[Federal Register Volume 85, Number 245 (Monday, December 21, 2020)]
[Rules and Regulations]
[Pages 83300-83364]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27698]



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Vol. 85

Monday,

No. 245

December 21, 2020

Part III





 Department of Defense





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Office of the Secretary





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32 CFR Part 117





National Industrial Security Program Operating Manual (NISPOM); Final 
Rule

  Federal Register / Vol. 85, No. 245 / Monday, December 21, 2020 / 
Rules and Regulations  

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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 117

[Docket ID: DOD-2020-OS-0045]
RIN 0790-AK85


National Industrial Security Program Operating Manual (NISPOM)

AGENCY: Office of the Under Secretary of Defense for Intelligence & 
Security, Department of Defense (DoD).

ACTION: Final rule with request for comment.

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SUMMARY: The Department of Defense (DoD) is codifying the National 
Industrial Security Program Operating Manual (NISPOM) in regulation. 
The NISPOM establishes requirements for the protection of classified 
information disclosed to or developed by contractors, licensees, 
grantees, or certificate holders (hereinafter referred to as 
contractors) to prevent unauthorized disclosure. In addition to adding 
the NISPOM to the Code of Federal Regulations (CFR), this rule 
incorporates the requirements of Security Executive Agent Directive 
(SEAD) 3, ``Reporting Requirements for Personnel with Access to 
Classified Information or Who Hold a Sensitive Position.'' SEAD 3 
requires reporting by all contractor cleared personnel who have been 
granted eligibility for access to classified information. This NISPOM 
rule provides for a single nation-wide implementation plan which will, 
with this rule, include SEAD 3 reporting by all contractor cleared 
personnel to report specific activities that may adversely impact their 
continued national security eligibility, such as reporting of foreign 
travel and foreign contacts. NISP Cognizant Security Agencies (CSAs) 
shall conduct an analysis of such reported activities to determine 
whether they pose a potential threat to national security and take 
appropriate action. Finally, the rule also implements the provisions of 
Section 842 of Public Law 115-232, which removes the requirement for a 
covered National Technology and Industrial Base (NTIB) entity operating 
under a special security agreement pursuant to the NISP to obtain a 
national interest determination as a condition for access to proscribed 
information.

DATES: Effective date: This rule is effective February 24, 2021. 
Comments must be received by February 19, 2021.

ADDRESSES: You may submit comments, identified by docket number and/or 
Regulatory Information Number (RIN) and title, by any of the following 
methods:
     Federal Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
     Mail: DoD cannot receive written comments at this time due 
to the COVID-19 pandemic. Comments should be sent electronically to the 
docket listed above.
    Instructions: All submissions received must include the agency name 
and docket number or RIN for this Federal Register document. The 
general policy for comments and other submissions from members of the 
public is to make these submissions available for public viewing at 
http://www.regulations.gov as they are received without change, 
including any personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Valerie Heil, 703-692-3754.

SUPPLEMENTARY INFORMATION:

I. Overview of the NISP and NISPOM

    In April 1990, President George Bush directed the National Security 
Council to explore the creation of a single, integrated industrial 
security program to improve security protection and provide cost 
savings. Prior to this, contractors doing business with different U.S. 
Government (USG) agencies which required access to classified 
information had to meet different requirements to protect the same 
levels of classified information, e.g., the type of safe to protect a 
specific classified item could vary across both contracts and agencies. 
The diversity of industrial security requirements levied on contractors 
by an estimated 21 USG agencies created a significant burden on both 
industry and government and increased the cost of the goods and 
services provided to the USG.
    Representatives from government and industry participated in an 
initiative which led to the creation of Executive Order (E.O.) 12829 
``National Industrial Security Program (NISP)'' (available at https://www.archives.gov/files/isoo/policy-documents/eo-12829-with-eo-13691-amendments.pdf). With the National Security Council providing overall 
policy direction, this E.O. established the NISP as the single 
integrated program to protect classified information and preserve our 
Nation's economic and technological interests. Nothing in the E.O. 
shall supersede the authority of the Secretary of Energy or the Nuclear 
Regulatory Commission under the Atomic Energy Act of 1954, as amended, 
or the authority of the Director of National Intelligence (or any 
Intelligence Community element) under the Intelligence Reform and 
Terrorism Prevention Act of 2004, the National Security Act of 1947, as 
amended, or Executive Order No. 12333 of December 8, 1981, as amended, 
or the authority of the Secretary of Homeland Security, as the 
Executive Agent for the Classified National Security Information 
Program established under Executive Order 13549 of August 18, 2010 
(Classified National Security Information Program for State, Local, 
Tribal, and Private Sector Entities). The Information Security 
Oversight Office (ISOO), a component of the National Archives and 
Records Administration (NARA), was tasked with overseeing overall 
implementation of the NISP with the goal of:
     Holding classification activity to the minimum necessary 
to protect the national security;
     ensuring the safeguarding of classified national security 
information in both USG and industry in a cost-effective and efficient 
manner; and
     promoting declassification and public access to 
information as soon as national security considerations permit.
    ISOO issues implementing directives and produces an annual report 
to the President on the NISP. E.O. 12829 also established the National 
Industrial Security Program Policy Advisory Committee (NISPPAC), a 
federal advisory committee comprised of both Government and industry 
representatives, which is responsible for recommending changes in 
industrial security policy. The NISPPAC, chaired by the Director of the 
ISOO, also advises ISOO on all issues concerning the policies of the 
NISP, including recommended changes to those policies, and serves as a 
forum to discuss policy issues in dispute. The NISPPAC industry members 
represent all types and sizes of NISP cleared entities, whose scope of 
operations range from a one person entity, having a single classified 
contract to some of the largest U.S. entities, having numerous 
classified contracts. All NISPPAC industry members have expertise 
comprising the primary functions of an industrial security program, to 
include information, personnel, physical, and information system 
security.
    Five USG executive branch agencies--DoD, DOE, the Nuclear 
Regulatory Commission (NRC), the Office of the Director of National 
Intelligence (ODNI), and the Department of Homeland Security (DHS)--
have been designated as Cognizant Security Agencies (CSAs) and have 
specific responsibilities within the NISP. For DoD, the Defense 
Counterintelligence and Security Agency (DCSA) is the Cognizant

[[Page 83301]]

Security Office (CSO) for DoD Components and non-DoD agencies where an 
industrial security agreement is in place. DCSA, as the DoD CSO, DOE, 
and NRC each has the following responsibilities:
     Administers the NISP.
     provides security oversight.
     conducts security review actions.
     provides security education and training.
     provides supplementary procedures for unique mission 
requirements (e.g. DoD publishes industrial security letters (ISLs), 
which provide DoD-specific guidance and clarification on NISP policies 
and supplementary procedures to its unique CSO mission requirements 
(available at: https://www.dcsa.mil/mc/ctp/tools/)).
     assesses, authorizes and oversees contractor information 
systems used to process classified information.
     makes temporary national security eligibility 
determinations pursuant to SEAD 8, Temporary Eligibility (available at: 
https://www.dni.gov/files/NCSC/documents/Regulations/SEAD-8_Temporary_Eligibility_U.pdf), for contractor personnel who require 
access to classified information.
    DHS receives NISP industrial security services from DoD due to its 
industrial security services agreement and also has the following 
responsibilities:
     Prescribes procedures for the portions of this rule that 
pertain to the CCIPP.
     retains authority over access to information under the 
CCIPP.
     inspects and monitors contractor, licensee, certificate 
holder, and grantee programs and facilities that involve access to 
CCIPP.
    ODNI has the following responsibilities:
     Prescribes procedures for the portions of this rule 
pertaining to intelligence sources, methods, and activities, including, 
but not limited to, SCI.
     retains authority over access to intelligence sources, 
methods, and activities, including SCI.
     provides guidance on the security requirements for 
intelligence sources and methods of information, including, but not 
limited to, SCI.
    DOE and NRC provide similar industrial security oversight actions, 
including national security eligibility determinations for contractor 
personnel, authorization of contractor information systems to process 
classified information, as well as monitoring and inspecting those 
contractors under DOE or NRC security cognizance, respectively. In 
2004, the Intelligence Reform and Terrorism Prevention Act (IRTPA) 
(Pub. L. 108-458) created the position of the Director of National 
Intelligence (DNI) and recognized the ODNI as a CSA. E.O. 13691 
``Promoting Private Sector Cybersecurity Information Sharing,'' 
February 13, 2015 (available at https://obamawhitehouse.archives.gov/the-press-office/2015/02/13/executive-order-promoting-private-sector-cybersecurity-information-sharing), amended E.O. 12829 to make DHS the 
fifth CSA in 2015.

