[Federal Register Volume 86, Number 183 (Friday, September 24, 2021)]
[Proposed Rules]
[Pages 53018-53021]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-20430]


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DEPARTMENT OF COMMERCE

15 CFR Subtitle A

[210913-0183]
RIN 0605-AA61


Taking Additional Steps To Address the National Emergency With 
Respect to Significant Malicious Cyber-Enabled Activities

AGENCY: U.S. Department of Commerce.

ACTION: Advance notice of proposed rulemaking (ANPRM).

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SUMMARY: Executive Order 13984 of January 19, 2021, Taking Additional 
Steps to Address the National Emergency with Respect to Significant 
Malicious Cyber-Enabled Activities,'' directs the Secretary of Commerce 
(Secretary) to implement regulations to govern the process and 
procedures that the Secretary will use to deter foreign malicious cyber 
actors' use of United States Infrastructure as a Service (IaaS) 
products and assist in the investigation of transactions involving 
foreign malicious cyber actors. The Department of Commerce (the 
Department) is issuing this ANPRM to solicit public comments on 
questions pertinent to the development of regulations pursuant to this 
Executive Order.

DATES: Comments must be received by October 25, 2021.

ADDRESSES: All comments must be submitted by one of the following 
methods:
    <bullet> By the Federal eRulemaking Portal: http://www.regulations.gov at docket number: DOC-2021-0007.
    <bullet> By email directly to: <a href="/cdn-cgi/l/email-protection#470e26261424282a2a222933340723282469202831"><span class="__cf_email__" data-cfemail="054c646456666a6868606b717645616a662b626a73">[email protected]</span></a>. Include ``E.O. 
13984: ANPRM'' in the subject line.
    <bullet> Instructions: Comments sent by any other method or to any 
other address or individual, or received after the end of the comment 
period, may not be considered. For those seeking to submit confidential 
business information (CBI), please clearly mark such submissions as CBI 
and submit by email or via the Federal eRulemaking Portal, as 
instructed above. Each CBI submission must also contain a summary of 
the CBI, clearly marked as public, in sufficient detail to permit a 
reasonable understanding of the substance of the information for public 
consumption. Such summary information will be posted on 
regulations.gov.

FOR FURTHER INFORMATION CONTACT: Justin LP Shore, U.S. Department of 
Commerce, email: <a href="/cdn-cgi/l/email-protection#024b636351616d6f6f676c767142666d612c656d74"><span class="__cf_email__" data-cfemail="430a222210202c2e2e262d373003272c206d242c35">[email protected]</span></a>. For media inquiries: Brittany 
Caplin, Deputy Director of Public Affairs and Press Secretary, U.S. 
Department of Commerce, telephone: (202) 482-4883, email: 
<a href="/cdn-cgi/l/email-protection#7c2c091e10151f3d1a1a1d150e0f3c18131f521b130a"><span class="__cf_email__" data-cfemail="92c2e7f0fefbf1d3f4f4f3fbe0e1d2f6fdf1bcf5fde4">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Background

