[Federal Register Volume 81, Number 178 (Wednesday, September 14, 2016)]
[Rules and Regulations]
[Pages 63324-63347]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-21665]



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Vol. 81

Wednesday,

No. 178

September 14, 2016

Part IV





National Archives and Records Administration





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Information Security Oversight Office





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32 CFR Part 2002





Controlled Unclassified Information; Final Rule

  Federal Register / Vol. 81 , No. 178 / Wednesday, September 14, 2016 
/ Rules and Regulations  

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NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

Information Security Oversight Office

32 CFR Part 2002

[FDMS No. NARA-15-0001; NARA-2016-048]
RIN 3095-AB80


Controlled Unclassified Information

AGENCY: Information Security Oversight Office, NARA.

ACTION: Final rule.

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SUMMARY: As the Federal Government's Executive Agent (EA) for 
Controlled Unclassified Information (CUI), the National Archives and 
Records Administration (NARA), through its Information Security 
Oversight Office (ISOO), oversees the Federal Government-wide CUI 
Program. As part of that responsibility, ISOO is issuing this rule to 
establish policy for agencies on designating, safeguarding, 
disseminating, marking, decontrolling, and disposing of CUI, self-
inspection and oversight requirements, and other facets of the Program. 
The rule affects Federal executive branch agencies that handle CUI and 
all organizations (sources) that handle, possess, use, share, or 
receive CUI--or which operate, use, or have access to Federal 
information and information systems on behalf of an agency.

DATES: This rule is effective November 14, 2016. The Director of the 
Federal Register approves the incorporation by reference of certain 
publications listed in the rule as of November 14, 2016.

FOR FURTHER INFORMATION CONTACT: Kimberly Keravuori, by email at 
[email protected], or by telephone at 301-837-3151. You may 
also find more information about the CUI Program, and some FAQs, on 
NARA's Web site at http://www.archives.gov/cui/.

SUPPLEMENTARY INFORMATION:

Background

    In November 2010, the President issued Executive Order 13556, 
Controlled Unclassified Information, 75 FR 68675 (November 4, 2010) 
(the Order) to ``establish an open and uniform program for managing 
[unclassified] information that requires safeguarding or dissemination 
controls.'' Prior to that time, more than 100 different markings for 
such information existed across the executive branch. This ad hoc, 
agency-specific approach created inefficiency and confusion, led to a 
patchwork system that failed to adequately safeguard information 
requiring protection, and unnecessarily restricted information-sharing.
    As a result, the Order established the Controlled Unclassified 
Information (CUI) Program to standardize the way the executive branch 
handles information that requires safeguarding or dissemination 
controls (excluding information that is classified under Executive 
Order 13526, Classified National Security Information, 75 FR 707 
(December 29, 2009), or any predecessor or successor order; or the 
Atomic Energy Act of 1954 (42 U.S.C. 2011, et seq), as amended). To 
develop policy and provide oversight for the CUI Program, the Order 
also appointed NARA as the CUI EA. NARA has delegated this authority to 
the Director of ISOO, a NARA component.

Regulatory Analysis

Review Under Executive Orders 12866 and 13563

    Executive Order 12866, Regulatory Planning and Review, 58 FR 51735 
(September 30, 1993), and Executive Order 13563, Improving Regulation 
and Regulation Review, 76 FR 23821 (January 18, 2011), direct agencies 
to assess all costs and benefits of available regulatory alternatives 
and, if regulation is necessary, to select regulatory approaches that 
maximize net benefits (including potential economic, environmental, 
public health and safety effects, distributive impacts, and equity). 
This final rule is ``significant'' under section 3(f) of Executive 
Order 12866 because it sets out a new program for Federal agencies. The 
Office of Management and Budget (OMB) has reviewed this regulation.

Review Under the Regulatory Flexibility Act (5 U.S.C. 601, et seq.)

    Although this rule is not subject to the Regulatory Flexibility 
Act, see 5 U.S.C. 553(a)(2), 601(2), NARA has considered whether this 
rule, if promulgated, would have a significant economic impact on a 
substantial number of small entities (5 U.S.C. 603). NARA certifies, 
after review and analysis, that this rule will not have a significant 
adverse economic impact on a substantial number of small entities.

Review Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.)

    This final rule does not contain any information collection 
requirements subject to the Paperwork Reduction Act.

Review Under Executive Order 13132, Federalism, 64 FR 43255 (August 4, 
1999)

    Review under Executive Order 13132 requires that agencies review 
regulations for Federalism effects on the institutional interest of 
states and local governments, and, if the effects are sufficiently 
substantial, prepare a Federal assessment to assist senior policy 
makers. This rule will not have any direct effects on state and local 
governments within the meaning of the Executive Order. Therefore, the 
regulation requires no Federalism assessment.

Public Comments

General

    NARA published a proposed version of this rule in the Federal 
Register on May 5, 2015 (80 FR 26501), with a 60-day public comment 
period ending on July 7, 2015. We received 29 written responses, 
totaling 245 individual comments, and numerous phone calls, email 
questions, and requests for information or clarification. Comments came 
from individuals, contractors, businesses, non-government 
organizations, academic and research organizations, state 
organizations, Federal agencies, and Representative Bennie G. Thompson, 
ranking member of the House Committee on Homeland Security. Most 
commenters, including Congressman Thompson, were in support of the CUI 
Program and the goals and structure of the regulation. Most also 
offered suggestions to clarify or revise provisions or had questions or 
confusion regarding particular provisions. Of particular concern to a 
number of commenters was the distinction between contractors and other 
non-executive branch entities, and the distinction between what is set 
out in the regulation and what will instead be contained in written 
agreements with agencies. We have made a number of changes to the 
regulation to address these and other similar topics.
    Several commenters recommended we establish more stringent controls 
on CUI, and some commenters recommended we impose less stringent 
controls. We have declined to make either change. The CUI Program must 
balance two goals that may sometimes compete with each other--ensuring 
standardized controls to the extent necessary to protect information, 
and ensuring standardized controls to enable authorized sharing of 
information. We must also balance between some agencies' needs for free 
exchange of information with multiple partners in a wide variety of 
circumstances and other

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agencies' needs for limitations on access to protected information, and 
balance the desired end result against the potential burden of re-
marking documents, training staff, and similar activities. Therefore, 
the controls established for CUI are between the two ends recommended 
in many comments. However, we have revised several sections of the rule 
in response to both public and agency comments to more clearly explain 
how the different levels of CUI interact, the basis for CUI controls, 
what levels of control agencies may impose within the agency and 
outside the agency, the rules governing written agreements and 
information sharing, CUI marking and how to treat legacy information, 
destruction options, controls on dissemination, and other similar 
subject areas also expressed by the commenters.

CUI Security Standards and Application Outside the Federal Government

    We received a few comments, primarily from academic and research 
entities, asserting that the safeguarding requirements required by the 
proposed regulation, and the guidance in the new National Institute of 
Standards and Technology (NIST) Special Publication (SP) 800-171, 
Protecting Controlled Unclassified Information in Non-Federal 
Information Systems and Organizations, would be too extreme and 
burdensome, and would cost these entities potentially a great deal of 
money to implement. These commenters were unable to determine a more 
specific estimated cost without prolonged study and assessment. 
However, their concerns arose primarily from the nature of their 
current systems--which apparently do not comply with statutory and 
other information security controls that already applied to Federal 
information before this rule was drafted, and continue to apply. 
Apparently, the systems are also heavily decentralized, unmonitored, 
and open, to enable people to work with the information across a wide 
range of locations and to share information and resources freely. These 
commenters suggested providing additional public response time to 
assess the burden of implementing this regulation and NIST SP 800-171 
because one standard comment period was insufficient time for them to 
consider all the impacts of implementing the NIST standards. They also 
suggested lower controls or exceptions to controlling the information 
when in the hands of such entities, and other reductions in the 
security requirements for CUI while in their hands. We have declined 
both suggestions for the reasons described below.
    The Federal Government receives a great deal of information from 
individuals, businesses, and other entities that it is required to 
protect. This is not an optional set of requirements and the burden on 
the Federal Government of meeting these requirements is huge. It costs 
the Government billions of dollars to keep its information, systems, 
and facilities secure. But the American people expect their Government 
to appropriately safeguard sensitive information, and with good reason. 
When the Government provides controlled information to a non-executive 
branch entity, sometimes pursuant to a contract or other agreement, it 
does not make sense for the protection requirements to disappear or 
lessen just because the Government has shared the information. In fact, 
the protection requirements do not disappear or lessen. The Federal 
Government remains obligated to ensure that the information remains 
protected. It would be nonsensical to require the Government to protect 
and control information but to simultaneously allow others to leave the 
same information unprotected. The dispositive issues are not who 
protects the information, whether it is difficult or costly to protect 
it, or even how one goes about protecting it; the dispositive issue is 
that certain laws or similar authority require the Government, and by 
extension, those who handle or receive it, to protect this information.
    Agencies must be able to provide protected information to law 
enforcement organizations to facilitate criminal investigations, 
provide people who served in the military (or their authorized 
relative) with copies of their military records so they can seek 
benefits, provide technological specifications or demographic and other 
personal information to contractors and researchers developing 
technology or conducting studies, share information on infectious 
diseases and epidemics with other health organizations locally or 
around the world to engage in joint efforts to contain them, and more. 
These information-sharing needs must still occur within the parameters 
permitted by the laws, regulations, or Government-wide policies that 
govern access to the information, and must be balanced by protection 
requirements. Sharing that information with non-executive branch 
entities is easier and can occur more extensively if those entities are 
complying with the same levels of protection controls. As a result of 
these reasons, and others set out in comment responses below, we 
decline to reduce or eliminate this rule's protection controls for 
information agencies share with non-executive branch entities.
    Most of these comments on burden and time did not cite burdens 
arising from the rule itself. Instead, they cited the burden of 
implementing the recently published NIST SP 800-171.
    The NIST SP 800-171, incorporated by reference in this final rule, 
establishes guidance for protecting CUI in non-Federal systems: (1) 
When the CUI is resident in non-Federal information systems and 
organizations; (2) when the information systems where the CUI resides 
are not used or operated by contractors of Federal agencies or other 
organizations on behalf of those agencies; and (3) when the authorizing 
law, Federal regulation, or Government-wide policy listed in the CUI 
Registry for the CUI category or subcategory does not prescribe 
specific safeguarding requirements for protecting the CUI's 
confidentiality.

Federal Information Systems Modernization Act (FISMA), 44 U.S.C. 3541, 
et seq, Information Security Requirements, NIST and FIPS Standards, 
This Regulation, and Moderate Confidentiality Impact Value

    With regard to the information security standards incorporated by 
reference in the rule, the framework established by FISMA requires most 
Federal agencies to apply the standards in Federal Information 
Processing Standards (FIPS) Publication 199, Standards for Security 
Categorization of Federal Information and Information Systems, and FIPS 
Publication 200, Minimum Security Requirements for Federal Information 
and Information Systems. FIPS Publication 200 requires most agencies to 
use NIST SP 800-53, Security and Privacy Controls for Federal 
Information Systems and Organizations, as the means by which agencies 
assess security risks to Federal information systems and select 
appropriate security controls and assurance requirements for them. Non-
executive branch entities that manage information systems on behalf of 
covered agencies are subject to these rules and requirements as though 
they are part of the agency.
    FIPS Publication 199, FIPS Publication 200, NIST SP 800-53, NIST SP 
800-88, and NIST SP 800-171 are incorporated by reference into this 
final rule. They are free and available for download from the NIST Web 
site at http://www.nist.gov/publication-portal.cfm. FIPS Publication 
199 requires covered Federal agencies to categorize their information 
systems in each of the security objectives of

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confidentiality, integrity, and availability, including rating each 
system as low, moderate, or high impact in each category. This CUI rule 
does not mandate the use of FIPS Publication 199; FISMA establishes the 
requirement to use FIPS Publication 199. Nor does it incorporate the 
extensive standards set out in FIPS Publication 199 for how agencies go 
about categorizing and rating their systems, which are beyond the scope 
of this rule. Instead, within that already-established framework 
governing Federal information systems, this regulation requires 
agencies to secure CUI (that is on information systems) by storing and 
using it only on information systems the agency categorizes at no less 
than the moderate confidentiality impact level (unless the authorizing 
law, regulation, or Government-wide policy listed in the CUI Registry 
for that CUI category or subcategory prescribes specific safeguarding 
requirements for protecting the confidentiality of that CUI).
    NIST SP 800-53, Security and Privacy Controls for Federal 
Information Systems and Organizations, and NIST SP 800-88, Guidelines 
for Media Sanitization, are also incorporated by reference because they 
set out methods by which agencies may sanitize equipment like 
photocopiers or destroy CUI to the appropriate degree.
    When agencies design and manage Federal information systems, they 
apply the FISMA. This rule informs them that, if their systems include 
CUI, they must incorporate the requirement to safeguard CUI at no less 
than the moderate confidentiality impact value into their design and 
management actions (unless the authorizing law, regulation, or 
Government-wide policy listed in the CUI Registry for that CUI category 
or subcategory prescribes specific safeguarding requirements for 
protecting the confidentiality of that CUI).

Comments

Sec. 2002.1 Purpose and Scope
    We received numerous comments on Sec.  2002.1. Some asked us to 
clarify certain provisions, like whether the regulation applies to 
contractors; whether there is a difference between contractors and non-
executive branch entities; when agencies must enter into contracts or 
other written agreements; what the difference is between contracts and 
written agreements, if any; whether the provisions apply to other forms 
of agreements, such as grants, licenses, certificates, cooperative 
agreements, etc.; and what recourse contractors have when handling CUI 
for an agency, to include sharing that information with other non-
executive branch entities.
    We determined from the number and scope of the comments that we 
needed to thoroughly revise this section to make it clearer. This 
section merely spells out that the regulation's scope of impact will 
include non-executive branch entities by means of the requirement on 
agencies to include contract or agreement provisions regarding CUI, 
when relevant. Accordingly, we have revised the language to not only 
state that the rule applies to only agencies directly, but to also show 
that by the organization of the section. We have revised the structure 
of Sec.  2002.1(e) [and Sec.  2002.16(a)(5)] to more clearly reflect 
this, and to clarify what agencies should do when they cannot enter 
into a written agreement containing a CUI handling provision of this 
kind.
    The rule now says that it applies only to executive branch 
agencies, but that, in written agreements (including contracts, grants, 
licenses, certificates, and other agreements) that involve CUI, 
agencies must include provisions that require the non-executive branch 
entity to handle the CUI in accordance with this rule, the Order, and 
the CUI Registry. These written agreement provisions will also help 
ensure that non-executive branch entities are aware of requirements 
associated with handling CUI, as appropriate.
    Information that non-executive branch entities generate themselves 
and that they do not create, collect, or possess for the Federal 
Government by definition does not constitute Federal CUI, nor would it 
fall within the provisions of a contract or information-sharing 
agreement covering CUI. We have slightly revised the definition of CUI 
under Sec.  2002.4 to make this clearer. We agree that contracts or 
solicitations for projects in which CUI will not be involved should not 
include requirements for handling CUI. This will be handled through the 
FAR case and other contracting practices, rather than through this 
regulation. If a contractor feels CUI requirements are included 
erroneously, they may object through normal contracting channels. Such 
subjects are outside the scope of this regulation.
    In response to comments regarding CNSS policies, we do not list 
particular applicable laws, regulations, or Government-wide policies in 
the regulation because listing some would create confusion regarding 
any not listed, and the list would be too long and would have to be 
updated whenever one was added, revised, or rescinded, which is not 
practical. However, the CUI Registry lists the categories and 
subcategories of CUI that laws, regulations, and Government-wide 
policies create or govern. When we determine whether to include a 
particular Government-wide policy in the CUI Registry, the primary 
consideration is whether that policy contains requirements for control 
of unclassified information. CNSS policies do not; they pertain only to 
classified national security information. There is no such thing as 
unclassified national security information, although national security 
systems may also contain information designated as CUI. As a result, 
the provision of the CUI rule regarding conflict does not apply to CNSS 
policies, even though they are arguably Government-wide policies. CUI 
policies neither require an agency to stop using the CNSS policy in 
deference to the CUI regulation, nor permit agencies to apply CNSS 
requirements to CUI outside the agency or in decisions to share the 
CUI.
    In contrast to Government-wide policies, agency-specific policies 
are ones that a particular agency has promulgated for its own use and 
the use of those who deal with that agency (including its contractors), 
and that are not codified in the U.S. Code, Code of Federal 
Regulations, or as a Government-wide policy. However, the rule does not 
prohibit agencies from promulgating agency-specific policies. Agencies 
are still able to set out agency policies and practices within their 
own documents and programs, and are, in fact, expected to promulgate 
CUI Program implementing policies within their agency to carry out the 
regulation's requirements. This provision makes it clear, however, that 
those agency-specific policies can not conflict with the regulation, 
the Order, or the CUI Registry.
    We also responded to comments about Sec. Sec.  2002.1(i), 
2002.13(d) (now 2002.16), and 2002.28 (now 2002.46), with regard to 
restrictions on disclosure set forth in this rule that readers could 
override policies that implement discovery obligations in litigation, 
whistleblower protections, and other lawful disclosures. The comment 
further expressed concern about the lack of whistleblower protection in 
the rule. In response to these concerns, we have revised Sec.  2002.27 
(now Sec.  2002.44) to state that the fact that an agency designates 
certain information as CUI does not affect an agency's or employee's 
determinations pursuant to any law that requires the agency or the 
employee to disclose that information or permits them to do so as a 
matter of discretion. We also included a Whistleblower Protection Act 
provision

