[Title 32 CFR 2003.20]
[Code of Federal Regulations (annual edition) - July 1, 2009 Edition]
[Title 32 - NATIONAL DEFENSE]
[Subtitle B - Other Regulations Relating to National Defense]
[Chapter Xx - INFORMATION SECURITY OVERSIGHT OFFICE, NATIONAL ARCHIVES AND]
[Part 2003 - NATIONAL SECURITY INFORMATION_STANDARD FORMS]
[Subpart B - Prescribed Forms]
[Sec. 2003.20 - Classified Information Nondisclosure Agreement: SF 312;]
[From the U.S. Government Printing Office]


32NATIONAL DEFENSE62009-07-012009-07-01false2003.20Sec. 2003.20NATIONAL DEFENSEOther Regulations Relating to National DefenseINFORMATION SECURITY OVERSIGHT OFFICE, NATIONAL ARCHIVES ANDNATIONAL SECURITY INFORMATION_STANDARD FORMSPrescribed Forms
Sec. 2003.20  Classified Information Nondisclosure Agreement: SF 312; 

Classified Information Nondisclosure Agreement: SF 189; Classified Information 

Nondisclosure Agreement (Industrial/Commercial/Non-Government): SF 189-A.

    (a) SF 312, SF 189, and SF 189-A are nondisclosure agreements 
between the United States and an individual. The prior execution of at 
least one of these agreements, as appropriate, by an individual is 
necessary before the United States Government may grant that individual 
access to classified information. From the effective date of this rule, 
September 29, 1988, the SF 312

[[Page 531]]

shall be used in lieu of both the SF 189 and the SF 189-A for this 
purpose. In any instance in which the language in the SF 312 differs 
from the language in either the SF 189 or SF 189-A, agency heads shall 
interpret and enforce the SF 189 or SF 189-A in a manner that is fully 
consistent with the interpretation and enforcement of the SF 312.
    (b) All employees of executive branch departments, and independent 
agencies or offices, who have not previously signed the SF 189, must 
sign the SF 312 before being granted access to classified information. 
An employee who has previously signed the SF 189 is permitted, at his or 
her own choosing, to substitute a signed SF 312 for the SF 189. In these 
instances, agencies shall take all reasonable steps to dispose of the 
superseded nondisclosure agreement or to indicate on it that it has been 
superseded.
    (c) All Government contractor, licensee, and grantee employees, or 
other non-Government personnel requiring access to classified 
information in the performance of their duties, who have not previously 
signed either the SF 189 or the SF 189-A, must sign the SF 312 before 
being granted access to classified information. An employee who has 
previously signed either the SF 189 or the SF 189-A is permitted, at his 
or her own choosing, to substitute a signed SF 312 for either the SF 189 
or the SF 189-A. In these instances, agencies, with the cooperation of 
the pertinent contractor, licensee or grantee, shall take all reasonable 
steps to dispose of the superseded nondisclosure agreement or to 
indicate on it that it has been superseded.
    (d) Agencies may require other persons, who are not included under 
paragraphs (b) or (c) of this section, and who have not previously 
signed either the SF 189 or the SF 189-A, to execute SF 312 before 
receiving access to classified information. A person in such 
circumstances who has previously signed either the SF 189 or the SF 189-
A is permitted, at his or her own choosing, to substitute a signed SF 
312 for either the SF 189 or the SF 189-A. In these instances, agencies 
shall take all reasonable steps to dispose of the superseded 
nondisclosure agreement or to indicate on it that it has been 
superseded.
    (e) The use of the ``Security Debriefing Acknowledgement'' portion 
of the SF 312 is optional at the discretion of the implementing agency.
    (f) An authorized representative of a contractor, licensee, grantee, 
or other non-Government organization, acting as a designated agent of 
the United States, may witness the execution of the SF 312 by another 
non-Government employee, and may accept it on behalf of the United 
States. Also, an employee of a United States agency may witness the 
execution of the SF 312 by an employee, contractor, licensee or grantee 
of another United States agency, provided that an authorized United 
States Government official or, for non-Government employees only, a 
designated agent of the United States subsequently accepts by signature 
the SF 312 on behalf of the United States.
    (g) The provisions of the SF 312, the SF 189, and the SF 189-A do 
not supersede the provisions of section 2302, title 5, United States 
Code, which pertain to the protected disclosure of information by 
Government employees, or any other laws of the United States.
    (h)(1) Modification of the SF 189. The second sentence of paragraph 
1 of every executed copy of the SF 189 is clarified to read:

    As used in this Agreement, classified information is marked or 
unmarked classified information, including oral communications, that is 
classified under the standards of Executive Order 12356, or under any 
other Executive order or statute that prohibits the unauthorized 
disclosure of information in the interest of national security; and 
unclassified information that meets the standards for classification and 
is in the process of a classification determination as provided in 
sections 1.1(c) and 1.2(e) of Executive Order 12356, or under any other 
Executive order or statute that requires protection for such information 
in the interest of national security.

    (2) Scope of ``classified information''. As used in the SF 312, the 
SF 189, and the SF 189-A, ``classified information'' is marked or 
unmarked classified information, including oral communications; and 
unclassified information that meets the standards for classification and 
is in the process of a classification determination, as provided in 
sections 1.1(c) and 1.2(e) of Executive

[[Page 532]]

Order 12356 or any other statute or Executive order that requires 
interim protection for certain information while a classification 
determination is pending. ``Classified information'' does not include 
unclassified information that may be subject to possible classification 
at some future date, but is not currently in the process of a 
classification determination.
    (3) Basis for liability. A party to the SF 312, SF 189 or SF 189-A 
may be liable for disclosing ``classified information'' only if he or 
she knows or reasonably should know that: (i) The marked or unmarked 
information is classified, or meets the standards for classification and 
is in the process of a classification determination; and (ii) his or her 
action will result, or reasonably could result in the unauthorized 
disclosure of that information.

