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Federal Register / Vol. 86, No. 11 / Tuesday, January 19, 2021 / Rules and Regulations
infrastructure by Presidential Policy Directive 21Critical Infrastructure Security and Resilience, including any subsectors or subsequently designated sectors. As explained below, the Department has also clarified that transactions involving certain sensitive personal data, regardless of whether they involve a critical infrastructure sector, will be considered ICTS
Transactions for the purposes of the rule.
7.3Exclusions Many commenters sought clarity about the relationship of this rule to the rules relating to CFIUSs review of transactions. In response, the Department is clarifying that this rule does not apply to an ICTS Transaction that CFIUS is actively reviewing, or has reviewed, as a covered transaction or covered real estate transaction or as part of such a transaction under section 721
of the Defense Production Act of 1950, as amended, and its implementing regulations. Note, however, that a transaction involving ICTS that is separate from, and subsequent to, a transaction for which CFIUS has concluded action under section 721 may be subject to review under this rule, if and to the extent that such transactions are separate from the transaction reviewed by CFIUS. Parties should therefore be aware that CFIUS review related to a particular ICTS, by itself, does not present a safe harbor for future transactions involving the same ICTS
that may present undue or unnecessary risks as determined by the Department.

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7.3Exclusions of ICTS Transactions Commenters requested categorical exclusions across many sectors, industries, functions, and nations. The Secretary recognizes the need to be judicious and deliberate in deciding what types of ICTS Transactions pose an undue or unacceptable risk. To that end, the rule excludes from the scope of the rule those transactions that involve the acquisition of ICTS items by a United States person as a party to a transaction authorized under a U.S. Governmentindustrial security program, because they are subject to continuous security oversight by, and contractual obligations to, other Federal agencies.
7.3Retroactivity of Rules Applicability Some commenters argued that the rule should not apply to transactions that took place prior to May 15, 2019, when the Executive Order was issued.
Other commenters advocated for the complete elimination of the proposed rules retroactivity provisions, and
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proposed the Department only evaluate potential transactions prospectively.
Other commenters proposed grandfathering some ICTS equipment for a predetermined duration, potentially up to 10 years. In reviewing these comments and the proposed rule, the Department determined that the temporal limits of the rules application could be clarified.
In response to these comments, the Department has clarified, in section 7.3a3, that the rule applies to an ICTS
Transactions that is initiated, pending, or completed on or after January 19, 2021. Further, any act or service with respect to an ICTS Transaction, such as execution of any provision of a managed services contract or installation of software updates, is an ICTS
Transaction on the date that the service or update is provided. Thus, if a person that is owned by, controlled by, or subject to the jurisdiction or direction of a foreign adversary engages in an ICTS
Transaction with a person subject to the jurisdiction of the United States on or after January 19, 2021, even if the service was provided pursuant to a contract initially entered into prior to January 19, 2021, that transaction is an ICTS Transaction that may be reviewed under this rule. The service is a new transaction separate from the underlying contract that will be subject to review by the Secretary.
7.4 Determination of Foreign Adversaries As noted above, many commenters requested the Department identify those countries that it considers to be foreign adversaries. Naming these countries, the commenters argued, would facilitate global trade by allowing U.S. businesses to assess the risks of certain types of ICTS Transactions from certain countries. It would also allow companies to adjust their supply chains to avoid the risks in such transactions, including the risk of an ICTS
Transaction being reviewed, and possibly prohibited or modified, under this rule. Several commenters also noted that defining foreign adversaries would help determine, and possibly reduce, the adverse economic impact the rule may have on businesses through better business planning.
In response to these comments, the Department reconsidered its prior determination not to identify specific foreign adversaries. The Department has determined that it is beneficial for the clarity of the rule, as well as for persons with ICTS Transactions that may be subject to the rule, to identify certain foreign governments and foreign non-government persons that are
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considered, solely for the purposes of the Executive Order, this rule, and any subsequent rules, to be foreign adversaries. The list of foreign governments and foreign nongovernment persons this rule identifies as being foreign adversaries are: The Peoples Republic of China, including the Hong Kong Special Administrative Region China; the Republic of Cuba Cuba; the Islamic Republic of Iran Iran; the Democratic Peoples Republic of Korea North Korea; the Russian Federation Russia; and Venezuelan politician Nicolas Maduro Maduro Regime. The Secretary identified these foreign adversaries because they have engaged in a long-term pattern or serious instances of conduct significantly adverse to the national security of the United States or security and safety of United States persons, including taking actions and enacting policies that are inimical to the interests of the United States.
The determination to identify these foreign adversaries is based on multiple sources, including threat assessments and reports from the U.S.
Intelligence Community, the U.S.
Departments of Justice, State, and Homeland Security, and other relevant sources. Additionally, the Secretary will periodically review this list in consultation with appropriate agency heads and may add to, subtract from, supplement, or otherwise amend the list. Accordingly, this list may be revised at any time in the future. Any such changes will be announced in the Federal Register.
It is important to note that the list is solely for the purposes of the Executive Order, this rule, and any subsequent rules and does not reflect a determination by the United States about the nature of such foreign governments and foreign nongovernment persons for any purposes other than that ICTS Transactions with persons as defined in this rule owned by, controlled by, or subject to the jurisdiction or direction of an identified foreign adversary may pose an undue or unacceptable risk. Further, the rule states that any amendment to this list will apply to any ICTS Transaction that is initiated, pending, or completed on or after the date that the list is amended.
7.5 Effect on Other Laws Many commenters suggested that this rule should not apply if overlapping and existing U.S. authorities are in force, referencing in particular existing national security regulatory regimes.
Specifically, commenters pointed to CFIUS; authorities under various National Defense Authorization Acts;

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