Federal Register / Vol. 86, No. 163 / Thursday, August 26, 2021 / Rules and Regulations 47581 

Executive Order 12866. For these 

reasons, this action is also not subject to 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001). 

In addition, I certify that this action 

will not have a significant economic 

impact on a substantial number of small 

entities under the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.), because the 

action addresses only the timing of 

submittals required by the Clean Air 

Act. For the same reason, this action 

does not have regulatory requirements 

that might significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4). 

Executive Order 13175 (65 FR 67249, 

November 9, 2000) requires the EPA to 

develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ ‘‘Policies that have tribal 

implications’’ is defined in the 

Executive Order to include regulations 

that have ‘‘substantial direct effects on 

one or more Indian tribes, on the 

relationship between the Federal 

government and Indian tribes, or on the 

distribution of power and 

responsibilities between the Federal 

government and Indian tribes.’’ There 

are no Indian reservation lands or other 

areas where the EPA or an Indian tribe 

has demonstrated that a tribe has 

jurisdiction within the Eastern Kern 

ozone nonattainment area, and thus, 

this action does not have tribal 

implications and will not impose 

substantial direct costs on tribal 

governments or preempt tribal law as 

specified by Executive Order 13175. 

This action also does not have 

federalism implications because it does 

not have substantial direct effects on the 

states, on the relationship between the 

national government and the states, or 

on the distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132 (64 FR 43255, 

August 10, 1999). This action does not 

alter the relationship, or the distribution 

of power and responsibilities 

established in the Clean Air Act. 

This rule also is not subject to 

Executive Order 13045 (62 FR 19885, 

April 23, 1997). The EPA interprets 

Executive Order 13045 as applying only 

to those regulatory actions that concern 

environmental health or safety risks 

such that the analysis required under 

section 5–501 of the Executive Order 

has the potential to influence the 

regulation. This action does not concern 

an environmental health risk or safety 

risk. 

As this action establishes a deadline 

for the submittal of CAA required plans 

and information, the requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) do not 

apply. This rule does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act of 1995 (44 U.S.C. 3501 et seq.). 

Executive Order 12898 (59 FR 7629, 

February 16, 1994) establishes Federal 

executive policy on environmental 

justice. Its main provision directs 

Federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. This 

action addresses the timing for the 

submittal of Severe area ozone planning 

requirements, and we find that it does 

not have disproportionately high and 

adverse human health or environmental 

health effects on minority populations, 

low-income populations and/or 

indigenous peoples, as specified in 

Executive Order 12898. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. The EPA will 

submit a report containing this action 

and other required information to the 

U.S. Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States prior to 

publication of the rule in the Federal 

Register. A major rule cannot take effect 

until 60 days after it is published in the 

Federal Register. This action is not a 

‘‘major rule’’ as defined by 5 U.S.C. 

804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by October 25, 2021. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this action for 

the purposes of judicial review nor does 

it extend the time within which a 

petition for judicial review may be filed 

and shall not postpone the effectiveness 

of such rule or action. This action may 

not be challenged later in proceedings to 

enforce its requirements (see section 

307(b)(2)). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Volatile 

organic compounds. 

Dated: August 19, 2021. 

Deborah Jordan, 

Acting Regional Administrator, Region IX. 

[FR Doc. 2021–18344 Filed 8–25–21; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL ACQUISITION SECURITY 

COUNCIL 

41 CFR Parts 201 and 201–1 

Federal Acquisition Security Council 

Rule 

AGENCY: Federal Acquisition Security 

Council. 

ACTION: Final rule. 

SUMMARY: As authorized by the Federal 

Acquisition Supply Chain Security Act 

of 2018 (FASCSA), the Federal 

Acquisition Security Council (FASC) is 

issuing this final rule to implement the 

requirements of the laws that govern the 

operation of the FASC, the sharing of 

supply chain risk information, and the 

exercise of the FASC’s authorities to 

recommend issuance of removal and 

exclusion orders to address supply 

chain security risks. This rule finalizes 

the interim final rule and corrects the 

codification structure of the interim 

final rule. 

DATES: Effective September 27, 2021. 

FOR FURTHER INFORMATION CONTACT: 

Kosta I. Kalpos, 202–881–9601, 

Konstandinos.I.Kalpos@omb.eop.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Information and communications 

technology and services (ICTS) are 

essential to the proper functioning of 

U.S. Government information systems. 

The U.S. Government’s efforts to 

evaluate threats to and vulnerabilities in 

ICTS supply chains have historically 

been ad hoc, undertaken by individual 

or small groups of agencies to address 

specific supply chain security risks. 

Because of the scale of supply chain 

risks faced by Government agencies, and 

the need for Government-wide 

coordination, Congress adopted new 

legislation in 2018 to improve executive 

branch coordination, supply chain 

information sharing, and actions to 

address supply chain risks. 


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47582 Federal Register / Vol. 86, No. 163 / Thursday, August 26, 2021 / Rules and Regulations 

The Federal Acquisition Supply 

Chain Security Act of 2018 (FASCSA or 

Act) (Title II of Pub. L. 115–390), 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 202(d) 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 FASC’s 

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 

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 201–1, 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 rule’s 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. § 201–1.101—Definitions 

The final rule incorporates minor 

technical, clarifying, or simplifying 

changes to the definitions of ‘‘exclusion 

order,’’ ‘‘national security system,’’ and 

‘‘removal order,’’ and ‘‘supply chain risk 

information.’’ 

2. § 201–1.103—Federal 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. § 201–1.200—Information 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. § 201–1.201—Submitting 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 (f)(3) 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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Paragraph (e) of this section of the 

final rule has been added to describe the 

protection that will be afforded to 

voluntary submissions by non-Federal 

entities. 

C. Changes to Subpart C 

1. § 201–1.300—Evaluation of Sources 

and Covered Articles 

Paragraph (a) was edited for clarity 

and brevity. 

The heading of paragraph (b) was 

changed to ‘‘Relevant factors’’ from 

‘‘Criteria.’’ The list appearing in that 

paragraph has been modified to clarify 

or adjust the description of some factors 

and to include as a factor the user 

environment in which a covered article 

is used or installed. 

The language in paragraph (c) of the 

interim rule was shifted to paragraph (d) 

and replaced with a statement providing 

that nothing in this section shall be 

construed to authorize the issuance of a 

removal order based solely on the fact 

of the foreign ownership of a potential 

procurement source that is otherwise 

qualified to enter into procurement 

contracts with the Federal Government. 

Paragraph (d)(3) (interim rule 

paragraph (c)(3)) was removed as 

duplicative of paragraph (d)(1). 

Paragraph (e) of the interim rule was 

broken into two separate paragraphs and 

moved into § 201–1.301 to simplify the 

structure of the final rule. 

2. § 201–1.301—Recommendation 

Paragraph (e) of interim rule § 201.301 

has been moved to this section as 

paragraphs (a) and (b). Minor clarifying 

changes were made to the language of 

those paragraphs. 

3. § 201–1.302—Notice of 

Recommendation To Source and 

Opportunity To Respond 

The language included in paragraphs 

(c) and (d) of interim rule § 201.302 was 

relocated to paragraphs (d) and (e) in 

this section of the final rule. A new 

provision was added as paragraph (c) to 

clarify how the FASC may rescind a 

recommendation upon consideration of 

a source’s response in opposition to a 

notice of recommendation. Paragraph 

(d) of the interim rule, now located in 

paragraph (e) of the final rule, was 

modified so that the protections 

afforded under that provision are the 

same as those afforded with respect to 

information submitted voluntarily by 

non-Federal entities. 

4. § 201–1.303—Issuance of Orders and 

Related Activities 

Various simplifying or clarifying edits 

were made to the provisions of interim 

rule § 201.303, and the content of that 

interim rule section was also 

reorganized into a more logical 

paragraph structure for the final rule. 

