cfr_sections
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70 rows where part_number = 791 sorted by section_id
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| section_id ▼ | title_number | title_name | chapter | subchapter | part_number | part_name | subpart | subpart_name | section_number | section_heading | agency | authority | source_citation | amendment_citations | full_text |
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| 15:15:3.1.1.3.27.1.1.1 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | A | Subpart A—General | § 791.1 Purpose. | BIS | [88 FR 39357, June 16, 2023, as amended at 89 FR 96892, Dec. 6, 2024] | (a) This part sets forth the procedures by which the Secretary may: (1) Determine whether any acquisition, importation, transfer, installation, dealing in, or use of any information and communications technology or service, including but not limited to connected software applications, (ICTS Transaction) that has been designed, developed, manufactured, or supplied by persons owned by, controlled by, or subject to the jurisdiction or direction of foreign adversaries poses certain undue or unacceptable risks as identified in the Executive Order 13873. For purposes of these regulations, the Secretary will consider information and communications technology and services (ICTS) to be designed, developed, manufactured, or supplied by a person owned by, controlled by, or subject to the jurisdiction of a foreign adversary where such a person operates, manages, maintains, repairs, updates, or services the ICTS; (2) Issue a determination to prohibit an ICTS Transaction; (3) Direct the timing and manner of the cessation of the ICTS Transaction; (4) Consider factors that may mitigate the risks posed by the ICTS Transaction. (b) The Secretary will evaluate ICTS Transactions under this rule, which include, but are not limited to, classes of transactions, on a case-by-case basis. The Secretary, in consultation with appropriate agency heads specified in Executive Order 13873 and other relevant governmental bodies, as appropriate, shall make an Initial Determination as to whether to prohibit a given ICTS Transaction or propose mitigation measures, by which the ICTS Transaction may be permitted. Parties may submit information in response to theInitial Determination, including a response to the Initial Determination and any supporting materials and/or proposed measures to remediate or mitigate the risks identified in the Initial Determination as posed by the ICTS Transaction at issue. Upon consideration of the parties' submissions, the Secretary will issue a Final Determination prohibiting the transaction, not prohibiting the tr… | |||
| 15:15:3.1.1.3.27.1.1.2 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | A | Subpart A—General | § 791.2 Definitions. | BIS | [86 FR 4923, Jan. 19, 2021, as amended at 88 FR 39357, June 16, 2023; 89 FR 96892, Dec. 6, 2024] | Appropriate agency heads means the Secretary of the Treasury, the Secretary of State, the Secretary of Defense, the Attorney General, the Secretary of Homeland Security, the United States Trade Representative, the Director of National Intelligence, the Administrator of General Services, the Chairman of the Federal Communications Commission, and the heads of any other executive departments and agencies the Secretary determines is appropriate, or their designees. Commercial item has the same meaning given to it in Federal Acquisition Regulation (48 CFR part 2.101). Connected software application means software, a software program, or a group of software programs, that is designed to be used on an end-point computing device and includes as an integral functionality, the ability to collect, process, or transmit data via the internet. Covered ICTS Transaction means an ICTS Transaction or a class of ICTS Transactions that meets the criteria set forth in § 791.3. Dealing in means the activity of buying, selling, reselling, receiving, licensing, or acquiring ICTS, or otherwise doing or engaging in business involving the conveyance of ICTS. Department means the United States Department of Commerce. End-point computing device means a device that can receive or transmit data and includes as an integral functionality the ability to collect or transmit data via the internet. Entity means a partnership, association, trust, joint venture, corporation, group, subgroup, or other non-U.S. governmental organization. Executive Order means Executive Order 13873, May 15, 2019, “Securing the Information and Communications Technology and Services Supply Chain”. Foreign adversary means any foreign government or foreign non-government person determined by the Secretary to have engaged in a long-term pattern or serious instances of conduct significantly adverse to the national security of the United States or security and safety of United States persons. ICTS Transaction means any acquisition, importation, transfer, in… | |||
| 15:15:3.1.1.3.27.1.1.3 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | A | Subpart A—General | § 791.3 Scope of Covered ICTS Transactions. | BIS | [86 FR 4923, Jan. 19, 2021, as amended at 88 FR 39358, June 16, 2023; 89 FR 96893, Dec. 6, 2024] | (a) The Secretary may continue review under § 791.103(b) of this part for any ICTS Transaction that: (1) Is conducted by any person subject to the jurisdiction of the United States or involves property subject to the jurisdiction of the United States; (2) Involves any property in which any foreign country or a national thereof has any interest of any nature whatsoever, whether direct or indirect (including through an interest in a contract for the provision of the technology or service); (3) Is initiated, pending, or completed on or after January 19, 2021, regardless of when any contract applicable to the transaction is entered into, dated, or signed or when any license, permit, or authorization applicable to such transaction was granted. Any act or service with respect to an ICTS Transaction, such as execution of any provision of a managed services contract, installation of software updates, or the conducting of repairs, that occurs on or after January 19, 2021 may be deemed an ICTS Transaction within the scope of this part, even if the contract was initially entered into, or the activity commenced, prior to January 19, 2021; and (4) Involves ICTS and software, hardware, or any other product or service integral to one of the following: (i) Information and communications hardware and software, including (A) Wireless local area networks; (B) Mobile networks; (C) Satellite payloads; (D) Satellite operations and control; (E) internet-enabled sensors, cameras, and any other end-point surveillance or monitoring device, or any device that includes these components such as drones; (F) Routers, modems, and any other networking devices; (G) Cable access points; (H) Wireline access points; (I) Core networking systems; (J) Long- and short-haul networks; (ii) Data hosting, computing or storage, including software, hardware, or any other product or service integral to data hosting or computing services, including software-defined services such as virtual private servers, that uses, processes, or retains, or is… | |||
| 15:15:3.1.1.3.27.1.1.4 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | A | Subpart A—General | § 791.4 Determination of foreign adversaries. | BIS | [86 FR 4923, Jan. 19, 2021. Redesignated at 89 FR 58265, July 18, 2024, as amended at 89 FR 96893, Dec. 6, 2024] | (a) The Secretary has determined that the following foreign governments or foreign non-government persons have engaged in a long-term pattern or serious instances of conduct significantly adverse to the national security of the United States or security and safety of United States persons and, therefore, constitute foreign adversaries solely for the purposes of the Executive Order, this rule, and any subsequent rule: (1) The People's Republic of China, including the Hong Kong Special Administrative Region and the Macau Special Administrative Region (China); (2) Republic of Cuba (Cuba); (3) Islamic Republic of Iran (Iran); (4) Democratic People's Republic of Korea (North Korea); (5) Russian Federation (Russia); and (6) Venezuelan politician Nicolás Maduro (Maduro Regime). (b) The Secretary's determination of foreign adversaries is solely for the purposes of the Executive Order, this rule, and any subsequent rule promulgated pursuant to the Executive Order. Pursuant to the Secretary's discretion, the list of foreign adversaries will be revised as determined to be necessary. Such revisions will be effective immediately upon publication in the Federal Register without prior notice or opportunity for public comment. (c) The Secretary's determination is based on multiple sources, including but not limited to: (1) National Security Strategy of the United States; (2) The Director of National Intelligence's Worldwide Threat Assessments of the U.S. Intelligence Community; (3) The National Cyber Strategy of the United States of America; and (4) Reports and assessments from the U.S. Intelligence Community, the U.S. Departments of Justice, State and Homeland Security, and other relevant sources. (d) The Secretary will periodically review this list in consultation with appropriate agency heads and may add to, subtract from, supplement, or otherwise amend this list. Any amendment to this list will apply to any ICTS Transaction that is initiated, pending, or completed on or after the date that the list is amended. | |||
| 15:15:3.1.1.3.27.1.1.5 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | A | Subpart A—General | § 791.5 Effect on other laws. | BIS | Nothing in this part shall be construed as altering or affecting any other authority, process, regulation, investigation, enforcement measure, or review provided by or established under any other provision of Federal law, including prohibitions under the National Defense Authorization Act of 2019, the Federal Acquisition Regulations, or IEEPA, or any other authority of the President or the Congress under the Constitution of the United States. | ||||
| 15:15:3.1.1.3.27.1.1.6 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | A | Subpart A—General | § 791.6 Amendment, modification, or revocation. | BIS | Except as otherwise provided by law, any determinations, prohibitions, or decisions issued under this part may be amended, modified, or revoked, in whole or in part, at any time. | ||||
| 15:15:3.1.1.3.27.1.1.7 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | A | Subpart A—General | § 791.7 Public disclosure of records. | BIS | Public requests for agency records related to this part will be processed in accordance with the Department of Commerce's Freedom of Information Act regulations, 15 CFR part 4, or other applicable law and regulation. | ||||
| 15:15:3.1.1.3.27.2.1.1 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | B | Subpart B—Review of ICTS Transactions | § 791.100 General. | BIS | [86 FR 4923, Jan. 19, 2021. Redesignated at 89 FR 58265, July 18, 2024, as amended at 89 FR 96893, Dec. 6, 2024] | In implementing this part, the Secretary of Commerce may: (a) Consider any and all relevant information held by, or otherwise made available to, the Federal Government that is not otherwise restricted by law for use for this purpose, including: (1) Publicly available information; (2) Confidential business information, as defined in 19 CFR 201.6, or proprietary information; (3) Classified National Security Information, as defined in Executive Order 13526 (December 29, 2009) and its predecessor executive orders, and Controlled Unclassified Information, as defined in Executive Order 13556 (November 4, 2010); (4) Information obtained from state, local, tribal, or foreign governments or authorities; (5) Information obtained from parties to a transaction, including records related to such transaction that any party uses, processes, or retains, or would be expected to use, process, or retain, in their ordinary course of business for such a transaction; (6) Information obtained through the authority granted under sections 2(a) and (c) of the Executive Order and IEEPA, as set forth in § 791.101 of this part; (7) Information provided by any other U.S. Government national security body, in each case only to the extent necessary for national security purposes, and subject to applicable confidentiality and classification requirements, including the Committee for the Assessment of Foreign Participation in the United States Telecommunications Services Sector and the Federal Acquisitions Security Council and its designated information-sharing bodies; (8) Information or referrals provided by any other U.S. Government agency, department, or other regulatory body; and (9) Information provided voluntarily by private industry. (b) Consolidate the review of any ICTS Transactions with other transactions already under review where the Secretary determines that the transactions raise the same or similar issues, or that are otherwise properly consolidated; (c) Determine, in consultation with the appropriate agency heads, wheth… | |||
