[Federal Register Volume 81, Number 178 (Wednesday, September 14, 2016)]
[Rules and Regulations]
[Pages 63323-63347]
National Archives and Records Administration
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Information Security Oversight Office
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32 CFR Part 2002
Controlled Unclassified Information; Final Rule
Federal Register / Vol. 81 , No. 178 / Wednesday, September 14, 2016
/ Rules and Regulations
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NATIONAL ARCHIVES AND RECORDS ADMINISTRATION
Information Security Oversight Office
32 CFR Part 2002
[FDMS No. NARA-15-0001; NARA-2016-048]
RIN 3095-AB80
Controlled Unclassified Information
AGENCY: Information Security Oversight Office, NARA.
ACTION: Final rule.
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SUMMARY: As the Federal Government's Executive Agent (EA) for
Controlled Unclassified Information (CUI), the National Archives and
Records Administration (NARA), through its Information Security
Oversight Office (ISOO), oversees the Federal Government-wide CUI
Program. As part of that responsibility, ISOO is issuing this rule to
establish policy for agencies on designating, safeguarding,
disseminating, marking, decontrolling, and disposing of CUI, self-
inspection and oversight requirements, and other facets of the Program.
The rule affects Federal executive branch agencies that handle CUI and
all organizations (sources) that handle, possess, use, share, or
receive CUI--or which operate, use, or have access to Federal
information and information systems on behalf of an agency.
DATES: This rule is effective November 14, 2016. The Director of the
Federal Register approves the incorporation by reference of certain
publications listed in the rule as of November 14, 2016.
FOR FURTHER INFORMATION CONTACT: Kimberly Keravuori, by email at
[email protected], or by telephone at 301-837-3151. You may
also find more information about the CUI Program, and some FAQs, on
NARA's Web site at http://www.archives.gov/cui/.
SUPPLEMENTARY INFORMATION:
Background
In November 2010, the President issued Executive Order 13556,
Controlled Unclassified Information, 75 FR 68675 (November 4, 2010)
(the Order) to ``establish an open and uniform program for managing
[unclassified] information that requires safeguarding or dissemination
controls.'' Prior to that time, more than 100 different markings for
such information existed across the executive branch. This ad hoc,
agency-specific approach created inefficiency and confusion, led to a
patchwork system that failed to adequately safeguard information
requiring protection, and unnecessarily restricted information-sharing.
As a result, the Order established the Controlled Unclassified
Information (CUI) Program to standardize the way the executive branch
handles information that requires safeguarding or dissemination
controls (excluding information that is classified under Executive
Order 13526, Classified National Security Information, 75 FR 707
(December 29, 2009), or any predecessor or successor order; or the
Atomic Energy Act of 1954 (42 U.S.C. 2011, et seq), as amended). To
develop policy and provide oversight for the CUI Program, the Order
also appointed NARA as the CUI EA. NARA has delegated this authority to
the Director of ISOO, a NARA component.
Regulatory Analysis
Review Under Executive Orders 12866 and 13563
Executive Order 12866, Regulatory Planning and Review, 58 FR 51735
(September 30, 1993), and Executive Order 13563, Improving Regulation
and Regulation Review, 76 FR 23821 (January 18, 2011), direct agencies
to assess all costs and benefits of available regulatory alternatives
and, if regulation is necessary, to select regulatory approaches that
maximize net benefits (including potential economic, environmental,
public health and safety effects, distributive impacts, and equity).
This final rule is ``significant'' under section 3(f) of Executive
Order 12866 because it sets out a new program for Federal agencies. The
Office of Management and Budget (OMB) has reviewed this regulation.
Review Under the Regulatory Flexibility Act (5 U.S.C. 601, et seq.)
Although this rule is not subject to the Regulatory Flexibility
Act, see 5 U.S.C. 553(a)(2), 601(2), NARA has considered whether this
rule, if promulgated, would have a significant economic impact on a
substantial number of small entities (5 U.S.C. 603). NARA certifies,
after review and analysis, that this rule will not have a significant
adverse economic impact on a substantial number of small entities.
Review Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.)
This final rule does not contain any information collection
requirements subject to the Paperwork Reduction Act.
Review Under Executive Order 13132, Federalism, 64 FR 43255 (August 4,
1999)
Review under Executive Order 13132 requires that agencies review
regulations for Federalism effects on the institutional interest of
states and local governments, and, if the effects are sufficiently
substantial, prepare a Federal assessment to assist senior policy
makers. This rule will not have any direct effects on state and local
governments within the meaning of the Executive Order. Therefore, the
regulation requires no Federalism assessment.
Public Comments
General
NARA published a proposed version of this rule in the Federal
Register on May 5, 2015 (80 FR 26501), with a 60-day public comment
period ending on July 7, 2015. We received 29 written responses,
totaling 245 individual comments, and numerous phone calls, email
questions, and requests for information or clarification. Comments came
from individuals, contractors, businesses, non-government
organizations, academic and research organizations, state
organizations, Federal agencies, and Representative Bennie G. Thompson,
ranking member of the House Committee on Homeland Security. Most
commenters, including Congressman Thompson, were in support of the CUI
Program and the goals and structure of the regulation. Most also
offered suggestions to clarify or revise provisions or had questions or
confusion regarding particular provisions. Of particular concern to a
number of commenters was the distinction between contractors and other
non-executive branch entities, and the distinction between what is set
out in the regulation and what will instead be contained in written
agreements with agencies. We have made a number of changes to the
regulation to address these and other similar topics.
Several commenters recommended we establish more stringent controls
on CUI, and some commenters recommended we impose less stringent
controls. We have declined to make either change. The CUI Program must
balance two goals that may sometimes compete with each other--ensuring
standardized controls to the extent necessary to protect information,
and ensuring standardized controls to enable authorized sharing of
information. We must also balance between some agencies' needs for free
exchange of information with multiple partners in a wide variety of
circumstances and other
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agencies' needs for limitations on access to protected information, and
balance the desired end result against the potential burden of re-
marking documents, training staff, and similar activities. Therefore,
the controls established for CUI are between the two ends recommended
in many comments. However, we have revised several sections of the rule
in response to both public and agency comments to more clearly explain
how the different levels of CUI interact, the basis for CUI controls,
what levels of control agencies may impose within the agency and
outside the agency, the rules governing written agreements and
information sharing, CUI marking and how to treat legacy information,
destruction options, controls on dissemination, and other similar
subject areas also expressed by the commenters.
CUI Security Standards and Application Outside the Federal Government
We received a few comments, primarily from academic and research
entities, asserting that the safeguarding requirements required by the
proposed regulation, and the guidance in the new National Institute of
Standards and Technology (NIST) Special Publication (SP) 800-171,
Protecting Controlled Unclassified Information in Non-Federal
Information Systems and Organizations, would be too extreme and
burdensome, and would cost these entities potentially a great deal of
money to implement. These commenters were unable to determine a more
specific estimated cost without prolonged study and assessment.
However, their concerns arose primarily from the nature of their
current systems--which apparently do not comply with statutory and
other information security controls that already applied to Federal
information before this rule was drafted, and continue to apply.
Apparently, the systems are also heavily decentralized, unmonitored,
and open, to enable people to work with the information across a wide
range of locations and to share information and resources freely. These
commenters suggested providing additional public response time to
assess the burden of implementing this regulation and NIST SP 800-171
because one standard comment period was insufficient time for them to
consider all the impacts of implementing the NIST standards. They also
suggested lower controls or exceptions to controlling the information
when in the hands of such entities, and other reductions in the
security requirements for CUI while in their hands. We have declined
both suggestions for the reasons described below.
The Federal Government receives a great deal of information from
individuals, businesses, and other entities that it is required to
protect. This is not an optional set of requirements and the burden on
the Federal Government of meeting these requirements is huge. It costs
the Government billions of dollars to keep its information, systems,
and facilities secure. But the American people expect their Government
to appropriately safeguard sensitive information, and with good reason.
When the Government provides controlled information to a non-executive
branch entity, sometimes pursuant to a contract or other agreement, it
does not make sense for the protection requirements to disappear or
lessen just because the Government has shared the information. In fact,
the protection requirements do not disappear or lessen. The Federal
Government remains obligated to ensure that the information remains
protected. It would be nonsensical to require the Government to protect
and control information but to simultaneously allow others to leave the
same information unprotected. The dispositive issues are not who
protects the information, whether it is difficult or costly to protect
it, or even how one goes about protecting it; the dispositive issue is
that certain laws or similar authority require the Government, and by
extension, those who handle or receive it, to protect this information.
Agencies must be able to provide protected information to law
enforcement organizations to facilitate criminal investigations,
provide people who served in the military (or their authorized
relative) with copies of their military records so they can seek
benefits, provide technological specifications or demographic and other
personal information to contractors and researchers developing
technology or conducting studies, share information on infectious
diseases and epidemics with other health organizations locally or
around the world to engage in joint efforts to contain them, and more.
These information-sharing needs must still occur within the parameters
permitted by the laws, regulations, or Government-wide policies that
govern access to the information, and must be balanced by protection
requirements. Sharing that information with non-executive branch
entities is easier and can occur more extensively if those entities are
complying with the same levels of protection controls. As a result of
these reasons, and others set out in comment responses below, we
decline to reduce or eliminate this rule's protection controls for
information agencies share with non-executive branch entities.
Most of these comments on burden and time did not cite burdens
arising from the rule itself. Instead, they cited the burden of
implementing the recently published NIST SP 800-171.
The NIST SP 800-171, incorporated by reference in this final rule,
establishes guidance for protecting CUI in non-Federal systems: (1)
When the CUI is resident in non-Federal information systems and
organizations; (2) when the information systems where the CUI resides
are not used or operated by contractors of Federal agencies or other
organizations on behalf of those agencies; and (3) when the authorizing
law, Federal regulation, or Government-wide policy listed in the CUI
Registry for the CUI category or subcategory does not prescribe
specific safeguarding requirements for protecting the CUI's
confidentiality.
Federal Information Systems Modernization Act (FISMA), 44 U.S.C. 3541,
et seq, Information Security Requirements, NIST and FIPS Standards,
This Regulation, and Moderate Confidentiality Impact Value
With regard to the information security standards incorporated by
reference in the rule, the framework established by FISMA requires most
Federal agencies to apply the standards in Federal Information
Processing Standards (FIPS) Publication 199, Standards for Security
Categorization of Federal Information and Information Systems, and FIPS
Publication 200, Minimum Security Requirements for Federal Information
and Information Systems. FIPS Publication 200 requires most agencies to
use NIST SP 800-53, Security and Privacy Controls for Federal
Information Systems and Organizations, as the means by which agencies
assess security risks to Federal information systems and select
appropriate security controls and assurance requirements for them. Non-
executive branch entities that manage information systems on behalf of
covered agencies are subject to these rules and requirements as though
they are part of the agency.
FIPS Publication 199, FIPS Publication 200, NIST SP 800-53, NIST SP
800-88, and NIST SP 800-171 are incorporated by reference into this
final rule. They are free and available for download from the NIST Web
site at http://www.nist.gov/publication-portal.cfm. FIPS Publication
199 requires covered Federal agencies to categorize their information
systems in each of the security objectives of
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confidentiality, integrity, and availability, including rating each
system as low, moderate, or high impact in each category. This CUI rule
does not mandate the use of FIPS Publication 199; FISMA establishes the
requirement to use FIPS Publication 199. Nor does it incorporate the
extensive standards set out in FIPS Publication 199 for how agencies go
about categorizing and rating their systems, which are beyond the scope
of this rule. Instead, within that already-established framework
governing Federal information systems, this regulation requires
agencies to secure CUI (that is on information systems) by storing and
using it only on information systems the agency categorizes at no less
than the moderate confidentiality impact level (unless the authorizing
law, regulation, or Government-wide policy listed in the CUI Registry
for that CUI category or subcategory prescribes specific safeguarding
requirements for protecting the confidentiality of that CUI).
NIST SP 800-53, Security and Privacy Controls for Federal
Information Systems and Organizations, and NIST SP 800-88, Guidelines
for Media Sanitization, are also incorporated by reference because they
set out methods by which agencies may sanitize equipment like
photocopiers or destroy CUI to the appropriate degree.
When agencies design and manage Federal information systems, they
apply the FISMA. This rule informs them that, if their systems include
CUI, they must incorporate the requirement to safeguard CUI at no less
than the moderate confidentiality impact value into their design and
management actions (unless the authorizing law, regulation, or
Government-wide policy listed in the CUI Registry for that CUI category
or subcategory prescribes specific safeguarding requirements for
protecting the confidentiality of that CUI).
Comments
Sec. 2002.1 Purpose and Scope
We received numerous comments on Sec. 2002.1. Some asked us to
clarify certain provisions, like whether the regulation applies to
contractors; whether there is a difference between contractors and non-
executive branch entities; when agencies must enter into contracts or
other written agreements; what the difference is between contracts and
written agreements, if any; whether the provisions apply to other forms
of agreements, such as grants, licenses, certificates, cooperative
agreements, etc.; and what recourse contractors have when handling CUI
for an agency, to include sharing that information with other non-
executive branch entities.
We determined from the number and scope of the comments that we
needed to thoroughly revise this section to make it clearer. This
section merely spells out that the regulation's scope of impact will
include non-executive branch entities by means of the requirement on
agencies to include contract or agreement provisions regarding CUI,
when relevant. Accordingly, we have revised the language to not only
state that the rule applies to only agencies directly, but to also show
that by the organization of the section. We have revised the structure
of Sec. 2002.1(e) [and Sec. 2002.16(a)(5)] to more clearly reflect
this, and to clarify what agencies should do when they cannot enter
into a written agreement containing a CUI handling provision of this
kind.
The rule now says that it applies only to executive branch
agencies, but that, in written agreements (including contracts, grants,
licenses, certificates, and other agreements) that involve CUI,
agencies must include provisions that require the non-executive branch
entity to handle the CUI in accordance with this rule, the Order, and
the CUI Registry. These written agreement provisions will also help
ensure that non-executive branch entities are aware of requirements
associated with handling CUI, as appropriate.
Information that non-executive branch entities generate themselves
and that they do not create, collect, or possess for the Federal
Government by definition does not constitute Federal CUI, nor would it
fall within the provisions of a contract or information-sharing
agreement covering CUI. We have slightly revised the definition of CUI
under Sec. 2002.4 to make this clearer. We agree that contracts or
solicitations for projects in which CUI will not be involved should not
include requirements for handling CUI. This will be handled through the
FAR case and other contracting practices, rather than through this
regulation. If a contractor feels CUI requirements are included
erroneously, they may object through normal contracting channels. Such
subjects are outside the scope of this regulation.
In response to comments regarding CNSS policies, we do not list
particular applicable laws, regulations, or Government-wide policies in
the regulation because listing some would create confusion regarding
any not listed, and the list would be too long and would have to be
updated whenever one was added, revised, or rescinded, which is not
practical. However, the CUI Registry lists the categories and
subcategories of CUI that laws, regulations, and Government-wide
policies create or govern. When we determine whether to include a
particular Government-wide policy in the CUI Registry, the primary
consideration is whether that policy contains requirements for control
of unclassified information. CNSS policies do not; they pertain only to
classified national security information. There is no such thing as
unclassified national security information, although national security
systems may also contain information designated as CUI. As a result,
the provision of the CUI rule regarding conflict does not apply to CNSS
policies, even though they are arguably Government-wide policies. CUI
policies neither require an agency to stop using the CNSS policy in
deference to the CUI regulation, nor permit agencies to apply CNSS
requirements to CUI outside the agency or in decisions to share the
CUI.
In contrast to Government-wide policies, agency-specific policies
are ones that a particular agency has promulgated for its own use and
the use of those who deal with that agency (including its contractors),
and that are not codified in the U.S. Code, Code of Federal
Regulations, or as a Government-wide policy. However, the rule does not
prohibit agencies from promulgating agency-specific policies. Agencies
are still able to set out agency policies and practices within their
own documents and programs, and are, in fact, expected to promulgate
CUI Program implementing policies within their agency to carry out the
regulation's requirements. This provision makes it clear, however, that
those agency-specific policies can not conflict with the regulation,
the Order, or the CUI Registry.
We also responded to comments about Sec. Sec. 2002.1(i),
2002.13(d) (now 2002.16), and 2002.28 (now 2002.46), with regard to
restrictions on disclosure set forth in this rule that readers could
override policies that implement discovery obligations in litigation,
whistleblower protections, and other lawful disclosures. The comment
further expressed concern about the lack of whistleblower protection in
the rule. In response to these concerns, we have revised Sec. 2002.27
(now Sec. 2002.44) to state that the fact that an agency designates
certain information as CUI does not affect an agency's or employee's
determinations pursuant to any law that requires the agency or the
employee to disclose that information or permits them to do so as a
matter of discretion. We also included a Whistleblower Protection Act
provision
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in that same section, and we revised Sec. 2002.22 (challenges to CUI
designation; now Sec. 2002.50) (b)(5) to allow people the option of
bringing challenges to CUI designation anonymously, and to prohibit
retribution for bringing such challenges.