The interim rule’s description of the 

authority of the Secretary of Homeland 

Security, the Secretary of Defense, and 

the Director of National Intelligence was 

modified to mirror the underlying 

statutory language more closely and 

make clear that the authority to issue 

exclusion and removal orders is 

discretionary. 

5. § 201–1.304—Executive Agency 

Compliance With Exclusion and 

Removal Orders 

The final rule includes minor 

technical corrections and clarifications 

that were made to the provisions of this 

section of the interim rule. Paragraph 

(a)(2) no longer requires agencies to 

obtain FASC approval before publicly 

releasing an exclusion or removal order. 

Instead, the final rule requires that 

agencies comply with any 

dissemination or other controls placed 

upon an exclusion or removal order by 

the issuing official. 

Paragraph (b) of the final rule 

includes new language specifying 

certain requirements to be met by 

agencies requesting to be excepted from 

the provisions of an exclusion or 

removal order. Those agencies must 

submit their request in writing to the 

official who issued the order and 

provide specified information, 

including a compelling justification for 

the waiver and a description of any 

forms of risk mitigation to be 

undertaken if the waiver is granted. 

IV. Comments and Responses 

The FASC received six sets of 

comments from the public in response 

to the publication of the interim rule. 

Relevant comments from those 

submissions are addressed below in 

connection with the rule subpart to 

which they relate or, if they do not 

relate to a particular subpart, under the 

heading ‘‘General Comments.’’ Because 

no comments related particularly to 

subpart A of the interim rule, no 

heading is provided for that subpart in 

this section for Comments and 

Responses. 

A. Interim Rule Subpart B 

Subpart B establishes the role of the 

FASC’s information sharing agency 

(ISA), provides for an interagency Task 

Force to support the FASC, prescribes 

mandatory information-sharing criteria 

for Federal agencies, and outlines 

requirements for marking, handling, and 

disseminating protected supply chain 

risk information. Multiple commenters 

asked for further clarification of the 

protections that would be afforded to 

non-Federal entities who voluntarily 

share information with the FASC. In 

response to these comments, § 201– 

1.201(e) was added to the final rule to 

describe the protection that will be 

afforded to information that is 

submitted to the FASC by such nonFederal entities (NFEs) and that is not 

otherwise publicly or commercially 

available. If such information is marked 

by the submitting NFE with the legend, 

‘‘Confidential and Not to Be Publicly 

Disclosed,’’ the FASC will not release 

the marked material to the public, 

except to the extent required by law. 

Regardless of any protection offered by 

that general rule, § 201–1.201(e)(2) 

makes clear that the FASC retains broad 

discretion to disclose information 

submitted by NFEs to appropriate 

recipients in a range of circumstances. 

The FASC recognizes that its 

retention of such broad discretion may 

dissuade some NFEs from submitting 

sensitive information. At this time, 

however, the FASC has chosen to 

prioritize greater sharing of information 

in appropriate circumstances over the 

possibility of receiving more supply 

chain risk information from NFEs. If the 

FASC determines over time that the 

Federal Government’s interests would 

be better served by a different weighing 

of priorities, the FASC may revise the 

rule accordingly. 

One commenter asked whether NFEs 

who shared information with the FASC 

would receive protection under the 

Cybersecurity Information Sharing Act 

of 2015 (CISA 2015), Public Law 114– 

113, div. N. The final rule does not 

address that issue. The FASC is 

continuing to coordinate with FASC 

member agencies to consider any 

intersections between CISA 2015 and 

the FASC’s authorities and may, as 

appropriate, provide further guidance to 

stakeholders at a future date. 

Several commenters also suggested 

that the FASC should afford protections 

to NFEs whose information might be 

used to support the issuance of an 

exclusion or removal order. The final 

rule provides for no such protections. 

The FASC lacks authority to obviate, 

restrict, or otherwise alter the potential 

legal liability of one private party to 

another. And other, more indirect forms 

of protection—such as an automatic 

guarantee of confidentiality or 

protection from public disclosure of the 

identity of providers of information— 

could decrease the quality of 

information received from NFEs by 

removing disincentives that would 

otherwise deter the submission of 

inaccurate or misleading information. 

Shielding the identity of NFEs who 


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47584 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 FASC’s 

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 FASC’s 

‘‘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 orders—will 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 

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 § 201–1.300(d) 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 

NFEs will subvert the outcome of the 

FASC’s deliberations. 

Commenters also expressed concern 

that, under § 201–1.300(b), a source’s 

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– 

1.300(c), which echoes 41 U.S.C. 

1323(f)(2)’s 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 

source’s foreign ties merely as one factor 

among a non-exclusive list of factors to 

be considered in the FASC’s 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 § 201–1.300(b). 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 

country’s 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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Several comments concerned the 

process by which exclusion or removal 

orders may be issued. One, for example, 

recommended that any source being 

evaluated by the FASC should be 

notified ‘‘at the outset’’ of that review 

and allowed to comment ‘‘as early as 

possible.’’ The final rule does not 

implement that recommendation. 

Depending on the circumstances of a 

particular case, national security 

considerations may weigh against 

informing a source that it has drawn the 

attention of the FASC at a time when no 

recommendation has been issued. As a 

result, the final rule does not mandate 

either early or ongoing communication 

with a source prior to the issuance of a 

recommendation. 

Other comments raised the concern 

that sources named in a 

recommendation would not receive 

enough information from the FASC to 

mount an adequate response. The final 

rule, like the interim rule, provides that 

the source named in a recommendation 

must be notified of the criteria relied 

upon by the FASC in developing that 

recommendation. § 201–1.302(b)(2). The 

source must also be advised of the 

information upon which the FASC 

based its recommendation, so long as 

disclosure of that information is 

consistent with national security and 

law enforcement interests. This body of 

information will allow the source to 

understand the FASC’s reasoning and so 

to prepare a response. Contrary to one 

commenter’s suggestion, the ‘‘criteria’’ 

to be disclosed to the source are not 

equivalent to a simple list of the 

generically described factors identified 

in § 201–1.300(b) of the final rule. To 

make that fact clear, the label for that 

list of factors in the final rule has been 

changed from ‘‘Criteria’’ to ‘‘Relevant 

Factors.’’ 

The interim final rule provided that 

the administrative record on judicial 

review of an exclusion or removal order 

would include, among other things, 

‘‘any information or materials directly 

relied upon by the’’ official who issued 

the order. One commenter objected that 

the use of the word ‘‘directly’’ indicated 

that the administrative record 

supporting exclusion or removal orders 

would not conform to the requirements 

of the FASCSA. To prevent any such 

misinterpretation and mirror the 

language of the FASCSA more closely, 

the word ‘‘directly’’ has been removed 

from paragraphs (b)(4) and (c) of § 201– 

1.303. 

Some commenters made broader or 

more general suggestions regarding 

FASC processes. One recommended that 

the FASC should require what it called 

‘‘standard due process trappings,’’ 

including ‘‘hearings, discovery, right to 

counsel, [and] the ability to appeal [to 

the] [F]ederal court system.’’ No change 

to the interim rule has been made in 

response to this comment. The final 

rule, like the interim rule and the 

FASCSA statutory scheme, provides for 

due process by ensuring that affected 

sources will be notified of possible 

adverse action and given an opportunity 

to address the Federal Government’s 

basis for such an action. The rule and 

the statutory scheme also provide for 

review by a Federal court of appeals of 

any exclusion or removal order resulting 

from a FASC recommendation. 

Discovery is not contemplated by the 

FASCSA and is not a ‘‘standard due 

process’’ element in judicial review 

based upon an administrative record. 

There is no due process right to counsel 

in civil matters. Mandating additional 

procedures such as a discovery process 

would make the FASC’s proceedings 

considerably slower and more 

expensive, thereby impeding the 

Federal Government’s ability to protect 

against serious cyber threats to its 

systems—a result that is contrary to the 

purposes of the FASCSA and would 

significantly undermine important 

Federal Government interests. 