| 15:15:3.1.1.3.27.2.1.10 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | B | Subpart B—Review of ICTS Transactions | § 791.109 Final Determination. | BIS | [89 FR 96896, Dec. 6, 2024] | (a) For each Covered ICTS Transaction for which the Secretary issues an Initial Determination, the Secretary shall issue a Final Determination as to whether the Covered ICTS Transaction is: (1) Prohibited; (2) Not prohibited; or (3) Permitted, at the Secretary's discretion, pursuant to the adoption of mitigation measures. (b) Unless the Secretary, at the Secretary's sole discretion, determines in writing that additional time is necessary, the Secretary shall issue the Final Determination within 180 days of serving the Initial Determination pursuant to § 791.105(b)(3). (c) If the Secretary determines that a Covered ICTS Transaction is prohibited, the Secretary shall direct the means that the Secretary assesses to be necessary to address the undue or unacceptable risk posed by the Covered ICTS Transaction. (d) The Final Determination shall: (1) Be written, signed, and dated; (2) Describe the Secretary's determination; (3) Be unclassified and contain no reference to classified national security information; (4) Consider and address any information received from a party or parties to the transaction; (5) Direct, if applicable, the timing and manner of the cessation of the Covered ICTS Transaction; (6) Explain, if applicable, that a Final Determination that the Covered ICTS Transaction is not prohibited does not preclude the future review of transactions related in any way to the Covered ICTS Transaction; (7) Include, if applicable, a description of the mitigation measures agreed upon by the party or parties to the transaction and the Secretary; (8) State the penalties a party will face if it fails to comply fully with any mitigation agreement or direction, including violations of IEEPA, or other violations of law; and (9) Include, if applicable, how the Department may transition a mitigation agreement to a prohibition should a party or parties fail to comply with any mitigation agreement or obligations, or violate IEEPA or other law. (e) The written, signed, and dated Final Determination shall be sent… | |||
| 15:15:3.1.1.3.27.2.1.11 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | B | Subpart B—Review of ICTS Transactions | § 791.110 Classified national security information. | BIS | In any review of a determination made under this part, if the determination was based on classified national security information, such information may be submitted to the reviewing court ex parte and in camera. This section does not confer or imply any right to review in any tribunal, judicial or otherwise. | ||||
| 15:15:3.1.1.3.27.2.1.2 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | B | Subpart B—Review of ICTS Transactions | § 791.101 Information to be furnished on demand. | BIS | [86 FR 4923, Jan. 19, 2021. Redesignated at 89 FR 58265, July 18, 2024, as amended at 89 FR 96894, Dec. 6, 2024] | (a) Pursuant to the authority granted to the Secretary under sections 2(a), 2(b), and 2(c) of the Executive Order and IEEPA, the Secretary may require any person to furnish under oath, in the form of reports or otherwise, at any time as may be required by the Secretary, complete information relative to any act or transaction, subject to the provisions of this part. The Secretary may require that such reports include the production of any books, contracts, letters, papers, or other hard copy or electronic documents relating to any such act, transaction, or property, in the custody or control of the persons required to make such reports. Reports with respect to transactions may be required from before, during, or after such transactions. The Secretary may, through any person or agency, conduct investigations, hold hearings, administer oaths, examine witnesses, receive evidence, take depositions, and require by subpoena the attendance and testimony of witnesses and the production of any books, contracts, letters, papers, and other hard copy or documents relating to any matter under investigation, regardless of whether any report has been required or filed in connection therewith. (b) For purposes of paragraph (a) of this section, the term “document” includes any written, recorded, or graphic matter or other means of preserving thought or expression (including in electronic format), and all tangible things stored in any medium from which information can be processed, transcribed, or obtained directly or indirectly, including correspondence, memoranda, notes, messages, contemporaneous communications such as text and instant messages, letters, emails, spreadsheets, metadata, contracts, bulletins, diaries, chronological data, minutes, books, reports, examinations, charts, ledgers, books of account, invoices, air waybills, bills of lading, worksheets, receipts, printouts, papers, schedules, affidavits, presentations, transcripts, surveys, graphic representations of any kind, drawings, photographs, images, graphs, video … | |||
| 15:15:3.1.1.3.27.2.1.3 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | B | Subpart B—Review of ICTS Transactions | § 791.102 Confidentiality of information. | BIS | [86 FR 4923, Jan. 19, 2021. Redesignated and amended at 89 FR 58265, July 18, 2024; 89 FR 96894, Dec. 6, 2024] | (a) Information or documentary materials, not otherwise publicly or commercially available, submitted or filed with the Secretary under this part will not be released publicly except to the extent required by law. (b) The Secretary may, subject to appropriate confidentiality and classification requirements, disclose information or documentary materials that are not otherwise publicly or commercially available and referenced in paragraph (a) of this section in the following circumstances: (1) Pursuant to any administrative or judicial proceeding; (2) Pursuant to an act of Congress; (3) Pursuant to a request from any duly authorized committee or subcommittee of Congress; (4) 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; (5) Where the parties or a party to a transaction have consented, the information or documentary material that is not otherwise publicly or commercially available may be disclosed to third parties; (6) Where the Secretary has determined that at least one Covered ICTS Transaction related to the information or documents presents an undue or unacceptable risk, and disclosure to the public or to affected third parties is necessary to prevent or significantly reduce imminent harm to U.S. national security, or the security and safety of United States persons; and (7) Any other purpose authorized by law. (c) This section shall continue to apply with respect to information and documentary materials that are not otherwise publicly or commercially available and submitted to or obtained by the Secretary even after the Secretary issues a Final Determination pursuant to § 791.109. (d) The provisions of 18 U.S.C. 1905, relating to fines and imprisonment and other penalties, shall apply with respect to the disclosure of information or documentary material provided to the Secretary under these regulations. | |||
| 15:15:3.1.1.3.27.2.1.4 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | B | Subpart B—Review of ICTS Transactions | § 791.103 Review of ICTS Transactions. | BIS | [89 FR 96894, Dec. 6, 2024] | (a) After considering materials described in § 791.100(a), the Secretary may, at the Secretary's discretion, initiate a review of an ICTS Transaction. (b) As part of the review, the Secretary will assess whether the transaction: (1) Constitutes a Covered ICTS Transaction, as described in § 791.3; (2) Involves ICTS designed, developed, manufactured, or supplied by persons owned by, controlled by, or subject to the jurisdiction or direction of a foreign adversary, as described in § 791.100(c); and (3) Poses an undue or unacceptable risk as described in §§ 791.100(d) and 791.103(c). (c) In assessing whether the Covered ICTS Transaction poses an undue or unacceptable risk, the Secretary may evaluate, among other relevant factors, the following criteria: (1) The nature and characteristics of the ICTS at issue in the Covered ICTS Transaction, including technical capabilities, applications, and market share considerations; (2) The nature and degree of the ownership, control, direction, or jurisdiction exercised by the foreign adversary or foreign adversary persons over the design, development, manufacture, or supply at issue in the Covered ICTS Transaction, to include: (i) The ownership, control, or management by persons that support a foreign adversary's military, intelligence, or proliferation activities; and (ii) The ownership, control, or management by persons involved in malicious cyber-enabled activities; (3) The statements and actions of the foreign adversary at issue in the Covered ICTS Transaction; (4) The statements and actions of the persons involved in the design, development, manufacture, or supply of the ICTS at issue in the Covered ICTS Transaction; (5) The statements and actions of the parties to the Covered ICTS Transaction; (6) Whether the Covered ICTS Transaction poses a discrete or persistent threat; (7) The nature and characteristics of the customer base, business relationships, and operating locations of the parties to the Covered ICTS Transaction; (8) Whether there is an ability to … | |||
| 15:15:3.1.1.3.27.2.1.5 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | B | Subpart B—Review of ICTS Transactions | § 791.104 First interagency notification. | BIS | [89 FR 96895, Dec. 6, 2024] | (a) If the Secretary assesses that an ICTS Transaction meets the criteria under § 791.103(b), the Secretary shall memorialize that assessment, provide the assessment to the appropriate agency heads, and offer the appropriate agency heads twenty-one (21) days to comment in writing on the Secretary's assessment. (b) If the Secretary does not receive written comments on the assessment from an appropriate agency head within twenty-one (21) days of notification, the Secretary may presume that agency has no comments. (c) The Secretary may, at the Secretary's discretion, modify or revise the assessment based on comments received from the appropriate agency heads. The Secretary retains discretion to make an Initial Determination, as provided in § 791.105, regardless of the comments received. | |||
| 15:15:3.1.1.3.27.2.1.6 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | B | Subpart B—Review of ICTS Transactions | § 791.105 Initial Determination. | BIS | [89 FR 96895, Dec. 6, 2024] | (a) If, after notifying the appropriate agency heads as required by § 791.104 and considering any comments received, the Secretary determines that the Covered ICTS Transaction does not meet the criteria set forth in § 791.103: (1) The transaction shall no longer be under review; and (2) Future review of the transaction shall not be precluded, where additional information becomes available to the Secretary. (b) If, after notifying the appropriate agency heads as required by § 791.104 and considering any comments received, the Secretary determines that the Covered ICTS Transaction meets the criteria set forth in § 791.103, the Secretary shall: (1) Make a written Initial Determination, which shall be dated and signed by the Secretary, that: (i) Explains why the ICTS Transaction meets the criteria set forth in § 791.103; (ii) Sets forth whether the Secretary proposes to prohibit the Covered ICTS Transaction or to impose mitigation measures, by which the Covered ICTS Transaction may be permitted; and (iii) Provides information regarding the factual basis supporting the decision that is set forth pursuant to subparagraph (ii) above; (2) Provide at least twenty-one (21) calendar days' notice to the appropriate agency heads of the proposed Initial Determination prior to taking any action under 791.105(b)(3); and (3) Notify a party or the parties to the Covered ICTS Transaction by: (i) Serving a copy of the Initial Determination to the identified parties to the Covered ICTS Transaction when the Covered ICTS Transaction under review consists of a single transaction or a set of transactions between a limited number of parties (for example, the sale of ICTS by a company with a foreign nexus to an identified United States person); or (ii) Serving a copy of the Initial Determination to the person whose ICTS the Secretary determines constitutes the Covered ICTS Transactions under review when the number of U.S. parties or users acquiring, importing, transferring, installing, dealing in, or using the ICTS is unknown or… | |||
| 15:15:3.1.1.3.27.2.1.7 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | B | Subpart B—Review of ICTS Transactions | § 791.106 Recordkeeping requirement. | BIS | [89 FR 96895, Dec. 6, 2024] | Upon notification that an ICTS Transaction is under review, such as, though not limited to, through a demand for information or documents related to an ICTS Transaction under § 791.101 or a notification that an Initial Determination concerning an ICTS Transaction has been made, a notified person must immediately take steps to retain any and all records relating to such Transaction and must retain such records for no less than ten (10) years following a Final Determination made under § 791.109 or as otherwise indicated in the Final Determination. If a notified person receives no notification that an Initial Determination concerning an ICTS Transaction has been made within ten (10) years of notification that an ICTS Transaction is under review, then the recordkeeping obligation will extend for ten (10) years following the initial notification of an ICTS Transaction review unless the notified person is informed otherwise by the Secretary. | |||
