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Federal Register / Vol. 86, No. 163 / Thursday, August 26, 2021 / Rules and Regulations 8 Capacity of the source or the U.S.
Government to mitigate risks;
9 Credibility of and confidence in available information used for assessment of risk associated with proceeding, with using alternatives, and/or with enacting mitigation efforts;
10 Any transmission of information or data by a covered article to a country outside of the United States; and 11 Any other information that would factor into an assessment of supply chain risk, including any impact to agency functions, and other information as the FASC deems appropriate.
c Foreign Ownership. Nothing in this section shall be construed to authorize the issuance of an exclusion or removal order based solely on the fact of the foreign ownership of a potential procurement source that is otherwise qualified to enter into procurement contracts with the Federal Government.
d Due Diligence. As part of the analysis performed pursuant to paragraph b of this section, the FASC
will conduct appropriate due diligence.
Such due diligence may include, but need not be limited to, the following actions:
1 Reviewing any information the FASC considers appropriate; and 2 Assessing the reliability of the information considered.
e Consultation with NIST. NIST will participate in FASC activities as a member and will advise the FASC on NIST standards and guidelines issued under 40 U.S.C. 11331.

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2011.301

Recommendation.

a Content of recommendation. The FASC shall include the following in any recommendation for the issuance of an exclusion or removal order made to the Secretary of Homeland Security, Secretary of Defense, and/or Director of National Intelligence:
1 Information necessary to positively identify any source or covered article recommended for exclusion or removal;
2 Information regarding the scope and applicability of the recommended exclusion or removal order, including whether the order should apply to all executive agencies or a subset of executive agencies;
3 A summary of the supply chain risk assessment reviewed or conducted in support of the recommended exclusion or removal order, including significant conflicting or contrary information, if any;
4 A summary of the basis for the recommendation, including a discussion of less intrusive measures that were considered and why such measures were not reasonably available to reduce supply chain risk;

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5 A description of the actions necessary to implement the recommended exclusion or removal order; and, 6 Where practicable, in the FASCs sole and unreviewable discretion, a description of the mitigation steps that could be taken by the source that may result in the FASCs rescission of the recommendation.
b Information sharing in the absence of a recommendation: If the FASC
decides not to issue a recommendation, information received and analyzed pursuant to the procedures in this section may be shared, as appropriate, in accordance with subpart B of this part.
2011.302 Notice of recommendation to source and opportunity to respond.

a Notice to source. The FASC shall provide a notice of its recommendation to any source named in the recommendation.
b Content of notice. The notice under paragraph a of this section shall advise the source:
1 That a recommendation has been made;
2 Of the criteria the FASC relied upon and, to the extent consistent with national security and law enforcement interests, the information that forms the basis for the recommendation;
3 That, within 30 days after receipt of the notice, the source may submit information and argument in opposition to the recommendation;
4 Of the procedures governing the review and possible issuance of an exclusion or removal order; and 5 Where practicable, in the FASCs sole and unreviewable discretion, a description of the mitigation steps that could be taken by the source that may result in the FASC rescinding the recommendation.
c Submission of response by source and potential rescission of recommendation. Subject to any applicable procedures or processes developed by the FASC, and in accordance with any instructions provided to the source pursuant to paragraph b of this section, a source may submit to the ISA information or argument in opposition to a FASC
recommendation. If a source submits information or argument in opposition:
1 The ISA will convey the sources submission to the FASC and any appropriate constituent bodies and to the Secretary of Homeland Security, the Secretary of Defense, and the Director of National Intelligence.
2 Upon receipt of such information or argument in opposition, the FASC
may rescind the recommendation if the
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FASC, consistent with the sole and unreviewable discretion provided in paragraph b5 of this section:
i Determines that the source has undertaken sufficient mitigation to reduce supply chain risk to an acceptable level; or ii Decides that other grounds justify rescission.
3 In the event that the FASC
rescinds its recommendation, the ISA
will communicate that decision to the source. The ISA will notify Secretary of Homeland Security, the Secretary of Defense, and the Director of National Intelligence of the rescission, and provide those officials with a summary of the FASCs reasoning.
d Confidentiality of notice issued to source. U.S. Government personnel shall:
1 Keep confidential and not make available outside of the executive branch, except to the extent required by law, any notice issued to a source under paragraph a of this section until an exclusion order or removal order is issued and the source has been notified;
and 2 Keep confidential and not make available outside of the executive branch, except to the extent required by law, any notice issued to a source under paragraph a of this section if the FASC
rescinds the associated recommendation or the Secretary of Homeland Security, Secretary of Defense, and Director of National Intelligence, as applicable, decide not to issue the recommended order.
e Confidentiality of information submitted by source. Information not otherwise publicly or commercially available that is submitted to the FASC
by a source pursuant to paragraph c of this section and marked Confidential and Not to Be Publicly Disclosed will not be released to the public, including pursuant to a request under 5 U.S.C.
552, except to the extent required by law. That general rule notwithstanding, such information may be released as provided in 2011.201d2.
2011.303
activities.

Issuance of orders and related
a Consideration of recommendation and issuance of orders. The Secretary of Homeland Security, the Secretary of Defense, and the Director of National Intelligence shall each review the FASCs recommendation, any accompanying information and materials provided pursuant to 201
1.301, and any information submitted by a source pursuant to 2011.302, and determine whether to issue an exclusion or removal order based upon the recommendation.

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