Commerce Proposes Rules to Address Foreign Adversaries in Communications
Tuesday, November 26, 2019 | Comments

The U.S. Department of Commerce issued a notice of proposed rulemaking and requested comment on proposed rules to identify, assess, and address information and communications technology and services (ICTS) transactions that pose an undue risk to the critical infrastructure or the digital economy in the United States. The public has 30 days to submit comments.

“These actions will safeguard the information and communications technology supply chain,” said Secretary of Commerce Wilbur Ross. “These rules demonstrate our commitment to securing the digital economy while also delivering on President Trump’s commitment to our digital infrastructure.”

The president issued executive order 13873 on May 15 in light of the finding that foreign adversaries are increasingly exploiting ICTS to commit cyber actions, including economic and industrial espionage against the United States. The order gives the Secretary of Commerce authority to prohibit or mitigate transactions initiated, pending or completed after May 15 that involve ICTS supplied by persons subject to the jurisdiction or direction of a foreign adversary, if such transactions pose an undue risk.

The secretary chose to adopt a case-by-case, fact-specific approach to determine which transactions must be prohibited or which can be mitigated, according to the requirements in the order. The secretary will use assessments developed by the secretary of Homeland Security and the director of National Intelligence pursuant to the executive order, among other things, to inform his evaluation of ICTS transactions.

Under the proposed rule, if the secretary makes a preliminary determination, in consultation with other federal agencies, to prohibit or mitigate a transaction, the secretary will provide notice to the parties engaged in the transaction. Notified parties will have an opportunity to submit a position, which may include proposed measures for mitigation, prior to any final determination issued by the secretary. The secretary will provide an unclassified, written final determination provided to the parties that, to the extent possible, explains how the decision is consistent with the terms of the executive order, and a summary of the final determination will also be made publicly available.

Comments must be submitted by the Federal eRulemaking Portal at http://www.regulations.gov or emailed to ICTsupplychain@doc.gov. Include “RIN 0605-AA51” in the subject line.

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