    E.O. 13984, issued on January 19, 2021, and entitled ``Taking 
Additional Steps to Address the National Emergency with Respect to 
Significant Malicious Cyber-Enabled Activities,'' \1\ was issued 
pursuant to the President's authority under the Constitution and the 
laws of the United States, including the International Emergency 
Economic Powers Act,\2\ the National Emergencies Act,\3\ and section 
301 of Title 3, United States Code. In E.O. 13984, the President 
determined that additional steps must be taken to address the national 
emergency related to significant malicious cyber-enabled activities 
declared in Executive Order 13694, Blocking the Property of Certain 
Persons Engaging in Significant Malicious Cyber-Enabled Activities (80 
FR 18077, Apr. 1, 2015).
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    \1\ E.O. 13984, 86 FR 6837 (Jan. 19, 2021).
    \2\ Public Law 95-223 (October 28, 1977), 91 Stat. 1626, 
codified as amended at 50 U.S.C. 1701 et seq. (2018) (``IEEPA'').
    \3\ Public Law 94-412 (September 14, 1976), 90 Stat. 1255, 
codified as amended at 50 U.S.C. 1601 et seq. (2018) (``NEA'').
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    E.O. 13984 addresses the threat posed by the use of U.S. cloud 
infrastructure by foreign malicious cyber actors to conduct malicious 
cyber-enabled activities, including theft of sensitive data and 
intellectual property and targeting of U.S. critical infrastructure. 
IaaS products provide the ability to run software and store data on 
servers offered for rent or lease without responsibility for the 
maintenance and operating costs of those servers.\4\ The United States 
must ensure that providers offering United States IaaS products verify 
the identity of persons obtaining an IaaS account for the provision of 
these products and maintain records of those transactions \5\ as 
foreign persons obtain or offer for resale IaaS accounts (Accounts) 
with U.S. IaaS providers, and then use these Accounts to conduct 
malicious cyber-enabled activities against U.S. interests. Malicious 
actors then destroy evidence of their prior activities and transition 
to other services. This pattern makes it extremely difficult to track 
and obtain information on foreign malicious cyber actors and their 
activities in a timely manner, especially if U.S. IaaS providers do not 
maintain updated information and records of their customers or the 
lessees and sub-lessees of those customers.
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    \4\ E.O. 13984 at 6837.
    \5\ Id.
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    To ``deter foreign malicious cyber actors' use of U.S. IaaS 
products, and assist in the investigation of transactions involving 
foreign malicious cyber actors,'' \6\ E.O. 13984 requires more robust 
record-keeping practices and user identification and verification 
standards within the industry to better assist investigative efforts. 
Additionally, E.O. 13984 encourages the adoption of and adherence to 
security best practices to deter abuse of U.S. IaaS products by 
allowing the Secretary to take into account compliance with such best 
practices in deciding to exempt certain U.S. IaaS providers, Accounts, 
or lessees from any final regulations stemming from Section 1 of E.O. 
13984.
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    \6\ Id.
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    E.O. 13984 tasks the Secretary, specifically, with implementing 
regulations that require U.S. IaaS providers to: (1) Verify the 
identity of a foreign person that obtains an Account (i.e., 
identification, verification, and recordkeeping obligations) (Section 
1); and (2) implement special measures to prohibit or impose conditions 
on Accounts within certain foreign jurisdictions or of certain foreign 
persons, where the Secretary, in consultation with specified agency 
heads, makes a finding that either (i) reasonable grounds exist for 
concluding that a foreign jurisdiction has any significant number of 
foreign persons offering U.S. IaaS products, as defined in Section 5 of 
E.O. 13984, that are used for malicious cyber-enabled activities or any 
significant number of foreign persons directly obtaining U.S. IaaS 
products for use in malicious cyber-enabled activities; or (ii) 
reasonable grounds exist for concluding that a foreign person has 
established a pattern of conduct of offering U.S. IaaS products that 
are used for malicious cyber-enabled activities or directly obtaining 
U.S. IaaS products for use in malicious cyber-enabled activities 
(Section 2). Section 3 of E.O. 13984, which is not a part of this 
potential rulemaking, directs the Attorney General and the Secretary of 
Homeland Security, in coordination with the Secretary and the heads of 
other agencies, as deemed appropriate, to solicit feedback from 
industry that

[[Page 53019]]

culminates in a report to the President recommending ways to encourage 
information sharing and collaboration amongst U.S. IaaS providers and 
government. Finally, Sections 4-7 consider resources necessary for 
implementation, relevant definitions, reporting authorizations, and 
other general provisions. This ANPRM seeks comments specifically on how 
the Secretary should implement, through regulation, E.O. 13984 Section 
1 (Verification of Identity), Section 2 (Special Measures for Certain 
Foreign Jurisdictions or Foreign Persons), and Section 5 (Definitions).

