[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 3662 Placed on Calendar Senate (PCS)]






                                                      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.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Implementing the Controlled 
Unclassified Information Framework Act of 2008''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Controlled unclassified information.--The term 
        ``controlled unclassified information'' means information 
        that--
                    (A) is not classified information, as that term is 
                defined in section 1 of the Classified Information 
                Procedures Act (18 U.S.C. App.);
                    (B) does not meet the standards for National 
                Security Classification under Executive Order 12958;
                    (C) is pertinent to the national interests of the 
                United States or to the important interests of entities 
                outside the Federal Government; and
                    (D) under a Federal statute, executive order, 
                Presidential memorandum, or regulation requires 
                protection from unauthorized disclosure, special 
                handling safeguards, or prescribed limits on exchange 
                or dissemination.
            (2) Controlled unclassified information framework.--The 
        term ``controlled unclassified information framework'' means a 
        set of policies and procedures governing the designation, 
        marking, safeguarding, and dissemination of controlled 
        unclassified information that originates in a Federal 
        department or agency, regardless of the medium used for the 
        display, storage, or transmittal of such information.
            (3) Council.--The term ``Council'' means the Controlled 
        Unclassified Information Council established under section 
        3(c).
            (4) Federal department or agency.--The term ``Federal 
        department or agency''--
                    (A) means an Executive agency, as defined in 
                section 105 of title 5, United States Code, a military 
                department, as defined in section 102 of title 5, or 
                the United States Postal Service; and
                    (B) does not include the Government Accountability 
                Office.
            (5) Information sharing council.--The term ``Information 
        Sharing Council'' has the meaning given that term in section 
        1016 of the Intelligence Reform and Terrorism Prevention Act of 
        2004 (6 U.S.C. 485).
            (6) United states person.--The term ``United States 
        person'' has the meaning give that term in section 101 of the 
        Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).

SEC. 3. CONTROLLED UNCLASSIFIED INFORMATION FRAMEWORK.