Sec. 2002.2 Definitions (Now Sec. 2002.4)
We received comments on several definitions within this section.
One comment asked if there are restrictions on who may be an
``authorized holder,'' and pointed to provisions where it was not clear
if an authorized holder should be the actor. We clarified throughout
the regulation whether authorized holders or agencies are the actors.
However, the rule does not specify who may be an authorized holder and
we decline to add specific criteria. There are no simple, universal
rules for authorized holders such as those the comment suggests (U.S.
citizens, those with clearances, etc.), and the factors applicable are
too multiple and cumbersome to include in a regulation. For some types
of CUI, certain laws, regulations, or Government-wide policies
establish who may be an authorized holder. Authorized holders may
include people outside an agency who have a lawful Government purpose
to have, transport, store, use, or process CUI, but also include people
within an agency who must handle, process, store, or maintain CUI in
the course of their jobs. Agencies differ widely in structure and size,
so do not always have the same sets of staff positions or offices;
designating particular people within agencies as authorized holders
would thus not be practical. Lawful purposes to have CUI outside an
agency also vary greatly with the differing missions of agencies and
would be equally impractical to list. Agencies must therefore have the
discretion to determine who is an authorized holder within the context
of that agency's structure, missions, and governing authorities, and in
compliance with the CUI EA's policies on handling CUI, including the
requirements in this rule.
We received a number of comments on the definitions of ``CUI,''
``CUI Basic,'' and ``CUI Specified.'' While the comments raised
concerns with a variety of aspects of the definitions, they all
involved confusion about the relationship of the two groupings of CUI--
Basic and Specified. As a result, we have revised all three definitions
to more directly explain what each kind is and how they relate to each
other. We have developed a clear set of requirements for CUI Basic that
is the least burdensome and superfluous possible to uniformly cover all
CUI that doesn't have a law, regulation, or Government-wide policy
requiring different controls. The controls for CUI Specified categories
are not something we can change because they are set by the governing
law, regulation, or Government-wide policy, but by ensuring that every
agency applies them consistently, we reduce burdens on agencies and
external partners alike. The requirements for CUI Basic do not rise to
the level of requirements for classified information, and if a given
type of CUI Specified has classified-level controls, those are imposed
by the information's governing authority, not by the CUI Program.
Some comments expressed concern about certain categories of
information that are subject to laws and Federal regulations that set
out specific and detailed protection requirements for that information,
and were worried that designating them as CUI would undermine those
specific requirements and subject agencies and entities to legal
penalties for not meeting them.
We understand the concerns raised in these comments and agree that
the penalties and consequences for failing to adequately protect CUI of
some types may differ significantly from failure to protect CUI of
other types. That being said, we cannot adjust the definition of CUI to
exclude export controlled or other protected information; the Executive
Order's definition of CUI is clear and includes all unclassified
information that laws, regulations, and Government-wide policies
require to have safeguarding or dissemination controls. However, this
very concern is the reason why the CUI Program includes both CUI Basic
and CUI Specified groups. When we reviewed all the types of protected
unclassified information that existed across the Government, and
reviewed all the authorities giving rise to each type, we were very
aware that some types of protected information had specific protection
requirements spelled out in laws--export-related information subject to
confidentiality requirements under the Export Administration Act of
1979, as amended (EAR), being one, the Confidential Information
Protection and Statistical Efficiency Act (CIPSEA) being another--and
they thus could not be handled in the same manner as the vast majority
of other CUI types.
CUI Basic covers the kinds of CUI that have a general requirement
for safeguarding or disseminating controls, and sets a uniform set of
handling requirements for all agencies to use on all types of CUI
Basic. All CUI that does not have specific protections set out in a
law, regulation, or Government-wide policy falls into CUI Basic
categories. All CUI Basic categories will be controlled by the same
standard--no less than `moderate' confidentiality, the lowest possible
control level above the `low' standard already applied to all
information systems without CUI. CUI Basic requirements are the
baseline default requirements for protecting CUI, and apply to the vast
majority to CUI.
However, some CUI categories and subcategories may have higher, or
different, requirements from the baseline ones if a law, regulation, or
Government-wide policy requires or permits other controls for
safeguarding or disseminating that information. CUI Specified, in
contrast to CUI Basic, recognizes the types of CUI that have required
or permitted controls included in their governing authorities, and each
CUI Specified category or subcategory applies those other controls as
required or permitted by the governing law, regulation, or policy.
A number of CUI Specified categories are governed by laws with
specific requirements and with higher penalties for failing to protect
the information. We cannot exclude all of them from the definition of
CUI, but we created the CUI Specified concept to reflect that these
types of CUI have special requirements and should be differentiated
from all other CUI.
The regulation already provides for the CUI EA to consult with
industry and other private sector partners on CUI matters, at Sec.
2002.8(a)(2), which says, ``Consults with affected agencies,
Government-wide policy bodies, State, local, tribal, and private sector
partners, and representatives of the public on matters pertaining to
CUI.'' However, we believe the comments are based in part on a
misunderstanding of the CUI Registry, which already lists the
categories and subcategories that constitute CUI. It is not an agency
determination whether certain types of information qualify as CUI; the
EA determines that a type of information qualifies as CUI when a law,
regulation, or Government-wide policy requires that information's
protection. That information is listed on the CUI Registry as a CUI
category or subcategory and then qualifies as CUI for all agencies.
Information, such as vendor proprietary information, that is not listed
on the Registry does not qualify as CUI.
The authorities that establish CUI categories and subcategories
were in existence before the CUI Program and this regulation, and this
regulation does not change those already-existing requirements or any
categories created subsequent to this rule's promulgation. Agencies and
their contractors should
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already be complying with the authorities governing CUI. This rule
gathers a majority of CUI under one set of consistent requirements (CUI
Basic), and standardizes how agencies comply throughout the executive
branch, both of which reduce the cost of complying with controlled
information requirements. This structure, the CUI Registry, NIST
standards, and oversight functions by the CUI EA are designed to
restrain over-broad application of controls on information. In
addition, the CUI EA is developing a Federal Acquisition Regulation
(FAR) case through the normal FAR process, for agencies to use in
contracts, which will further reduce chances of overreach. However, we
have revised language throughout the regulation to strengthen the
admonition against over-broad application and to better distinguish
between CUI Basic and CUI Specified and the types of controls applied
for each.
Additional comments recommended revisions to ``misuse of CUI,''
``non-executive branch entity,'' and ``unauthorized disclosure.'' We
have accepted these comments and revised the definitions to address the
concerns raised, with the exception of adding a separate definition for
``contractors and vendors'' because those entities are treated the same
way as other non-executive branch entities. We declined to accept the
suggestion that we remove the term ``uncontrolled'' from the definition
``uncontrolled unclassified information.'' We understand the concern
that the term seems to be the same as ``unclassified information'' so
the addition of ``uncontrolled'' isn't necessary and could cause
confusion. However, we added the `uncontrolled' in response to comments
from other agencies that `unclassified information' in the context of
CUI was confusing. Any information that is not classified information
qualifies as `unclassified' information. However, some unclassified
information qualifies as controlled information under CUI and some does
not. A piece of information might be classified and uncontrolled as
CUI, unclassified but controlled as CUI, or unclassified and
uncontrolled as CUI. This definition refers to only that last group, so
it is necessary to label it in a way that identifies that it is both
unclassified and uncontrolled.
Sec. 2002.4 Responsibilities (Now Sec. 2002.8)
A few commenters suggested revisions to the EA responsibilities
under Sec. 2002.4(a) (now Sec. 2002.8). These recommendations
included adding responsibilities such as advising appropriate Federal
officials who manage and monitor the application of the CUI Program in
Federal contracts, continuously engaging with NIST to ensure standards
applicable to contractors remain current and minimally burdensome, and
maintaining the CUI Registry so it is current. Commenters also
recommended adding a provision on the CUI Advisory Council under
Subpart C; formally including a representative of the Federal
contracting community as a member of the CUI Advisory Council, along
with representatives of other non-executive branch entities; and adding
a provision that, if the EA and an agency cannot reach agreement on
agency policies, the issue can be raised through OMB to the President,
if necessary.
We agree with the intent of the recommendations, and the CUI EA
already consults with the suggested organizations (Federal contracting
officials, NIST, etc.), but we decided to combine them into one
reference. Therefore, we have revised Sec. 2002.8(a)(2) to add
``Government-wide policy bodies'' to the list of organizations with
which the CUI EA consults on CUI matters. We also revised Sec.
2002.8(a)(8) to read, ``Maintains and updates the CUI Registry as
needed.''
We also accepted the recommendation to address situations in which
the EA and a party cannot resolve a dispute. This contingency is fully
covered in the Order and is not limited to any specific area of CUI.
Rather, it applies to any issue that arises with regard to implementing
the Order. Section 2002.52, Dispute resolution, already sets out the
resolution process when there are disputes and includes an agency's
option to appeal through the Director of OMB, to the President.
However, in light of this comment, we have revised 2002.52(g) to add a
provision about how to proceed if there is a conflict with the EA.
We revised the language of Sec. 2002.8(b)(2) to require agencies
to include the CUI senior agency official in agency contact listings.
The agency is tasked with designating both a CUI senior agency official
and a CUI Program manager. Between them, these two roles oversee the
agency's entire CUI planning and implementation program, including
necessary training. Agencies have already been able and encouraged to
designate these positions for more than a year, in part to enable them
to plan ahead for necessary training so that it will occur in a timely
manner.
Sec. 2002.10 CUI Registry, and 2002.11 (Now Sec. 2002.12) CUI
Categories and Subcategories
One commenter suggested that allowing the CUI Registry to be
publicly accessible could compromise security by allowing others to
know about handling procedures for protected information. Another felt
that the CUI Registry should not be listed as the central repository
for CUI information and guidance because they believe the Registry is
currently an incomplete skeleton with no useful information. And a
third comment raised a concern with Sec. 2002.12's provision that
agencies may not control any unclassified information outside the CUI
Program, which might mean law enforcement agencies could be prevented
from establishing basic dissemination controls on their law enforcement
investigative information.
The CUI Advisory Council extensively discussed and deliberated
about the potential security risk of a public CUI Registry, but decided
that the current approach with the CUI Registry does not present such a
risk. The CUI Registry does not set out the details of how agencies
implement the prescribed CUI handling requirements. It instead points
to the requirements (and permissible implementation options) that exist
in governing authorities or standards publications. Most, if not all,
of the information in the CUI Registry is already, or will be, publicly
available through laws, regulations, Government-wide policies, NIST
published standards, OMB memos, agency Web sites, Freedom of
Information Act (FOIA) and similar requests, public contracts and the
upcoming FAR case, agency policies implementing the CUI Program, and
other similar sources.
While it is true that currently the CUI Registry is incomplete in a
few areas, that will change once this CUI implementing regulation
becomes effective. The CUI Registry will be the central repository, as
described, and the place for agencies to find up-to-date information
related to carrying out CUI requirements and implementing the CUI
Program.
The provision in Sec. 2002.12 is correct as drafted. As provided
in the Order, and with limited exception, agencies may not control
unclassified information except consistently with the CUI Program. A
law enforcement agency may control dissemination of sensitive
investigative information if a law, regulation, or Government-wide
policy requires or permits controls on dissemination of that kind of
[[Page 63329]]
information. If such authority exists, the information qualifies as CUI
and the agency accordingly must (or may, if the authority permits
discretion) implement controls on dissemination only to the extent and
in the way required or permitted by the standards covering that kind of
information. If an agency has sensitive investigative information that
does not qualify as CUI--which means there is no law, regulation, or
Government-wide policy that requires or permits controls on that
information--then the agency cannot place controls on its
dissemination. This is a question of whether the agency's authority to
withhold the information is also reflected in laws, regulations, or
Government-wide policies, not a question of the agency's substantive
authorities or the CUI EA's authority. The EA's authority is to create
a program that encompasses all the types of information a law,
regulation, or Government-wide policy already requires or permits to be
controlled and to establish a standardized way in which those controls
are implemented across the executive branch. The CUI EA does not create
the authority to control certain kinds of information; law, regulation,
or Government-wide policy does.
Sec. 2002.12 Safeguarding (Now Sec. 2002.14)
Commenters requested clarification on whether CUI Basic is the
minimum for handling CUI and on the minimum requirements for physically
safeguarding CUI, including the definition of a controlled environment;
suggested adding the word ``timely'' to Sec. 2002.14(a)(1);
recommended revising systems ``authorized or accredited for classified
information are also sufficient for safeguarding CUI'' in Sec.
2002.14(a)(3); and asked if the terms ``CUI Basic'' and ``CUI
Specified'' are required in Sec. 2002.14(b) since the regulation
references NIST SPs 800-53 and 800-171.
We have revised the language in the Sec. 2002.4 definition of CUI,
CUI Basic, and CUI Specified to clarify the distinction between CUI
Basic and CUI Specified, when the requirements of each apply, and
whether agencies may apply more restrictive controls. We have also
revised the language of Sec. 2002.14(a)(1) to add in the word `timely'
as recommended.
We have also revised the language in 2002.4's definition of
``controlled environment'' as recommended. However, we decline to spell
out specific detailed physical requirements beyond those already
included in the regulation. Instead, we have set out in the CUI
Registry the requirements for CUI Basic, while applicable laws,
regulations, or Government-wide policies set out the requirements for
CUI Specified.
Agencies have the discretion to choose different ways to meet the
single physical barrier requirement to physically safeguard a given
category or subcategory of CUI. The standard requires only that it be
protected in a manner that minimizes the risk of unauthorized
disclosure. In addition, another comment expressed concern about
meeting the requirements for a controlled environment because many
contractors have moved to open workstation environments and hoteling
systems, where employees working on contracts for multiple agencies
whose information must be protected are in the same space. This concern
is likely due to a misunderstanding of what constitutes a controlled
environment. To meet the requirement for a controlled environment, any
separation from unauthorized people will suffice. In a cubicle
situation with employees working on different contracts, each
employee's cubicle would constitute a controlled environment for
purposes of preventing visual access to the CUI as long as the CUI is
under that employee's control. Such cases do not require additional
construction for the visual aspect; the cubicle walls are sufficient.
If an unauthorized person enters the cubicle, the authorized holder can
close the CUI file or trigger a screen saver to block access to the
CUI. If the authorized holder leaves their cubicle within an office
environment where unauthorized people may also be working, they can
appropriately secure the CUI within their cubicle, for example by
placing it in a locked drawer or locking their computer screen so the
information is not visible. However, discussions about CUI must also
not be overheard by unauthorized people. Again, this does not require
construction in open work environments or hoteling systems. For
example, in hoteling environments separate rooms are still made
available to employees for when ``sensitive discussions'' need to take
place (performance appraisals, procurement or contracting discussions,
medical-related discussions, etc). However, in other cases it might be
appropriate for agencies to segregate some employee operation units
from others and construction (more than a cubicle wall) could be
necessary. The threshold is not burdensome, and permits agencies a
variety of options by which to achieve it. The standard does not
necessitate construction, although in some cases construction might be
the way an agency achieves the controlled environment.
With regard to the question whether we need the CUI Basic and
Specified concepts in the regulation if NIST SP 800-53 or 800-171
apply, we believe we do need those terms. The regulation explains the
CUI Program and the structure that includes CUI Basic, CUI Specified,
the CUI Registry, and categories and subcategories. These are terms
that are part of the new CUI Program. The NIST publications set out
standards and details for agencies to use when they are implementing
certain information security controls, regardless of what type of
information is involved. The CUI Program distinguishes between CUI
Basic and CUI Specified, and informs agencies of what level of
protection those kinds of information need. Agencies may then meet that
requirement by implementing standards spelled out in the NIST
publications.
We received five comments on Sec. 2002.14(c) and (d). We have
adopted the suggestion to include an overarching statement that an
authorized holder must take reasonable precautions, and to include
Sec. 2002.14(c)(1)-(4) as examples of reasonable precautions, albeit
required ones. In Sec. 2002.14(c) and (d), we decline to change
optional language into requirements. Some of these items are options
agencies may use, and are not required. Not all agencies have the same
resources or systems, so this section informs agencies of what they may
do where there are options, what they must do when there are
requirements, and encourages them to do some things that are not
required (such as automated tracking systems), that may not be
available in all cases but that aid in better securing the CUI.
In response to the question about intelligence information, this
provision in the regulation relates to section 6(d) of the Order.
Section 6(d) authorizes the Director of National Intelligence to issue
policy directives and guidance necessary to implement the CUI Program
for the intelligence community; it does not connect with CUI categories
and subcategories. The Director of National Intelligence is, in this
regard, functioning for the intelligence community in a role akin to an
overarching agency head who may approve agency policies to implement
the CUI Program within that ``agency.''