II. Issues for Comment

    The Department welcomes comments and views on all aspects of how 
the Secretary should implement Sections 1, 2, and 5 of E.O. 13984, but 
is particularly interested in obtaining information on the following 
questions, within four categories: (1) Customer due diligence 
regulations and relevant exemptions; (2) special measures; (3) 
definitions, and (4) overarching inquiries. The Department encourages 
commenters to reference specific question numbers to facilitate the 
Department's review of comments.
    Customer Due Diligence Regulations and Relevant Exemptions:
    (1) E.O. 13984 requires the Secretary to promulgate regulations 
that set forth minimum standards that U.S. IaaS providers must adopt to 
verify the identity of a foreign person when (1) opening an Account or 
(2) ``maintain[ing]'' an existing Account, including types of 
documentation and procedures required for verification and records that 
U.S. IaaS providers must securely maintain in both instances.
    a. How should the Department implement the requirement for both 
verifying a foreign person's identity (1) upon the opening of an 
Account, and (2) during the ``maintenance of an existing Account,'' and 
what should the Department consider in determining customer due 
diligence requirements for U.S. IaaS providers?
    b. Can the Department implement the requirement to verify a foreign 
person's identity (1) upon the opening of an Account, and (2) during 
the ``maintenance of an existing Account,'' while minimizing the impact 
on U.S. persons' opening or using such Accounts, or will the 
application of the requirements to foreign persons in practice 
necessitate the application of that requirement across all customers?
    c. How do the records specifically identified within Section 
1(a)(ii)(A)-(D) compare with the types of customer documentation and 
records that are currently collected by U.S. IaaS providers? Will 
changes be required in U.S. IaaS providers' business processes or 
technical architectures for the maintenance of the records explicitly 
listed in Section 1(a)(ii)(A)-(D), and if so, what are these changes? 
What differences may exist in U.S. IaaS providers' ability to obtain 
certain records based on the type of U.S. IaaS product in question 
(i.e., managed vs. unmanaged services, virtual private servers or 
virtual private network products vs. cloud services)? What level of 
burden for U.S. IaaS providers would be associated with such changes?
    d. Do U.S. IaaS providers currently collect information on the true 
users of their respective IaaS products, to include reselling 
activities? If no, what level of burden would be associated with a 
requirement to track lessees through resellers, including to verify 
nationality and collect/store identity information, and to augment 
existing U.S. IaaS providers' Terms and Conditions and Service Level 
Agreements to reflect these obligations?
    e. What additional identifying information is collected by U.S. 
IaaS providers that could potentially assist with verification of 
customer identity and customer due diligence? Do U.S. IaaS providers 
possess other categories of information that would assist in the 
identification and investigation of foreign malicious cyber actors 
(e.g., Account log information, suspicious/abnormal Account activity 
reports, threat monitoring reports, suspended or blocked services by 
third parties, etc.)? What would be the associated benefits or costs of 
including such records within the scope of the obligation to maintain 
records of foreign persons that obtain an Account?
    f. Do U.S. IaaS providers have the capacity or capability to 
augment technical identity verification (e.g., Two-Factor 
Authentication (2FA)) with additional, non-technical vetting (e.g., 
third-party person/entity vouching) to further deter foreign malicious 
cyber actors from acquiring replacement infrastructure?
    g. What types of data or technical analyses, if any, do U.S. IaaS 
providers use to identify or detect accounts that violate terms of 
service related to identify verification--including for those using 
fake names, fraudulent government documents or other fraudulent 
identification records--of relevant services?
    h. What procedures and processes should the Department consider to 
minimize the potential burden on U.S. IaaS providers to implement 
verification and recordkeeping obligations under E.O. 13984?
    i. Do U.S. IaaS providers currently take a risk-based approach to 
customer verification and ongoing customer due diligence, and should 
the Department consider some form of blended risk-based approach (i.e., 
a small number of explicitly listed minimum identification and 
verification requirements, coupled with a more risk-based approach to 
allow providers to develop their own programs based on their specific 
operations)?
    j. What should the Department consider, including U.S. IaaS 
providers' current methods of securing and limiting access to 
personally identifiable information and other sensitive data, when 
setting forth minimum standards and methods by which U.S. IaaS 
providers should limit third-party access to the records that are 
described in Section 1(a)(ii)(A)-(D), or that might otherwise be 
required to be maintained?
    (2) What data protection and security implications should the 
Department be aware of when considering the imposition on U.S. IaaS 
providers of requirements to maintain records regarding foreign person 
customers? For example, how might the European Union General Data 
Protection Regulation (GDPR), the California Consumer Privacy Act 
(CCPA), or other relevant data protection and security laws and 
regulations affect U.S. IaaS providers' ability to fulfill these 
record-keeping requirements pursuant to E.O. 13984? Should the 
Department consider specific limitations on the amount of time that 
such records must be kept?
    (3) What other international implications for U.S. IaaS providers 
should the Department be aware of when designing customer due diligence 
rules? How can the Department mitigate the risk of negative 
international consequences, if any, of such rules?
    (4) What should the Department consider when deciding how 
compliance with the requirements adopted under Section 1 should be 
monitored and enforced (i.e., should compliance and enforcement be 
strictly limited to instances following malicious cyber activities that 
are traced back to specific U.S. IaaS providers; should the Department 
implement a voluntary or required proactive suspicious/abnormal Account 
activity report mechanism to assist in ongoing due diligence; should 
the Department periodically conduct compliance audits)? How should the 
Department verify that Section 1 requirements are being met?
    (5) Section 1(c) permits the Secretary, in consultation with other 
Federal agency heads, to provide an exemption

