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41 U.S. Code § 1323 - Functions and authorities
(a) In General.—The Council shall perform functions that include the following:
Identifying and recommending development by the National Institute of Standards and Technology of supply chain risk management standards, guidelines, and practices for executive agencies to use when assessing and developing mitigation strategies to address supply chain risks, particularly in the acquisition and use of covered articles under section 1326(a) of this title.
(2) Identifying or developing criteria for sharing information with executive agencies, other Federal entities, and non-Federal entities with respect to supply chain risk, including information related to the exercise of authorities provided under this section and sections 1326 and 4713 of this title. At a minimum, such criteria shall address—
the circumstances under which it is appropriate for an executive agency to rely on information made available through such sharing in exercising the responsibilities and authorities provided under this section and section 4713 of this title.
(3) Identifying an appropriate executive agency to—
accept information submitted by executive agencies based on the criteria established under paragraph (2);
inform the Council of orders issued under this section.
(4) Identifying, as appropriate, executive agencies to provide—
shared services, such as support for making risk assessments, validation of products that may be suitable for acquisition, and mitigation activities; and
common contract solutions to support supply chain risk management activities, such as subscription services or machine-learning-enhanced analysis applications to support informed decision making.
Identifying and issuing guidance on additional steps that may be necessary to address supply chain risks arising in the course of executive agencies providing shared services, common contract solutions, acquisitions vehicles, or assisted acquisitions.
(b) Program Office and Committees.—
(c) Authority for Exclusion or Removal Orders.—
(1) Criteria.—To reduce supply chain risk, the Council shall establish criteria and procedures for—
recommending orders applicable to executive agencies requiring the exclusion of sources or covered articles from executive agency procurement actions (in this section referred to as “exclusion orders”);
recommending orders applicable to executive agencies requiring the removal of covered articles from executive agency information systems (in this section referred to as “removal orders”);
requesting and approving exceptions to an issued exclusion or removal order when warranted by circumstances, including alternative mitigation actions or other findings relating to the national interest, including national security reviews, national security investigations, or national security agreements; and
ensuring that recommended orders do not conflict with standards and guidelines issued under section 11331 of title 40 and that the Council consults with the Director of the National Institute of Standards and Technology regarding any recommended orders that would implement standards and guidelines developed by the National Institute of Standards and Technology.
(2) Recommendations.—The Council shall use the criteria established under paragraph (1), information made available under subsection (a)(3), and any other information the Council determines appropriate to issue recommendations, for application to executive agencies or any subset thereof, regarding the exclusion of sources or covered articles from any executive agency procurement action, including source selection and consent for a contractor to subcontract, or the removal of covered articles from executive agency information systems. Such recommendations shall include—
information necessary to positively identify the sources or covered articles recommended for exclusion or removal;
information regarding the scope and applicability of the recommended exclusion or removal order;
a summary of any risk assessment reviewed or conducted in support of the recommended exclusion or removal order;
a summary of the basis for the recommendation, including a discussion of less intrusive measures that were considered and why such measures were not reasonably available to reduce supply chain risk;
a description of the actions necessary to implement the recommended exclusion or removal order; and
(3) Notice of recommendation and review.—A notice of the Council’s recommendation under paragraph (2) shall be issued to any source named in the recommendation advising—
of the criteria the Council relied upon under paragraph (1) and, to the extent consistent with national security and law enforcement interests, of information that forms the basis for the recommendation;
that, within 30 days after receipt of notice, the source may submit information and argument in opposition to the recommendation;
of the procedures governing the review and possible issuance of an exclusion or removal order pursuant to paragraph (5); and
(4) Confidentiality.—Any notice issued to a source under paragraph (3) shall be kept confidential until—
(5) Exclusion and removal orders.—
(A) Order issuance.—Recommendations of the Council under paragraph (2), together with any information submitted by a source under paragraph (3) related to such a recommendation, shall be reviewed by the following officials, who may issue exclusion and removal orders based upon such recommendations:
The Secretary of Homeland Security, for exclusion and removal orders applicable to civilian agencies, to the extent not covered by clause (ii) or (iii).
The Secretary of Defense, for exclusion and removal orders applicable to the Department of Defense and national security systems other than sensitive compartmented information systems.
The Director of National Intelligence, for exclusion and removal orders applicable to the intelligence community and sensitive compartmented information systems, to the extent not covered by clause (ii).
The officials identified in subparagraph (A) may not delegate any authority under this subparagraph to an official below the level one level below the Deputy Secretary or Principal Deputy Director, except that the Secretary of Defense may delegate authority for removal orders to the Commander of the United States Cyber Command, who may not redelegate such authority to an official below the level one level below the Deputy Commander.
(C) Facilitation of exclusion orders.—
If officials identified under this paragraph from the Department of Homeland Security, the Department of Defense, and the Office of the Director of National Intelligence issue orders collectively resulting in a governmentwide exclusion, the Administrator for General Services and officials at other executive agencies responsible for management of the Federal Supply Schedules, governmentwide acquisition contracts and multi-agency contracts shall help facilitate implementation of such orders by removing the covered articles or sources identified in the orders from such contracts.
(D) Review of exclusion and removal orders.—
The officials identified under this paragraph shall review all exclusion and removal orders issued under subparagraph (A) not less frequently than annually pursuant to procedures established by the Council.
(6) Notifications.—Upon issuance of an exclusion or removal order pursuant to paragraph (5)(A), the official identified under that paragraph who issued the order shall—
(A) notify any source named in the order of—
provide classified or unclassified notice of the exclusion or removal order to the appropriate congressional committees and leadership; and
(d) Authority To Request Information.—
(e) Relationship to Other Councils.—
The Council shall consult and coordinate, as appropriate, with other relevant councils and interagency committees, including the Chief Information Officers Council, the Chief Acquisition Officers Council, the Federal Acquisition Regulatory Council, and the Committee on Foreign Investment in the United States, with respect to supply chain risks posed by the acquisition and use of covered articles.
(f) Rules of Construction.—Nothing in this section shall be construed—
to limit the authority of the Office of Federal Procurement Policy to carry out the responsibilities of that Office under any other provision of law; or
Statutory Notes and Related Subsidiaries
Section effective 90 days after Dec. 21, 2018, and applicable to contracts that are awarded before, on, or after that date, see section 202(c) of Pub. L. 115–390, set out as a note under section 1321 of this title.