We received several comments on Sec. 2002.14(e) and (f), about
destroying and sanitizing CUI or equipment that contained CUI.
Primarily, the suggestions were to make destroying
[[Page 63330]]
and sanitizing methods and requirements optional, required only when
practicable, or to allow alternative methods, although one comment
requested that the regulation include a specific list of acceptable
destruction methods. We decline these suggestions. However, due to the
confusion that the comments indicated, we have revised the language on
destroying CUI to more clearly articulate the required standard and the
different sets of methods from which agencies may choose. The
requirement is that agencies must destroy the CUI in a manner that
renders it indecipherable, unreadable, and unrecoverable. Agencies must
also follow any requirements for destroying CUI that are set out by
laws, regulations, or Government-wide policies applicable to a given
type of CUI. These are not optional or up to an agency's discretion.
However, agencies may, if no applicable authority sets out specific
requirements for destroying the type of CUI involved, choose to destroy
the CUI by methods contained in any of the standards cited in this
subsection--those in NIST SP 800-88, those in NIST SP 800-53, or
classified destruction methods. These documents are updated to be in
accord with the most technologically acceptable means to render a broad
range of media indecipherable, unreadable, and unrecoverable, based on
its confidentiality level. These cited standards documents are
sufficiently flexible to allow agencies a variety of methods for
destroying CUI, while ensuring that agencies meet the underlying
requirement to render the information indecipherable, unreadable, and
unrecoverable.
A couple of commenters said that the rule seems to require the
costly equipment needed to destroy classified information--such as
equipment with memory wiping functions and designated shredders--or
that agencies must destroy CUI using classified methods, particularly
with regard to paper. However, this appears to be based on a
misunderstanding of the provision. The required standard is to render
the CUI indecipherable, unreadable, and unrecoverable. That standard
does not require classified-level specialized equipment or methods
required for destroying classified information, although agencies may
use classified information methods if they choose. Due to issues in the
past with information remaining on equipment such as copiers (which are
usually leased and thus must be returned to vendors), most, if not all,
agency contracts for copiers and other similar equipment that can save
information on internal drives or other mechanisms must now include
provisions for destroying those mechanisms or otherwise purging/
sanitizing them of the information so the information is
indecipherable, unreadable, and unrecoverable. That practice has become
the norm for most agency equipment already, and does not require costly
or specialized equipment that is required for classified information.
It is also a reasonable practice to better safeguard CUI, so we decline
to remove or make the indecipherable, unreadable, and unrecoverable
requirement optional. The current language in the regulation provides
agencies with options other than classified destruction methods. In
addition to methods prescribed by any applicable law, regulation, or
Government-wide policy that specifies a requirement for destroying a
particular type of information, agencies may use methods in NIST SP
800-88 or methods in NIST SP 800-53. NIST SP 800-88 has clear guidance
on destroying hard copy (paper and microfilms). The guidance sets out a
specific particle size for cross-cut shredders, along with a particle
size when an agency elects to pulverize or disintegrate paper.
The information systems requirements set out in Sec. 2002.14(g)
received a number of comments. The comments were primarily divided
between concerns about application of NIST guidelines and standards,
including to whom, how, and when they apply, and concerns about the
moderate confidentiality impact value being applied to all CUI (some
requesting that lower or higher values be allowed and others suggesting
that agencies be permitted to make their own risk-based assessments on
the level of protection). An additional comment recommended we clarify
language in Sec. 2002.14(g) from ``existing'' to ``applicable'' so
that future laws and policies will be included. We have made this
change to this provision and others within the regulation.
The purpose of the CUI Program is to provide a uniform and
consistent system for protecting CUI throughout the executive branch.
The baseline standard for protecting CUI Basic is moderate
confidentiality. Given the need to protect CUI, a baseline of moderate
confidentiality makes sense, because such protection is greater than
low, the minimum requirement for all systems under the FISMA.
For situations in which agencies share CUI with non-executive
branch entities that are not operating an information system on behalf
of the agency, agencies should establish understandings and agreements
with those entities prior to sharing CUI.
In accordance with the FISMA, all agency heads are responsible for
ensuring the protection of Federal information and Federal information
systems (``information systems used or operated by an agency or by a
contractor of an agency or other organization on behalf of an agency,''
44 U.S.C. 3554(a)(1)(A)(ii)).
The term ``on behalf of'' means when a non-executive branch entity
uses or operates an information system or maintains or collects
information for the purpose of processing, storing, or transmitting
Federal information, and those activities are not incidental to
providing a service or product to the Government. To protect such
systems and information, agencies must prescribe appropriate security
requirements and controls from FIPS Publication 200 and NIST SP 800-53
in accordance with any risk-based tailoring decisions they make.
When non-executive branch entities are not using or operating an
information system or maintaining or collecting federal information
``on behalf of'' an agency, the agency must prescribe the requirements
of NIST SP 800-171 in agreements to protect the confidentiality of the
CUI, unless the agreement establishes higher security requirements.
A final comment on this section noted the statement in Sec.
2002.14(g)(2) that, ``Agencies may increase the confidentiality impact
level above moderate and apply additional security requirements and
controls only internally or by agreement between agencies; they may not
require anyone outside the agency to use a higher impact level or more
stringent security requirements and controls,'' was unclear with regard
to whether it applied to CUI Basic only or both CUI Basic and CUI
Specified. We have revised the provision and the definitions of CUI
Basic and Specified under Sec. 2002.4 to clarify that the moderate
confidentiality level applies to CUI Basic and is a baseline level;
agencies must use no less than the moderate confidentiality level for
CUI Basic, and may use the high level for CUI Basic within the agency
or pursuant to agreements.
By contrast, CUI Specified information may be handled at higher
confidentiality levels if the authorities establishing and governing
the CUI Specified category or subcategory allow or require a higher
confidentiality level or more specific or stringent controls. If they
do not, then the no-less-than moderate confidentiality level
established for CUI Basic applies to the
[[Page 63331]]
CUI Specified information as well. This also holds true for other
controls--if the authorities specifying controls for a given type of
CUI Specified are silent or do not set out a specific standard on any
aspect of safeguarding or disseminating controls, the standards and the
limited dissemination controls for CUI Basic apply to that aspect of
handling the CUI Specified. CUI Basic standards, including no-less-than
moderate confidentiality impact value, are the default standards for
CUI in the absence of an appropriate authority and CUI Specified
category or subcategory listed on the CUI Registry that specifies
alternative standards.
Sec. 2002.13 Accessing and Disseminating (Now Sec. 2002.16)
Several comments on this section involved recommendations that we
set out more specific criteria governing when agencies must permit
access to CUI (some were concerned we would be permitting too much
access and others were concerned agencies would unduly restrict
access). Other commenters expressed concern or confusion about what
constitutes a lawful Government purpose, similar concerns about whether
it would be applied too strictly or too over-broadly, and concerns
about whether an authorized holder could guarantee that dissemination
would actually further the lawful Government purpose.
The rule does not require agencies to share CUI--the rule states
that agencies ``should'' share CUI in certain circumstances, but
recognizes agencies' broad discretion to determine whether or not to do
so. Section 2002.16(a) also does not state that they should share it
whenever there is a lawful Government purpose to do so and disregard
all other considerations. The subsection states that agencies should
share CUI if it furthers a lawful Government purpose to do so AND doing
so abides by the requirements and policies contained in the authorities
that established that information as CUI, and it is not otherwise
prohibited by law, and the information is not restricted by an
authorized limited dissemination control. One of the purposes of the
CUI Program is to enable more sharing and access to protected
information--when it is appropriate, given the need to protect that
information to a particular degree or in particular ways--because in
the past, much information that could be appropriately shared was not,
due to overly applied restrictions (see, e.g., Report and
Recommendations of the Presidential Task Force on Controlled
Unclassified Information (August 5, 2009), pp. 7-11)). The CUI Program
does not give rise to situations in which a requesting agency must be
given complete access to another agency's CUI just because the
requestor can cite any lawful Government purpose. But if there is a
lawful Government purpose and the other restrictions, considerations,
and authorities do not prohibit it, then the purpose is to enable that
sharing to occur.
However, as in most areas, the rule must balance between the goal
of disseminating, the goal of uniform handling, the goal of protecting
information as required, and the burden and cost of implementing the
Program. One aspect of that balancing act is agency mission authority.
Agency heads are granted by Congress the authority to manage their
agencies and to take actions to carry out their missions within the
scope of the various statutes giving rise to the mission. As a result,
although we are working to implement a uniform system across agencies,
and agencies are by and large in support of that goal, we must also
still avoid establishing policies that could interfere with an agency
head's authority to run the agency and carry out the mission.
Although NARA agrees with commenters that the absence of a firm
across-the-board requirement to share CUI creates some potential for
unclassified information to be ``siloed'' within agencies, we do not
believe that such an across-the-board requirement would be consistent
with our mandate under the Order, other agencies' statutory and other
authorities and responsibilities, or the broad range of decisions that
agencies face daily on whether and how to share information. Agencies
have expressed concern about such an across-the-board requirement.
As a result, we changed the language from a requirement to
disseminate CUI as the default state so long as a lawful government
purpose exists, to an option. However, we have tried to keep the
balance and to minimize unnecessarily restrictive policies and
practices by setting out a framework of rules within which agencies may
exercise their discretion, and by providing for CUI EA review of agency
policies as a means by which to reduce chances of unnecessarily
restrictive dissemination policies. The rule allows challenges to
designation of information as CUI as another means of reducing the
chance of unnecessarily restrictive policies. Although no procedure is
ever implemented completely uniformly or consistently, this regulation
establishes requirements that promote significantly greater consistency
than already exists. In the long run, with additional guidance and
oversight on the part of the CUI EA, as the CUI program develops, the
Program will be able to bring about increasing uniformity in phases and
some of the current balancing difficulties will evolve into practices
that more completely fulfill the Program's goals.
The rule also does not require that an authorized holder must be
able to guarantee that dissemination will actually further the lawful
Government purpose. It is sufficient that the person disseminating it
believes it furthers a lawful Government purpose.
With regard to a recommendation that we revise Sec. 2002.16(a)(2)
to limit when agencies may impose controls to restrict access to CUI,
we have accepted the recommendation, but not the suggested language
because it was too broad and could result in agency-by-agency decisions
to apply controls based on their own risk tolerance, defeating the CUI
Program's purpose of establishing a uniform system. The intent is for
agencies to use controls only as necessary to abide by restrictions and
none that are unlawful or improper. We have revised the language in
2002.16(a)(2) to more clearly reflect this and to address other
concerns raised by the commenters. It now reads, ``Agencies must impose
controls judiciously and should do so only to apply necessary
restrictions on access to CUI, including those required by law,
regulation, or Government-wide policy.''
We also accepted a recommendation to move Sec. 2002.16(a)(4) to
another section because it addresses non-executive branch entities, not
agency tasks, which is the subject of the rest of paragraph (a). We
have moved the provision to Sec. 2002.16(b)(3) under controls on
disseminating CUI.
We declined to accept suggestions that allow agencies to create
their own limited dissemination controls, recommendations that we
revise the access requirements to require compliance with Privacy Act,
PII, and protected health disclosure requirements, and a suggestion
that we point to the CNSSI 1253 Privacy Overlay. The purpose of the CUI
Program is to establish a uniform set of requirements for how each type
of CUI is handled by every agency. Agencies may not create their own
exceptions to those requirements or grant themselves agency-specific
restrictions on dissemination. The CUI EA has the sole authority to
determine if a limited dissemination control might be appropriate
within the larger framework of CUI and the Program's purpose to
establish a uniform system. The regulation already states that
[[Page 63332]]
dissemination and information sharing must be in accord with existing
law, regulation, and Government-wide policy, so we decline to add a
statement that it must be in accord with specific ones. However, the
regulation also includes a section on CUI and the Privacy Act
(2002.46), in which it spells out that the mere fact that information
is marked CUI does not interfere with an agency making determinations
about release of information protected by the Privacy Act; agencies
must still abide by the Privacy Act requirements when making such
determinations. The rule also includes a similar provision for FOIA,
Whistleblower Protection Act, and other release authorities.
We also received several comments about Sec. 2002.16(a)(6) (also
connected with Sec. 2002.1(e)) and the requirement to handle CUI in
accord with the CUI Registry, especially when applied to contractors
(as it could be through contract provisions), and a concern that
contractors might receive improperly marked CUI. Compliance with the
CUI Registry is woven as a requirement throughout the regulation, not
just this section, as one commenter thought. The phrase ``consistent
with'' or ``complies with'' and similar variations appears in several
places with the phrase ``the Order, this part, and the CUI Registry.''
Anyone who is authorized to handle CUI is responsible for doing so in
compliance with the requirements of the Order, this regulation, and the
CUI Registry. If a contractor receives improperly marked CUI from an
agency, the contractor is not responsible for having marked the CUI
improperly, but the contractor could be responsible for knowing the
types of CUI it receives from the agency pursuant to the contract, and
for knowing which CUI Registry category the information falls into, the
handling requirements for that type of CUI, and so forth. As a result,
the contractor could, in some cases, also be held responsible for
properly handling the CUI even if it is not marked properly when they
receive it.
In Sec. 2002.1(e) of this rule, we explain that agencies extend
the controls for handling CUI to contractors by means of contract
provisions (including forthcoming new FAR case on CUI), which include
the requirement to abide by the rule, the Order, and the CUI Registry
and which also include other provisions relating to the CUI and its
controls. In Subpart C of this rule, we include a section on challenges
to CUI designation and have clarified that this includes a party's
belief it has received improperly marked or unmarked CUI. In addition,
under Sec. 2002.8, agencies must establish a process for recipients of
CUI to raise questions of improper or no CUI markings and receive
directions from the agency on what to do with the information. In some
cases, the agency may be contracting for services in which the
contractor would mark and otherwise manage the CUI for the agency. In
such cases, the contract would very likely include provisions in which
the contractor is responsible for the burden of properly marking. In
other cases, the agreement would not include that provision if the task
was not part of the contract.
Additional comments on Sec. 2002.16(a)(6) included a
recommendation that we note that the authorities setting out misuse of
CUI or penalties are provided as part of the CUI Registry, and another
that recommended we remove the reporting requirement for any incident
of non-compliance with handling requirements. We decline both
suggestions. Governing laws, regulations, or Government-wide policies
apply to CUI and to misuse of CUI as described with those authorities.
This was true prior to the CUI Program's inception, and it remains true
if those authorities are not listed on the CUI Registry. However, the
regulation defines the CUI Registry as the repository for agencies to
find information on handling CUI, and states that the CUI categories
and subcategories, along with their governing authorities, are listed
there. Agencies or entities that handle a given type of CUI should make
themselves familiar with the contents of the governing authorities, and
the requirements for that kind of CUI, including any provisions about
misuse of the CUI. And, while we agree that the reporting requirement
should be included in the FAR case that is being drafted, we disagree
that it should be removed from the regulation. This reporting
requirement applies to anyone who handles CUI, not just contractors.
Other entities would not be subject to the FAR case, so this section
makes clear that a provision for that purpose must be included in any
agreement, including contracts but not limited to them. The FAR case is
a tool to help agencies achieve that purpose in contracts in a uniform
way, but it does not establish the requirement for agencies to include
that provision in their agreements. This regulation does.
Sec. 2002.14 Decontrolling (Now Sec. 2002.18)
Several commenters asserted that, at times, decontrol is not
optional, such as when the circumstances in law, regulation, or
Government-wide policy that authorize information controls no longer
apply to the information. We agree with these statements. While the
rule requires agencies to actively manage decontrolling CUI as well as
marking and handling it, and expects agencies to do so to the fullest
extent they can, there are some circumstances in which they may not be
able to take affirmative actions to decontrol information when it no
longer qualifies as CUI. Some agencies have vast amounts of information
stored in facilities or systems. In some situations, they may not have
the resources to regularly sift through all of that information to
determine which, if any, of it might no longer qualify as CUI. We have
had to balance these competing concerns. However, this section did not
clearly include automatic decontrol situations, so we have revised the
language to clarify that in some circumstances, CUI may be decontrolled
automatically, without review or an affirmative agency decision to
decontrol the information. In such circumstances, the rule does not
require agencies to take affirmative action to remove legacy markings
from the information that no longer qualifies as CUI unless the agency
re-uses, restates, paraphrases, releases, or donates that information.
One commenter requested that the section on removing decontrol
statements be moved to Sec. 2002.15 (now Sec. 2002.20), under
marking, as it seemed more appropriate there. We declined to do so, as
we feel users will most easily find and apply all guidance on
decontrol, including on removing decontrol markings, if it remains in
the decontrol policy section.
One commenter requested clarification of the CUI Basic and
Specified terms, in light of references made to NIST 800-53 and 800-171
guidance documents. We have revised the definitions of CUI Basic and
CUI Specified in Sec. 2002.2 (now Sec. 2002.4), and the explanation
of how they interact with NIST and FISMA requirements in Sec.