II. NISP Implementation

    DoD is the Executive Agent of the NISP and has the largest NISP 
contractor population of the five CSAs. DCSA inspects and monitors 
cleared entities, also referred to as contractors, who require access 
to classified information during all phases of the contracting, 
licensing, and grant (hereinafter referred to as contracting or 
contract) process to include the preparation and submission of bids and 
proposals, negotiation, award, performance, and termination. It also 
determines eligibility for access to classified information for 
contractors performing on classified contracts with DoD and with those 
USG agencies which have an industrial security agreement with DoD. The 
Department currently has industrial security agreements with 33 
agencies (list available at: https://www.dcsa.mil/mc/ctp/nisp/). DCSA 
field elements provide oversight of contractor compliance, authorize 
contractor information systems to process classified information, and 
conduct security review actions for approximately 12,500 cleared 
contractor entities which includes headquarters, divisions, 
subsidiaries and branch offices of industrial, educational, commercial, 
or other non-USG entities which are performing on classified contracts.
    Under the NISP, the USG establishes requirements for the protection 
of classified information to be safeguarded in a manner equivalent to 
its protection within the executive branch of USG, where practicable. 
When bound by contract, industry must comply with the NISPOM and any 
CSA-specific supplementary guidance for unique CSA mission 
requirements. Industry implements those requirements for the protection 
of classified information with advice, assistance, and oversight from 
the applicable CSA.
    When a Government Contracting Activity (GCA), an element of an 
agency that has authority regarding acquisition or grant functions, 
awards a contract that has been determined to require access to 
classified information, the contract is considered to be a ``classified 
contract.'' The GCA checks with its applicable CSA to determine if the 
awarded legal entity already has an entity eligibility determination 
(also referred to as a facility security clearance (FCL)). GCAs will 
ordinarily include enough lead-time in the acquisition cycle to 
accomplish all required security actions. In many instances, advanced 
planning can ensure that access to classified information will not be 
required in the pre-award process. This would preclude processing an 
entire bidder list for FCLs. When access to classified information is 
not a factor in the pre-award phase, but will be required for contract 
performance, only the successful bidder or offeror will be processed 
for an FCL.
    Before an entity can have access to classified information during 
its contract performance, it must have an FCL. If the legal entity does 
not already have an FCL when awarded a classified contract, a GCA must 
sponsor the entity for an FCL. Or, an entity already part of the NISP 
(i.e., a prime contractor) may sponsor another entity in order to 
subcontract part of its classified business. To sponsor an entity, the 
GCA or prime contractor puts in a request, often referred to as a 
sponsorship letter, to the appropriate CSA for the entity to access 
classified information in connection with a legitimate government 
requirement, which may include a foreign government requirement.
    With an approved FCL, an entity is then eligible for access to 
information classified at the level of the FCL (i.e., TOP SECRET, 
SECRET or CONFIDENTIAL) when competing for a classified contract. Among 
other requirements, an entity must have sponsorship based on a valid 
government requirement for access to classified information. The USG 
agency sponsoring an entity for an FCL must include the applicable 
security requirements clause or equivalent in the contract (e.g., for 
DoD this is the Federal Acquisition Regulation (FAR) 52.204-2 
``Security Requirements,'' or the terms and conditions of a grant award 
under 2 CFR part 200.210) to require compliance with the NISPOM.
    A GCA provides the security requirements for a classified contract 
in a contract security classification specification as part of the 
contract. For DoD, the DD form 254, ``Department of Defense Contract 
Security Classification Specification,'' OMB Control number 0704-0567, 
is part of the classified contract and provides the contractor (or a 
subcontractor) with security requirements and the classification

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guidance necessary to execute a specific classified contract. See 
https://www.esd.whs.mil/Portals/54/Documents/DD/forms/dd/dd0254.pdf and 
available at https://www.dcsa.mil/is/nccs/) for the current version of 
this collection. A contract security classification specification with 
its attachments, supplements, and incorporated references, provides 
security classification guidance (lists the applicable security 
classification guides for a contractor to use) to a contractor in 
connection with a classified contract. It is designed to identify the 
classified areas of information involved in the classified effort and, 
particularly, to identify the specific items of information within 
these areas that require protection. This rule provides NISP 
contractors security requirements which align to 32 CFR part 2001, in a 
manner equivalent to the protection of classified information within 
the executive branch of the USG. If a GCA determines that additional 
safeguards are essential in specific contracts, the GCA can impose more 
operational security provisions above the requirements of this rule. 
The GCA can also determine that additional physical or technical 
security requirements are needed in a contract above the requirements 
of this rule. Even though the contract security classification is 
contract-specific, it is not always all-inclusive. Additional security 
requirements are sometimes included in other parts of a contract. All 
related materials for approved information collection are available at: 
https://www.reginfo.gov/public/do/PRAMain. In addition, specific 
locations for finalized collection instruments, to include the 
designated OMB Control Number is included where information collections 
are cited in this rule.
    In addition, depending upon the CSA with security cognizance, an 
entity's legal headquarters may need to implement additional 
information collections, such as:
     DD Form 441, ``DoD Security Agreement'' for DoD is an 
agreement between DCSA and the cleared legal entity for the entity to 
comply with the NISPOM security requirements, to be subject to 
inspections and to allow for a 30 day notice by the entity or DCSA to 
terminate the agreement (e.g., if there is no longer a valid USG 
requirement for access to classified information (available at https://www.esd.whs.mil/Portals/54/Documents/DD/forms/dd/dd0441_2020.pdf);
     NRC Form 441, ``Security Agreement'' for NRC, the 
provisions of the NRC Form 441 are similar to those included in the DD 
Form 441 (available at https://www.nrc.gov/reading-rm/doc-collections/forms/nrc441info.html).
     DOE does not have a separate Form 441, but instead, binds 
the contractor to the FCL (and security requirements) via the contract, 
along with meeting all other requirements in this rule.
    As part of FCL processing, an entity must complete a Standard Form 
(SF) 328, ``Certificate Pertaining to Foreign Interest,'' OMB Control 
number 0704-0579, (available at https://www.gsa.gov/forms-library/certificate-pertaining-foreign-interests, for a CSA to review and make 
a determination whether the entity is under foreign ownership, control 
or influence (FOCI) to a degree that renders it ineligible for an FCL. 
The CSA will consider a U.S. entity to be under FOCI when a foreign 
interest has the power to direct or decide issues affecting the 
entity's management or operations in a manner that could either result 
in unauthorized access to classified information; or adversely affect 
performance of a classified contract or agreement. The U.S. entity may 
also be considered to be under FOCI when a foreign interest or 
government is currently exercising, or could exercise, that power, 
whether directly or indirectly, such as through ownership of the U.S. 
entity's securities, by contractual arrangements, or other means. 
Further, if a foreign interest or government has the ability to control 
or influence the election or appointment of members of the entity's 
governing board, the entity may be considered to be under FOCI. When a 
CSA has determined that an entity is under FOCI, the primary 
consideration will be the protection of classified information. The CSA 
will take whatever action is necessary to protect classified 
information, in coordination with other affected agencies as 
appropriate. A U.S. entity that is in process for an FCL for access to 
classified information and subsequently determined to be under FOCI, is 
ineligible for access to classified information unless and until 
effective security measures have been put in place to negate or 
mitigate FOCI to the satisfaction of the CSA.
    Once an entity becomes a contractor in the NISP with an existing 
FCL, a GCA can select and award a classified contract to the entity as 
part of the acquisition process. The GCA attaches the ``Contract 
Security Classification Specification: (e.g., for DoD, it is the DD 
Form 254, available at https://www.esd.whs.mil/Portals/54/Documents/DD/forms/dd/dd0254.pdf and available at https://www.dcsa.mil/is/nccs/), to 
all such contracts requiring access to classified information.

II. SEAD 3 Requirements and the NISPOM

    In 2008, with the publication of E.O. 13467, ``Reforming Processes 
Related to Suitability for Government Employment, Fitness for 
Contractor Employees, and Eligibility for Access to Classified National 
Security Information'' (available at https://obamawhitehouse.archives.gov/the-press-office/2016/09/29/executive-order-amending-executive-order-13467-establish-roles-and), the DNI was 
assigned the role of the Security Executive Agent (SecEA), for the 
development, implementation, and oversight of effective, efficient, and 
uniform policies and procedures governing the conduct of investigations 
and adjudications for eligibility for access to classified information 
and eligibility to hold a sensitive position.
    In December 2016, the SecEA issued SEAD 3, ``Reporting Requirements 
for Personnel with Access to Classified Information or Who Hold a 
Sensitive Position'' (available at https://www.dni.gov/files/NCSC/documents/Regulations/SEAD-3-Reporting-U.pdf), to executive branch 
agencies or covered individuals with an effective date of June 12, 
2017. SEAD 3 defines covered individuals as:
     A person who performs work for or on behalf of the 
executive branch who has been granted access to classified information 
or holds a sensitive positions, but does not include the President or 
the Vice President.
     a person who performs work for or on behalf of a state, 
local, tribal, or private sector entity, as defined in E.O. 13549, who 
has been granted access to classified information or holds a sensitive 
position, but does not include duly elected or appointed governors of a 
state or territory, or an official who has succeeded to that office 
under applicable law; and
     a person working in or for the legislative or judicial 
branches who has been granted access to classified information or holds 
a sensitive position and the investigation or determination was 
conducted by the executive branch, but does not include members of 
Congress, Justices of the Supreme Court, or Federal judges appointed by 
the President.
     covered individuals are not limited to government 
employees and include all persons, not excluded under paragraphs 
D.5(a), (b), or (c) of SEAD 3, who have access to classified 
information or who hold sensitive positions, including, but not limited 
to, contractors, subcontractors, licensees, certificate holders, 
grantees, experts,

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consultants, and government employees.
    SEAD 3 identifies required reporting of data elements that are 
contained in the Standard Form-86, ``Questionnaire for National 
Security Positions'' (available at https://www.opm.gov/forms/pdf_fill/sf86.pdf), which applicants and clearance holders complete during the 
initial and periodic reinvestigation processes, respectively. SEAD 3 
requires these elements to be reported prior to participation in such 
activities or otherwise as soon as possible following the start of 
their involvement. Most notably, SEAD 3 requires covered individuals to 
obtain prior agency approval before conducting unofficial foreign 
travel.
    For this rule, SEAD 3 applies only for those contractor personnel 
who have been granted eligibility for access to classified information 
through the NISP. In accordance with paragraph E.4 of SEAD 3, NISP 
CSAs, acting on behalf of Heads of agencies or designees, for the NISP 
contractors under their security cognizance may determine that 
operational and mission needs preclude strict adherence to these 
reporting requirements. In those instances, a NISP CSA may provide CSA 
guidance to supplement unique CSA mission requirements to the 
contractors under its security cognizance of equivalent notification, 
briefing and reporting to be accomplished.