Another commenter requested that 

the FASC afford the public the 

opportunity for comment before 

enacting new rules, and that an 

opportunity for appeal be given for 

‘‘measures targeting specific 

companies.’’ The FASC has concluded 

that any applicable requirements of the 

Administrative Procedure Act are fully 

sufficient to address the public interests 

implicated by new rules. In addition, 

the FASCSA provides sources named in 

exclusion or removal orders the 

opportunity to appeal an order to a 

Federal court of appeals. 41 U.S.C. 

1327(b). Because these requests are 

addressed by statute, the FASC has not 

modified the interim rule to address 

them. 

One commenter objected to the 

statement in the preamble to the interim 

rule that ‘‘the FASC does not intend to 

publicly disclose communications with 

the source(s) except to the extent 

required by law,’’ suggesting that it 

conflicted with provisions of the interim 

rule concerning the treatment of 

confidential information submitted by a 

source in response to a notice of a FASC 

recommendation. For the final rule, the 

relevant provision of the interim rule 

has been modified to clarify that 

confidential information submitted by a 

source is subject to the same degree of 

protection provided pursuant to new 

§ 201–1.201(d) for confidential 

information submitted voluntarily by 

NFEs. 

One commenter inquired about the 

timing of the FASC recommendation 

process, suggesting that the rule 

prescribe ‘‘a reasonable timeline 

regarding when’’ an exclusion or 

removal order is issued and ‘‘when it 

will go into effect.’’ The same 

commenter asserted that a source named 

in an exclusion or removal order should 

be afforded at least 60 days from the 

effective date of an order ‘‘to respond to 

the FASC.’’ This comment reflects a 

misunderstanding of the FASC process. 

The FASC does not issue exclusion or 

removal orders, and so a source has no 

reason to ‘‘respond to the FASC’’ once 

such an order is issued. The FASC 

makes recommendations for the 

issuance of orders. Any sources named 

in a FASC recommendation will have 

the opportunity to respond to the FASC 

before an order may be issued. The 

FASC may alter or withdraw its 

recommendation based on a source’s 

response. If the FASC chooses not to do 

so, then an appropriate official from 

DHS, DOD, or ODNI may issue an order 

based on the recommendation. 

Pursuant to 41 U.S.C. 1327, a source 

may request judicial review of an order 

within 60 days after being notified of its 

issuance. The ordering official, not the 

FASC, is responsible both for deciding 

the effective date of the order and for 

providing notification of the order to the 

source. 41 U.S.C. 1323(c)(5), (6). As a 

result, the FASC does not in the interim 

or the final rule attempt to constrain the 

ordering official’s discretion as to the 

manner in which the effective date of an 

order is determined or in which 

notification of an order is issued to the 

source. 

The same commenter opined that the 

FASC should prescribe in the final rule 

‘‘a reasonable timeline’’ for when a 

covered procurement action may be 

announced and when it may go into 

effect. Fact-specific considerations, such 

as the imminence of the risk posed by 

a source and the characteristics of the 

procurement at issue, will heavily 

influence the timeline for a covered 

procurement action. The final rule 

therefore allows authorized officials to 

determine an appropriate timeline on a 

case-by-case basis, rather than 

prescribing a single approach. 

The same commenter also suggested 

that the FASC should issue a 

preliminary recommendation, allow 

submission of a response by the affected 

source(s), and then issue a final 

recommendation. The final rule 

provides for such a process, although it 

does not label recommendations as 

‘‘preliminary’’ or ‘‘final.’’ Instead, the 


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final rule includes a new provision at 

paragraph (c) of § 201–1.302, which 

makes clear that after the FASC issues 

a recommendation and the source 

submits a response, the FASC has the 

discretion to rescind the 

recommendation. The final rule thus 

makes explicit that, if a source 

demonstrates through its response to the 

FASC that a removal or exclusion order 

is unwarranted, the FASC may 

withdraw its recommendation. 

One commenter asked that the FASC 

clarify whether the FASC may release 

its recommendation even if no related 

exclusion or removal order is issued. 

The final rule addresses that issue in 

paragraph (f)(3) of § 201–1.201, 

providing that if a recommendation is 

rescinded, or the relevant officials 

determine that no exclusion or removal 

order will be issued based upon it, the 

recommendation will be kept 

confidential and will not be released to 

entities, other than the source, outside 

of the Federal Government. 

Two commenters suggested that 

exclusion or removal orders should be 

narrowly tailored, or should incorporate 

a finding that the action ordered 

represents the least intrusive measure 

reasonably available to address a given 

supply chain risk. No change to the rule 

was made in response to these 

comments. As the interim rule did, the 

final rule requires the FASC to include 

in a recommendation for an exclusion or 

removal order ‘‘a discussion of less 

intrusive measures that were considered 

and why such measures were not 

reasonably available to reduce supply 

chain risk.’’ § 201–1.301(a)(4). That 

requirement ensures that the FASC will 

consider the disruption that may result 

from a contemplated action, weigh it 

against the threat to be addressed, and 

issue a recommendation of appropriate 

scope. 

Several comments requested rule 

provisions establishing the nature and 

extent of contractors’ and 

subcontractors’ obligations under 

exclusion or removal orders. The FASC 

anticipates that such obligations will 

vary widely depending on the nature of 

the circumstances addressed by an 

exclusion or removal order. As a result, 

it is not feasible to attempt to prescribe 

those obligations categorically through 

this rulemaking. Instead, those 

obligations must be ascertained based 

upon the content of the order in 

question and any guidance issued by the 

ordering agency or the agencies 

implementing that order, as well as any 

applicable contract terms or 

procurement regulations. 

One commenter recommended that 

the FASC adopt a rule requiring the 

notification of prime contractors 

whenever a subcontractor is the subject 

of a recommendation. The FASC 

declines to follow that suggestion. If a 

FASC recommendation is not 

implemented through the issuance of 

one or more exclusion or removal 

orders, then there may never be a need 

for prime contractors to react to that 

recommendation. Furthermore, alerting 

primes to the issuance of a 

recommendation that may never yield 

an order may conflict with national 

security interests and/or the named 

source’s interest in confidentiality. 

One commenter requested further 

detail on the manner in which an 

agency can obtain a waiver relieving it 

of obligations under an exclusion or 

removal order. The final rule includes a 

new paragraph in § 201–1.304 that 

clarifies the waiver process. An agency 

seeking an exception to some or all of 

the requirements of an order must 

submit a request for that exception to 

the ordering official. The request must 

identify the relevant order and the 

covered article or source affected, 

describe precisely the exception sought, 

and provide a compelling justification 

for the grant of an exception as well as 

an account of any alternative risk 

reduction techniques the agency will 

employ in lieu of complying with the 

order. The official who issued the order 

has the authority to decide whether an 

exception will be granted. 

3. Miscellaneous Comments 

Some commenters urged the FASC to 

adopt rule provisions creating a 

permanent or standardized relationship 

between the FASC and the private 

sector. Although the FASC recognizes 

that the private sector has a great deal 

of knowledge about and experience with 

supply chain risk analysis and 

mitigation, the final rule does not 

provide for a particular type of formal 

relationship or engagement with 

industry. The FASC is still in the early 

stages of its operations and requires 

further information—gained from 

experience—to determine the most 

effective ways to interact with the 

private sector. It is premature to 

prescribe regulations dictating the 

nature of that engagement at this time. 

Some comments suggested that the 

FASC rely upon an already existing task 

force housed within the Department of 

Homeland Security. Although the FASC 

certainly intends to draw upon the 

knowledge and experience of that task 

force to the extent feasible, the final rule 

does not mandate a role for it. The task 

force managed by the Department of 

Homeland Security is not a permanent 

entity. It would therefore be impractical 

to mandate a role for that task force in 

FASC operations. 

Other comments emphasized the 

numerous supply chain risk initiatives 

within the Federal Government and 

requested that the FASC make efforts to 

bring coherence to the standards and 

activities stemming from those various 

initiatives. The FASC recognizes that 

the Federal Government’s supply chain 

risk management activities may benefit 

from greater consistency and 

coordination and intends to work 

toward those goals. 

