§ 791.105 Initial Determination.

(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

e 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 unidentified, or notice to such U.S. parties or users is not feasible or appropriate (for example, when individual consumers purchase the ICTS through an online service or at a retail location).

(c) Notwithstanding the fact that the Initial Determination to prohibit or propose mitigation measures on an ICTS Transaction may, in whole or in part, rely upon classified national security information, or sensitive but unclassified information, the Initial Determination will contain no classified national security information, nor reference thereto, and, at the Secretary's discretion, may not contain controlled unclassified information.

(d) Notwithstanding paragraph (b)(3) of this section, the Secretary may, at the Secretary's discretion, determine to publish any notice of an Initial Determination in the

Federal Register

.

[89 FR 96895, Dec. 6, 2024]