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in that same section, and we revised Sec.  2002.22 (challenges to CUI 
designation; now Sec.  2002.50) (b)(5) to allow people the option of 
bringing challenges to CUI designation anonymously, and to prohibit 
retribution for bringing such challenges.
Sec. 2002.2 Definitions (Now Sec.  2002.4)
    We received comments on several definitions within this section. 
One comment asked if there are restrictions on who may be an 
``authorized holder,'' and pointed to provisions where it was not clear 
if an authorized holder should be the actor. We clarified throughout 
the regulation whether authorized holders or agencies are the actors. 
However, the rule does not specify who may be an authorized holder and 
we decline to add specific criteria. There are no simple, universal 
rules for authorized holders such as those the comment suggests (U.S. 
citizens, those with clearances, etc.), and the factors applicable are 
too multiple and cumbersome to include in a regulation. For some types 
of CUI, certain laws, regulations, or Government-wide policies 
establish who may be an authorized holder. Authorized holders may 
include people outside an agency who have a lawful Government purpose 
to have, transport, store, use, or process CUI, but also include people 
within an agency who must handle, process, store, or maintain CUI in 
the course of their jobs. Agencies differ widely in structure and size, 
so do not always have the same sets of staff positions or offices; 
designating particular people within agencies as authorized holders 
would thus not be practical. Lawful purposes to have CUI outside an 
agency also vary greatly with the differing missions of agencies and 
would be equally impractical to list. Agencies must therefore have the 
discretion to determine who is an authorized holder within the context 
of that agency's structure, missions, and governing authorities, and in 
compliance with the CUI EA's policies on handling CUI, including the 
requirements in this rule.
    We received a number of comments on the definitions of ``CUI,'' 
``CUI Basic,'' and ``CUI Specified.'' While the comments raised 
concerns with a variety of aspects of the definitions, they all 
involved confusion about the relationship of the two groupings of CUI--
Basic and Specified. As a result, we have revised all three definitions 
to more directly explain what each kind is and how they relate to each 
other. We have developed a clear set of requirements for CUI Basic that 
is the least burdensome and superfluous possible to uniformly cover all 
CUI that doesn't have a law, regulation, or Government-wide policy 
requiring different controls. The controls for CUI Specified categories 
are not something we can change because they are set by the governing 
law, regulation, or Government-wide policy, but by ensuring that every 
agency applies them consistently, we reduce burdens on agencies and 
external partners alike. The requirements for CUI Basic do not rise to 
the level of requirements for classified information, and if a given 
type of CUI Specified has classified-level controls, those are imposed 
by the information's governing authority, not by the CUI Program.
    Some comments expressed concern about certain categories of 
information that are subject to laws and Federal regulations that set 
out specific and detailed protection requirements for that information, 
and were worried that designating them as CUI would undermine those 
specific requirements and subject agencies and entities to legal 
penalties for not meeting them.
    We understand the concerns raised in these comments and agree that 
the penalties and consequences for failing to adequately protect CUI of 
some types may differ significantly from failure to protect CUI of 
other types. That being said, we cannot adjust the definition of CUI to 
exclude export controlled or other protected information; the Executive 
Order's definition of CUI is clear and includes all unclassified 
information that laws, regulations, and Government-wide policies 
require to have safeguarding or dissemination controls. However, this 
very concern is the reason why the CUI Program includes both CUI Basic 
and CUI Specified groups. When we reviewed all the types of protected 
unclassified information that existed across the Government, and 
reviewed all the authorities giving rise to each type, we were very 
aware that some types of protected information had specific protection 
requirements spelled out in laws--export-related information subject to 
confidentiality requirements under the Export Administration Act of 
1979, as amended (EAR), being one, the Confidential Information 
Protection and Statistical Efficiency Act (CIPSEA) being another--and 
they thus could not be handled in the same manner as the vast majority 
of other CUI types.
    CUI Basic covers the kinds of CUI that have a general requirement 
for safeguarding or disseminating controls, and sets a uniform set of 
handling requirements for all agencies to use on all types of CUI 
Basic. All CUI that does not have specific protections set out in a 
law, regulation, or Government-wide policy falls into CUI Basic 
categories. All CUI Basic categories will be controlled by the same 
standard--no less than `moderate' confidentiality, the lowest possible 
control level above the `low' standard already applied to all 
information systems without CUI. CUI Basic requirements are the 
baseline default requirements for protecting CUI, and apply to the vast 
majority to CUI.
    However, some CUI categories and subcategories may have higher, or 
different, requirements from the baseline ones if a law, regulation, or 
Government-wide policy requires or permits other controls for 
safeguarding or disseminating that information. CUI Specified, in 
contrast to CUI Basic, recognizes the types of CUI that have required 
or permitted controls included in their governing authorities, and each 
CUI Specified category or subcategory applies those other controls as 
required or permitted by the governing law, regulation, or policy.
    A number of CUI Specified categories are governed by laws with 
specific requirements and with higher penalties for failing to protect 
the information. We cannot exclude all of them from the definition of 
CUI, but we created the CUI Specified concept to reflect that these 
types of CUI have special requirements and should be differentiated 
from all other CUI.
    The regulation already provides for the CUI EA to consult with 
industry and other private sector partners on CUI matters, at Sec.  
2002.8(a)(2), which says, ``Consults with affected agencies, 
Government-wide policy bodies, State, local, tribal, and private sector 
partners, and representatives of the public on matters pertaining to 
CUI.'' However, we believe the comments are based in part on a 
misunderstanding of the CUI Registry, which already lists the 
categories and subcategories that constitute CUI. It is not an agency 
determination whether certain types of information qualify as CUI; the 
EA determines that a type of information qualifies as CUI when a law, 
regulation, or Government-wide policy requires that information's 
protection. That information is listed on the CUI Registry as a CUI 
category or subcategory and then qualifies as CUI for all agencies. 
Information, such as vendor proprietary information, that is not listed 
on the Registry does not qualify as CUI.
    The authorities that establish CUI categories and subcategories 
were in existence before the CUI Program and this regulation, and this 
regulation does not change those already-existing requirements or any 
categories created subsequent to this rule's promulgation. Agencies and 
their contractors should

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already be complying with the authorities governing CUI. This rule 
gathers a majority of CUI under one set of consistent requirements (CUI 
Basic), and standardizes how agencies comply throughout the executive 
branch, both of which reduce the cost of complying with controlled 
information requirements. This structure, the CUI Registry, NIST 
standards, and oversight functions by the CUI EA are designed to 
restrain over-broad application of controls on information. In 
addition, the CUI EA is developing a Federal Acquisition Regulation 
(FAR) case through the normal FAR process, for agencies to use in 
contracts, which will further reduce chances of overreach. However, we 
have revised language throughout the regulation to strengthen the 
admonition against over-broad application and to better distinguish 
between CUI Basic and CUI Specified and the types of controls applied 
for each.
    Additional comments recommended revisions to ``misuse of CUI,'' 
``non-executive branch entity,'' and ``unauthorized disclosure.'' We 
have accepted these comments and revised the definitions to address the 
concerns raised, with the exception of adding a separate definition for 
``contractors and vendors'' because those entities are treated the same 
way as other non-executive branch entities. We declined to accept the 
suggestion that we remove the term ``uncontrolled'' from the definition 
``uncontrolled unclassified information.'' We understand the concern 
that the term seems to be the same as ``unclassified information'' so 
the addition of ``uncontrolled'' isn't necessary and could cause 
confusion. However, we added the `uncontrolled' in response to comments 
from other agencies that `unclassified information' in the context of 
CUI was confusing. Any information that is not classified information 
qualifies as `unclassified' information. However, some unclassified 
information qualifies as controlled information under CUI and some does 
not. A piece of information might be classified and uncontrolled as 
CUI, unclassified but controlled as CUI, or unclassified and 
uncontrolled as CUI. This definition refers to only that last group, so 
it is necessary to label it in a way that identifies that it is both 
unclassified and uncontrolled.
Sec. 2002.4 Responsibilities (Now Sec.  2002.8)
    A few commenters suggested revisions to the EA responsibilities 
under Sec.  2002.4(a) (now Sec.  2002.8). These recommendations 
included adding responsibilities such as advising appropriate Federal 
officials who manage and monitor the application of the CUI Program in 
Federal contracts, continuously engaging with NIST to ensure standards 
applicable to contractors remain current and minimally burdensome, and 
maintaining the CUI Registry so it is current. Commenters also 
recommended adding a provision on the CUI Advisory Council under 
Subpart C; formally including a representative of the Federal 
contracting community as a member of the CUI Advisory Council, along 
with representatives of other non-executive branch entities; and adding 
a provision that, if the EA and an agency cannot reach agreement on 
agency policies, the issue can be raised through OMB to the President, 
if necessary.
    We agree with the intent of the recommendations, and the CUI EA 
already consults with the suggested organizations (Federal contracting 
officials, NIST, etc.), but we decided to combine them into one 
reference. Therefore, we have revised Sec.  2002.8(a)(2) to add 
``Government-wide policy bodies'' to the list of organizations with 
which the CUI EA consults on CUI matters. We also revised Sec.  
2002.8(a)(8) to read, ``Maintains and updates the CUI Registry as 
needed.''
    We also accepted the recommendation to address situations in which 
the EA and a party cannot resolve a dispute. This contingency is fully 
covered in the Order and is not limited to any specific area of CUI. 
Rather, it applies to any issue that arises with regard to implementing 
the Order. Section 2002.52, Dispute resolution, already sets out the 
resolution process when there are disputes and includes an agency's 
option to appeal through the Director of OMB, to the President. 
However, in light of this comment, we have revised 2002.52(g) to add a 
provision about how to proceed if there is a conflict with the EA.
    We revised the language of Sec.  2002.8(b)(2) to require agencies 
to include the CUI senior agency official in agency contact listings. 
The agency is tasked with designating both a CUI senior agency official 
and a CUI Program manager. Between them, these two roles oversee the 
agency's entire CUI planning and implementation program, including 
necessary training. Agencies have already been able and encouraged to 
designate these positions for more than a year, in part to enable them 
to plan ahead for necessary training so that it will occur in a timely 
manner.
Sec. 2002.10 CUI Registry, and 2002.11 (Now Sec.  2002.12) CUI 
Categories and Subcategories
    One commenter suggested that allowing the CUI Registry to be 
publicly accessible could compromise security by allowing others to 
know about handling procedures for protected information. Another felt 
that the CUI Registry should not be listed as the central repository 
for CUI information and guidance because they believe the Registry is 
currently an incomplete skeleton with no useful information. And a 
third comment raised a concern with Sec.  2002.12's provision that 
agencies may not control any unclassified information outside the CUI 
Program, which might mean law enforcement agencies could be prevented 
from establishing basic dissemination controls on their law enforcement 
investigative information.
    The CUI Advisory Council extensively discussed and deliberated 
about the potential security risk of a public CUI Registry, but decided 
that the current approach with the CUI Registry does not present such a 
risk. The CUI Registry does not set out the details of how agencies 
implement the prescribed CUI handling requirements. It instead points 
to the requirements (and permissible implementation options) that exist 
in governing authorities or standards publications. Most, if not all, 
of the information in the CUI Registry is already, or will be, publicly 
available through laws, regulations, Government-wide policies, NIST 
published standards, OMB memos, agency Web sites, Freedom of 
Information Act (FOIA) and similar requests, public contracts and the 
upcoming FAR case, agency policies implementing the CUI Program, and 
other similar sources.
    While it is true that currently the CUI Registry is incomplete in a 
few areas, that will change once this CUI implementing regulation 
becomes effective. The CUI Registry will be the central repository, as 
described, and the place for agencies to find up-to-date information 
related to carrying out CUI requirements and implementing the CUI 
Program.
    The provision in Sec.  2002.12 is correct as drafted. As provided 
in the Order, and with limited exception, agencies may not control 
unclassified information except consistently with the CUI Program. A 
law enforcement agency may control dissemination of sensitive 
investigative information if a law, regulation, or Government-wide 
policy requires or permits controls on dissemination of that kind of

[[Page 63329]]

information. If such authority exists, the information qualifies as CUI 
and the agency accordingly must (or may, if the authority permits 
discretion) implement controls on dissemination only to the extent and 
in the way required or permitted by the standards covering that kind of 
information. If an agency has sensitive investigative information that 
does not qualify as CUI--which means there is no law, regulation, or 
Government-wide policy that requires or permits controls on that 
information--then the agency cannot place controls on its 
dissemination. This is a question of whether the agency's authority to 
withhold the information is also reflected in laws, regulations, or 
Government-wide policies, not a question of the agency's substantive 
authorities or the CUI EA's authority. The EA's authority is to create 
a program that encompasses all the types of information a law, 
regulation, or Government-wide policy already requires or permits to be 
controlled and to establish a standardized way in which those controls 
are implemented across the executive branch. The CUI EA does not create 
the authority to control certain kinds of information; law, regulation, 
or Government-wide policy does.
Sec. 2002.12 Safeguarding (Now Sec.  2002.14)
    Commenters requested clarification on whether CUI Basic is the 
minimum for handling CUI and on the minimum requirements for physically 
safeguarding CUI, including the definition of a controlled environment; 
suggested adding the word ``timely'' to Sec.  2002.14(a)(1); 
recommended revising systems ``authorized or accredited for classified 
information are also sufficient for safeguarding CUI'' in Sec.  
2002.14(a)(3); and asked if the terms ``CUI Basic'' and ``CUI 
Specified'' are required in Sec.  2002.14(b) since the regulation 
references NIST SPs 800-53 and 800-171.
    We have revised the language in the Sec.  2002.4 definition of CUI, 
CUI Basic, and CUI Specified to clarify the distinction between CUI 
Basic and CUI Specified, when the requirements of each apply, and 
whether agencies may apply more restrictive controls. We have also 
revised the language of Sec.  2002.14(a)(1) to add in the word `timely' 
as recommended.
    We have also revised the language in 2002.4's definition of 
``controlled environment'' as recommended. However, we decline to spell 
out specific detailed physical requirements beyond those already 
included in the regulation. Instead, we have set out in the CUI 
Registry the requirements for CUI Basic, while applicable laws, 
regulations, or Government-wide policies set out the requirements for 
CUI Specified.
    Agencies have the discretion to choose different ways to meet the 
single physical barrier requirement to physically safeguard a given 
category or subcategory of CUI. The standard requires only that it be 
protected in a manner that minimizes the risk of unauthorized 
disclosure. In addition, another comment expressed concern about 
meeting the requirements for a controlled environment because many 
contractors have moved to open workstation environments and hoteling 
systems, where employees working on contracts for multiple agencies 
whose information must be protected are in the same space. This concern 
is likely due to a misunderstanding of what constitutes a controlled 
environment. To meet the requirement for a controlled environment, any 
separation from unauthorized people will suffice. In a cubicle 
situation with employees working on different contracts, each 
employee's cubicle would constitute a controlled environment for 
purposes of preventing visual access to the CUI as long as the CUI is 
under that employee's control. Such cases do not require additional 
construction for the visual aspect; the cubicle walls are sufficient. 
If an unauthorized person enters the cubicle, the authorized holder can 
close the CUI file or trigger a screen saver to block access to the 
CUI. If the authorized holder leaves their cubicle within an office 
environment where unauthorized people may also be working, they can 
appropriately secure the CUI within their cubicle, for example by 
placing it in a locked drawer or locking their computer screen so the 
information is not visible. However, discussions about CUI must also 
not be overheard by unauthorized people. Again, this does not require 
construction in open work environments or hoteling systems. For 
example, in hoteling environments separate rooms are still made 
available to employees for when ``sensitive discussions'' need to take 
place (performance appraisals, procurement or contracting discussions, 
medical-related discussions, etc). However, in other cases it might be 
appropriate for agencies to segregate some employee operation units 
from others and construction (more than a cubicle wall) could be 
necessary. The threshold is not burdensome, and permits agencies a 
variety of options by which to achieve it. The standard does not 
necessitate construction, although in some cases construction might be 
the way an agency achieves the controlled environment.
    With regard to the question whether we need the CUI Basic and 
Specified concepts in the regulation if NIST SP 800-53 or 800-171 
apply, we believe we do need those terms. The regulation explains the 
CUI Program and the structure that includes CUI Basic, CUI Specified, 
the CUI Registry, and categories and subcategories. These are terms 
that are part of the new CUI Program. The NIST publications set out 
standards and details for agencies to use when they are implementing 
certain information security controls, regardless of what type of 
information is involved. The CUI Program distinguishes between CUI 
Basic and CUI Specified, and informs agencies of what level of 
protection those kinds of information need. Agencies may then meet that 
requirement by implementing standards spelled out in the NIST 
publications.
    We received five comments on Sec.  2002.14(c) and (d). We have 
adopted the suggestion to include an overarching statement that an 
authorized holder must take reasonable precautions, and to include 
Sec.  2002.14(c)(1)-(4) as examples of reasonable precautions, albeit 
required ones. In Sec.  2002.14(c) and (d), we decline to change 
optional language into requirements. Some of these items are options 
agencies may use, and are not required. Not all agencies have the same 
resources or systems, so this section informs agencies of what they may 
do where there are options, what they must do when there are 
requirements, and encourages them to do some things that are not 
required (such as automated tracking systems), that may not be 
available in all cases but that aid in better securing the CUI.
    In response to the question about intelligence information, this 
provision in the regulation relates to section 6(d) of the Order. 
Section 6(d) authorizes the Director of National Intelligence to issue 
policy directives and guidance necessary to implement the CUI Program 
for the intelligence community; it does not connect with CUI categories 
and subcategories. The Director of National Intelligence is, in this 
regard, functioning for the intelligence community in a role akin to an 
overarching agency head who may approve agency policies to implement 
the CUI Program within that ``agency.''
    We received several comments on Sec.  2002.14(e) and (f), about 
destroying and sanitizing CUI or equipment that contained CUI. 
Primarily, the suggestions were to make destroying