[[Page 53020]]

from the requirements of any rules issued pursuant to Section 1 to a 
``provider, Account, or lessee [that] complies with security best 
practices to otherwise deter abuse of IaaS products.'' \7\
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    \7\ E.O. 13984 at 6838.
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    a. Should exemptions be granted on a one-time basis, or should such 
exemptions be time-limited, with an obligation of renewal after a 
certain period of time? If renewals are required, what should be the 
timeframe for renewals?
    b. What security practices do U.S. IaaS providers currently use to 
identify or detect foreign malicious cyber actors' abuse of their 
services?
    c. What IaaS industry standards or best practices should the 
Department use to assess the appropriateness of an exemption from the 
rules issued under Section 1? To what extent are these standards or 
best practices sufficient to deter abuse of U.S. IaaS products by 
foreign malicious cyber actors? Would existing standards or practices 
need to be adapted for purposes of E.O. 13984?
    d. How might a framework for best practices account for the dynamic 
and ever-evolving threat environment while allowing U.S. IaaS providers 
to stay agile in their company-specific programs?
    e. How should the Secretary assess compliance with any security 
best practices for purposes of determining whether an exemption should 
be granted for a U.S. IaaS provider, type of account, or type of 
lessee? Should U.S. IaaS providers be permitted to conduct a self-
assessment of such compliance, and if so, what type of documentation or 
certification should be required? Should verification of compliance by 
an independent third-party be required? If so, what should be assessed 
by that third party and what documentation should the Secretary 
request?
    f. When granting exemptions, should the Secretary consider granting 
partial exemptions from the rules issued under Section 1 (i.e., should 
the Secretary consider exempting certain providers, types of Accounts, 
or types of lessees from initial customer due diligence verification 
procedures, but not any ongoing customer-due-diligence procedures)?
    g. What should the Department take into consideration when 
determining if specific ``types'' of Accounts or lessees should be 
exempt from Section 1 rules?
    Special Measures Restrictions:
    Section 2 permits the Secretary, in consultation with the Secretary 
of State, the Secretary of the Treasury, the Secretary of Defense, the 
Attorney General, the Secretary of Homeland Security, the Director of 
National Intelligence and, as the Secretary deems appropriate, the 
heads of other executive departments and agencies, to require U.S. IaaS 
providers to implement special measures to prohibit or impose 
conditions on Accounts upon a finding that reasonable grounds exist for 
concluding that either: (1) Certain foreign persons have established a 
pattern of offering or directly obtaining U.S. IaaS products that are 
used for malicious cyber-enabled activities; or (2) certain foreign 
jurisdictions have any significant number of foreign persons offering 
or directly obtaining U.S. IaaS products that are used for malicious 
cyber-enabled activities.
    (6) Is there particular information or sources of information that 
the Secretary should consider when making a determination under Section 
2?
    (7) Form of Finding: Should the Secretary be required to publish a 
finding in a particular form (i.e., order, regulation, etc.), and if 
so, what reasoning supports that form?
    (8) Duration of Finding: What, if any, suggested restrictions 
should there be regarding the duration of any special measure? Should 
the form of a particular finding vary depending on the special measure 
duration?
    (9) In making a reasonable grounds finding under Section 2, the 
E.O. requires the Secretary to consider any information the Secretary 
determines to be relevant, but also weigh specific, enumerated factors 
articulated within Section 2(b) of E.O. 13984, depending on whether the 
special measures pertain to a foreign jurisdiction or a foreign person. 
Are the factors enumerated within Section 2(b) comprehensive, or should 
the Secretary consider other factors when making a finding?
    (10) In selecting which special measure or measures to take, 
Section 2(c) of the E.O. requires the Secretary to consider: (i) 
Whether the imposition of any special measure would create a 
significant competitive disadvantage, including any undue cost or 
burden associated with compliance, for U.S. IaaS providers; (ii) the 
extent to which the imposition of any special measure or the timing of 
the special measure would have a significant adverse effect on 
legitimate business activities involving the particular foreign 
jurisdiction or foreign person; and (iii) the effect of any special 
measure on U.S. national security, law enforcement investigations, or 
foreign policy.
    a. Could the Secretary's selection of types of conditions to impose 
under Section 2 effectively mitigate any competitive disadvantages to 
U.S. IaaS providers or effects on legitimate business purposes? If so, 
how?
    b. Are there any examples or frameworks that the Secretary should 
draw on in considering the factors listed in Section 2(c) (i.e., in 
balancing any competitive disadvantage or impact on legitimate business 
activities against the impact of special measures on national security 
and law enforcement considerations)?
    (11) Section 2(d) articulates the two specific special measures 
that the Secretary is able to take to condition or prohibit the opening 
or maintaining of Accounts by (1) foreign persons within certain 
foreign jurisdictions or by (2) certain foreign persons seeking to open 
or maintain an Account in the U.S.
    a. Section 2(d)(i), Prohibitions or Conditions on Accounts within 
Certain Foreign Jurisdictions, permits the Secretary to prohibit or 
impose conditions on the opening or maintaining of an Account ``by any 
foreign person located in a foreign jurisdiction'' found to have any 
significant number of foreign persons offering U.S. IaaS products used 
for malicious cyber-enabled activities.\8\ When implementing this 
provision, should the Secretary consider using this provision to impose 
conditions or prohibitions on specific foreign persons located within 
foreign jurisdictions based on findings related to the jurisdiction? 
What should the Secretary consider in determining whether to impose 
conditions or prohibitions on all foreign persons located within the 
foreign jurisdiction in question or only specific foreign persons or 
Accounts?
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    \8\ E.O. 13984 at 6839.
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    i. How do U.S. IaaS providers expect to implement this special 
measure?
    ii. How are providers able to assess and verify the jurisdiction 
from which persons are based? What tools are available to U.S. IaaS 
providers to assess or verify the jurisdiction from which persons are 
located?
    b. Section 2(d)(ii), Prohibitions or Conditions on Certain Foreign 
Persons, permits the Secretary to prohibit or impose conditions ``on 
the opening or maintaining in the United States of an Account, 
including a Reseller Account, by any United States IaaS provider for or 
on behalf of a foreign person,'' if such an Account involves any such 
foreign person found to be offering or obtaining U.S. IaaS products for 
malicious cyber-enabled activities.\9\ In implementing this provision, 
how should the Department assess whether an Account is ``opened or 
maintained in the United States''? For example, should the

