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Federal Register / Vol. 86, No. 163 / Thursday, August 26, 2021 / Rules and Regulations
submit information might also, depending on the circumstances, unduly interfere with the ability of an affected source to respond substantively to a notice of the FASCs recommendation for the issuance of an exclusion or removal order. In light of these considerations, the final rule includes no additional provisions aimed at protecting NFEs from legal liability.
One commenter asked how the ISA will maintain data submitted to the FASC
and in what system that data will be stored. The FASC anticipates that the ISA will handle, store, and protect information in accordance with all applicable laws, regulations, and policies. The final rule does not specify the nature of the system in which the ISA will store FASC data or provide detailed requirements for the technical means by which the ISA will maintain that data; such specifications would unduly restrict the ISA.
Another commenter requested more information about the FASCs influence on priorities and taskings within the intelligence community. No changes to the rule have been made in response to that request. Executive agencies, including those encompassing components of the intelligence community, will continue to follow their relevant authorities with regard to their own priorities and taskings.
Several comments concerned the possible release of information to the public by the FASC. Some commenters requested more information about the circumstances in which the FASC will share supply chain risk information with the private sector; others suggested that the FASC should maintain a public list of sources and covered articles that have been the subject of exclusion or removal orders. The final rule does not specify circumstances in which the FASC must share information with the public, or require maintenance of a public list of sources and covered articles that have been the subject of exclusion or removal orders. The FASC
anticipates that determining whether to release supply chain risk information including the names of sources and covered articles addressed by exclusion or removal orderswill be a highly factspecific inquiry. Other applicable law and binding government-wide policies may also limit the information that the FASC may publicly disclose. For instance, national security considerations may require that, in some scenarios, the nature of certain covered articles or sources or the rationale for some FASC
recommendations not be made public.
Accordingly, the final rule simply states that the FASC will comply with
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applicable legal requirements in light of the particular circumstances to decide the extent to which supply chain risk information can be released to nongovernment entities.
B. Interim Rule Subpart C
Subpart C addresses evaluation of sources and covered articles by the FASC. It enumerates the processes by which the FASC may issue a recommendation, obtain a response to a recommendation from named sources, and, when appropriate, rescind a recommendation. Commenters raised several topics in connection with this subpart.
One commenter asked whether protections would be offered for companies that have been identified to the FASC as a potential risk but are not the subject of a recommendation or a removal/exclusion order. The commenter speculated that contracting offices in the Federal Government could create an informal blacklist that would prevent companies that had been identified as security risks from contracting with the Federal Government. The FASC has seen no evidence that its activities will result in a blacklist. As a result, the final rule does not include any changes in response to this public comment.
Some commenters suggested that because NFEs may submit information voluntarily to the FASC, the FASC may receive inaccurate or false information from companies attempting to sabotage competitors. Commenters suggested various means to address this contemplated problem: Requiring NFEs submitting information to execute a certification of some kind attesting to their good faith; providing affected sources with remedies against NFEs who submit false information; enlisting private-sector entities to vet supply chain risk information; or limiting the extent to which information may be requested by the FASC or submitted by NFEs. The FASC does not believe that the rule should include any of these measures at this time. The final rule retains in 2011.300d the requirement that the FASC perform appropriate due diligence in evaluating supply chain risk. The FASC
may request and obtain information from a wide range of sources within the Federal Government, including investigative and intelligence-gathering agencies; it has ample means to assess the reliability of information received from the private sector or elsewhere. As a result, the FASC concludes that there is little basis to believe that the submission of inaccurate information by
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NFEs will subvert the outcome of the FASCs deliberations.
Commenters also expressed concern that, under 2011.300b, a sources ties to foreign countries are expressly identified as one factor among many to be considered as part of a supply chain risk analysis. These commenters pointed out that many companies have connections to other nations, and asserted that companies fear that their association with a certain country or countries will automatically place them under suspicion within the FASC. In response to these comments, the interim rule was modified to include 201
1.300c, which echoes 41 U.S.C.
1323f2s text to emphasize that nothing in the rule may be construed to authorize the issuance of an exclusion or removal order based solely on the foreign ownership of an otherwise qualified source. Additionally, the final rule, like the interim rule, lists a sources foreign ties merely as one factor among a non-exclusive list of factors to be considered in the FASCs evaluation;
nothing in either rule requires that factor to be given determinative weight.
For that reason, the FASC disagrees with a commenter who suggested that such a factor was inconsistent with treaties intended to encourage international trade. Such treaties form part of the backdrop against which the FASC will make its decisions. Given the international ties of many companies and the extensive participation of the United States in the global economy, the FASC will not be inclined to recommend exclusion of a company simply because it is active in more than one country.
One commenter suggested that the FASC consider foreign ties in its analysis only if those ties concern a country other than an ally of the United States. Another requested that the rule be amended to specify the component of the Federal Government with authority to designate a country as a country of special concern or a foreign adversary pursuant to 2011.300b. Neither recommendation has been implemented in the final rule because the FASC is already able to account for the considerations suggested by the commenters. In evaluating the risk posed by a covered article or a source, the FASC may consider not just whether a source has connections to a foreign country, but also the nature of that countrys relationship with the United States; it may consider not just whether a Federal agency has designated a country as an adversary, but also which agency or official made that designation and why.

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