III. Requirements From Section 842 of Public Law 115-232

    Currently, the NISPOM and 32 CFR part 2004 require that GCAs, in 
coordination with the applicable CSAs and controlling agencies (ODNI 
for Sensitive Compartmented Information (SCI), DOE for Restricted Data 
(RD) or NSA for Communications Security (COMSEC)), complete a National 
Interest Determination (NID) before granting access to proscribed 
information to an entity that is owned or controlled by a foreign 
interest and cleared under a Special Security Agreement (SSA). The term 
``proscribed information'' means information that is--
    (A) classified at the level of top secret;
    (B) communications security information (excluding controlled 
cryptographic items when un-keyed or utilized with unclassified keys);
    (C) Restricted Data (as defined in section 11 of the Atomic Energy 
Act of 1954, as amended (42 United States Code (U.S.C.) 2014));
    (D) special access program information under section 4.3 of E.O. 
13526 (75 FR 707; 50 U.S.C. 3161 note) or successor order; or
    (E) designated as sensitive compartmented information, as defined 
in Intelligence Community Directive 703, ``Protection of National 
Intelligence, Including Sensitive Compartmented Information'' 
(available at https://www.dni.gov/files/documents/ICD/ICD%20703.pdf).
    An SSA is one of the mechanisms used by the USG to mitigate FOCI to 
an acceptable level as determined by the CSA. A company is considered 
to be operating under FOCI whenever a foreign interest has the power, 
direct or indirect, whether or not exercised, and whether or not 
exercisable, to direct or decide matters affecting the management or 
operations of that company in a manner which may result in unauthorized 
access to classified information or may adversely affect the 
performance of classified contracts. The following factors relating to 
a company, the foreign interest, and the government of the foreign 
interest are reviewed in the aggregate in determining whether a company 
is under FOCI:

[ssquf] Record of economic and government espionage against U.S. 
targets
[ssquf] Record of enforcement and/or engagement in unauthorized 
technology transfer
[ssquf] The type and sensitivity of the information that shall be 
accessed
[ssquf] The source, nature and extent of FOCI
[ssquf] Record of compliance with pertinent U.S. laws, regulations and 
contracts
[ssquf] The nature of any bilateral and multilateral security and 
information exchange agreements that may pertain
[ssquf] Ownership or control, in whole or in part, by a foreign 
government.

    Section 842 of Public Law 115-232 and this final rule provide that 
a covered NTIB entity operating under an SSA pursuant to the NISP, 
shall not be required to obtain a NID as a condition for access to 
proscribed information, effective October 1, 2020. DoD notified the DoD 
components and 33 non-DoD agencies with which DoD has industrial 
security agreements that NIDs pursuant to the provisions of Section 842 
of Public Law 115-232 are no longer required as of October 1, 2020. 
DCSA is no longer submitting NID requests to ODNI for SCI, DOE for RD, 
or NSA for COMSEC, respectively that fall within the provisions of 
Section 842 of Public Law 115-232.
    As provided for in the law, the Under Secretary of Defense for 
Intelligence and Security, on behalf of the Secretary, granted waivers 
of NIDs for those categories of proscribed information under the 
control of the Secretary of Defense, to 20 contractors that met the 
criteria in summer 2019 with the waivers expiring as of October 1, 
2020, since the statute went into effect. Those contractors, pursuant 
to Section 842 of Public Law 115-232 had to meet the following criteria 
as part of the waiver determination:
    (1) A demonstrated successful record of compliance with the NISP 
assessed by the CSA; and
    (2) previously been approved for access to proscribed information 
as indicated in CSA FCL records.
    The law is limited to ``a person that is a subsidiary located in 
the United States--
    (A) for which the ultimate parent entity and any intermediate 
parent entities of such subsidiary are located in a country that is 
part of the national technology and industrial base (as defined in 
section 2500 of title 10, United States Code); and
    (B) that is subject to the FOCI requirements of the NISP.''

Legal Authority for the NISP

    In addition to E.O. 12829, which, establishes the NISP and requires 
the Secretary of Defense to issue and maintain the NISPOM, the 
following are other relevant authorities for the program.
     E.O. 10865 ``Safeguarding Classified Information within 
Industry,'' February 20, 1960, as amended (available at https://www.archives.gov/federal-register/codification/executive-order/10865.html), addresses the protection of classified information that is 
disclosed to, or developed by contractors.
     E.O. 12968, ``Access to Classified Information,'' August 
2, 1995, as amended (available at https://www.govinfo.gov/content/pkg/FR-1995-08-07/pdf/95-19654.pdf), establishes a uniform personnel 
security program for individuals who will be considered for initial or 
continued access to classified information.
     E.O. 13526, ``Classified National Security Information,'' 
December 29, 2009 (available at https://www.archives.gov/files/isoo/pdf/cnsi-eo.pdf), prescribes a uniform system for classifying, 
safeguarding and declassifying national security information.
     E.O. 13587, ``Structural Reforms to Improve the Security 
of Classified Networks and the Responsible Sharing and Safeguarding of 
Classified Information,'' October 7, 2011 (available at https://www.govinfo.gov/app/details/CFR-2012-title3-vol1/CFR-2012-title3-vol1-eo13587), directs structural reforms to ensure responsible sharing and 
safeguarding of classified information on computer networks consistent 
with

[[Page 83304]]

appropriate protection for privacy and civil liberties.
     E.O. 13691; Promoting Private Sector Cybersecurity 
Information Sharing,'' February 13, 2015 (available at https://obamawhitehouse.archives.gov/the-press-office/2015/02/13/executive-order-promoting-private-sector-cybersecurity-information-sharing), 
encourages the voluntary formation of organizations engaged in the 
sharing of information related to cybersecurity risks and incidents to 
establish mechanisms to continually improve their capabilities and 
functions as well as to better allow them to partner with the Federal 
government on a voluntary basis.
     E.O. 12333; ``United States Intelligence Activities,'' 
December 4, 1981, as amended (available at https://www.archives.gov/federal-register/codification/executive-order/12333.html, provides 
general principles that in addition to and consistent with applicable 
laws are intended to achieve the proper balance between the acquisition 
of essential information and the protection of individual interests.
     Title 42 U.S.C. 2011 et seq. (also known as and referred 
to in this rule as ``The Atomic Energy Act of 1954,'' as amended 
(AEA));
     Title 50 U.S.C. chapter 44 (also known as ``The National 
Security Act of 1947, as amended);
     Title 50 U.S.C. 3501 et seq. (also known as ``The Central 
Intelligence Agency Act of 1949,'' as amended);
     Public Law 108-458 (also known as the ``Intelligence 
Reform and Terrorism Prevention Act of 2004''), which includes 
development of uniform and consistent policies and procedures to ensure 
effective, efficient and timely completion of security clearances.
     Finally, 32 CFR part 2004 ``National Industrial Security 
Program,'' May 7, 2018, establishes uniform standards for the NISP, and 
helps agencies implement requirements in E.O. 12829, and establishes 
agency responsibilities for implementing the insider threat provisions 
of E.O. 13587.

