40.202-4 Exemptions
Source: FAR 40.202-4 on acquisition.gov
FAR 40.202-4 provides narrowly defined exemptions for certain agencies to procure or operate otherwise prohibited unmanned aircraft systems when essential for national interest or specific operational needs.
Overview
FAR 40.202-4 outlines specific exemptions to the prohibitions on procuring or operating unmanned aircraft systems (UAS) manufactured or assembled by entities covered under the American Security Drone Act. This section details which federal agencies and under what circumstances they may bypass the restrictions in FAR 40.202, provided certain national interest or operational needs are met. The exemptions are tightly defined and require high-level agency approval, often in consultation with other departments, and are limited to specific purposes such as national security, public safety, research, or critical investigations.
Key Rules
- DHS, DOD, State, DOJ Exemptions
- These agencies may be exempt if the procurement or operation is in the national interest and for purposes like research, cybersecurity, counterterrorism, or if the UAS is modified to eliminate security risks.
- Department of Transportation Exemption
- The Secretary of Transportation can exempt procurements or operations that support the National Air Space System or public safety.
- NTSB Exemption
- The NTSB, with DHS consultation, may exempt procurements or operations necessary for safety investigations.
- NOAA Exemption
- The NOAA Administrator, with DHS consultation, may exempt procurements or operations for NOAA’s science, management, or operational missions.
Responsibilities
- Contracting Officers: Must verify and document that any exemption is properly authorized and meets the specified criteria before proceeding with procurement or operation.
- Contractors: Must ensure their activities fall within the scope of an approved exemption and comply with any agency-specific procedures.
- Agencies: Must provide high-level approval, ensure proper consultation, and maintain documentation supporting the exemption.
Practical Implications
- This section allows critical government missions to proceed even when UAS from covered foreign entities are otherwise prohibited, but only under strict, documented circumstances. Contractors and agencies must be diligent in confirming and documenting exemption eligibility to avoid compliance violations. Common pitfalls include failing to obtain proper approvals or misapplying the exemption criteria.
The prohibitions in 40.202 do not apply to the following (see sections 1823, 1824, and 1825 of Pub. L. 118-31, http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section3901&num=0&edition=prelim" target="_blank">41 U.S.C. 3901 note prec.):
(a) Department of Homeland Security, Department of Defense, Department of State, and the Department of Justice exemptions. The Secretary of Homeland Security, the Secretary of Defense, the Secretary of State, and the Attorney General are exempt from the prohibitions in 40.202 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, an American Security Drone Act-covered foreign entity and otherwise poses no national security cybersecurity risks as determined by the exempting official, as described in agency procedures.
(b) Department of Transportation exemption. The Secretary of Transportation is exempt from the prohibitions in 40.202 if the operation or procurement is deemed to support the safe, secure, or efficient operation of the National Air Space System or maintenance of public safety.
(c) National Transportation Safety Board exemption. The National Transportation Safety Board, in consultation with the Secretary of Homeland Security, is exempt from the prohibitions, in 40.202 if the operation or procurement is necessary for the sole purpose of conducting safety investigations.
(d) National Oceanic and Atmospheric Administration (NOAA) exemption. The Administrator of NOAA, in consultation with the Secretary of Homeland Security, is exempt from the prohibitions of 40.202, if the operation or procurement for the purposes of meeting NOAA’s science or management objectives or operational mission.