| 15:15:3.1.1.3.27.2.1.8 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | B | Subpart B—Review of ICTS Transactions | § 791.107 Procedures governing response and mitigation. | BIS | [86 FR 4923, Jan. 19, 2021. Redesignated and amended at 89 FR 58265, July 18, 2024; 89 FR 96895, Dec. 6, 2024] | Within 30 days of service of the Secretary's Initial Determination pursuant to § 791.105, a party to a transaction may respond to the Initial Determination or assert that the circumstances resulting in the Initial Determination no longer apply, and thus seek to have the Initial Determination rescinded or mitigated pursuant to the following administrative procedures: (a) A party may submit arguments or evidence that the party believes establishes that insufficient basis exists for the Initial Determination, including any prohibition of the ICTS Transaction; (b) A party may propose remedial steps on the party's part, such as corporate reorganization, disgorgement of control of the foreign adversary, engagement of a compliance monitor, or similar steps, which the party believes would negate the basis for the Initial Determination; (c) All submissions under this section must be made in writing. (1) The Secretary may, for good cause, extend the time to provide a written submission pursuant to this section. (2) Any extensions granted pursuant to this section shall not exceed thirty (30) days. (3) A written submission to the Secretary pursuant to this section may not exceed fifty (50) pages without approval from the Secretary prior to the expiration of time for a party's response. (4) A written submission to the Secretary may include business confidential information. Any business confidential information must be clearly and specifically demarcated. Publicly available information should not be marked business confidential. (d) A party responding to the Secretary's Initial Determination may request a meeting with the Department, and the Department may, at its discretion, agree or decline to conduct such meetings prior to making a Final Determination pursuant to § 791.109; (e) This rule creates no right in any person to obtain access to information in the possession of the U.S. Government that was considered in making the Initial Determination, to include classified national security information or sensitive but … | |||
| 15:15:3.1.1.3.27.2.1.9 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | B | Subpart B—Review of ICTS Transactions | § 791.108 Interagency consultation on the Final Determination. | BIS | [89 FR 96896, Dec. 6, 2024] | (a) Upon receipt of any submission by a party to a transaction under § 791.107, the Secretary shall consider whether and how the information provided—including proposed mitigation measures—affects an Initial Determination. (b) After considering the effect of any submission by a party to a transaction under § 791.107 consistent with paragraph (a) of this section, the Secretary shall provide notice in writing of the proposed Final Determination and consult with and seek concurrence from all appropriate agency heads prior to issuing a Final Determination as to whether the Covered ICTS Transaction shall be prohibited, not prohibited, or permitted pursuant to the adoption of negotiated mitigation measures. (c) If the appropriate agency heads under paragraph (b) of this section concur, the Secretary shall issue a Final Determination pursuant to § 791.109. If an appropriate agency head provides no response within fourteen (14) days of the agency receiving the notice in writing of the proposed Final Determination, the Secretary may presume concurrence. If an agency objects to the Final Determination, such objection must be submitted by the agency's Deputy Secretary or equivalent or higher level within the 14 days. | |||
| 15:15:3.1.1.3.27.3.1.1 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | C | Subpart C—Enforcement | § 791.200 Penalties. | BIS | [89 FR 96896, Dec. 6, 2024] | (a) Prohibited activities. (1) No person shall be a party to an ICTS Transaction that is prohibited by a Final Determination issued under this part, unless authorized by the Secretary. (2) No person shall aid, abet, counsel, command, induce, facilitate, procure, or otherwise engage in conduct with knowledge that such conduct is prohibited by, or contrary to a Final Determination issued under this part, unless authorized by the Secretary. (3) No person shall be a party to an ICTS Transaction in a manner that is contrary to any direction, regulation, or condition published under this part. (4) No person shall aid, abet, counsel, command, induce, facilitate, procure, or otherwise engage in conduct with knowledge that such conduct is contrary to the terms of a mitigation agreement under this part. (5) Any ICTS Transaction that has the purpose of evading or avoiding, causes a violation of, or attempts to violate, any of the prohibitions set forth in this section is prohibited. (6) Any conspiracy formed to violate any of the prohibitions set forth in this section is prohibited. (7) Any approval, financing, facilitation, or guarantee by a United States person, wherever located, of an ICTS Transaction by a foreign person where the ICTS Transaction by that foreign person would be prohibited by this order if performed by a United States person or within the United States, is prohibited. (8) No person may, whether directly or indirectly through any other person, make any false or misleading representation, statement, or certification, or falsify or conceal any material fact, to the Department: (i) In the course of an ICTS Transaction review, in order to secure a benefit or avoid a prohibition, including in proposing and agreeing to mitigation measures; or (ii) In connection with the preparation, submission, issuance, use, or maintenance of any report filed or required to be filed pursuant to this part. (9) Additional requirements: (i) For purposes of paragraph (a)(8), any representation, statement, or certifica… | |||
| 15:15:3.1.1.3.27.4.1.1 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | D | Subpart D—ICTS Supply Chain: Connected Vehicles | § 791.300 Purpose and scope. | BIS | The inclusion in connected vehicles of certain ICTS designed, developed, manufactured, or supplied by persons owned by, controlled by, or subject to the jurisdiction or direction of certain foreign adversaries poses undue or unacceptable risks to U.S. national security. To address these undue or unacceptable risks, it is the purpose of this subpart to: (a) Prohibit ICTS transactions that involve certain software and hardware that are designed, developed, manufactured, or supplied by persons owned by, controlled by, or subject to the jurisdiction or direction of the People's Republic of China (PRC) or the Russian Federation (Russia), as defined in § 791.4, and that directly enable connected vehicle Automated Driving Systems (ADS) or Vehicle Connectivity Systems (VCS), as defined in this subpart; (b) Implement Declarations of Conformity to provide a mechanism for connected vehicle manufacturers and VCS hardware importers to communicate to BIS that they have conducted supply chain due diligence, and to confirm that no prohibited transactions, as defined in this subpart, have knowingly occurred; (c) Provide for the issuance of general authorizations for certain transactions that would otherwise be prohibited by this subpart, but where certain factors described in the authorizations reduce the risk to an acceptable level; (d) Provide a mechanism to apply for specific authorizations for certain transactions that would otherwise be prohibited by this subpart, where the undue or unacceptable risks can be reasonably mitigated, based on criteria and conditions that are specifically constructed for each applicant; and (e) Incentivize connected vehicle manufacturers, VCS hardware importers, and related suppliers to adopt and enhance measures to help secure the U.S. ICTS supply chain for connected vehicles. | ||||
| 15:15:3.1.1.3.27.4.1.10 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | D | Subpart D—ICTS Supply Chain: Connected Vehicles | § 791.309 Appeals. | BIS | (a) Scope. Any person claiming to be directly and adversely affected by any of the listed administrative actions taken by BIS pursuant to this subpart may appeal to the Under Secretary for reconsideration of that administrative action. Only the following types of administrative actions are subject to the appeals procedures described in this subpart: (1) Denial of an application for a specific authorization; (2) Suspension or revocation of an issued specific authorization; or (3) Determination of ineligibility for a general authorization. (b) Designated appeals reviewer and coordinator. The Under Secretary may delegate to the Deputy Under Secretary of Commerce for Industry and Security or to another BIS official the authority to review and decide the appeal, and to exercise any other function of the Under Secretary under this section. In addition, the Under Secretary may designate any employee of BIS to be an appeals coordinator to assist in the review and processing of an appeal under this subpart. The responsibilities of an appeals coordinator may include presiding over informal hearings. (c) Appeals procedures —(1) Filing. An appeal under this subpart must be submitted to the Under Secretary by email or at the following address: Bureau of Industry and Security, U.S. Department of Commerce, Room 3898, 14th Street and Pennsylvania Avenue NW, Washington, DC 20230 no later than 45 days after the date appearing on the written notice of administrative action. (2) Content of appeal. The appeal must include a full written statement in support of the appellant's position. The appeal must include a precise statement of the reasons that the appellant believes that the administrative action has a direct and adverse effect and should be reversed or modified. The Under Secretary or the designated official may request additional information that would be helpful in resolving the appeal, and may accept additional submissions from the appellant. The Under Secretary or the designated official will not ordinarily a… | ||||
| 15:15:3.1.1.3.27.4.1.11 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | D | Subpart D—ICTS Supply Chain: Connected Vehicles | § 791.310 Advisory opinions. | BIS | (a) VCS hardware importers and connected vehicle manufacturers may request an advisory opinion from BIS to determine whether a prospective transaction is subject to a prohibition, or requirement under this subpart. The requestor must have a direct financial interest in the substance of the question(s) presented, and the submission must include the name of the parties to the transaction. (b) Requests for advisory opinions must be delivered to BIS as specified on its website, https://www.bis.gov/OICTS. (c) Persons submitting advisory opinion requests are encouraged to provide as much information as possible to assist BIS in making a determination, to include the following information: (1) The name, title, telephone, and email address of the submitter; (2) The submitter's complete address, comprised of street address, city, state, country, and postal code; (3) All available information identifying the parties to the prospective transaction; (4) Information regarding the VCS hardware and/or covered software and any descriptive literature, brochures, technical specifications, or papers that provide sufficient technical detail to enable BIS to verify whether the prospective transaction would constitute a prohibited transaction as defined in this subpart; (5) For connected vehicle manufacturers: the make, model, and trim level, or other identifying information of the completed connected vehicle; (6) For VCS hardware importers: the identification of the system; and, if known, the make, model, and trim of the group of completed connected vehicles for which the equipment is intended; and (7) Any other information that the submitter believes to be material to the prospective transaction. (d) BIS may consider third-party materials on a case-by-case basis as part of its review of an advisory opinion request. Each person that submits an advisory opinion request or information in support of another party's advisory opinion request shall provide any additional information or documents that BIS may thereafter request i… | ||||
| 15:15:3.1.1.3.27.4.1.12 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | D | Subpart D—ICTS Supply Chain: Connected Vehicles | § 791.311 “Is-informed” notices. | BIS | (a) BIS may inform VCS hardware importers or connected vehicle manufacturers either individually by specific notice or, for larger groups, through a separate notice published in the Federal Register , that a specific authorization is required because an activity could constitute a prohibited transaction. (b) Specific notice that a specific authorization is required may be given only by, or at the direction of, the Under Secretary or a BIS official designated by the Under Secretary. | ||||
| 15:15:3.1.1.3.27.4.1.13 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | D | Subpart D—ICTS Supply Chain: Connected Vehicles | § 791.312 Recordkeeping. | BIS | (a) Except as otherwise provided herein, or through subsequent communication with BIS, VCS hardware importers, connected vehicle manufacturers, and/or third-party assessors (if applicable) shall keep all primary business records related to the execution of each transaction for which a Declaration of Conformity, general authorization, or specific authorization would be required under § 791.305, § 791.306, or § 791.307. Primary business records include contracts, import records, commercial invoices, bills of sale, corporate policy documentation, and reports produced by third parties created for the purposes of compliance with this rule. Regardless of whether these transactions are effectuated pursuant to a general authorization, specific authorization, or otherwise, such records shall be available for examination for at least 10 years after the date of such transactions. (b) Third-party assessors are required to maintain all records relating to third-party verification or assessment of a U.S. person's compliance with this rule. | ||||