III. Changes Made by This Rule and Expected Impact

    The NISPOM was first published in 1995 as DoD Manual 5220.22. 
Updates to the NISPOM have included Conforming Change 1, March 28, 2013 
and NISPOM Change 2 in May 21, 2016. The most current version of the 
NISPOM (Change 2) is available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodm/522022M.pdf?ver=2019-06-06-145530-170. In 
addition to codifying the NISPOM in the CFR and adding the requirements 
of SEAD 3 and Section 842 of Public Law 115-232, DoD is also removing 
32 CFR part 117, subpart C, ``National Industrial Security Program'' 
because it is duplicative of 32 CFR part 2004, ``National Industrial 
Security Program'' and removing 32 CFR part 117, subpart B, because it 
is also duplicative of other industrial security provisions set forth 
in 32 CFR part 2004. These administrative removals support a 
recommendation from the DoD Regulatory Reform Task Force created under 
E.O. 13777, Enforcing the Regulatory Reform Agenda (available at 
https://www.govinfo.gov/content/pkg/FR-2017-03-01/pdf/2017-04107.pdf), 
and by themselves create no changes in current DoD policy. Upon the 
effective date of 32 CFR part 117, DoD will no longer publish the DoD 
Manual 5220.22, NISPOM as a DoD policy issuance.
    Specific changes in this rule that are not in the current NISPOM, 
include the following.
     Sec.  117.8: Reporting Requirements. Sec.  117.8(a) 
General includes that contractors must submit reports pursuant to this 
rule, SEAD 3 and CSA guidance to supplement unique CSA mission 
requirements. SEAD 3 reporting establishes a single nationwide 
implementation plan for covered individuals, which for this rule 
provides reporting by contractors and their employees eligible for 
access to classified information. SEAD 3 requirements will be 
implemented for all contractor cleared personnel to report specific 
activities that may adversely impact their continued national security 
eligibility. Contractor cleared personnel must be aware of risks 
associated with foreign intelligence operations and/or possible 
terrorist activities directed against them in the United States and 
abroad, and have a responsibility to recognize and avoid personal 
behaviors and activities that adversely affect their national security 
eligibility. NISP CSAs shall conduct an analysis of such reported 
activities, such as foreign travel or foreign contacts, to determine 
whether they pose a potential threat to national security and take 
appropriate action. Contractors will be responsible for collecting the 
foreign travel data from cleared employees, providing pre- and post-
travel briefings to those cleared employees when necessary, and 
tracking and reporting those foreign travel activities of its cleared 
employees through the CSA designated system of record for personnel 
security clearance data.
     Sec.  117.9(m) Limited entity eligibility determination 
(Non-FOCI) and, Sec.  117.11(e) Limited entity eligibility 
determination due to FOCI. In accordance with 32 CFR part 2004, ``NISP 
Directive,'' provisions for granting two new types of limited entity 
facility clearance eligibility determinations (FCLs) to meet government 
requirements for narrowly scoped requirements for a companies to access 
classified information.
     Sec.  117.11(d)(2)(iii)(A) Requirement for National 
Interest Determinations (NIDs): This paragraph provides for the 
implementation of the provisions of Section 842 of Public Law 115-232, 
which was effective on October 1, 2020, and eliminates requirements for 
a covered NTIB entity operating under an SSA to obtain a NID for access 
to proscribed information: Top Secret, Special Access Program, 
Communications Security, Sensitive Compartmented Information, and 
Restricted Data. This provision will allow covered NTIB entities to 
begin performing on contracts that require access to proscribed 
information without having to wait on a NID, and thus removing costly 
contract performance delays.
     Sec.  117.15(e)(2) TOP SECRET Information: Permits 
specific determinations by a CSA with respect to requirements for TOP 
SECRET accountability (e.g., the CSA can determine that TOP SECRET 
material stored in an electronic format on an authorized classified 
information system does not need to be individually numbered in series 
provided the contractor has in place controls in place to address 
accountability, need to know and retention). As stated in this 
paragraph: ``. . . Contractors will establish controls for TOP SECRET 
information and material to validate procedures are in place to address 
accountability, need to know and retention, e.g., demonstrating that 
TOP SECRET material stored in an electronic format on an authorized 
classified information system does not need to be individually numbered 
in series. These controls are in addition to the information management 
system and must be applied, unless otherwise directed by the applicable 
CSA, regardless of the media of the TOP SECRET information, to include 
information processed and stored on authorized information systems. 
Unless otherwise directed by the applicable CSA, the contractor will 
establish the following additional controls . . .''
     Sec.  117.15(d)(4) Installation: Clarifies that an 
Intrusion Detection System (IDS) shall be installed by a Nationally 
Recognized Testing Laboratory (NRTL)-approved entity to make it clear 
that any NRTL-approved entity may do such

[[Page 83305]]

installations. ``The IDS will be installed by a NRTL-approved entity or 
by an entity approved in writing by the CSA . . .''
     Sec.  117.7(b)(2) Senior Management Official: Clarifies 
responsibilities of the Senior Management Official of each cleared 
entity to better reflect the critical role and accountability of this 
position for entity compliance with the NISPOM. This change further 
emphasizes the essential role of the Senior Management Official with 
the entity's security staff to ensure NISPOM compliance.
     Sec.  117.13(d)(5) Clarifies to the contractor that upon 
completion of a classified contract, the ``contractor must return all 
government provided or deliverable information to the custody of the 
government. Such clarification ensures the contractor is not retaining 
official government records without specific authorization from the 
government customer. ``(i) If the GCA does not advise to the contrary, 
the contractor may retain copies of the government material for a 
period of 2 years following the completion of the contract. The 
contract security classification specification, or equivalent, will 
continue in effect for this 2-year period. (ii) If the GCA determines 
the contractor has a continuing need for the copies of the government 
material beyond the 2-year period, the GCA will issue a final contract 
security classification specification, or equivalent, for the 
classified contract and will include disposition instructions for the 
copies.''
Costs
    The DoD invites comment from the members of the public on the costs 
estimated to implement this rule.

A. Baseline

    The Defense Counterintelligence and Security Agency (DCSA), as the 
DoD designated NISP cognizant security office, has collected 
information about baseline costs using an OMB-approved information 
collection process employing statistical methods for contractors' NISP 
implementation (OMB Control Number 0704-0458, ``Industry Cost 
Collection Report Survey.'' The most recent data collected by DCSA on 
contractors' NISP implementation costs are for fiscal year (FY) 2017 
and reported in the ISOO 2017 annual report to the President. DCSA has 
used this survey collection methodology for contractors' NISP 
implementation under DoD security cognizance for over 11 years. A NISP 
government and industry working group developed the survey in 1995 and 
predecessor office to the OUSD(I&S) initially ran the annual survey. 
The Information Security Oversight Office (ISOO) placed a moratorium on 
conducting this survey after 2017 until a new NISP survey methodology 
is developed.
    DCSA began the costs analysis for the baseline costs for fiscal 
year 2017 by randomly selecting active NISP contractor facilities that 
have existing DoD approval for classified storage at their own physical 
locations and having those facilities submit security costs. The 
randomly selected contractor facilities also have an active facility 
security clearance and a permanent Commercial and Government Entity 
(CAGE) Code. In addition to the randomly selected cleared facilities 
having approved classified storage, DCSA categorizes these contractor 
facilities for the survey based on the size, scope, and complexity of 
each contractor's security program.
    The general methodology used to estimate security costs incurred by 
contractor cleared facilities with approved storage of classified 
information is based on the costs incurred by respondent contractors 
for the protection of classified information. The methodology captures 
the most significant portion of industry's costs, which is labor. 
Security labor in the survey is defined as personnel whose positions 
exist to support operations and staff in the implementation of 
government security requirements for the protection of classified 
information. Guards who are required as supplemental controls are 
included in security labor. The respondent contractors are requested to 
compile their cleared facility's current annual security labor cost in 
burdened, current year dollars with the most recent data being from the 
2017 survey. The labor cost, when identified as an estimated percent of 
each contractor's total security costs, enables the respondent 
contractors to calculate their total security costs.
    Information collected is compiled to create an aggregate estimated 
cost of NISP classification-related activities. Only the aggregate data 
is reported. There is a 95% confidence that the full enterprise 
industrial security total baseline cost does not exceed $1.486 billion 
for fiscal year 2017.

------------------------------------------------------------------------
       NISP cost estimates (2017)             Benefits of NISP rule
------------------------------------------------------------------------
Number of Facilities with Approved
 Classified Storage (Of Over 12,000
 NISP Cleared Facilities):
    3658...............................  A single, integrated, cohesive
                                          industrial security program to
                                          protect classified information
                                          and to preserve our Nation's
                                          economic and technological
                                          interests.
Facilities Randomly Selected and
 Responding to Data Collection:
    1038...............................  Maximum uniformity and
                                          consistency by contractors who
                                          support the Executive branch
                                          to effectively protect and
                                          safeguard classified
                                          information through all phases
                                          of the contracting process for
                                          any classified information an
                                          Agency releases to a
                                          contractor.
Estimated Total NISP Security Costs for
 Facilities with Approved Classified
 Storage (With 95% Margin of Error to
 give 95% Upper Confidence Limit):
    $1,413,150,249 + $72,968,977 =       Contractors must comply, when
     $1,486,119,226.                      levied by the FAR security
                                          requirements clause or
                                          equivalent clauses in
                                          contracts involving access to
                                          classified information, with
                                          uniform procedures for the
                                          proper safeguarding of
                                          classified information to
                                          reduce the risk of
                                          unauthorized disclosure of
                                          classified information.
------------------------------------------------------------------------


 
 
-------------------------------------------------------------------------
Based on the data collected from the survey, we can be 95% confident the
 true 2017 total NISP security cost for contractor facilities with
 approved classified storage is less than $1.486B.
Assumptions and Notes:
     Of over 12,000 NISP cleared facilities, 3,658 facilities
     are approved for classified storage and 1,038 responded to the
     survey.

