Voglio sapere a riguardo di…

khammond on DSKJM1Z7X2PROD with RULES

Federal Register / Vol. 86, No. 11 / Tuesday, January 19, 2021 / Rules and Regulations the Export Administration Regulations;
the Committee for the Assessment of Foreign Participation in the United States Telecommunications Services Sector i.e., Team Telecom; and other programs under the authority of the Federal Communications Commission, the Department of Homeland Security, and the Office of the Director of National Intelligence. Other commenters recommended exempting equipment provided by companies involved in mitigation agreements with the Federal Government.
This rule does not alter or affect any of these existing authorities; it is intended to complement, not supplant, these existing regimes. However, the Department understands the need for regulatory and business certainty, and in the interest of not duplicating efforts by other parts of the U.S. Federal government, the rule states that it does not apply to ICTS Transactions 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. However, this exclusion in no way precludes a review of a subsequent ICTS Transaction if distinct from the previously CFIUS-reviewed transaction or new information is discovered.
Other provisions of the rule provide additional means of ensuring that any action taken by the Secretary neither conflicts with nor frustrates the purposes of other existing laws, regulations or processes. Thus, there are two separate points during the review process at which the Secretary is expressly required to consult with appropriate agency heads: before making an initial determination that the transactions is an ICTS Transaction that poses an undue or unacceptable risk section 7.104 and before making a final determination section 7.108. In requiring that the Secretary consult with other agency heads, the rule provides for a coordination mechanism with other agencies and Departments that have potentially overlapping jurisdiction. For example, before making an initial determination concerning a transaction, the review of which might potentially overlap with a review under CFIUS, the Secretary is required to consult with, among others, the Secretary of the Treasury, who serves as the Chairperson of CFIUS, thereby helping to ensure coordination and avoid redundancy.
In addition, section 7.100a of the rule provides that the Secretary may consider all relevant information
VerDate Sep<11>2014

16:33 Jan 17, 2021

Jkt 253001

provided by any U.S. Government national security body or other Federal Government agency, department or regulatory body in determining what action may be necessary to ameliorate a threat posed by an ICTS Transaction.
Subpart BReview of ICTS
Transactions Commenters largely recommended the final rule clarify the review process, requesting the specific criteria by which the Department will use to review transactions. As a whole, Subpart B
adds a more detailed review process, as requested by commenters.
7.100

General
7.100aConsideration of Relevant Information Many commenters sought clarity as to the type of information on which the Secretary could base a determination to commence an evaluation of a transaction. In response to these comments, section 7.100a identifies sources or information, factors, and other variables related to a transaction that the Secretary may consider when reviewing a transaction. This list is nonexclusive and does not prevent the Secretary from reviewing any available information; the list is intended to provide parties to transactions with greater clarity about the types of materials on which the Secretary may rely when deciding whether to review and during that review of a transaction.
The rule states that the Secretary may consider information provided by any U.S. Government national security body or other Federal agencies. In addition, the rule clarifies that the Secretary, when making determinations about specific transactions, may also consider information that includes: 1 Relevant public information; 2 confidential business or proprietary information; 3
classified national security information;
4 information from State, local, tribal, or foreign governments; 5 information from parties to a transaction, including records related to such transaction that any party keeps or uses, or would be expected to keep or use, in their ordinary course of business for such a transaction; 6 information obtained through the authority granted under sections 2a and c of the Executive Order and IEEPA; and 7 information provided by any other U.S. Government agency, department, or other regulatory body.
The rule further revises section 7.100a to specify that information may be obtained through any administrative investigative or enforcement action
PO 00000

Frm 00039

Fmt 4700

Sfmt 4700

4915

undertaken pursuant to the authority granted under sections 2a and c of the Executive Order and IEEPA. The purpose of this clarification is to set out precisely the authorities that grant the Secretary the power to access and collect documents related to investigations and determinations of potentially prohibited transactions.
7.100cDetermining Foreign Adversary Involvement In order to provide industry with more clarity regarding the determination of whether an ICTS Transaction involves ICTS designed, developed, manufactured, or supplied, by persons owned by, controlled by, or subject to the jurisdiction or direction of a foreign adversary, the Department added guidance about what information it will consider when making these decisions.
These factors include: 1 Whether the party or its component suppliers have headquarters, research, development, manufacturing, test, distribution, or service facilities or other operations in a foreign country, including one controlled by a foreign adversary; 2
personal and professional ties between the partyincluding its officers, directors or similar officials, employees, consultants, or contractorsand any foreign adversary; 3 laws and regulations of the foreign adversary in which the party is headquartered or conducts operations, including research and development, manufacturing, packaging, and distribution; and 4 any other criteria that the Secretary deems appropriate.
7.100dFactors for Determining an Undue or Unacceptable Risk Commenters also requested additional information from the Department about how it will determine whether an ICTS
Transaction poses an undue or unacceptable risk. Along with listing factors to help determine the relationship between a foreign party to an ICTS Transaction and a foreign adversary, the Department has provided guidance on some of the information that the Secretary, in consultation with the appropriate agency heads, will consider when determining the impact of an ICTS Transaction on U.S. national security.
Specifically, when determining whether an ICTS Transaction poses an undue or unacceptable risk, the Secretary and the appropriate agency heads will consider factors such as: 1
Threat assessments and reports prepared by the Director of National Intelligence pursuant to section 5a of the Executive Order; 2 removal or exclusion orders issued by the Secretary
E:FRFM19JAR1.SGM

19JAR1