Similarly, one comment urged the 

FASC to operate through an ‘‘interagency process’’ that accounts for ‘‘other 

supply chain-related laws, regulations, 

and risk mitigation measures.’’ The 

FASC emphasizes that it is itself an 

interagency body drawing upon the 

efforts and resources of its constituent 

members. The final rule, like the interim 

rule, provides that the FASC will be 

supported by a FASC Task Force 

composed of SCRM experts drawn from 

across the Federal Government. Because 

the FASC’s activities necessarily 

constitute an ‘‘inter-agency process,’’ no 

changes have been made to the interim 

rule in response to this comment. 

One commenter protested that 

exclusion or removal orders could have 

‘‘disparate impacts’’ on small 

businesses. But that commenter did not 

suggest any specific change that might 

address that putative problem while 

ensuring the FASC retained its ability to 

address supply chain risks. Both the 

interim and the final rule require the 

FASC to consider the intrusiveness of 

its recommendations; the effect of a 

recommended order on contractors, 

including small business, may be 

considered as appropriate as part of that 

analysis. As a result, no change to the 

rule has been made based on this 

comment. 

No change to the rule has been made 

in response to a comment asserting that 

complying with exclusion and removal 

orders is likely to be ‘‘incredibly 

expensive’’ to American companies. The 

FASC expects to weigh the burden 

likely to result from a recommended 

order against the anticipated benefit and 

would not lightly recommend an order 

that would be ‘‘incredibly expensive’’ 

either to the Federal Government or to 

the private sector. The final rule 

requires the FASC to include in a 

recommendation for an exclusion or 

removal order ‘‘a discussion of less 

intrusive measures that were considered 

and why such measures were not 

reasonably available to reduce supply 

chain risk.’’ That requirement will help 

to ensure that the costs of exclusion and 


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removal orders are not disproportionate 

to the scale of the risk at issue. 

Finally, one commenter asserted that 

commercial products and commercialoff-the-shelf (COTS) items should be 

excluded from the reach of the FASC 

because addressing them through 

exclusion or removal orders would 

‘‘deprive government of significant 

innovation and the latest technologies.’’ 

The FASC strongly disagrees with that 

recommendation. The ubiquity of 

commercial products and COTS items, 

not only within the Federal 

Government, but within the private 

sector as well, means that they are a 

frequent target of malicious actors 

seeking to find and capitalize upon 

technological vulnerabilities. Excluding 

those items from oversight by the FASC 

would undermine the Council’s ability 

to reduce the Federal Government’s 

exposure to supply chain risk. No 

changes have been made in response to 

this comment. 

V. Procedural Requirements 

Executive Orders 12866 

(Classification): This final rule has been 

designated non-significant and therefore 

was not reviewed by the Office of 

Management and Budget under 

Executive Order 12866. 

Regulatory Flexibility Act: Because 

the FASC was not required to publish a 

notice of proposed rulemaking for either 

the interim rule or this final rule under 

5 U.S.C. 553, no Regulatory Flexibility 

Analysis is required. See 5 U.S.C. 

603(a), 604(a). 

Congressional Review Act: Pursuant 

to the Congressional Review Act, (5 

U.S.C. 801 et seq.), the Office of 

Information and Regulatory Affairs 

designated this rule as not a ‘‘major 

rule,’’ as defined by 5 U.S.C. 804(2). 

Unfunded Mandates Reform Act of 

1995: This rule does not contain any 

unfunded mandate or significantly or 

uniquely affect small governments, as 

described in the Unfunded Mandates 

Reform Act of 1995. 

Executive Order 13132 (Federalism): 

This rule does not have Federalism 

implications as specified in Executive 

Order 13132. 

Executive Order 12630 (Governmental 

Actions and Interference with 

Constitutionally Protected Property 

Rights): This rule does not implement 

policies that have takings implications 

as identified in Executive Order 12630. 

Executive Order 13175 (Consultation 

and Coordination with Indian Tribes): 

The rule does not have tribal 

implications and will not impose 

substantial direct costs on tribal 

governments or preempt tribal law as 

specified by Executive Order 13175. 

National Environmental Policy Act: 

This rule does not require a detailed 

environmental analysis as the 

establishment and operation of FASC 

will not ‘‘individually or cumulatively 

have a significant effect on the human 

environment’’ (40 CFR 1508.4). 

List of Subjects in 41 CFR Part 201–1 

Computer technology, Cybersecurity, 

Government procurement, Government 

technology, Information technology, 

National security, Security measures, 

Science and technology, Supply chain, 

Supply chain risk management. 

Christopher DeRusha, 

Chair, Federal Acquisition Security Council. 

For the reasons set out in the 

preamble, the FASC amends 41 CFR 

subtitles D and E as follows: 

Subtitle D—Federal Acqusition Supply 

Chain Security 

■ 1. Revise the heading to subtitle D to 

read as set forth above. 

■ 2. Add chapter 201, consisting of part 

201–1, to subtitle D to read as follows: 

Chapter 201—FEDERAL ACQUISITION 

SECURITY COUNCIL 

PART 201–1—GENERAL 

REGULATIONS 

Subpart A—General 

Sec. 

201–1.100 Scope. 

201–1.101 Definitions. 

201–1.102 Federal Acquisition Security 

Council (FASC). 

Subpart B—Supply Chain Risk Information 

Sharing 

201–1.200 Information sharing agency 

(ISA). 

201–1.201 Submitting information to the 

FASC. 

Subpart C—Exclusion and Removal Orders 

201–1.300 Evaluation of sources and 

covered articles. 

201–1.301 Recommendation. 

201–1.302 Notice of recommendation to 

source and opportunity to respond. 

201–1.303 Issuance of orders and related 

activities. 

201–1.304 Executive agency compliance 

with exclusion and removal orders. 

Authority: 41 U.S.C. 1321–1328, 4713. 

Subpart A—General 

§ 201–1.100 Scope. 

(a) Applicability. Except as provided 

in paragraph (b) of this section, this part 

applies to the following: 

(1) The membership and operations of 

the FASC, including all Federal 

Government and contractor personnel 

supporting the FASC’s operations; 

(2) Submission and dissemination of 

supply chain risk information; and 

(3) Recommendations for, issuance of, 

and associated procedures related to 

removal orders and exclusion orders. 

(b) Clarification of scope. This part 

does not require the following: 

(1) Mandatory submission of supply 

chain risk information by non-Federal 

entities; or 

(2) The removal or exclusion of any 

covered article by non-Federal entities, 

except to the extent that an exclusion or 

removal order issued pursuant to 

subpart C of this part applies to prime 

contractors and subcontractors to 

Federal agencies. 

§ 201–1.101 Definitions. 

For the purposes of this part: 

Appropriate congressional 

committees and leadership means: 

(1) The Committee on Homeland 

Security and Governmental Affairs, the 

Committee on the Judiciary, the 

Committee on Appropriations, the 

Committee on Armed Services, the 

Committee on Commerce, Science, and 

Transportation, the Select Committee on 

Intelligence, and the majority and 

minority leader of the Senate; and 

(2) The Committee on Oversight and 

Government Reform, the Committee on 

the Judiciary, the Committee on 

Appropriations, the Committee on 

Homeland Security, the Committee on 

Armed Services, the Committee on 

Energy and Commerce, the Permanent 

Select Committee on Intelligence, and 

the Speaker and minority leader of the 

House of Representatives. 

Council or FASC means the Federal 

Acquisition Security Council. 

Covered article means any of the 

following: 

(1) Information technology, as defined 

in 40 U.S.C. 11101, including cloud 

computing services of all types; 

(2) Telecommunications equipment or 

telecommunications service, as those 

terms are defined in section 3 of the 

Communications Act of 1934 (47 U.S.C. 

153); 

(3) The processing of information on 

a Federal or non-Federal information 

system, subject to the requirements of 

the Controlled Unclassified Information 

program or subsequent U.S. Government 

program for controlling sensitive 

unclassified information; or 

(4) Hardware, systems, devices, 

software, or services that include 

embedded or incidental information 

technology. 