[[Page 83306]]

 
     Companies were selected at random according to survey
     methodology.
     The applicable NISP CSA, based on a valid requirement for
     access to classified information (e.g., contract or bid), funds the
     costs for evaluating and processing a contractor for an entity
     eligibility determination (facility clearance) and the costs of
     personnel security vetting requirements for required access to
     classified information by any contractor employees.
     The security cost profile for non-responding companies is
     assumed to be similar to that of responding companies.
     Outlying survey data points were removed from data
     analysis.
     Overall DoD contract spending for 2017 was $331 billion;
     but DoD does not have such data for these contractor cleared
     facilities in the NISP for performance on contracts requiring
     access to classified information.
     DoD has not collected security costs from those contractor
     cleared facilities that are not authorized to store classified
     information at their own contractor locations.
------------------------------------------------------------------------

    DoD noted that the largest contractor cleared facilities account 
for the highest security costs, and skew the average security costs for 
non-small businesses much higher. The average security cost for the 
largest contractor cleared facilities is approximately $4.8 million per 
facility. If the largest facilities are removed from the cost estimate, 
then the average security cost for a non-small business with approval 
for storage of classified information is reduced to $432,312 from 
$864,662. Of the approximately 1,000 facilities selected for the small 
entities analysis described in section 4 of this initial regulatory 
flexibility analysis, about 68% were contractor cleared facilities that 
were not included in the 2017 NISP cost estimate because they don't 
have approval to store classified information or process classified 
information on an information system or network at the contractors' own 
cleared facilities. DoD estimated the costs impacting small entities 
from the approximately 32% of the remaining small businesses, as those 
would have approval to store classified information or process 
classified information on an information system or network at one of 
the contractor's own cleared facilities. Those security costs are 
estimated to be approximately $316 million or 21% of the $1.486 billion 
of the estimated NISP costs to contractors in 2017. When contractor 
cleared facilities' responses to the ISOO cost collection survey were 
cross referenced with the DoD small business analysis (using the Small 
Business Administration (SBA) Dynamic Small Business Search), DoD 
estimated an average security cost for a small business with approved 
storage of classified information of $133,612. One of the requirements 
for a facility security clearance is a security agreement between the 
applicable NISP CSA and the contractor legal entity. Such a security 
agreement sets forth compliance, oversight and administration 
termination provisions. The agreement also indicates that it does not 
obligate USG funds and the USG shall not be liable for any costs or 
claims of the contractor arising out of the security agreement. It is 
recognized, however, the parties may provide in other written contracts 
with GCAs for security costs, which may be properly chargeable, if so 
determined by the applicable GCA. This rule provides that a contractor 
must implement changes no later than 6 months from the date of a 
published change to this rule to allow the contractor to discuss what 
impact, if any, the changes have on existing classified contracts with 
the applicable GCAs.

B. Public Cost Analysis of the Changes to the Baseline From This Rule

1. Projected Public Costs. In summary, the estimated public costs are 
present value costs of 150.26 million and annualized costs estimated to 
be $10.52 million.
    2. Cost Analysis. Throughout, labor rates are adjusted upward by 
100% to account for overhead and benefits.
    a. Regulatory Familiarization. There will be an initial step to 
become familiar with the format of the rule, the changed requirements 
and what actions the cleared entities must take to comply with the 
changes in this rule. To become familiar with the rule format and the 
new requirements, cleared entities will review the Federal Register 
notice with the new 32 CFR part 117. It is estimated that 12,400 
cleared entities will need to become familiar with the rule. Of those 
approximately 12,400 cleared entities, an estimated 8,036 are small 
business entities and 4,348 are large business entities. The FSO at 
each entity (small or large) must become familiar with the rule to be 
able to use it on a daily basis in the FSO role to supervise and direct 
security measures necessary for implementing the applicable security 
requirements to ensure the protection of classified information. Using 
the published Office of Personnel Management General Schedule (GS) 
salary schedule for fiscal year (FY) 2020, the estimated labor rate for 
an FSO of a small business entity firm is the equivalent of a GS11 step 
5 and for an FSO of a large business entity as the equivalent of a 
GS13, step 5. It is estimated that it will take 10 hours in the first 
year, 5 hours in years 2 and 3, 3 hours in years 4 to 7, and then 2 
hours annually up to year 20 for an FSO to become familiar with the 
rule, as this will be the first time that the NISPOM is in a rule 
format instead of as a DoD policy issuance, as well as familiarization 
with the changes. These assumptions imply costs of $9.89 million in 
year one; $4.95 million in years 2 and 3; $2.97 million in each year 4 
through 7; and, $1.98 million in each year 8 through 20.
    b. Evaluation of Existing Classified Contracts To Implement Changes 
No Later than Six Months from Effective Date.
    Each of the legal U.S. cleared entities must comply no more than 
six months from the effective date of this NISPOM rule. During that six 
months, each legal cleared entity has the opportunity to review 
existing classified contracts to determine if there is any impact that 
they want to discuss with the applicable GCAs about possible equitable 
adjustment. Decisions on any requests for equitable adjustment will be 
made by the applicable contracting officer. Legal entities enter into 
contracts, licenses or grants; it is estimated that the average of 
8,036 small business cleared entities are each a legal entity. It is 
estimated that each of those small business cleared legal entities will 
review an average of 3 existing classified contracts for possible 
equitable adjustment for a total of 24,108 contracts requiring 3 hours 
each for review in 2021. Using the published Office of Personnel 
Management GS salary schedule for FY20, the estimated labor rate for an 
FSO of a small business entity firm is the equivalent of a GS11 step 5 
and for an FSO of a large business entity as the equivalent of a GS13, 
step 5. Of the large business entities, it is estimated that 2,100 
large business cleared entities are legal entities, while the remaining 
large business entities are divisions or branch offices. It is 
estimated that each of those large business cleared legal entities will 
review an average of 30 existing classified contracts for possible 
equitable adjustment for a total of 63,000 contracts requiring 8 hours 
each for review in 2021. It is estimated that it will take more time 
for review by the

[[Page 83307]]

large business cleared entities due to more complicated contracts. 
These assumptions imply costs of $54.96 million in year one and no 
further costs as this action is taken only in the first year.
    c. Train SECRET cleared employees on requirements to submit foreign 
travel reports. The FSO at each entity (small or large) must ensure 
that its SECRET cleared employees are trained on the requirements. Such 
training by the FSO is estimated to take 1 hour in 2021 and a half an 
hour in each of the following years up to year 20. Using the published 
Office of Personnel Management GS salary schedule for FY20, the 
estimated labor rate for an FSO of a small business entity firm is the 
equivalent of a GS11 step 5 and for an FSO of a large business entity 
as the equivalent of a GS13, step 5. These assumptions imply total 
costs of $0.99 million in 2021 as year one; and, $0.49 million in each 
year 2 through 20.
    d. Submit foreign travel reports and receive any pre-travel threat 
briefings or post travel briefings based on the threat. All cleared 
employees must submit foreign travel reports and receive any pre-travel 
briefings or post travel briefings from the FSO-based on threat 
according to this rule, SEAD 3 and CSA-provided guidance for unique 
mission requirements. It is estimated that the number of foreign travel 
reports submitted annually will be 483,681 to comply with this rule. 
That estimate is based on analysis of calendar year 2019 unofficial 
foreign travel reported by DoD civilians and military in the DoD 
Aircraft and Personnel Automated Clearance System (APACS), a web-based 
tool for the creation, submission and approval of aircraft diplomatic 
clearances and personnel travel clearances (i.e. Country, Theater and 
Special Area, as applicable with individual DoD Foreign Clearance Guide 
(FCG), https://www.fcg.pentagon.mil country pages) designed to aid USG 
travelers on official government and unofficial (i.e., leave) travel. 
For calendar year 2019, there were 126,131 travelers and 113,214 travel 
requests submitted into APACS. APACS requirements are published on the 
DoD Foreign Clearance Guide (FCG), https://www.fcg.pentagon.mil. Thus 
an annual estimate of .89 expected foreign travel trips by traveler 
(113,214 divided by 126,131). In the small business analysis, there 
were a total of 18,242 cleared employees in the 658 small entities 
sampled and 63,598 cleared employees in the remaining 356 non-small 
businesses. Of the total cleared employees in the small business 
analysis (as reported in the National Industrial Security System), 
approximately 22.3% were at small entities and 77.7% were at non-small 
businesses. Known number of new travelers expected to be effected by 
this rule is 543,462 SECRET cleared contractor personnel under DoD 
security cognizance and the estimated trips at .89 per traveler is 
(543,462 x .89 = 483,681 estimated trips). Assuming the ratio for those 
employees reporting foreign travel into APACS is the same as SECRET 
cleared employees would report, of the estimated 483,681 foreign trips 
by SECRET cleared employees, it can be estimated that approximately 
107,812 (22.3% of 483,681) will be taken by contractors at small 
entities, and 375,869 (77.7% of 483,681) by contractors at non-small 
businesses. It is estimated that it will take a half an hour for a 
SECRET cleared employee to report foreign travel in 2021 and in each of 
the following years up to year 20 to report foreign travel and receive 
any pre-travel or post-travel briefings. The estimated average labor 
rate for a SECRET cleared employee to report foreign travel is the 
equivalent of a GS11 step 5. These assumptions imply costs of $16.81 
million in each year one through 20.
    e. Fewer contract performance delays by the small number of U.S. 
contractors with NTIB ownership operating under an SSA. Section 842 of 
Public Law 115-232, is limited to a small number of U.S. cleared legal 
entities in the NISP for which the ultimate parent entity and any 
intermediate parent entities of such subsidiary are located in a 
country that is part of the NTIB; and that is subject to the FOCI 
requirements of the NISP. There are currently 20 U.S. cleared legal 
entities with their associated cleared divisions, subsidiaries or 
branch (estimated to be another 100 cleared entities) to whom Section 
842 of Public Law 115-232 applies. Section 881 of Public Law 114-328 
expanded the legal definition of the NTIB to include the United Kingdom 
and Australia. The NTIB is comprised of the United States, the United 
Kingdom of Great Britain and Northern Ireland, Canada and Australia. 
NTIB is based on the principle that defense trade between the United 
States and its closest allies enables a host of benefits, including 
increased access to innovation, economies of scale, and 
interoperability (10 U.S.C. 2500).
    Section 842 of Public Law 115-232 is deregulatory by statute and 
this rule. There are no estimated costs to the small number of entities 
impacted because they are required already to submit any new or change 
to FOCI information for their initial and continued FCL, respectively, 
via the SF 328, Certificate Pertaining to Foreign Interests in the NISP 
as do all other U.S. cleared legal entities. 32 CFR part 2004 provides 
a CSA up to 30 days to assess the submitted NID and then another 30 
days for a controlling agency to make a NID for the type of proscribed 
information under the purview of each (ODNI for SCI, DOE for RD or NSA 
for COMSEC). Thus, with Section 842 of Public Law 115-232, there has 
been minimum 60 day delay for a NID involving an NTIB covered entity 
which has impacted the timeliness of contract performance. There are 
estimated costs savings as this small number of cleared entities and 
their entity cleared employees designated to work on specific 
classified contracts involving proscribed information will no longer 
have to wait at least 60 days for NIDs after contract award for access 
to proscribed information when all other requirements have been met for 
access to classified information and contract performance. Using the 
published Office of Personnel Management GS salary schedule for FY20, 
the labor rate for an FSO and an estimated 8 cleared employees in each 
of the 2 small business entities impacted is the equivalent of a GS11 
step 5 with a time savings of 320 hours for each year 1 through 20. The 
labor rate for an FSO and an estimated 19 cleared employees in each of 
the 18 large business entities impacted is the equivalent of a GS13 
step 5 with a time savings of 320 hours for each year 1 through 20. 
These assumptions imply cost savings of $11.81 million in each year.