[[Page 63330]]

and sanitizing methods and requirements optional, required only when 
practicable, or to allow alternative methods, although one comment 
requested that the regulation include a specific list of acceptable 
destruction methods. We decline these suggestions. However, due to the 
confusion that the comments indicated, we have revised the language on 
destroying CUI to more clearly articulate the required standard and the 
different sets of methods from which agencies may choose. The 
requirement is that agencies must destroy the CUI in a manner that 
renders it indecipherable, unreadable, and unrecoverable. Agencies must 
also follow any requirements for destroying CUI that are set out by 
laws, regulations, or Government-wide policies applicable to a given 
type of CUI. These are not optional or up to an agency's discretion.
    However, agencies may, if no applicable authority sets out specific 
requirements for destroying the type of CUI involved, choose to destroy 
the CUI by methods contained in any of the standards cited in this 
subsection--those in NIST SP 800-88, those in NIST SP 800-53, or 
classified destruction methods. These documents are updated to be in 
accord with the most technologically acceptable means to render a broad 
range of media indecipherable, unreadable, and unrecoverable, based on 
its confidentiality level. These cited standards documents are 
sufficiently flexible to allow agencies a variety of methods for 
destroying CUI, while ensuring that agencies meet the underlying 
requirement to render the information indecipherable, unreadable, and 
unrecoverable.
    A couple of commenters said that the rule seems to require the 
costly equipment needed to destroy classified information--such as 
equipment with memory wiping functions and designated shredders--or 
that agencies must destroy CUI using classified methods, particularly 
with regard to paper. However, this appears to be based on a 
misunderstanding of the provision. The required standard is to render 
the CUI indecipherable, unreadable, and unrecoverable. That standard 
does not require classified-level specialized equipment or methods 
required for destroying classified information, although agencies may 
use classified information methods if they choose. Due to issues in the 
past with information remaining on equipment such as copiers (which are 
usually leased and thus must be returned to vendors), most, if not all, 
agency contracts for copiers and other similar equipment that can save 
information on internal drives or other mechanisms must now include 
provisions for destroying those mechanisms or otherwise purging/
sanitizing them of the information so the information is 
indecipherable, unreadable, and unrecoverable. That practice has become 
the norm for most agency equipment already, and does not require costly 
or specialized equipment that is required for classified information. 
It is also a reasonable practice to better safeguard CUI, so we decline 
to remove or make the indecipherable, unreadable, and unrecoverable 
requirement optional. The current language in the regulation provides 
agencies with options other than classified destruction methods. In 
addition to methods prescribed by any applicable law, regulation, or 
Government-wide policy that specifies a requirement for destroying a 
particular type of information, agencies may use methods in NIST SP 
800-88 or methods in NIST SP 800-53. NIST SP 800-88 has clear guidance 
on destroying hard copy (paper and microfilms). The guidance sets out a 
specific particle size for cross-cut shredders, along with a particle 
size when an agency elects to pulverize or disintegrate paper.
    The information systems requirements set out in Sec.  2002.14(g) 
received a number of comments. The comments were primarily divided 
between concerns about application of NIST guidelines and standards, 
including to whom, how, and when they apply, and concerns about the 
moderate confidentiality impact value being applied to all CUI (some 
requesting that lower or higher values be allowed and others suggesting 
that agencies be permitted to make their own risk-based assessments on 
the level of protection). An additional comment recommended we clarify 
language in Sec.  2002.14(g) from ``existing'' to ``applicable'' so 
that future laws and policies will be included. We have made this 
change to this provision and others within the regulation.
    The purpose of the CUI Program is to provide a uniform and 
consistent system for protecting CUI throughout the executive branch. 
The baseline standard for protecting CUI Basic is moderate 
confidentiality. Given the need to protect CUI, a baseline of moderate 
confidentiality makes sense, because such protection is greater than 
low, the minimum requirement for all systems under the FISMA.
    For situations in which agencies share CUI with non-executive 
branch entities that are not operating an information system on behalf 
of the agency, agencies should establish understandings and agreements 
with those entities prior to sharing CUI.
    In accordance with the FISMA, all agency heads are responsible for 
ensuring the protection of Federal information and Federal information 
systems (``information systems used or operated by an agency or by a 
contractor of an agency or other organization on behalf of an agency,'' 
44 U.S.C. 3554(a)(1)(A)(ii)).
    The term ``on behalf of'' means when a non-executive branch entity 
uses or operates an information system or maintains or collects 
information for the purpose of processing, storing, or transmitting 
Federal information, and those activities are not incidental to 
providing a service or product to the Government. To protect such 
systems and information, agencies must prescribe appropriate security 
requirements and controls from FIPS Publication 200 and NIST SP 800-53 
in accordance with any risk-based tailoring decisions they make.
    When non-executive branch entities are not using or operating an 
information system or maintaining or collecting federal information 
``on behalf of'' an agency, the agency must prescribe the requirements 
of NIST SP 800-171 in agreements to protect the confidentiality of the 
CUI, unless the agreement establishes higher security requirements.
    A final comment on this section noted the statement in Sec.  
2002.14(g)(2) that, ``Agencies may increase the confidentiality impact 
level above moderate and apply additional security requirements and 
controls only internally or by agreement between agencies; they may not 
require anyone outside the agency to use a higher impact level or more 
stringent security requirements and controls,'' was unclear with regard 
to whether it applied to CUI Basic only or both CUI Basic and CUI 
Specified. We have revised the provision and the definitions of CUI 
Basic and Specified under Sec.  2002.4 to clarify that the moderate 
confidentiality level applies to CUI Basic and is a baseline level; 
agencies must use no less than the moderate confidentiality level for 
CUI Basic, and may use the high level for CUI Basic within the agency 
or pursuant to agreements.
    By contrast, CUI Specified information may be handled at higher 
confidentiality levels if the authorities establishing and governing 
the CUI Specified category or subcategory allow or require a higher 
confidentiality level or more specific or stringent controls. If they 
do not, then the no-less-than moderate confidentiality level 
established for CUI Basic applies to the

[[Page 63331]]

CUI Specified information as well. This also holds true for other 
controls--if the authorities specifying controls for a given type of 
CUI Specified are silent or do not set out a specific standard on any 
aspect of safeguarding or disseminating controls, the standards and the 
limited dissemination controls for CUI Basic apply to that aspect of 
handling the CUI Specified. CUI Basic standards, including no-less-than 
moderate confidentiality impact value, are the default standards for 
CUI in the absence of an appropriate authority and CUI Specified 
category or subcategory listed on the CUI Registry that specifies 
alternative standards.
Sec. 2002.13 Accessing and Disseminating (Now Sec.  2002.16)
    Several comments on this section involved recommendations that we 
set out more specific criteria governing when agencies must permit 
access to CUI (some were concerned we would be permitting too much 
access and others were concerned agencies would unduly restrict 
access). Other commenters expressed concern or confusion about what 
constitutes a lawful Government purpose, similar concerns about whether 
it would be applied too strictly or too over-broadly, and concerns 
about whether an authorized holder could guarantee that dissemination 
would actually further the lawful Government purpose.
    The rule does not require agencies to share CUI--the rule states 
that agencies ``should'' share CUI in certain circumstances, but 
recognizes agencies' broad discretion to determine whether or not to do 
so. Section 2002.16(a) also does not state that they should share it 
whenever there is a lawful Government purpose to do so and disregard 
all other considerations. The subsection states that agencies should 
share CUI if it furthers a lawful Government purpose to do so AND doing 
so abides by the requirements and policies contained in the authorities 
that established that information as CUI, and it is not otherwise 
prohibited by law, and the information is not restricted by an 
authorized limited dissemination control. One of the purposes of the 
CUI Program is to enable more sharing and access to protected 
information--when it is appropriate, given the need to protect that 
information to a particular degree or in particular ways--because in 
the past, much information that could be appropriately shared was not, 
due to overly applied restrictions (see, e.g., Report and 
Recommendations of the Presidential Task Force on Controlled 
Unclassified Information (August 5, 2009), pp. 7-11)). The CUI Program 
does not give rise to situations in which a requesting agency must be 
given complete access to another agency's CUI just because the 
requestor can cite any lawful Government purpose. But if there is a 
lawful Government purpose and the other restrictions, considerations, 
and authorities do not prohibit it, then the purpose is to enable that 
sharing to occur.
    However, as in most areas, the rule must balance between the goal 
of disseminating, the goal of uniform handling, the goal of protecting 
information as required, and the burden and cost of implementing the 
Program. One aspect of that balancing act is agency mission authority. 
Agency heads are granted by Congress the authority to manage their 
agencies and to take actions to carry out their missions within the 
scope of the various statutes giving rise to the mission. As a result, 
although we are working to implement a uniform system across agencies, 
and agencies are by and large in support of that goal, we must also 
still avoid establishing policies that could interfere with an agency 
head's authority to run the agency and carry out the mission.
    Although NARA agrees with commenters that the absence of a firm 
across-the-board requirement to share CUI creates some potential for 
unclassified information to be ``siloed'' within agencies, we do not 
believe that such an across-the-board requirement would be consistent 
with our mandate under the Order, other agencies' statutory and other 
authorities and responsibilities, or the broad range of decisions that 
agencies face daily on whether and how to share information. Agencies 
have expressed concern about such an across-the-board requirement.
    As a result, we changed the language from a requirement to 
disseminate CUI as the default state so long as a lawful government 
purpose exists, to an option. However, we have tried to keep the 
balance and to minimize unnecessarily restrictive policies and 
practices by setting out a framework of rules within which agencies may 
exercise their discretion, and by providing for CUI EA review of agency 
policies as a means by which to reduce chances of unnecessarily 
restrictive dissemination policies. The rule allows challenges to 
designation of information as CUI as another means of reducing the 
chance of unnecessarily restrictive policies. Although no procedure is 
ever implemented completely uniformly or consistently, this regulation 
establishes requirements that promote significantly greater consistency 
than already exists. In the long run, with additional guidance and 
oversight on the part of the CUI EA, as the CUI program develops, the 
Program will be able to bring about increasing uniformity in phases and 
some of the current balancing difficulties will evolve into practices 
that more completely fulfill the Program's goals.
    The rule also does not require that an authorized holder must be 
able to guarantee that dissemination will actually further the lawful 
Government purpose. It is sufficient that the person disseminating it 
believes it furthers a lawful Government purpose.
    With regard to a recommendation that we revise Sec.  2002.16(a)(2) 
to limit when agencies may impose controls to restrict access to CUI, 
we have accepted the recommendation, but not the suggested language 
because it was too broad and could result in agency-by-agency decisions 
to apply controls based on their own risk tolerance, defeating the CUI 
Program's purpose of establishing a uniform system. The intent is for 
agencies to use controls only as necessary to abide by restrictions and 
none that are unlawful or improper. We have revised the language in 
2002.16(a)(2) to more clearly reflect this and to address other 
concerns raised by the commenters. It now reads, ``Agencies must impose 
controls judiciously and should do so only to apply necessary 
restrictions on access to CUI, including those required by law, 
regulation, or Government-wide policy.''
    We also accepted a recommendation to move Sec.  2002.16(a)(4) to 
another section because it addresses non-executive branch entities, not 
agency tasks, which is the subject of the rest of paragraph (a). We 
have moved the provision to Sec.  2002.16(b)(3) under controls on 
disseminating CUI.
    We declined to accept suggestions that allow agencies to create 
their own limited dissemination controls, recommendations that we 
revise the access requirements to require compliance with Privacy Act, 
PII, and protected health disclosure requirements, and a suggestion 
that we point to the CNSSI 1253 Privacy Overlay. The purpose of the CUI 
Program is to establish a uniform set of requirements for how each type 
of CUI is handled by every agency. Agencies may not create their own 
exceptions to those requirements or grant themselves agency-specific 
restrictions on dissemination. The CUI EA has the sole authority to 
determine if a limited dissemination control might be appropriate 
within the larger framework of CUI and the Program's purpose to 
establish a uniform system. The regulation already states that

[[Page 63332]]

dissemination and information sharing must be in accord with existing 
law, regulation, and Government-wide policy, so we decline to add a 
statement that it must be in accord with specific ones. However, the 
regulation also includes a section on CUI and the Privacy Act 
(2002.46), in which it spells out that the mere fact that information 
is marked CUI does not interfere with an agency making determinations 
about release of information protected by the Privacy Act; agencies 
must still abide by the Privacy Act requirements when making such 
determinations. The rule also includes a similar provision for FOIA, 
Whistleblower Protection Act, and other release authorities.
    We also received several comments about Sec.  2002.16(a)(6) (also 
connected with Sec.  2002.1(e)) and the requirement to handle CUI in 
accord with the CUI Registry, especially when applied to contractors 
(as it could be through contract provisions), and a concern that 
contractors might receive improperly marked CUI. Compliance with the 
CUI Registry is woven as a requirement throughout the regulation, not 
just this section, as one commenter thought. The phrase ``consistent 
with'' or ``complies with'' and similar variations appears in several 
places with the phrase ``the Order, this part, and the CUI Registry.'' 
Anyone who is authorized to handle CUI is responsible for doing so in 
compliance with the requirements of the Order, this regulation, and the 
CUI Registry. If a contractor receives improperly marked CUI from an 
agency, the contractor is not responsible for having marked the CUI 
improperly, but the contractor could be responsible for knowing the 
types of CUI it receives from the agency pursuant to the contract, and 
for knowing which CUI Registry category the information falls into, the 
handling requirements for that type of CUI, and so forth. As a result, 
the contractor could, in some cases, also be held responsible for 
properly handling the CUI even if it is not marked properly when they 
receive it.
    In Sec.  2002.1(e) of this rule, we explain that agencies extend 
the controls for handling CUI to contractors by means of contract 
provisions (including forthcoming new FAR case on CUI), which include 
the requirement to abide by the rule, the Order, and the CUI Registry 
and which also include other provisions relating to the CUI and its 
controls. In Subpart C of this rule, we include a section on challenges 
to CUI designation and have clarified that this includes a party's 
belief it has received improperly marked or unmarked CUI. In addition, 
under Sec.  2002.8, agencies must establish a process for recipients of 
CUI to raise questions of improper or no CUI markings and receive 
directions from the agency on what to do with the information. In some 
cases, the agency may be contracting for services in which the 
contractor would mark and otherwise manage the CUI for the agency. In 
such cases, the contract would very likely include provisions in which 
the contractor is responsible for the burden of properly marking. In 
other cases, the agreement would not include that provision if the task 
was not part of the contract.
    Additional comments on Sec.  2002.16(a)(6) included a 
recommendation that we note that the authorities setting out misuse of 
CUI or penalties are provided as part of the CUI Registry, and another 
that recommended we remove the reporting requirement for any incident 
of non-compliance with handling requirements. We decline both 
suggestions. Governing laws, regulations, or Government-wide policies 
apply to CUI and to misuse of CUI as described with those authorities. 
This was true prior to the CUI Program's inception, and it remains true 
if those authorities are not listed on the CUI Registry. However, the 
regulation defines the CUI Registry as the repository for agencies to 
find information on handling CUI, and states that the CUI categories 
and subcategories, along with their governing authorities, are listed 
there. Agencies or entities that handle a given type of CUI should make 
themselves familiar with the contents of the governing authorities, and 
the requirements for that kind of CUI, including any provisions about 
misuse of the CUI. And, while we agree that the reporting requirement 
should be included in the FAR case that is being drafted, we disagree 
that it should be removed from the regulation. This reporting 
requirement applies to anyone who handles CUI, not just contractors. 
Other entities would not be subject to the FAR case, so this section 
makes clear that a provision for that purpose must be included in any 
agreement, including contracts but not limited to them. The FAR case is 
a tool to help agencies achieve that purpose in contracts in a uniform 
way, but it does not establish the requirement for agencies to include 
that provision in their agreements. This regulation does.
Sec. 2002.14 Decontrolling (Now Sec.  2002.18)
    Several commenters asserted that, at times, decontrol is not 
optional, such as when the circumstances in law, regulation, or 
Government-wide policy that authorize information controls no longer 
apply to the information. We agree with these statements. While the 
rule requires agencies to actively manage decontrolling CUI as well as 
marking and handling it, and expects agencies to do so to the fullest 
extent they can, there are some circumstances in which they may not be 
able to take affirmative actions to decontrol information when it no 
longer qualifies as CUI. Some agencies have vast amounts of information 
stored in facilities or systems. In some situations, they may not have 
the resources to regularly sift through all of that information to 
determine which, if any, of it might no longer qualify as CUI. We have 
had to balance these competing concerns. However, this section did not 
clearly include automatic decontrol situations, so we have revised the 
language to clarify that in some circumstances, CUI may be decontrolled 
automatically, without review or an affirmative agency decision to 
decontrol the information. In such circumstances, the rule does not 
require agencies to take affirmative action to remove legacy markings 
from the information that no longer qualifies as CUI unless the agency 
re-uses, restates, paraphrases, releases, or donates that information.
    One commenter requested that the section on removing decontrol 
statements be moved to Sec.  2002.15 (now Sec.  2002.20), under 
marking, as it seemed more appropriate there. We declined to do so, as 
we feel users will most easily find and apply all guidance on 
decontrol, including on removing decontrol markings, if it remains in 
the decontrol policy section.
    One commenter requested clarification of the CUI Basic and 
Specified terms, in light of references made to NIST 800-53 and 800-171 
guidance documents. We have revised the definitions of CUI Basic and 
CUI Specified in Sec.  2002.2 (now Sec.  2002.4), and the explanation 
of how they interact with NIST and FISMA requirements in Sec.  
2002.18(g), to better clarify the distinctions. The framework of CUI 
Basic and CUI Specified is part of the CUI Program; the NIST 
publications do not establish or describe it. Those publications 
already applied to agencies under the requirements of the FISMA before 
the CUI Program began, and they set out standards for information 
security of various types.
    One commenter expressed concern about the provision prohibiting 
decontrol of CUI for the purpose of ``mitigating'' unauthorized 
disclosures. The commenter understood that this provision intended to 
prohibit the decontrol of CUI as a means of hiding unauthorized 
disclosures and avoiding