2002.18(g), to better clarify the distinctions. The framework of CUI
Basic and CUI Specified is part of the CUI Program; the NIST
publications do not establish or describe it. Those publications
already applied to agencies under the requirements of the FISMA before
the CUI Program began, and they set out standards for information
security of various types.
One commenter expressed concern about the provision prohibiting
decontrol of CUI for the purpose of ``mitigating'' unauthorized
disclosures. The commenter understood that this provision intended to
prohibit the decontrol of CUI as a means of hiding unauthorized
disclosures and avoiding
[[Page 63333]]
accountability for them, but suggested clarifying language to avoid
certain unintended consequences with the language as it was written. We
have adopted the suggested revisions.
Sec. 2002.15 Marking (Now Sec. 2002.20)
We received a number of comments regarding the old, or legacy,
marking aspects of this section in Sec. 2002.20(a) and (b). Although
the comments addressed different specific concerns, a large number of
them demonstrated an underlying confusion about when agencies must
remove legacy markings, when they must apply the new CUI markings, and
when waivers may apply. As a result, we have substantially revised
these sections to clarify the relationship between CUI markings, legacy
markings, and marking waivers. A related subject concerned confusion
between one provision that required designating agencies to mark CUI
when designating and another provision that required agencies to mark
prior to disseminating.
The basic rule is that Agencies must mark all CUI with CUI markings
and must also remove all legacy markings (markings from before the CUI
Program and this regulation, including FOUO, SBU, OUO, etc.) from
everything. Designating agencies must mark CUI at the time they
designate the information as CUI. However, marking upon designation
does not address when to mark legacy information that has already been
designated in the past as one of various types of controlled
information (now gathered under CUI). As a result, Sec. 2002.20(a)(1)
and (3) together explain that agencies must also mark legacy
information with new CUI markings, if it qualifies as CUI. In
situations in which an agency has a significantly large amount of
legacy material, it may waive the requirement to re-mark each item, as
long as the legacy material remains within the agency, but it must
still protect the information by alternate means. In addition, it must
re-mark any portion of the material as CUI, if it qualifies, when the
agency re-uses or disseminates information from legacy material.
We also received a comment recommending that we adopt a `not-
required-to-mark' policy for all CUI; that agencies do not have to mark
CUI, but if they do, they must use the markings set out in the Program
rather than agency-specific markings. The interagency review process
extensively discussed marking policy and the option of not requiring
marking. The conclusion was that going with a `not-required-to-mark'
policy would result in failure to properly identify unclassified
information requiring control and would subject employees, contractors,
partners, and other recipients of CUI to an increased likelihood of
sanctions for mishandling information that laws, regulations, or
Government-wide policies require them to handle as CUI.
The marking policy for CUI is not complex, however. The CUI rule
allows for a simple marking of ``CUI'' or ``Controlled,'' if the CUI
falls into a CUI Basic category or subcategory. The vast majority of
CUI falls into CUI Basic categories and subcategories. As a result,
this is the marking requirement for the vast majority of CUI. CUI
Specified categories and subcategories incur additional marking
requirements because they require controls that differ from all the
other CUI, so the additional markings serve to identify that they are
CUI Specified and what category or subcategory they belong to. As a
result, authorized holders can tell at a glance that they have
something that requires specific controls other than the default for
CUI Basic, and what group the information falls into so they can
determine what special handling that information requires. Most often,
agencies that deal with CUI Specified information deal with it on a
regular basis and are already intimately familiar with the requirements
arising from law, regulation, or Government-wide policy for that type
of information, since those requirements remain the same under this
rule as in the past.
A number of comments on this section concerned waivers of the
marking requirements (now re-located to their own section at Sec.
2002.38). We recognize commenters' concerns that permitting waivers of
the CUI marking requirements could affect the security of CUI and
create confusion. We would prefer to keep the requirement absolute.
However, some agencies already have internal storage and systems in
which there is a substantial amount of information marked with legacy
markings. In some cases, the number of items can be in the millions.
Requiring the agency to re-mark all of that information with new CUI
markings (which may also, if multiple types of legacy information are
stored together, require them to go through each item to assess whether
it qualifies as CUI, and which category or subcategory it falls into;
not all information protected under various agency programs in the past
qualifies as CUI or fits into the same groupings) may, in certain
limited situations, be too burdensome for an agency's resources.
As a result, we have allowed agencies in these and similar rare
circumstances to waive the requirement to re-mark that information with
new CUI markings--but only as long as it remains within the agency's
facilities or systems and as long as agency still safeguards the
information to the required degree. However, when the agency
disseminates a portion of that information outside the agency, or re-
uses some of that information, it must remove legacy markings and mark
that portion of the information with correct CUI markings. In Sec.
2002.20(b)(7), the rule also requires agencies to document the waivers
they implement and report them to the CUI EA. In this way, the CUI EA
monitors implementation of the waiver option, may take steps to ensure
waivers do not swallow the rule, and ascertains that the agencies are
implementing other safeguarding practices so the protected information
is not endangered.
Other comments addressed failure to mark CUI, or improperly marked
CUI, and concerns that non-executive branch entities would not know
that the information was CUI and would either be penalized or would
have to assume a burden of control to oversee CUI marking in some
manner. The requests included exempting non-executive branch entities
from requirements to properly handle CUI if it isn't marked or marked
properly, and creating a FAR case to address the issue. The comments
raise a reasonable concern. However, we cannot exempt non-executive
branch entities from the requirements to protect CUI, for the reasons
explained in the beginning of the general comments discussion. The
regulation does contemplate the possibility that some CUI may be
unmarked or marked improperly. In such cases, agencies and non-
executive branch agencies would still be subject to that CUI's
governing law, regulation, or Government-wide policy's requirements,
including any penalties or sanctions for not handling it properly in
accord with those authorities or the connected CUI Program
requirements. Entities that receive CUI from an agency should normally
be on notice that they will be receiving that type of CUI information,
pursuant to the terms of any contract or agreement between the two. As
a result, if some of that information is not properly marked for some
reason, the recipient entity should be aware that they receive certain
types of CUI from the agency; the information is CUI; it falls within
the agreed-upon type of CUI; and it is subject to the same handling
requirements.
However, we have included in Sec. 2002.8(c)(8) a requirement that
agencies must establish a process to accept and manage challenges to
CUI status (including improper or no
[[Page 63334]]
marking). 2002.20(m)(2) also requires agencies to establish a mechanism
by which authorized holders can contact an agency representative for
instructions when they receive unmarked or improperly marked
information that the agency designated as CUI. We have also revised
Sec. 2002.50, Challenges to designation of information as CUI,
subsection (a), to allow CUI authorized holders who believe they have
received unmarked CUI to notify the designating agency of this belief
through the challenge process. These provisions establish methods for
reporting the improper marking or lack of marking, and will trigger the
challenge process so that the situation is addressed. Misuse of CUI, as
described in the definition in Sec. 2002.4, may include no or improper
marking, and subsection 2002.52 requires agencies to establish
processes for reporting and investigating misuse of CUI, and requires
them to report misuse of CUI to the CUI EA. This ensures agencies will
look into causes of improper or lack of marking so that the causes can
be addressed, and that the CUI EA can monitor trends like frequency,
appropriate handling, recurring causes, etc., and determine if there is
a systemic issue.
Other comments recommended including specific procedures in the
rule for vetting or challenging CUI markings, allowing agencies to
establish their own marking requirements, and clarifying whether
agencies should mark CUI in accord with the CUI Registry or the
regulation. Some commenters expressed concern that current marking
technology would work for new CUI markings, and others requested we add
an explanation of how markings for other types of data, such as ITAR-
and EAR-controlled technical data, ``sensitive but unclassified,'' and
``for official use only (FOUO),'' will co-exist with the CUI Program.
One comment requested an explanation of the status of information
derived from CUI, and another suggested we add a requirement to mark
the designating and disseminating agencies on all CUI.
There are competing interests inherent within the CUI Program--full
consistency and uniformity vs. cost and burden. This rule attempts to
balance these competing interests, and we engaged in extensive
discussions with Federal agencies, state, local, and tribal groups,
industry, and public interest groups as part of that balancing effort.
The marking requirements were developed in consultation with the CUI
Advisory Council, which gave serious consideration to the costs of
implementing them. However, the marking requirements are necessary to
ensure uniform handling across agencies and accomplish the goals of the
Program. Agencies or others may incur costs for purchasing new marking
tools, if new ones are necessary to implement the marking requirements.
However, most information that requires control is already being marked
in some manner, so in most cases, it would be a matter of aligning
those tools with this policy.
The CUI Advisory Council considered a number of the same issues and
concerns about over-broad marking as commenters raised, and determined
that the kinds of suggested review procedures and practices were too
onerous or were not in keeping with goals of the Program. However,
there are some controls built into the program's structure. The CUI EA
determines which information belongs in which categories and
subcategories, whether those groupings are CUI Basic or CUI Specified,
and articulates which controls or controlling authorities apply. This
limits the kinds of information agencies can designate as CUI to only
those vetted through that process and listed on the Registry. One set
of uniform handling requirements applies to all CUI that falls into the
CUI Basic category. This means that all agencies must use the same
handling requirements for the vast majority of CUI, including marking.
Individual agencies won't be able to establish special marking for
information, so that should also help minimize over-broad marking. In
addition, agencies must establish a mechanism for challenges to
information they designate as CUI, so if someone believes the agency is
marking over-broadly, they can raise the issue through the challenge
process for scrutiny. They may make these challenges anonymously, so
should not be discouraged from raising concerns. These structural
elements, and other facets of the Program's structure, including CUI EA
oversight of agency implementation and the ability to pursue challenges
with the EA and above if not resolved at the agency level, address many
of the commenters' concerns about over-broad marking and are designed
in part to restrict agencies from over-broadly applying any CUI
controls and policies.
The CUI EA mandates marking requirements, but agency policy
implements those requirements within the agency. Agency policies that
implement CUI can spell out detailed procedures when needed. However,
the regulation must apply to a broad spectrum of agencies with
different structures, staffing, and sizes, among other differences. As
a result, detailed processes are better managed at the agency level, as
long as they comply with the CUI Program's requirements and policies.
In response to one commenter's suggestion that we add provisions on
decontrol to the marking section, the regulation already contains a
full section on decontrol of CUI and for unmarking it once it is
decontrolled. We believe that marking aspects of decontrol are best
addressed within the decontrol section so that all decontrol policies
are easy to find in one place.
The CUI Program markings will replace other designations, such as
SBU, FOUO, and OUO, and any agency-specific labels for CUI, which will
all be discontinued. As a result, concerns about how they will
integrate are moot. Some CUI qualifies as CUI Specified (such as export
controlled information and confidential statistical information under
the Confidential Information Protection and Statistical Efficiency Act)
due to the existing statutory regime already established for
controlling that type of information. While some types of CUI Specified
may arise primarily in only one or a couple of agencies, those types of
CUI do not become agency-specific types of CUI simply for that reason.
The categories or subcategories for those types of CUI Specified have
gone through CUI EA vetting, have underlying laws, regulations, or
Government-wide policies establishing them, are listed on the CUI
Registry, and include specified controls that apply uniformly
throughout the executive branch, to any agency that has that type of
information. This is different from an agency developing its own
category of protected information, or its own policy or practice for
handling protected information, such as the various SBU and FOUO
regimes that currently exist from agency to agency.
Regarding the questions about derived CUI, the bottom line is that
certain types of information qualify as CUI. If an item of information
qualifies as CUI, it doesn't matter whether it is in some way also
derived from another item of information that qualifies as CUI, and it
should be marked as CUI either way. Its status as CUI depends upon the
information itself and whether it meets the requirements in a law,
regulation, or Government-wide policy that establish it as needing
controls on safeguarding or disseminating. A document containing CUI
that is derived from another document that contains CUI would also be
CUI--because it contains controlled information, not simply because it
is derived from a document that contains CUI. It is possible the
original document contains both CUI and non-CUI and the derived
document could therefore contain only information derived from
[[Page 63335]]
the non-CUI portions of the original document. In such a case, the
derived document would not become CUI simply because the information
was derived from a CUI document.
The fact that a certain item of CUI derives from another item of
CUI becomes relevant primarily in the context of marking waivers for
legacy CUI. This is because the rule states that an agency's waiver,
for re-marking as CUI certain items of legacy information, ceases for
one or more of those items when the agency re-uses them. So, if an
agency is not re-marking certain legacy CUI because that CUI is under a
marking waiver, and it then uses in another item some controlled
information from within that legacy CUI--i.e. it derives CUI from the
legacy item--then the new item containing the derived CUI does not fall
under the waiver (even though the originating legacy CUI item does) and
the agency must properly mark the derived item as CUI. A similar
requirement would apply to CUI derived from an unmarked or improperly
marked item of CUI as well, although in that case the original item
should then be properly marked as well once it is clear it contains
CUI.
With regard to suggestions that we add marking requirements for
designating and disseminating agency information and dates, the
regulation already includes a provision within Sec. 2002.20 that
requires marking the designating agency. We do not see a reason to add
an extra marking for the disseminating agency. Likewise, we decline to
require a date marking on all CUI, as another commenter suggested. This
was previously discussed during the inter-agency development process,
but not adopted. Practically speaking, much CUI will have a date
apparent, though it is not required. However, there is no required
decontrol time period, so this issue is much different in a CUI context
than the need for a date within a classified information context.
Sec. 2002.16 Waivers of CUI Requirements in Exigent Circumstances (Now
Part of Sec. 2002.38)
Several commenters recommended that we add a provision requiring
agencies to report any waivers to the CUI EA, both when the agency
issues the waiver and when it rescinds it. We agree, and revised the
section to require CUI senior agency officials to retain records on
each waiver and use them to report the waivers to the CUI EA.
Another commenter expressed concern that waivers could be used
over-broadly to avoid complying with CUI requirements and suggested we
add a provision that limits waivers to the shortest period and
narrowest scope necessary to account for the exigent circumstances. The
comment also expressed concern that waivers could not accord with
prescriptive language in 2002.12 CUI categories and subcategories. We
accepted the idea of language limiting the waivers and revised the
section to require agencies to reinstitute CUI requirements for all CUI
covered by the waiver without delay when circumstances requiring the
waiver end. However, we disagree that this section generally conflicts
with the requirements of 2002.12 CUI categories and subcategories.
Sec. 2002.27 CUI and Information Disclosure Requests (Now Sec.
2002.44)
One commenter questioned whether a CUI designation really has ``no
bearing'' on decisions to release or not to release information in
response to a FOIA request. The Order explicitly states that the mere
fact that an item is CUI has no bearing on disclosure determinations
under release statutes such as FOIA. Agencies make determinations about
whether to release, or to exempt from release, under the FOIA solely on
the basis of FOIA criteria and considerations. This rule, or the fact
that something is CUI, does not change the basis upon which agencies
must make FOIA determinations.
Agencies may determine that certain documents are exempt from
release under FOIA that also qualify and are marked as CUI, but the CUI
status does not cause or influence that determination. The FOIA allows
Federal agencies to withhold information prohibited from disclosure by
another Federal statute pursuant to exemption 3 in the FOIA (5 U.S.C.
552(b)(3)). In some cases, a given item of information may qualify as
CUI on the basis of one of those same Federal statutes. However, the
decision whether to release or withhold such information in response to
a FOIA request would still be based on the requirements under which the
FOIA exemption 3 may apply, rather than its status as CUI. Based on the
comment, we have revised 2002.44 to better clarify this.
Sec. 2002.22 Challenges to Designation of Information as CUI (Now Sec.
2002.50)
One commenter requested that we revise this section to include
challenges about improperly marked or unmarked CUI and challenges to
waivers. The commenter also sought clarification regarding whether the
challenge procedures are available to recipients outside of the
Government. We have revised this section to clarify that all authorized
holders, whether within or outside of the Government, may challenge CUI
designations, and to reflect that they may bring a challenge because
they believe CUI is improperly marked or unmarked.
Conclusion
We have thoroughly and carefully considered all the comments and
have attempted to clearly explain in this supplementary information
section some of our reasoning and changes to the regulation since it
was proposed, in hopes of better conveying the scope and nature of the
CUI Program and its requirements to those who had questions or
concerns. We appreciate the comments and the effort individuals and
organizations made to craft them and to think about the CUI Program and
the implications of the regulation's provisions. The comments helped us
refine the rule into a much better regulation and one that more clearly
explains the Program and its requirements. We realize any new program
brings change, and that those changes can be confusing, can seem
inconsistent or incompletely thought out, and can appear to be hugely
burdensome or unnecessarily complicated at first encounter. We hope
that we have alleviated much of those concerns by our responses to
these comments and the changes to the regulation. However, if you have
additional questions or would like more information, please visit our
CUI Web site at http://www.archives.gov/cui/ or contact us directly.