C. USG Cost Analysis of the Changes to the Baseline From This Rule

    1. Projected USG Cost/Cost Savings. In summary, the estimated USG 
cost/cost savings are present value costs of $10.82 million and 
annualized costs of $0.76 million. Throughout, labor rates are adjusted 
upward by 100% to account for overhead and benefits.
    2. Cost analysis.
    a. Regulatory Familiarization. There will be an initial step to 
become familiar with the clause requirements and what actions the USG 
executive branch agencies must take to comply with the changes in this 
rule. To become familiar with the new requirements, USG executive 
branch agencies may review the Federal Register notice with the new 32 
CFR part 117. It is estimated that 38 USG executive branch agencies 
will become familiar with the rule (i.e., the five Cognizant Security 
Agencies (DoD, DOE, NRC, ODNI, DHS) and the 33 USG agencies which 
currently have an industrial security services agreement

[[Page 83308]]

with DoD pursuant to 32 CFR part 2004). The estimated labor rate used 
for the cost calculation is the equivalent of a GS12 step 5 for the 
designated NISP lead at each of those 38 agencies. It is estimated that 
it will take 8 hours in the first year as well as in each of the 
following through year 20 to become familiar and remain familiar with 
the rule, as this will be the first time that the NISPOM is in a rule 
format instead of as a DoD policy issuance, as well as familiarization 
with the changes. These assumptions imply costs of approximately $25 
thousand each year.
    b. Training the USG civilian employees of NISP CSAs who provide 
oversight of contractor compliance with this rule. It is estimated that 
the NISP CSAs (i.e., DoD, DOE, NRC, ODNI and DHS) must train a total of 
800 personnel who provide oversight of contractor compliance with this 
rule in the first year with annual refresher training in subsequent 
years. The largest number of personnel would be trained by DoD. The 
initial training is estimated to take 24 hours in 2021 to ensure those 
government personnel conducting oversight are versed in the changed 
requirements to assess compliance by cleared entities. The second year 
refresher training will be 16 hours with 8 hours of refresher training 
in each of years 3 through 20. The average labor rate for these 800 
government headquarters and field personnel is estimated to be a GS13 
step 5. These assumptions imply costs of $1.90 million in year one; 
$1.27 million in year 2; and, $0.63 million in each year 3 through 20.
    c. Accepting submissions of foreign travel reports by SECRET 
cleared entity personnel. DoD, with the largest population of cleared 
entity personnel, already has the data fields for foreign travel 
reporting in the Defense Information System for Security and will not 
have to make more changes to that automated system to accept submission 
of these reports. There are no expected costs or costs savings.
    d. No longer draft, coordinate and submit proposed national 
interest determinations (NIDs) for access to proscribed information for 
the small number of U.S. contractors with NTIB ownership operating 
under an SSA. There will be a small cost savings because DoD Components 
(i.e., Departments of the Army, Navy and Air Force, DARPA, DIA, NGA, 
NRO, NSA and assorted smaller organizations) will no longer have to 
take an estimated 40 hours a year to draft, coordinate and submit NIDs 
for the small number of U.S. contractors with NTIB ownership operating 
under an SSA. There will be minimal administrative changes to the DoD 
information system to remove the NID requirement for the small number 
of NTIB covered entities. DoD already must evaluate any changes 
submitted to FOCI information for U.S. cleared legal entities under its 
security cognizance which would include a determination if one of these 
cleared legal entities remains a covered NTIB entity. On average, DoD 
receives an estimated one FOCI changed condition report annually from 
an NTIB covered cleared legal entity. An estimated 10 government 
personnel with an estimated labor rate of a GS11 step 5 would save 40 
hours in year 1 through year 20. These assumptions imply costs saving 
of approximately $28 thousand each year.
    e. Update training materials, job aids and associated tools for 
U.S. cleared legal entities and USG agencies on these changes to the 
NISPOM. CSAs will have to update existing training materials and 
products used by U.S. cleared legal entities and USG agencies so that 
they have all needed information on the changes being implemented in 
this NISPOM rule. Examples of those training materials and products 
range from online or in person training, job aids and web tools. DoD 
provides NISP training materials to the largest population, to include 
USG agencies and U.S. cleared legal entities, and estimates the time 
impact in year one is 1,128 hours for each of six individuals to update 
all the training materials with 564 hours in year two and 282 hours 
each year for maintenance of those materials in year 3 through year 20. 
The labor rate for those 6 personnel is estimated to be a GS13 step 5. 
These assumptions imply costs of $0.67 million in year one; $0.34 
million in year 2; and $0.17 million in each year 3 through 20.

C. Total Costs/Cost Savings

    In summary the estimated public and USG costs/cost savings are (1) 
present value costs of $150.26 million and annualized costs of $10.52 
million for the public; and, (2) present value cost of $10.82 million 
and annualized costs of $0.76 million for the USG. Throughout, labor 
rates are adjusted upward by 100% to account for overhead and benefits.
Benefits
    Following the September 2013 Navy Yard shooting, the President 
directed the Office of Management and Budget (OMB) to lead a review of 
suitability and security clearance procedures for Federal employees and 
contractors (see https://www.archives.gov/files/isoo/oversight-groups/nisp/2014-suitability-and-processes-report.pdf). This review assessed 
USG policies, programs, processes, and procedures involving 
determinations of federal employee suitability, contractor fitness, and 
personnel security. The interagency working group also evaluated the 
collection, sharing, processing, and storage of information used to 
make suitability, credentialing, and security decisions. It found the 
need for
     better information sharing,
     increased oversight over background investigations, and
     consistent application of standards and policies for both 
Federal employees and contractors.
    The report identified 13 recommendations to improve how the 
Government performed suitability determinations and security clearances 
and the creation of SEAD 3 is a partial response to recommendation A.2. 
SEAD-3 requires enhanced additional reporting of foreign travel, 
foreign contacts and conduct/behavior that might jeopardize an 
individual from maintaining access or eligibility to access classified 
information. Many of the requirements are a direct result of recent 
national security breaches by trusted insiders who have disclosed 
classified information to news media or foreign entities causing 
significant harm to the interests of the United States.
    SEAD 3 was designed to strengthen the safeguarding of national 
security equities, such as national security information, personnel, 
facilities, and technologies. These reporting requirements are 
important because individuals who incur a continuing security 
obligation need to be aware of the risks associated with foreign 
intelligence operations and/or possible terrorist activities directed 
against them in the U.S. and abroad, and to be aware they possess or 
have access to information that is highly sought after by foreign 
adversaries and competitors, including, but not limited to:

 Classified or sensitive information vital to national and 
economic security
 Emerging technologies and pioneering research and development
 Information relating to critical infrastructure sectors
 Proprietary secrets
 Security or counterintelligence information

    In particular, the risk of becoming an intelligence target 
increases greatly during foreign travel, be it for official or 
unofficial purposes. NISP Contractor cleared personnel can become the 
target of a foreign intelligence or security service at any time in any 
country.

