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Code of Federal Regulations Title 41. Public Contracts and Property Management § 41.201.301 Recommending removal orders and exclusion orders

Current as of January 02, 2025 | Updated by Findlaw Staff

(a) Referral Procedure. The FASC may commence an evaluation of one or more sources and one or more covered articles, pursuant to the criteria in paragraph (b) of this section and for the purpose of determining whether to recommend that the source(s) or covered article(s) be subject to a removal order or exclusion order, in any of the following ways:

(1) Upon the referral of the FASC or any member of the FASC;

(2) Upon the request, in writing, of the head of an executive agency or designee, accompanied by a submission of relevant information;  or

(3) Based on information submitted to the FASC by any federal or non-federal entity that the FASC deems, in its discretion, to be credible.

(b) Criteria. The FASC will evaluate sources and covered articles, including by analyzing available information, and considering the following, non-exclusive factors, as appropriate:

(1) Functionality of the covered articles, including the source's access to data and information system privileges;

(2) Security, authenticity, and integrity of covered articles and their supply and compilation chains, including for embedded, integrated, and bundled software;

(3) The ability of the source to produce and deliver the covered articles as expected (i.e., supply chain assurance);

(4) Ownership of, control of, or influence over the source or covered article(s) by a foreign government or parties owned or controlled by a foreign government, or other ties between the source and a foreign government, which may include the following considerations:

(i) Whether the U.S. government has identified the country as a foreign adversary or country of special concern;

(ii) Whether the source or its component suppliers have headquarters, research, development, manufacturing, test, distribution, or service facilities or other operations in a foreign country, including a country of special concern or a foreign adversary;

(iii) Personal and professional ties between the source—including its officers, directors or similar officials, employees, consultants, or contractors— and any foreign government;  and

(iv) Laws and regulations of any foreign country in which the source has headquarters, research development, manufacturing, testing, packaging, distribution, or service facilities or other operations.

(5) Implications to national, homeland security, or critical functions associated with use of the source(s) or covered article(s);

(6) Vulnerabilities of federal systems, programs, or facilities;

(7) Capacity of the source or the U.S. Government to mitigate risks;

(8) Credibility of, and confidence in available information used to formulate assessment(s) of risk associated with proceeding, with using alternatives, and/or with adopting range of mitigations;

(9) Any transmission of information or data by a covered article to a country outside of the U.S.;  and

(10) Any other information that would factor into an assessment of supply chain risk, including any impact to agency mission critical functions, and other information as the FASC deems appropriate.

(c) Due Diligence. As part of the analysis conducted pursuant to paragraph (b) of this section, the FASC will conduct appropriate due diligence. Such due diligence may include but need not be limited to the following actions:

(1) Review any information made available by the executive agency identified in § 202.201(a), and any other information the FASC determines appropriate;

(2) Ensure, to the extent possible, that the level of confidence in the information is appropriately taken into consideration;  and

(3) Examine other relevant public or commercially available information as necessary or appropriate.

(d) Consultation with NIST. NIST will participate in FASC activities as a member and will advise the FASC on NIST standards and guidelines issued under 40 U.S.C. 11331, including ensuring that any recommended orders do not conflict with such standards and guidelines.

(e) Content of recommendation.

(1) The FASC shall include the following in any recommendation to the Secretary of Homeland Security, Secretary of Defense, and/or Director of National Intelligence:

(i) Information necessary to positively identify any source(s) or covered article(s) recommended for exclusion or removal;

(ii) Information regarding the scope and applicability of the recommended exclusion order, removal order, or both, including whether any such order should apply to all executive agencies or a subset of executive agencies;

(iii) A summary of the supply chain risk assessment reviewed or conducted in support of the recommended exclusion or removal order, including material conflicting or contrary information, if any;

(iv) A summary of the basis for the recommendation, including a discussion of less intrusive measures that were considered and why such measures were not reasonably available to reduce supply chain risk;

(v) A description of the actions necessary to implement the recommended exclusion or removal order;  and,

(vi) Where practicable, in the FASC's sole and unreviewable discretion, a description of the mitigation steps that could be taken by the source that may result in the FASC rescinding the recommendation.

(2) Information sharing in absence of recommendation:  If the FASC decides not to issue a recommendation, information received and analyzed pursuant to the procedures in this section may be shared, as appropriate, pursuant to the procedures in subpart B of this chapter.

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Cite this article: FindLaw.com - Code of Federal Regulations Title 41. Public Contracts and Property Management § 41.201.301 Recommending removal orders and exclusion orders - last updated January 02, 2025 | https://codes.findlaw.com/cfr/title-41-public-contracts-and-property-management/cfr-sect-41-201-301/

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