| 15:15:3.1.1.3.27.4.1.14 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | D | Subpart D—ICTS Supply Chain: Connected Vehicles | § 791.313 Reports to be furnished on demand. | BIS | (a) VCS hardware importers and connected vehicle manufacturers must furnish, under oath, in the form of reports or as otherwise specified by BIS, and at any time as may be required by BIS, complete information regarding any transaction involving the import of VCS hardware or the import or sale of completed connected vehicles incorporating covered software. This requirement applies regardless of whether such transaction is affected pursuant to a general or specific authorization or otherwise, subject to the provisions of this subpart. BIS may require that such reports include the production of any books, contracts, letters, papers, or other hard copy or electronic documents relating to any transactions, in the custody or control of the persons required to make such reports. Reports being submitted to BIS pursuant to this section must be retained for a period of 10 years, as specified in § 791.312. (b) BIS may, through any person or agency, conduct investigations, hold hearings, administer oaths, examine witnesses, receive evidence, take depositions, and require by subpoena the attendance and testimony of witnesses and the production of any books, contracts, letters, papers, and other hard copy or electronic documents relating to any matter under investigation, regardless of whether any report has been required or filed in connection therewith. (c) Persons providing records to BIS pursuant to this section shall follow the electronic filing instructions on BIS's website, https://www.bis.gov/OICTS. | ||||
| 15:15:3.1.1.3.27.4.1.15 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | D | Subpart D—ICTS Supply Chain: Connected Vehicles | § 791.314 Confidential business information. | BIS | (a) Confidential business information. Confidential Business Information is defined in 19 CFR 201.6. (b) Submission procedures. Any information or material submitted to BIS which the entity or any other party desires to submit in confidence as a part of a Declaration of Conformity, specific authorization application, advisory opinion request, record to be furnished on demand, or is otherwise Confidential Business Information should be contained within a file beginning its name with the characters “CBI.” Any page containing Confidential Business Information must be clearly marked “CONFIDENTIAL BUSINESS INFORMATION” on the top of the page. Any pages not containing Confidential Business Information should not be marked. By submitting information or material identified as Confidential Business Information, the entity or other party represents that the information is exempted from public disclosure, either by the Freedom of Information Act (5 U.S.C. 552 et seq. ) or by another specific statutory exemption. Any request for Confidential Business Information treatment must be accompanied at the time of submission by a statement justifying non-disclosure and referring to the specific legal authority claimed. (c) Confidentiality of information. Confidentiality of information is subject to 15 CFR 791.102. | ||||
| 15:15:3.1.1.3.27.4.1.16 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | D | Subpart D—ICTS Supply Chain: Connected Vehicles | § 791.315 Third-party verification and assessments. | BIS | (a) Overview. U.S persons subject to this subpart may hire, consult, or otherwise contract with a third-party to ensure compliance with this rule. In certain cases, the use of a third-party assessor will be mandated in the terms of an approved specific authorization. (b) Third-party assessors. U.S. persons should determine whether a third-party assessor is qualified and competent, such as through industry certification or standard, to examine, to verify, and attest to the U.S. person's compliance with and the effectiveness of the security requirements implemented for VCS hardware or covered software transactions. (1) The third-party assessor cannot be a person owned by, controlled by, or subject to the jurisdiction or direction of the PRC or Russia. (2) In determining the reasonableness of an entity's reliance on a third-party assessment, BIS will consider the independence of the third-party, including any financial incentives between the third-party and the entity. (c) Scope. The use of a third-party assessor for U.S. persons submitting Declarations of Conformity is voluntary; however, if utilized, BIS recommends such third-party assessments to: (1) identify and examine the VCS hardware importer or connected vehicle manufacturer's VCS hardware and covered software supply chains in relation to the prohibitions in this subpart; (2) examine compliance relating to each Declaration of Conformity, general authorization, or specific authorization pursuant to which an entity is conducting transactions; (3) use a reliable methodology to conduct the third-party verification; and (4) acknowledge that the assessment may be used by the U.S. government to verify compliance. (d) Assessment. To utilize third-party verification to fulfill the due diligence requirement for a Declaration of Conformity, the third-party assessor should prepare and submit a written report to the VCS hardware importer or connected vehicle manufacturer. The third-party assessment should at minimum: (1) identify the suppliers of each r… | ||||
| 15:15:3.1.1.3.27.4.1.17 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | D | Subpart D—ICTS Supply Chain: Connected Vehicles | § 791.316 Finding of violation. | BIS | (a) When issued. (1) BIS may issue an initial finding of violation that identifies a violation if BIS: (i) Determines that there has occurred a violation of any provision of this subpart, or a violation of the provisions of any exemption, general authorization, specific authorization, regulation, order, directive, instruction, or prohibition issued by or pursuant to the direction or authorization of the Secretary pursuant to this subpart or otherwise under IEEPA; (ii) Considers it important to document the occurrence of a violation; and (iii) Concludes that an administrative response is warranted but that a civil monetary penalty is not the most appropriate response. (2) An initial finding of violation shall be in writing and may be issued whether or not another agency has taken any action with respect to the matter. (b) Response —(1) Right to respond. An alleged violator may contest an initial finding of violation by providing a written response to BIS. (2) Deadline for response; default determination. A response to an initial finding of violation must be made within 30 days as set forth in paragraphs (b)(2)(i) and (ii) of this section. The failure to submit a response within 30 days shall be deemed to be a waiver of the right to respond, and the initial finding of violation will become final and will constitute final agency action. The violator may seek judicial review of that final agency action in Federal district court. (i) Computation of time for response. A response to an initial finding of violation must be electronically transmitted on or before the 30th day after the date of delivery by BIS. (ii) Extensions of time for response. If a due date falls on a Federal holiday or weekend, that due date is extended to include the following business day. Any other extensions of time will be granted, at the discretion of BIS, only upon specific request to BIS. (3) Form and method of response. A response to an initial finding of violation need not be in any particular form, but it must be type… | ||||
| 15:15:3.1.1.3.27.4.1.18 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | D | Subpart D—ICTS Supply Chain: Connected Vehicles | § 791.317 Pre-penalty notice; settlement. | BIS | (a) When required. If BIS has reason to believe that there has occurred a violation of any provision of this subpart or a violation of the provisions of any exemption, general authorization, specific authorization, regulation, order, directive, instruction, or prohibition issued by or pursuant to the direction or authorization of the Secretary pursuant to this subpart or otherwise under IEEPA and determines that a civil monetary penalty is warranted, BIS will issue a pre-penalty notice informing the alleged violator of BIS's intent to impose a monetary penalty. A pre-penalty notice shall be in writing and issued either electronically or by mail to the alleged violator. The pre-penalty notice may be issued whether or not another agency has taken any action with respect to the matter. BIS will consider any voluntary disclosures of a violation prior to issuing such notice. (b) Response —(1) Right to respond. An alleged violator may respond to a pre-penalty notice in writing to BIS. (2) Deadline for response. A response to a pre-penalty notice must be made within 30 days as set forth below. The failure to submit a response within 30 days shall be deemed to be a waiver of the right to respond. (i) Computation of time for response. A response to a pre-penalty notice must be electronically transmitted on or before the 30th day after the date of delivery by BIS. (ii) Extensions of time for response. If a due date falls on a Federal holiday or weekend, that due date is extended to include the following business day. Any other extensions of time will be granted, at the discretion of BIS, only upon specific request to BIS. (3) Form and method of response. A response to a pre-penalty notice need not be in any particular form, but it must be typewritten and signed by the alleged violator or a representative thereof, contain information sufficient to indicate that it is in response to the pre-penalty notice, and include the BIS identification number listed on the pre-penalty notice. A digital signature is acc… | ||||
| 15:15:3.1.1.3.27.4.1.19 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | D | Subpart D—ICTS Supply Chain: Connected Vehicles | § 791.318 Penalties. | BIS | (a) Section 206 of the International Emergency Economic Powers Act (50 U.S.C. 1705) (IEEPA) is applicable to violations of the provisions of any general authorization, specific authorization, regulation, order, directive, instruction, or prohibition issued by or pursuant to the direction or authorization of the Secretary of Commerce (Secretary) pursuant to this subpart or otherwise under IEEPA. (1) A civil penalty not to exceed the amount set forth in section 206 of IEEPA may be imposed on any person who violates, attempts to violate, conspires to violate, or causes a violation of any exemption, general authorization, specific authorization, regulation, order, directive, instruction, or prohibition issued under this subpart. (2) A person who willfully commits, willfully attempts to commit, willfully conspires to commit, or aids or abets in the commission of a violation of any exemption, general authorization, specific authorization, regulation, order, directive, instruction, or prohibition issued under this subpart is subject to criminal penalties and may, upon conviction, be fined not more than $1,000,000, or if a natural person, be imprisoned for not more than 20 years, or both. (b) The civil penalties provided in IEEPA are subject to adjustment pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. 101-410, as amended, 28 U.S.C. 2461 note). (c) The criminal penalties provided in IEEPA are subject to adjustment pursuant to 18 U.S.C. 3571. (d) Pursuant to 18 U.S.C. 1001, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the U.S. Government, knowingly and willfully falsifies, conceals, or covers up by any trick, scheme, or device a material fact; or makes any materially false, fictitious, or fraudulent statement or representation; or makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry shall be fined under title 18, United States Code, imprisoned, … | ||||
| 15:15:3.1.1.3.27.4.1.2 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | D | Subpart D—ICTS Supply Chain: Connected Vehicles | § 791.301 Definitions. | BIS | The following definitions apply only to this subpart. For additional definitions applicable to all of part 791, see 15 CFR 791.2. If a term is defined differently in this subpart than in 15 CFR 791.2, the definition listed in this section will apply to this subpart. Automated Driving System means hardware and software that, collectively, are capable of performing the entire dynamic driving task for a completed connected vehicle on a sustained basis, regardless of whether it is limited to a specific operational design domain (ODD). Completed connected vehicle means a connected vehicle that requires no further manufacturing operations to perform its intended function. For the purposes of this subpart, the integration of an Automated Driving System into a connected vehicle constitutes a manufacturing operation for a completed connected vehicle. Connected vehicle means a vehicle driven or drawn by mechanical power and manufactured primarily for use on public streets, roads, and highways, that integrates onboard networked hardware with automotive software systems to communicate via dedicated short-range communication, cellular telecommunications connectivity, satellite communication, or other wireless spectrum connectivity with any other network or device. A vehicle operated only on a rail line is not included in this definition. For the purposes of this subpart, a connected vehicle with a gross vehicle weight rating of more than 4,536 kilograms (10,000 pounds) is not included in this definition. Connected vehicle manufacturer means a U.S. person who: (1) Manufactures or assembles completed connected vehicles in the United States for sale in the United States; (2) Imports completed connected vehicles for sale in the United States; and/or (3) Integrates ADS software on a completed connected vehicle for sale in the United States. A connected vehicle manufacturer may also be a VCS hardware importer, as defined herein, if VCS hardware has already been installed in a connected vehicle when the connected vehicl… | ||||
