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Federal Register / Vol. 86, No. 163 / Thursday, August 26, 2021 / Rules and Regulations Paragraph e of this section of the final rule has been added to describe the protection that will be afforded to voluntary submissions by non-Federal entities.
C. Changes to Subpart C
1. 2011.300Evaluation of Sources and Covered Articles Paragraph a was edited for clarity and brevity.
The heading of paragraph b was changed to Relevant factors from Criteria. The list appearing in that paragraph has been modified to clarify or adjust the description of some factors and to include as a factor the user environment in which a covered article is used or installed.
The language in paragraph c of the interim rule was shifted to paragraph d and replaced with a statement providing that nothing in this section shall be construed to authorize the issuance of a 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.
Paragraph d3 interim rule paragraph c3 was removed as duplicative of paragraph d1.
Paragraph e of the interim rule was broken into two separate paragraphs and moved into 2011.301 to simplify the structure of the final rule.
2. 2011.301Recommendation Paragraph e of interim rule 201.301
has been moved to this section as paragraphs a and b. Minor clarifying changes were made to the language of those paragraphs.

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3. 2011.302Notice of Recommendation To Source and Opportunity To Respond The language included in paragraphs c and d of interim rule 201.302 was relocated to paragraphs d and e in this section of the final rule. A new provision was added as paragraph c to clarify how the FASC may rescind a recommendation upon consideration of a sources response in opposition to a notice of recommendation. Paragraph d of the interim rule, now located in paragraph e of the final rule, was modified so that the protections afforded under that provision are the same as those afforded with respect to information submitted voluntarily by non-Federal entities.
4. 2011.303Issuance of Orders and Related Activities Various simplifying or clarifying edits were made to the provisions of interim rule 201.303, and the content of that
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interim rule section was also reorganized into a more logical paragraph structure for the final rule.
The interim rules description of the authority of the Secretary of Homeland Security, the Secretary of Defense, and the Director of National Intelligence was modified to mirror the underlying statutory language more closely and make clear that the authority to issue exclusion and removal orders is discretionary.
5. 2011.304Executive Agency Compliance With Exclusion and Removal Orders The final rule includes minor technical corrections and clarifications that were made to the provisions of this section of the interim rule. Paragraph a2 no longer requires agencies to obtain FASC approval before publicly releasing an exclusion or removal order.
Instead, the final rule requires that agencies comply with any dissemination or other controls placed upon an exclusion or removal order by the issuing official.
Paragraph b of the final rule includes new language specifying certain requirements to be met by agencies requesting to be excepted from the provisions of an exclusion or removal order. Those agencies must submit their request in writing to the official who issued the order and provide specified information, including a compelling justification for the waiver and a description of any forms of risk mitigation to be undertaken if the waiver is granted.
IV. Comments and Responses The FASC received six sets of comments from the public in response to the publication of the interim rule.
Relevant comments from those submissions are addressed below in connection with the rule subpart to which they relate or, if they do not relate to a particular subpart, under the heading General Comments. Because no comments related particularly to subpart A of the interim rule, no heading is provided for that subpart in this section for Comments and Responses.
A. Interim Rule Subpart B
Subpart B establishes the role of the FASCs information sharing agency ISA, provides for an interagency Task Force to support the FASC, prescribes mandatory information-sharing criteria for Federal agencies, and outlines requirements for marking, handling, and disseminating protected supply chain risk information. Multiple commenters asked for further clarification of the
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protections that would be afforded to non-Federal entities who voluntarily share information with the FASC. In response to these comments, 201
1.201e was added to the final rule to describe the protection that will be afforded to information that is submitted to the FASC by such nonFederal entities NFEs and that is not otherwise publicly or commercially available. If such information is marked by the submitting NFE with the legend, Confidential and Not to Be Publicly Disclosed, the FASC will not release the marked material to the public, except to the extent required by law.
Regardless of any protection offered by that general rule, 2011.201e2
makes clear that the FASC retains broad discretion to disclose information submitted by NFEs to appropriate recipients in a range of circumstances.
The FASC recognizes that its retention of such broad discretion may dissuade some NFEs from submitting sensitive information. At this time, however, the FASC has chosen to prioritize greater sharing of information in appropriate circumstances over the possibility of receiving more supply chain risk information from NFEs. If the FASC determines over time that the Federal Governments interests would be better served by a different weighing of priorities, the FASC may revise the rule accordingly.
One commenter asked whether NFEs who shared information with the FASC
would receive protection under the Cybersecurity Information Sharing Act of 2015 CISA 2015, Public Law 114
113, div. N. The final rule does not address that issue. The FASC is continuing to coordinate with FASC
member agencies to consider any intersections between CISA 2015 and the FASCs authorities and may, as appropriate, provide further guidance to stakeholders at a future date.
Several commenters also suggested that the FASC should afford protections to NFEs whose information might be used to support the issuance of an exclusion or removal order. The final rule provides for no such protections.
The FASC lacks authority to obviate, restrict, or otherwise alter the potential legal liability of one private party to another. And other, more indirect forms of protectionsuch as an automatic guarantee of confidentiality or protection from public disclosure of the identity of providers of information could decrease the quality of information received from NFEs by removing disincentives that would otherwise deter the submission of inaccurate or misleading information.
Shielding the identity of NFEs who
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