[[Page 63333]]

accountability for them, but suggested clarifying language to avoid 
certain unintended consequences with the language as it was written. We 
have adopted the suggested revisions.
Sec. 2002.15 Marking (Now Sec.  2002.20)
    We received a number of comments regarding the old, or legacy, 
marking aspects of this section in Sec.  2002.20(a) and (b). Although 
the comments addressed different specific concerns, a large number of 
them demonstrated an underlying confusion about when agencies must 
remove legacy markings, when they must apply the new CUI markings, and 
when waivers may apply. As a result, we have substantially revised 
these sections to clarify the relationship between CUI markings, legacy 
markings, and marking waivers. A related subject concerned confusion 
between one provision that required designating agencies to mark CUI 
when designating and another provision that required agencies to mark 
prior to disseminating.
    The basic rule is that Agencies must mark all CUI with CUI markings 
and must also remove all legacy markings (markings from before the CUI 
Program and this regulation, including FOUO, SBU, OUO, etc.) from 
everything. Designating agencies must mark CUI at the time they 
designate the information as CUI. However, marking upon designation 
does not address when to mark legacy information that has already been 
designated in the past as one of various types of controlled 
information (now gathered under CUI). As a result, Sec.  2002.20(a)(1) 
and (3) together explain that agencies must also mark legacy 
information with new CUI markings, if it qualifies as CUI. In 
situations in which an agency has a significantly large amount of 
legacy material, it may waive the requirement to re-mark each item, as 
long as the legacy material remains within the agency, but it must 
still protect the information by alternate means. In addition, it must 
re-mark any portion of the material as CUI, if it qualifies, when the 
agency re-uses or disseminates information from legacy material.
    We also received a comment recommending that we adopt a `not-
required-to-mark' policy for all CUI; that agencies do not have to mark 
CUI, but if they do, they must use the markings set out in the Program 
rather than agency-specific markings. The interagency review process 
extensively discussed marking policy and the option of not requiring 
marking. The conclusion was that going with a `not-required-to-mark' 
policy would result in failure to properly identify unclassified 
information requiring control and would subject employees, contractors, 
partners, and other recipients of CUI to an increased likelihood of 
sanctions for mishandling information that laws, regulations, or 
Government-wide policies require them to handle as CUI.
    The marking policy for CUI is not complex, however. The CUI rule 
allows for a simple marking of ``CUI'' or ``Controlled,'' if the CUI 
falls into a CUI Basic category or subcategory. The vast majority of 
CUI falls into CUI Basic categories and subcategories. As a result, 
this is the marking requirement for the vast majority of CUI. CUI 
Specified categories and subcategories incur additional marking 
requirements because they require controls that differ from all the 
other CUI, so the additional markings serve to identify that they are 
CUI Specified and what category or subcategory they belong to. As a 
result, authorized holders can tell at a glance that they have 
something that requires specific controls other than the default for 
CUI Basic, and what group the information falls into so they can 
determine what special handling that information requires. Most often, 
agencies that deal with CUI Specified information deal with it on a 
regular basis and are already intimately familiar with the requirements 
arising from law, regulation, or Government-wide policy for that type 
of information, since those requirements remain the same under this 
rule as in the past.
    A number of comments on this section concerned waivers of the 
marking requirements (now re-located to their own section at Sec.  
2002.38). We recognize commenters' concerns that permitting waivers of 
the CUI marking requirements could affect the security of CUI and 
create confusion. We would prefer to keep the requirement absolute. 
However, some agencies already have internal storage and systems in 
which there is a substantial amount of information marked with legacy 
markings. In some cases, the number of items can be in the millions. 
Requiring the agency to re-mark all of that information with new CUI 
markings (which may also, if multiple types of legacy information are 
stored together, require them to go through each item to assess whether 
it qualifies as CUI, and which category or subcategory it falls into; 
not all information protected under various agency programs in the past 
qualifies as CUI or fits into the same groupings) may, in certain 
limited situations, be too burdensome for an agency's resources.
    As a result, we have allowed agencies in these and similar rare 
circumstances to waive the requirement to re-mark that information with 
new CUI markings--but only as long as it remains within the agency's 
facilities or systems and as long as agency still safeguards the 
information to the required degree. However, when the agency 
disseminates a portion of that information outside the agency, or re-
uses some of that information, it must remove legacy markings and mark 
that portion of the information with correct CUI markings. In Sec.  
2002.20(b)(7), the rule also requires agencies to document the waivers 
they implement and report them to the CUI EA. In this way, the CUI EA 
monitors implementation of the waiver option, may take steps to ensure 
waivers do not swallow the rule, and ascertains that the agencies are 
implementing other safeguarding practices so the protected information 
is not endangered.
    Other comments addressed failure to mark CUI, or improperly marked 
CUI, and concerns that non-executive branch entities would not know 
that the information was CUI and would either be penalized or would 
have to assume a burden of control to oversee CUI marking in some 
manner. The requests included exempting non-executive branch entities 
from requirements to properly handle CUI if it isn't marked or marked 
properly, and creating a FAR case to address the issue. The comments 
raise a reasonable concern. However, we cannot exempt non-executive 
branch entities from the requirements to protect CUI, for the reasons 
explained in the beginning of the general comments discussion. The 
regulation does contemplate the possibility that some CUI may be 
unmarked or marked improperly. In such cases, agencies and non-
executive branch agencies would still be subject to that CUI's 
governing law, regulation, or Government-wide policy's requirements, 
including any penalties or sanctions for not handling it properly in 
accord with those authorities or the connected CUI Program 
requirements. Entities that receive CUI from an agency should normally 
be on notice that they will be receiving that type of CUI information, 
pursuant to the terms of any contract or agreement between the two. As 
a result, if some of that information is not properly marked for some 
reason, the recipient entity should be aware that they receive certain 
types of CUI from the agency; the information is CUI; it falls within 
the agreed-upon type of CUI; and it is subject to the same handling 
requirements.
    However, we have included in Sec.  2002.8(c)(8) a requirement that 
agencies must establish a process to accept and manage challenges to 
CUI status (including improper or no

[[Page 63334]]

marking). 2002.20(m)(2) also requires agencies to establish a mechanism 
by which authorized holders can contact an agency representative for 
instructions when they receive unmarked or improperly marked 
information that the agency designated as CUI. We have also revised 
Sec.  2002.50, Challenges to designation of information as CUI, 
subsection (a), to allow CUI authorized holders who believe they have 
received unmarked CUI to notify the designating agency of this belief 
through the challenge process. These provisions establish methods for 
reporting the improper marking or lack of marking, and will trigger the 
challenge process so that the situation is addressed. Misuse of CUI, as 
described in the definition in Sec.  2002.4, may include no or improper 
marking, and subsection 2002.52 requires agencies to establish 
processes for reporting and investigating misuse of CUI, and requires 
them to report misuse of CUI to the CUI EA. This ensures agencies will 
look into causes of improper or lack of marking so that the causes can 
be addressed, and that the CUI EA can monitor trends like frequency, 
appropriate handling, recurring causes, etc., and determine if there is 
a systemic issue.
    Other comments recommended including specific procedures in the 
rule for vetting or challenging CUI markings, allowing agencies to 
establish their own marking requirements, and clarifying whether 
agencies should mark CUI in accord with the CUI Registry or the 
regulation. Some commenters expressed concern that current marking 
technology would work for new CUI markings, and others requested we add 
an explanation of how markings for other types of data, such as ITAR- 
and EAR-controlled technical data, ``sensitive but unclassified,'' and 
``for official use only (FOUO),'' will co-exist with the CUI Program. 
One comment requested an explanation of the status of information 
derived from CUI, and another suggested we add a requirement to mark 
the designating and disseminating agencies on all CUI.
    There are competing interests inherent within the CUI Program--full 
consistency and uniformity vs. cost and burden. This rule attempts to 
balance these competing interests, and we engaged in extensive 
discussions with Federal agencies, state, local, and tribal groups, 
industry, and public interest groups as part of that balancing effort. 
The marking requirements were developed in consultation with the CUI 
Advisory Council, which gave serious consideration to the costs of 
implementing them. However, the marking requirements are necessary to 
ensure uniform handling across agencies and accomplish the goals of the 
Program. Agencies or others may incur costs for purchasing new marking 
tools, if new ones are necessary to implement the marking requirements. 
However, most information that requires control is already being marked 
in some manner, so in most cases, it would be a matter of aligning 
those tools with this policy.
    The CUI Advisory Council considered a number of the same issues and 
concerns about over-broad marking as commenters raised, and determined 
that the kinds of suggested review procedures and practices were too 
onerous or were not in keeping with goals of the Program. However, 
there are some controls built into the program's structure. The CUI EA 
determines which information belongs in which categories and 
subcategories, whether those groupings are CUI Basic or CUI Specified, 
and articulates which controls or controlling authorities apply. This 
limits the kinds of information agencies can designate as CUI to only 
those vetted through that process and listed on the Registry. One set 
of uniform handling requirements applies to all CUI that falls into the 
CUI Basic category. This means that all agencies must use the same 
handling requirements for the vast majority of CUI, including marking. 
Individual agencies won't be able to establish special marking for 
information, so that should also help minimize over-broad marking. In 
addition, agencies must establish a mechanism for challenges to 
information they designate as CUI, so if someone believes the agency is 
marking over-broadly, they can raise the issue through the challenge 
process for scrutiny. They may make these challenges anonymously, so 
should not be discouraged from raising concerns. These structural 
elements, and other facets of the Program's structure, including CUI EA 
oversight of agency implementation and the ability to pursue challenges 
with the EA and above if not resolved at the agency level, address many 
of the commenters' concerns about over-broad marking and are designed 
in part to restrict agencies from over-broadly applying any CUI 
controls and policies.
    The CUI EA mandates marking requirements, but agency policy 
implements those requirements within the agency. Agency policies that 
implement CUI can spell out detailed procedures when needed. However, 
the regulation must apply to a broad spectrum of agencies with 
different structures, staffing, and sizes, among other differences. As 
a result, detailed processes are better managed at the agency level, as 
long as they comply with the CUI Program's requirements and policies. 
In response to one commenter's suggestion that we add provisions on 
decontrol to the marking section, the regulation already contains a 
full section on decontrol of CUI and for unmarking it once it is 
decontrolled. We believe that marking aspects of decontrol are best 
addressed within the decontrol section so that all decontrol policies 
are easy to find in one place.
    The CUI Program markings will replace other designations, such as 
SBU, FOUO, and OUO, and any agency-specific labels for CUI, which will 
all be discontinued. As a result, concerns about how they will 
integrate are moot. Some CUI qualifies as CUI Specified (such as export 
controlled information and confidential statistical information under 
the Confidential Information Protection and Statistical Efficiency Act) 
due to the existing statutory regime already established for 
controlling that type of information. While some types of CUI Specified 
may arise primarily in only one or a couple of agencies, those types of 
CUI do not become agency-specific types of CUI simply for that reason. 
The categories or subcategories for those types of CUI Specified have 
gone through CUI EA vetting, have underlying laws, regulations, or 
Government-wide policies establishing them, are listed on the CUI 
Registry, and include specified controls that apply uniformly 
throughout the executive branch, to any agency that has that type of 
information. This is different from an agency developing its own 
category of protected information, or its own policy or practice for 
handling protected information, such as the various SBU and FOUO 
regimes that currently exist from agency to agency.
    Regarding the questions about derived CUI, the bottom line is that 
certain types of information qualify as CUI. If an item of information 
qualifies as CUI, it doesn't matter whether it is in some way also 
derived from another item of information that qualifies as CUI, and it 
should be marked as CUI either way. Its status as CUI depends upon the 
information itself and whether it meets the requirements in a law, 
regulation, or Government-wide policy that establish it as needing 
controls on safeguarding or disseminating. A document containing CUI 
that is derived from another document that contains CUI would also be 
CUI--because it contains controlled information, not simply because it 
is derived from a document that contains CUI. It is possible the 
original document contains both CUI and non-CUI and the derived 
document could therefore contain only information derived from

[[Page 63335]]

the non-CUI portions of the original document. In such a case, the 
derived document would not become CUI simply because the information 
was derived from a CUI document.
    The fact that a certain item of CUI derives from another item of 
CUI becomes relevant primarily in the context of marking waivers for 
legacy CUI. This is because the rule states that an agency's waiver, 
for re-marking as CUI certain items of legacy information, ceases for 
one or more of those items when the agency re-uses them. So, if an 
agency is not re-marking certain legacy CUI because that CUI is under a 
marking waiver, and it then uses in another item some controlled 
information from within that legacy CUI--i.e. it derives CUI from the 
legacy item--then the new item containing the derived CUI does not fall 
under the waiver (even though the originating legacy CUI item does) and 
the agency must properly mark the derived item as CUI. A similar 
requirement would apply to CUI derived from an unmarked or improperly 
marked item of CUI as well, although in that case the original item 
should then be properly marked as well once it is clear it contains 
CUI.
    With regard to suggestions that we add marking requirements for 
designating and disseminating agency information and dates, the 
regulation already includes a provision within Sec.  2002.20 that 
requires marking the designating agency. We do not see a reason to add 
an extra marking for the disseminating agency. Likewise, we decline to 
require a date marking on all CUI, as another commenter suggested. This 
was previously discussed during the inter-agency development process, 
but not adopted. Practically speaking, much CUI will have a date 
apparent, though it is not required. However, there is no required 
decontrol time period, so this issue is much different in a CUI context 
than the need for a date within a classified information context.
Sec. 2002.16 Waivers of CUI Requirements in Exigent Circumstances (Now 
Part of Sec.  2002.38)
    Several commenters recommended that we add a provision requiring 
agencies to report any waivers to the CUI EA, both when the agency 
issues the waiver and when it rescinds it. We agree, and revised the 
section to require CUI senior agency officials to retain records on 
each waiver and use them to report the waivers to the CUI EA.
    Another commenter expressed concern that waivers could be used 
over-broadly to avoid complying with CUI requirements and suggested we 
add a provision that limits waivers to the shortest period and 
narrowest scope necessary to account for the exigent circumstances. The 
comment also expressed concern that waivers could not accord with 
prescriptive language in 2002.12 CUI categories and subcategories. We 
accepted the idea of language limiting the waivers and revised the 
section to require agencies to reinstitute CUI requirements for all CUI 
covered by the waiver without delay when circumstances requiring the 
waiver end. However, we disagree that this section generally conflicts 
with the requirements of 2002.12 CUI categories and subcategories.
Sec. 2002.27 CUI and Information Disclosure Requests (Now Sec.  
2002.44)
    One commenter questioned whether a CUI designation really has ``no 
bearing'' on decisions to release or not to release information in 
response to a FOIA request. The Order explicitly states that the mere 
fact that an item is CUI has no bearing on disclosure determinations 
under release statutes such as FOIA. Agencies make determinations about 
whether to release, or to exempt from release, under the FOIA solely on 
the basis of FOIA criteria and considerations. This rule, or the fact 
that something is CUI, does not change the basis upon which agencies 
must make FOIA determinations.
    Agencies may determine that certain documents are exempt from 
release under FOIA that also qualify and are marked as CUI, but the CUI 
status does not cause or influence that determination. The FOIA allows 
Federal agencies to withhold information prohibited from disclosure by 
another Federal statute pursuant to exemption 3 in the FOIA (5 U.S.C. 
552(b)(3)). In some cases, a given item of information may qualify as 
CUI on the basis of one of those same Federal statutes. However, the 
decision whether to release or withhold such information in response to 
a FOIA request would still be based on the requirements under which the 
FOIA exemption 3 may apply, rather than its status as CUI. Based on the 
comment, we have revised 2002.44 to better clarify this.
Sec. 2002.22 Challenges to Designation of Information as CUI (Now Sec.  
2002.50)
    One commenter requested that we revise this section to include 
challenges about improperly marked or unmarked CUI and challenges to 
waivers. The commenter also sought clarification regarding whether the 
challenge procedures are available to recipients outside of the 
Government. We have revised this section to clarify that all authorized 
holders, whether within or outside of the Government, may challenge CUI 
designations, and to reflect that they may bring a challenge because 
they believe CUI is improperly marked or unmarked.
Conclusion
    We have thoroughly and carefully considered all the comments and 
have attempted to clearly explain in this supplementary information 
section some of our reasoning and changes to the regulation since it 
was proposed, in hopes of better conveying the scope and nature of the 
CUI Program and its requirements to those who had questions or 
concerns. We appreciate the comments and the effort individuals and 
organizations made to craft them and to think about the CUI Program and 
the implications of the regulation's provisions. The comments helped us 
refine the rule into a much better regulation and one that more clearly 
explains the Program and its requirements. We realize any new program 
brings change, and that those changes can be confusing, can seem 
inconsistent or incompletely thought out, and can appear to be hugely 
burdensome or unnecessarily complicated at first encounter. We hope 
that we have alleviated much of those concerns by our responses to 
these comments and the changes to the regulation. However, if you have 
additional questions or would like more information, please visit our 
CUI Web site at http://www.archives.gov/cui/ or contact us directly.
    We have had to make compromises to the goal of complete or absolute 
uniformity in deference to the need to balance between several 
competing, legitimate interests and to develop a Program and 
requirements that can work for a variety of agencies and types of 
information, as well as those who receive CUI from agencies. However, 
we believe strongly that, in the course of those efforts and all the 
input, discussions, comments, and work contributed by our partners on 
the CUI Advisory Council and at NIST, agency and industry experts who 
generously consulted with us, and the many industry, business, 
organizational, and individual reviewers, we have been able to develop 
a sound CUI Program that significantly increases uniformity throughout 
the executive branch, appropriately protects CUI while encouraging 
sharing and access when appropriate, and does so with the least amount 
of burden, complexity, and change possible.