| 15:15:3.1.1.3.27.4.1.20 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | D | Subpart D—ICTS Supply Chain: Connected Vehicles | § 791.319 Penalty imposition. | BIS | (a) If, after considering any written response to the pre-penalty notice and any relevant facts, including voluntary disclosure of a violation, BIS determines that there was a violation by the alleged violator named in the pre-penalty notice and that a civil monetary penalty is appropriate, BIS may issue a penalty notice to the violator containing a determination of the violation and the imposition of the monetary penalty. (b) The issuance of the penalty notice shall constitute final agency action. The violator may seek judicial review of that final agency action in Federal district court. | ||||
| 15:15:3.1.1.3.27.4.1.21 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | D | Subpart D—ICTS Supply Chain: Connected Vehicles | § 791.320 Administrative collection; referral to United States Department of Justice. | BIS | In the event that the violator does not pay the penalty imposed pursuant to this subpart or make payment arrangements acceptable to BIS, the matter may be referred for administrative collection measures by the United States Department of the Treasury or to the United States Department of Justice for appropriate action to recover the penalty in a civil suit in a Federal district court. | ||||
| 15:15:3.1.1.3.27.4.1.22 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | D | Subpart D—ICTS Supply Chain: Connected Vehicles | § 791.321 Severability. | BIS | If any provision of this subpart is held to be invalid or unenforceable by its terms, or as applied to any person or circumstance, or stayed pending further agency action or judicial review, the provision is to be construed so as to continue to give the maximum effect to the provision permitted by law, unless such holding will be one of utter invalidity or unenforceability, in which event the provision will be severable from this part and will not affect the remainder thereof. | ||||
| 15:15:3.1.1.3.27.4.1.3 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | D | Subpart D—ICTS Supply Chain: Connected Vehicles | § 791.302 Prohibited VCS hardware transactions. | BIS | (a) VCS hardware importers are prohibited from knowingly importing into the United States VCS hardware that is designed, developed, manufactured, or supplied by persons owned by, controlled by, or subject to the jurisdiction or direction of the PRC or Russia. (b) In the context of this subpart, VCS hardware will not be considered to be designed, developed, manufactured, or supplied by persons owned by, controlled by, or subject to the jurisdiction or direction of the PRC or Russia, based solely on the country of citizenship of one or more natural persons who are employed by, contracted by, or otherwise similarly engaged in such actions through the entity designing, developing, manufacturing, or supplying the hardware. | ||||
| 15:15:3.1.1.3.27.4.1.4 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | D | Subpart D—ICTS Supply Chain: Connected Vehicles | § 791.303 Prohibited covered software transactions. | BIS | (a) Connected vehicle manufacturers are prohibited from knowingly importing into the United States completed connected vehicles that incorporate covered software that is designed, developed, manufactured, or supplied by persons owned by, controlled by, or subject to the jurisdiction or direction of the PRC or Russia. (b) Connected vehicle manufacturers are prohibited from knowingly selling within the United States completed connected vehicles that incorporate covered software that is designed, developed, manufactured, or supplied by persons owned by, controlled by, or subject to the jurisdiction or direction of the PRC or Russia. (c) In the context of this subpart, covered software will not be considered to be designed, developed, manufactured, or supplied by persons owned by, controlled by, or subject to the jurisdiction or direction of the PRC or Russia, based solely on the country of citizenship of one or more natural persons who are employed by, contracted by, or otherwise similarly engaged in such actions through the entity designing, developing, manufacturing, or supplying the software. | ||||
| 15:15:3.1.1.3.27.4.1.5 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | D | Subpart D—ICTS Supply Chain: Connected Vehicles | § 791.304 Related prohibited transactions. | BIS | Connected vehicle manufacturers who are owned by, controlled by, or subject to the jurisdiction or direction of the PRC or Russia, are prohibited from knowingly selling in the United States completed connected vehicles that incorporate VCS hardware or covered software, regardless of whether such VCS hardware or covered software is designed, developed, manufactured, or supplied by persons owned by, controlled by, or subject to the jurisdiction or direction of the PRC or Russia. These connected vehicle manufacturers are also prohibited from offering commercial services in the United States that utilize completed connected vehicles that incorporate ADS. | ||||
| 15:15:3.1.1.3.27.4.1.6 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | D | Subpart D—ICTS Supply Chain: Connected Vehicles | § 791.305 Declaration of Conformity. | BIS | (a) Requirements —(1) VCS hardware: A VCS hardware importer must submit a Declaration of Conformity to BIS prior to importing VCS hardware, unless otherwise specified by this subpart. The Declaration of Conformity for VCS hardware shall include: (i) The name and address of the VCS hardware importer, to include identifying information for an individual point of contact (including name, email address, and phone number); (ii) If known, the FCC ID Number associated with the VCS hardware and, if applicable, of the subcomponents contained therein; (iii) If known, the make and model of the connected vehicle(s) for which the VCS hardware is intended, or already integrated; (iv) A certification that the VCS hardware described in the Declaration of Conformity was not designed, developed, manufactured, or supplied by persons owned by, controlled by, or subject to the jurisdiction or direction of the PRC or Russia; (v) A certification that the declarant has conducted due diligence (with or without the use of third-party assessments) to inform the above certification, and the declarant or a delegated third party maintains documentation (either through an HBOM or otherwise) and third-party assessments (as applicable) in support of the above certification, which can be made available upon request by BIS; (vi) Identification as to who maintains the documentation and third-party assessments (as applicable) as certified above; (vii) A certification that the declarant has taken all possible measures, either contractually or otherwise, to ensure any necessary documentation and assessments from suppliers will be furnished to BIS upon request either by the declarant, or, in cases including confidential business information, directly by the supplier; and (viii) If applicable, an indication as to whether the submission is an update to a prior Declaration of Conformity, and if so, the date of the last submission. (2) Covered software: A connected vehicle manufacturer must submit a Declaration of Conformity to BIS prior to i… | ||||
| 15:15:3.1.1.3.27.4.1.7 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | D | Subpart D—ICTS Supply Chain: Connected Vehicles | § 791.306 General authorizations. | BIS | (a) Overview. VCS hardware importers and connected vehicle manufacturers may rely on a general authorization to engage in an otherwise prohibited transaction if they meet the stated requirements or conditions identified in the general authorization and are not subject to the restrictions identified in this section. Records demonstrating compliance with the terms of general authorizations must be retained for a period of 10 years, as specified in § 791.312, and be made available to BIS upon request. (b) General course of procedure. BIS may issue general authorizations for certain types of transactions subject to the prohibitions contained in this subpart. In determining whether to issue a general authorization, BIS may consider any information or material BIS deems relevant and appropriate, classified or unclassified, from any Federal department or agency, or from any other source. BIS will publish general authorizations it issues under this subpart on its website ( https://www.bis.gov/OICTS ), and will also publish them in the Federal Register . (c) Relationship with specific authorizations. BIS will not grant specific authorizations for transactions in which a general authorization is applicable. (d) Instructions. Persons availing themselves of certain general authorizations may be required to file reports and statements in accordance with the instructions specified by BIS in each general authorization. Failure to fulfill instructions provided in a general authorization may nullify the authorization and result in a violation of the applicable prohibitions that may be subject to BIS enforcement action. (e) Change in circumstance. Unless otherwise prescribed by BIS, within 30 days of discovering a change in circumstance, the VCS hardware importer or connected vehicle manufacturer must assess if it still qualifies for the general authorization. (1) If the connected vehicle manufacturer or VCS hardware importer determines that articles subject to a general authorization have been used outside the con… | ||||
| 15:15:3.1.1.3.27.4.1.8 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | D | Subpart D—ICTS Supply Chain: Connected Vehicles | § 791.307 Specific authorizations. | BIS | (a) Prohibited transactions authorized. Upon receipt of a valid and complete application, BIS may grant specific authorizations to permit a VCS hardware importer or connected vehicle manufacturer to engage in an otherwise prohibited transaction. (b) Policy. It is the policy of BIS not to review applications for specific authorizations for transactions that are otherwise permitted by a general authorization. (c) Applications for specific authorizations. Applications for specific authorizations shall include, at a minimum, a description of the nature of the otherwise prohibited transaction(s), including the following: (1) The identity of the parties engaged in the transaction, including relevant corporate identifiers and information sufficient to identify the ultimate beneficial ownership of the transacting parties; (2) An overview of the VCS hardware or covered software that is designed, developed, manufactured, or supplied by a person owned by, controlled by, or subject to the jurisdiction or direction of the PRC or Russia, including persons responsible for assembling and packaging VCS hardware or covered software; (3) If known, the make, model, and trim of the connected vehicle(s) in which the VCS hardware or covered software will be integrated; (4) The intended function of the VCS hardware or covered software; (5) Documentation to support the information contained in the application, such as any ISO/SAE 21434 Threat Analysis and Risk Assessments (if available); (6) An assessment of the applicant's ability to limit PRC or Russian government access to, or influence over the design, development, manufacture, or supply of the VCS hardware or covered software; (7) Security standards used by the applicant with respect to the VCS hardware or covered software; and (8) Other actions and proposals such as technical controls ( e.g., software validation) or operational controls ( e.g., physical and logical access monitoring procedures) the applicant intends to take to mitigate undue or unacceptable risk, … | ||||
| 15:15:3.1.1.3.27.4.1.9 | 15 | Commerce and Foreign Trade | VII | E | 791 | PART 791—SECURING THE INFORMATION AND COMMUNICATIONS TECHNOLOGY AND SERVICES SUPPLY CHAIN | D | Subpart D—ICTS Supply Chain: Connected Vehicles | § 791.308 Exemptions. | BIS | (a) VCS hardware importers may engage in prohibited transactions described in § 791.302 without an authorization as required under §§ 791.306 and 791.307, and are exempt from submitting Declarations of Conformity with respect to all other transactions, as described in § 791.305 provided that: (1) For VCS hardware units not associated with a vehicle model year, the import of the VCS hardware occurs prior to January 1, 2029; or (2) The VCS hardware is associated with a vehicle model year prior to 2030, the VCS hardware is imported as part of a connected vehicle with a model year prior to 2030, or the VCS hardware is imported for purposes of repair or warranty for a connected vehicle with a model year prior to 2030. (b) Connected vehicle manufacturers may engage in prohibited transactions described in § 791.303 without authorization as required under §§ 791.306 or 791.307 and are exempt from submitting Declarations of Conformity with respect to all other transactions, as described in § 791.305, provided that the completed connected vehicle that incorporates covered software described in § 791.303(a)(1) was manufactured prior to model year 2027. (c) Connected vehicle manufacturers who are owned by, controlled by, or subject to the jurisdiction or direction of the PRC or Russia may engage in prohibited transactions described in § 791.304 without authorization as required under §§ 791.306 or 791.307, and are exempt from submitting Declarations of Conformity to all other transactions, provided that the completed connected vehicle that incorporates VCS hardware and/or covered software was manufactured prior to model year 2027. | ||||
