II 

Calendar No. 1106 

110TH CONGRESS 

2D SESSION S. 3662 

To establish the Controlled Unclassified Information Office, to require policies 

and procedures for the designation, marking, safeguarding, and dissemination of controlled unclassified information, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

OCTOBER 1 (legislative day, SEPTEMBER 17), 2008 

Mr. LIEBERMAN, from the Committee on Homeland Security and Governmental Affairs, reported the following original bill; which was read twice 

and placed on the calendar 

A BILL 

To establish the Controlled Unclassified Information Office, 

to require policies and procedures for the designation, 

marking, safeguarding, and dissemination of controlled 

unclassified information, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Implementing the Con5 trolled Unclassified Information Framework Act of 2008’’. 


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1 SEC. 2. DEFINITIONS. 

2 In this Act: 

3 (1) CONTROLLED UNCLASSIFIED INFORMA4 TION.—The term ‘‘controlled unclassified informa5 tion’’ means information that— 

6 (A) is not classified information, as that 

7 term is defined in section 1 of the Classified In8 formation Procedures Act (18 U.S.C. App.); 

9 (B) does not meet the standards for Na10 tional Security Classification under Executive 

11 Order 12958; 

12 (C) is pertinent to the national interests of 

13 the United States or to the important interests 

14 of entities outside the Federal Government; and 

15 (D) under a Federal statute, executive 

16 order, Presidential memorandum, or regulation 

17 requires protection from unauthorized disclo18 sure, special handling safeguards, or prescribed 

19 limits on exchange or dissemination. 

20 (2) CONTROLLED UNCLASSIFIED INFORMATION

21 FRAMEWORK.—The term ‘‘controlled unclassified in22 formation framework’’ means a set of policies and 

23 procedures governing the designation, marking, safe24 guarding, and dissemination of controlled unclassi25 fied information that originates in a Federal depart26 ment or agency, regardless of the medium used for 


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1 the display, storage, or transmittal of such informa2 tion. 

3 (3) COUNCIL.—The term ‘‘Council’’ means the 

4 Controlled Unclassified Information Council estab5 lished under section 3(c). 

6 (4) FEDERAL DEPARTMENT OR AGENCY.—The 

7 term ‘‘Federal department or agency’’— 

8 (A) means an Executive agency, as defined 

9 in section 105 of title 5, United States Code, a 

10 military department, as defined in section 102 

11 of title 5, or the United States Postal Service; 

12 and 

13 (B) does not include the Government Ac14 countability Office. 

15 (5) INFORMATION SHARING COUNCIL.—The 

16 term ‘‘Information Sharing Council’’ has the mean17 ing given that term in section 1016 of the Intel18 ligence Reform and Terrorism Prevention Act of 

19 2004 (6 U.S.C. 485). 

20 (6) UNITED STATES PERSON.—The term 

21 ‘‘United States person’’ has the meaning give that 

22 term in section 101 of the Foreign Intelligence Sur23 veillance Act of 1978 (50 U.S.C. 1801). 


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1 SEC. 3. CONTROLLED UNCLASSIFIED INFORMATION 

2 FRAMEWORK. 

3 (a) CONTROLLED UNCLASSIFIED INFORMATION OF4 FICE.—There is established within the National Archives 

5 and Records Administration a Controlled Unclassified In6 formation Office, which shall be headed by a Director, who 

7 shall be appointed by, and report directly to, the Archivist 

8 of the United States. 

9 (b) AUTHORITIES AND RESPONSIBILITIES.—The Ar10 chivist of the United States, acting through the Director 

11 of the Controlled Unclassified Information Office, shall— 

12 (1) in consultation with the Council, develop 

13 and publicly issue the controlled unclassified infor14 mation framework and controlled unclassified infor15 mation implementation guidance (including appro16 priate recommendations to State, local, and tribal 

17 governments, law enforcement agencies, and private 

18 sector entities for implementing the controlled un19 classified information framework) that are consistent 

20 with this Act and the document issued by the Presi21 dent on May 7, 2008, entitled ‘‘Designation and 

22 Sharing of Controlled Unclassified Information 

23 (CUI)’’, and any successor thereto; 

24 (2) establish safeguarding and dissemination 

25 controls, and, upon a determination that extraor26 dinary circumstances warrant the use of additional 


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1 controlled unclassified information markings, author2 ize the use of such additional markings; 

3 (3) establish and serve as the chairperson of the 

4 Council and work with the members of the Council 

5 to develop a consensus regarding the contents of the 

6 controlled unclassified information framework; 