We have had to make compromises to the goal of complete or absolute
uniformity in deference to the need to balance between several
competing, legitimate interests and to develop a Program and
requirements that can work for a variety of agencies and types of
information, as well as those who receive CUI from agencies. However,
we believe strongly that, in the course of those efforts and all the
input, discussions, comments, and work contributed by our partners on
the CUI Advisory Council and at NIST, agency and industry experts who
generously consulted with us, and the many industry, business,
organizational, and individual reviewers, we have been able to develop
a sound CUI Program that significantly increases uniformity throughout
the executive branch, appropriately protects CUI while encouraging
sharing and access when appropriate, and does so with the least amount
of burden, complexity, and change possible.
[[Page 63336]]
List of Subjects in 32 CFR Part 2002
Administrative practice and procedure, Archives and records,
Controlled unclassified information, Freedom of information, Government
in the Sunshine Act, Incorporation by reference, Information,
Information security, National security information, Open government,
Privacy.
For the reasons stated in the preamble, NARA amends 32 CFR Chapter
XX by adding part 2002 to read as follows:
PART 2002--CONTROLLED UNCLASSIFIED INFORMATION (CUI)
Subpart A--General Information
Sec.
2002.1 Purpose and scope.
2002.2 Incorporation by reference.
2002.4 Definitions.
2002.6 CUI Executive Agent (EA).
2002.8 Roles and responsibilities.
Subpart B--Key Elements of the CUI Program
2002.10 The CUI Registry.
2002.12 CUI categories and subcategories.
2002.14 Safeguarding.
2002.16 Accessing and disseminating.
2002.18 Decontrolling.
2002.20 Marking.
2002.22 Limitations on applicability of agency CUI policies.
2002.24 Agency self-inspection program.
Subpart C--CUI Program Management
2002.30 Education and training.
2002.32 CUI cover sheets.
2002.34 Transferring records.
2002.36 Legacy materials.
2002.38 Waivers of CUI requirements.
2002.44 CUI and disclosure statutes.
2002.46 CUI and the Privacy Act.
2002.48 CUI and the Administrative Procedure Act (APA).
2002.50 Challenges to designation of information as CUI.
2002.52 Dispute resolution for agencies.
2002.54 Misuse of CUI.
2002.56 Sanctions for misuse of CUI.
Appendix A to Part 2002--Acronyms
Authority: E.O. 13556, 75 FR 68675, 3 CFR, 2010 Comp., pp. 267-
270.
Subpart A--General Information
Sec. 2002.1 Purpose and scope.
(a) This part describes the executive branch's Controlled
Unclassified Information (CUI) Program (the CUI Program) and
establishes policy for designating, handling, and decontrolling
information that qualifies as CUI.
(b) The CUI Program standardizes the way the executive branch
handles information that requires protection under laws, regulations,
or Government-wide policies, but that does not qualify as classified
under Executive Order 13526, Classified National Security Information,
December 29, 2009 (3 CFR, 2010 Comp., p. 298), or any predecessor or
successor order, or the Atomic Energy Act of 1954 (42 U.S.C. 2011, et
seq.), as amended.
(c) All unclassified information throughout the executive branch
that requires any safeguarding or dissemination control is CUI. Law,
regulation (to include this part), or Government-wide policy must
require or permit such controls. Agencies therefore may not implement
safeguarding or dissemination controls for any unclassified information
other than those controls consistent with the CUI Program.
(d) Prior to the CUI Program, agencies often employed ad hoc,
agency-specific policies, procedures, and markings to handle this
information. This patchwork approach caused agencies to mark and handle
information inconsistently, implement unclear or unnecessarily
restrictive disseminating policies, and create obstacles to sharing
information.
(e) An executive branch-wide CUI policy balances the need to
safeguard CUI with the public interest in sharing information
appropriately and without unnecessary burdens.
(f) This part applies to all executive branch agencies that
designate or handle information that meets the standards for CUI. This
part does not apply directly to non-executive branch entities, but it
does apply indirectly to non-executive branch CUI recipients, through
incorporation into agreements (see Sec. Sec. 2002.4(c) and 2002.16(a)
for more information).
(g) This part rescinds Controlled Unclassified Information (CUI)
Office Notice 2011-01: Initial Implementation Guidance for Executive
Order 13556 (June 9, 2011).
(h) This part creates no right or benefit, substantive or
procedural, enforceable by law or in equity by any party against the
United States, its departments, agencies, or entities, its officers,
employees, or agents, or any other person.
(i) This part, which contains the CUI Executive Agent (EA)'s
control policy, overrides agency-specific or ad hoc requirements when
they conflict. This part does not alter, limit, or supersede a
requirement stated in laws, regulations, or Government-wide policies or
impede the statutory authority of agency heads.
Sec. 2002.2 Incorporation by reference.
(a) NARA incorporates certain material by reference into this part
with the approval of the Director of the Federal Register under 5
U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other than that
specified in this section, NARA must publish notice of change in the
Federal Register and the material must be available to the public. You
may inspect all approved material incorporated by reference at NARA's
textual research room, located at National Archives and Records
Administration; 8601 Adelphi Road; Room 2000; College Park, MD 20740-
6001. To arrange to inspect this approved material at NARA, contact
NARA's Regulation Comments Desk (Strategy and Performance Division
(SP)) by email at [email protected] or by telephone at
301.837.3151. All approved material is available from the sources
listed below. You may also inspect approved material at the Office of
the Federal Register (OFR). For information on the availability of this
material at the OFR, call 202-741-6030 or go to http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
(b) The National Institute of Standards and Technology (NIST), by
mail at 100 Bureau Drive, Stop 1070; Gaithersburg, MD 20899-1070, by
email at [email protected], by phone at (301) 975-NIST (6478) or
Federal Relay Service (800) 877-8339 (TTY), or online at http://nist.gov/publication-portal.cfm.
(1) FIPS PUB 199, Standards for Security Categorization of Federal
Information and Information Systems, February 2004. IBR approved for
Sec. Sec. 2002.14(c) and (g), and 2002.16(c).
(2) FIPS PUB 200, Minimum Security Requirements for Federal
Information and Information Systems, March 2006. IBR approved for
Sec. Sec. 2002.14(c) and (g), and 2002.16(c).
(3) NIST Special Publication 800-53, Security and Privacy Controls
for Federal Information Systems and Organizations, Revision 4, April
2013 (includes updates as of 01-22-2015), (NIST SP 800-53). IBR
approved for Sec. Sec. 2002.14(c), (e), (f), and (g), and 2002.16(c).
(4) NIST Special Publication 800-88, Guidelines for Media
Sanitization, Revision 1, December 2014, (NIST SP 800-88). IBR approved
for Sec. 2002.14(f).
(5) NIST Special Publication 800-171, Protecting Controlled
Unclassified Information in Nonfederal Systems and Organizations, June
2015 (includes updates as of January 14, 2016), (NIST SP 800-171). IBR
approved for Sec. 2002.14(h).
Sec. 2002.4 Definitions.
As used in this part:
(a) Agency (also Federal agency, executive agency, executive branch
[[Page 63337]]
agency) is any ``executive agency,'' as defined in 5 U.S.C. 105; the
United States Postal Service; and any other independent entity within
the executive branch that designates or handles CUI.
(b) Agency CUI policies are the policies the agency enacts to
implement the CUI Program within the agency. They must be in accordance
with the Order, this part, and the CUI Registry and approved by the CUI
EA.
(c) Agreements and arrangements are any vehicle that sets out
specific CUI handling requirements for contractors and other
information-sharing partners when the arrangement with the other party
involves CUI. Agreements and arrangements include, but are not limited
to, contracts, grants, licenses, certificates, memoranda of agreement/
arrangement or understanding, and information-sharing agreements or
arrangements. When disseminating or sharing CUI with non-executive
branch entities, agencies should enter into written agreements or
arrangements that include CUI provisions whenever feasible (see Sec.
2002.16(a)(5) and (6) for details). When sharing information with
foreign entities, agencies should enter agreements or arrangements when
feasible (see Sec. 2002.16(a)(5)(iii) and (a)(6) for details).
(d) Authorized holder is an individual, agency, organization, or
group of users that is permitted to designate or handle CUI, in
accordance with this part.
(e) Classified information is information that Executive Order
13526, ``Classified National Security Information,'' December 29, 2009
(3 CFR, 2010 Comp., p. 298), or any predecessor or successor order, or
the Atomic Energy Act of 1954, as amended, requires agencies to mark
with classified markings and protect against unauthorized disclosure.
(f) Controlled environment is any area or space an authorized
holder deems to have adequate physical or procedural controls (e.g.,
barriers or managed access controls) to protect CUI from unauthorized
access or disclosure.
(g) Control level is a general term that indicates the safeguarding
and disseminating requirements associated with CUI Basic and CUI
Specified.
(h) Controlled Unclassified Information (CUI) is information the
Government creates or possesses, or that an entity creates or possesses
for or on behalf of the Government, that a law, regulation, or
Government-wide policy requires or permits an agency to handle using
safeguarding or dissemination controls. However, CUI does not include
classified information (see paragraph (e) of this section) or
information a non-executive branch entity possesses and maintains in
its own systems that did not come from, or was not created or possessed
by or for, an executive branch agency or an entity acting for an
agency. Law, regulation, or Government-wide policy may require or
permit safeguarding or dissemination controls in three ways: Requiring
or permitting agencies to control or protect the information but
providing no specific controls, which makes the information CUI Basic;
requiring or permitting agencies to control or protect the information
and providing specific controls for doing so, which makes the
information CUI Specified; or requiring or permitting agencies to
control the information and specifying only some of those controls,
which makes the information CUI Specified, but with CUI Basic controls
where the authority does not specify.
(i) Controls are safeguarding or dissemination controls that a law,
regulation, or Government-wide policy requires or permits agencies to
use when handling CUI. The authority may specify the controls it
requires or permits the agency to apply, or the authority may generally
require or permit agencies to control the information (in which case,
the agency applies controls from the Order, this part, and the CUI
Registry).
(j) CUI Basic is the subset of CUI for which the authorizing law,
regulation, or Government-wide policy does not set out specific
handling or dissemination controls. Agencies handle CUI Basic according
to the uniform set of controls set forth in this part and the CUI
Registry. CUI Basic differs from CUI Specified (see definition for CUI
Specified in this section), and CUI Basic controls apply whenever CUI
Specified ones do not cover the involved CUI.
(k) CUI categories and subcategories are those types of information
for which laws, regulations, or Government-wide policies require or
permit agencies to exercise safeguarding or dissemination controls, and
which the CUI EA has approved and listed in the CUI Registry. The
controls for any CUI Basic categories and any CUI Basic subcategories
are the same, but the controls for CUI Specified categories and
subcategories can differ from CUI Basic ones and from each other. A CUI
category may be Specified, while some or all of its subcategories may
not be, and vice versa. If dealing with CUI that falls into a CUI
Specified category or subcategory, review the controls for that
category or subcategory on the CUI Registry. Also consult the agency's
CUI policy for specific direction from the Senior Agency Official.
(l) CUI category or subcategory markings are the markings approved
by the CUI EA for the categories and subcategories listed in the CUI
Registry.
(m) CUI Executive Agent (EA) is the National Archives and Records
Administration (NARA), which implements the executive branch-wide CUI
Program and oversees Federal agency actions to comply with the Order.
NARA has delegated this authority to the Director of the Information
Security Oversight Office (ISOO).
(n) CUI Program is the executive branch-wide program to standardize
CUI handling by all Federal agencies. The Program includes the rules,
organization, and procedures for CUI, established by the Order, this
part, and the CUI Registry.
(o) CUI Program manager is an agency official, designated by the
agency head or CUI SAO, to serve as the official representative to the
CUI EA on the agency's day-to-day CUI Program operations, both within
the agency and in interagency contexts.
(p) CUI Registry is the online repository for all information,
guidance, policy, and requirements on handling CUI, including
everything issued by the CUI EA other than this part. Among other
information, the CUI Registry identifies all approved CUI categories
and subcategories, provides general descriptions for each, identifies
the basis for controls, establishes markings, and includes guidance on
handling procedures.
(q) CUI senior agency official (SAO) is a senior official
designated in writing by an agency head and responsible to that agency
head for implementation of the CUI Program within that agency. The CUI
SAO is the primary point of contact for official correspondence,
accountability reporting, and other matters of record between the
agency and the CUI EA.
(r) CUI Specified is the subset of CUI in which the authorizing
law, regulation, or Government-wide policy contains specific handling
controls that it requires or permits agencies to use that differ from
those for CUI Basic. The CUI Registry indicates which laws,
regulations, and Government-wide policies include such specific
requirements. CUI Specified controls may be more stringent than, or may
simply differ from, those required by CUI Basic; the distinction is
that the underlying authority spells out specific controls for CUI
Specified information and does not for CUI Basic information. CUI Basic
controls apply to those aspects of CUI Specified where the authorizing
laws, regulations, and
[[Page 63338]]
Government-wide policies do not provide specific guidance.
(s) Decontrolling occurs when an authorized holder, consistent with
this part and the CUI Registry, removes safeguarding or dissemination
controls from CUI that no longer requires such controls. Decontrol may
occur automatically or through agency action. See Sec. 2002.18.
(t) Designating CUI occurs when an authorized holder, consistent
with this part and the CUI Registry, determines that a specific item of
information falls into a CUI category or subcategory. The authorized
holder who designates the CUI must make recipients aware of the
information's CUI status in accordance with this part.
(u) Designating agency is the executive branch agency that
designates or approves the designation of a specific item of
information as CUI.
(v) Disseminating occurs when authorized holders provide access,
transmit, or transfer CUI to other authorized holders through any
means, whether internal or external to an agency.
(w) Document means any tangible thing which constitutes or contains
information, and means the original and any copies (whether different
from the originals because of notes made on such copies or otherwise)
of all writings of every kind and description over which an agency has
authority, whether inscribed by hand or by mechanical, facsimile,
electronic, magnetic, microfilm, photographic, or other means, as well
as phonic or visual reproductions or oral statements, conversations, or
events, and including, but not limited to: Correspondence, email,
notes, reports, papers, files, manuals, books, pamphlets, periodicals,
letters, memoranda, notations, messages, telegrams, cables, facsimiles,
records, studies, working papers, accounting papers, contracts,
licenses, certificates, grants, agreements, computer disks, computer
tapes, telephone logs, computer mail, computer printouts, worksheets,
sent or received communications of any kind, teletype messages,
agreements, diary entries, calendars and journals, printouts, drafts,
tables, compilations, tabulations, recommendations, accounts, work
papers, summaries, address books, other records and recordings or
transcriptions of conferences, meetings, visits, interviews,
discussions, or telephone conversations, charts, graphs, indexes,
tapes, minutes, contracts, leases, invoices, records of purchase or
sale correspondence, electronic or other transcription of taping of
personal conversations or conferences, and any written, printed, typed,
punched, taped, filmed, or graphic matter however produced or
reproduced. Document also includes the file, folder, exhibits, and
containers, the labels on them, and any metadata, associated with each
original or copy. Document also includes voice records, film, tapes,
video tapes, email, personal computer files, electronic matter, and
other data compilations from which information can be obtained,
including materials used in data processing.
(x) Federal information system is an information system used or
operated by an agency or by a contractor of an agency or other
organization on behalf of an agency. 44 U.S.C. 3554(a)(1)(A)(ii).
(y) Foreign entity is a foreign government, an international
organization of governments or any element thereof, an international or
foreign public or judicial body, or an international or foreign private
or non-governmental organization.
(z) Formerly Restricted Data (FRD) is a type of information
classified under the Atomic Energy Act, and defined in 10 CFR 1045,
Nuclear Classification and Declassification.
(aa) Handling is any use of CUI, including but not limited to
marking, safeguarding, transporting, disseminating, re-using, and
disposing of the information.
(bb) Lawful Government purpose is any activity, mission, function,
operation, or endeavor that the U.S. Government authorizes or
recognizes as within the scope of its legal authorities or the legal
authorities of non-executive branch entities (such as state and local
law enforcement).
(cc) Legacy material is unclassified information that an agency
marked as restricted from access or dissemination in some way, or
otherwise controlled, prior to the CUI Program.
(dd) Limited dissemination control is any CUI EA-approved control
that agencies may use to limit or specify CUI dissemination.
(ee) Misuse of CUI occurs when someone uses CUI in a manner not in
accordance with the policy contained in the Order, this part, the CUI
Registry, agency CUI policy, or the applicable laws, regulations, and
Government-wide policies that govern the affected information. This may
include intentional violations or unintentional errors in safeguarding
or disseminating CUI. This may also include designating or marking
information as CUI when it does not qualify as CUI.
(ff) National Security System is a special type of information
system (including telecommunications systems) whose function,
operation, or use is defined in National Security Directive 42 and 44
U.S.C. 3542(b)(2).