    (a) Controlled Unclassified Information Office.--There is 
established within the National Archives and Records Administration a 
Controlled Unclassified Information Office, which shall be headed by a 
Director, who shall be appointed by, and report directly to, the 
Archivist of the United States.
    (b) Authorities and Responsibilities.--The Archivist of the United 
States, acting through the Director of the Controlled Unclassified 
Information Office, shall--
            (1) in consultation with the Council, develop and publicly 
        issue the controlled unclassified information framework and 
        controlled unclassified information implementation guidance 
        (including appropriate recommendations to State, local, and 
        tribal governments, law enforcement agencies, and private 
        sector entities for implementing the controlled unclassified 
        information framework) that are consistent with this Act and 
        the document issued by the President on May 7, 2008, entitled 
        ``Designation and Sharing of Controlled Unclassified 
        Information (CUI)'', and any successor thereto;
            (2) establish safeguarding and dissemination controls, and, 
        upon a determination that extraordinary circumstances warrant 
        the use of additional controlled unclassified information 
        markings, authorize the use of such additional markings;
            (3) establish and serve as the chairperson of the Council 
        and work with the members of the Council to develop a consensus 
        regarding the contents of the controlled unclassified 
        information framework;
            (4) for any aspect of the controlled unclassified 
        information framework relating to which the Council is not able 
        to reach a consensus, consult with the chairperson of the 
        Information Sharing Council;
            (5) establish, approve, and maintain safeguarding standards 
        and dissemination instructions for controlled unclassified 
        information, including specified dissemination requirements 
        proposed by the head of a Federal department or agency;
            (6) publish controlled unclassified information 
        safeguarding and dissemination standards and instructions;
            (7) establish standards for the designating of controlled 
        unclassified information;
            (8) monitor compliance by each Federal department or agency 
        with controlled unclassified information policy, standards, and 
        markings;
            (9) establish baseline training requirements and develop a 
        Governmentwide controlled unclassified information training 
        program to be implemented by each Federal department or agency;
            (10) provide appropriate information regarding the 
        controlled unclassified information framework to Congress, 
        State, local, and tribal governments, private sector entities, 
        and relevant experts;
            (11) advise the head of each Federal department or agency 
        on the resolution by the Council of complaints and disputes 
        among Federal departments or agencies concerning the proper 
        designation or marking of controlled unclassified information;
            (12) ensure that all relevant documents regarding the 
        controlled unclassified information framework, including 
        implementation guidance issued by the Archivist of the United 
        States, implementation guidance issued by the head of the 
        Federal department or agency, safeguarding and dissemination 
        standards and instructions, specified dissemination 
        requirements proposed by the head of a Federal department or 
        agency under paragraph (5), and the annual report required 
        under subsection (j)(1), are made available on the website of 
        the National Archives and Records Administration in a timely 
        manner; and
            (13) establish, in consultation with any affected Federal 
        department or agency, a process that addresses enforcement 
        mechanisms and penalties for improper handling of controlled 
        unclassified information.
    (c) Controlled Unclassified Information Council.--
            (1) Establishment.--There is established as a subcommittee 
        of the Information Sharing Council a Controlled Unclassified 
        Information Council.
            (2) Members.--The head of each Federal department or agency 
        that has a representative on the Information Sharing Council 
        and any other Federal department or agency determined 
        appropriate by the Archivist of the United States shall appoint 
        a representative to the Council, who may be the officer or 
        employee appointed by the head of the Federal department or 
        agency as a member of the Information Sharing Council.
    (d) Responsibilities of the Council.--The Council shall--
            (1) serve as the primary advisor to the Archivist of the 
        United States on issues relating to the controlled unclassified 
        information framework;
            (2) advise the Archivist of the United States in developing 
        procedures, guidelines, and standards necessary to establish, 
        implement, and maintain the controlled unclassified information 
        framework;
            (3) ensure coordination among each Federal department or 
        agency participating in the controlled unclassified information 
        framework;
            (4) advise the Archivist of the United States on the 
        resolution of complaints and disputes among Federal departments 
        or agencies about proper designation or marking of controlled 
        unclassified information; and
            (5) as appropriate, consult with any other subcommittee of 
        the Information Sharing Council, Congress, State, local, and 
        tribal governments, private sector entities, and relevant 
        experts.
    (e) Agency Responsibilities.--The head of each Federal department 
or agency that uses controlled unclassified information shall--
            (1) implement the controlled unclassified information 
        framework consistent with the implementation guidance issued 
        under subsection (b)(1);
            (2) publicly issue guidance for the implementation of the 
        controlled unclassified information framework within the 
        Federal department or agency, consistent with the 
        implementation guidance issued under subsection (b)(1);
            (3) designate an appropriately qualified senior officer 
        with the Federal department or agency as the representative of 
        the Federal department or agency on the Council;
            (4) implement a controlled unclassified information 
        training program for the Federal department or agency, based on 
        the Governmentwide training program established under 
        subsection (b)(9), and ensure all appropriate personnel 
        understand controlled unclassified information policies and 
        procedures, and can apply them when creating, disseminating, or 
        safeguarding controlled unclassified information material;
            (5) establish a process that enables the Federal department 
        or agency to address noncompliance with or misuse of the 
        controlled unclassified information framework within the 
        Federal department or agency (including a process that allows 
        an officer or employee of the Federal department or agency to 
        challenge the use of controlled unclassified information 
        markings), and ensure management and oversight issues or 
        concerns can be resolved by the appropriate officer of the 
        Federal department or agency;
            (6) establish a process within the Federal department or 
        agency that, where appropriate, promptly raises to the 
        Archivist of the United States matters of concern regarding the 
        controlled unclassified information framework;
            (7) consistent with the standards established under 
        subsection (b)(7), and where appropriate, develop tools to 
        track and monitor the designation of controlled unclassified 
        information by employees and contractors of the Federal 
        department or agency, for the purpose of assessing compliance 
        with and detecting the misuse of the controlled unclassified 
        information framework;
            (8) provide training to officers and employees of the 
        Federal department or agency on the controlled unclassified 
        information framework; and
            (9) ensure that, not later than May 9, 2013, the Federal 
        department or agency has fully implemented the controlled 
        unclassified information framework, consistent with policies, 
        guidance, and standards established by the Archivist of the 
        United States.
    (f) Implementation of the Controlled Unclassified Information 
Framework.--In carrying out subsection (e), the head of a Federal 
department or agency shall ensure that--
            (1) information is designated as controlled unclassified 
        information and includes an authorized controlled unclassified 
        information marking only if--
                    (A) a statute requires or authorizes such a 
                designation and marking; or
                    (B) the head of the Federal department or agency, 