7 (4) for any aspect of the controlled unclassified 

8 information framework relating to which the Council 

9 is not able to reach a consensus, consult with the 

10 chairperson of the Information Sharing Council; 

11 (5) establish, approve, and maintain safe12 guarding standards and dissemination instructions 

13 for controlled unclassified information, including 

14 specified dissemination requirements proposed by the 

15 head of a Federal department or agency; 

16 (6) publish controlled unclassified information 

17 safeguarding and dissemination standards and in18 structions; 

19 (7) establish standards for the designating of 

20 controlled unclassified information; 

21 (8) monitor compliance by each Federal depart22 ment or agency with controlled unclassified informa23 tion policy, standards, and markings; 

24 (9) establish baseline training requirements and 

25 develop a Governmentwide controlled unclassified inVerDate Aug 31 2005 04:58 Oct 02, 2008 Jkt 079200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3662.PCS S3662

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1 formation training program to be implemented by 

2 each Federal department or agency; 

3 (10) provide appropriate information regarding 

4 the controlled unclassified information framework to 

5 Congress, State, local, and tribal governments, pri6 vate sector entities, and relevant experts; 

7 (11) advise the head of each Federal depart8 ment or agency on the resolution by the Council of 

9 complaints and disputes among Federal departments 

10 or agencies concerning the proper designation or 

11 marking of controlled unclassified information; 

12 (12) ensure that all relevant documents regard13 ing the controlled unclassified information frame14 work, including implementation guidance issued by 

15 the Archivist of the United States, implementation 

16 guidance issued by the head of the Federal depart17 ment or agency, safeguarding and dissemination 

18 standards and instructions, specified dissemination 

19 requirements proposed by the head of a Federal de20 partment or agency under paragraph (5), and the 

21 annual report required under subsection (j)(1), are 

22 made available on the website of the National Ar23 chives and Records Administration in a timely man24 ner; and 


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1 (13) establish, in consultation with any affected 

2 Federal department or agency, a process that ad3 dresses enforcement mechanisms and penalties for 

4 improper handling of controlled unclassified informa5 tion. 

6 (c) CONTROLLED UNCLASSIFIED INFORMATION

7 COUNCIL.— 

8 (1) ESTABLISHMENT.—There is established as 

9 a subcommittee of the Information Sharing Council 

10 a Controlled Unclassified Information Council. 

11 (2) MEMBERS.—The head of each Federal de12 partment or agency that has a representative on the 

13 Information Sharing Council and any other Federal 

14 department or agency determined appropriate by the 

15 Archivist of the United States shall appoint a rep16 resentative to the Council, who may be the officer or 

17 employee appointed by the head of the Federal de18 partment or agency as a member of the Information 

19 Sharing Council. 

20 (d) RESPONSIBILITIES OF THE COUNCIL.—The 

21 Council shall— 

22 (1) serve as the primary advisor to the Archi23 vist of the United States on issues relating to the 

24 controlled unclassified information framework; 


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1 (2) advise the Archivist of the United States in 

2 developing procedures, guidelines, and standards 

3 necessary to establish, implement, and maintain the 

4 controlled unclassified information framework; 

5 (3) ensure coordination among each Federal de6 partment or agency participating in the controlled 

7 unclassified information framework; 

8 (4) advise the Archivist of the United States on 

9 the resolution of complaints and disputes among 

10 Federal departments or agencies about proper des11 ignation or marking of controlled unclassified infor12 mation; and 

13 (5) as appropriate, consult with any other sub14 committee of the Information Sharing Council, Con15 gress, State, local, and tribal governments, private 

16 sector entities, and relevant experts. 

17 (e) AGENCY RESPONSIBILITIES.—The head of each 

18 Federal department or agency that uses controlled unclas19 sified information shall— 

20 (1) implement the controlled unclassified infor21 mation framework consistent with the implementa22 tion guidance issued under subsection (b)(1); 

23 (2) publicly issue guidance for the implementa24 tion of the controlled unclassified information frame25 work within the Federal department or agency, conVerDate Aug 31 2005 04:58 Oct 02, 2008 Jkt 079200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S3662.PCS S3662

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1 sistent with the implementation guidance issued 

2 under subsection (b)(1); 

3 (3) designate an appropriately qualified senior 

4 officer with the Federal department or agency as the 

5 representative of the Federal department or agency 

6 on the Council; 

7 (4) implement a controlled unclassified informa8 tion training program for the Federal department or 

9 agency, based on the Governmentwide training pro10 gram established under subsection (b)(9), and en11 sure all appropriate personnel understand controlled 