| 24:24:4.1.1.1.5.1.1.1 | 24 | Housing and Urban Development | VII | 791 | PART 791—ALLOCATIONS OF HOUSING ASSISTANCE FUNDS | A | Subpart A—General Provisions | § 791.101 Applicability and scope. | HUD | [64 FR 26639, May 14, 1999] | This part describes the role and responsibility of HUD in allocation of budget authority (pursuant to section 213 of the Housing and Community Development Act of 1974 (42 U.S.C. 1439)) for housing assistance under the United States Housing Act of 1937 (Section 8 and public housing) and under section 101 of the Housing and Urban Development Act of 1965 (12 U.S.C. 1701s), and of budget authority for housing assistance under section 202 of the Housing Act of 1959 (12 U.S.C. 1710q). This part does not apply to budget authority for the public housing operating fund or capital fund. | ||||
| 24:24:4.1.1.1.5.1.1.2 | 24 | Housing and Urban Development | VII | 791 | PART 791—ALLOCATIONS OF HOUSING ASSISTANCE FUNDS | A | Subpart A—General Provisions | § 791.102 Definitions. | HUD | [61 FR 10849, Mar. 15, 1996, as amended at 64 FR 26639, May 14, 1999] | Act. The Housing and Community Development Act of 1974 (42 U.S.D. 1437), as amended. Allocation area. A municipality, county, or group of municipalities or counties identified by the HUD field office for the purpose of allocating housing assistance. Assistant Secretary. The Assistant Secretary for Housing or the Assistant Secretary for Public and Indian Housing, as appropriate to the housing assistance under consideration. Budget authority. The maximum amount authorized by the Congress for payments over the term of assistance contracts. Fiscal year. The official operating period of the Federal government, beginning on October 1 and ending on September 30. Metropolitan area. See MSA. MSA. A metropolitan statistical area established by the Office of Management and Budget. The term also includes primary metropolitan statistical areas (PMSAs), which are the component parts of larger urbanized areas designated as consolidated metropolitan statistical areas (CMSAs). Where an MSA is divided among two or more field offices, references to an MSA mean the portion of the MSA within the State/Area Office jurisdiction. Public housing agency (PHA). (1) Any State, county, municipality, or other governmental entity or public body which is authorized to administer a program under the 1937 Act (or an agency or instrumentality of such an entity). (2) In addition, for purposes of the program of Section 8 tenant-based assistance under part 982 of this title, the term PHA also includes any of the following: (i) A consortia of housing agencies, each of which meets the qualifications in paragraph (1) of this definition, that HUD determines has the capacity and capability to efficiently administer the program (in which case, HUD may enter into a consolidated ACC with any legal entity authorized to act as the legal representative of the consortia members); (ii) Any other public or private non-profit entity that was administering a Section 8 tenant-based assistance program pursuant to a contract with the contract administ… | ||||
| 24:24:4.1.1.1.5.3.1.1 | 24 | Housing and Urban Development | VII | 791 | PART 791—ALLOCATIONS OF HOUSING ASSISTANCE FUNDS | D | Subpart D—Allocation of Budget Authority for Housing Assistance | § 791.401 General. | HUD | [61 FR 10849, Mar. 15, 1996, as amended at 64 FR 26639, May 14, 1999] | This subpart D establishes the procedures for allocating budget authority under section 213(d) of the Act for the programs identified in § 791.101. It describes the allocation of budget authority by the appropriate Assistant Secretary to the applicable Program Office Director in the HUD field office, and by the Program Office Director to allocation areas within their jurisdiction. | ||||
| 24:24:4.1.1.1.5.3.1.2 | 24 | Housing and Urban Development | VII | 791 | PART 791—ALLOCATIONS OF HOUSING ASSISTANCE FUNDS | D | Subpart D—Allocation of Budget Authority for Housing Assistance | § 791.402 Determination of low-income housing needs. | HUD | [61 FR 10849, Mar. 15, 1996, as amended at 64 FR 26639, May 14, 1999] | (a) Before budget authority is allocated, the Assistant Secretary for Policy Development and Research shall determine the relative need for low-income housing assistance in each HUD field office jurisdiction. This determination shall be based upon data from the most recent, available decennial census and, where appropriate, upon more recent data from the Bureau of the Census or other Federal agencies, or from the American Housing Survey. (b) Except for paragraph (c) of this section, the factors used to determine the relative need for assistance shall be based upon the following criteria: (1) Population. The renter population; (2) Poverty. The number of renter households with annual incomes at or below the poverty level, as defined by the Bureau of the Census; (3) Housing overcrowding. The number of renter-occupied housing units with an occupancy ratio of 1.01 or more persons per room; (4) Housing vacancies. The number of renter housing units that would be required to maintain vacancies at levels typical of balanced market conditions; (5) Substandard housing. The number of housing units built before 1940 and occupied by renter households with annual incomes at or below the poverty level, as defined by the Bureau of the Census; and (6) Other objectively measurable conditions. Data indicating potential need for rental housing assistance, such as the number of renter households with incomes below specified levels and paying a gross rent of more than 30 percent of household income. (c) For the section 202 elderly program, the data used shall reflect relevant characteristics of the elderly population. The data shall use the criteria specified in paragraph (b)(1) and (6) of this section, as modified to apply specifically to the needs of the elderly population. (d) Based on the criteria in paragraphs (b) and (c) of this section, the Assistant Secretary for Policy Development and Research shall establish housing needs factors for each county and independent city in the field office jurisdiction, and s… | ||||
| 24:24:4.1.1.1.5.3.1.3 | 24 | Housing and Urban Development | VII | 791 | PART 791—ALLOCATIONS OF HOUSING ASSISTANCE FUNDS | D | Subpart D—Allocation of Budget Authority for Housing Assistance | § 791.403 Allocation of housing assistance. | HUD | [61 FR 10849, Mar. 15, 1996, as amended at 64 FR 26640, May 14, 1999] | (a) The total budget authority available for any fiscal year shall be determined by adding any available unreserved budget authority from prior fiscal years to any newly appropriated budget authority for each housing program. (b) Budget authority available for the fiscal year, except for that retained pursuant to § 791.407, shall be allocated to the field offices as follows: (1) Budget authority shall be allocated as needed for uses that the Secretary determines are incapable of geographic allocation by formula, including— (i) Amendments of existing contracts, renewal of assistance contracts, assistance to families that would otherwise lose assistance due to the decision of the project owner to prepay the project mortgage or not to renew the assistance contract, assistance to prevent displacement or to provide replacement housing in connection with the demolition or disposition of public housing, assistance in support of the property disposition and loan management functions of the Secretary; (ii) Assistance which is— (A) The subject of a line item identification in the HUD appropriations law, or in the table customarily included in the Conference Report on the appropriation for the Fiscal Year in which the funds are to be allocated; (B) Reported in the Operating Plan submitted by HUD to the Committees on Appropriations; or (C) Included in an authorization statute where the nature of the assistance, such as a prescribed set-aside, is, in the determination of the Secretary, incapable of geographic allocation by formula, (iii) Assistance determined by the Secretary to be necessary in carrying out the following programs authorized by the Cranston-Gonzalez National Affordable Housing Act: the Homeownership and Opportunity Through HOPE Act under title IV and HOPE for Elderly Independence under section 803. (2) Budget authority remaining after carrying out allocation steps outlined in paragraph (b)(1) of this section shall be allocated in accordance with the housing needs percentages calculated under paragraph… | ||||
| 24:24:4.1.1.1.5.3.1.4 | 24 | Housing and Urban Development | VII | 791 | PART 791—ALLOCATIONS OF HOUSING ASSISTANCE FUNDS | D | Subpart D—Allocation of Budget Authority for Housing Assistance | § 791.404 Field Office allocation planning. | HUD | [61 FR 10849, Mar. 15, 1996, as amended at 64 FR 26640, May 14, 1999] | (a) General objective. The allocation planning process should provide for the equitable distribution of available budget authority, consistent with the relative housing needs of each allocation area within the field office jurisdiction. (b) Establishing allocation areas. Allocation areas, consisting of one or more counties or independent cities, shall be established by the field office in accordance with the following criteria: (1) Each allocation shall be to the smallest practicable area, but of sufficient size so that at least three eligible entities are viable competitors for funds in the allocation area, and so that all applicable statutory requirements can be met. (It is expected that in many instances individual MSAs will be established as metropolitan allocation areas.) For the section 202 program for the elderly, the allocation area must include sufficient units to promote a meaningful competition among disparate types of providers of such housing (e.g., local as well as national sponsors, minority as well as non-minority sponsors). The preceding sentence shall not apply to projects acquired from the Resolution Trust Corporation under section 21A(c) of the Federal Home Loan Bank Act. (2) Each allocation area shall also be of sufficient size, in terms of population and housing need, that the amount of budget authority being allocated to the area will support at least one feasible program or project. (3) In establishing allocation areas, counties and independent cities within MSAs should not be combined with counties that are not in MSAs. (c) Determining the amount of budget authority. Where the field office establishes more than one allocation area, it shall determine the amount of budget authority to be allocated to each allocation area, based upon a housing needs percentage which represents the needs of that area relative to the field office jurisdiction. For each program, a composite housing needs percentage developed under § 791.402 for those counties and independent cities comprising the al… | ||||
| 24:24:4.1.1.1.5.3.1.5 | 24 | Housing and Urban Development | VII | 791 | PART 791—ALLOCATIONS OF HOUSING ASSISTANCE FUNDS | D | Subpart D—Allocation of Budget Authority for Housing Assistance | § 791.405 Reallocations of budget authority. | HUD | (a) The field office shall make every reasonable effort to use the budget authority made available for each allocation area within such area. If the Program Office Director determines that not all of the budget authority allocated for a particular allocation area is likely to be used during the fiscal year, the remaining authority may be allocated to other allocation areas where it is likely to be used during that fiscal year. (b) If the Assistant Secretary determines that not all of the budget authority allocated to a field office is likely to be used during the fiscal year, the remaining authority may be reallocated to another field office where it is likely to be used during that fiscal year. (c) Any reallocations of budget authority among allocation areas or field offices shall be consistent with the assignment of budget authority for the specific program type and established set-asides. (d) Notwithstanding the requirements of paragraphs (a) through (c) of this section, budget authority shall not be reallocated for use in another State unless the Program Office Director or the Assistant Secretary has determined that other allocation areas within the same State cannot use the available authority during the fiscal year. | |||||
| 24:24:4.1.1.1.5.3.1.6 | 24 | Housing and Urban Development | VII | 791 | PART 791—ALLOCATIONS OF HOUSING ASSISTANCE FUNDS | D | Subpart D—Allocation of Budget Authority for Housing Assistance | § 791.406 Competition. | HUD | (a) All budget authority allocated pursuant to § 791.403(b)(2) shall be reserved and obligated pursuant to a competition. Any such competition shall be conducted pursuant to specific criteria for the selection of recipients of assistance. These criteria shall be contained in a regulation promulgated after notice and public comment or, to the extent authorized by law, a notice published in the Federal Register. (b) This section shall not apply to assistance referred to in §§ 791.403(b)(1) and 791.407. | |||||
