41 U.S.C. § 1323 — Functions and authorities

Page 28 TITLE 41—PUBLIC CONTRACTS § 1323 including leadership and subject matter ex- perts of the agency, are aware of the busi- ness of the Council. (c) CHAIRPERSON.— (1) DESIGNATION.—Not later than 45 days after the date of the enactment of the Federal Acquisition Supply Chain Security Act of 2018, the Director of the Office of Management and Budget shall designate a senior-level official from the Office of Management and Budget to serve as the Chairperson of the Council. (2) FUNCTIONS.—The Chairperson shall per- form functions that include— (A) subject to subsection (d), developing a schedule for meetings of the Council; (B) designating executive agencies to be represented on the Council under subsection (b)(1)(H); (C) in consultation with the lead rep- resentative of each agency represented on the Council, developing a charter for the Council; and (D) not later than 7 days after completion of the charter, submitting the charter to the appropriate congressional committees and leadership. (d) MEETINGS.—The Council shall meet not later than 60 days after the date of the enact- ment of the Federal Acquisition Supply Chain Security Act of 2018 and not less frequently than quarterly thereafter. (Added Pub. L. 115–390, title II, § 202(a), Dec. 21, 2018, 132 Stat. 5178.) Editorial Notes REFERENCES IN TEXT The date of the enactment of the Federal Acquisition Supply Chain Security Act of 2018, referred to in sub- secs. (b)(2)(A)(i), (c)(1), and (d), is the date of enactment of Pub. L. 115–390, which was approved Dec. 21, 2018. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 90 days after Dec. 21, 2018, and appli- cable 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. Title II of Pub. L. 115–390 effective 90 days after Dec. 21, 2018, see section 205 of Pub. L. 115–390, set out as a note under section 1321 of this title. § 1323. Functions and authorities (a) IN GENERAL.—The Council shall perform functions that include the following: (1) Identifying and recommending develop- ment by the National Institute of Standards and Technology of supply chain risk manage- ment standards, guidelines, and practices for executive agencies to use when assessing and developing mitigation strategies to address supply chain risks, particularly in the acquisi- tion 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 enti- ties with respect to supply chain risk, includ- ing information related to the exercise of au- thorities provided under this section and sec- tions 1326 and 4713 of this title. At a minimum, such criteria shall address— (A) the content to be shared; (B) the circumstances under which sharing is mandated or voluntary; and (C) the circumstances under which it is ap- propriate 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— (A) accept information submitted by exec- utive agencies based on the criteria estab- lished under paragraph (2); (B) facilitate the sharing of information received under subparagraph (A) to support supply chain risk analyses under section 1326 of this title, recommendations under this section, and covered procurement actions under section 4713 of this title; (C) share with the Council information re- garding covered procurement actions by ex- ecutive agencies taken under section 4713 of this title; and (D) inform the Council of orders issued under this section. (4) Identifying, as appropriate, executive agencies to provide— (A) shared services, such as support for making risk assessments, validation of prod- ucts that may be suitable for acquisition, and mitigation activities; and (B) 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. (5) Identifying and issuing guidance on addi- tional steps that may be necessary to address supply chain risks arising in the course of ex- ecutive agencies providing shared services, common contract solutions, acquisitions vehi- cles, or assisted acquisitions. (6) Engaging with the private sector and other nongovernmental stakeholders in per- forming the functions described in paragraphs (1) and (2) and on issues relating to the man- agement of supply chain risks posed by the ac- quisition of covered articles. (7) Carrying out such other actions, as deter- mined by the Council, that are necessary to reduce the supply chain risks posed by acquisi- tions and use of covered articles. (b) PROGRAM OFFICE AND COMMITTEES.—The Council may establish a program office and any committees, working groups, or other con- stituent bodies the Council deems appropriate, in its sole and unreviewable discretion, to carry out its functions. (c) AUTHORITY FOR EXCLUSION OR REMOVAL OR- DERS.— (1) CRITERIA.