[[Page 63336]]

List of Subjects in 32 CFR Part 2002

    Administrative practice and procedure, Archives and records, 
Controlled unclassified information, Freedom of information, Government 
in the Sunshine Act, Incorporation by reference, Information, 
Information security, National security information, Open government, 
Privacy.

    For the reasons stated in the preamble, NARA amends 32 CFR Chapter 
XX by adding part 2002 to read as follows:

PART 2002--CONTROLLED UNCLASSIFIED INFORMATION (CUI)

Subpart A--General Information
Sec.
2002.1 Purpose and scope.
2002.2 Incorporation by reference.
2002.4 Definitions.
2002.6 CUI Executive Agent (EA).
2002.8 Roles and responsibilities.
Subpart B--Key Elements of the CUI Program
2002.10 The CUI Registry.
2002.12 CUI categories and subcategories.
2002.14 Safeguarding.
2002.16 Accessing and disseminating.
2002.18 Decontrolling.
2002.20 Marking.
2002.22 Limitations on applicability of agency CUI policies.
2002.24 Agency self-inspection program.
Subpart C--CUI Program Management
2002.30 Education and training.
2002.32 CUI cover sheets.
2002.34 Transferring records.
2002.36 Legacy materials.
2002.38 Waivers of CUI requirements.
2002.44 CUI and disclosure statutes.
2002.46 CUI and the Privacy Act.
2002.48 CUI and the Administrative Procedure Act (APA).
2002.50 Challenges to designation of information as CUI.
2002.52 Dispute resolution for agencies.
2002.54 Misuse of CUI.
2002.56 Sanctions for misuse of CUI.

Appendix A to Part 2002--Acronyms

    Authority: E.O. 13556, 75 FR 68675, 3 CFR, 2010 Comp., pp. 267-
270.

Subpart A--General Information


Sec.  2002.1  Purpose and scope.

    (a) This part describes the executive branch's Controlled 
Unclassified Information (CUI) Program (the CUI Program) and 
establishes policy for designating, handling, and decontrolling 
information that qualifies as CUI.
    (b) The CUI Program standardizes the way the executive branch 
handles information that requires protection under laws, regulations, 
or Government-wide policies, but that does not qualify as classified 
under Executive Order 13526, Classified National Security Information, 
December 29, 2009 (3 CFR, 2010 Comp., p. 298), or any predecessor or 
successor order, or the Atomic Energy Act of 1954 (42 U.S.C. 2011, et 
seq.), as amended.
    (c) All unclassified information throughout the executive branch 
that requires any safeguarding or dissemination control is CUI. Law, 
regulation (to include this part), or Government-wide policy must 
require or permit such controls. Agencies therefore may not implement 
safeguarding or dissemination controls for any unclassified information 
other than those controls consistent with the CUI Program.
    (d) Prior to the CUI Program, agencies often employed ad hoc, 
agency-specific policies, procedures, and markings to handle this 
information. This patchwork approach caused agencies to mark and handle 
information inconsistently, implement unclear or unnecessarily 
restrictive disseminating policies, and create obstacles to sharing 
information.
    (e) An executive branch-wide CUI policy balances the need to 
safeguard CUI with the public interest in sharing information 
appropriately and without unnecessary burdens.
    (f) This part applies to all executive branch agencies that 
designate or handle information that meets the standards for CUI. This 
part does not apply directly to non-executive branch entities, but it 
does apply indirectly to non-executive branch CUI recipients, through 
incorporation into agreements (see Sec. Sec.  2002.4(c) and 2002.16(a) 
for more information).
    (g) This part rescinds Controlled Unclassified Information (CUI) 
Office Notice 2011-01: Initial Implementation Guidance for Executive 
Order 13556 (June 9, 2011).
    (h) This part creates no right or benefit, substantive or 
procedural, enforceable by law or in equity by any party against the 
United States, its departments, agencies, or entities, its officers, 
employees, or agents, or any other person.
    (i) This part, which contains the CUI Executive Agent (EA)'s 
control policy, overrides agency-specific or ad hoc requirements when 
they conflict. This part does not alter, limit, or supersede a 
requirement stated in laws, regulations, or Government-wide policies or 
impede the statutory authority of agency heads.


Sec.  2002.2  Incorporation by reference.

    (a) NARA incorporates certain material by reference into this part 
with the approval of the Director of the Federal Register under 5 
U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other than that 
specified in this section, NARA must publish notice of change in the 
Federal Register and the material must be available to the public. You 
may inspect all approved material incorporated by reference at NARA's 
textual research room, located at National Archives and Records 
Administration; 8601 Adelphi Road; Room 2000; College Park, MD 20740-
6001. To arrange to inspect this approved material at NARA, contact 
NARA's Regulation Comments Desk (Strategy and Performance Division 
(SP)) by email at [email protected] or by telephone at 
301.837.3151. All approved material is available from the sources 
listed below. You may also inspect approved material at the Office of 
the Federal Register (OFR). For information on the availability of this 
material at the OFR, call 202-741-6030 or go to http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
    (b) The National Institute of Standards and Technology (NIST), by 
mail at 100 Bureau Drive, Stop 1070; Gaithersburg, MD 20899-1070, by 
email at [email protected], by phone at (301) 975-NIST (6478) or 
Federal Relay Service (800) 877-8339 (TTY), or online at http://nist.gov/publication-portal.cfm.
    (1) FIPS PUB 199, Standards for Security Categorization of Federal 
Information and Information Systems, February 2004. IBR approved for 
Sec. Sec.  2002.14(c) and (g), and 2002.16(c).
    (2) FIPS PUB 200, Minimum Security Requirements for Federal 
Information and Information Systems, March 2006. IBR approved for 
Sec. Sec.   2002.14(c) and (g), and 2002.16(c).
    (3) NIST Special Publication 800-53, Security and Privacy Controls 
for Federal Information Systems and Organizations, Revision 4, April 
2013 (includes updates as of 01-22-2015), (NIST SP 800-53). IBR 
approved for Sec. Sec.  2002.14(c), (e), (f), and (g), and 2002.16(c).
    (4) NIST Special Publication 800-88, Guidelines for Media 
Sanitization, Revision 1, December 2014, (NIST SP 800-88). IBR approved 
for Sec.  2002.14(f).
    (5) NIST Special Publication 800-171, Protecting Controlled 
Unclassified Information in Nonfederal Systems and Organizations, June 
2015 (includes updates as of January 14, 2016), (NIST SP 800-171). IBR 
approved for Sec.  2002.14(h).


Sec.  2002.4  Definitions.

    As used in this part:
    (a) Agency (also Federal agency, executive agency, executive branch

[[Page 63337]]

agency) is any ``executive agency,'' as defined in 5 U.S.C. 105; the 
United States Postal Service; and any other independent entity within 
the executive branch that designates or handles CUI.
    (b) Agency CUI policies are the policies the agency enacts to 
implement the CUI Program within the agency. They must be in accordance 
with the Order, this part, and the CUI Registry and approved by the CUI 
EA.
    (c) Agreements and arrangements are any vehicle that sets out 
specific CUI handling requirements for contractors and other 
information-sharing partners when the arrangement with the other party 
involves CUI. Agreements and arrangements include, but are not limited 
to, contracts, grants, licenses, certificates, memoranda of agreement/
arrangement or understanding, and information-sharing agreements or 
arrangements. When disseminating or sharing CUI with non-executive 
branch entities, agencies should enter into written agreements or 
arrangements that include CUI provisions whenever feasible (see Sec.  
2002.16(a)(5) and (6) for details). When sharing information with 
foreign entities, agencies should enter agreements or arrangements when 
feasible (see Sec.  2002.16(a)(5)(iii) and (a)(6) for details).
    (d) Authorized holder is an individual, agency, organization, or 
group of users that is permitted to designate or handle CUI, in 
accordance with this part.
    (e) Classified information is information that Executive Order 
13526, ``Classified National Security Information,'' December 29, 2009 
(3 CFR, 2010 Comp., p. 298), or any predecessor or successor order, or 
the Atomic Energy Act of 1954, as amended, requires agencies to mark 
with classified markings and protect against unauthorized disclosure.
    (f) Controlled environment is any area or space an authorized 
holder deems to have adequate physical or procedural controls (e.g., 
barriers or managed access controls) to protect CUI from unauthorized 
access or disclosure.
    (g) Control level is a general term that indicates the safeguarding 
and disseminating requirements associated with CUI Basic and CUI 
Specified.
    (h) Controlled Unclassified Information (CUI) is information the 
Government creates or possesses, or that an entity creates or possesses 
for or on behalf of the Government, that a law, regulation, or 
Government-wide policy requires or permits an agency to handle using 
safeguarding or dissemination controls. However, CUI does not include 
classified information (see paragraph (e) of this section) or 
information a non-executive branch entity possesses and maintains in 
its own systems that did not come from, or was not created or possessed 
by or for, an executive branch agency or an entity acting for an 
agency. Law, regulation, or Government-wide policy may require or 
permit safeguarding or dissemination controls in three ways: Requiring 
or permitting agencies to control or protect the information but 
providing no specific controls, which makes the information CUI Basic; 
requiring or permitting agencies to control or protect the information 
and providing specific controls for doing so, which makes the 
information CUI Specified; or requiring or permitting agencies to 
control the information and specifying only some of those controls, 
which makes the information CUI Specified, but with CUI Basic controls 
where the authority does not specify.
    (i) Controls are safeguarding or dissemination controls that a law, 
regulation, or Government-wide policy requires or permits agencies to 
use when handling CUI. The authority may specify the controls it 
requires or permits the agency to apply, or the authority may generally 
require or permit agencies to control the information (in which case, 
the agency applies controls from the Order, this part, and the CUI 
Registry).
    (j) CUI Basic is the subset of CUI for which the authorizing law, 
regulation, or Government-wide policy does not set out specific 
handling or dissemination controls. Agencies handle CUI Basic according 
to the uniform set of controls set forth in this part and the CUI 
Registry. CUI Basic differs from CUI Specified (see definition for CUI 
Specified in this section), and CUI Basic controls apply whenever CUI 
Specified ones do not cover the involved CUI.
    (k) CUI categories and subcategories are those types of information 
for which laws, regulations, or Government-wide policies require or 
permit agencies to exercise safeguarding or dissemination controls, and 
which the CUI EA has approved and listed in the CUI Registry. The 
controls for any CUI Basic categories and any CUI Basic subcategories 
are the same, but the controls for CUI Specified categories and 
subcategories can differ from CUI Basic ones and from each other. A CUI 
category may be Specified, while some or all of its subcategories may 
not be, and vice versa. If dealing with CUI that falls into a CUI 
Specified category or subcategory, review the controls for that 
category or subcategory on the CUI Registry. Also consult the agency's 
CUI policy for specific direction from the Senior Agency Official.
    (l) CUI category or subcategory markings are the markings approved 
by the CUI EA for the categories and subcategories listed in the CUI 
Registry.
    (m) CUI Executive Agent (EA) is the National Archives and Records 
Administration (NARA), which implements the executive branch-wide CUI 
Program and oversees Federal agency actions to comply with the Order. 
NARA has delegated this authority to the Director of the Information 
Security Oversight Office (ISOO).
    (n) CUI Program is the executive branch-wide program to standardize 
CUI handling by all Federal agencies. The Program includes the rules, 
organization, and procedures for CUI, established by the Order, this 
part, and the CUI Registry.
    (o) CUI Program manager is an agency official, designated by the 
agency head or CUI SAO, to serve as the official representative to the 
CUI EA on the agency's day-to-day CUI Program operations, both within 
the agency and in interagency contexts.
    (p) CUI Registry is the online repository for all information, 
guidance, policy, and requirements on handling CUI, including 
everything issued by the CUI EA other than this part. Among other 
information, the CUI Registry identifies all approved CUI categories 
and subcategories, provides general descriptions for each, identifies 
the basis for controls, establishes markings, and includes guidance on 
handling procedures.
    (q) CUI senior agency official (SAO) is a senior official 
designated in writing by an agency head and responsible to that agency 
head for implementation of the CUI Program within that agency. The CUI 
SAO is the primary point of contact for official correspondence, 
accountability reporting, and other matters of record between the 
agency and the CUI EA.
    (r) CUI Specified is the subset of CUI in which the authorizing 
law, regulation, or Government-wide policy contains specific handling 
controls that it requires or permits agencies to use that differ from 
those for CUI Basic. The CUI Registry indicates which laws, 
regulations, and Government-wide policies include such specific 
requirements. CUI Specified controls may be more stringent than, or may 
simply differ from, those required by CUI Basic; the distinction is 
that the underlying authority spells out specific controls for CUI 
Specified information and does not for CUI Basic information. CUI Basic 
controls apply to those aspects of CUI Specified where the authorizing 
laws, regulations, and

[[Page 63338]]

Government-wide policies do not provide specific guidance.
    (s) Decontrolling occurs when an authorized holder, consistent with 
this part and the CUI Registry, removes safeguarding or dissemination 
controls from CUI that no longer requires such controls. Decontrol may 
occur automatically or through agency action. See Sec.  2002.18.
    (t) Designating CUI occurs when an authorized holder, consistent 
with this part and the CUI Registry, determines that a specific item of 
information falls into a CUI category or subcategory. The authorized 
holder who designates the CUI must make recipients aware of the 
information's CUI status in accordance with this part.
    (u) Designating agency is the executive branch agency that 
designates or approves the designation of a specific item of 
information as CUI.
    (v) Disseminating occurs when authorized holders provide access, 
transmit, or transfer CUI to other authorized holders through any 
means, whether internal or external to an agency.
    (w) Document means any tangible thing which constitutes or contains 
information, and means the original and any copies (whether different 
from the originals because of notes made on such copies or otherwise) 
of all writings of every kind and description over which an agency has 
authority, whether inscribed by hand or by mechanical, facsimile, 
electronic, magnetic, microfilm, photographic, or other means, as well 
as phonic or visual reproductions or oral statements, conversations, or 
events, and including, but not limited to: Correspondence, email, 
notes, reports, papers, files, manuals, books, pamphlets, periodicals, 
letters, memoranda, notations, messages, telegrams, cables, facsimiles, 
records, studies, working papers, accounting papers, contracts, 
licenses, certificates, grants, agreements, computer disks, computer 
tapes, telephone logs, computer mail, computer printouts, worksheets, 
sent or received communications of any kind, teletype messages, 
agreements, diary entries, calendars and journals, printouts, drafts, 
tables, compilations, tabulations, recommendations, accounts, work 
papers, summaries, address books, other records and recordings or 
transcriptions of conferences, meetings, visits, interviews, 
discussions, or telephone conversations, charts, graphs, indexes, 
tapes, minutes, contracts, leases, invoices, records of purchase or 
sale correspondence, electronic or other transcription of taping of 
personal conversations or conferences, and any written, printed, typed, 
punched, taped, filmed, or graphic matter however produced or 
reproduced. Document also includes the file, folder, exhibits, and 
containers, the labels on them, and any metadata, associated with each 
original or copy. Document also includes voice records, film, tapes, 
video tapes, email, personal computer files, electronic matter, and 
other data compilations from which information can be obtained, 
including materials used in data processing.
    (x) Federal information system is an information system used or 
operated by an agency or by a contractor of an agency or other 
organization on behalf of an agency. 44 U.S.C. 3554(a)(1)(A)(ii).
    (y) Foreign entity is a foreign government, an international 
organization of governments or any element thereof, an international or 
foreign public or judicial body, or an international or foreign private 
or non-governmental organization.
    (z) Formerly Restricted Data (FRD) is a type of information 
classified under the Atomic Energy Act, and defined in 10 CFR 1045, 
Nuclear Classification and Declassification.
    (aa) Handling is any use of CUI, including but not limited to 
marking, safeguarding, transporting, disseminating, re-using, and 
disposing of the information.
    (bb) Lawful Government purpose is any activity, mission, function, 
operation, or endeavor that the U.S. Government authorizes or 
recognizes as within the scope of its legal authorities or the legal 
authorities of non-executive branch entities (such as state and local 
law enforcement).
    (cc) Legacy material is unclassified information that an agency 
marked as restricted from access or dissemination in some way, or 
otherwise controlled, prior to the CUI Program.
    (dd) Limited dissemination control is any CUI EA-approved control 
that agencies may use to limit or specify CUI dissemination.
    (ee) Misuse of CUI occurs when someone uses CUI in a manner not in 
accordance with the policy contained in the Order, this part, the CUI 
Registry, agency CUI policy, or the applicable laws, regulations, and 
Government-wide policies that govern the affected information. This may 
include intentional violations or unintentional errors in safeguarding 
or disseminating CUI. This may also include designating or marking 
information as CUI when it does not qualify as CUI.
    (ff) National Security System is a special type of information 
system (including telecommunications systems) whose function, 
operation, or use is defined in National Security Directive 42 and 44 
U.S.C. 3542(b)(2).
    (gg) Non-executive branch entity is a person or organization 
established, operated, and controlled by individual(s) acting outside 
the scope of any official capacity as officers, employees, or agents of 
the executive branch of the Federal Government. Such entities may 
include: Elements of the legislative or judicial branches of the 
Federal Government; state, interstate, tribal, or local government 
elements; and private organizations. Non-executive branch entity does 
not include foreign entities as defined in this part, nor does it 
include individuals or organizations when they receive CUI information 
pursuant to federal disclosure laws, including the Freedom of 
Information Act (FOIA) and the Privacy Act of 1974.
    (hh) On behalf of an agency occurs when a non-executive branch 
entity uses or operates an information system or maintains or collects 
information for the purpose of processing, storing, or transmitting 
Federal information, and those activities are not incidental to 
providing a service or product to the Government.
    (ii) Order is Executive Order 13556, Controlled Unclassified 
Information, November 4, 2010 (3 CFR, 2011 Comp., p. 267), or any 
successor order.
    (jj) Portion is ordinarily a section within a document, and may 
include subjects, titles, graphics, tables, charts, bullet statements, 
sub-paragraphs, bullets points, or other sections.
    (kk) Protection includes all controls an agency applies or must 
apply when handling information that qualifies as CUI.
    (ll) Public release occurs when the agency that originally 
designated particular information as CUI makes that information 
available to the public through the agency's official public release 
processes. Disseminating CUI to non-executive branch entities as 
authorized does not constitute public release. Releasing information to 
an individual pursuant to the Privacy Act of 1974 or disclosing it in 
response to a FOIA request also does not automatically constitute 
public release, although it may if that agency ties such actions to its 
official public release processes. Even though an agency may disclose 
some CUI to a member of the public, the Government must still control 
that CUI unless the agency publicly releases it through its official 
public release processes.
    (mm) Records are agency records and Presidential papers or 
Presidential records (or Vice-Presidential), as those

