Overview
This section prescribes the narrow authorities and rigorous procedural requirements under which the head of an executive agency or the Director of National Intelligence (DNI) may grant temporary, one-time waivers to the prohibitions against using or procuring covered telecommunications and video surveillance equipment or services.
Key Rules
- One-Time Authority: Agency heads can grant a waiver on a one-time basis to a specific government entity, provided there is a compelling justification and a formal phase-out plan to eliminate covered equipment.
- Expiration Limits: The waiver authority was strictly time-limited, originally set not to extend beyond August 13, 2021, for procurement prohibitions and August 13, 2022, for the prohibition on contracting with entities that use covered equipment.
- Strict Documentation: Requests must include a "full and complete laydown" (a detailed inventory/description) of the presence of covered equipment in the supply chain and a concrete plan for its removal.
- Interagency Coordination: For "use" prohibition waivers, agencies must designate a senior supply chain risk official, participate in Federal Acquisition Security Council (FASC) information sharing, and consult with the ODNI 15 days prior to granting the waiver.
- Congressional Reporting: Agencies must submit the full laydown and phase-out plan to appropriate congressional committees within 30 days of approving any waiver.
- DNI Override: The Director of National Intelligence maintains independent authority to grant waivers if determined to be in the national security interests of the United States.
Practical Implications
- High Bar for Approval: Because waivers require agency-head level approval and Congressional notification, they are treated as extraordinary measures rather than routine administrative actions.
- Contractor Burden: To support an agency’s waiver request, contractors must be prepared to provide exhaustive supply chain transparency and commit to specific timelines for replacing prohibited technology.
- Emergency Provisions: The regulation allows for a "buy now, notify later" approach only in dire emergencies where mission-critical functions are jeopardized, though the reporting requirements remain mandatory post-award.