Executive Order on “Adversary” Drones Stops Short of Bans, Requires Gov’t Reports and Analysis; Sets New 2209 Deadline

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In March of 2020, we blogged about a draft Executive Order (EO) on certain foreign made drones (with a focus on those made in China) that would have not only banned essentially all U.S. government procurement and operation of covered unmanned aircraft systems (UAS), but would have also barred anyone from operating covered UAS over federally managed lands. That EO was never issued, but yesterday the Trump Administration did release an Executive Order  on foreign UAS that is far more modest in its effect—it essentially sets in motion a government-wide security analysis. 

As issued, the EO first directs the heads of government agencies to review their respective authorities and determine whether they can legally cease directly or indirectly procuring covered UAS, providing federal assistance for procuring covered UAS (such as through grants), entering into a contract for covered UAS, or otherwise providing federal funding for procurement of a covered UAS, and report those findings to OMB. Notably, these reviews do not extent to the operation of covered UAS.

The EO also requires, within 60 days, that the heads of all agencies submit a report to the Director of National Intelligence (ODNI) and the Director of the Office of Science and Technology Policy (OSTP) covering their use of UAS “that are manufactured by foreign adversaries or have significant components that are manufactured by foreign adversaries.”

Within 180 days, the Order requires the ODNI (in consultation with the Secretaries of Defense and Homeland Security, the Attorney General, the Director of OSTP, and other executive agency heads “as appropriate”) to review the two above reports and provide a report to the President “assessing the security risks posed by the existing Federal UAS fleet and outlining potential steps that could be taken to mitigate these risks, including, if warranted, discontinuing all Federal use of covered UAS and the expeditious removal of UAS from Federal service.”

Separately, the EO sets yet another deadline for the Federal Aviation Administration (FAA) to initiate its rulemaking under Section 2209. As we explained nearly three years ago, Section 2209 was part of the FAA Extension, Safety, and Security Act of 2016, and required the FAA to initiate a rulemaking to consider restrictions on operation of all UAS over “fixed site facilities,” or what has commonly been called “critical infrastructure.” Despite statutory deadlines set in 2016 and then again in 2018, the FAA has still not begun this rulemaking; it has slipped behind other, higher priority rulemakings, such as Remote ID and operations over people. Previous attempts to curb government use of foreign-made UAS, including the draft March 2020 Executive Order and the Drone Safety and Security Act proposed on the Hill earlier this year, have not drawn a connection between this objective and Section 2209. It remains to be seen whether this new deadline will finally be enough to get this rulemaking underway, particularly given that the incoming Biden Administration will set its own priorities for the Department of Transportation and the FAA. However, it’s worth noting that the deadline set by the EO for releasing an NPRM—270 days from the date of issuance—is precisely in line with the FAA’s current targeted release date for the item of October 2021.

Finally, the EO draws an interesting line to identify the UAS that are the target of the government-wide analysis, focusing on domicile of the producer and not where the product is manufactured. The term “adversary country” is defined as North Korea, Russia, China, and “any other foreign nation, foreign area, or foreign non-government entity” that the Secretary of Commerce designates as “engaging in long-term patterns or serious instances of conduct significantly adverse to the national or economic security of the United States.” And “covered UAS” means UAS assembled or manufactured by an entity domiciled in those countries, or that uses operating software (including cell phone or tablet applications, but not cell phone or tablet operating systems) developed, in whole or in part, by an entity domiciled in an adversary country, or that “uses network connectivity or data storage located outside the United States, or administered by any entity domiciled in an adversary country,” or that “contains hardware and software components used for transmitting photographs, videos, location information, flight paths, or any other data collected by the UAS manufactured by an entity domiciled in an adversary country.” (Emphasis added). Notably, these definitions do not apply to UAS that are simply manufactured in adversary countries by entities that are not domiciled in those countries.

Drone industry watchers will undoubtedly be tracking the reports resulting from this EO, particularly as it informs or limits procurement of UAS from certain countries. It will also be interesting in the coming months to learn more about the incoming Biden administration’s positions on federal use of UAS and strategies for combatting the threat of potentially insecure equipment. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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