Examining the US DoD's Updated 2023 Rules Concerning Unmanned Aircraft Systems

August 1, 2023

Summary of the FY23 and FY20 NDAA rules concerning unmanned aerial systems and components.

In December of 2022, the US Congress passed the FY23 National Defense Authorization Act (NDAA) one in a long series of annual NDAA laws which lays out the governments rules and budgets for the US Department of Defense in the 2023 fiscal year. Among many other details, this bill made some modifications to the DoD's rules concerning procuring and using foreign made unmanned aircraft systems (UAS or colloquially "drones").

The FY23 legislation contains "Section 817", which modifies "Section 848" from the FY20 legislation. These sections lay out guidelines that prohibit the use of UAS systems and certain components from designated countries. In order to meet these guidelines and bring the latest robotics hardware at the most competitive price, GreenSight designs and manufactures our UAS and underlying components in the USA. We develop our own flight controllers, cameras, mission computers and radios, in addition to complete drones and other robots!

We've taken the liberty of preparing an edited version of the 2020 Section 848 which reflects the 2023 Section 817 changes here in its entirety for reference, as there are no internet references which currently provide this! We often refer back to this legislation and hope you find this useful!

SEC. 848. PROHIBITION ON OPERATION OR PROCUREMENT OF FOREIGN-MADE UNMANNED AIRCRAFT SYSTEMS. (MODIFIED TO REFLECT SEC. 817 CHANGES)

(a) In General. — The Secretary of Defense may not operate or enter into or renew a contract for the procurement of:

  (1) a covered unmanned aircraft system that:

    (A) is manufactured in a covered foreign country or by an entity domiciled in a covered foreign country;

    (B) uses flight controllers, radios, data transmission devices, cameras, or gimbals manufactured in a covered foreign country or by an entity domiciled in a covered foreign country;    

    (C) uses a ground control system or operating software developed in a covered foreign country or by an entity domiciled in a covered foreign country; or

    (D) uses network connectivity or data storage located in or administered by an entity domiciled in a covered foreign country; or

  (2) a system manufactured in a covered foreign country or by an entity domiciled in a covered foreign country for the detection or identification of covered unmanned aircraft systems.

(b) Prohibition on Certain Contracts. — The Secretary of Defense may not enter into a contract (or extend or renew a contract) on or after October 1, 2024, with an entity that operates (as determined by the Secretary or the Secretary's designee) equipment from a covered unmanned aircraft system company in the performance of a Department of Defense contract.

(c) Exemption. — The Secretary of Defense is exempt from any restrictions under subsection (a) or (b) if the operation, procurement, or contracting action is for the purposes of:

  (1) Counter-UAS surrogate testing and training; or

  (2) intelligence, electronic warfare, and information warfare operations, testing, analysis, and training.

(d) Waiver. — The Secretary of Defense (or the Secretary's designee) may waive any restrictions under subsections (a) or (b) on a case-by-case basis by certifying in writing to the congressional defense committees that the operation, procurement, or contracting action is required in the national interest of the United States.

(e) Definitions. — In this section:

  (1) Covered foreign country. — The term "covered foreign country" means any of the following:

    (A) the People's Republic of China.

    (B) The Russian Federation.

    (C) The Islamic Republic of Iran.

    (D) The Democratic People's Republic of Korea.

  (2) Covered unmanned aircraft system. — The term "covered unmanned aircraft system" means an unmanned aircraft system and any related services and equipment.

  (3) Covered unmanned aircraft system company. — The term "covered unmanned aircraft system company" means any of the following:

   (A) Da-Jiang Innovations (or any subsidiary or affiliate of Da-Jiang Innovations).

   (B) Any entity that produces or provides unmanned aircraft systems and is included on Consolidated Screening List maintained by the International Trade Administration of the Department of Commerce.

    (C) Any entity that produces or provides unmanned aircraft systems and:- (i) is domiciled in a covered foreign country; or- (ii) is subject to unmitigated foreign ownership, control or influence by a covered foreign country, as determined by the Secretary of Defense unmitigated foreign ownership, control or influence in accordance with the National Industrial Security Program (or any successor to such program).

UNIQUE ADDITION FROM: SEC. 817. MODIFICATION TO PROHIBITION ON OPERATION OR PROCUREMENT OF FOREIGN-MADE UNMANNED AIRCRAFT SYSTEMS.

(b) Policy Required. — Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall issue policy to:

  (1) implement the requirements of section 848 of the National Defense Authorization Act for Fiscal Year 2020 (Public Law 116-92; 10 U.S.C. 4871 note), as amended by this section, including by establishing a due diligence process for the Department of Defense to make determinations required by subsection (b) of such section 848 (as amended by this section); and

  (2) establish an appeal process for any offerors or awardees with which the Secretary has not entered into a contract or has not extended or renewed a contract pursuant to subsection (b) of such section 848 (as amended by this section).

Author

James Peverill

Chief Executive Officer

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