Covered procurement means: 

(1) A source selection for a covered 

article involving either a performance 

specification, as provided in subsection 

(a)(3)(B) of 41 U.S.C. 3306, or an 

evaluation factor, as provided in 

subsection (b)(1)(A) of 41 U.S.C. 3306, 


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relating to a supply chain risk, or where 

supply chain risk considerations are 

included in the executive agency’s 

determination of whether a source is a 

responsible source; 

(2) The consideration of proposals for 

and issuance of a task or delivery order 

for a covered article, as provided in 41 

U.S.C. 4106(d)(3), where the task or 

delivery order contract includes a 

contract clause establishing a 

requirement relating to a supply chain 

risk; 

(3) Any contract action involving a 

contract for a covered article where the 

contract includes a clause establishing 

requirements relating to a supply chain 

risk; or 

(4) Any other procurement in a 

category of procurements determined 

appropriate by the Federal Acquisition 

Regulatory Council, with the advice of 

the FASC. 

Covered procurement action means 

any of the following actions, if the 

action takes place in the course of 

conducting a covered procurement: 

(1) The exclusion of a source that fails 

to meet qualification requirements 

established under 41 U.S.C. 3311, for 

the purpose of reducing supply chain 

risk in the acquisition or use of covered 

articles; 

(2) The exclusion of a source that fails 

to achieve an acceptable rating with 

regard to an evaluation factor providing 

for the consideration of supply chain 

risk in the evaluation of proposals for 

the award of a contract or the issuance 

of a task or delivery order; 

(3) The determination that a source is 

not a responsible source, based on 

considerations of supply chain risk; or 

(4) The decision to withhold consent 

for a contractor to subcontract with a 

particular source or to direct a 

contractor to exclude a particular source 

from consideration for a subcontract 

under the contract. 

Executive agency means: 

(1) An executive department specified 

in 5 U.S.C. 101; 

(2) A military department specified in 

5 U.S.C. 102; 

(3) An independent establishment as 

defined in 5 U.S.C. 104(1); and 

(4) A wholly owned Government 

corporation fully subject to chapter 91 

of title 31, United States Code. 

Exclusion order means an order 

issued pursuant to 41 U.S.C. 1323(c)(5) 

that requires the exclusion of one or 

more sources or covered articles from 

executive agency procurement actions. 

Information and communications 

technology means: 

(1) Information technology as defined 

in 40 U.S.C. 11101; 

(2) Information systems, as defined in 

44 U.S.C. 3502; and 

(3) Telecommunications equipment 

and telecommunications services, as 

those terms are defined in section 3 of 

the Communications Act of 1934 (47 

U.S.C. 153). 

Information technology has the 

definition provided in 40 U.S.C. 11101. 

Intelligence Community includes the 

following: 

(1) The Office of the Director of 

National Intelligence; 

(2) The Central Intelligence Agency; 

(3) The National Security Agency; 

(4) The Defense Intelligence Agency; 

(5) The National GeospatialIntelligence Agency; 

(6) The National Reconnaissance 

Office; 

(7) Other offices within the 

Department of Defense for the collection 

of specialized national intelligence 

through reconnaissance programs; 

(8) The intelligence elements of the 

Army, the Navy, the Air Force, the 

Marine Corps, the Coast Guard, the 

Federal Bureau of Investigation, the 

Drug Enforcement Administration, and 

the Department of Energy; 

(9) The Bureau of Intelligence and 

Research of the Department of State; 

(10) The Office of Intelligence and 

Analysis of the Department of the 

Treasury; 

(11) The Office of Intelligence and 

Analysis of the Department of 

Homeland Security; 

(12) Such other elements of any 

department or agency as may be 

designated by the President, or 

designated jointly by the Director of 

National Intelligence and the head of 

the department or agency concerned, as 

an element of the Intelligence 

Community. 

National security system has the 

definition provided in 44 U.S.C. 3552. 

Removal order means an order issued 

pursuant to 41 U.S.C. 1323(c)(5) that 

requires the removal of one or more 

covered articles from executive agency 

information systems. 

Responsible source means a 

responsible prospective contractor and 

subcontractors, at any tier, as defined in 

part 9 of the Federal Acquisition 

Regulation (48 CFR part 9). 

Source means a non-Federal supplier, 

or potential supplier, of products or 

services, at any tier. 

Supply chain risk means the risk that 

any person may sabotage, maliciously 

introduce unwanted functionality, 

extract data, or otherwise manipulate 

the design, integrity, manufacturing, 

production, distribution, installation, 

operation, maintenance, disposition, or 

retirement of covered articles so as to 

surveil, deny, disrupt, or otherwise 

manipulate the function, use, or 

operation of the covered articles or 

information stored or transmitted by or 

through covered articles. 

Supply chain risk information 

includes, but is not limited to, 

information that describes or identifies: 

(1) Functionality and features of 

covered articles, including access to 

data and information system privileges; 

(2) The user environment where a 

covered article is used or installed; 

(3) The ability of a source to produce 

and deliver covered articles as expected; 

(4) Foreign control of, or influence 

over, a source or covered article (e.g., 

foreign ownership, personal and 

professional ties between a source and 

any foreign entity, legal regime of any 

foreign country in which a source is 

headquartered or conducts operations); 

(5) Implications to government 

mission(s) or assets, national security, 

homeland security, or critical functions 

associated with use of a source or 

covered article; 

(6) Vulnerability of Federal systems, 

programs, or facilities; 

(7) Market alternatives to the covered 

source; 

(8) Potential impact or harm caused 

by the possible loss, damage, or 

compromise of a product, material, or 

service to an organization’s operations 

or mission; 

(9) Likelihood of a potential impact or 

harm, or the exploitability of a system; 

(10) Security, authenticity, and 

integrity of covered articles and their 

supply and compilation chain; 

(11) Capacity to mitigate risks 

identified; 

(12) Factors that may reflect upon the 

reliability of other supply chain risk 

information; and 

(13) Any other considerations that 

would factor into an analysis of the 

security, integrity, resilience, quality, 

trustworthiness, or authenticity of 

covered articles or sources. 

§ 201–1.102 Federal Acquisition Security 

Council (FASC). 

(a) Composition. The following 

agencies and agency components shall 

be represented on the FASC: 

(1) Office of Management and Budget; 

(2) General Services Administration; 

(3) Department of Homeland Security; 

(4) Cybersecurity and Infrastructure 

Security Agency; 

(5) Office of the Director of National 

Intelligence; 

(6) National Counterintelligence and 

Security Center; 

(7) Department of Justice; 

(8) Federal Bureau of Investigation; 

(9) Department of Defense; 

(10) National Security Agency; 

(11) Department of Commerce; 


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(12) National Institute of Standards 

and Technology; and 

(13) Any other executive agency, or 

agency component, as determined by 

the Chairperson of the FASC. 

(b) FASC information requests. The 

FASC may request such information 

from executive agencies as is necessary 

for the FASC to carry out its functions, 

including evaluation of sources and 

covered articles for purposes of 

determining whether to recommend the 

issuance of removal or exclusion orders, 

and the receiving executive agency shall 

provide the requested information to the 

fullest extent possible. 

(c) Consultation and coordination 

with other councils. The FASC will 

consult and coordinate, as appropriate, 

with other relevant councils and 

interagency committees, including the 

Chief Information Officers Council, the 

Chief Acquisition Officers Council, the 

Federal Acquisition Regulatory Council, 

and the Committee on Foreign 

Investment in the United States, with 

respect to supply chain risks posed by 

the acquisition and use of covered 

articles. 

(d) Program office and committees. 

The FASC may establish a program 

office and any committees, working 

groups, or other constituent bodies the 

FASC deems appropriate, in its sole and 

unreviewable discretion, to carry out its 

functions. Such a committee, working 

group, or other constituent body is 

authorized to perform any function 

lawfully delegated to it by the FASC. 