(gg) Non-executive branch entity is a person or organization
established, operated, and controlled by individual(s) acting outside
the scope of any official capacity as officers, employees, or agents of
the executive branch of the Federal Government. Such entities may
include: Elements of the legislative or judicial branches of the
Federal Government; state, interstate, tribal, or local government
elements; and private organizations. Non-executive branch entity does
not include foreign entities as defined in this part, nor does it
include individuals or organizations when they receive CUI information
pursuant to federal disclosure laws, including the Freedom of
Information Act (FOIA) and the Privacy Act of 1974.
(hh) On behalf of an agency occurs when a non-executive branch
entity uses or operates an information system or maintains or collects
information for the purpose of processing, storing, or transmitting
Federal information, and those activities are not incidental to
providing a service or product to the Government.
(ii) Order is Executive Order 13556, Controlled Unclassified
Information, November 4, 2010 (3 CFR, 2011 Comp., p. 267), or any
successor order.
(jj) Portion is ordinarily a section within a document, and may
include subjects, titles, graphics, tables, charts, bullet statements,
sub-paragraphs, bullets points, or other sections.
(kk) Protection includes all controls an agency applies or must
apply when handling information that qualifies as CUI.
(ll) Public release occurs when the agency that originally
designated particular information as CUI makes that information
available to the public through the agency's official public release
processes. Disseminating CUI to non-executive branch entities as
authorized does not constitute public release. Releasing information to
an individual pursuant to the Privacy Act of 1974 or disclosing it in
response to a FOIA request also does not automatically constitute
public release, although it may if that agency ties such actions to its
official public release processes. Even though an agency may disclose
some CUI to a member of the public, the Government must still control
that CUI unless the agency publicly releases it through its official
public release processes.
(mm) Records are agency records and Presidential papers or
Presidential records (or Vice-Presidential), as those
[[Page 63339]]
terms are defined in 44 U.S.C. 3301 and 44 U.S.C. 2201 and 2207.
Records also include such items created or maintained by a Government
contractor, licensee, certificate holder, or grantee that are subject
to the sponsoring agency's control under the terms of the entity's
agreement with the agency.
(nn) Required or permitted (by a law, regulation, or Government-
wide policy) is the basis by which information may qualify as CUI. If a
law, regulation, or Government-wide policy requires that agencies
exercise safeguarding or dissemination controls over certain
information, or specifically permits agencies the discretion to do so,
then that information qualifies as CUI. The term 'specifically permits'
in this context can include language such as ``is exempt from''
applying certain information release or disclosure requirements,
``may'' release or disclose the information, ``may not be required to''
release or disclose the information, ``is responsible for protecting''
the information, and similar specific but indirect, forms of granting
the agency discretion regarding safeguarding or dissemination controls.
This does not include general agency or agency head authority and
discretion to make decisions, risk assessments, or other broad agency
authorities, discretions, and powers, regardless of the source. The CUI
Registry reflects all appropriate authorizing authorities.
(oo) Restricted Data (RD) is a type of information classified under
the Atomic Energy Act, defined in 10 CFR part 1045, Nuclear
Classification and Declassification.
(pp) Re-use means incorporating, restating, or paraphrasing
information from its originally designated form into a newly created
document.
(qq) Self-inspection is an agency's internally managed review and
evaluation of its activities to implement the CUI Program.
(rr) Unauthorized disclosure occurs when an authorized holder of
CUI intentionally or unintentionally discloses CUI without a lawful
Government purpose, in violation of restrictions imposed by
safeguarding or dissemination controls, or contrary to limited
dissemination controls.
(ss) Uncontrolled unclassified information is information that
neither the Order nor the authorities governing classified information
cover as protected. Although this information is not controlled or
classified, agencies must still handle it in accordance with Federal
Information Security Modernization Act (FISMA) requirements.
(tt) Working papers are documents or materials, regardless of form,
that an agency or user expects to revise prior to creating a finished
product.
Sec. 2002.6 CUI Executive Agent (EA).
(a) Section 2(c) of the Order designates NARA as the CUI Executive
Agent (EA) to implement the Order and to oversee agency efforts to
comply with the Order, this part, and the CUI Registry.
(b) NARA has delegated the CUI EA responsibilities to the Director
of ISOO. Under this authority, ISOO staff carry out CUI oversight
responsibilities and manage the Federal CUI program.
Sec. 2002.8 Roles and responsibilities.
(a) The CUI EA:
(1) Develops and issues policy, guidance, and other materials, as
needed, to implement the Order, the CUI Registry, and this part, and to
establish and maintain the CUI Program;
(2) Consults with affected agencies, Government-wide policy bodies,
State, local, Tribal, and private sector partners, and representatives
of the public on matters pertaining to CUI as needed;
(3) Establishes, convenes, and chairs the CUI Advisory Council (the
Council) to address matters pertaining to the CUI Program. The CUI EA
consults with affected agencies to develop and document the Council's
structure and procedures, and submits the details to OMB for approval;
(4) Reviews and approves agency policies implementing this part to
ensure their consistency with the Order, this part, and the CUI
Registry;
(5) Reviews, evaluates, and oversees agencies' actions to implement
the CUI Program, to ensure compliance with the Order, this part, and
the CUI Registry;
(6) Establishes a management and planning framework, including
associated deadlines for phased implementation, based on agency
compliance plans submitted pursuant to section 5(b) of the Order, and
in consultation with affected agencies and OMB;
(7) Approves categories and subcategories of CUI as needed and
publishes them in the CUI Registry;
(8) Maintains and updates the CUI Registry as needed;
(9) Prescribes standards, procedures, guidance, and instructions
for oversight and agency self-inspection programs, to include
performing on-site inspections;
(10) Standardizes forms and procedures to implement the CUI
Program;
(11) Considers and resolves, as appropriate, disputes, complaints,
and suggestions about the CUI Program from entities in or outside the
Government; and
(12) Reports to the President on implementation of the Order and
the requirements of this part. This includes publishing a report on the
status of agency implementation at least biennially, or more frequently
at the discretion of the CUI EA.
(b) Agency heads:
(1) Ensure agency senior leadership support, and make adequate
resources available to implement, manage, and comply with the CUI
Program as administered by the CUI EA;
(2) Designate a CUI senior agency official (SAO) responsible for
oversight of the agency's CUI Program implementation, compliance, and
management, and include the official in agency contact listings;
(3) Approve agency policies, as required, to implement the CUI
Program; and
(4) Establish and maintain a self-inspection program to ensure the
agency complies with the principles and requirements of the Order, this
part, and the CUI Registry.
(c) The CUI SAO:
(1) Must be at the Senior Executive Service level or equivalent;
(2) Directs and oversees the agency's CUI Program;
(3) Designates a CUI Program manager;
(4) Ensures the agency has CUI implementing policies and plans, as
needed;
(5) Implements an education and training program pursuant to Sec.
2002.30;
(6) Upon request of the CUI EA under section 5(c) of the Order,
provides an update of CUI implementation efforts for subsequent
reporting;
(7) Submits to the CUI EA any law, regulation, or Government-wide
policy not already incorporated into the CUI Registry that the agency
proposes to use to designate unclassified information for safeguarding
or dissemination controls;
(8) Coordinates with the CUI EA, as appropriate, any proposed law,
regulation, or Government-wide policy that would establish, eliminate,
or modify a category or subcategory of CUI, or change information
controls applicable to CUI;
(9) Establishes processes for handling CUI decontrol requests
submitted by authorized holders;
(10) Includes a description of all existing waivers in the annual
report to the CUI EA, along with the rationale for each waiver and,
where applicable, the alternative steps the agency is taking to ensure
sufficient protection of CUI within the agency;
(11) Develops and implements the agency's self-inspection program;
[[Page 63340]]
(12) Establishes a mechanism by which authorized holders (both
inside and outside the agency) can contact a designated agency
representative for instructions when they receive unmarked or
improperly marked information the agency designated as CUI;
(13) Establishes a process to accept and manage challenges to CUI
status (which may include improper or absent marking);
(14) Establish processes and criteria for reporting and
investigating misuse of CUI; and
(15) Follows the requirements for the CUI SAO listed in Sec.
2002.38(e), regarding waivers for CUI.
(d) The Director of National Intelligence: After consulting with
the heads of affected agencies and the Director of ISOO, may issue
directives to implement this part with respect to the protection of
intelligence sources, methods, and activities. Such directives must be
in accordance with the Order, this part, and the CUI Registry.
Subpart B--Key Elements of the CUI Program
Sec. 2002.10 The CUI Registry.
(a) The CUI EA maintains the CUI Registry, which:
(1) Is the authoritative central repository for all guidance,
policy, instructions, and information on CUI (other than the Order and
this part);
(2) Is publicly accessible;
(3) Includes authorized CUI categories and subcategories,
associated markings, applicable decontrolling procedures, and other
guidance and policy information; and
(4) Includes citation(s) to laws, regulations, or Government-wide
policies that form the basis for each category and subcategory.
(b) Agencies and authorized holders must follow the instructions
contained in the CUI Registry in addition to all requirements in the
Order and this part.
Sec. 2002.12 CUI categories and subcategories.
(a) CUI categories and subcategories are the exclusive designations
for identifying unclassified information that a law, regulation, or
Government-wide policy requires or permits agencies to handle by means
of safeguarding or dissemination controls. All unclassified information
throughout the executive branch that requires any kind of safeguarding
or dissemination control is CUI. Agencies may not implement
safeguarding or dissemination controls for any unclassified information
other than those controls permitted by the CUI Program.
(b) Agencies may use only those categories or subcategories
approved by the CUI EA and published in the CUI Registry to designate
information as CUI.
Sec. 2002.14 Safeguarding.
(a) General safeguarding policy. (1) Pursuant to the Order and this
part, and in consultation with affected agencies, the CUI EA issues
safeguarding standards in this part and, as necessary, in the CUI
Registry, updating them as needed. These standards require agencies to
safeguard CUI at all times in a manner that minimizes the risk of
unauthorized disclosure while allowing timely access by authorized
holders.
(2) Safeguarding measures that agencies are authorized or
accredited to use for classified information and national security
systems are also sufficient for safeguarding CUI in accordance with the
organization's management and acceptance of risk.
(3) Agencies may increase CUI Basic's confidentiality impact level
above moderate only internally, or by means of agreements with agencies
or non-executive branch entities (including agreements for the
operation of an information system on behalf of the agencies). Agencies
may not otherwise require controls for CUI Basic at a level higher than
permitted in the CUI Basic requirements when disseminating the CUI
Basic outside the agency.
(4) Authorized holders must comply with policy in the Order, this
part, and the CUI Registry, and review any applicable agency CUI
policies for additional instructions. For information designated as CUI
Specified, authorized holders must also follow the procedures in the
underlying laws, regulations, or Government-wide policies.
(b) CUI safeguarding standards. Authorized holders must safeguard
CUI using one of the following types of standards:
(1) CUI Basic. CUI Basic is the default set of standards authorized
holders must apply to all CUI unless the CUI Registry annotates that
CUI as CUI Specified.
(2) CUI Specified. (i) Authorized holders safeguard CUI Specified
in accordance with the requirements of the underlying authorities
indicated in the CUI Registry.
(ii) When the laws, regulations, or Government-wide policies
governing a specific type of CUI Specified are silent on either a
safeguarding or disseminating control, agencies must apply CUI Basic
standards to that aspect of the information's controls, unless this
results in treatment that does not accord with the CUI Specified
authority. In such cases, agencies must apply the CUI Specified
standards and may apply limited dissemination controls listed in the
CUI Registry to ensure they treat the information in accord with the
CUI Specified authority.
(c) Protecting CUI under the control of an authorized holder.
Authorized holders must take reasonable precautions to guard against
unauthorized disclosure of CUI. They must include the following
measures among the reasonable precautions:
(1) Establish controlled environments in which to protect CUI from
unauthorized access or disclosure and make use of those controlled
environments;
(2) Reasonably ensure that unauthorized individuals cannot access
or observe CUI, or overhear conversations discussing CUI;
(3) Keep CUI under the authorized holder's direct control or
protect it with at least one physical barrier, and reasonably ensure
that the authorized holder or the physical barrier protects the CUI
from unauthorized access or observation when outside a controlled
environment; and
(4) Protect the confidentiality of CUI that agencies or authorized
holders process, store, or transmit on Federal information systems in
accordance with the applicable security requirements and controls
established in FIPS PUB 199, FIPS PUB 200, and NIST SP 800-53,
(incorporated by reference, see Sec. 2002.2), and paragraph (g) of
this section.
(d) Protecting CUI when shipping or mailing. When sending CUI,
authorized holders:
(1) May use the United States Postal Service or any commercial
delivery service when they need to transport or deliver CUI to another
entity;
(2) Should use in-transit automated tracking and accountability
tools when they send CUI;
(3) May use interoffice or interagency mail systems to transport
CUI; and
(4) Must mark packages that contain CUI according to marking
requirements contained in this part and in guidance published by the
CUI EA. See Sec. 2002.20 for more guidance on marking requirements.
(e) Reproducing CUI. Authorized holders:
(1) May reproduce (e.g., copy, scan, print, electronically
duplicate) CUI in furtherance of a lawful Government purpose; and
(2) Must ensure, when reproducing CUI documents on equipment such
as printers, copiers, scanners, or fax machines, that the equipment
does not retain data or the agency must otherwise sanitize it in
accordance with NIST SP
[[Page 63341]]
800-53 (incorporated by reference, see Sec. 2002.2).
(f) Destroying CUI. (1) Authorized holders may destroy CUI when:
(i) The agency no longer needs the information; and
(ii) Records disposition schedules published or approved by NARA
allow.
(2) When destroying CUI, including in electronic form, agencies
must do so in a manner that makes it unreadable, indecipherable, and
irrecoverable. Agencies must use any destruction method specifically
required by law, regulation, or Government-wide policy for that CUI. If
the authority does not specify a destruction method, agencies must use
one of the following methods:
(i) Guidance for destruction in NIST SP 800-53, Security and
Privacy Controls for Federal Information Systems and Organizations, and
NIST SP 800-88, Guidelines for Media Sanitization (incorporated by
reference, see Sec. 2002.2); or
(ii) Any method of destruction approved for Classified National
Security Information, as delineated in 32 CFR 2001.47, Destruction, or
any implementing or successor guidance.
(g) Information systems that process, store, or transmit CUI. In
accordance with FIPS PUB 199 (incorporated by reference, see Sec.
2002.2), CUI Basic is categorized at no less than the moderate
confidentiality impact level. FIPS PUB 199 defines the security impact
levels for Federal information and Federal information systems.
Agencies must also apply the appropriate security requirements and
controls from FIPS PUB 200 and NIST SP 800-53 (incorporated by
reference, see Sec. 2002.2) to CUI in accordance with any risk-based
tailoring decisions they make. Agencies may increase CUI Basic's
confidentiality impact level above moderate only internally, or by
means of agreements with agencies or non-executive branch entities
(including agreements for the operation of an information system on
behalf of the agencies). Agencies may not otherwise require controls
for CUI Basic at a level higher or different from those permitted in
the CUI Basic requirements when disseminating the CUI Basic outside the
agency.
(h) Information systems that process, store, or transmit CUI are of
two different types:
(1) A Federal information system is an information system used or
operated by an agency or by a contractor of an agency or other
organization on behalf of an agency. An information system operated on
behalf of an agency provides information processing services to the
agency that the Government might otherwise perform itself but has
decided to outsource. This includes systems operated exclusively for
Government use and systems operated for multiple users (multiple
Federal agencies or Government and private sector users). Information
systems that a non-executive branch entity operates on behalf of an
agency are subject to the requirements of this part as though they are
the agency's systems, and agencies may require these systems to meet
additional requirements the agency sets for its own internal systems.
(2) A non-Federal information system is any information system that
does not meet the criteria for a Federal information system. Agencies
may not treat non-Federal information systems as though they are agency
systems, so agencies cannot require that non-executive branch entities
protect these systems in the same manner that the agencies might
protect their own information systems. When a non-executive branch
entity receives Federal information only incidental to providing a
service or product to the Government other than processing services,
its information systems are not considered Federal information systems.
NIST SP 800-171 (incorporated by reference, see Sec. 2002.2) defines
the requirements necessary to protect CUI Basic on non-Federal
information systems in accordance with the requirements of this part.
Agencies must use NIST SP 800-171 when establishing security
requirements to protect CUI's confidentiality on non-Federal
information systems (unless the authorizing law, regulation, or
Government-wide policy listed in the CUI Registry for the CUI category
or subcategory of the information involved prescribes specific
safeguarding requirements for protecting the information's
confidentiality, or unless an agreement establishes requirements to
protect CUI Basic at higher than moderate confidentiality).
Sec. 2002.16 Accessing and disseminating.
(a) General policy--(1) Access. Agencies should disseminate and
permit access to CUI, provided such access or dissemination:
(i) Abides by the laws, regulations, or Government-wide policies
that established the CUI category or subcategory;
(ii) Furthers a lawful Government purpose;
(iii) Is not restricted by an authorized limited dissemination
control established by the CUI EA; and,
(iv) Is not otherwise prohibited by law.