[[Page 63339]]

terms are defined in 44 U.S.C. 3301 and 44 U.S.C. 2201 and 2207. 
Records also include such items created or maintained by a Government 
contractor, licensee, certificate holder, or grantee that are subject 
to the sponsoring agency's control under the terms of the entity's 
agreement with the agency.
    (nn) Required or permitted (by a law, regulation, or Government-
wide policy) is the basis by which information may qualify as CUI. If a 
law, regulation, or Government-wide policy requires that agencies 
exercise safeguarding or dissemination controls over certain 
information, or specifically permits agencies the discretion to do so, 
then that information qualifies as CUI. The term 'specifically permits' 
in this context can include language such as ``is exempt from'' 
applying certain information release or disclosure requirements, 
``may'' release or disclose the information, ``may not be required to'' 
release or disclose the information, ``is responsible for protecting'' 
the information, and similar specific but indirect, forms of granting 
the agency discretion regarding safeguarding or dissemination controls. 
This does not include general agency or agency head authority and 
discretion to make decisions, risk assessments, or other broad agency 
authorities, discretions, and powers, regardless of the source. The CUI 
Registry reflects all appropriate authorizing authorities.
    (oo) Restricted Data (RD) is a type of information classified under 
the Atomic Energy Act, defined in 10 CFR part 1045, Nuclear 
Classification and Declassification.
    (pp) Re-use means incorporating, restating, or paraphrasing 
information from its originally designated form into a newly created 
document.
    (qq) Self-inspection is an agency's internally managed review and 
evaluation of its activities to implement the CUI Program.
    (rr) Unauthorized disclosure occurs when an authorized holder of 
CUI intentionally or unintentionally discloses CUI without a lawful 
Government purpose, in violation of restrictions imposed by 
safeguarding or dissemination controls, or contrary to limited 
dissemination controls.
    (ss) Uncontrolled unclassified information is information that 
neither the Order nor the authorities governing classified information 
cover as protected. Although this information is not controlled or 
classified, agencies must still handle it in accordance with Federal 
Information Security Modernization Act (FISMA) requirements.
    (tt) Working papers are documents or materials, regardless of form, 
that an agency or user expects to revise prior to creating a finished 
product.


Sec.  2002.6  CUI Executive Agent (EA).

    (a) Section 2(c) of the Order designates NARA as the CUI Executive 
Agent (EA) to implement the Order and to oversee agency efforts to 
comply with the Order, this part, and the CUI Registry.
    (b) NARA has delegated the CUI EA responsibilities to the Director 
of ISOO. Under this authority, ISOO staff carry out CUI oversight 
responsibilities and manage the Federal CUI program.


Sec.  2002.8  Roles and responsibilities.

    (a) The CUI EA:
    (1) Develops and issues policy, guidance, and other materials, as 
needed, to implement the Order, the CUI Registry, and this part, and to 
establish and maintain the CUI Program;
    (2) Consults with affected agencies, Government-wide policy bodies, 
State, local, Tribal, and private sector partners, and representatives 
of the public on matters pertaining to CUI as needed;
    (3) Establishes, convenes, and chairs the CUI Advisory Council (the 
Council) to address matters pertaining to the CUI Program. The CUI EA 
consults with affected agencies to develop and document the Council's 
structure and procedures, and submits the details to OMB for approval;
    (4) Reviews and approves agency policies implementing this part to 
ensure their consistency with the Order, this part, and the CUI 
Registry;
    (5) Reviews, evaluates, and oversees agencies' actions to implement 
the CUI Program, to ensure compliance with the Order, this part, and 
the CUI Registry;
    (6) Establishes a management and planning framework, including 
associated deadlines for phased implementation, based on agency 
compliance plans submitted pursuant to section 5(b) of the Order, and 
in consultation with affected agencies and OMB;
    (7) Approves categories and subcategories of CUI as needed and 
publishes them in the CUI Registry;
    (8) Maintains and updates the CUI Registry as needed;
    (9) Prescribes standards, procedures, guidance, and instructions 
for oversight and agency self-inspection programs, to include 
performing on-site inspections;
    (10) Standardizes forms and procedures to implement the CUI 
Program;
    (11) Considers and resolves, as appropriate, disputes, complaints, 
and suggestions about the CUI Program from entities in or outside the 
Government; and
    (12) Reports to the President on implementation of the Order and 
the requirements of this part. This includes publishing a report on the 
status of agency implementation at least biennially, or more frequently 
at the discretion of the CUI EA.
    (b) Agency heads:
    (1) Ensure agency senior leadership support, and make adequate 
resources available to implement, manage, and comply with the CUI 
Program as administered by the CUI EA;
    (2) Designate a CUI senior agency official (SAO) responsible for 
oversight of the agency's CUI Program implementation, compliance, and 
management, and include the official in agency contact listings;
    (3) Approve agency policies, as required, to implement the CUI 
Program; and
    (4) Establish and maintain a self-inspection program to ensure the 
agency complies with the principles and requirements of the Order, this 
part, and the CUI Registry.
    (c) The CUI SAO:
    (1) Must be at the Senior Executive Service level or equivalent;
    (2) Directs and oversees the agency's CUI Program;
    (3) Designates a CUI Program manager;
    (4) Ensures the agency has CUI implementing policies and plans, as 
needed;
    (5) Implements an education and training program pursuant to Sec.  
2002.30;
    (6) Upon request of the CUI EA under section 5(c) of the Order, 
provides an update of CUI implementation efforts for subsequent 
reporting;
    (7) Submits to the CUI EA any law, regulation, or Government-wide 
policy not already incorporated into the CUI Registry that the agency 
proposes to use to designate unclassified information for safeguarding 
or dissemination controls;
    (8) Coordinates with the CUI EA, as appropriate, any proposed law, 
regulation, or Government-wide policy that would establish, eliminate, 
or modify a category or subcategory of CUI, or change information 
controls applicable to CUI;
    (9) Establishes processes for handling CUI decontrol requests 
submitted by authorized holders;
    (10) Includes a description of all existing waivers in the annual 
report to the CUI EA, along with the rationale for each waiver and, 
where applicable, the alternative steps the agency is taking to ensure 
sufficient protection of CUI within the agency;
    (11) Develops and implements the agency's self-inspection program;

[[Page 63340]]

    (12) Establishes a mechanism by which authorized holders (both 
inside and outside the agency) can contact a designated agency 
representative for instructions when they receive unmarked or 
improperly marked information the agency designated as CUI;
    (13) Establishes a process to accept and manage challenges to CUI 
status (which may include improper or absent marking);
    (14) Establish processes and criteria for reporting and 
investigating misuse of CUI; and
    (15) Follows the requirements for the CUI SAO listed in Sec.  
2002.38(e), regarding waivers for CUI.
    (d) The Director of National Intelligence: After consulting with 
the heads of affected agencies and the Director of ISOO, may issue 
directives to implement this part with respect to the protection of 
intelligence sources, methods, and activities. Such directives must be 
in accordance with the Order, this part, and the CUI Registry.

Subpart B--Key Elements of the CUI Program


Sec.  2002.10  The CUI Registry.

    (a) The CUI EA maintains the CUI Registry, which:
    (1) Is the authoritative central repository for all guidance, 
policy, instructions, and information on CUI (other than the Order and 
this part);
    (2) Is publicly accessible;
    (3) Includes authorized CUI categories and subcategories, 
associated markings, applicable decontrolling procedures, and other 
guidance and policy information; and
    (4) Includes citation(s) to laws, regulations, or Government-wide 
policies that form the basis for each category and subcategory.
    (b) Agencies and authorized holders must follow the instructions 
contained in the CUI Registry in addition to all requirements in the 
Order and this part.


Sec.  2002.12  CUI categories and subcategories.

    (a) CUI categories and subcategories are the exclusive designations 
for identifying unclassified information that a law, regulation, or 
Government-wide policy requires or permits agencies to handle by means 
of safeguarding or dissemination controls. All unclassified information 
throughout the executive branch that requires any kind of safeguarding 
or dissemination control is CUI. Agencies may not implement 
safeguarding or dissemination controls for any unclassified information 
other than those controls permitted by the CUI Program.
    (b) Agencies may use only those categories or subcategories 
approved by the CUI EA and published in the CUI Registry to designate 
information as CUI.


Sec.  2002.14  Safeguarding.

    (a) General safeguarding policy. (1) Pursuant to the Order and this 
part, and in consultation with affected agencies, the CUI EA issues 
safeguarding standards in this part and, as necessary, in the CUI 
Registry, updating them as needed. These standards require agencies to 
safeguard CUI at all times in a manner that minimizes the risk of 
unauthorized disclosure while allowing timely access by authorized 
holders.
    (2) Safeguarding measures that agencies are authorized or 
accredited to use for classified information and national security 
systems are also sufficient for safeguarding CUI in accordance with the 
organization's management and acceptance of risk.
    (3) Agencies may increase CUI Basic's confidentiality impact level 
above moderate only internally, or by means of agreements with agencies 
or non-executive branch entities (including agreements for the 
operation of an information system on behalf of the agencies). Agencies 
may not otherwise require controls for CUI Basic at a level higher than 
permitted in the CUI Basic requirements when disseminating the CUI 
Basic outside the agency.
    (4) Authorized holders must comply with policy in the Order, this 
part, and the CUI Registry, and review any applicable agency CUI 
policies for additional instructions. For information designated as CUI 
Specified, authorized holders must also follow the procedures in the 
underlying laws, regulations, or Government-wide policies.
    (b) CUI safeguarding standards. Authorized holders must safeguard 
CUI using one of the following types of standards:
    (1) CUI Basic. CUI Basic is the default set of standards authorized 
holders must apply to all CUI unless the CUI Registry annotates that 
CUI as CUI Specified.
    (2) CUI Specified. (i) Authorized holders safeguard CUI Specified 
in accordance with the requirements of the underlying authorities 
indicated in the CUI Registry.
    (ii) When the laws, regulations, or Government-wide policies 
governing a specific type of CUI Specified are silent on either a 
safeguarding or disseminating control, agencies must apply CUI Basic 
standards to that aspect of the information's controls, unless this 
results in treatment that does not accord with the CUI Specified 
authority. In such cases, agencies must apply the CUI Specified 
standards and may apply limited dissemination controls listed in the 
CUI Registry to ensure they treat the information in accord with the 
CUI Specified authority.
    (c) Protecting CUI under the control of an authorized holder. 
Authorized holders must take reasonable precautions to guard against 
unauthorized disclosure of CUI. They must include the following 
measures among the reasonable precautions:
    (1) Establish controlled environments in which to protect CUI from 
unauthorized access or disclosure and make use of those controlled 
environments;
    (2) Reasonably ensure that unauthorized individuals cannot access 
or observe CUI, or overhear conversations discussing CUI;
    (3) Keep CUI under the authorized holder's direct control or 
protect it with at least one physical barrier, and reasonably ensure 
that the authorized holder or the physical barrier protects the CUI 
from unauthorized access or observation when outside a controlled 
environment; and
    (4) Protect the confidentiality of CUI that agencies or authorized 
holders process, store, or transmit on Federal information systems in 
accordance with the applicable security requirements and controls 
established in FIPS PUB 199, FIPS PUB 200, and NIST SP 800-53, 
(incorporated by reference, see Sec.  2002.2), and paragraph (g) of 
this section.
    (d) Protecting CUI when shipping or mailing. When sending CUI, 
authorized holders:
    (1) May use the United States Postal Service or any commercial 
delivery service when they need to transport or deliver CUI to another 
entity;
    (2) Should use in-transit automated tracking and accountability 
tools when they send CUI;
    (3) May use interoffice or interagency mail systems to transport 
CUI; and
    (4) Must mark packages that contain CUI according to marking 
requirements contained in this part and in guidance published by the 
CUI EA. See Sec.  2002.20 for more guidance on marking requirements.
    (e) Reproducing CUI. Authorized holders:
    (1) May reproduce (e.g., copy, scan, print, electronically 
duplicate) CUI in furtherance of a lawful Government purpose; and
    (2) Must ensure, when reproducing CUI documents on equipment such 
as printers, copiers, scanners, or fax machines, that the equipment 
does not retain data or the agency must otherwise sanitize it in 
accordance with NIST SP

[[Page 63341]]

800-53 (incorporated by reference, see Sec.  2002.2).
    (f) Destroying CUI. (1) Authorized holders may destroy CUI when:
    (i) The agency no longer needs the information; and
    (ii) Records disposition schedules published or approved by NARA 
allow.
    (2) When destroying CUI, including in electronic form, agencies 
must do so in a manner that makes it unreadable, indecipherable, and 
irrecoverable. Agencies must use any destruction method specifically 
required by law, regulation, or Government-wide policy for that CUI. If 
the authority does not specify a destruction method, agencies must use 
one of the following methods:
    (i) Guidance for destruction in NIST SP 800-53, Security and 
Privacy Controls for Federal Information Systems and Organizations, and 
NIST SP 800-88, Guidelines for Media Sanitization (incorporated by 
reference, see Sec.  2002.2); or
    (ii) Any method of destruction approved for Classified National 
Security Information, as delineated in 32 CFR 2001.47, Destruction, or 
any implementing or successor guidance.
    (g) Information systems that process, store, or transmit CUI. In 
accordance with FIPS PUB 199 (incorporated by reference, see Sec.  
2002.2), CUI Basic is categorized at no less than the moderate 
confidentiality impact level. FIPS PUB 199 defines the security impact 
levels for Federal information and Federal information systems. 
Agencies must also apply the appropriate security requirements and 
controls from FIPS PUB 200 and NIST SP 800-53 (incorporated by 
reference, see Sec.  2002.2) to CUI in accordance with any risk-based 
tailoring decisions they make. Agencies may increase CUI Basic's 
confidentiality impact level above moderate only internally, or by 
means of agreements with agencies or non-executive branch entities 
(including agreements for the operation of an information system on 
behalf of the agencies). Agencies may not otherwise require controls 
for CUI Basic at a level higher or different from those permitted in 
the CUI Basic requirements when disseminating the CUI Basic outside the 
agency.
    (h) Information systems that process, store, or transmit CUI are of 
two different types:
    (1) A Federal information system is an information system used or 
operated by an agency or by a contractor of an agency or other 
organization on behalf of an agency. An information system operated on 
behalf of an agency provides information processing services to the 
agency that the Government might otherwise perform itself but has 
decided to outsource. This includes systems operated exclusively for 
Government use and systems operated for multiple users (multiple 
Federal agencies or Government and private sector users). Information 
systems that a non-executive branch entity operates on behalf of an 
agency are subject to the requirements of this part as though they are 
the agency's systems, and agencies may require these systems to meet 
additional requirements the agency sets for its own internal systems.
    (2) A non-Federal information system is any information system that 
does not meet the criteria for a Federal information system. Agencies 
may not treat non-Federal information systems as though they are agency 
systems, so agencies cannot require that non-executive branch entities 
protect these systems in the same manner that the agencies might 
protect their own information systems. When a non-executive branch 
entity receives Federal information only incidental to providing a 
service or product to the Government other than processing services, 
its information systems are not considered Federal information systems. 
NIST SP 800-171 (incorporated by reference, see Sec.  2002.2) defines 
the requirements necessary to protect CUI Basic on non-Federal 
information systems in accordance with the requirements of this part. 
Agencies must use NIST SP 800-171 when establishing security 
requirements to protect CUI's confidentiality on non-Federal 
information systems (unless the authorizing law, regulation, or 
Government-wide policy listed in the CUI Registry for the CUI category 
or subcategory of the information involved prescribes specific 
safeguarding requirements for protecting the information's 
confidentiality, or unless an agreement establishes requirements to 
protect CUI Basic at higher than moderate confidentiality).


Sec.  2002.16  Accessing and disseminating.

