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[Federal Register Volume 78, Number 204 (Tuesday, October 22, 2013)]
[Rules and Regulations]
[Pages 62430-62438]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-24256]

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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 236

[DOD-2009-OS-0183]
RIN 0790-AI60

Department of Defense (DoD)--Defense Industrial Base (DIB) 
Voluntary Cyber Security and Information Assurance (CS/IA) Activities

AGENCY: Office of the DoD Chief Information Officer, DoD.

ACTION: Final rule.

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SUMMARY: This final rule responds to public comments regarding the 
establishment of the DIB CS/IA program, a voluntary cyber security 
information sharing program between DoD and eligible DIB companies. The 
program enhances and supplements DIB participants' capabilities to 
safeguard DoD information that resides on, or transits, DIB 
unclassified information systems.

DATES: Effective Date: This rule is effective November 21, 2013.

FOR FURTHER INFORMATION CONTACT: Mr. Dan Prieto at 703-571-5911, or the 
DIB Cyber Security and Information Assurance Program Office: (703) 604-
3167, toll free (855) 363-4227, email osd.ncr.dod-cio.mbx.dib-cs-ia-program-registration@mail.mil.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    This final rule responds to public comments regarding the 
establishment of the DIB CS/IA program, a voluntary

[[Page 62431]]

cyber security information sharing activity between DoD and eligible 
DIB companies to enhance and supplement DIB participants' capabilities 
to safeguard DoD information that resides on, or transits, DIB 
unclassified information systems. The program is codified at 32 CFR 
Part 236 and implements DoD statutory authorities to establish programs 
and activities to protect DoD information and DoD information systems, 
including information and information systems operated and maintained 
by contractors or others in support of DoD activities (see 10 U.S.C. 
2224 and the Federal Information Security Management Act (FISMA), 
codified at 44 U.S.C. 3541 et seq.). It also fulfills important 
elements of DoD's critical infrastructure protection responsibilities, 
as the sector specific agency for the DIB sector see (Presidential 
Policy Directive 21 (PPD-21), ``Critical Infrastructure Security and 
Resilience''). This program allows eligible DIB companies to receive 
U.S. Government (USG) threat information and to share information about 
network intrusions that could compromise DoD programs and missions. In 
addition, the program permits DIB companies and DoD to assess and 
reduce damage to DoD programs and missions when DoD information is 
potentially compromised. Furthermore, the information sharing 
arrangements between the DoD and each participating DIB company that 
implement the requirements of this are memorialized in a standardized 
bilateral agreement, known as a Framework Agreement (FA), signed by the 
participating DIB company and the Government.
    The rule also provides the eligibility requirements for a company 
to participate in the DIB CS/IA program.
    Costs for DIB participants include obtaining access to DoD's secure 
voice and data transmission systems supporting the DIB CS/IA program 
and acquiring DoD approved medium assurance certificates. There also 
are costs associated with the collection requirements for providing 
point of contact information and cyber incident reporting. Government 
costs include onboarding new companies and collecting and analyzing 
cyber incidents from DIB participants.
    A foundational element of this bilateral information sharing model 
is the recognition that the information being shared between the 
parties includes extremely sensitive nonpublic information, which must 
be protected against unauthorized uses and disclosures in order to 
preserve the integrity of the program.
    For additional information regarding the Government's safeguarding 
of information received from the DIB companies, with specific focus on 
PII, see the Privacy Impact Assessment (PIA) for the DIB CS/IA Program 
(http://dodcio.defense.gov/Portals/0/Documents/DIB%20CS-IA%20PIA_FINAL_signed_30jun2011_VMSS_GGMR_RC.pdf).
    In addition, this rule and program are intended to be consistent 
and coordinated with, and updated as necessary to ensure consistency 
with and support for, other federal activities related to the handling 
and safeguarding of controlled unclassified information, such as those 
that are being led by the National Archives and Records Administration 
pursuant to Executive Order 13556 ``Controlled Unclassified 
Information'' (November 4, 2010) (see http://www.archives.gov/cui/).
    This rule is not intended to implement the new requirements from 
section 941 of the National Defense Authorization Act for Fiscal Year 
2013.