—To reduce supply chain risk, the Council shall establish criteria and proce- dures for— (A) recommending orders applicable to ex- ecutive agencies requiring the exclusion of sources or covered articles from executive Page 29 TITLE 41—PUBLIC CONTRACTS § 1323 agency procurement actions (in this section referred to as ‘‘exclusion orders’’); (B) recommending orders applicable to ex- ecutive agencies requiring the removal of covered articles from executive agency in- formation systems (in this section referred to as ‘‘removal orders’’); (C) requesting and approving exceptions to an issued exclusion or removal order when warranted by circumstances, including al- ternative mitigation actions or other find- ings relating to the national interest, in- cluding national security reviews, national security investigations, or national security agreements; and (D) 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 Tech- nology regarding any recommended orders that would implement standards and guide- lines 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 sub- section (a)(3), and any other information the Council determines appropriate to issue rec- ommendations, for application to executive agencies or any subset thereof, regarding the exclusion of sources or covered articles from any executive agency procurement action, in- cluding source selection and consent for a con- tractor to subcontract, or the removal of cov- ered articles from executive agency informa- tion systems. Such recommendations shall in- clude— (A) information necessary to positively identify the sources or covered articles rec- ommended for exclusion or removal; (B) information regarding the scope and applicability of the recommended exclusion or removal order; (C) a summary of any risk assessment re- viewed or conducted in support of the rec- ommended exclusion or removal order; (D) a summary of the basis for the rec- ommendation, including a discussion of less intrusive measures that were considered and why such measures were not reasonably available to reduce supply chain risk; (E) a description of the actions necessary to implement the recommended exclusion or removal order; and (F) where practicable, in the Council’s sole and unreviewable discretion, a description of mitigation steps that could be taken by the source that may result in the Council re- scinding a recommendation. (3) NOTICE OF RECOMMENDATION AND RE- VIEW.—A notice of the Council’s recommenda- tion under paragraph (2) shall be issued to any source named in the recommendation advis- ing— (A) that a recommendation has been made; (B) of the criteria the Council relied upon under paragraph (1) and, to the extent con- sistent with national security and law en- forcement interests, of information that forms the basis for the recommendation; (C) that, within 30 days after receipt of no- tice, the source may submit information and argument in opposition to the recommenda- tion; (D) of the procedures governing the review and possible issuance of an exclusion or re- moval order pursuant to paragraph (5); and (E) where practicable, in the Council’s sole and unreviewable discretion, a description of mitigation steps that could be taken by the source that may result in the Council re- scinding the recommendation. (4) CONFIDENTIALITY.—Any notice issued to a source under paragraph (3) shall be kept con- fidential until— (A) an exclusion or removal order is issued pursuant to paragraph (5); and (B) the source has been notified pursuant to paragraph (6). (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 rec- ommendation, shall be reviewed by the fol- lowing officials, who may issue exclusion and removal orders based upon such rec- ommendations: (i) The Secretary of Homeland Security, for exclusion and removal orders applica- ble to civilian agencies, to the extent not covered by clause (ii) or (iii). (ii) The Secretary of Defense, for exclu- sion and removal orders applicable to the Department of Defense and national secu- rity systems other than sensitive compart- mented information systems. (iii) The Director of National Intel- ligence, for exclusion and removal orders applicable to the intelligence community and sensitive compartmented information systems, to the extent not covered by clause (ii). (B) DELEGATION.—The officials identified in subparagraph (A) may not delegate any authority under this subparagraph to an of- ficial below the level one level below the Deputy Secretary or Principal Deputy Direc- tor, 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 govern- mentwide exclusion, the Administrator for General Services and officials at other exec- utive agencies responsible for management of the Federal Supply Schedules, govern- mentwide acquisition contracts and multi- agency contracts shall help facilitate imple- mentation of such orders by removing the covered articles or sources identified in the orders from such contracts. (D) REVIEW OF EXCLUSION AND REMOVAL OR- DERS.—The officials identified under this Page 30 TITLE 41—PUBLIC CONTRACTS § 1324 paragraph shall review all exclusion and re- moval orders issued under subparagraph (A) not less frequently than annually pursuant to procedures established by the Council. (E) RESCISSION.