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Federal Register / Vol. 86, No. 163 / Thursday, August 26, 2021 / Rules and Regulations
b Administrative record. The administrative record for judicial review of an exclusion or removal order issued pursuant to 41 U.S.C. 1323c6 shall, subject to the limitations set forth in 41
U.S.C. 1327b4Bii through v, consist only of:
1 The recommendation issued pursuant to 41 U.S.C. 1323c2;
2 The notice of recommendation issued pursuant to 41 U.S.C. 1323c3;
3 Any information and argument in opposition to the recommendation submitted by the source pursuant to 41
U.S.C. 1323c3C;
4 The exclusion or removal order issued pursuant to 41 U.S.C. 1323c5, and any information or materials relied upon by the deciding official in issuing the order; and 5 The notification to the source issued pursuant to 41 U.S.C.
1323c6A.
6 Other information. Other information or material collected by, shared with, or created by the FASC or its member agencies shall not be included in the administrative record unless the deciding official relied on that information or material in issuing the exclusion or removal order.
d Issuing officials. Exclusion or removal orders may be issued as follows:
1 The Secretary of Homeland Security may issue removal or exclusion orders applicable to civilian agencies, to the extent not covered by paragraph d2 or 3 of this section.
2 The Secretary of Defense may issue removal or exclusion orders applicable to the Department of Defense and national security systems other than sensitive compartmented information systems.
3 The Director of National Intelligence may issue removal or exclusion orders applicable to the Intelligence Community and sensitive compartmented information systems, to the extent not covered by paragraph d2 of this section.
4 The officials identified in paragraphs d1 through 3 of this section may not delegate the authority to issue exclusion and removal orders to an official below the level one level below the Deputy Secretary or Principal Deputy Director level, except that the Secretary of Defense may delegate authority for removal orders to the Commander of U.S. Cyber Command, who may not re-delegate such authority to an official below the level of the Deputy Commander.
e Applicability of issued orders to non-Federal entities. An exclusion or removal order may affect non-Federal entities, including as follows:

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1 An exclusion order may require the exclusion of sources or covered articles from any executive agency procurement action, including but not limited to source selection and consent for a contractor to subcontract. To the extent required by the exclusion order, agencies shall exclude the source or covered articles, as applicable, from being supplied by any prime contractor and subcontractor at any tier.
2 A removal order may require removal of a covered article from an executive agency information system owned and operated by an agency; from an information system operated by a contractor on behalf of an agency; and from other contractor information systems to the extent that the removal order applies to contractor equipment or systems within the scope of information technology, as defined in 2011.101.
f Notification of order issuance. The official who issues an exclusion or removal order:
1 Shall, upon issuance of an exclusion or removal order pursuant to paragraph a of this section:
i Notify any source named in the order of the orders issuance, and to the extent consistent with national security and law enforcement interests, of the information that forms the basis for the order;
ii Provide classified or unclassified notice of the order to the appropriate congressional committees and leadership;
iii Provide the order to the ISA; and iv Notify the Interagency Suspension and Debarment Committee of the order.
2 May provide a copy of the order to other persons, including through public disclosure, as the official deems appropriate and to the extent consistent with national security and law enforcement interests.
g Removal from Federal supply contracts. If the officials identified in paragraphs d1 through 3 of this section, or their delegates, issue orders collectively resulting in a Governmentwide exclusion, the Administrator for General Services and officials at other executive agencies responsible for management of the Federal Supply Schedules, Government-wide acquisition contracts, and multi-agency contracts shall facilitate implementation of such orders by removing the covered articles or sources identified in the orders from such contracts.
h Annual review of issued orders.
The officials identified in paragraphs d1 through 3 of this section shall review all issued exclusion and removal orders not less frequently than annually
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pursuant to procedures established by the FASC.
i Modification or rescission of issued orders. The officials identified in paragraphs d1 through 3 of this section may modify or rescind an issued exclusion or removal order, provided that a modified order shall not apply more broadly than the order before the modification.
2011.304 Executive agency compliance with exclusion and removal orders.

a Agency compliance. Executive agencies shall:
1 Comply with exclusion and removal orders issued pursuant to 2011.303 and applicable to their agency, as required by 41 U.S.C.
1323c7 and 44 U.S.C. 3554a1B;
and 2 Comply with handling and/or dissemination restrictions placed upon the order or its contents by the issuing official.
b Exceptions to issued exclusion and removal orders. An executive agency required to comply with an exclusion or removal order may submit to the issuing official a request to be excepted from the orders provisions. The requesting agency:
1 May ask to be excepted from some or all of the orders requirements. The agency may ask, for example, that the order not apply to the agency, to specific actions of the agency, or to actions of the agency for a period of time before compliance with the order is practicable.
2 Shall submit the request in writing and include in it all necessary information for the issuing official to review and evaluate it, including i Identification of the applicable exclusion order or removal order;
ii A description of the exception sought, including, if limited to only a portion of the order, a description of the order provisions from which an exception is sought;
iii The name or a description sufficient to identify the covered article or the product or service provided by a source that is subject to the order from which an exception is sought;
iv Compelling justification for why an exception should be granted, such as the impact of the order on the agencys ability to fulfill its missioncritical functions, or considerations related to the national interest, including national security reviews, national security investigations, or national security agreements;
v Any alternative mitigations to be undertaken to reduce the risks addressed by the exclusion or removal order; and
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