[[Page 53021]]

Department look only at the customer's location or also at the location 
of the services or infrastructure being provided?
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    \9\ Id.
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    i. How do U.S. IaaS providers expect to implement this special 
measure?
    Definitions:
    (12) E.O. 13984 defines ``United States person'' to mean ``any 
United States citizen, lawful permanent resident of the United States 
as defined by the Immigration and Nationality Act, entity organized 
under the laws of the United States or any jurisdiction within the 
United States (including foreign branches), or any person located in 
the United States.'' \10\ It also defines ``United States 
Infrastructure as a Service Provider'' to mean ``any United States 
Person that offers any Infrastructure as a Service Product.'' \11\
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    \10\ E.O. 13984 at 6841.
    \11\ Id.
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    a. What should the Department consider when determining whether a 
foreign subsidiary of a parent U.S. IaaS provider entity would be 
subject to the regulations implementing E.O. 13984? What implications 
for international commerce would there be, if any, if foreign 
subsidiaries were covered by the rule?
    Overarching Inquiries:
    (13) What key differences in industry makeup, market dynamics, and 
general business practices should be taken into consideration when 
drafting E.O. 13984's proposed rule language compared with similar 
regulatory frameworks in other industries (such as the Financial Crimes 
Enforcement Network's Customer Due Diligence and 311 Special Measure 
regulations)?
    (14) Foreign malicious cyber actors often are able to acquire and 
provide fake names, government documents, and other identification 
records, making it increasingly difficult for IaaS providers to verify 
identities in a timely fashion. Do commenters believe that the 
Department should place more emphasis on ongoing customer-due-diligence 
efforts instead of initial Account creation requirements? How might 
this approach better accomplish E.O. 13984's goals to deter foreign 
malicious cyber actors' use of United States IaaS products, and to 
assist in the investigation of transactions involving foreign malicious 
cyber actors?
    (15) Are there fraud-prevention regimes--whether regulatory or 
technical--used in other industries (e.g., finance) that would enable 
the more consistent discovery of the use of fake names, government 
documents, and other identification records when establishing Accounts 
with U.S. IaaS providers?

    Dated: September 16, 2021.
Trisha B. Anderson,
Deputy Assistant Secretary, Intelligence & Security, U.S. Department of 
Commerce.
[FR Doc. 2021-20430 Filed 9-23-21; 8:45 am]
BILLING CODE 3510-20-P


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