Subpart B—Supply Chain Risk 

Information Sharing 

§ 201–1.200 Information sharing agency 

(ISA). 

The Act requires the FASC to identify 

an appropriate executive agency—the 

FASC’s information sharing agency 

(ISA)—to perform administrative 

information sharing functions on behalf 

of the FASC, as provided at 41 U.S.C. 

1323(a)(3). The ISA facilitates and 

provides administrative support to a 

FASC supply chain and risk 

management Task Force, and serves as 

the liaison to the FASC on behalf of the 

Task Force, as the Task Force develops 

the processes under which the functions 

described in 41 U.S.C. 1323(a)(3) are 

implemented on behalf of the FASC. 

The Department of Homeland Security 

(DHS), acting primarily through the 

Cybersecurity and Infrastructure 

Security Agency, is named the 

appropriate executive agency to serve as 

the FASC’s ISA. The ISA’s 

administrative functions shall not be 

construed to limit or impair the 

authority or responsibilities of any other 

Federal agency with respect to 

information sharing. 

(a) Submission of information. 

Information should be submitted to the 

FASC by sending it to the ISA, acting on 

behalf of the FASC. 

(b) Receipt and dissemination 

functions. The ISA, the Task Force, and 

support personnel at the FASC member 

agencies will carry out administrative 

information receipt and dissemination 

functions on behalf of the FASC. 

(c) Interagency supply chain risk 

management task force. The FASC may 

identify members for an interagency 

supply chain risk management (SCRM) 

task force (the Task Force) to assist the 

FASC with implementing its 

information sharing, analysis, and risk 

assessment functions as described in 41 

U.S.C. 1323(a)(3). The purpose of the 

Task Force is to allow the FASC to 

capitalize on the various supply chain 

risk management and information 

sharing efforts across the Federal 

enterprise. This Task Force includes 

technical experts in SCRM and related 

interdisciplinary experts from agencies 

identified in § 201–1.102 and any other 

agency, or agency component, the FASC 

Chairperson identifies. The ISA 

facilitates the efforts of, and provide 

administrative support to, the Task 

Force and periodically reports to the 

FASC on Task Force efforts. 

(d) Processes and procedures. The 

FASC will adopt and, as it deems 

necessary, revise: 

(1) Processes and procedures 

describing how the ISA operates and 

supports FASC recommendations issued 

pursuant to 41 U.S.C. 1323(c); 

(2) Processes and procedures 

describing how Federal and non-Federal 

entities must submit supply chain risk 

information (both mandatory and 

voluntary submissions of information) 

to the FASC, including any necessary 

requirements for information handling, 

protection, and classification; 

(3) Processes and procedures 

describing the requirements for the 

dissemination of classified, controlled 

unclassified, or otherwise protected 

information submitted to the FASC by 

executive agencies; 

(4) Processes and procedures 

describing how the ISA facilitates the 

sharing of information to support 

supply chain risk analyses under 41 

U.S.C. 1326, recommendations issued 

by the FASC, and covered procurement 

actions under 41 U.S.C. 4713; 

(5) Processes and procedures 

describing how the ISA will provide to 

the FASC and to executive agencies on 

behalf of the FASC information 

regarding covered procurement actions 

and any issued removal or exclusion 

orders; and 

(6) Any other processes and 

procedures determined by the FASC 

Chairperson. 

§ 201–1.201 Submitting information to the 

FASC. 

(a) Requirements for submission of 

information. All submissions of 

information to the FASC must be 

accomplished through the processes and 

procedures approved by the FASC 

pursuant to § 201–1.200. Any 

information submission to the FASC 

must comply with information sharing 

protections described in this subpart 

and be consistent with applicable law 

and regulations. 

(b) Mandatory information 

submission requirements. Executive 

agencies must expeditiously submit 

supply chain risk information to the ISA 

in accordance with guidance approved 

by the FASC pursuant to § 201–1.200 

when: 

(1) The FASC requests information 

relating to a particular source, covered 

article, or covered procurement; or 

(2) An executive agency has 

determined there is a reasonable basis to 

conclude that a substantial supply chain 

risk exists in connection with a source 

or covered article. In such instances, the 

executive agency shall provide the 

FASC with relevant information 

concerning the source or covered article, 

including: 

(i) Supply chain risk information 

identified in the course of the agency’s 

activities in furtherance of identifying, 

mitigating, or managing its supply chain 

risk; 

(ii) Supply chain risk information 

regarding any covered procurement 

actions by the agency under 41 U.S.C. 

4713; and 

(iii) Supply chain risk information 

regarding any orders issued by the 

agency under 41 U.S.C. 1323. 

(c) Voluntary information submission. 

All Federal and non-Federal entities 

may voluntarily submit to the FASC 

information relevant to SCRM, covered 

articles, sources, or covered 

procurement actions. 

(d) Information protections—Federal 

agency submissions. To the extent that 

the law requires the protection of 

information submitted to the FASC, 

agencies providing such information 

must ensure that it bears proper 

markings to indicate applicable 

handling, dissemination, or use 

restrictions. Agencies shall also comply 

with any relevant handling, 

dissemination, or use requirements, 

including but not limited to the 

following: 


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(1) For classified information, the 

transmitting agency shall ensure that 

information is provided to designated 

ISA personnel who have an appropriate 

security clearance and a need to know 

the information. The ISA, Task Force, 

and the FASC will handle such 

information consistent with the 

applicable restrictions and the relevant 

processes and procedures adopted 

pursuant to § 201–1.200. 

(2) With respect to controlled 

unclassified or otherwise protected 

unclassified information, the 

transmitting agency, the FASC, the ISA, 

and the Task Force will handle the 

information in a manner consistent with 

the markings applied to the information 

and the relevant processes and 

procedures adopted pursuant to § 201– 

1.200. 

(e) Information protections— 

submissions by non-Federal entities. 

Information voluntarily submitted to the 

FASC by a non-Federal entity shall be 

subject to the following provisions: 

(1) Supply chain risk information not 

otherwise publicly or commercially 

available that is voluntarily submitted to 

the FASC by non-Federal entities and 

marked ‘‘Confidential and Not to Be 

Publicly Disclosed’’ will not be released 

to the public, including pursuant to a 

request under 5 U.S.C. 552, except to 

the extent required by law. 

(2) Notwithstanding paragraph (e)(1) 

of this section, the FASC may, to the 

extent permitted by law, and subject to 

appropriate handling and 

confidentiality requirements as 

determined by the FASC, disclose the 

supply chain risk information 

referenced in paragraph (e)(1) in the 

following circumstances: 

(i) Pursuant to any administrative or 

judicial proceeding; 

(ii) Pursuant to a request from any 

duly authorized committee or 

subcommittee of Congress; 

(iii) Pursuant to a request from any 

domestic governmental entity or any 

foreign governmental entity of a United 

States ally or partner, but only to the 

extent necessary for national security 

purposes; 

(iv) Where the non-Federal entity that 

submitted the information has 

consented to disclosure; or 

(v) For any other purpose authorized 

by law. 

(3) This paragraph (e) shall continue 

to apply to supply chain risk 

information referenced in paragraph 

(e)(1) even after the FASC issues a 

recommendation for exclusion or 

removal pursuant to 41 U.S.C. 1323. 

(f) Dissemination of information by 

the FASC. The FASC may, in its sole 

discretion, disclose its 

recommendations and any supply chain 

risk information relevant to those 

recommendations to Federal or nonFederal entities if the FASC determines 

that such sharing may facilitate 

identification or mitigation of supply 

chain risk, and disclosure is consistent 

with the following paragraphs: 

(1) The FASC may maintain its 

recommendations and any supply chain 

risk information as nonpublic, to the 

extent permitted by law, or release such 

information to impacted entities and 

appropriate stakeholders. The FASC 

shall have discretion to determine the 

circumstances under which information 

will be released, as well as the timing 

of any such release, the scope of the 

information to be released, and the 

recipients to whom information will be 

released. 