Comments

    DoD published an interim final rule on May 11, 2012 (77 FR 27615). 
Fifty comments from twelve respondents were received and reviewed by 
the USG.
    Comment: Four comments questioned the eligibility and scope of the 
program, to include recommending that the program remain voluntary, and 
questioning whether the program was ``under inclusive or overly 
restrictive because the program is only available to companies that 
have a Facility Security Clearance and a Communications Security 
account.''
    Response: The DIB CS/IA program will remain a voluntary program to 
enhance and supplement DIB participants' capabilities to safeguard DoD 
information that resides on, or transits, DIB unclassified information 
systems. The eligibility requirements for the program (Sec.  236.7) are 
based on security requirements to ensure the protection of Government 
furnished information (GFI) at DIB companies in possession of DoD 
information, as described in the definition for ``covered defense 
information,'' (Sec.  236.2(c)). No change is made to the rule.
    Comment: One comment asserted that the rule should not have been 
published as an interim rule.
    Response: In light of the growing cyber threat activity against DoD 
information and DIB information systems and the associated risk to U.S. 
national security, the Government determined it appropriate to issue an 
interim rule. This allowed eligible DIB companies to receive cyber 
threat information, without delay in order to enhance their capability 
to defend against ongoing and continuous cyber threats and to safeguard 
DoD information. No change is made to the rule.
    Comment: One comment asserted that the Framework Agreement (FA) 
should be available for public review to evaluate the estimates of 
projected paperwork for participants.
    Response: The Framework Agreement is a representation of the 
federal rule converted into an agreement format for implementation of 
the program. In addition, all information required to evaluate the 
projected cost and time for the information collection requirements is 
available in the rule. No change is made to the rule.
    Comment: One comment asserted that transparency into public-private 
cyber security programs is crucial to ensure that federal agencies 
respect privacy rights and comply with their obligations.
    Response: Extensive coordination across the Government has ensured 
that the privacy rights of U.S. citizens are protected under the DIB 
CS/IA voluntary program, including developing a comprehensive Privacy 
Impact Assessment (PIA) for the DIB CS/IA program. The PIA is 
publically available at: http://dodcio.defense.gov/Portals/0/Documents/DIB%20CS-IA%20PIA_FINAL_signed_30jun2011_VMSS_GGMR_RC.pdf. No 
change is made to the rule.
    Comment: One comment asserted that the Defense Department opted to 
issue a rule even though no law has been passed by Congress regarding 
Government-industry cyber security activities and that rulemaking 
should come after Congress concludes its legislative efforts.
    Response: The rule implements DoD statutory authorities and 
responsibilities to establish a program to protect DoD information and 
information systems, including information systems operated and 
maintained by contractors or others in support of DoD activities (see 
10 U.S.C. 2224; and the Federal Information Security Management Act 
(FISMA), codified at 44 U.S.C. 3541 et seq.). No change is made to the 
rule.
    Comment: Three comments asserted the rule should create an 
oversight and accountability structure that includes public, 
congressional, and executive branch reporting. One comment recommended 
using DHS oversight procedures as a model to ensure the program's 
compliance with regulations and relevant guidelines.
    Response: The DIB CS/IA program is subject to numerous procedures,

[[Page 62432]]

requirements, and oversight to ensure compliance with DoD and national 
policies for collecting, handling, safeguarding, and sharing sensitive 
information with non-Government organizations in accordance with DoD 
Directive 5500.1, DoD Privacy Program and 5400.11--Regulation, 
Department of Defense Privacy Program, which proscribes uniform 
procedures for the DoD Privacy Program. For additional information 
regarding the Government's safeguarding of information received from 
the DIB companies, with specific focus on PII, see the Privacy Impact 
Assessment (PIA) for the DIB CS/IA Program (http://DoDcio.defense.gov/
Portals/0/Documents/DIB%20CS-IA%20PIA--FINAL--signed--30jun2011--VMSS--
GGMR--RC.pdf). In addition, DoD annually reports to Congress on the 
progress of DoD in defending the DoD and the Defense Industrial Base 
from cyber events. No additional oversight is warranted at this time. 
No change is made to the rule.
    Comment: One comment recommended distinguishing between classified 
and unclassified GFI, and that classified GFI should be handled per the 
NISPOM.
    Response: As stated in Sec.  236.4(f) of the rule, GFI will be 
issued via both unclassified and classified means, and that handling 
and safeguarding of classified GFI shall be in compliance with the 
National Industrial Security Program Operating Manual (NISPOM) (DoD 
5220.22-M). No change is made to the rule.
    Comment: One comment recommended not to apply sharing limitations 
under the rule to non-sensitive GFI.
    Response: As defined in the rule at Sec.  236.2(j), Government 
Furnished Information (GFI) means ``information provided by the 
Government under the voluntary DIB CS/IA program, including but not 
limited to cyber threat information and information assurance 
practices.'' GFI is typically nonpublic information that is sensitive 
based either on the content of the information itself or the context in 
which the information is relevant (e.g., cyber threat information). 
Accordingly, the handling requirements applicable to GFI are designed 
to protect sensitive information. No change is made to the rule.
    Comment: Three comments requested a narrow interpretation of the 
Freedom of Information Act (FOIA) exemptions, and one asked that the 
records not be exempted under Privacy Act provisions.
    Response: As recognized in the Background section of the Interim 
Rule (77 FR 27615, at 27616), a foundational element of this program is 
the recognition that the information being shared includes extremely 
sensitive nonpublic information. This includes the GFI shared by the 
Government, as well as the information regarding cyber incidents that 
is shared by the DIB participants, which they typically treat as 
extremely sensitive proprietary, commercial, or operational information 
for which release and dissemination is tightly controlled. Accordingly, 
as stated in Sec.  236.6 of the rule, confidentiality of such sensitive 
information exchanged under this program will be protected to the 
maximum extent authorized by law, regulation, and policy. This includes 
taking appropriate measures, including the use of any applicable 
exemptions under FOIA or the Privacy Act, to safeguard against 
unauthorized public disclosure and in full compliance with applicable 
laws, regulations, policies, and procedures (see Sec.  236.2(c)(2)(vii) 
and Sec.  236.5(h)). No change is made to the rule.
    Comment: Four comments addressed DoD working with private 
contractors without appropriate safeguards for privacy rights, 
maintaining a database on law abiding Americans and subverting due 
process and gathering information about an unsuspecting populace.
    Response: The DIB CS/IA program focuses on sharing cyber security 
related information and minimizes the collection of information from 
participating DIB companies, seeking only the information that is 
necessary to support this cyber security program. The PIA for the DIB 
CS/IA program details the comprehensive processes to safeguard PII. The 
operational implementation of the DIB CS/IA program receives PII from 
DIB Companies in two ways: (i) For program administration and 
management purposes, the DIB companies share with DoD the typical 
business contact information for its personnel that are serving as 
company points of contact for the program activities or specific cyber 
incidents; and (ii) for cyber incident response and analysis purposes, 
DIB companies may share PII as a necessary part of the information that 
they have determined is relevant to cyber incident response, analysis, 
or damage assessment. In addition, DIB companies are prohibited from 
sharing any information unless they have determined that the 
information has been lawfully collected and is authorized to be shared 
with DoD. The DIB CS/IA Program restricts access to such PII and 
attribution information only to those authorized personnel who have a 
need-to-know such information for duties in support of the DIB CS/IA 
Program and are subject to strict nondisclosure obligations. The PII is 
only maintained as long as necessary for DIB CS/IA Program activities, 
and is managed and disposed of in accordance with applicable records 
management requirements. No change is made to the rule.
    Comment: One comment stated that the rule allows a number of 
private companies to sell and share private citizens' data including to 
other Governments, including ``any data that `transits' any government 
system.''
    Response: The voluntary DIB CS/IA program does not authorize 
participating companies to sell any information, to anyone, in any 
context whatsoever. The program also does not authorize DIB companies 
to share any information with anyone other than program participants. 
The program does not permit the sharing of information with any 
governments other than authorized U.S. Government participants. No 
change is made to the rule.
    Comment: One comment stated that the rule does not properly ensure 
implementation of the new Controlled Unclassified Information (CUI) 
framework from Executive Order 13556 into its treatment of covered 
defense information.
    Response: As stated in the Background Section above, the program is 
designed to ensure consistency with and support for, federal activities 
related to the handling and safeguarding of controlled unclassified 
information that are being led by the National Archives and Records 
Administration pursuant to Executive Order 13556. As CUI implementation 
evolves in the Government, the rule will be modified as necessary to 
ensure compliance. No change is made to the rule.
    Comment: Two comments stated that the interim final rule lacks 
sufficient safeguards to limit the sharing and use of personally 
identifiable information and content of private communications.
    Response: The program utilizes significant handling and sharing 
restrictions to ensure appropriate protections for any and all 
sensitive information managed by the program, including but not limited 
to PII. These safeguards are addressed in more detail in the PIA, which 
will be updated appropriately as the program evolves. No change is made 
to the rule.
    Comment: Three comments recommended that the rule should require 
companies to remove sensitive information (e.g., PII), and to anonymize 
as much information as possible