12 unclassified information policies and procedures, and 

13 can apply them when creating, disseminating, or 

14 safeguarding controlled unclassified information ma15 terial; 

16 (5) establish a process that enables the Federal 

17 department or agency to address noncompliance with 

18 or misuse of the controlled unclassified information 

19 framework within the Federal department or agency 

20 (including a process that allows an officer or em21 ployee of the Federal department or agency to chal22 lenge the use of controlled unclassified information 

23 markings), and ensure management and oversight 

24 issues or concerns can be resolved by the appropriate 

25 officer of the Federal department or agency; 


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1 (6) establish a process within the Federal de2 partment or agency that, where appropriate, 

3 promptly raises to the Archivist of the United States 

4 matters of concern regarding the controlled unclassi5 fied information framework; 

6 (7) consistent with the standards established 

7 under subsection (b)(7), and where appropriate, de8 velop tools to track and monitor the designation of 

9 controlled unclassified information by employees and 

10 contractors of the Federal department or agency, for 

11 the purpose of assessing compliance with and detect12 ing the misuse of the controlled unclassified informa13 tion framework; 

14 (8) provide training to officers and employees of 

15 the Federal department or agency on the controlled 

16 unclassified information framework; and 

17 (9) ensure that, not later than May 9, 2013, 

18 the Federal department or agency has fully imple19 mented the controlled unclassified information 

20 framework, consistent with policies, guidance, and 

21 standards established by the Archivist of the United 

22 States. 

23 (f) IMPLEMENTATION OF THE CONTROLLED UN24 CLASSIFIED INFORMATION FRAMEWORK.—In carrying out 


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1 subsection (e), the head of a Federal department or agen2 cy shall ensure that— 

3 (1) information is designated as controlled un4 classified information and includes an authorized 

5 controlled unclassified information marking only if— 

6 (A) a statute requires or authorizes such a 

7 designation and marking; or 

8 (B) the head of the Federal department or 

9 agency, through a regulation, directive, or other 

10 specific guidance to the Federal department or 

11 agency that has been submitted to and ap12 proved by the Archivist of the United States 

13 and published on the website of the National 

14 Archives and Records Administration, deter15 mines that the information is controlled unclas16 sified information based on criteria established 

17 by the Archivist of the United States, in con18 sultation with the heads of Federal departments 

19 and agencies; 

20 (2) notwithstanding paragraph (1), information 

21 is not designated as controlled unclassified informa22 tion— 

23 (A) to conceal a violation of law, ineffi24 ciency, or administrative error; 


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1 (B) to prevent embarrassment to the Fed2 eral Government, a State, local, tribal, or terri3 torial government, any official, department, 

4 agency, or organization of the Federal Govern5 ment or a State, local, tribal, or territorial gov6 ernment, or any organization; 

7 (C) to improperly or unlawfully interfere 

8 with competition in the private sector; 

9 (D) to prevent or delay the release of in10 formation that does not require such protection; 

11 (E) if the information is required to be 

12 made available to the public; or 

13 (F) if the information has already been re14 leased to the public under proper authority; and 

15 (3) the controlled unclassified information 

16 framework is administered in a manner that ensures 

17 that— 

18 (A) information sharing within the Federal 

19 Government and with State, local, tribal, and 

20 territorial governments, the private sector, and 

21 the public is enhanced and improved as a result 

22 of the implementation of the controlled unclas23 sified information framework; 

24 (B) all policies and standards of the Fed25 eral department or agency for the designation, 


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1 marking, safeguarding, and dissemination of 

2 controlled unclassified information are con3 sistent with the controlled unclassified informa4 tion framework and any other policies, guide5 lines, procedures, instructions, or standards es6 tablished by the President, including in any 

7 Presidential memoranda or executive orders; 

8 (C) the controlled unclassified information 

9 framework is implemented in a manner con10 sistent with applicable law, including Federal 

11 and State laws protecting the privacy rights 

12 and other legal rights of United States persons; 

13 (D) the number of employees and contrac14 tors of the Federal department or agency who 

15 have the authority to designate information as 

16 controlled unclassified information is limited ap17 propriately; 

18 (E) controlled unclassified information 

19 markings are not a determinant of public dis20 closure under section 552 of title 5, United 

21 States Code (commonly referred to as the 

22 ‘‘Freedom of Information Act’’); 

23 (F) controlled unclassified information 

24 markings are placed on archived or legacy ma25 terial whenever circulated, consistent with the 


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1 controlled unclassified information framework 

2 and any other policies, guidelines, procedures, 

3 instructions, or standards established by the 

4 President, including in any executive memo5 randum or executive order; 

6 (G) material that contains controlled un7 classified information and information that is 

8 not controlled unclassified information, or that 

9 contains multiple categories of controlled un10 classified information, is marked accordingly by 

11 portions such that those categorical distinctions 

12 are apparent; and 

13 (H) the controlled unclassified information 

14 framework supersedes any policy or procedure 

15 relating to the creation, control, and sharing of 

16 sensitive but unclassified information issued by 

17 the Federal department or agency before the 

18 date of enactment of this Act, except where oth19 erwise provided by law. 