    (a) General policy--(1) Access. Agencies should disseminate and 
permit access to CUI, provided such access or dissemination:
    (i) Abides by the laws, regulations, or Government-wide policies 
that established the CUI category or subcategory;
    (ii) Furthers a lawful Government purpose;
    (iii) Is not restricted by an authorized limited dissemination 
control established by the CUI EA; and,
    (iv) Is not otherwise prohibited by law.
    (2) Dissemination controls. (i) Agencies must impose dissemination 
controls judiciously and should do so only to apply necessary 
restrictions on access to CUI, including those required by law, 
regulation, or Government-wide policy.
    (ii) Agencies may not impose controls that unlawfully or improperly 
restrict access to CUI.
    (3) Marking. Prior to disseminating CUI, authorized holders must 
label CUI according to marking guidance issued by the CUI EA, and must 
include any specific markings required by law, regulation, or 
Government-wide policy.
    (4) Reasonable expectation. To disseminate CUI to a non-executive 
branch entity, authorized holders must reasonably expect that all 
intended recipients are authorized to receive the CUI and have a basic 
understanding of how to handle it.
    (5) Agreements. Agencies should enter into agreements with any non-
executive branch or foreign entity with which the agency shares or 
intends to share CUI, as follows (except as provided in paragraph 
(a)(7) of this section):
    (i) Information-sharing agreements. When agencies intend to share 
CUI with a non-executive branch entity, they should enter into a formal 
agreement (see Sec.  2004.4(c) for more information on agreements), 
whenever feasible. Such an agreement may take any form the agency head 
approves, but when established, it must include a requirement to comply 
with Executive Order 13556, Controlled Unclassified Information, 
November 4, 2010 (3 CFR, 2011 Comp., p. 267) or any successor order 
(the Order), this part, and the CUI Registry.
    (ii) Sharing CUI without a formal agreement. When an agency cannot 
enter into agreements under paragraph (a)(6)(i) of this section, but 
the agency's mission requires it to disseminate CUI to non-executive 
branch entities, the agency must communicate to the recipient that the 
Government strongly encourages the non-executive branch entity to 
protect CUI in accordance with the Order, this part, and the CUI 
Registry, and that such protections should accompany the CUI if the 
entity disseminates it further.
    (iii) Foreign entity sharing. When entering into agreements or 
arrangements with a foreign entity, agencies should encourage that 
entity to protect CUI in accordance with the Order, this part, and the 
CUI Registry to the extent possible, but agencies may use their 
judgment as to what and how much to communicate, keeping in mind the 
ultimate goal of safeguarding CUI. If such agreements or arrangements

[[Page 63342]]

include safeguarding or dissemination controls on unclassified 
information, the agency must not establish a parallel protection regime 
to the CUI Program: For example, the agency must use CUI markings 
rather than alternative ones (e.g., such as SBU) for safeguarding or 
dissemination controls on CUI received from or sent to foreign 
entities, must abide by any requirements set by the CUI category or 
subcategory's governing laws, regulations, or Government-wide policies, 
etc.
    (iv) Pre-existing agreements. When an agency entered into an 
information-sharing agreement prior to November 14, 2016, the agency 
should modify any terms in that agreement that conflict with the 
requirements in the Order, this part, and the CUI Registry, when 
feasible.
    (6) Agreement content. At a minimum, agreements with non-executive 
branch entities must include provisions that state:
    (i) Non-executive branch entities must handle CUI in accordance 
with the Order, this part, and the CUI Registry;
    (ii) Misuse of CUI is subject to penalties established in 
applicable laws, regulations, or Government-wide policies; and
    (iii) The non-executive branch entity must report any non-
compliance with handling requirements to the disseminating agency using 
methods approved by that agency's SAO. When the disseminating agency is 
not the designating agency, the disseminating agency must notify the 
designating agency.
    (7) Exceptions to agreements. Agencies need not enter a written 
agreement when they share CUI with the following entities:
    (i) Congress, including any committee, subcommittee, joint 
committee, joint subcommittee, or office thereof;
    (ii) A court of competent jurisdiction, or any individual or entity 
when directed by an order of a court of competent jurisdiction or a 
Federal administrative law judge (ALJ) appointed under 5 U.S.C. 3501;
    (iii) The Comptroller General, in the course of performing duties 
of the Government Accountability Office; or
    (iv) Individuals or entities, when the agency releases information 
to them pursuant to a FOIA or Privacy Act request.
    (b) Controls on accessing and disseminating CUI--(1) CUI Basic. 
Authorized holders should disseminate and encourage access to CUI Basic 
for any recipient when the access meets the requirements set out in 
paragraph (a)(1) of this section.
    (2) CUI Specified. Authorized holders disseminate and allow access 
to CUI Specified as required or permitted by the authorizing laws, 
regulations, or Government-wide policies that established that CUI 
Specified.
    (i) The CUI Registry annotates CUI that requires or permits 
Specified controls based on law, regulation, and Government-wide 
policy.
    (ii) In the absence of specific dissemination restrictions in the 
authorizing law, regulation, or Government-wide policy, agencies may 
disseminate CUI Specified as they would CUI Basic.
    (3) Receipt of CUI. Non-executive branch entities may receive CUI 
directly from members of the executive branch or as sub-recipients from 
other non-executive branch entities.
    (4) Limited dissemination. (i) Agencies may place additional limits 
on disseminating CUI only through use of the limited dissemination 
controls approved by the CUI EA and published in the CUI Registry. 
These limited dissemination controls are separate from any controls 
that a CUI Specified authority requires or permits.
    (ii) Using limited dissemination controls to unnecessarily restrict 
access to CUI is contrary to the goals of the CUI Program. Agencies may 
therefore use these controls only when it furthers a lawful Government 
purpose, or laws, regulations, or Government-wide policies require or 
permit an agency to do so. If an authorized holder has significant 
doubt about whether it is appropriate to use a limited dissemination 
control, the authorized holder should consult with and follow the 
designating agency's policy. If, after consulting the policy, 
significant doubt still remains, the authorized holder should not apply 
the limited dissemination control.
    (iii) Only the designating agency may apply limited dissemination 
controls to CUI. Other entities that receive CUI and seek to apply 
additional controls must request permission to do so from the 
designating agency.
    (iv) Authorized holders may apply limited dissemination controls to 
any CUI for which they are required or permitted to restrict access by 
or to certain entities.
    (v) Designating entities may combine approved limited dissemination 
controls listed in the CUI Registry to accommodate necessary practices.
    (c) Methods of disseminating CUI. (1) Before disseminating CUI, 
authorized holders must reasonably expect that all intended recipients 
have a lawful Government purpose to receive the CUI. Authorized holders 
may then disseminate the CUI by any method that meets the safeguarding 
requirements of this part and the CUI Registry and ensures receipt in a 
timely manner, unless the laws, regulations, or Government-wide 
policies that govern that CUI require otherwise.
    (2) To disseminate CUI using systems or components that are subject 
to NIST guidelines and publications (e.g., email applications, text 
messaging, facsimile, or voicemail), agencies must do so in accordance 
with the no-less-than-moderate confidentiality impact value set out in 
FIPS PUB 199, FIPS PUB 200, NIST SP 800-53 (incorporated by reference, 
see Sec.  2002.2).


Sec.  2002.18  Decontrolling.

    (a) Agencies should decontrol as soon as practicable any CUI 
designated by their agency that no longer requires safeguarding or 
dissemination controls, unless doing so conflicts with the governing 
law, regulation, or Government-wide policy.
    (b) Agencies may decontrol CUI automatically upon the occurrence of 
one of the conditions below, or through an affirmative decision by the 
designating agency:
    (1) When laws, regulations or Government-wide policies no longer 
require its control as CUI and the authorized holder has the 
appropriate authority under the authorizing law, regulation, or 
Government-wide policy;
    (2) When the designating agency decides to release it to the public 
by making an affirmative, proactive disclosure;
    (3) When the agency discloses it in accordance with an applicable 
information access statute, such as the FOIA, or the Privacy Act (when 
legally permissible), if the agency incorporates such disclosures into 
its public release processes; or
    (4) When a pre-determined event or date occurs, as described in 
Sec.  2002.20(g), unless law, regulation, or Government-wide policy 
requires coordination first.
    (c) The designating agency may also decontrol CUI:
    (1) In response to a request by an authorized holder to decontrol 
it; or
    (2) Concurrently with any declassification action under Executive 
Order 13526 or any predecessor or successor order, as long as the 
information also appropriately qualifies for decontrol as CUI.
    (d) An agency may designate in its CUI policies which agency 
personnel it authorizes to decontrol CUI, consistent with law, 
regulation, and Government-wide policy.

[[Page 63343]]

    (e) Decontrolling CUI relieves authorized holders from requirements 
to handle the information under the CUI Program, but does not 
constitute authorization for public release.
    (f) Authorized holders must clearly indicate that CUI is no longer 
controlled when restating, paraphrasing, re-using, releasing to the 
public, or donating it to a private institution. Otherwise, authorized 
holders do not have to mark, review, or take other actions to indicate 
the CUI is no longer controlled.
    (1) Agency policy may allow authorized holders to remove or strike 
through only those CUI markings on the first or cover page of the 
decontrolled CUI and markings on the first page of any attachments that 
contain CUI.
    (2) If an authorized holder uses the decontrolled CUI in a newly 
created document, the authorized holder must remove all CUI markings 
for the decontrolled information.
    (g) Once decontrolled, any public release of information that was 
formerly CUI must be in accordance with applicable law and agency 
policies on the public release of information.
    (h) Authorized holders may request that the designating agency 
decontrol certain CUI.
    (i) If an authorized holder publicly releases CUI in accordance 
with the designating agency's authorized procedures, the release 
constitutes decontrol of the information.
    (j) Unauthorized disclosure of CUI does not constitute decontrol.
    (k) Agencies must not decontrol CUI in an attempt to conceal, or to 
otherwise circumvent accountability for, an identified unauthorized 
disclosure.
    (l) When laws, regulations, or Government-wide policies require 
specific decontrol procedures, authorized holders must follow such 
requirements.
    (m) The Archivist of the United States may decontrol records 
transferred to the National Archives in accordance with Sec.  2002.34, 
absent a specific agreement otherwise with the designating agency. The 
Archivist decontrols records to facilitate public access pursuant to 44 
U.S.C. 2108 and NARA's regulations at 36 CFR parts 1235, 1250, and 
1256.


Sec.  2002.20  Marking.

    (a) General marking policy. (1) CUI markings listed in the CUI 
Registry are the only markings authorized to designate unclassified 
information requiring safeguarding or dissemination controls. Agencies 
and authorized holders must, in accordance with the implementation 
timelines established for the agency by the CUI EA:
    (i) Discontinue all use of legacy or other markings not permitted 
by this part or included in the CUI Registry; and
    (ii) Uniformly and conspicuously apply CUI markings to all CUI 
exclusively in accordance with the part and the CUI Registry, unless 
this part or the CUI EA otherwise specifically permits. See paragraph 
(a)(6) of this section and Sec. Sec.  2002.38, Waivers of CUI 
requirements, and 2002.36, Legacy materials, for more information.
    (2) Agencies may not modify CUI Program markings or deviate from 
the method of use prescribed by the CUI EA (in this part and the CUI 
Registry) in an effort to accommodate existing agency marking 
practices, except in circumstances approved by the CUI EA. The CUI 
Program prohibits using markings or practices not included in this part 
or the CUI Registry. If legacy markings remain on information, the 
legacy markings are void and no longer indicate that the information is 
protected or that it is or qualifies as CUI.
    (3) An agency receiving an incorrectly marked document should 
notify either the disseminating entity or the designating agency, and 
request a properly marked document.
    (4) The designating agency determines that the information 
qualifies for CUI status and applies the appropriate CUI marking when 
it designates that information as CUI.
    (5) If an agency has information within its control that qualifies 
as CUI but has not been previously marked as CUI for any reason (for 
example, pursuant to an agency internal marking waiver as referenced in 
Sec.  2002.38 (a)), the agency must mark it as CUI prior to 
disseminating it.
    (6) Agencies must not mark information as CUI to conceal 
illegality, negligence, ineptitude, or other disreputable circumstances 
embarrassing to any person, any agency, the Federal Government, or any 
of their partners, or for any purpose other than to adhere to the law, 
regulation, or Government-wide policy authorizing the control.
    (7) The lack of a CUI marking on information that qualifies as CUI 
does not exempt the authorized holder from abiding by applicable 
handling requirements as described in the Order, this part, and the CUI 
Registry.
    (8) When it is impractical for an agency to individually mark CUI 
due to quantity or nature of the information, or when an agency has 
issued a limited CUI marking waiver, authorized holders must make 
recipients aware of the information's CUI status using an alternate 
marking method that is readily apparent (for example, through user 
access agreements, a computer system digital splash screen (e.g., 
alerts that flash up when accessing the system), or signs in storage 
areas or on containers).
    (b) The CUI banner marking. Designators of CUI must mark all CUI 
with a CUI banner marking, which may include up to three elements:
    (1) The CUI control marking (mandatory). (i) The CUI control 
marking may consist of either the word ``CONTROLLED'' or the acronym 
``CUI,'' at the designator's discretion. Agencies may specify in their 
CUI policy that employees must use one or the other.
    (ii) The CUI Registry contains additional, specific guidance and 
instructions for using the CUI control marking.
    (iii) Authorized holders who designate CUI may not use alternative 
markings to identify or mark items as CUI.
    (2) CUI category or subcategory markings (mandatory for CUI 
Specified). (i) The CUI Registry lists the category and subcategory 
markings, which align with the CUI's governing category or subcategory.
    (ii) Although the CUI Program does not require agencies to use 
category or subcategory markings on CUI Basic, an agency's CUI SAO may 
establish agency policy that mandates use of CUI category or 
subcategory markings on CUI Basic.
    (iii) However, authorized holders must include in the CUI banner 
marking all CUI Specified category or subcategory markings that pertain 
to the information in the document. If law, regulation, or Government-
wide policy requires specific marking, disseminating, informing, 
distribution limitation, or warning statements, agencies must use those 
indicators as those authorities require or permit. However, agencies 
must not include these additional indicators in the CUI banner marking 
or CUI portion markings.
    (iv) The CUI Registry contains additional, specific guidance and 
instructions for using CUI category and subcategory markings.
    (3) Limited dissemination control markings. (i) CUI limited 
dissemination control markings align with limited dissemination 
controls established by the CUI EA under Sec.  2002.16(b)(4).
    (ii) Agency policy should include specific criteria establishing 
which authorized holders may apply limited dissemination controls and 
their corresponding markings, and when. Such agency policy must align 
with the requirements in Sec.  2002.16(b)(4).

[[Page 63344]]

    (iii) The CUI Registry contains additional, specific guidance and 
instructions for using limited dissemination control markings.
    (c) Using the CUI banner marking. (1) The content of the CUI banner 
marking must apply to the whole document (i.e., inclusive of all CUI 
within the document) and must be the same on each page of the document 
that includes CUI.
    (2) The CUI Registry contains additional, specific guidelines and 
instructions for using the CUI banner marking.
    (d) CUI designation indicator (mandatory). (1) All documents 
containing CUI must carry an indicator of who designated the CUI within 
it. This must include the designator's agency (at a minimum) and may 
take any form that identifies the designating agency, including 
letterhead or other standard agency indicators, or adding a 
``Controlled by'' line (for example, ``Controlled by: Division 5, 
Department of Good Works.'').
    (2) The designation indicator must be readily apparent to 
authorized holders and may appear only on the first page or cover. The 
CUI Registry contains additional, specific guidance and requirements 
for using CUI designation indicators.
    (e) CUI decontrolling indicators. (1) Where feasible, designating 
agencies must include a specific decontrolling date or event with all 
CUI. Agencies may do so in any manner that makes the decontrolling 
schedule readily apparent to an authorized holder.
    (2) Authorized holders may consider specific items of CUI as 
decontrolled as of the date indicated, requiring no further review by, 
or communication with, the designator.
    (3) If using a specific event after which the CUI is considered 
decontrolled:
    (i) The event must be foreseeable and verifiable by any authorized 
holder (e.g., not based on or requiring special access or knowledge); 
and
    (ii) The designator should include point of contact and preferred 
method of contact information in the decontrol indicator when using 
this method, to allow authorized holders to verify that a specified 
event has occurred.
    (4) The CUI Registry contains additional, specific guidance and 
instructions for using limited dissemination control markings.
    (f) Portion marking CUI. (1) Agencies are permitted and encouraged 
to portion mark all CUI, to facilitate information sharing and proper 
handling.
    (2) Authorized holders who designate CUI may mark CUI only with 
portion markings approved by the CUI EA and listed in the CUI Registry.
    (3) CUI portion markings consist of the following elements:
    (i) The CUI control marking, which must be the acronym ``CUI'';
    (ii) CUI category/subcategory portion markings (if required or 
permitted); and
    (iii) CUI limited dissemination control portion markings (if 
required).
    (4) When using portion markings:
    (i) CUI category and subcategory portion markings are optional for 
CUI Basic. Agencies may manage their use by means of agency policy.
    (ii) Authorized holders permitted to designate CUI must portion 
mark both CUI and uncontrolled unclassified portions.
    (5) In cases where portions consist of several segments, such as 
paragraphs, sub-paragraphs, bullets, and sub-bullets, and the control 
level is the same throughout, designators of CUI may place a single 
portion marking at the beginning of the primary paragraph or bullet. 
However, if the portion includes different CUI categories or 
subcategories, or if the portion includes some CUI and some 
uncontrolled unclassified information, authorized holders should 
portion mark all segments separately to avoid improper control of any 
one segment.
    (6) Each portion must reflect the control level of only that 
individual portion. If the information contained in a sub-paragraph or 
sub-bullet is a different CUI category or subcategory from its parent 
paragraph or parent bullet, this does not make the parent paragraph or 
parent bullet controlled at that same level.
    (7) The CUI Registry contains additional, specific guidance and 
instructions for using CUI portion markings and uncontrolled 
unclassified portion markings.
    (g) Commingling CUI markings with Classified National Security 
Information (CNSI). When authorized holders include CUI in documents 
that also contain CNSI, the decontrolling provisions of the Order and 
this part apply only to portions marked as CUI. In addition, authorized 
holders must:
    (1) Portion mark all CUI to ensure that authorized holders can 
distinguish CUI portions from portions containing classified and 
uncontrolled unclassified information;
    (2) Include the CUI control marking, CUI Specified category and 
subcategory markings, and limited dissemination control markings in an 
overall banner marking; and
    (3) Follow the requirements of the Order and this part, and 
instructions in the CUI Registry on marking CUI when commingled with 
CNSI.
    (h) Commingling restricted data (RD) and formerly restricted data 
(FRD) with CUI. (1) To the extent possible, avoid commingling RD or FRD 
with CUI in the same document. When it is not practicable to avoid such 
commingling, follow the marking requirements in the Order and this 
part, and instructions in the CUI Registry, as well as the marking 
requirements in 10 CFR part 1045, Nuclear Classification and 
Declassification.
    (2) Follow the requirements of 10 CFR part 1045 when extracting an 
RD or FRD portion for use in a new document.
    (3) Follow the requirements of the Order and this part, and 
instructions in the CUI Registry if extracting a CUI portion for use in 
a new document.
    (4) The lack of declassification instructions for RD or FRD 
portions does not eliminate the requirement to process commingled 
documents for declassification in accordance with the Atomic Energy 
Act, or 10 CFR part 1045.
    (i) Packages and parcels containing CUI. (1) Address packages that 
contain CUI for delivery only to a specific recipient.
    (2) Do not put CUI markings on the outside of an envelope or 
package, or otherwise indicate on the outside that the item contains 
CUI.
    (j) Transmittal document marking requirements. (1) When a 
transmittal document accompanies CUI, the transmittal document must 
include a CUI marking on its face (``CONTROLLED'' or ``CUI''), 
indicating that CUI is attached or enclosed.
    (2) The transmittal document must also include conspicuously on its 
face the following or similar instructions, as appropriate:
    (i) ``When enclosure is removed, this document is Uncontrolled 
Unclassified Information''; or
    (ii) ``When enclosure is removed, this document is (control level); 
upon removal, this document does not contain CUI.''
    (k) Working papers. Mark working papers containing CUI the same way 
as the finished product containing CUI would be marked and as required 
for any CUI contained within them. Handle them in accordance with this 
part and the CUI Registry.
    (l) Using supplemental administrative markings with CUI. (1) Agency 
heads may authorize the use of supplemental administrative markings 
(e.g. ``Pre-decisional,'' ``Deliberative,'' ``Draft'') for use with 
CUI.
    (2) Agency heads may not authorize the use of supplemental 
administrative

