40.202-5 Exceptions
Source: FAR 40.202-5 on acquisition.gov
FAR 40.202-5 provides narrowly defined exceptions to UAS procurement prohibitions for critical federal, intelligence, and tribal operations, but requires proper authorization and consultation.
Overview
FAR 40.202-5 outlines specific exceptions to the prohibitions on procuring or operating unmanned aircraft systems (UAS) manufactured or assembled by covered foreign entities, as established in FAR 40.202. This section clarifies that certain federal, intelligence, and tribal operations are exempt from these restrictions under defined circumstances. The exceptions are designed to ensure that critical operations—such as wildfire management, search and rescue, intelligence activities, and tribal law enforcement—are not hindered by the general prohibition when operational necessity is determined and proper consultation occurs.
Key Rules
- Wildfire Management and Search and Rescue Exception
- Federal agencies may procure or operate covered UAS if an authorized official, in consultation with the Secretary of Homeland Security, determines it is necessary for wildfire management or search and rescue operations.
- Intelligence Activities Exception
- The prohibitions do not apply to activities subject to the National Security Act’s reporting requirements, authorized intelligence activities, or procurements supporting such activities.
- Tribal Law Enforcement or Emergency Services Exception
- Tribal law enforcement or emergency service agencies may procure or operate covered UAS for law enforcement or search and rescue on Indian lands, with proper authorization and consultation.
Responsibilities
- Contracting Officers: Must verify if an exception applies before proceeding with procurement of covered UAS and ensure required determinations and consultations are documented.
- Contractors: Should confirm the applicability of exceptions and maintain documentation supporting the exception.
- Agencies: Must ensure authorized officials make determinations and consult with the Secretary of Homeland Security as required.
Practical Implications
- This section ensures that critical operations are not delayed due to UAS procurement restrictions, provided proper procedures are followed.
- Agencies and contractors must carefully document the basis for any exception to avoid compliance issues.
- Failure to follow the required consultation and determination process may result in unauthorized procurement or operation of prohibited UAS.
The prohibitions in this section do not apply to the following (section 1832 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) Wildfire management operations and search and rescue operations exception. The prohibitions in section 40.202 do not apply to an appropriate Federal agency to the extent that an authorized official at the agency, in consultation with the Secretary of Homeland Security, determines that the procurement or operation is necessary for the purposes of supporting the full range of wildfire management operations or search and rescue operations.
(b) Intelligence activities exception. The prohibitions of 40.202 do not apply to any activity subject to the reporting requirements under title V of the National Security Act of 1947 (https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title50-section3091&num=0&edition=prelim" target="_blank">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) Tribal law enforcement or emergency service agency exception. The prohibitions in 40.202 do not apply to Tribal law enforcement or Tribal emergency service agencies to the extent that an authorized official at the agency, in consultation with the Secretary of Homeland Security, determines that the procurement or operation is necessary for the purposes of supporting the full range of law enforcement operations or search and rescue operations on Indian lands.