20 (g) PUBLIC ACCESS TO UNCLASSIFIED INFORMA21 TION.—A Federal department or agency shall make avail22 able to members of the public all controlled unclassified 

23 information and other unclassified information in the pos24 session of the Federal department or agency that may be 

25 released under an appropriate request under section 552 


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1 of title 5, United States Code (commonly referred to as 

2 the ‘‘Freedom of Information Act’’). 

3 (h) RULE OF CONSTRUCTION.—Nothing in this sec4 tion may be construed to prevent or discourage a Federal 

5 department or agency from voluntarily releasing to the 

6 public any unclassified information that is not exempt 

7 from disclosure under section 552 of title 5, United States 

8 Code (commonly referred to as the ‘‘Freedom of Informa9 tion Act’’). 

10 (i) CONGRESSIONAL ACCESS TO UNCLASSIFIED IN11 FORMATION.—The right of Congress to obtain access to 

12 and release unclassified information, including controlled 

13 unclassified information, shall remain unimpeded by the 

14 provisions of this Act. 

15 (j) REPORTING AND OVERSIGHT REQUIREMENTS.— 

16 (1) ANNUAL REPORT.— 

17 (A) IN GENERAL.—Not less frequently 

18 than once each year, the Archivist of the United 

19 States shall submit to Congress a report on the 

20 implementation of the controlled unclassified in21 formation framework. 

22 (B) CONTENTS.—Each report submitted 

23 under subparagraph (A) shall include— 

24 (i) an overall assessment on the imple25 mentation of the controlled unclassified inVerDate Aug 31 2005 04:58 Oct 02, 2008 Jkt 079200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 E:\BILLS\S3662.PCS S3662

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1 formation framework by the Federal Gov2 ernment; 

3 (ii) an assessment of the efforts by 

4 each Federal department or agency to im5 plement the controlled unclassified infor6 mation framework; 

7 (iii) an estimate of the costs and sav8 ings associated with the implementation of 

9 the controlled unclassified information 

10 framework; 

11 (iv) a description of the activities of 

12 the Council; and 

13 (v) recommendations on how to im14 prove the sharing of controlled unclassified 

15 information within the Federal Govern16 ment and with State, local and tribal gov17 ernments. 

18 (2) INSPECTORS GENERAL.—Not later than 5 

19 years after the date of enactment of this Act, the In20 spectors General of each Federal department or 

21 agency that is a member of the Information Sharing 

22 Council and the Inspectors General of the Environ23 mental Protection Agency and Nuclear Regulatory 

24 Commission shall— 


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1 (A) audit the compliance of the applicable 

2 Federal department or agency with this Act and 

3 the policies and procedures established under 

4 the controlled unclassified information frame5 work; and 

6 (B) submit a report on the findings of the 

7 audit by the Inspector General under this para8 graph to— 

9 (i) the Committee on Oversight and 

10 Government Reform of the House of Rep11 resentatives; 

12 (ii) the Committee on Homeland Se13 curity and Governmental Affairs of the 

14 Senate; 

15 (iii) any other committee of Congress 

16 with jurisdiction of the applicable Federal 

17 department or agency, as appropriate; and 

18 (iv) the Archivist of the United 

19 States. 

20 (k) AUTHORIZATION OF APPROPRIATIONS.—There 

21 are authorized to be appropriated to the Archivist of the 

22 United States to carry out this Act— 

23 (1) $2,500,000 for fiscal year 2009; 

24 (2) $2,500,000 for fiscal year 2010; 

25 (3) $3,500,000 for fiscal year 2011; 


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1 (4) $3,500,000 for fiscal year 2012; and 

2 (5) $2,500,000 for fiscal year 2013. 


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Calendar No. 1106 

110TH CONGRESS 

2D SESSION S. 3662 

A BILL 

To establish the Controlled Unclassified InformaOand for other purposes. semination of controlled unclassified information, the designation, marking, safeguarding, and dis- tion Office, to require policies and procedures for CTOBER 1 (legislative day, SEPTEMBER 17), 2008 

Read twice and placed on the calendar 


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