA) essentially instructs that the FASC list contains entities that:
- On the Consolidated Screening List (CSL). This is a list of parties that Commerce has restrictions on certain exports, re-exports, or transfers of items. (I previously looked at export controls in Inside Unmanned Systems magazine.) For example, a search for the name “DJI” on this handy CLS search engine will get the latest blacklist information.
- Directed abroad. Any entity subject to an extrajudicial order by a foreign government as determined by the Minister of Homeland Security. Think: foreign government directed or sponsored.
- Classified as a national security risk. Any company identified by the heads of DHS in coordination with the ODNI and the Ministry of Defense poses a national security risk.
- Based in China or under the control of the PRC. Any entity located in the People’s Republic of China or under the influence or control of the Government of the People’s Republic of China or the Communist Party of the People’s Republic of China as determined by the DHS Secretary.
- Subsidiaries and affiliates of the above.
In the 2020 version, the definition of “covered unit” included “a covered unit designated by the Minister of Commerce”. This is gone now, probably as housekeeping, as Commerce controls the CSL and is a key member of the FASC.
Given these key definitions, the American Drone Security Act specifically prohibits authorities from:
- Purchase of UAS and related elements manufactured or assembled by such Covered Foreign Companies (Section 3). Associated elements are communication links and components that control the UA. What is new is that the FASC, in coordination with the Minister of Transport, will compile and update a list of these related items.
- Operation of Covered UAS manufactured or assembled by a Covered Foreign Company (Section 4). This also applies to federal entrepreneurs. It has an implementation horizon of 2 years from its entry into force. Finally, the DHS must submit the relevant regulations within 6 months.
- Use of federal funds for federal premiums (grants, cooperation agreements, contracts) to purchase or operate these drones or counter-UAS technology (Section 5). This also has a 2-year horizon.
- Use the Government Purchase Card to buy it. Now and point.
There are four common exceptions that apply to Sections 3 through 5 below. The last three are new:
- DHS, DoD and the Attorney General R & E / T & E.. These people may purchase and operate the covered drones for research, evaluation, training, test or analysis in the areas of electronic warfare, info warfare, UAS / Counter-UAS technology development, counterterrorsim or counterintel, federal crime or national security investigations only, “As in national US interest required “
- FAA Alliance for System Security of UAS through Research Excellence (ASSURE) Center of Excellence for R & D / T & D of UAS. As long as SecTrans consults the DHS, ASSURE can buy and operate covered drones for research purposes etc.
- National Transportation Safety Board (NTSB) safety investigations. Buying and using covered drones for safety investigations only makes sense, as long as NTSB contacts DHS first.
- National Oceanic Atmospheric Administration (NOAA) for marine / atmospheric research or management. Another new one, NOAA, must also consult with the DHS.
Section 5 on federal awards contains an additional exception. If the contract, grant or collaboration agreement was awarded prior to the entry into force of the law, you’re good to go.
A waiver of an exemption is also possible for the same sections. Such a waiver must be made on the level of the agency manager with the approval of the DHS or the SecDef on a case-by-case basis and after notification of the Congress.
The proposal also includes inventory, reporting requirements, the creation of procurement guidelines for the entire UAS, and an independent study that essentially covers the viability of the US drone industry (which does not need to be obtained until 3 years after it comes into effect). These are also important, but also the same as before. The real bowels of the law are set forth above.
Will this last all 9 rounds? Unclear, but this one is proposed by the same two-party group (co-sponsors Senators Chris Murphy (D-CT), Marco Rubio (R-FL), Richard Blumenthal (D-CT), Marsha Blackburn (R-TN), Tom Cotton (R-AR) and Josh Hawley (R-MO)) who nearly covered the distance in 2020. On the other hand, the chances of winning last year were good and we know how that turned out. So grab your seats and get ready to rumble!
Dawn MK Zoldi (Colonel, USAF, retired) is a licensed attorney with 28 years of active military and federal service in the Air Force Department. She is an internationally recognized expert in the law and politics of unmanned aircraft systems, a columnist for Law-Tech Connect ™ for Inside Unmanned Systems magazine, recipient of the Woman to Watch in UAS (Leadership) Award 2019 and CEO of P3 Tech Consulting LLC. Please see their website for more information.