[[Page 62433]]

without hindering cyber security efforts, and that the Government 
should immediately dispose of inadvertently collected PII that is not 
directly relevant to the ``cyber incident.''
    Response: DoD agrees with the underlying premise of the comment, 
and the DIB CS/IA program uses procedures to minimize the collection 
and sharing of PII. The DIB participants remove unnecessary sensitive 
information (e.g., PII), and only share information if it is relevant 
to a cyber incident (e.g., for forensics or cyber intrusion damage 
assessment). All PII received by DoD is provided voluntarily by 
authorized DIB company representatives and is subject to mutually 
agreed upon restrictions for cyber security purposes. In addition, the 
DIB participants are required, prior to sharing any information with 
the Government under this program, to review and determine that their 
activities under the program are in compliance with all applicable laws 
and regulations, including restrictions on the interception, 
monitoring, access, use, and disclosure of electronic communications 
(see Sec.  236.6(b) and (c)). Information determined to be relevant is 
maintained, controlled, and disposed of when no longer reasonably 
necessary for forensics analysis, and damage assessment activities (or 
other legal, audit or operational purposes). Companies are required to 
abide by all sharing restrictions. The PIA for the DIB CS/IA program 
addresses the handling safeguards in more detail. No change is made to 
the rule.
    Comment: Two comments stated that the PII the Government obtains 
through the DIB CS/IA program should be used only for cyber security 
operations and not general law enforcement or intelligence fact 
gathering. The rule should also limit Government use of information 
shared for cyber security purposes.
    Response: The primary purpose of the DIB CS/IA program is to share 
cyber security information to promote more effective cyber security, 
not only for the DIB, but also for the DoD and U.S. Government. The 
program contains numerous information handling and sharing 
restrictions, applicable to both the Government and DIB participants, 
to safeguard against any unauthorized collection, use, or dissemination 
of such information. However, the program does not limit the 
Government's ability to conduct lawful activities, including law 
enforcement, counterintelligence activities, or other activities in the 
interest of U.S. national security (Sec.  236.6(d)). No change is made 
to the rule.
    Comment: One comment recommended that the rule incorporate privacy 
protections of the National Cyber Security Division's Joint 
Cybersecurity Services Pilot (JCSP).
    Response: The detailed processes summarized in the PIA for the DIB 
CS/IA program are comprehensive and ensure appropriate safeguards for 
PII provided by DIB participants in a similar manner as described in 
the PIA prepared for the Department of Homeland Security's JSCP. No 
change is made to the rule.
    Comment: One comment stated the interim rule should be amended to 
impose fines on private companies that intentionally or negligently 
disclose ``excessive PII.''
    Response: It is not clear what the commenter meant by the term 
``excessive PII.'' As discussed above, the DIB CS/IA program only 
receives PII in two ways: (i) For program administration and management 
purposes; and (ii) for cyber incident response and analysis purposes. 
In both cases, DIB companies share information only when it is relevant 
for those authorized purposes. In addition, DIB companies are 
prohibited from sharing any information, including PII, unless they 
have determined that it has been lawfully collected and is authorized 
to be shared with the Government. If it were to appear that a company 
is reporting excessive information not relevant to the program, the 
Government would seek to work with the company to clarify the sharing 
guidelines and support the company's efforts to refine its processes to 
implement more effective limits on sharing unnecessary information. If, 
despite these efforts, a company continued to share information that 
the Government deemed inappropriate within the scope of the program, 
the Government would take appropriate actions on a case by case basis, 
including potentially terminating the information sharing relationship 
with that participant. This is a voluntary program and fines are not 
part of the program. No change is made to the rule.
    Comment: Two comments recommended changes to the definitions of 
cyber incident, compromise and threat.
    Response: The rule leverages established definitions to the maximum 
extent possible. The source for the definition of ``compromise'', 
``cyber incident'' and ``threat'' are from the Committee on National 
Security Systems Instruction No. 4009, ``National Information Assurance 
Glossary,'' (http://www.cnss.gov/Assets/pdf/cnssi_4009.pdf). These 
definitions are established and widely accepted Government definitions. 
No change is made to the rule.
    Comment: One comment stated that U.S. based systems are not 
adequately defined.
    Response: To further clarify terms, the term ``U.S. based'' has 
been added to the definitions section (Sec.  236.2(n)).
    Comment: One comment recommended changing the definition of U.S. 
citizen to eliminate the phrase ``holding a U.S. passport,'' and adding 
text on ``Green Cards.''
    Response: The recommendation to add ``U.S. citizen'' to the 
definitions section is accepted and is added to Sec.  236.2(o). For the 
purpose of the rule, a U.S. citizen includes a person born in the U.S. 
or naturalized. The recommendation to eliminate ``holding a U.S. 
passport'' as part of the U.S. citizen definition is also accepted in 
the definition of ``U.S. citizen,'' (see Sec.  236.2(o)).