| 24:24:4.1.1.1.5.3.1.7 | 24 | Housing and Urban Development | VII | 791 | PART 791—ALLOCATIONS OF HOUSING ASSISTANCE FUNDS | D | Subpart D—Allocation of Budget Authority for Housing Assistance | § 791.407 Headquarters Reserve. | HUD | (a) A portion of the budget authority available for the housing programs listed in § 791.101(a), not to exceed an amount equal to five percent of the total amount of budget authority available for the fiscal year for programs under the United States Housing Act of 1937 listed in § 791.101(a), may be retained by the Assistant Secretary for subsequent allocation to specific areas and communities, and may only be used for: (1) Unforeseen housing needs resulting from natural and other disasters, including hurricanes, tornadoes, storms, high water, wind driven water, tidal waves, tsunamis, earthquakes, volcanic eruptions, landslides, mudslides, snowstorms, drought, fires, floods, or explosions, which in the determination of the Secretary cause damage of sufficient severity and magnitude to warrant Federal housing assistance; (2) Housing needs resulting from emergencies, as certified by the Secretary, other than disasters described in paragraph (a)(1) of this section. Emergency housing needs that can be certified are only those that result from unpredictable and sudden circumstances causing housing deprivation (such as physical displacement, loss of Federal rental assistance, or substandard housing conditions) or causing an unforeseen and significant increase in low-income housing demand in a housing market (such as influx of refugees or plant closings); (3) Housing needs resulting from the settlement of litigation; and (4) Housing in support of desegregation efforts. (b) Applications for funds retained under paragraph (a) of this section shall be made to the field office, which will make recommendations to Headquarters for approval or rejection of the application. Applications generally will be considered for funding on a first-come, first-served basis. Specific instructions governing access to the Headquarters Reserve shall be published by notice in the Federal Register, as necessary. (c) Any amounts retained in any fiscal year under paragraph (a) of this section that are not reserved by the end of such fisca… | |||||
| 40:40:35.0.1.1.2.1.1.1 | 40 | Protection of Environment | I | R | 791 | PART 791—DATA REIMBURSEMENT | A | Subpart A—General Provisions | § 791.1 Scope and authority. | EPA | (a) This part establishes procedures and criteria to be used in determining fair amounts of reimbursement for testing costs incurred under section 4(a) of the Toxic Substances Control Act (TSCA) (15 U.S.C. 2603(a)). (b) Section 4(c) of TSCA requires EPA to develop rules for the determination of fair and equitable reimbursement (15 U.S.C. 2603 (c)). | ||||
| 40:40:35.0.1.1.2.1.1.2 | 40 | Protection of Environment | I | R | 791 | PART 791—DATA REIMBURSEMENT | A | Subpart A—General Provisions | § 791.2 Applicability. | EPA | (a) This rule is potentially applicable to all manufacturers, importers and processors who may be required by a specific test rule promulgated under section 4(a) of TSCA to conduct tests and submit data, and who seek the assistance of the Administrator in determining the amount or method of reimbursement. Persons subject to a test rule have an obligation from the date the test rule becomes effective until the end of the reimbursement period, either to test or to obtain an exemption and pay reimbursement. (b) The provisions of this rule will take effect only when private efforts to resolve a dispute have failed and a manufacturer or processor requests EPA's assistance. | ||||
| 40:40:35.0.1.1.2.1.1.3 | 40 | Protection of Environment | I | R | 791 | PART 791—DATA REIMBURSEMENT | A | Subpart A—General Provisions | § 791.3 Definitions. | EPA | Terms defined in the Act, and not explicitly defined herein, are used with the meanings given in the Act. (a) The Act refers to the Toxic Substances Control Act (TSCA) (15 U.S.C. 2601 et seq. ). (b) The Agency or EPA refers to the Environmental Protection Agency. (c) Byproduct refers to a chemical substance produced without a separate commercial intent during the manufacture, processing, use or disposal of another chemical substance or mixture. (d) Dispute refers to a present controversy between parties subject to a test rule over the amount or method of reimbursement for the cost of developing health and environmental data on the test chemical. (e) Exemption holder refers to a manufacturer or processor, subject to a test rule, that has received an exemption under sections 4(c)(1) or 4(c)(2) of TSCA from the requirement to conduct a test and submit data. (f) Impurity refers to a chemical substance unintentionally present with another chemical substance or mixture. (g) A party refers to a person subject to a section 4 test rule, who: (1) Seeks reimbursement from another person under these rules, or (2) From whom reimbursement is sought under these rules. (h) Reimbursement period refers to a period that begins when the data from the last non-duplicative test to be completed under a test rule is submitted to EPA and ends after an amount of time equal to that which had been required to develop that data or after 5 years, whichever is later. (i) Small business refers to a manufacturer or importer whose annual sales, when combined with those of its parent company (if any) are less than $30 million. (j) Test rule refers to a regulation ordering the development of data on health or environmental effects or chemical fate for a chemical substance or mixture pursuant to TSCA section 4(a). | ||||
| 40:40:35.0.1.1.2.2.1.1 | 40 | Protection of Environment | I | R | 791 | PART 791—DATA REIMBURSEMENT | B | Subpart B—Hearing Procedures | § 791.20 Initiation of reimbursement proceeding. | EPA | (a) When persons subject to a test rule are unable to reach an agreement on the amount or method of reimbursement for test data development as described in TSCA section 4(c)(3)(A), any of them may initiate a proceeding by filing two signed copies of a request for a hearing with a regional office of the American Arbitration Association and mailing a copy of the request to EPA, and to each person from whom they seek reimbursement, or who seeks reimbursement from them. (b) The request for hearing must contain the following: (1) The names and addresses of the filing party and its counsel, if any. (2) Identification of the test rule under which the dispute arose. (3) A list of the parties from whom reimbursement is sought or who are seeking reimbursement, a brief description of the attempts to reach agreement and a concise explanation of the issues on which the parties are unable to agree. (c) The request for a hearing shall be accompanied by the appropriate administrative fee, as provided in a current Fee Schedule of the American Arbitration Association. | ||||
| 40:40:35.0.1.1.2.2.1.2 | 40 | Protection of Environment | I | R | 791 | PART 791—DATA REIMBURSEMENT | B | Subpart B—Hearing Procedures | § 791.22 Consolidation of hearings. | EPA | (a) Promptly upon receipt of the request for a hearing, the Administrator will publish a notice in the Federal Register, advising those subject to the test rule that a request for a hearing has been made. (b) Any other person wishing to participate in the hearing shall so notify EPA within 45 days of the Federal Register notice. EPA will promptly inform the regional office of the American Arbitration Association where the request has been filed of the additional parties. | ||||
| 40:40:35.0.1.1.2.2.1.3 | 40 | Protection of Environment | I | R | 791 | PART 791—DATA REIMBURSEMENT | B | Subpart B—Hearing Procedures | § 791.27 Pre-hearing preparation. | EPA | (a) Responses to requests for hearings. After filing of the request for hearing, if any other party desires to file an answer it shall be made in writing and filed with the American Arbitration Association, and a copy thereof shall be mailed to the other parties within a period of fourteen days from the date of receiving the complete list of parties. After the hearing officer is appointed, however, no new or different claim may be submitted except with the hearing officer's consent. (b) Pre-hearing conference. At the request of the parties or at the discretion of the American Arbitration Association, a pre-hearing conference with a representative of the American Arbitration Association and the parties or their counsel will be scheduled in appropriate cases to arrange for an exchange of information and the stipulation of uncontested facts so as to expedite the proceedings. (c) Fixing of locale. The parties may mutually agree on the locale where the hearing is to be held. If the locale is not designated within 45 days from the time the complete list of parties is received, the American Arbitration Association shall have power to determine the locale. Its decision shall be final and binding. If any party requests, and informs the other parties of its request, that the hearing be held in a specific locale and the other parties file no objection thereto within 14 days of the request, the locale shall be the one requested. (d) Time and place. The hearing officer shall fix the time and place for each hearing. The American Arbitration Association will mail notice to each party at least 14 days in advance. | ||||
| 40:40:35.0.1.1.2.2.1.4 | 40 | Protection of Environment | I | R | 791 | PART 791—DATA REIMBURSEMENT | B | Subpart B—Hearing Procedures | § 791.29 Appointment of hearing officer. | EPA | (a) Qualifications of hearing officer. All hearing officers shall be neutral, subject to disqualification for the reasons specified in paragraph (f) of this section. (b) Appointment from panel. Promptly after receiving the complete list of parties at the close of the notice period described in § 791.22, the American Arbitration Association shall submit simultaneously to each party to the dispute an identical list of names. Each party to the dispute shall have thirty days from the mailing date in which to cross off any names objected to, number the remaining names to indicate the order of preference, and return the list to the American Arbitration Association. If a party does not return the list within the time specified, all persons named therein shall be deemed acceptable to that party. From among the persons who have been approved on all lists, and in accordance with the designated order of mutual preference, the American Arbitration Association shall invite the acceptance of a hearing officer to serve. If the parties fail to agree upon any of the persons named, or if acceptable hearing officers are unable to act, or if for any other reason the appointment cannot be made from the submitted lists, the American Arbitration Association shall have the power to make the appointment without the submission of any additional list. (c) Nationality of hearing officer in international dispute. If one of the parties is a national or resident of a country other than the United States, the hearing officer shall upon the request of any party, be appointed from among the nationals of a country other than that of the parties. (d) Number of hearing officers. The dispute shall be heard and determined by one hearing officer unless the American Arbitration Association, in its discretion, directs that a greater number of hearing officers be appointed. (e) Notice of appointment. Notice of the appointment of the hearing officer, together with a copy of these rules, and the signed acceptance of the hearing officer shall b… | ||||
| 40:40:35.0.1.1.2.2.1.5 | 40 | Protection of Environment | I | R | 791 | PART 791—DATA REIMBURSEMENT | B | Subpart B—Hearing Procedures | § 791.30 Hearing procedures. | EPA | (a) Representation by counsel. Any party may be represented by counsel. A party intending to be so represented shall notify the other parties and the American Arbitration Association of the name and address of counsel at least 5 days prior to the date set for the hearing at which counsel is first to appear. When a hearing is initiated by counsel, or where an attorney replies for the other party, such notice is deemed to have been given. (b) Stenographic record. The American Arbitration Association shall make the necessary arrangements for the taking of a stenographic record. The parties shall share the cost of such record. (c) Attendance at hearings. The hearing officer shall have the power to require the exclusion of anyone, including a party or other essential person, during the testimony of any witness to protect confidential business information. It shall be discretionary with the hearing officer to determine the propriety of the attendance of any other person. (d) Oaths. Hearing officers shall swear or affirm their neutrality and their dedication to a fair and equitable resolution. Witnesses shall swear or affirm that they are telling the truth. (e) Order of proceedings. (1) A hearing shall be opened by the filing of the oath of the hearing officer and by the recording of the place, time and date of the hearing, the presence of the hearing officer and parties, and counsel, if any, and by the receipt by the hearing officer of the request for hearing and answer, if any. (2) The hearing officer may, at the beginning of the hearing, ask for statements clarifying the issues involved. (3) The party or parties seeking reimbursement shall then present a claim and proofs and witnesses, who shall submit to questions or other examination. The party or parties from whom reimbursement is sought shall then present a defense and proofs and witnesses, who shall submit to questions or other examination. The hearing officer has discretion to vary this procedure but shall afford full and equal opportunity to al… | ||||