—Orders issued pursuant to subparagraph (A) may be rescinded by an au- thorized official from the relevant issuing agency. (6) NOTIFICATIONS.—Upon issuance of an ex- clusion or removal order pursuant to para- graph (5)(A), the official identified under that paragraph who issued the order shall— (A) notify any source named in the order of— (i) the exclusion or removal order; and (ii) to the extent consistent with na- tional security and law enforcement inter- ests, information that forms the basis for the order; (B) provide classified or unclassified notice of the exclusion or removal order to the ap- propriate congressional committees and leadership; and (C) provide the exclusion or removal order to the agency identified in subsection (a)(3). (7) COMPLIANCE.—Executive agencies shall comply with exclusion and removal orders issued pursuant to paragraph (5). (d) AUTHORITY TO REQUEST INFORMATION.—The Council may request such information from ex- ecutive agencies as is necessary for the Council to carry out its functions. (e) RELATIONSHIP TO OTHER COUNCILS.—The Council shall consult and coordinate, as appro- priate, with other relevant councils and inter- agency committees, including the Chief Infor- mation Officers Council, the Chief Acquisition Officers Council, the Federal Acquisition Regu- latory 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— (1) 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 (2) to authorize the issuance of an exclusion or removal order based solely on the fact of foreign ownership of a potential procurement source that is otherwise qualified to enter into procurement contracts with the Federal Gov- ernment. (Added Pub. L. 115–390, title II, § 202(a), Dec. 21, 2018, 132 Stat. 5180.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 90 days after Dec. 21, 2018, and appli- cable 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. Title II of Pub. L. 115–390 effective 90 days after Dec. 21, 2018, see section 205 of Pub. L. 115–390, set out as a note under section 1321 of this title. § 1324. Strategic plan (a) IN GENERAL.—Not later than 180 days after the date of the enactment of the Federal Acqui- sition Supply Chain Security Act of 2018, the Council shall develop a strategic plan for ad- dressing supply chain risks posed by the acquisi- tion of covered articles and for managing such risks that includes— (1) the criteria and processes required under section 1323(a) of this title, including a thresh- old and requirements for sharing relevant in- formation about such risks with all executive agencies and, as appropriate, with other Fed- eral entities and non-Federal entities; (2) an identification of existing authorities for addressing such risks; (3) an identification and promulgation of best practices and procedures and available re- sources for executive agencies to assess and mitigate such risks; (4) recommendations for any legislative, reg- ulatory, or other policy changes to improve ef- forts to address such risks; (5) recommendations for any legislative, reg- ulatory, or other policy changes to incentivize the adoption of best practices for supply chain risk management by the private sector; (6) an evaluation of the effect of imple- menting new policies or procedures on existing contracts and the procurement process; (7) a plan for engaging with executive agen- cies, the private sector, and other nongovern- mental stakeholders to address such risks; (8) a plan for identification, assessment, mitigation, and vetting of supply chain risks from existing and prospective information and communications technology made available by executive agencies to other executive agen- cies through common contract solutions, shared services, acquisition vehicles, or other assisted acquisition services; and (9) plans to strengthen the capacity of all ex- ecutive agencies to conduct assessments of— (A) the supply chain risk posed by the ac- quisition of covered articles; and (B) compliance with the requirements of this subchapter. (b) SUBMISSION TO CONGRESS.—Not later than 7 calendar days after completion of the strategic plan required by subsection (a), the Chairperson of the Council shall submit the plan to the ap- propriate congressional committees and leader- ship. (Added Pub. L. 115–390, title II, § 202(a), Dec. 21, 2018, 132 Stat. 5184.) Editorial Notes REFERENCES IN TEXT The date of the enactment of the Federal Acquisition Supply Chain Security Act of 2018, referred to in sub- sec. (a), is the date of enactment of Pub. L. 115–390, which was approved Dec. 21, 2018. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 90 days after Dec. 21, 2018, and appli- cable 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. Title II of Pub. L. 115–390 effective 90 days after Dec. 21, 2018, see section 205 of Pub. L. 115–390, set out as a note under section 1321 of this title.