    Comment: One comment recommended changing the definition of GFI to 
a more descriptive term so as not to tie it to Government procurement.
    Response: The definition of GFI in the rule is applicable only to 
the DIB CS/IA program (see Sec.  236.2(j)), and does not relate to any 
specific procurement activities. There is no indication that the use of 
this term has led to any confusion amongst the DIB participants. No 
change is made to the rule.
    Comment: Two comments dealt with aspects of sharing information 
that could ward against threats and improve Operational Security 
(OPSEC).
    Response: The purpose of the DIB CS/IA program is to enable cyber 
threat information sharing with DIB participants to improve operational 
security of DIB networks and information systems. No change is made to 
the rule.
    Comment: One comment suggested replacing the phrase ``to use the 
GFI on non-U.S. based covered DIB systems,'' with ``to reside on non-
U.S. based covered DIB'' in Sec.  236.4(g).
    Response: After evaluation, the recommended change in terminology 
from ``use'' to ``reside'' does not provide additional technical 
clarity. No change is made to the rule.
    Comment: Two comments recommended the language be amended to 
include the words ``or as soon as practicable thereafter'' following 
the word ``discovery'' and expressed caution that less knowledgeable 
participants will be prone to over report which consumes scarce 
Government and industry resources and obscures the significant 
incidents (Sec.  236.5(b)).

[[Page 62434]]

    Response: Timeliness in reporting cyber incidents involving covered 
defense information is an integral component of the DIB CS/IA program. 
The rule makes provisions for initial and follow-up reporting (Sec.  
236.5(b) and (c)). While the DIB CS/IA program is voluntary, cyber 
security encourages sharing information as quickly as possible to 
provide the clearest understanding of the cyber threat targeting DoD 
program information. This enables cyber threat information provided by 
DIB participants to be shared with other DIB participants and 
Government stakeholders on a timely basis. No change is made to the 
rule.
    Comment: Two comments recommended the draft ``DFARS regulatory 
initiative on Safeguarding Unclassified DoD Information (Safeguarding 
Rule) being addressed under DFARS Case 2011-D039'' be written to avoid 
conflicting and duplicative requirements for participants in the DIB 
CS/IA program.
    Response: The DoD is committed to using both internal coordination 
processes, and public review and comment procedures such as those used 
in rulemaking for this program and for proposed DFARS revisions, to 
ensure that its cyber security activities are evaluated to avoid 
conflicting or duplicative elements. No change is made to the rule.
    Comment: Two comments recommended specific word changes to the 
program requirements relating to each party conducting a legal review 
of its policies and practices that support the program, including 
deletion of the requirement for a ``determination'' of compliance with 
law because it may be interpreted as requiring the company to retain 
outside counsel for such a determination, limiting the compliance only 
to ``U.S'' law, and deleting the second sentence of Sec.  236.6(c) to 
avoid threatening the attorney-client privilege.
    Response: The requirement at Sec.  236.6(c) for a determination of 
legal compliance is expressly stated as a requirement that ``the DIB 
participant shall perform a legal review . . . and shall make a 
determination'' that it is compliant. There is neither an express nor 
implied requirement that the DIB participant retain outside counsel for 
such a determination, and thus no change to that language is warranted. 
In Sec.  236.6, the rule retains ``applicable laws and regulations'' as 
an accurate description of the requirement. Finally, the second 
sentence of Sec.  236.6(c) was intended merely to provide notice that 
the Government may request additional information from the DIB company, 
and was not intended to imply that there was a requirement to provide 
such information as a condition of the program, regardless of whether 
such information were protected by the attorney-client privilege. To 
avoid any unnecessary confusion or unintended implications, the second 
sentence is deleted.
    Comment: One comment expressed full support for the Defense 
Industrial Base Voluntary Cyber Security and Information Assurance 
Activities.
    Response: Government evaluation of the program concurs that the 
voluntary DIB CS/IA program contributes to the safeguarding of DoD 
information. No change is made to the rule.
    Comment: One comment urged a renewed look at how classification 
schemes are balanced with disclosure schemes.
    Response: In accordance with the rule (Sec.  236.4(f)), handling 
and safeguarding of classified GFI shall be in compliance with the 
National Industrial Security Program Operating Manual (NISPOM) (DoD 
5220.22-M). No change is made to the rule.
    Comment: One comment recommended that the DIB CS/IA program have a 
more robust role in industry engagement.
    Response: The DIB CS/IA program will continue to evaluate outreach 
opportunities to enhance engagement with industry, to include industry 
associations. No change is made to the rule.
    Comment: Two comments recommended that the infrastructure of the 
internet be upgraded and that the rule should incorporate ``technology 
neutral terms.''
    Response: Other activities within the Government are examining the 
infrastructure of the internet. The rule focuses on cyber threat 
sharing and the risk of compromise of DoD information that resides on, 
or transits, DIB unclassified information systems. No change is made to 
the rule.