In no instance may a party to the SF 312, SF 189 or SF 189-A be liable 
for violating its nondisclosure provisions by disclosing information 
when, at the time of the disclosure, there is no basis to suggest, other 
than pure speculation, that the information is classified or in the 
process of a classification determination.
    (4) Modification of the SF 312, SF 189 and SF 189-A. (i) Each 
executed copy of the SF 312, SF 189 and SF 189-A, whether executed prior 
to or after the publication of this rule, is amended to include the 
following paragraphs 10 and 11.

    10. These restrictions are consistent with and do not supersede, 
conflict with or otherwise alter the employee obligations, rights or 
liabilities created by Executive Order 12356; section 7211 of title 5 
U.S.C. (governing disclosures to Congress); section 1034 of title 10 
U.S.C., as amended by the Military Whistleblower Protection Act 
(governing disclosure to Congress by members of the military); section 
2302(b)(8) of title 5 U.S.C., as amended by the Whistleblower Protection 
Act (governing disclosures of illegality, waste, fraud, abuse or public 
health or safety threats); the Intelligence Identities Protection Act of 
1982 (50 U.S.C. 421 et seq.) (governing disclosures that could expose 
confidential Government agents), and the statutes which protect against 
disclosure that may compromise the national security, including sections 
641, 793, 794, 798, and 952 of title 18 U.S.C., and section 4(b) of the 
Subversive Activities Act of 1950 (50 U.S.C. section 783(b)). The 
definitions, requirements, obligations, rights, sanctions and 
liabilities created by said Executive Order and listed statutes are 
incorporated into this Agreement and are controlling.
    11. I have read this Agreement carefully and my questions, if any, 
have been answered. I acknowledge that the briefing officer has made 
available to me the Executive Order and statutes referenced in this 
Agreement and its implementing regulation (32 CFR 2003.20) so that I may 
read them at this time, if I so choose.

    (ii) The first sentence of paragraph 7 of each executed copy of the 
SF 312, SF 189 and SF 189-A, whether executed prior to or after the 
publication of this rule, is amended to read:

    I understand that all classified information to which I have access 
or may obtain access by signing this Agreement is now and will remain 
the property of, or under the control of the United States Government 
unless and until otherwise determined by an authorized official or final 
ruling of a court of law.


The second sentence of paragraph 7 of each executed copy of the SF 312 
(September 1988 version), SF 189 and SF 189-A, which reads, ``I do not 
now, nor will I ever, possess any right, interest, title or claim 
whatsoever to such information,'' and whether executed prior to or after 
the publication of this rule, is deleted.
    (i) Points of clarification. (1) As used in paragraph 3 of SF 189 
and SF-189-A, the word ``indirect'' refers to any situation in which the 
knowing, willful or negligent action of a party to the agreement results 
in the unauthorized disclosure of classified information even though the 
party to the agreement does not directly communicate, deliver or 
transmit classified information to a person who is not authorized to 
receive it.
    (2) As used in paragraph 7 of SF 189, ``information'' refers to 
``classified information,'' exclusively.
    (3) As used in the third sentence of paragraph 7 of SF 189 and SF 
189-A, the words ``all materials which have, or may have, come into my 
possession,'' refer to ``all classified materials which have or may come 
into my possession,'' exclusively.
    (j) Each agency must retain its executed copies of the SF 312, SF 
189, and SF 189-A in file systems from which an agreement can be 
expeditiously retrieved in the event that the United

[[Page 533]]

States must seek its enforcement or a subsequent employer must confirm 
its prior execution. The original, or a legally enforceable facsimile 
that is retained in lieu of the original, such as microfiche, microfilm, 
computer disk, or electronic storage medium, must be retained for 50 
years following its date of execution. For agreements executed by 
civilian employees of the United States Government, an agency may store 
the executed copy of the SF 312 and SF 189 in the United States Office 
of Personnel Management's Official Personnel Folder (OPF) as a long-term 
(right side) document for that employee. An agency may permit its 
contractors, licensees and grantees to retain the executed agreements of 
their employees during the time of employment. Upon the termination of 
employment, the contractors, licensee or grantee shall deliver the 
original or legally enforceable facsimile of the executed SF 312, SF 189 
or SF 189-A of that employee to the Government agency primarily 
responsible for his or her classified work. A contractor, licensee or 
grantee of an agency participating in the Defense Industrial Security 
Program shall deliver the copy or legally enforceable facsimile of the 
executed SF 312, SF 189 or SF 189-A of a terminated employee to the 
Defense Industrial Security Clearance Office. Each agency shall inform 
ISOO of the file systems that it uses to store these agreements for each 
category of affected individuals.
    (k) Only the National Security Council may grant an agency's request 
for a waiver from the use of the SF 312. To apply for a waiver, an 
agency must submit its proposed alternative nondisclosure agreement to 
the Director of ISOO, along with a justification for its use. The 
Director of ISOO will request a determination about the alternative 
agreement's enforceability from the Department of Justice prior to 
making a recommendation to the National Security Council. An agency that 
has previously received a waiver from the use of the SF 189 or the SF 
189-A need not seek a waiver from the use of the SF 312.
    (l) The national stock number for the SF 312 is 7540-01-280-5499.

[53 FR 38279, Sept. 29, 1988, as amended at 56 FR 2645, Jan. 23, 1991; 
56 FR 27559, June 14, 1991]