The Department of Commerce on Tuesday issued a notice of proposed rulemaking on securing the communications supply chains. The proposed rule sets out the procedures the Secretary of Commerce plans to use to identify, assess, and address transactions that pose an undue risk to the critical infrastructure in the United States or an unacceptable risk to national security. The public will have 30 days to submit comments.
“These rules demonstrate our commitment to securing the digital economy, while also delivering on President Trump’s commitment to our digital infrastructure,” said Secretary of Commerce Wilbur Ross.
The President issued an executive order in May in light of finding that foreign adversaries are increasingly exploiting communications supply chains 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, 2019, that involve communications supply chains designed, manufactured, or supplied by a foreign adversary, if such transactions pose an undue risk of sabotage.
Ross chose to adopt a case-by-case approach to determine which transactions must be prohibited, or which can be mitigated, according to the requirements in the executive order. Ross will use assessments developed by the Secretary of Homeland Security and the Director of National Intelligence to inform his evaluation.
Under the proposed rule, if the Secretary makes a preliminary determination, in consultation with other federal agencies, to prohibit or mitigate a transaction, he will notify the parties engaged in the transaction. They will have an opportunity to submit a position, which may include proposed measures for mitigation, prior to any final decision. 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, as appropriate, a summary of the final determination will also be made publicly available.
The Department invites comment on all aspects of the proposed rule, but notes that the determination of “foreign adversaries” for the purpose of the Executive Order is solely within the Secretary’s discretion. Submit comments using the federal eRulemaking Portal: http://www.regulations.gov to Docket #DOC-2019-0005.
November 27, 2019
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