Regulatory Procedures

 Executive Orders 12866, ``Regulatory Planning and Review'' and 13563, 
``Improving Regulation and Regulatory Review''

    It has been certified that 32 CFR part 236 does not:
    (a) Have an annual effect on the economy of $100 million or more, 
or adversely affect in a material way, the economy; a section of the 
economy; productivity; competition; jobs; the environment; public 
health or safety; or State, local, or tribal Governments or 
communities;
    (b) Create a serious inconsistency, or otherwise interfere with, an 
action taken or planned by another Agency;
    (c) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof; or
    (d) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles as set forth in 
these Executive Orders.

Public Law 104-121, ``Congressional Review Act'' (5 U.S.C. 801)

    It has been determined that 32 CFR part 236 is not a ``major'' rule 
under 5 U.S.C. 801, enacted by Public Law 104-121, because it will not 
result in an annual effect on the economy of $100 million or more; a 
major increase in costs or prices for consumers, individual industries, 
Federal, State, or local Government agencies, or geographic regions; or 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
enterprises to compete with foreign-based enterprises in domestic and 
export markets.

Sec. 202, Public Law 104-4, ``Unfunded Mandates Reform Act''

    It has been certified that 32 CFR part 236 does not contain a 
Federal mandate that may result in expenditure by State, local and 
tribal Governments, in aggregate, or by the private sector, of $100 
million or more in any one year.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    It has been certified that 32 CFR part 236 is not subject to the 
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities. DIB participation in the DIB CS/IA Program is 
voluntary.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    Sections 236.4 and 236.5 and 236.7 of this final rule contain 
information collection requirements. These collection requirements were 
published in the preamble of the interim final rule that published on 
May 11, 2012 (77 FR 27617) for public comment. No comments were 
received on the collection requirements. OMB preapproved the collection 
requirements and assigned them OMB Controls Numbers 0704-0489 and 0704-
0490.

[[Page 62435]]

Executive Order 13132, ``Federalism''

    It has been certified that 32 CFR part 236 does not have federalism 
implications, as set forth in Executive Order 13132. This rule does not 
have substantial direct effects on:
    (a) The States;
    (b) The relationship between the National Government and the 
States; or
    (c) The distribution of power and responsibilities among the 
various levels of Government.

List of Subjects in 32 CFR Part 236

    Contracts, Security measures.

    Accordingly 32 CFR part 236 is revised to read as follows:

PART 236--DEPARTMENT OF DEFENSE (DoD)--DEFENSE INDUSTRIAL BASE 
(DIB) VOLUNTARY CYBER SECURITY AND INFORMATION ASSURANCE (CS/IA) 
ACTIVITIES

Sec.
236.1 Purpose.
236.2 Definitions.
236.3 Policy.
236.4 Procedures.
236.5 Cyber security information sharing.
236.6 General provisions.
236.7 DIB participant eligibility requirements.

    Authority:  10 U.S.C. 2224; 44 U.S.C. 3506; 44 U.S.C. 3544.

Sec.  236.1  Purpose.

    Cyber threats to DIB unclassified information systems represent an 
unacceptable risk of compromise of DoD information and pose an imminent 
threat to U.S. national security and economic security interests. DoD's 
voluntary DIB CS/IA program enhances and supplements DIB participants' 
capabilities to safeguard DoD information that resides on, or transits, 
DIB unclassified information systems.

Sec.  236.2  Definitions.

