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Federal Register / Vol. 86, No. 163 / Thursday, August 26, 2021 / Rules and Regulations
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The Federal Acquisition Supply Chain Security Act of 2018 FASCSA or Act Title II of Pub. L. 115390, signed into law on December 21, 2018, established the Federal Acquisition Security Council FASC. The FASC is an executive branch interagency council chaired by a senior-level official from the Office of Management and Budget.
It includes representatives from the General Services Administration;
Department of Homeland Security DHS; Office of the Director of National Intelligence ODNI; Department of Justice; Department of Defense DOD;
and Department of Commerce. The FASC is authorized to perform a variety of functions, including making recommendations for orders that would require the removal of covered articles from executive agency information systems or the exclusion of sources or covered articles from executive agency procurement actions.
II. Rulemaking Pursuant to subsection 202d of the FASCSA, the FASC is required to prescribe first an interim final rule and then a final rule to implement subchapter III of chapter 13 of title 41, U.S. Code. The FASC published the interim final rule interim rule at 85 FR
54263 on September 1, 2020. The interim rule invited interested persons to submit comments on or before November 2, 2020. Six entities submitted comments. The final rule reflects changes made based upon some of those comments, as well as feedback received from internal Federal stakeholders. The final rule also corrects certain structural issues introduced by the interim rule, as explained in more detail in section III. This final rule retains the organization and much of the content of the interim rule. It contains three subparts. Subpart A explains the scope of the rule, provides definitions for relevant terms, and establishes the membership of the FASC. Subpart B
establishes the role of the FASCs information sharing agency ISA. DHS, acting primarily through the Cybersecurity and Infrastructure Security Agency, will serve as the ISA.
The ISA standardizes processes and procedures for submission and dissemination of supply chain information and facilitates the operations of a Supply Chain Risk Management SCRM Task Force under the FASC. This FASC Task Force consists of of designated technical experts who assist the FASC in implementing its information sharing, risk analysis, and risk assessment functions. Subpart B also prescribes mandatory and voluntary information
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sharing criteria and associated information protection requirements.
Subpart C provides the procedures by which the FASC will evaluate supply chain risk from sources and covered articles and recommend issuance of orders requiring removal of covered articles from executive agency information systems removal orders and orders excluding sources or covered articles from future procurements exclusion orders. Subpart C also provides the process for issuance of removal orders and exclusion orders and agency requests for waivers from such orders.
III. Summary of Changes to Interim Rule Headings and section numbers for the final rule have been adjusted to match the distinctive structure of CFR title 41.
The standard structure of 41 CFR, unlike other titles, is:
Subtitle capital letter Chapter Arabic numeral Part Arabic numeral hyphen Arabic numeral Subpart capital letter Section Arabic numeral hyphen Arabic numeral period Arabic numeral The interim rule however, did not align with that structure. It did not add a chapter to title 41 CFR, and its numbering scheme for part and section numbers did not match that of title 41.
Because of these structural issues, the interim rule added part 201 to subtitle E where the amendments could not be codified instead of adding chapter 201
to subtitle D. The final rule fixes those structural issues, changing interim part 201 to part 2011, adjusting the section numbering according, and eliminating the improperly codified interim part 201. Internal cross-references within the rule have been updated accordingly.
In general, numerous minor changes were made to the interim rules text to clarify or simplify it. Although the substance of the final rule largely matches that of the interim rule, several changes have been made in response to public comments and input from Federal stakeholders. Those changes, as well as numerous more minor, technical changes, are summarized below for each section of the final rule that has been modified from the interim rule.
A. Changes to Subpart A
1. 2011.101Definitions The final rule incorporates minor technical, clarifying, or simplifying changes to the definitions of exclusion order, national security system, and
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removal order, and supply chain risk information.
2. 2011.103Federal Acquisition Security Council FASC
Minor changes were made to paragraph c of this section to track the underlying statutory language more closely.
B. Changes to Subpart B
1. 2011.200Information Sharing Agency ISA
Paragraph a was modified to clarify that information should be submitted to the FASC by sending it to the ISA.
Paragraph b was modified to provide that the ISA, the FASC Task Force, and support personnel will carry out information receipt and dissemination functions on behalf of the FASC.
Paragraph c was modified to remove the obligation for the ISA to provide a physical facility to host the FASC Task Force.
Paragraph d was modified to clarify the nature of the processes and procedures to be adopted by the FASC.
Paragraph e of this section of the interim rule has been deleted from the final rule. That paragraph, which provided for the ISA to identify resource gaps to the FASC, was determined to be unnecessary.
2. 2011.201Submitting Information to the FASC
Minor technical corrections and clarifying changes were made to paragraphs a and b.
Paragraph d was modified to make minor technical and clarifying changes and to make clear that its provisions apply only to submissions by Federal agencies.
The section corresponding to this one in the interim rule erroneously included two provisions labeled as paragraph d.
The second provision labeled paragraph d has been labeled paragraph f in the final rule. Paragraph f3 of the final rule has been modified from its analogue in the interim rule to clarify that the FASC will not release a recommendation to a non-Federal entity unless an exclusion or removal order has been issued based on that recommendation, and the affected source has been notified.
The provision that appeared in paragraph e of this section of the interim rule has been removed from the final rule because it was superfluous and could have been interpreted to imply incorrectly that the FASC must explicitly authorize agencies to rely upon information disseminated to them by the FASC.

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