(2) Any release by the FASC of 

recommendations or supply chain risk 

information will be in accordance title 

41 U.S.C. 1323 and the provisions of 

this subpart. 

(3) The FASC will not release a 

recommendation to a non-Federal 

entity, other than a source named in the 

recommendation, unless an exclusion or 

removal order has been issued based on 

that recommendation, and the named 

source has been notified. 

(4) The FASC (including the ISA, 

Task Force, and any other FASC 

constituent bodies) shall comply with 

applicable limitations on dissemination 

of supply chain risk information 

submitted pursuant to this subpart, 

including but not limited to the 

following restrictions: 

(i) Controlled Unclassified 

Information, such as Law Enforcement 

Sensitive, Proprietary, Privileged, or 

Personally Identifiable Information, may 

only be disseminated in compliance 

with the restrictions applicable to the 

information and in accordance with the 

FASC’s processes and procedures for 

disseminating controlled unclassified 

information as required by this part. 

(ii) Classified Information may only 

be disseminated consistent with the 

restrictions applicable to the 

information and in accordance with the 

FASC’s processes and procedures for 

disseminating classified information as 

required by this part. 

Subpart C—Exclusion and Removal 

Orders 

§ 201–1.300 Evaluation of sources and 

covered articles. 

(a) Referral procedure. The FASC may 

commence an evaluation of a source or 

covered article 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 a 

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) Relevant factors. In evaluating 

sources and covered articles, the FASC 

will analyze available information and 

consider, as appropriate, any relevant 

factors contained in the following nonexclusive list: 

(1) Functionality and features of the 

covered article, including the covered 

article’s or source’s access to data and 

information system privileges; 

(2) The user environment in which 

the covered article is used or installed; 

(3) Security, authenticity, and 

integrity of covered articles and 

associated supply and compilation 

chains, including for embedded, 

integrated, and bundled software; 

(4) The ability of the source to 

produce and deliver covered articles as 

expected; 

(5) 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 a Federal agency 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, 

testing, packaging, 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. 

(6) Implications for government 

missions or assets, national security, 

homeland security, or critical functions 

associated with use of the source or 

covered article; 

(7) Potential or existing threats to or 

vulnerabilities of Federal systems, 

programs or facilities, including the 

potential for exploitability; 


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(8) Capacity of the source or the U.S. 

Government to mitigate risks; 

(9) Credibility of and confidence in 

available information used for 

assessment of risk associated with 

proceeding, with using alternatives, 

and/or with enacting mitigation efforts; 

(10) Any transmission of information 

or data by a covered article to a country 

outside of the United States; and 

(11) Any other information that would 

factor into an assessment of supply 

chain risk, including any impact to 

agency functions, and other information 

as the FASC deems appropriate. 

(c) Foreign Ownership. Nothing in 

this section shall be construed to 

authorize the issuance of an exclusion 

or removal order based solely on the fact 

of the foreign ownership of a potential 

procurement source that is otherwise 

qualified to enter into procurement 

contracts with the Federal Government. 

(d) Due Diligence. As part of the 

analysis performed 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) Reviewing any information the 

FASC considers appropriate; and 

(2) Assessing the reliability of the 

information considered. 

(e) 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. 

§ 201–1.301 Recommendation. 

(a) Content of recommendation. The 

FASC shall include the following in any 

recommendation for the issuance of an 

exclusion or removal order made to the 

Secretary of Homeland Security, 

Secretary of Defense, and/or Director of 

National Intelligence: 

(1) Information necessary to positively 

identify any source or covered article 

recommended for exclusion or removal; 

(2) Information regarding the scope 

and applicability of the recommended 

exclusion or removal order, including 

whether the order should apply to all 

executive agencies or a subset of 

executive agencies; 

(3) A summary of the supply chain 

risk assessment reviewed or conducted 

in support of the recommended 

exclusion or removal order, including 

significant conflicting or contrary 

information, if any; 

(4) 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; 

(5) A description of the actions 

necessary to implement the 

recommended exclusion or removal 

order; and, 

(6) 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’s rescission of the 

recommendation. 

(b) Information sharing in the absence 

of a 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, 

in accordance with subpart B of this 

part. 

§ 201–1.302 Notice of recommendation to 

source and opportunity to respond. 

(a) Notice to source. The FASC shall 

provide a notice of its recommendation 

to any source named in the 

recommendation. 

(b) Content of notice. The notice 

under paragraph (a) of this section shall 

advise the source: 

(1) That a recommendation has been 

made; 

(2) Of the criteria the FASC relied 

upon and, to the extent consistent with 

national security and law enforcement 

interests, the information that forms the 

basis for the recommendation; 

(3) That, within 30 days after receipt 

of the notice, the source may submit 

information and argument in opposition 

to the recommendation; 

(4) Of the procedures governing the 

review and possible issuance of an 

exclusion or removal order; and 

(5) 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. 

(c) Submission of response by source 

and potential rescission of 

recommendation. Subject to any 

applicable procedures or processes 

developed by the FASC, and in 

accordance with any instructions 

provided to the source pursuant to 

paragraph (b) of this section, a source 

may submit to the ISA information or 

argument in opposition to a FASC 

recommendation. If a source submits 

information or argument in opposition: 

(1) The ISA will convey the source’s 

submission to the FASC and any 

appropriate constituent bodies and to 

the Secretary of Homeland Security, the 

Secretary of Defense, and the Director of 

National Intelligence. 

(2) Upon receipt of such information 

or argument in opposition, the FASC 

may rescind the recommendation if the 

FASC, consistent with the sole and 

unreviewable discretion provided in 

paragraph (b)(5) of this section: 

(i) Determines that the source has 

undertaken sufficient mitigation to 

reduce supply chain risk to an 

acceptable level; or 

(ii) Decides that other grounds justify 

rescission. 

(3) In the event that the FASC 

rescinds its recommendation, the ISA 

will communicate that decision to the 

source. The ISA will notify Secretary of 

Homeland Security, the Secretary of 

Defense, and the Director of National 

Intelligence of the rescission, and 

provide those officials with a summary 

of the FASC’s reasoning. 

(d) Confidentiality of notice issued to 

source. U.S. Government personnel 

shall: 

(1) Keep confidential and not make 

available outside of the executive 

branch, except to the extent required by 

law, any notice issued to a source under 

paragraph (a) of this section until an 

exclusion order or removal order is 

issued and the source has been notified; 

and 

(2) Keep confidential and not make 

available outside of the executive 

branch, except to the extent required by 

law, any notice issued to a source under 

paragraph (a) of this section if the FASC 

rescinds the associated recommendation 

or the Secretary of Homeland Security, 

Secretary of Defense, and Director of 

National Intelligence, as applicable, 

decide not to issue the recommended 

order. 

(e) Confidentiality of information 

submitted by source. Information not 

otherwise publicly or commercially 

available that is submitted to the FASC 

by a source pursuant to paragraph (c) of 

this section and marked ‘‘Confidential 

and Not to Be Publicly Disclosed’’ will 

not be released to the public, including 

pursuant to a request under 5 U.S.C. 

552, except to the extent required by 

law. That general rule notwithstanding, 

such information may be released as 

provided in § 201–1.201(d)(2). 

§ 201–1.303 Issuance of orders and related 

activities. 

(a) Consideration of recommendation 

and issuance of orders. The Secretary of 

Homeland Security, the Secretary of 

Defense, and the Director of National 

Intelligence shall each review the 

FASC’s recommendation, any 

accompanying information and 

materials provided pursuant to § 201– 

1.301, and any information submitted 

by a source pursuant to § 201–1.302, 

and determine whether to issue an 

exclusion or removal order based upon 

the recommendation. 


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(b) Administrative record. The 

administrative record for judicial review 

of an exclusion or removal order issued 

pursuant to 41 U.S.C. 1323(c)(6) shall, 

subject to the limitations set forth in 41 

U.S.C. 1327(b)(4)(B)(ii) through (v), 

consist only of: 

(1) The recommendation issued 

pursuant to 41 U.S.C. 1323(c)(2); 

(2) The notice of recommendation 

issued pursuant to 41 U.S.C. 1323(c)(3); 

(3) Any information and argument in 

opposition to the recommendation 

submitted by the source pursuant to 41 

U.S.C. 1323(c)(3)(C); 

(4) The exclusion or removal order 

issued pursuant to 41 U.S.C. 1323(c)(5), 

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. 