    As used in this part:
    (a) Attribution information means information that identifies the 
DIB participant, whether directly or indirectly, by the grouping of 
information that can be traced back to the DIB participant (e.g., 
program description, facility locations).
    (b) Compromise means disclosure of information to unauthorized 
persons or a violation of the security policy of a system in which 
unauthorized intentional, or unintentional, disclosure, modification, 
destruction, loss of an object, or the copying of information to 
unauthorized media may have occurred.
    (c) Covered defense information means unclassified information 
that:
    (1) Is:
    (i) Provided by or on behalf of the DoD to the DIB participant in 
connection with an official DoD activity; or
    (ii) Collected, developed, received, transmitted, used, or stored 
by the DIB participant in support of an official DoD activity; and
    (2) Is:
    (i) Controlled Technical Information means technical information 
with military or space application (see 10 U.S.C. 130(c)) that is 
subject to controls on the access, use, reproduction, modification, 
performance, display, release, disclosure, or dissemination. Controlled 
technical information is to be marked with one of the distribution 
statements B through F, in accordance with Department of Defense 
Instruction 5230.24, ``Distribution Statements of Technical 
Documents.'' The term does not include information that is lawfully 
publicly available without restrictions. ``Technical Information'' 
means technical data or computer software, as those terms are defined 
in Defense Federal Acquisition Regulation Supplement clause 252.227-
7013, ``Rights in Technical Data--Noncommercial Items'' (48 CFR 
252.227-7013). Examples of technical information include research and 
engineering data, engineering drawings, and associated lists, 
specifications, standards, process sheets, manuals, technical reports, 
technical orders, catalog-item identifications, data sets, studies and 
analyses and related information, and computer software executable code 
and source code;
    (ii) Information subject to export control under the International 
Traffic in Arms Regulations (ITAR) (http://pmddtc.state.gov/regulations_laws/itar_official.html), or the Export Administration 
Regulations (EAR). (15 CFR part 730);
    (iii) Information designated as Critical Program Information (CPI) 
in accordance with DoD Instruction 5200.39, ``Critical Program 
Information (CPI) Protection within the Department of Defense'';
    (iv) Critical Information (Operations Security) includes specific 
facts identified through the Operations Security process about friendly 
intentions, capabilities, and activities vitally needed by adversaries 
for them to plan and act effectively so as to guarantee failure or 
unacceptable consequences for friendly mission accomplishment (part of 
Operations Security process as described in 5205.02-M, ``DoD Operations 
Security (OPSEC Program Manual)'';
    (v) Personally Identifiable Information (PII) that can be used to 
distinguish or trace an individual's identity in accordance with DoD 
Directive 5400.11, ``DoD Privacy Program'';
    (vi) Information bearing current and prior designations indicating 
controlled unclassified information (e.g., For Official Use Only, 
Sensitive But Unclassified, and Limited Official Use, DoD Unclassified 
Controlled Nuclear Information, Sensitive Information) that has not 
been cleared for public release in accordance with DoD Directive 
5230.29, ``Clearance of DoD Information for Public Release'' (see also 
DoD 5200.01 M Volume 4, ``DoD Information Security Program: Controlled 
Unclassified Information (CUI)''), ; or
    (vii) Any other information that is exempt from mandatory public 
disclosure under DoD Directive 5400.07, ``DoD Freedom of Information 
Act (FOIA) Program'', and DoD Regulation 5400.7-R, ``DoD Freedom of 
Information Program''.
    (d) Covered DIB systems means an information system that is owned 
or operated by or for a DIB participant and that processes, stores, or 
transmits covered defense information.
    (e) Cyber incident means actions taken through the use of computer 
networks that result in an actual or potentially adverse effect on an 
information system and/or the information residing therein.
    (f) Cyber intrusion damage assessment means a managed, coordinated 
process to determine the effect on defense programs, defense scientific 
and research projects, or defense warfighting capabilities resulting 
from compromise of a DIB participant's unclassified computer system or 
network.
    (g) Defense Industrial Base (DIB) means the Department of Defense, 
Government, and private sector worldwide industrial complex with 
capabilities to perform research and development, design, produce, and 
maintain military weapon systems, subsystems, components, or parts to 
satisfy military requirements.
    (h) DIB participant means a DIB company that has met all of the 
eligibility requirements to participate in the voluntary DIB CS/IA 
information sharing program as set forth in this part (see Sec.  
236.7).
    (i) Government means the United States Government.
    (j) Government Furnished Information (GFI) means information 
provided by the Government under the voluntary DIB CS/IA program, 
including but not limited to cyber threat information and information 
assurance practices.
    (k) Information means any communication or representation of 
knowledge such as facts, data, or

[[Page 62436]]

opinions in any medium or form, including textual, numerical, graphic, 
cartographic, narrative, or audiovisual.
    (l) Information system means a discrete set of information 
resources organized for the collection, processing, maintenance, use, 
sharing, dissemination, or disposition of information.
    (m) Threat means any circumstance or event with the potential to 
adversely impact organization operations (including mission, functions, 
image, or reputation), organization assets, individuals, other 
organizations, or the Nation through an information system via 
unauthorized access, destruction, disclosure, modification of 
information and/or denial of service.
    (n) U.S. based means provisioned, maintained, or operated within 
the physical boundaries of the United States.
    (o) U.S. citizen means a person born in the United States or 
naturalized.

Sec.  236.3  Policy.

    It is DoD policy to:
    (a) Establish a comprehensive approach for enhancing and 
supplementing DIB information assurance capabilities to safeguard 
covered defense information on covered DIB systems.
    (b) Increase the Government and DIB situational awareness of the 
extent and severity of cyber threats to DoD information.

Sec.  236.4  Procedures.