(2) Dissemination controls. (i) Agencies must impose dissemination
controls judiciously and should do so only to apply necessary
restrictions on access to CUI, including those required by law,
regulation, or Government-wide policy.
(ii) Agencies may not impose controls that unlawfully or improperly
restrict access to CUI.
(3) Marking. Prior to disseminating CUI, authorized holders must
label CUI according to marking guidance issued by the CUI EA, and must
include any specific markings required by law, regulation, or
Government-wide policy.
(4) Reasonable expectation. To disseminate CUI to a non-executive
branch entity, authorized holders must reasonably expect that all
intended recipients are authorized to receive the CUI and have a basic
understanding of how to handle it.
(5) Agreements. Agencies should enter into agreements with any non-
executive branch or foreign entity with which the agency shares or
intends to share CUI, as follows (except as provided in paragraph
(a)(7) of this section):
(i) Information-sharing agreements. When agencies intend to share
CUI with a non-executive branch entity, they should enter into a formal
agreement (see Sec. 2004.4(c) for more information on agreements),
whenever feasible. Such an agreement may take any form the agency head
approves, but when established, it must include a requirement to comply
with Executive Order 13556, Controlled Unclassified Information,
November 4, 2010 (3 CFR, 2011 Comp., p. 267) or any successor order
(the Order), this part, and the CUI Registry.
(ii) Sharing CUI without a formal agreement. When an agency cannot
enter into agreements under paragraph (a)(6)(i) of this section, but
the agency's mission requires it to disseminate CUI to non-executive
branch entities, the agency must communicate to the recipient that the
Government strongly encourages the non-executive branch entity to
protect CUI in accordance with the Order, this part, and the CUI
Registry, and that such protections should accompany the CUI if the
entity disseminates it further.
(iii) Foreign entity sharing. When entering into agreements or
arrangements with a foreign entity, agencies should encourage that
entity to protect CUI in accordance with the Order, this part, and the
CUI Registry to the extent possible, but agencies may use their
judgment as to what and how much to communicate, keeping in mind the
ultimate goal of safeguarding CUI. If such agreements or arrangements
[[Page 63342]]
include safeguarding or dissemination controls on unclassified
information, the agency must not establish a parallel protection regime
to the CUI Program: For example, the agency must use CUI markings
rather than alternative ones (e.g., such as SBU) for safeguarding or
dissemination controls on CUI received from or sent to foreign
entities, must abide by any requirements set by the CUI category or
subcategory's governing laws, regulations, or Government-wide policies,
etc.
(iv) Pre-existing agreements. When an agency entered into an
information-sharing agreement prior to November 14, 2016, the agency
should modify any terms in that agreement that conflict with the
requirements in the Order, this part, and the CUI Registry, when
feasible.
(6) Agreement content. At a minimum, agreements with non-executive
branch entities must include provisions that state:
(i) Non-executive branch entities must handle CUI in accordance
with the Order, this part, and the CUI Registry;
(ii) Misuse of CUI is subject to penalties established in
applicable laws, regulations, or Government-wide policies; and
(iii) The non-executive branch entity must report any non-
compliance with handling requirements to the disseminating agency using
methods approved by that agency's SAO. When the disseminating agency is
not the designating agency, the disseminating agency must notify the
designating agency.
(7) Exceptions to agreements. Agencies need not enter a written
agreement when they share CUI with the following entities:
(i) Congress, including any committee, subcommittee, joint
committee, joint subcommittee, or office thereof;
(ii) A court of competent jurisdiction, or any individual or entity
when directed by an order of a court of competent jurisdiction or a
Federal administrative law judge (ALJ) appointed under 5 U.S.C. 3501;
(iii) The Comptroller General, in the course of performing duties
of the Government Accountability Office; or
(iv) Individuals or entities, when the agency releases information
to them pursuant to a FOIA or Privacy Act request.
(b) Controls on accessing and disseminating CUI--(1) CUI Basic.
Authorized holders should disseminate and encourage access to CUI Basic
for any recipient when the access meets the requirements set out in
paragraph (a)(1) of this section.
(2) CUI Specified. Authorized holders disseminate and allow access
to CUI Specified as required or permitted by the authorizing laws,
regulations, or Government-wide policies that established that CUI
Specified.
(i) The CUI Registry annotates CUI that requires or permits
Specified controls based on law, regulation, and Government-wide
policy.
(ii) In the absence of specific dissemination restrictions in the
authorizing law, regulation, or Government-wide policy, agencies may
disseminate CUI Specified as they would CUI Basic.
(3) Receipt of CUI. Non-executive branch entities may receive CUI
directly from members of the executive branch or as sub-recipients from
other non-executive branch entities.
(4) Limited dissemination. (i) Agencies may place additional limits
on disseminating CUI only through use of the limited dissemination
controls approved by the CUI EA and published in the CUI Registry.
These limited dissemination controls are separate from any controls
that a CUI Specified authority requires or permits.
(ii) Using limited dissemination controls to unnecessarily restrict
access to CUI is contrary to the goals of the CUI Program. Agencies may
therefore use these controls only when it furthers a lawful Government
purpose, or laws, regulations, or Government-wide policies require or
permit an agency to do so. If an authorized holder has significant
doubt about whether it is appropriate to use a limited dissemination
control, the authorized holder should consult with and follow the
designating agency's policy. If, after consulting the policy,
significant doubt still remains, the authorized holder should not apply
the limited dissemination control.
(iii) Only the designating agency may apply limited dissemination
controls to CUI. Other entities that receive CUI and seek to apply
additional controls must request permission to do so from the
designating agency.
(iv) Authorized holders may apply limited dissemination controls to
any CUI for which they are required or permitted to restrict access by
or to certain entities.
(v) Designating entities may combine approved limited dissemination
controls listed in the CUI Registry to accommodate necessary practices.
(c) Methods of disseminating CUI. (1) Before disseminating CUI,
authorized holders must reasonably expect that all intended recipients
have a lawful Government purpose to receive the CUI. Authorized holders
may then disseminate the CUI by any method that meets the safeguarding
requirements of this part and the CUI Registry and ensures receipt in a
timely manner, unless the laws, regulations, or Government-wide
policies that govern that CUI require otherwise.
(2) To disseminate CUI using systems or components that are subject
to NIST guidelines and publications (e.g., email applications, text
messaging, facsimile, or voicemail), agencies must do so in accordance
with the no-less-than-moderate confidentiality impact value set out in
FIPS PUB 199, FIPS PUB 200, NIST SP 800-53 (incorporated by reference,
see Sec. 2002.2).
Sec. 2002.18 Decontrolling.
(a) Agencies should decontrol as soon as practicable any CUI
designated by their agency that no longer requires safeguarding or
dissemination controls, unless doing so conflicts with the governing
law, regulation, or Government-wide policy.
(b) Agencies may decontrol CUI automatically upon the occurrence of
one of the conditions below, or through an affirmative decision by the
designating agency:
(1) When laws, regulations or Government-wide policies no longer
require its control as CUI and the authorized holder has the
appropriate authority under the authorizing law, regulation, or
Government-wide policy;
(2) When the designating agency decides to release it to the public
by making an affirmative, proactive disclosure;
(3) When the agency discloses it in accordance with an applicable
information access statute, such as the FOIA, or the Privacy Act (when
legally permissible), if the agency incorporates such disclosures into
its public release processes; or
(4) When a pre-determined event or date occurs, as described in
Sec. 2002.20(g), unless law, regulation, or Government-wide policy
requires coordination first.
(c) The designating agency may also decontrol CUI:
(1) In response to a request by an authorized holder to decontrol
it; or
(2) Concurrently with any declassification action under Executive
Order 13526 or any predecessor or successor order, as long as the
information also appropriately qualifies for decontrol as CUI.
(d) An agency may designate in its CUI policies which agency
personnel it authorizes to decontrol CUI, consistent with law,
regulation, and Government-wide policy.
[[Page 63343]]
(e) Decontrolling CUI relieves authorized holders from requirements
to handle the information under the CUI Program, but does not
constitute authorization for public release.
(f) Authorized holders must clearly indicate that CUI is no longer
controlled when restating, paraphrasing, re-using, releasing to the
public, or donating it to a private institution. Otherwise, authorized
holders do not have to mark, review, or take other actions to indicate
the CUI is no longer controlled.
(1) Agency policy may allow authorized holders to remove or strike
through only those CUI markings on the first or cover page of the
decontrolled CUI and markings on the first page of any attachments that
contain CUI.
(2) If an authorized holder uses the decontrolled CUI in a newly
created document, the authorized holder must remove all CUI markings
for the decontrolled information.
(g) Once decontrolled, any public release of information that was
formerly CUI must be in accordance with applicable law and agency
policies on the public release of information.
(h) Authorized holders may request that the designating agency
decontrol certain CUI.
(i) If an authorized holder publicly releases CUI in accordance
with the designating agency's authorized procedures, the release
constitutes decontrol of the information.
(j) Unauthorized disclosure of CUI does not constitute decontrol.
(k) Agencies must not decontrol CUI in an attempt to conceal, or to
otherwise circumvent accountability for, an identified unauthorized
disclosure.
(l) When laws, regulations, or Government-wide policies require
specific decontrol procedures, authorized holders must follow such
requirements.
(m) The Archivist of the United States may decontrol records
transferred to the National Archives in accordance with Sec. 2002.34,
absent a specific agreement otherwise with the designating agency. The
Archivist decontrols records to facilitate public access pursuant to 44
U.S.C. 2108 and NARA's regulations at 36 CFR parts 1235, 1250, and
1256.
Sec. 2002.20 Marking.
(a) General marking policy. (1) CUI markings listed in the CUI
Registry are the only markings authorized to designate unclassified
information requiring safeguarding or dissemination controls. Agencies
and authorized holders must, in accordance with the implementation
timelines established for the agency by the CUI EA:
(i) Discontinue all use of legacy or other markings not permitted
by this part or included in the CUI Registry; and
(ii) Uniformly and conspicuously apply CUI markings to all CUI
exclusively in accordance with the part and the CUI Registry, unless
this part or the CUI EA otherwise specifically permits. See paragraph
(a)(6) of this section and Sec. Sec. 2002.38, Waivers of CUI
requirements, and 2002.36, Legacy materials, for more information.
(2) Agencies may not modify CUI Program markings or deviate from
the method of use prescribed by the CUI EA (in this part and the CUI
Registry) in an effort to accommodate existing agency marking
practices, except in circumstances approved by the CUI EA. The CUI
Program prohibits using markings or practices not included in this part
or the CUI Registry. If legacy markings remain on information, the
legacy markings are void and no longer indicate that the information is
protected or that it is or qualifies as CUI.
(3) An agency receiving an incorrectly marked document should
notify either the disseminating entity or the designating agency, and
request a properly marked document.
(4) The designating agency determines that the information
qualifies for CUI status and applies the appropriate CUI marking when
it designates that information as CUI.
(5) If an agency has information within its control that qualifies
as CUI but has not been previously marked as CUI for any reason (for
example, pursuant to an agency internal marking waiver as referenced in
Sec. 2002.38 (a)), the agency must mark it as CUI prior to
disseminating it.
(6) Agencies must not mark information as CUI to conceal
illegality, negligence, ineptitude, or other disreputable circumstances
embarrassing to any person, any agency, the Federal Government, or any
of their partners, or for any purpose other than to adhere to the law,
regulation, or Government-wide policy authorizing the control.
(7) The lack of a CUI marking on information that qualifies as CUI
does not exempt the authorized holder from abiding by applicable
handling requirements as described in the Order, this part, and the CUI
Registry.
(8) When it is impractical for an agency to individually mark CUI
due to quantity or nature of the information, or when an agency has
issued a limited CUI marking waiver, authorized holders must make
recipients aware of the information's CUI status using an alternate
marking method that is readily apparent (for example, through user
access agreements, a computer system digital splash screen (e.g.,
alerts that flash up when accessing the system), or signs in storage
areas or on containers).
(b) The CUI banner marking. Designators of CUI must mark all CUI
with a CUI banner marking, which may include up to three elements:
(1) The CUI control marking (mandatory). (i) The CUI control
marking may consist of either the word ``CONTROLLED'' or the acronym
``CUI,'' at the designator's discretion. Agencies may specify in their
CUI policy that employees must use one or the other.
(ii) The CUI Registry contains additional, specific guidance and
instructions for using the CUI control marking.
(iii) Authorized holders who designate CUI may not use alternative
markings to identify or mark items as CUI.
(2) CUI category or subcategory markings (mandatory for CUI
Specified). (i) The CUI Registry lists the category and subcategory
markings, which align with the CUI's governing category or subcategory.
(ii) Although the CUI Program does not require agencies to use
category or subcategory markings on CUI Basic, an agency's CUI SAO may
establish agency policy that mandates use of CUI category or
subcategory markings on CUI Basic.
(iii) However, authorized holders must include in the CUI banner
marking all CUI Specified category or subcategory markings that pertain
to the information in the document. If law, regulation, or Government-
wide policy requires specific marking, disseminating, informing,
distribution limitation, or warning statements, agencies must use those
indicators as those authorities require or permit. However, agencies
must not include these additional indicators in the CUI banner marking
or CUI portion markings.
(iv) The CUI Registry contains additional, specific guidance and
instructions for using CUI category and subcategory markings.
(3) Limited dissemination control markings. (i) CUI limited
dissemination control markings align with limited dissemination
controls established by the CUI EA under Sec. 2002.16(b)(4).
(ii) Agency policy should include specific criteria establishing
which authorized holders may apply limited dissemination controls and
their corresponding markings, and when. Such agency policy must align
with the requirements in Sec. 2002.16(b)(4).
[[Page 63344]]
(iii) The CUI Registry contains additional, specific guidance and
instructions for using limited dissemination control markings.
(c) Using the CUI banner marking. (1) The content of the CUI banner
marking must apply to the whole document (i.e., inclusive of all CUI
within the document) and must be the same on each page of the document
that includes CUI.
(2) The CUI Registry contains additional, specific guidelines and
instructions for using the CUI banner marking.
(d) CUI designation indicator (mandatory). (1) All documents
containing CUI must carry an indicator of who designated the CUI within
it. This must include the designator's agency (at a minimum) and may
take any form that identifies the designating agency, including
letterhead or other standard agency indicators, or adding a
``Controlled by'' line (for example, ``Controlled by: Division 5,
Department of Good Works.'').
(2) The designation indicator must be readily apparent to
authorized holders and may appear only on the first page or cover. The
CUI Registry contains additional, specific guidance and requirements
for using CUI designation indicators.
(e) CUI decontrolling indicators. (1) Where feasible, designating
agencies must include a specific decontrolling date or event with all
CUI. Agencies may do so in any manner that makes the decontrolling
schedule readily apparent to an authorized holder.
(2) Authorized holders may consider specific items of CUI as
decontrolled as of the date indicated, requiring no further review by,
or communication with, the designator.
(3) If using a specific event after which the CUI is considered
decontrolled:
(i) The event must be foreseeable and verifiable by any authorized
holder (e.g., not based on or requiring special access or knowledge);
and
(ii) The designator should include point of contact and preferred
method of contact information in the decontrol indicator when using
this method, to allow authorized holders to verify that a specified
event has occurred.
(4) The CUI Registry contains additional, specific guidance and
instructions for using limited dissemination control markings.
(f) Portion marking CUI. (1) Agencies are permitted and encouraged
to portion mark all CUI, to facilitate information sharing and proper
handling.
(2) Authorized holders who designate CUI may mark CUI only with
portion markings approved by the CUI EA and listed in the CUI Registry.
(3) CUI portion markings consist of the following elements:
(i) The CUI control marking, which must be the acronym ``CUI'';
(ii) CUI category/subcategory portion markings (if required or
permitted); and
(iii) CUI limited dissemination control portion markings (if
required).
(4) When using portion markings:
(i) CUI category and subcategory portion markings are optional for
CUI Basic. Agencies may manage their use by means of agency policy.
(ii) Authorized holders permitted to designate CUI must portion
mark both CUI and uncontrolled unclassified portions.
(5) In cases where portions consist of several segments, such as
paragraphs, sub-paragraphs, bullets, and sub-bullets, and the control
level is the same throughout, designators of CUI may place a single
portion marking at the beginning of the primary paragraph or bullet.
However, if the portion includes different CUI categories or
subcategories, or if the portion includes some CUI and some
uncontrolled unclassified information, authorized holders should
portion mark all segments separately to avoid improper control of any
one segment.
(6) Each portion must reflect the control level of only that
individual portion. If the information contained in a sub-paragraph or
sub-bullet is a different CUI category or subcategory from its parent
paragraph or parent bullet, this does not make the parent paragraph or
parent bullet controlled at that same level.
(7) The CUI Registry contains additional, specific guidance and
instructions for using CUI portion markings and uncontrolled
unclassified portion markings.