1323(c)(6)(A). 

(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 

(d)(2) 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 

(d)(2) of this section. 

(4) The officials identified in 

paragraphs (d)(1) 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: 

(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 

§ 201–1.101. 

(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 order’s 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 (d)(1) 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 

(d)(1) through (3) of this section shall 

review all issued exclusion and removal 

orders not less frequently than annually 

pursuant to procedures established by 

the FASC. 

(i) Modification or rescission of issued 

orders. The officials identified in 

paragraphs (d)(1) 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. 

§ 201–1.304 Executive agency compliance 

with exclusion and removal orders. 

(a) Agency compliance. Executive 

agencies shall: 

(1) Comply with exclusion and 

removal orders issued pursuant to 

§ 201–1.303 and applicable to their 

agency, as required by 41 U.S.C. 

1323(c)(7) and 44 U.S.C. 3554(a)(1)(B); 

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 

order’s provisions. The requesting 

agency: 

(1) May ask to be excepted from some 

or all of the order’s 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 agency’s 

ability to fulfill its mission- critical 

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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(vi) Any other information requested 

by the issuing official. 

Subtitle E [Removed and reserved] 

■ 3. Remove and reserve subtitle E. 

[FR Doc. 2021–17532 Filed 8–25–21; 8:45 am] 

BILLING CODE 3110–05–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 91 

[Docket No. FWS–HQ–MB–2021–0048; 

FXMB 12330900000//212//FF09M13000] 

RIN 1018–BF62 

Federal Migratory Bird Hunting and 

Conservation Stamp (Duck Stamp) 

Contest 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), are revising 

the regulations governing the annual 

Federal Migratory Bird Hunting and 

Conservation Stamp Contest (also 

known as the Federal Duck Stamp 

Contest (Contest)). We are removing the 

previously specified permanent theme 

and the mandatory inclusion of an 

appropriate hunting element within all 

Contest entries and revising the 

qualifications of the judging panel to 

reflect this change beginning with the 

2022 Contest. 

DATES: This rule is effective September 

27, 2021. 

ADDRESSES: You can view the 2022 

Contest Artist Brochure after October 1, 

2021, by one of the following methods: 

• Accessing the Duck Stamp Contest 

& Event Information page at: https://

www.fws.gov/birds/get-involved/duckstamp/duck-stamp-contest-and-eventinformation.php. 

• Requesting a copy by contacting the 

person listed under FOR FURTHER

INFORMATION CONTACT. 

FOR FURTHER INFORMATION CONTACT: 

Jerome Ford, U.S. Fish and Wildlife 

Service, Department of the Interior, 

(202) 208–1050. 

SUPPLEMENTARY INFORMATION: 

Background 

History of the Federal Migratory Bird 

Hunting and Conservation Stamp (Duck 

Stamp) Program 

On March 16, 1934, Congress passed 

and President Franklin D. Roosevelt 

signed the Migratory Bird Hunting 

Stamp Act, which was later amended to 

become the Migratory Bird Hunting and 

Conservation Stamp Act (16 U.S.C. 718– 

718j, 48 Stat. 452). Popularly known as 

the Duck Stamp Act, the law requires all 

waterfowl hunters who have attained 

the age of 16 to buy an annual stamp. 

Funds generated from Duck Stamp sales 

are used to protect waterfowl and 

wetland habitat that is incorporated into 

the National Wildlife Refuge System 

from willing sellers and those interested 

in obtaining conservation easements. 

Over 1.5 million stamps are sold each 

year, and, as of 2021, Federal Duck 

Stamps have generated more than $1.1 

billion for the conservation of more than 

6 million acres of waterfowl habitat in 

the United States. In addition to 

waterfowl, numerous other birds, 

mammals, fish, reptiles, and amphibians 

benefit from habitat protected by the 

Duck Stamp revenues, including an 

estimated one-third of the nation’s 

endangered and threatened species. The 

healthy wetlands protected by Duck 

Stamp funding sequester carbon and 

contribute to addressing the impacts of 

climate change, including absorbing 

flood waters and storm surge. These 

wetlands purify water supplies and 

provide economic support to local 

communities as they attract outdoor 

recreationists from many different 

backgrounds. 

History of the Duck Stamp Contest 

The first Federal Duck Stamp was 

designed at President Roosevelt’s 

request by Jay N. ‘‘Ding’’ Darling, a 

nationally known political cartoonist for 

the Des Moines Register and a hunter 

and wildlife conservationist. In 

subsequent years, noted wildlife artists 

were asked to submit designs for the 

stamp. The first Contest was opened in 

1949 to any U.S. artist who wished to 

enter. Since then, the Contest has 

attracted large numbers of entrants, and 

it remains the only art competition of its 

kind sponsored by the U.S. Government. 

The Secretary of the Interior appoints a 

panel of judges who have expertise in 

the area of art, waterfowl, or philately to 

select each year’s winning design. 

Winners receive no compensation for 

the work, except a pane of Duck Stamps, 

based on their winning design, signed 

by the Secretary of the Interior. 

However, winners maintain the 

copyright to their artwork and may sell 

prints of their designs, which are sought 

by hunters, conservationists, and art 

collectors. 

Waterfowl hunters have been the 

greatest contributors to the program, as 

they are required to purchase Duck 

Stamps in order to hunt waterfowl. 

Many individuals not engaged in 

hunting also purchase Duck Stamps to 

contribute to conservation or for the 

stamp’s artistic value. 

The 2020 Final Rule and 2021 Contest 

On May 8, 2020, the Service 

published a final rule (85 FR 27313) 

revising the regulations in title 50 of the 

Code of Federal Regulations (CFR) at 

part 91 (50 CFR part 91) governing the 

annual Federal Duck Stamp Contest. 

The Contest regulations made 

permanent the theme ‘‘celebrating our 

waterfowl hunting heritage’’ for all 

future Contests. The regulations 

required the inclusion of a waterfowl 

hunting-related scene or accessory in 

every entry but did not specify what 

accessories to include. Requirements for 

the judging panel specified that all 

judges would have one or more 

prerequisite qualifications, which could 

include the ability to recognize 

waterfowl hunting accessories. An 

image of a drake lesser scaup with a 

lanyard and duck calls was chosen as 

the winner of the 2020 Contest, and this 

image appears on the 2021–2022 

Federal Duck Stamp. 

The 2021 Contest species and 

regulations, with the permanent theme 

and mandatory inclusion of waterfowl 

hunting-related accessories or scenes in 

all entries, were widely publicized and 

in effect for the 2021 Contest. The entry 

period for artwork closed on August 15, 

2021. The Service reminded artists that 

their entries for the 2021 Contest must 

adhere to the theme, entry 

qualifications, and judging requirements 

published in the regulations. Regardless 

of the effective date of this rule (see 

DATES, above), the 2021 Contest species 

and regulations apply to the 2021 

Contest. 

Proposed Rule To Amend the Duck 

Stamp Regulations 

On June 23, 2021, we published a 

proposed rule (86 FR 32878) to remove 

the permanent ‘‘celebrating our 

waterfowl hunting heritage’’ theme, 

which required the mandatory inclusion 

of an appropriate hunting-related 

element in all Contest entries, and 

accordingly to revise the qualifications 

for selection as a judge and the scoring 

criteria for the Contest, beginning with 

the 2022 Contest. The Service proposed 

the changes to the regulations to allow 

artists more freedom of expression when 

designing their Contest entries. 

Summary of Public Comments and 

Responses 

We accepted public comments on our 

June 23, 2021, proposed rule for 30 

days, ending July 23, 2021, and we 

invited comments on the proposed 

changes from artists, stamp collectors, 


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