    (a) The Government and each DIB participant will execute a 
voluntary standardized agreement, referred to as a Framework Agreement 
(FA), to share, in a timely and secure manner, on a recurring basis, 
and to the greatest extent possible, cyber security information 
relating to information assurance for covered defense information on 
covered DIB systems.
    (b) Each such FA between the Government and a DIB participant must 
comply with and implement the requirements of this part, and will 
include additional terms and conditions as necessary to effectively 
implement the voluntary information sharing activities described in 
this part with individual DIB participants.
    (c) DoD's DIB CS/IA Program Office is the overall point of contact 
for the program. The DoD Cyber Crime Center's DoD-DIB Collaborative 
Information Sharing Environment (DC3/DCISE) is the operational focal 
point for cyber threat information sharing and incident reporting under 
the DIB CS/IA program.
    (d) The Government will maintain a Web site or other Internet-based 
capability to provide potential DIB participants with information about 
eligibility and participation in the program, to enable the online 
application or registration for participation, and to support the 
execution of necessary agreements with the Government. http://dibnet.dod.mil/.
    (e) Prior to receiving GFI from the Government, each DIB 
participant shall provide the requisite points of contact information, 
to include security clearance and citizenship information, for the 
designated personnel within their company (e.g., typically 3-10 company 
designated points of contact) in order to facilitate the DoD-DIB 
interaction in the DIB CS/IA program. The Government will confirm the 
accuracy of the information provided as a condition of that point of 
contact being authorized to act on behalf of the DIB participant for 
this program.
    (f) GFI will be issued via both unclassified and classified means. 
DIB participant handling and safeguarding of classified information 
shall be in compliance with the National Industrial Security Program 
Operating Manual (NISPOM) (DoD 5220.22-M). The Government shall specify 
transmission and distribution procedures for all GFI, and shall inform 
DIB participants of any revisions to previously specified transmission 
or procedures.
    (g) Except as authorized in this part or in writing by the 
Government, DIB participants may use GFI to safeguard covered defense 
information only on covered DIB systems that are U.S. based; and share 
GFI only within their company or organization, on a need to know basis, 
with distribution restricted to U.S. citizens. However, in individual 
cases, upon request of a DIB participant that has determined that it 
requires the ability to share the information with a non U.S. citizen, 
or to use the GFI on a non-U.S. based covered DIB system, and can 
demonstrate that appropriate information handling and protection 
mechanisms are in place, the Government may authorize such disclosure 
or use under appropriate terms and conditions.
    (h) DIB participants shall maintain the capability to 
electronically disseminate GFI within the Company in an encrypted 
fashion (e.g., using Secure/Multipurpose Internet Mail Extensions (S/
MIME), secure socket layer (SSL), Transport Layer Security (TLS) 
protocol version 1.2, DoD-approved medium assurance certificates).
    (i) The DIB participants shall not share GFI outside of their 
company or organization, regardless of personnel clearance level, 
except as authorized in this part or otherwise authorized in writing by 
the Government.
    (j) If the DIB participant utilizes a third-party service provider 
(SP) for information system security services, the DIB participant may 
share GFI with that SP under the following conditions and as authorized 
in writing by the Government:
    (1) The DIB participant must identify the SP to the Government and 
request permission to share or disclose any GFI with that SP (which may 
include a request that the Government share information directly with 
the SP on behalf of the DIB participant) solely for the authorized 
purposes of this program;
    (2) The SP must provide the Government with sufficient information 
to enable the Government to determine whether the SP is eligible to 
receive such information, and possesses the capability to provide 
appropriate protections for the GFI;
    (3) Upon approval by the Government, the SP must enter into a 
legally binding agreement with the DIB participant (and also an 
appropriate agreement with the Government in any case in which the SP 
will receive or share information directly with the Government on 
behalf of the DIB participant) under which the SP is subject to all 
applicable requirements of this part and of any supplemental terms and 
conditions in the DIB participant's FA with the Government, and which 
authorizes the SP to use the GFI only as authorized by the Government.
    (k) The DIB participant may not sell, lease, license, or otherwise 
incorporate the GFI into its products or services, except that this 
does not prohibit a DIB participant from being appropriately designated 
an SP in accordance with paragraph (j) of this section.

Sec.  236.5  Cyber security information sharing.

    (a) GFI. The Government shall share GFI with DIB participants or 
designated SPs in accordance with this part.
    (b) Initial incident reporting. The DIB participant shall report to 
DC3/DCISE cyber incidents involving covered defense information on a 
covered DIB system. These initial reports will be provided within 72 
hours of discovery. DIB participants also may report other cyber 
incidents to the Government if the DIB participant determines the 
incident may be relevant to information assurance for covered defense 
information or covered DIB systems or other information assurance 
activities of the Government.
    (c) Follow-up reporting. After an initial incident report, the 
Government and the DIB participant may voluntarily

[[Page 62437]]