[[Page 83309]]

Collecting additional information on travel will help ensure basic 
counterintelligence awareness is implemented to effectively protect 
both the individual and the USG against foreign attempts to collect 
sensitive, proprietary, or classified information. Such measures could 
include arranging a pre-travel briefing from the entity Facility 
Security Officer. Reminders include, but are not limited to the 
following, which can be provided to:
     Do not leave items that would be of value to a foreign 
intelligence service unattended in hotel rooms or stored in hotel 
safes.
     Limit sensitive discussions--hotel rooms or other public 
places are not suitable locations to discuss sensitive information.
     Not use computer or facsimile equipment at foreign hotels 
or business centers for sensitive matters.
     Not divulge information to anyone unauthorized to hear it.
     Ignore or deflect intrusive inquiries or conversation 
about business or personal matters.
     Keep a laptop computer as carry-on baggage--never check it 
with other luggage and, if possible, remove or control storage media. 
Confirm before the foreign travel whether it is necessary or even 
advisable to take a laptop computer.
     Report any suspicious contacts or incidents to the entity 
FSO to report to the applicable CSA.
    Contractors in the NISP also have a responsibility for recognizing 
and avoiding personal behaviors and activities that may impact their 
continued eligibility for access to classified information. This 
includes, but is not limited to the following activities which may be 
of potential security, insider threat, or counterintelligence concern

 An unwillingness to comply with rules, regulations, or 
security requirements
 Unexplained affluence or excessive indebtedness
 Alcohol abuse
 Illegal use or misuse of drugs or drug activity
 Apparent or suspected mental health issues where there is 
reason to believe it may impact the individual's ability to protect 
classified information or other information prohibited by law from 
disclosure
 Criminal conduct
 Any activity that raises doubts as to whether the individual's 
continued national security eligibility is clearly consistent with 
national security interests
 Misuse of U.S. Government property or information systems

    This rule will result in fewer contract performance delays by the 
small number of U.S. contractors with NTIB ownership operating under an 
SSA. With Section 842 of Public Law 115-232 implemented there will no 
longer be at least a 60 day minimum delay for USG contracting 
activities and NTIB covered entities to wait for NIDs after contract 
award for access to proscribed information when all other requirements 
have been met. When a GCA submits a NID to the applicable CSA, there is 
an initial 30 days to process the request, which includes verification 
of the NID requirement. If the NID also includes a requirement for 
controlling agency concurrence (i.e., ODNI for SCI, DOE for RD or NSA 
for COMSEC), the CSA submits the request to the applicable controlling 
agencies who then have 30 more days for its analysis and decision. 
Section 842 of Public Law 115-232 is deregulatory by statute as 
reflected in this rule. Congress required that the NTIB policy 
framework foster a defense free-trade area among the defense-related 
research and development sectors of the United States, Canada, 
Australia and the United Kingdom. Section 881 of Public Law 114-328 
(the National Defense Authorization Act for Fiscal Year 2017) expanded 
the legal definition of the NTIB to include the United Kingdom and 
Australia. Congress expanded the NTIB in 2017 based on the principle 
that defense trade between the United States and its closest allies 
enables a host of benefits, including increased access to innovation, 
economies of scale, interoperability, and to reduce the barriers to the 
seamless integration between the NTIB which supplies defense articles 
to the Armed Forces and enhances allied interoperability of forces. 
Section 842 of Public Law 115-232 also continues the congressional 
intent to remove barriers to the seamless integration of the transfer 
of knowledge, goods, and services among the persons and organizations 
of the NTIB for national security challenges across a variety of 
technology areas.
Alternatives
    No action. If there were no action (i.e., no NISPOM rule nor DoD 
Manual 5220.22), USG agencies would not have single set of requirements 
to be levied on contractors through a FAR security requirements clause 
or equivalent to protect classified information in contracts. Without 
that single set of requirements consistently levied for classified 
contracts by USG agencies, there would be a loss of classified 
information to adversaries. There would not be a streamlined process 
for clearing contractors to work on contracts involving classified 
information. This would leave each USG agency to clear its own 
contractors, which could take months or years. The ability for the USG 
to fill crucial mission gaps using contractors would be severely 
impacted. There would be no standardized way under which contractors 
would be required to physically store classified information. The USG 
would have no insight into insider threats from contractor personnel 
who have access to the USG's most sensitive and critical programs. 
There would be an adverse impact on national security. The results of 
this alternative are not preferred.
    Next Best Alternative. Each USG agency would establish a rule for 
contractor protection of classified information disclosed or released 
to contractors. Differing standards will result in inconsistent 
standards, confusion, and higher costs for compliance if a contractor 
has contracts requiring access to classified information with multiple 
USG agencies and has to comply with different agency requirements. 
Further, such an alternative would result in additional time needed for 
contractors to put in place mechanisms to meet multiple and differing 
sets of requirements. This inconsistency and confusion due to differing 
standards also increases the likelihood of loss of classified 
information and insider threats going undetected. The results of this 
alternative are not preferred.
    The Preferred Alternative. This final rule provides a single 
statement of requirements for contractors to comply with for maximum 
uniformity and consistency, for the protection of classified 
information, to include the reporting of foreign travel and foreign 
contacts by cleared contractor personnel in accordance with Security 
Executive Agent policies. This final rule provides for the proper 
protection of classified information disclosed or released by U.S. 
agencies in all phases of the contracting, license or grant processes. 
This rule will prevent the theft of classified national security assets 
and information by adversaries and insider threats. This is the 
preferred alternative.

IV. Exception to Notice and Comment

    This rule directly involves matters relating to public grants or 
contracts, and is therefore expressly exempt from notice and comment 
procedures under 5 U.S.C. 553(a)(2). Compliance with this rule is 
levied by a Federal Acquisition Regulation security requirements clause

[[Page 83310]]

or equivalent. It establishes requirements for the protection of 
classified information disclosed to or developed by contractors, 
licensees, grantees, or certificate holders. Industry implements these 
requirements to protect national security interests, cleared persons, 
and the integrity of the classified information. Although DoD has 
determined that an exception to the notice and comment requirements of 
Sec.  553 applies, it still seeks public comments on this rule. 
Thereafter, DoD will consider comments received on this rule in 
determining whether to make any changes in a subsequent rule.

V. Regulatory Analysis

Executive Order 12866, ``Regulatory Planning and Review'' and E.O. 
13563, ``Improving Regulation and Regulatory Review''

    E.O.s 12866 and 13563 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, distribute impacts, and equity). E.O. 13563 emphasizes the 
importance of quantifying both costs and benefits, of reducing costs, 
of harmonizing rules, and of promoting flexibility. Accordingly, the 
rule has been reviewed by the Office of Management and Budget (OMB) 
under the requirements of these E.O.s. This rule has been designated a 
significant regulatory action and determined to be economically 
significant, under section 3(f) of E.O. 12866 as it has an annual 
effect on the economy of $100 million or more or affects in a material 
way the economy or a sector of the economy. Security costs relate 
specifically to protection of classified information by cleared U.S. 
entities.

Executive Order 13771, ``Reducing Regulation and Controlling Regulatory 
Costs''

    This rule is not subject to the requirements of E.O. 13771, because 
the rule is issued with respect to a national security function of the 
United States.

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

    The DoD certifies that this final rule would not, if promulgated, 
have a significant economic impact on a substantial number of small 
business entities in accordance with the Regulatory Flexibility Act (5 
U.S.C. 601) requirements since a contractor cleared legal entity may, 
in entering into contracts requiring access to classified information, 
negotiate for security costs determined to be properly chargeable by a 
GCA. The DoD invites comment from members of the public who believe 
there will be a significant impact.
    Small entities to which this rule will apply provide products and 
services to the executive branch, e.g., in the areas of administration, 
consulting, information security and technology, cybersecurity, 
research and development, design, production and manufacturing, 
including circumstances where physical security measures cannot 
preclude aural or visual access to classified information. These small 
business entities, as well as non-small business entities, have entered 
into a contract, license or grant for which access to classified 
information is required. Compliance with this rule, also referred to as 
the NISPOM, is levied by a FAR security requirements clause or 
equivalent. The requirements for an entity eligibility determination do 
not include USG collection of applicable North American Industry 
Classification System (NAICS) codes. While this type of information is 
available in the Federal Procurement Data System (FPDS), entity 
eligibility determinations (often referred to as facility clearances) 
are not available in FPDS. DoD has no efficient mechanism to cross 
check NAICS codes from FPDS with facility clearance data. DoD assesses 
there are a wide variety of NAICS codes associated with contracts 
requiring access to classified information. For example, the following 
NAICS codes may be associated with contracts requiring access to 
classified information: 561720 janitorial services; 561210 facility 
support services; 541611 administrative management and general 
management services; 561110 office administrative services; 541690 
other scientific and technical consulting services; 541330 engineering 
services; 561611 investigation services; and likely many others, since 
contracts that require a facility clearance for access to classified 
information are not industry specific.
    Based on the number of small businesses registered within the SBA 
Dynamic Small Business Search, the overall industrial base of federal 
government small businesses is 313,651. Approximately 1,000 facilities 
were randomly selected from the NISP to determine if the selected 
facilities were registered within the SBA Dynamic Small Business 
Search. With 95% confidence, it can be estimated that there are between 
7,672 and 8,400 small entities impacted by this rule. The general 
methodology to determine a random sample and the estimated number of 
small business entities impacted by this rule is outlined in the 
following table. The random selection is dependent on the contractor 
facility having an active facility security clearance and permanent 
CAGE Code.