| 40:40:35.0.1.1.2.2.1.6 | 40 | Protection of Environment | I | R | 791 | PART 791—DATA REIMBURSEMENT | B | Subpart B—Hearing Procedures | § 791.31 Expedited procedures. | EPA | Unless the American Arbitration Association in its discretion determines otherwise, the Expedited Procedures described in this section shall be applied in any case where the total claim of any party does not exceed $5,000, exclusive of interest and hearing costs, and may be applied in other cases if the parties agree. (a) Application of rules. The expedited hearings will be conducted according to the same procedures as the regular ones, except for those specifically changed by the expedited rules in this section, § 791.31. (b) Notice by telephone. The parties shall accept all notices from the American Arbitration Association by telephone. Such notices by the American Arbitration Association shall subsequently be confirmed in writing to the parties. Notwithstanding the failure to confirm in writing any notice or objection hereunder, the proceeding shall nonetheless be valid if notice or obligation has, in fact, been given by telephone. (c) Appointment and qualifications of hearing officers. The American Arbitration Association shall submit simultaneously to each party to the dispute an identical list of five persons from which one hearing officer shall be appointed. Each party shall have the right to strike two names from the list on a peremptory basis. The list is returnable to the American Arbitration Association within 10 days from the date of mailing. If for any reasons the appointment cannot be made from the list, the American Arbitration Association shall have the authority to make the appointment without the submission of additional lists. Such appointment shall be subject to disqualification for the reasons specified in § 791.29(f). The parties shall be given notice by telephone by the American Arbitration Association of the appointment of the hearing officer. The parties shall notify the American Arbitration Association, by telephone, within 7 days of any objections to the hearing officer(s) appointed. Any objection by a party to such hearing officer shall be confirmed in writing to the American … | ||||
| 40:40:35.0.1.1.2.2.1.7 | 40 | Protection of Environment | I | R | 791 | PART 791—DATA REIMBURSEMENT | B | Subpart B—Hearing Procedures | § 791.34 Serving of notice. | EPA | (a) Each party shall be deemed to have consented that any papers, notices or process necessary or proper for the initiation or continuation of a hearing under these rules and for any appeal to EPA or any court action in connection therewith may be served upon such party by mail addressed to such party or its attorney at its last known address or by personal service, within or without the state wherein the arbitration is to be held (whether such party be within or without the United States of America), provided that reasonable opportunity to be heard with regard thereto has been granted such party. (b) The American Arbitration Association shall, upon the written request of a party, furnish to such party, at its expense, certified facsimiles of any papers in the American Arbitration Association's possession that may be required in appeal to EPA or judicial proceedings relating to the hearing. | ||||
| 40:40:35.0.1.1.2.2.1.8 | 40 | Protection of Environment | I | R | 791 | PART 791—DATA REIMBURSEMENT | B | Subpart B—Hearing Procedures | § 791.37 The award. | EPA | (a) Time of award. The award shall be made promptly by the hearing officer and, unless otherwise agreed by the parties, no later than 30 days from the date of closing the hearings, or if oral hearings have been waived, from the date of transmitting the final statements and proofs to the hearing officer. (b) Form of award. The award shall be in writing and shall be signed either by the sole hearing officer or by at least a majority if there is more than one. It shall contain a concise statement of its basis and rationale, and a timetable for payment of any ordered reimbursement. (c) Delivery of award to parties. Parties shall accept as legal delivery of the award the delivery of the award or a true copy thereof by certified mail to the party at its last known address or to its attorney, or by personal service. | ||||
| 40:40:35.0.1.1.2.2.1.9 | 40 | Protection of Environment | I | R | 791 | PART 791—DATA REIMBURSEMENT | B | Subpart B—Hearing Procedures | § 791.39 Fees and expenses. | EPA | [48 FR 31791, July 11, 1983, as amended at 83 FR 52724, Oct. 17, 2018] | (a) Administrative fees. (1) As a not-for-profit organization, the American Arbitration Association shall prescribe an Administrative Fee Schedule and a Refund Schedule to compensate it for the cost of providing administrative services. The schedule in effect at the time of filing or the time of refund shall be applicable. (2) The administrative fees shall be advanced by the initiating party or parties, subject to final apportionment by the hearing officer in the award. The administrative fee is increased by 10 percent of the original for each additional party. (b) Expenses. All expenses of the hearing, including the cost of recording (though not transcribing) the hearing and required traveling and other expenses of the hearing officer and of American Arbitration Association representatives, and the expenses of any witness or the cost of any proofs produced at the direct request of the hearing officer, shall be borne equally by the parties, unless they agree otherwise, or unless the hearing officer, in the award, assesses such expenses or any part thereof against any specified party or parties. (c) Hearing officer's fee. Hearing officers will normally serve without a fee. In prolonged or special cases the American Arbitration Association in consultation with the Administrator may determine that payment of a fee by the parties is appropriate and may establish a reasonable amount, taking into account the extent of service by the hearing officer and other relevant circumstances of the case. Any arrangements for compensation shall be made through the American Arbitration Association and not directly between the parties and the hearing officer. | |||
| 40:40:35.0.1.1.2.3.1.1 | 40 | Protection of Environment | I | R | 791 | PART 791—DATA REIMBURSEMENT | C | Subpart C—Basis for Proposed Order | § 791.40 Basis for the proposed order. | EPA | (a) The hearing officer shall propose a fair and equitable amount of reimbursement. The formula in paragraph (b) of this section shall be presumed to be fair and equitable as applied to all persons subject to a test rule. However, the hearing officer has the discretion to modify the formula, or to use some other basis for allocation if necessary. Additional factors that may be taken into account include, but are not limited to, relative amounts of exposure attributable to each person and the effect of the reimbursement share on competitive position. (b) In general, each person's share of the test cost shall be in proportion to its share of the total production volume of the test chemical: Where: R = the reimbursement share owed by company X. C = the total cost of the testing required by the test rule. V x = the volume of the test chemical produced or imported by company X over the period defined by § 791.48. V t = the total volume of the test chemical produced or imported over the period defined by § 791.48. Where: R = the reimbursement share owed by company X. C = the total cost of the testing required by the test rule. V x = the volume of the test chemical produced or imported by company X over the period defined by § 791.48. V t = the total volume of the test chemical produced or imported over the period defined by § 791.48. (c) The burden of proposing modifications to the formula shall lie with the party requesting the modification. | ||||
| 40:40:35.0.1.1.2.3.1.2 | 40 | Protection of Environment | I | R | 791 | PART 791—DATA REIMBURSEMENT | C | Subpart C—Basis for Proposed Order | § 791.45 Processors. | EPA | (a) Generally, processors will be deemed to have fulfilled their testing and reimbursement responsibilities indirectly, through higher prices passed on by those directly responsible, the manufacturers. There are three circumstances in which processors will have a responsibility to provide reimbursement directly to those paying for the testing: (1) When a test rule or subsequent Federal Register notice pertaining to a test rule expressly obligates processors as well as manufacturers to assume direct testing and data reimbursement responsibilities. (2) When one or more manufacturers demonstrate to the hearing officer that it is necessary to include processors in order to provide fair and equitable reimbursement in a specific case. (3) When one or more processors voluntarily agree to reimburse manufacturers for a portion of test costs. Only those processors who volunteer will incur the obligation. (b) A hearing including processors shall be initiated in the same way as those including only manufacturers. Voluntary negotiations must be attempted in good faith first, and the request for a hearing must contain the names of the parties and a description of the unsuccessful negotiations. (c) When processors as well as manufacturers are required to provide reimbursement, the hearing officer will decide for each case how the reimbursement should be allocated among the participating parties. When a test rule is applicable solely to processors, the hearing officer will apply the formula to the amount of the test chemical purchased or processed. | ||||
| 40:40:35.0.1.1.2.3.1.3 | 40 | Protection of Environment | I | R | 791 | PART 791—DATA REIMBURSEMENT | C | Subpart C—Basis for Proposed Order | § 791.48 Production volume. | EPA | (a) Production volume will be measured over a period that begins one calendar year before publication of the final test rule in the Federal Register and continues up to the latest data available upon resolution of a dispute. (b) For the purpose of determining fair reimbursement shares, production volume shall include amounts of the test chemical imported in bulk form and mixtures, and the total domestic production of the chemical including that produced as a byproduct. Impurities will not be included unless the test rule specifically includes them. (c) Amounts of the test chemical manufactured for export will not be included unless covered by a finding under TSCA section 12(a)(2). (d) Chemicals excluded from the jurisdiction of TSCA by section 3(2)(B) need not be included in the computation of production volume. (Chemicals used as intermediates to produce pesticides are covered by TSCA.) (e) The burden of establishing the fact that particular amounts of the test chemical are produced for exempt purposes lies with the party seeking to exclude those amounts from the calculation of his production volume. | ||||
| 40:40:35.0.1.1.2.3.1.4 | 40 | Protection of Environment | I | R | 791 | PART 791—DATA REIMBURSEMENT | C | Subpart C—Basis for Proposed Order | § 791.50 Costs. | EPA | (a) All costs reasonable and necessary to comply with the test rule, taking into account the practices of other laboratories in conducting similar tests, are eligible for reimbursement. Necessary costs include: (1) Direct and indirect costs of planning, conducting, analyzing and submitting the test results to EPA. (2) A reasonable profit, and a reasonable rate of interest and depreciation on the tester's initial capital investment. (3) The cost of repeating or repairing tests where failure was demonstrably due to some cause other than negligence of the tester. (b) Costs attributable to tests beyond those specified by EPA shall not be eligible for reimbursement under this rule. | ||||
| 40:40:35.0.1.1.2.3.1.5 | 40 | Protection of Environment | I | R | 791 | PART 791—DATA REIMBURSEMENT | C | Subpart C—Basis for Proposed Order | § 791.52 Multiple tests. | EPA | When more than one of a particular kind of test required by the test rule is performed, the additional costs will be shared among all those holding exemptions. The costs of all the tests will be added together and each exemption holder shall be responsible for a share of the total which is equal to its share of the total production of the test chemical. The exemption holders shall divide their shares between test sponsors in proportion to the costs of their respective tests. Those sponsoring a particular test do not have to obtain exemptions for that test and therefore do not have reimbursement responsibilities for the same tests done by others. | ||||
| 40:40:35.0.1.1.2.4.1.1 | 40 | Protection of Environment | I | R | 791 | PART 791—DATA REIMBURSEMENT | D | Subpart D—Review | § 791.60 Review. | EPA | (a) The hearing officer's proposed order shall become the final Agency order 30 days after issuance unless within the 30-day period one of the parties requests Agency review or the Administrator of his own initiative decides to review the proposed order. (b) The proposed order may be reviewed upon the record of the hearing and the petitions for review. If necessary, the Administrator may order the transcription of the stenographic record of the hearing, written briefs, oral arguments or any other reasonable aids to making an equitable decision. (c) The final Agency order may be reviewed in federal court as provided by 26 U.S.C. 2603(c). | ||||
| 40:40:35.0.1.1.2.5.1.1 | 40 | Protection of Environment | I | R | 791 | PART 791—DATA REIMBURSEMENT | E | Subpart E—Final Order | § 791.85 Availability of final Agency order. | EPA | The final Agency order shall be available to the public for inspection and copying pursuant to 5 U.S.C. 552(a)(2), subject to necessary confidentiality restrictions. | ||||
| 40:40:35.0.1.1.2.6.1.1 | 40 | Protection of Environment | I | R | 791 | PART 791—DATA REIMBURSEMENT | F | Subpart F—Prohibited Acts | § 791.105 Prohibited acts. | EPA | Failure to provide information required by the Agency or to pay the amounts awarded under this rule within time alloted in the final order shall constitute a violation of 15 U.S.C. 2614(1) or 2614(3). |
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subchapter TEXT,
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