share additional information that is determined to be relevant to a 
reported incident, including information regarding forensic analyses, 
mitigation and remediation, and cyber intrusion damage assessments.
    (d) Cyber intrusion damage assessment. Following analysis of a 
cyber incident, DC3/DCISE may provide information relevant to the 
potential or known compromise of DoD acquisition program information to 
the Office of the Secretary of Defense's Damage Assessment Management 
Office (OSD DAMO) for a cyber intrusion damage assessment. The 
Government may provide DIB participants with information regarding the 
damage assessment.
    (e) DIB participant attribution information. The Government 
acknowledges that information shared by the DIB participants under this 
program may include extremely sensitive proprietary, commercial, or 
operational information that is not customarily shared outside of the 
company, and that the unauthorized use or disclosure of such 
information could cause substantial competitive harm to the DIB 
participant that reported that information. The Government shall take 
reasonable steps to protect against the unauthorized use or release of 
such information (e.g., attribution information and other nonpublic 
information) received from a DIB participant or derived from such 
information provided by a DIB participant, including applicable 
procedures (see Sec.  236.5(h)). The Government will restrict its 
internal use and disclosure of attribution information to only 
Government personnel and Government support contractors that are bound 
by appropriate confidentiality obligations and restrictions relating to 
the handling of this sensitive information and are engaged in lawfully 
authorized activities.
    (f) Non-attribution information. The Government may share non-
attribution information that was provided by a DIB participant (or 
derived from information provided by a DIB participant) with other DIB 
participants in the DIB CS/IA program, and may share such information 
throughout the Government (including with Government support 
contractors that are bound by appropriate confidentiality obligations) 
for cyber security and information assurance purposes for the 
protection of Government information or information systems.
    (g) Electronic media. Electronic media/files provided by DIB 
participants to DC3 under paragraphs (b), (c) and (d) of this section 
are maintained by the digital and multimedia forensics laboratory at 
DC3, which implements specialized handling procedures to maintain its 
accreditation as a digital and multimedia forensics laboratory. DC3 
will maintain, control, and dispose of all electronic media/files 
provided by DIB participants to DC3 in accordance with established DoD 
policies and procedures.
    (h) Freedom of Information Act (FOIA). Agency records, which may 
include qualifying information received from non-federal entities, are 
subject to request under the Freedom of Information Act (5 U.S.C. 552) 
(FOIA), which is implemented in the Department of Defense by DoD 
Directive 5400.07 and DoD Regulation 5400.7-R (see 32 CFR Parts 285 and 
286, respectively). Pursuant to established procedures and applicable 
regulations, the Government will protect sensitive nonpublic 
information under this Program against unauthorized public disclosure 
by asserting applicable FOIA exemptions, and will inform the non-
Government source or submitter (e.g., DIB participants) of any such 
information that may be subject to release in response to a FOIA 
request, to permit the source or submitter to support the withholding 
of such information or pursue any other available legal remedies.

Sec.  236.6  General provisions.

    (a) Confidentiality of information that is exchanged under this 
program will be protected to the maximum extent authorized by law, 
regulation, and policy.
    (b) The Government and DIB participants will conduct their 
respective activities under this program in accordance with applicable 
laws and regulations, including restrictions on the interception, 
monitoring, access, use, and disclosure of electronic communications or 
data. The Government and the DIB participant each bear responsibility 
for their own actions under this program.
    (c) Prior to sharing any information with the Government under this 
program pursuant to the FA, the DIB participant shall perform a legal 
review of its policies and practices that support its activities under 
this program, and shall make a determination that such policies, 
practices, and activities comply with applicable legal requirements.
    (d) This voluntary DIB CS/IA program is intended to safeguard 
covered defense information. None of the restrictions on the 
Government's use or sharing of information under the DIB CS/IA program 
shall limit the Government's ability to conduct law enforcement, 
counterintelligence activities, or other activities in the interest of 
national security; and participation does not supersede other 
regulatory or statutory requirements.
    (e) Participation in the DIB CS/IA program is voluntary and does 
not obligate the DIB participant to utilize the GFI in, or otherwise to 
implement any changes to, its information systems. Any action taken by 
the DIB participant based on the GFI or other participation in this 
program is taken on the DIB participant's own volition and at its own 
risk and expense.
    (f) A DIB participant's voluntary participation in this program is 
not intended to create any unfair competitive advantage or disadvantage 
in DoD source selections or competitions, or to provide any other form 
of unfair preferential treatment, and shall not in any way be 
represented or interpreted as a Government endorsement or approval of 
the DIB participant, its information systems, or its products or 
services.
    (g) The DIB participant and the Government may each unilaterally 
limit or discontinue participation in this program at any time. 
Termination shall not relieve the DIB participant or the Government 
from obligations to continue to protect against the unauthorized use or 
disclosure of GFI, attribution information, contractor proprietary 
information, third-party proprietary information, or any other 
information exchanged under this program, as required by law, 
regulation, contract, or the FA.
    (h) Upon termination of the FA, and/or change of Facility Security 
Clearance status below Secret, GFI must be returned to the Government 
or destroyed pursuant to direction of, and at the discretion of, the 
Government.
    (i) Participation in this program does not abrogate the 
Government's or the DIB participants' rights or obligations regarding 
the handling, safeguarding, sharing, or reporting of information, or 
regarding any physical, personnel, or other security requirements, as 
required by law, regulation, policy, or a valid legal contractual 
obligation.

Sec.  236.7  DIB participant eligibility requirements.

    To be eligible to participate in this program, a DIB company must:
    (a) Have or acquire DoD-approved medium assurance certificates to 
enable encrypted unclassified information sharing between the 
Government and DIB participants;

[[Page 62438]]

    (b) Have an existing active Facility Security Clearance (FCL) 
granted under the National Industrial Security Program Operating Manual 
(NISPOM) (DoD 5220.22-M) with approved safeguarding for at least Secret 
information, and continue to qualify under the NISPOM for retention of 
its FCL and approved safeguarding (http://www.dtic.mil/whs/directives/corres/pdf/522022m.pdf);
    (c) Have or acquire a Communication Security (COMSEC) account in 
accordance with the NISPOM Chapter 9, Section 4 (DoD 5220.22-M), which 
provides procedures and requirements for COMSEC activities;
    (d) Obtain access to DoD's secure voice and data transmission 
systems supporting the DIB CS/IA program,
    (e) Own or operate covered DIB system(s), and
    (f) Execute the standardized FA with the Government (available 
during the application process), which implements the requirements set 
forth in Sec. Sec.  236.4 through 236.6.

    Dated: September 30, 2013.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2013-24256 Filed 10-21-13; 8:45 am]
BILLING CODE 5001-06-P
```