(g) Commingling CUI markings with Classified National Security
Information (CNSI). When authorized holders include CUI in documents
that also contain CNSI, the decontrolling provisions of the Order and
this part apply only to portions marked as CUI. In addition, authorized
holders must:
(1) Portion mark all CUI to ensure that authorized holders can
distinguish CUI portions from portions containing classified and
uncontrolled unclassified information;
(2) Include the CUI control marking, CUI Specified category and
subcategory markings, and limited dissemination control markings in an
overall banner marking; and
(3) Follow the requirements of the Order and this part, and
instructions in the CUI Registry on marking CUI when commingled with
CNSI.
(h) Commingling restricted data (RD) and formerly restricted data
(FRD) with CUI. (1) To the extent possible, avoid commingling RD or FRD
with CUI in the same document. When it is not practicable to avoid such
commingling, follow the marking requirements in the Order and this
part, and instructions in the CUI Registry, as well as the marking
requirements in 10 CFR part 1045, Nuclear Classification and
Declassification.
(2) Follow the requirements of 10 CFR part 1045 when extracting an
RD or FRD portion for use in a new document.
(3) Follow the requirements of the Order and this part, and
instructions in the CUI Registry if extracting a CUI portion for use in
a new document.
(4) The lack of declassification instructions for RD or FRD
portions does not eliminate the requirement to process commingled
documents for declassification in accordance with the Atomic Energy
Act, or 10 CFR part 1045.
(i) Packages and parcels containing CUI. (1) Address packages that
contain CUI for delivery only to a specific recipient.
(2) Do not put CUI markings on the outside of an envelope or
package, or otherwise indicate on the outside that the item contains
CUI.
(j) Transmittal document marking requirements. (1) When a
transmittal document accompanies CUI, the transmittal document must
include a CUI marking on its face (``CONTROLLED'' or ``CUI''),
indicating that CUI is attached or enclosed.
(2) The transmittal document must also include conspicuously on its
face the following or similar instructions, as appropriate:
(i) ``When enclosure is removed, this document is Uncontrolled
Unclassified Information''; or
(ii) ``When enclosure is removed, this document is (control level);
upon removal, this document does not contain CUI.''
(k) Working papers. Mark working papers containing CUI the same way
as the finished product containing CUI would be marked and as required
for any CUI contained within them. Handle them in accordance with this
part and the CUI Registry.
(l) Using supplemental administrative markings with CUI. (1) Agency
heads may authorize the use of supplemental administrative markings
(e.g. ``Pre-decisional,'' ``Deliberative,'' ``Draft'') for use with
CUI.
(2) Agency heads may not authorize the use of supplemental
administrative
[[Page 63345]]
markings to establish safeguarding requirements or disseminating
restrictions, or to designate the information as CUI. However, agencies
may use these markings to inform recipients of the non-final status of
documents under development to avoid confusion and maintain the
integrity of an agency's decision-making process.
(3) Agencies must detail requirements for using supplemental
administrative markings with CUI in agency policy that is available to
anyone who may come into possession of CUI with these markings.
(4) Authorized holders must not incorporate or include supplemental
administrative markings in the CUI marking scheme detailed in this part
and the CUI Registry.
(5) Supplemental administrative markings must not duplicate any CUI
marking described in this part or the CUI Registry.
(m) Unmarked CUI. Treat unmarked information that qualifies as CUI
as described in the Order, Sec. 2002.8(c), and the CUI Registry.
Sec. 2002.22 Limitations on applicability of agency CUI policies.
(a) Agency CUI policies do not apply to entities outside that
agency unless a law, regulation, or Government-wide policy requires or
permits the controls contained in the agency policy to do so, and the
CUI Registry lists that law, regulation, or Government-wide policy as a
CUI authority.
(b) Agencies may not include additional requirements or
restrictions on handling CUI other than those permitted in the Order,
this part, or the CUI Registry when entering into agreements.
Sec. 2002.24 Agency self-inspection program.
(a) The agency must establish a self-inspection program pursuant to
the requirement in Sec. 2002.8(b)(4).
(b) The self-inspection program must include:
(1) At least annual review and assessment of the agency's CUI
program. The agency head or CUI SAO should determine any greater
frequency based on program needs and the degree to which the agency
engages in designating CUI;
(2) Self-inspection methods, reviews, and assessments that serve to
evaluate program effectiveness, measure the level of compliance, and
monitor the progress of CUI implementation;
(3) Formats for documenting self-inspections and recording findings
when not prescribed by the CUI EA;
(4) Procedures by which to integrate lessons learned and best
practices arising from reviews and assessments into operational
policies, procedures, and training;
(5) A process for resolving deficiencies and taking corrective
actions; and
(6) Analysis and conclusions from the self-inspection program,
documented on an annual basis and as requested by the CUI EA.
Subpart C--CUI Program Management
Sec. 2002.30 Education and training.
(a) The CUI SAO must establish and implement an agency training
policy. At a minimum, the training policy must address the means,
methods, and frequency of agency CUI training.
(b) Agency training policy must ensure that personnel who have
access to CUI receive training on designating CUI, relevant CUI
categories and subcategories, the CUI Registry, associated markings,
and applicable safeguarding, disseminating, and decontrolling policies
and procedures.
(c) Agencies must train employees on these matters when the
employees first begin working for the agency and at least once every
two years thereafter.
(d) The CUI EA reviews agency training materials to ensure
consistency and compliance with the Order, this part, and the CUI
Registry.
Sec. 2002.32 CUI cover sheets.
(a) Agencies may use cover sheets for CUI. If an agency chooses to
use cover sheets, it must use CUI EA-approved cover sheets, which
agencies can find on the CUI Registry.
(b) Agencies may use cover sheets to identify CUI, alert observers
that CUI is present from a distance, and serve as a shield to protect
the attached CUI from inadvertent disclosure.
Sec. 2002.34 Transferring records.
(a) When feasible, agencies must decontrol records containing CUI
prior to transferring them to NARA.
(b) When an agency cannot decontrol records before transferring
them to NARA, the agency must:
(1) Indicate on a Transfer Request (TR) in NARA's Electronic
Records Archives (ERA) or on an SF 258 paper transfer form, that the
records should continue to be controlled as CUI (subject to NARA's
regulations on transfer, public availability, and access; see 36 CFR
parts 1235, 1250, and 1256); and
(2) For hard copy transfer, do not place a CUI marking on the
outside of the container.
(c) If the agency does not indicate the status as CUI on the TR or
SF 258, NARA may assume the agency decontrolled the information prior
to transfer, regardless of any CUI markings on the actual records.
Sec. 2002.36 Legacy materials.
(a) Agencies must review documents created prior to November 14,
2016 and re-mark any that contain information that qualifies as CUI in
accordance with the Order, this part, and the CUI Registry. When
agencies do not individually re-mark legacy material that qualifies as
CUI, agencies must use an alternate permitted marking method (see Sec.
2002.20(a)(8)).
(b) When the CUI SAO deems re-marking legacy documents to be
excessively burdensome, the CUI SAO may grant a legacy material marking
waiver under Sec. 2002.38(b).
(c) When the agency re-uses any information from legacy documents
that qualifies as CUI, whether the documents have obsolete control
markings or not, the agency must designate the newly-created document
(or other re-use) as CUI and mark it accordingly.
Sec. 2002.38 Waivers of CUI requirements.
(a) Limited CUI marking waivers within the agency. When an agency
designates information as CUI but determines that marking it as CUI is
excessively burdensome, an agency's CUI SAO may approve waivers of all
or some of the CUI marking requirements while that CUI remains within
agency control.
(b) Limited legacy material marking waivers within the agency. (1)
In situations in which the agency has a substantial amount of stored
information with legacy markings, and removing legacy markings and
designating or re-marking it as CUI would be excessively burdensome,
the agency's CUI SAO may approve a waiver of these requirements for
some or all of that information while it remains under agency control.
(2) When an authorized holder re-uses any legacy information or
information derived from legacy documents that qualifies as CUI, they
must remove or redact legacy markings and designate or re-mark the
information as CUI, even if the information is under a legacy material
marking waiver prior to re-use.
(c) Exigent circumstances waivers. (1) In exigent circumstances,
the agency head or the CUI SAO may waive the provisions and
requirements established in this part or the CUI Registry for any CUI
while it is within the agency's possession or control, unless
specifically prohibited by applicable laws, regulations, or Government-
wide policies.
[[Page 63346]]
(2) Exigent circumstances waivers may apply when an agency shares
the information with other agencies or non-Federal entities. In such
cases, the authorized holders must make recipients aware of the CUI
status of any disseminated information.
(d) For all waivers. (1) The CUI SAO must still ensure that the
agency appropriately safeguards and disseminates the CUI. See Sec.
2002.20(a)(7);
(2) The CUI SAO must detail in each waiver the alternate protection
methods the agency will employ to ensure protection of CUI subject to
the waiver;
(3) All marking waivers apply to CUI subject to the waiver only
while that agency continues to possess that CUI. No marking waiver may
accompany CUI when an authorized holder disseminates it outside that
agency;
(4) Authorized holders must uniformly and conspicuously apply CUI
markings to all CUI prior to disseminating it outside the agency unless
otherwise specifically permitted by the CUI EA; and
(5) When the circumstances requiring the waiver end, the CUI SAO
must reinstitute the requirements for all CUI subject to the waiver
without delay.
(e) The CUI SAO must:
(1) Retain a record of each waiver;
(2) Include a description of all current waivers and waivers issued
during the preceding year in the annual report to the CUI EA, along
with the rationale for each waiver and the alternate steps the agency
takes to ensure sufficient protection of CUI; and
(3) Notify authorized recipients and the public of these waivers.
Sec. 2002.44 CUI and disclosure statutes.
(a) General policy. The fact that an agency designates certain
information as CUI does not affect an agency's or employee's
determinations pursuant to any law that requires the agency or the
employee to disclose that information or permits them to do so as a
matter of discretion. The agency or employee must make such
determinations according to the criteria set out in the governing law,
not on the basis of the information's status as CUI.
(b) CUI and the Freedom of Information Act (FOIA). Agencies must
not cite the FOIA as a CUI safeguarding or disseminating control
authority for CUI. When an agency is determining whether to disclose
information in response to a FOIA request, the agency must base its
decision on the content of the information and applicability of any
FOIA statutory exemptions, regardless of whether an agency designates
or marks the information as CUI. There may be circumstances in which an
agency may disclose CUI to an individual or entity, including through a
FOIA response, but such disclosure does not always constitute public
release as defined in this part. Although disclosed via a FOIA
response, the agency may still need to control the CUI while the agency
continues to hold the information, despite the disclosure, unless the
agency otherwise decontrols it (or the agency includes in its policies
that FOIA disclosure always results in public release and the CUI does
not otherwise have another legal requirement for its continued
control).
(c) CUI and the Whistleblower Protection Act. This part does not
change or affect existing legal protections for whistleblowers. The
fact that an agency designates or marks certain information as CUI does
not determine whether an individual may lawfully disclose that
information under a law or other authority, and does not preempt or
otherwise affect whistleblower legal protections provided by law,
regulation, or executive order or directive.
Sec. 2002.46 CUI and the Privacy Act.
The fact that records are subject to the Privacy Act of 1974 does
not mean that agencies must mark them as CUI. Consult agency policies
or guidance to determine which records may be subject to the Privacy
Act; consult the CUI Registry to determine which privacy information
must be marked as CUI. Information contained in Privacy Act systems of
records may also be subject to controls under other CUI categories or
subcategories and the agency may need to mark that information as CUI
for that reason. In addition, when determining whether the agency must
protect certain information under the Privacy Act, or whether the
Privacy Act allows the agency to release the information to an
individual, the agency must base its decision on the content of the
information and the Privacy Act's criteria, regardless of whether an
agency designates or marks the information as CUI.
Sec. 2002.48 CUI and the Administrative Procedure Act (APA).
Nothing in the regulations in this part alters the Administrative
Procedure Act (APA) or the powers of Federal administrative law judges
(ALJs) appointed thereunder, including the power to determine
confidentiality of information in proceedings over which they preside.
Nor do the regulations in this part impose requirements concerning the
manner in which ALJs designate, disseminate, control access to,
decontrol, or mark such information, or make such determinations.
Sec. 2002.50 Challenges to designation of information as CUI.
(a) Authorized holders of CUI who, in good faith, believe that its
designation as CUI is improper or incorrect, or who believe they have
received unmarked CUI, should notify the disseminating agency of this
belief. When the disseminating agency is not the designating agency,
the disseminating agency must notify the designating agency.
(b) If the information at issue is involved in Government
litigation, or the challenge to its designation or marking as CUI
arises as part of the litigation, the issue of whether the challenger
may access the information will be addressed via the litigation process
instead of by the agency CUI program. Challengers should nonetheless
notify the agency of the issue through the agency process described
below, and include its litigation connection.
(c) CUI SAOs must create a process within their agency to accept
and manage challenges to CUI status. At a minimum, this process must
include a timely response to the challenger that:
(1) Acknowledges receipt of the challenge;
(2) States an expected timetable for response to the challenger;
(3) Provides an opportunity for the challenger to define a
rationale for belief that the CUI in question is inappropriately
designated;
(4) Gives contact information for the official making the agency's
decision in this matter; and
(5) Ensures that challengers who are authorized holders have the
option of bringing such challenges anonymously, and that challengers
are not subject to retribution for bringing such challenges.
(d) Until the challenge is resolved, authorized holders should
continue to safeguard and disseminate the challenged CUI at the control
level indicated in the markings.
(e) If a challenging party disagrees with the response to a
challenge, that party may use the Dispute Resolution procedures
described in Sec. 2002.52.
Sec. 2002.52 Dispute resolution for agencies.
(a) When laws, regulations, or Government-wide policies governing
the CUI involved in a dispute set out specific procedures, processes,
and requirements for resolving disputes, agencies must follow those
processes for that CUI. This includes submitting the dispute to someone
other than the CUI EA for resolution if the authority so
[[Page 63347]]
requires. If the CUI at issue is involved in litigation, the agency
should refer the issue to the appropriate attorneys for resolution
through the litigation process.
(b) When laws, regulations, and Government-wide policies governing
the CUI do not set out specific procedures, processes, or requirements
for CUI dispute resolution (or the information is not involved in
litigation), this part governs.
(c) All parties to a dispute arising from implementing or
interpreting the Order, this part, or the CUI Registry should make
every effort to resolve the dispute expeditiously. Parties should
address disputes within a reasonable, mutually acceptable time period,
taking into consideration the parties' mission, sharing, and protection
requirements.
(d) If parties to a dispute cannot reach a mutually acceptable
resolution, either party may refer the matter to the CUI EA.
(e) The CUI EA acts as the impartial arbiter of the dispute and has
the authority to render a decision on the dispute after consulting with
all affected parties. If a party to the dispute is also a member of the
Intelligence Community, the CUI EA must consult with the Office of the
Director of National Intelligence when the CUI EA receives the dispute
for resolution.
(f) Until the dispute is resolved, authorized holders should
continue to safeguard and disseminate any disputed CUI at the control
level indicated in the markings, or as directed by the CUI EA if the
information is unmarked.
(g) Parties may appeal the CUI EA's decision through the Director
of OMB to the President for resolution, pursuant to section 4(e) of the
Order. If one of the parties to the dispute is the CUI EA and the
parties cannot resolve the dispute under paragraph (c) of this section,
the parties may likewise refer the matter to OMB for resolution.
Sec. 2002.54 Misuse of CUI.
(a) The CUI SAO must establish agency processes and criteria for
reporting and investigating misuse of CUI.
(b) The CUI EA reports findings on any incident involving misuse of
CUI to the offending agency's CUI SAO or CUI Program manager for
action, as appropriate.
Sec. 2002.56 Sanctions for misuse of CUI.
(a) To the extent that agency heads are otherwise authorized to
take administrative action against agency personnel who misuse CUI,
agency CUI policy governing misuse should reflect that authority.
(b) Where laws, regulations, or Government-wide policies governing
certain categories or subcategories of CUI specifically establish
sanctions, agencies must adhere to such sanctions.
Appendix A to Part 2002--Acronyms
CNSI--Classified National Security Information
Council or the Council--The CUI Advisory Council
CUI--Controlled unclassified information
EA--The CUI Executive Agent (which is ISOO)
FOIA--Freedom of Information Act
FRD--Formerly Restricted Data
ISOO--Information Security Oversight Office at the National Archives
and Records Administration
NARA--National Archives and Records Administration
OMB--Office of Management and Budget within the Office of
Information and Regulatory Affairs of the Executive Office of the
President
PM--the agency's CUI program manager
RD--Restricted Data
SAO--the senior agency official [for CUI]
TR--Transfer Request in NARA's Electronic Records Archives (ERA)
Dated: August 30, 2016.
David S. Ferriero,
Archivist of the United States.
[FR Doc. 2016-21665 Filed 9-13-16; 8:45 am]
BILLING CODE 7515-01-P