[[Page 63345]]

markings to establish safeguarding requirements or disseminating 
restrictions, or to designate the information as CUI. However, agencies 
may use these markings to inform recipients of the non-final status of 
documents under development to avoid confusion and maintain the 
integrity of an agency's decision-making process.
    (3) Agencies must detail requirements for using supplemental 
administrative markings with CUI in agency policy that is available to 
anyone who may come into possession of CUI with these markings.
    (4) Authorized holders must not incorporate or include supplemental 
administrative markings in the CUI marking scheme detailed in this part 
and the CUI Registry.
    (5) Supplemental administrative markings must not duplicate any CUI 
marking described in this part or the CUI Registry.
    (m) Unmarked CUI. Treat unmarked information that qualifies as CUI 
as described in the Order, Sec.  2002.8(c), and the CUI Registry.


Sec.  2002.22  Limitations on applicability of agency CUI policies.

    (a) Agency CUI policies do not apply to entities outside that 
agency unless a law, regulation, or Government-wide policy requires or 
permits the controls contained in the agency policy to do so, and the 
CUI Registry lists that law, regulation, or Government-wide policy as a 
CUI authority.
    (b) Agencies may not include additional requirements or 
restrictions on handling CUI other than those permitted in the Order, 
this part, or the CUI Registry when entering into agreements.


Sec.  2002.24  Agency self-inspection program.

    (a) The agency must establish a self-inspection program pursuant to 
the requirement in Sec.  2002.8(b)(4).
    (b) The self-inspection program must include:
    (1) At least annual review and assessment of the agency's CUI 
program. The agency head or CUI SAO should determine any greater 
frequency based on program needs and the degree to which the agency 
engages in designating CUI;
    (2) Self-inspection methods, reviews, and assessments that serve to 
evaluate program effectiveness, measure the level of compliance, and 
monitor the progress of CUI implementation;
    (3) Formats for documenting self-inspections and recording findings 
when not prescribed by the CUI EA;
    (4) Procedures by which to integrate lessons learned and best 
practices arising from reviews and assessments into operational 
policies, procedures, and training;
    (5) A process for resolving deficiencies and taking corrective 
actions; and
    (6) Analysis and conclusions from the self-inspection program, 
documented on an annual basis and as requested by the CUI EA.

Subpart C--CUI Program Management


Sec.  2002.30  Education and training.

    (a) The CUI SAO must establish and implement an agency training 
policy. At a minimum, the training policy must address the means, 
methods, and frequency of agency CUI training.
    (b) Agency training policy must ensure that personnel who have 
access to CUI receive training on designating CUI, relevant CUI 
categories and subcategories, the CUI Registry, associated markings, 
and applicable safeguarding, disseminating, and decontrolling policies 
and procedures.
    (c) Agencies must train employees on these matters when the 
employees first begin working for the agency and at least once every 
two years thereafter.
    (d) The CUI EA reviews agency training materials to ensure 
consistency and compliance with the Order, this part, and the CUI 
Registry.


Sec.  2002.32  CUI cover sheets.

    (a) Agencies may use cover sheets for CUI. If an agency chooses to 
use cover sheets, it must use CUI EA-approved cover sheets, which 
agencies can find on the CUI Registry.
    (b) Agencies may use cover sheets to identify CUI, alert observers 
that CUI is present from a distance, and serve as a shield to protect 
the attached CUI from inadvertent disclosure.


Sec.  2002.34  Transferring records.

    (a) When feasible, agencies must decontrol records containing CUI 
prior to transferring them to NARA.
    (b) When an agency cannot decontrol records before transferring 
them to NARA, the agency must:
    (1) Indicate on a Transfer Request (TR) in NARA's Electronic 
Records Archives (ERA) or on an SF 258 paper transfer form, that the 
records should continue to be controlled as CUI (subject to NARA's 
regulations on transfer, public availability, and access; see 36 CFR 
parts 1235, 1250, and 1256); and
    (2) For hard copy transfer, do not place a CUI marking on the 
outside of the container.
    (c) If the agency does not indicate the status as CUI on the TR or 
SF 258, NARA may assume the agency decontrolled the information prior 
to transfer, regardless of any CUI markings on the actual records.


Sec.  2002.36  Legacy materials.

    (a) Agencies must review documents created prior to November 14, 
2016 and re-mark any that contain information that qualifies as CUI in 
accordance with the Order, this part, and the CUI Registry. When 
agencies do not individually re-mark legacy material that qualifies as 
CUI, agencies must use an alternate permitted marking method (see Sec.  
2002.20(a)(8)).
    (b) When the CUI SAO deems re-marking legacy documents to be 
excessively burdensome, the CUI SAO may grant a legacy material marking 
waiver under Sec.  2002.38(b).
    (c) When the agency re-uses any information from legacy documents 
that qualifies as CUI, whether the documents have obsolete control 
markings or not, the agency must designate the newly-created document 
(or other re-use) as CUI and mark it accordingly.


Sec.  2002.38  Waivers of CUI requirements.

    (a) Limited CUI marking waivers within the agency. When an agency 
designates information as CUI but determines that marking it as CUI is 
excessively burdensome, an agency's CUI SAO may approve waivers of all 
or some of the CUI marking requirements while that CUI remains within 
agency control.
    (b) Limited legacy material marking waivers within the agency. (1) 
In situations in which the agency has a substantial amount of stored 
information with legacy markings, and removing legacy markings and 
designating or re-marking it as CUI would be excessively burdensome, 
the agency's CUI SAO may approve a waiver of these requirements for 
some or all of that information while it remains under agency control.
    (2) When an authorized holder re-uses any legacy information or 
information derived from legacy documents that qualifies as CUI, they 
must remove or redact legacy markings and designate or re-mark the 
information as CUI, even if the information is under a legacy material 
marking waiver prior to re-use.
    (c) Exigent circumstances waivers. (1) In exigent circumstances, 
the agency head or the CUI SAO may waive the provisions and 
requirements established in this part or the CUI Registry for any CUI 
while it is within the agency's possession or control, unless 
specifically prohibited by applicable laws, regulations, or Government-
wide policies.

[[Page 63346]]

    (2) Exigent circumstances waivers may apply when an agency shares 
the information with other agencies or non-Federal entities. In such 
cases, the authorized holders must make recipients aware of the CUI 
status of any disseminated information.
    (d) For all waivers. (1) The CUI SAO must still ensure that the 
agency appropriately safeguards and disseminates the CUI. See Sec.  
2002.20(a)(7);
    (2) The CUI SAO must detail in each waiver the alternate protection 
methods the agency will employ to ensure protection of CUI subject to 
the waiver;
    (3) All marking waivers apply to CUI subject to the waiver only 
while that agency continues to possess that CUI. No marking waiver may 
accompany CUI when an authorized holder disseminates it outside that 
agency;
    (4) Authorized holders must uniformly and conspicuously apply CUI 
markings to all CUI prior to disseminating it outside the agency unless 
otherwise specifically permitted by the CUI EA; and
    (5) When the circumstances requiring the waiver end, the CUI SAO 
must reinstitute the requirements for all CUI subject to the waiver 
without delay.
    (e) The CUI SAO must:
    (1) Retain a record of each waiver;
    (2) Include a description of all current waivers and waivers issued 
during the preceding year in the annual report to the CUI EA, along 
with the rationale for each waiver and the alternate steps the agency 
takes to ensure sufficient protection of CUI; and
    (3) Notify authorized recipients and the public of these waivers.


Sec.  2002.44  CUI and disclosure statutes.

    (a) General policy. The fact that an agency designates certain 
information as CUI does not affect an agency's or employee's 
determinations pursuant to any law that requires the agency or the 
employee to disclose that information or permits them to do so as a 
matter of discretion. The agency or employee must make such 
determinations according to the criteria set out in the governing law, 
not on the basis of the information's status as CUI.
    (b) CUI and the Freedom of Information Act (FOIA). Agencies must 
not cite the FOIA as a CUI safeguarding or disseminating control 
authority for CUI. When an agency is determining whether to disclose 
information in response to a FOIA request, the agency must base its 
decision on the content of the information and applicability of any 
FOIA statutory exemptions, regardless of whether an agency designates 
or marks the information as CUI. There may be circumstances in which an 
agency may disclose CUI to an individual or entity, including through a 
FOIA response, but such disclosure does not always constitute public 
release as defined in this part. Although disclosed via a FOIA 
response, the agency may still need to control the CUI while the agency 
continues to hold the information, despite the disclosure, unless the 
agency otherwise decontrols it (or the agency includes in its policies 
that FOIA disclosure always results in public release and the CUI does 
not otherwise have another legal requirement for its continued 
control).
    (c) CUI and the Whistleblower Protection Act. This part does not 
change or affect existing legal protections for whistleblowers. The 
fact that an agency designates or marks certain information as CUI does 
not determine whether an individual may lawfully disclose that 
information under a law or other authority, and does not preempt or 
otherwise affect whistleblower legal protections provided by law, 
regulation, or executive order or directive.


Sec.  2002.46  CUI and the Privacy Act.

    The fact that records are subject to the Privacy Act of 1974 does 
not mean that agencies must mark them as CUI. Consult agency policies 
or guidance to determine which records may be subject to the Privacy 
Act; consult the CUI Registry to determine which privacy information 
must be marked as CUI. Information contained in Privacy Act systems of 
records may also be subject to controls under other CUI categories or 
subcategories and the agency may need to mark that information as CUI 
for that reason. In addition, when determining whether the agency must 
protect certain information under the Privacy Act, or whether the 
Privacy Act allows the agency to release the information to an 
individual, the agency must base its decision on the content of the 
information and the Privacy Act's criteria, regardless of whether an 
agency designates or marks the information as CUI.


Sec.  2002.48  CUI and the Administrative Procedure Act (APA).

    Nothing in the regulations in this part alters the Administrative 
Procedure Act (APA) or the powers of Federal administrative law judges 
(ALJs) appointed thereunder, including the power to determine 
confidentiality of information in proceedings over which they preside. 
Nor do the regulations in this part impose requirements concerning the 
manner in which ALJs designate, disseminate, control access to, 
decontrol, or mark such information, or make such determinations.


Sec.  2002.50  Challenges to designation of information as CUI.

    (a) Authorized holders of CUI who, in good faith, believe that its 
designation as CUI is improper or incorrect, or who believe they have 
received unmarked CUI, should notify the disseminating agency of this 
belief. When the disseminating agency is not the designating agency, 
the disseminating agency must notify the designating agency.
    (b) If the information at issue is involved in Government 
litigation, or the challenge to its designation or marking as CUI 
arises as part of the litigation, the issue of whether the challenger 
may access the information will be addressed via the litigation process 
instead of by the agency CUI program. Challengers should nonetheless 
notify the agency of the issue through the agency process described 
below, and include its litigation connection.
    (c) CUI SAOs must create a process within their agency to accept 
and manage challenges to CUI status. At a minimum, this process must 
include a timely response to the challenger that:
    (1) Acknowledges receipt of the challenge;
    (2) States an expected timetable for response to the challenger;
    (3) Provides an opportunity for the challenger to define a 
rationale for belief that the CUI in question is inappropriately 
designated;
    (4) Gives contact information for the official making the agency's 
decision in this matter; and
    (5) Ensures that challengers who are authorized holders have the 
option of bringing such challenges anonymously, and that challengers 
are not subject to retribution for bringing such challenges.
    (d) Until the challenge is resolved, authorized holders should 
continue to safeguard and disseminate the challenged CUI at the control 
level indicated in the markings.
    (e) If a challenging party disagrees with the response to a 
challenge, that party may use the Dispute Resolution procedures 
described in Sec.  2002.52.


Sec.  2002.52  Dispute resolution for agencies.

    (a) When laws, regulations, or Government-wide policies governing 
the CUI involved in a dispute set out specific procedures, processes, 
and requirements for resolving disputes, agencies must follow those 
processes for that CUI. This includes submitting the dispute to someone 
other than the CUI EA for resolution if the authority so

[[Page 63347]]

requires. If the CUI at issue is involved in litigation, the agency 
should refer the issue to the appropriate attorneys for resolution 
through the litigation process.
    (b) When laws, regulations, and Government-wide policies governing 
the CUI do not set out specific procedures, processes, or requirements 
for CUI dispute resolution (or the information is not involved in 
litigation), this part governs.
    (c) All parties to a dispute arising from implementing or 
interpreting the Order, this part, or the CUI Registry should make 
every effort to resolve the dispute expeditiously. Parties should 
address disputes within a reasonable, mutually acceptable time period, 
taking into consideration the parties' mission, sharing, and protection 
requirements.
    (d) If parties to a dispute cannot reach a mutually acceptable 
resolution, either party may refer the matter to the CUI EA.
    (e) The CUI EA acts as the impartial arbiter of the dispute and has 
the authority to render a decision on the dispute after consulting with 
all affected parties. If a party to the dispute is also a member of the 
Intelligence Community, the CUI EA must consult with the Office of the 
Director of National Intelligence when the CUI EA receives the dispute 
for resolution.
    (f) Until the dispute is resolved, authorized holders should 
continue to safeguard and disseminate any disputed CUI at the control 
level indicated in the markings, or as directed by the CUI EA if the 
information is unmarked.
    (g) Parties may appeal the CUI EA's decision through the Director 
of OMB to the President for resolution, pursuant to section 4(e) of the 
Order. If one of the parties to the dispute is the CUI EA and the 
parties cannot resolve the dispute under paragraph (c) of this section, 
the parties may likewise refer the matter to OMB for resolution.


Sec.  2002.54  Misuse of CUI.

    (a) The CUI SAO must establish agency processes and criteria for 
reporting and investigating misuse of CUI.
    (b) The CUI EA reports findings on any incident involving misuse of 
CUI to the offending agency's CUI SAO or CUI Program manager for 
action, as appropriate.


Sec.  2002.56  Sanctions for misuse of CUI.

    (a) To the extent that agency heads are otherwise authorized to 
take administrative action against agency personnel who misuse CUI, 
agency CUI policy governing misuse should reflect that authority.
    (b) Where laws, regulations, or Government-wide policies governing 
certain categories or subcategories of CUI specifically establish 
sanctions, agencies must adhere to such sanctions.

Appendix A to Part 2002--Acronyms

CNSI--Classified National Security Information
Council or the Council--The CUI Advisory Council
CUI--Controlled unclassified information
EA--The CUI Executive Agent (which is ISOO)
FOIA--Freedom of Information Act
FRD--Formerly Restricted Data
ISOO--Information Security Oversight Office at the National Archives 
and Records Administration
NARA--National Archives and Records Administration
OMB--Office of Management and Budget within the Office of 
Information and Regulatory Affairs of the Executive Office of the 
President
PM--the agency's CUI program manager
RD--Restricted Data
SAO--the senior agency official [for CUI]
TR--Transfer Request in NARA's Electronic Records Archives (ERA)

    Dated: August 30, 2016.
David S. Ferriero,
Archivist of the United States.

[FR Doc. 2016-21665 Filed 9-13-16; 8:45 am]
 BILLING CODE 7515-01-P