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Federal Register / Vol. 86, No. 11 / Tuesday, January 19, 2021 / Rules and Regulations
c In consultation with the appropriate agency heads, in determining 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, consider the following:
1 Whether the person or its suppliers have headquarters, research, development, manufacturing, test, distribution, or service facilities, or other operations in a foreign country, including one controlled by, or subject to the jurisdiction of, a foreign adversary;
2 Ties between the person including its officers, directors or similar officials, employees, consultants, or contractorsand a foreign adversary;
3 Laws and regulations of any foreign adversary in which the person is headquartered or conducts operations, including research and development, manufacturing, packaging, and distribution; and 4 Any other criteria that the Secretary deems appropriate;
d In consultation with the appropriate agency heads, in determining whether an ICTS
Transaction poses an undue or unacceptable risk, consider the following:
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 of Homeland Security, the Secretary of Defense, or the Director of National Intelligence or their designee pursuant to recommendations of the Federal Acquisition Security Council, under 41
U.S.C. 1323;
3 Relevant provisions of the Defense Federal Acquisition Regulation 48 CFR
ch. 2 and the Federal Acquisition Regulation 48 CFR ch. 1, and their respective supplements;
4 The written assessment produced pursuant to section 5b of the Executive Order, as well as the entities, hardware, software, and services that present vulnerabilities in the United States as determined by the Secretary of Homeland Security pursuant to that section;
5 Actual and potential threats to execution of a National Critical Function identified by the Department of Homeland Security Cybersecurity and Infrastructure Security Agency;
6 The nature, degree, and likelihood of consequence to the United States public and private sectors that could
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occur if ICTS vulnerabilities were to be exploited; and 7 Any other source or information that the Secretary deems appropriate;
and e In the event the Secretary finds that unusual and extraordinary harm to the national security of the United States is likely to occur if all of the procedures specified herein are followed, the Secretary may deviate from these procedures in a manner tailored to protect against that harm.

schedules, affidavits, presentations, transcripts, surveys, graphic representations of any kind, drawings, photographs, graphs, video or sound recordings, and motion pictures or other film.
c Persons providing documents to the Secretary pursuant to this section must produce documents in a format useable to the Department of Commerce, which may be detailed in the request for documents or otherwise agreed to by the parties.

7.101 Information to be furnished on demand.

7.102

a Pursuant to the authority granted to the Secretary under sections 2a, 2b, and 2c of the Executive Order and IEEPA, persons involved in an ICTS
Transaction may be required to furnish under oath, in the form of reports or otherwise, at any time as may be required by the Secretary, complete information relative to any act or transaction, subject to the provisions of this part. The Secretary may require that such reports include the production of any books, contracts, letters, papers, or other hard copy or electronic documents relating to any such act, transaction, or property, in the custody or control of the persons required to make such reports. Reports with respect to transactions may be required either before, during, or after such transactions. The Secretary may, through any person or agency, conduct investigations, hold hearings, administer oaths, examine witnesses, receive evidence, take depositions, and require by subpoena the attendance and testimony of witnesses and the production of any books, contracts, letters, papers, and other hard copy or documents relating to any matter under investigation, regardless of whether any report has been required or filed in connection therewith.
b For purposes of paragraph a of this section, the term document includes any written, recorded, or graphic matter or other means of preserving thought or expression including in electronic format, and all tangible things stored in any medium from which information can be processed, transcribed, or obtained directly or indirectly, including correspondence, memoranda, notes, messages, contemporaneous communications such as text and instant messages, letters, emails, spreadsheets, metadata, contracts, bulletins, diaries, chronological data, minutes, books, reports, examinations, charts, ledgers, books of account, invoices, air waybills, bills of lading, worksheets, receipts, printouts, papers,
a Information or documentary materials, not otherwise publicly or commercially available, submitted or filed with the Secretary under this part will not be released publicly except to the extent required by law.
b The Secretary may disclose information or documentary materials that are not otherwise publicly or commercially available and referenced in paragraph a in the following circumstances:
1 Pursuant to any administrative or judicial proceeding;
2 Pursuant to an act of Congress;
3 Pursuant to a request from any duly authorized committee or subcommittee of Congress;
4 Pursuant to any domestic governmental entity, or to any foreign governmental entity of a United States ally or partner, information or documentary materials, not otherwise publicly or commercially available and important to the national security analysis or actions of the Secretary, but only to the extent necessary for national security purposes, and subject to appropriate confidentiality and classification requirements;
5 Where the parties or a party to a transaction have consented, the information or documentary material that are not otherwise publicly or commercially available may be disclosed to third parties; and 6 Any other purpose authorized by law.
c This section shall continue to apply with respect to information and documentary materials that are not otherwise publicly or commercially available and submitted to or obtained by the Secretary even after the Secretary issues a final determination pursuant to 7.109 of this part.
d The provisions of 18 U.S.C. 1905, relating to fines and imprisonment and other penalties, shall apply with respect to the disclosure of information or documentary material provided to the Secretary under these regulations.

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Confidentiality of information.

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