                through a regulation, directive, or other specific 
                guidance to the Federal department or agency that has 
                been submitted to and approved by the Archivist of the 
                United States and published on the website of the 
                National Archives and Records Administration, 
                determines that the information is controlled 
                unclassified information based on criteria established 
                by the Archivist of the United States, in consultation 
                with the heads of Federal departments and agencies;
            (2) notwithstanding paragraph (1), information is not 
        designated as controlled unclassified information--
                    (A) to conceal a violation of law, inefficiency, or 
                administrative error;
                    (B) to prevent embarrassment to the Federal 
                Government, a State, local, tribal, or territorial 
                government, any official, department, agency, or 
                organization of the Federal Government or a State, 
                local, tribal, or territorial government, or any 
                organization;
                    (C) to improperly or unlawfully interfere with 
                competition in the private sector;
                    (D) to prevent or delay the release of information 
                that does not require such protection;
                    (E) if the information is required to be made 
                available to the public; or
                    (F) if the information has already been released to 
                the public under proper authority; and
            (3) the controlled unclassified information framework is 
        administered in a manner that ensures that--
                    (A) information sharing within the Federal 
                Government and with State, local, tribal, and 
                territorial governments, the private sector, and the 
                public is enhanced and improved as a result of the 
                implementation of the controlled unclassified 
                information framework;
                    (B) all policies and standards of the Federal 
                department or agency for the designation, marking, 
                safeguarding, and dissemination of controlled 
                unclassified information are consistent with the 
                controlled unclassified information framework and any 
                other policies, guidelines, procedures, instructions, 
                or standards established by the President, including in 
                any Presidential memoranda or executive orders;
                    (C) the controlled unclassified information 
                framework is implemented in a manner consistent with 
                applicable law, including Federal and State laws 
                protecting the privacy rights and other legal rights of 
                United States persons;
                    (D) the number of employees and contractors of the 
                Federal department or agency who have the authority to 
                designate information as controlled unclassified 
                information is limited appropriately;
                    (E) controlled unclassified information markings 
                are not a determinant of public disclosure under 
                section 552 of title 5, United States Code (commonly 
                referred to as the ``Freedom of Information Act'');
                    (F) controlled unclassified information markings 
                are placed on archived or legacy material whenever 
                circulated, consistent with the controlled unclassified 
                information framework and any other policies, 
                guidelines, procedures, instructions, or standards 
                established by the President, including in any 
                executive memorandum or executive order;
                    (G) material that contains controlled unclassified 
                information and information that is not controlled 
                unclassified information, or that contains multiple 
                categories of controlled unclassified information, is 
                marked accordingly by portions such that those 
                categorical distinctions are apparent; and
                    (H) the controlled unclassified information 
                framework supersedes any policy or procedure relating 
                to the creation, control, and sharing of sensitive but 
                unclassified information issued by the Federal 
                department or agency before the date of enactment of 
                this Act, except where otherwise provided by law.
    (g) Public Access to Unclassified Information.--A Federal 
department or agency shall make available to members of the public all 
controlled unclassified information and other unclassified information 
in the possession of the Federal department or agency that may be 
released under an appropriate request under section 552 of title 5, 
United States Code (commonly referred to as the ``Freedom of 
Information Act'').
    (h) Rule of Construction.--Nothing in this section may be construed 
to prevent or discourage a Federal department or agency from 
voluntarily releasing to the public any unclassified information that 
is not exempt from disclosure under section 552 of title 5, United 
States Code (commonly referred to as the ``Freedom of Information 
Act'').
    (i) Congressional Access to Unclassified Information.--The right of 
Congress to obtain access to and release unclassified information, 
including controlled unclassified information, shall remain unimpeded 
by the provisions of this Act.
    (j) Reporting and Oversight Requirements.--
            (1) Annual report.--
                    (A) In general.--Not less frequently than once each 
                year, the Archivist of the United States shall submit 
                to Congress a report on the implementation of the 
                controlled unclassified information framework.
                    (B) Contents.--Each report submitted under 
                subparagraph (A) shall include--
                            (i) an overall assessment on the 
                        implementation of the controlled unclassified 
                        information framework by the Federal 
                        Government;
                            (ii) an assessment of the efforts by each 
                        Federal department or agency to implement the 
                        controlled unclassified information framework;
                            (iii) an estimate of the costs and savings 
                        associated with the implementation of the 
                        controlled unclassified information framework;
                            (iv) a description of the activities of the 
                        Council; and
                            (v) recommendations on how to improve the 
                        sharing of controlled unclassified information 
                        within the Federal Government and with State, 
                        local and tribal governments.
            (2) Inspectors general.--Not later than 5 years after the 
        date of enactment of this Act, the Inspectors General of each 
        Federal department or agency that is a member of the 
        Information Sharing Council and the Inspectors General of the 
        Environmental Protection Agency and Nuclear Regulatory 
        Commission shall--
                    (A) audit the compliance of the applicable Federal 
                department or agency with this Act and the policies and 
                procedures established under the controlled 
                unclassified information framework; and
                    (B) submit a report on the findings of the audit by 
                the Inspector General under this paragraph to--
                            (i) the Committee on Oversight and 
                        Government Reform of the House of 
                        Representatives;
                            (ii) the Committee on Homeland Security and 
                        Governmental Affairs of the Senate;
                            (iii) any other committee of Congress with 
                        jurisdiction of the applicable Federal 
                        department or agency, as appropriate; and
                            (iv) the Archivist of the United States.
    (k) Authorization of Appropriations.--There are authorized to be 
appropriated to the Archivist of the United States to carry out this 
Act--
            (1) $2,500,000 for fiscal year 2009;
            (2) $2,500,000 for fiscal year 2010;
            (3) $3,500,000 for fiscal year 2011;
            (4) $3,500,000 for fiscal year 2012; and
            (5) $2,500,000 for fiscal year 2013.
                                                      Calendar No. 1106

110th CONGRESS

  2d Session

                                S. 3662

_______________________________________________________________________

                                 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.

_______________________________________________________________________

            October 1 (legislative day, September 17), 2008

                 Read twice and placed on the calendar