------------------------------------------------------------------------
      NISP small entities estimate
------------------------------------------------------------------------
Total cleared contractor facilities
 enrolled in the DoD National
 Industrial Security System (NISS) as
 of May 14, 2020:
    12,384.............................
Randomly Selected facilities from the
 current cleared contractor population:
    1,014..............................
The proportion of cleared contractor
 facilities in the simple random sample
 enrolled in the SBA Database:
    658/1,014 = 64.89%.................  Equates to 8,036 facilities as
                                          small business entities.
Margin of Error for proportion enrolled
 in SBA database (95% confidence):
    2.94%..................  Equates to 364
                                          facilities cleared contractor
                                          facilities.
The interval estimate for the number of
 small businesses in the NISP:
    8,036 364 =............  7,672 to 8,400 cleared
                                          contractor facilities.
------------------------------------------------------------------------


[[Page 83311]]


 
 
-------------------------------------------------------------------------
Based on the simple random sample, we can be 95% confident that the true
 proportion of active cleared contractor facilities enrolled in the SBA
 database is between 62.0% and 67.8%. Based on cleared contractor
 enrollment as of May 14, 2020, the percentages equate to an interval
 estimate between 7,672 and 8,400 small business entities which are
 cleared contractor facilities and impacted by this rule.
Assumptions and Notes:
     Facilities self-enrolled in the SBA database are, in fact,
     small businesses. The following link was used to determine if a
     facility was a small business by searching CAGE codes showing all
     NAICS for which a business is a small business: https://web.sba.gov/pro-net/search/dsp_dsbs.cfm.
     The SBA database is generally a self-certifying database.
     The SBA does not make any representation as to the accuracy of any
     of the data included, other than certifications relating to 8(a)
     Business Development, HUBZone or Small Disadvantaged Business
     status. The SBA strongly recommends that contracting officers
     diligently review a bidder's small business self-certification
     before awarding a contract.
     Facilities were selected from the active NISS population
     using a simple random sample (1,014 selected of 12,384 enrolled
     facilities).
     Selection of each facility is independent of all other
     facilities selected (N * .10 >n).
     The sample is large enough (n = 1014) that we can assume
     the sampling distribution of sample proportions is approximately
     normal (n * p>10 and n * (1-p) >10).
------------------------------------------------------------------------

Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by 
the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. We will submit a report containing this 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States. A 
major rule cannot take effect until 60 days after it is published in 
the Federal Register. This final rule is a ``major rule'' as defined by 
5 U.S.C. 804(2) because it is also economically significant under 
section 3(f) of E.O. 12866 with an annual effect on the economy of $100 
million or more.

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

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 
U.S.C. 1532) requires agencies to assess anticipated costs and benefits 
before issuing any rule whose mandates require spending in any 1 year 
of $100 million in 1995 dollars, updated annually for inflation. This 
final rule will not mandate any requirements for State, local, or 
tribal governments, nor will it affect private sector costs.

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

    It has been determined that 32 CFR part 117 does impose reporting 
or recordkeeping requirements under the Paperwork Reduction Act of 
1995. DoD is not proposing changes to the DoD collections based on this 
final rule, nor have any of the other NISP CSAs indicated proposed 
changes based on this rule. The DOE and NRC have collections based on 
their respective authorities as a NISP CSA; but neither has a 
collection for a Contract Security Classification Specification because 
DOE and NRC each complete that specification for both prime contracts 
and subcontracts. By accepting the contract, the contractor obligates 
itself to fulfill the requirements specified in applicable DOE 
Acquisition Regulation (DEAR) clauses (available at https://www.energy.gov/management/downloads/searchable-electronic-department-energy-acquisition-regulation) and identified DOE Directives. The DOE 
Directives contain a contractor requirements document that conveys 
security obligations and the statutes for civil penalties for security 
violations. The Nuclear Regulatory Commission Acquisition Regulation 
part 2052.204-70 includes the security requirements levied on the 
contractor (available at https://www.acquisition.gov/nrcar/nrcar-part-2052-solicitation-provisions-and-contract-clauses#P41_1774). For ease 
of review of this rule, the collections are discussed below. Materials 
associated with all of the collections can reviewed at www.reginfo.gov.
     OMB Control Number 0704-0194, DD Form 441, DoD Security 
Agreement.
     OMB Control Number: 0704-0571, National Industrial 
Security System, is a DoD information collection used to conduct its 
monitoring and oversight of contractors.
     OMB Control Number 0704-0567, DoD Contract Security 
Classification Specification, this collection is used by both DoD and 
agencies which have an industrial security agreement with DoD.
     OMB Control Number 0704-0573, Defense Information System 
for Security, is a DoD automated system for personnel security, 
providing a common, comprehensive medium to record, document, and 
identify personal security actions within DoD including submitting 
adverse information, verification of security clearance status, 
requesting investigations, and supporting continuous evaluation 
activities. It requires personal data collection to facilitate the 
initiation, investigation and adjudication of information relevant to 
DoD security clearances and employment suitability determinations for 
active duty military, civilian employees and contractors seeking such 
credentials.
     OMB Control Number 0704-0496, Joint Personnel Adjudication 
System, an information system which requires personal data collection 
to facilitate the initiation, investigation and adjudication of 
information relevant to DoD security clearances and employment 
suitability determinations for active duty military, civilian employees 
and contractors seeking such credentials.
     OMB Control Number 0704-0579, Certificate Pertaining to 
Foreign Interests SF (328) which is a common form which can be used by 
all CSAs.
     OMB Control Number 3150-0047, 10 CFR part 95, Facility 
Security Clearance and Safeguarding of National Security Information 
and Restricted Data, is an NRC information collection used to obtain an 
FCL and for safeguarding Secret and Confidential National Security 
Information and Restricted Data. Licensees under 10 CFR part 95 fall 
within two categories, those who possess, use or transmit classified 
matter at their site or a cleared contractor site, and those licensees 
and contractors who only need access to classified matter at a 
government or appropriately cleared non-government site.
     OMB Control Number 1910-1800, Security Package, is a DOE 
information collection used by DOE to conduct its monitoring and 
oversight of contractors under its security cognizance and to provide a 
platform for other CSAs, GCAs or prime contractors to verify whether a 
contractor has a DOE-granted FCL.

Executive Order 13132, ``Federalism''

    E.O. 13132 establishes certain requirements that an agency must 
meet when it promulgates an final rule (and subsequent final rule) that 
imposes substantial direct requirement costs on

[[Page 83312]]

State and local governments, preempts State law, or otherwise has 
Federalism implications. This final rule will not have a substantial 
effect on State and local governments.

List of Subjects in 32 CFR Part 117

    Classified information; Government contracts; USG contracts, 
National Industrial Program (NISP); Prime contractor, Subcontractor.

0
Accordingly, the Department of Defense amends chapter I of title 32 of 
the CFR by adding part 117 to read as follows:

PART 117--NATIONAL INDUSTRIAL SECURITY PROGRAM OPERATING MANUAL 
(NISPOM)

Sec.
117.1 Purpose.
117.2 Applicability.
117.3 Definitions.
117.4 Policy.
117.5 Information collections.
117.6 Responsibilities.
117.7 Procedures.
117.8 Reporting requirements.
117.9 Entity eligibility determination for access to classified 
information.
117.10 Determination of eligibility for access to classified 
information for contractor employees.
117.11 Foreign Ownership, Control, or Influence (FOCI).
117.12 Security training and briefings.
117.13 Classification.
117.14 Marking requirements.
117.15 Safeguarding classified information.
117.16 Visits and meetings.
117.17 Subcontracting.
117.18 Information system security.
117.19 International security requirements.
117.20 Critical Nuclear Weapon Design Information (CNWDI).
117.21 COMSEC.
117.22 DHS CCIPP.
117.23 Supplement to this rule: Security Requirements for 
Alternative Compensatory Control Measures (ACCM), Special Access 
Programs (SAPs), SCI, RD, Formerly Restricted Data (FRD), 
Transclassified Foreign Nuclear Information (TFNI), and Naval 
Nuclear Propulsion Information (NNPI).
117.24 Cognizant Security Office information.

    Authority: 32 CFR part 2004; E.O. 10865; E.O. 12333; E.O. 12829; 
E.O. 12866; E.O. 12968; E.O. 13526; E.O. 13563; E.O. 13587; E.O. 
13691; Public Law 108-458; Title 42 U.S.C. 2011 et seq.; Title 50 
U.S.C. Chapter 44; Title 50 U.S.C. 3501 et seq.


Sec.  117.1   Purpose.

    (a) This rule implements policy, assigns responsibilities, 
establishes requirements, and provides procedures, consistent with E.O. 
12829, ``National Industrial Security Program''; E.O. 10865, 
``Safeguarding Classified Information within Industry''; 32 CFR part 
2004; and DoD Instruction (DoDI) 5220.22, ``National Industrial 
Security Program (NISP)'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/522022p.pdf?ver=2018-05-01-073158-710) for the protection of classified information that is 
disclosed to, or developed by contractors of the U.S. Government (USG) 
(hereinafter referred to in this rule as contractors).
    (b) This rule, also in accordance with E.O. 12829, E.O. 
13587,''Structural Reforms To Improve the Security of Classified 
Networks and the Responsible Sharing and Safeguarding of Classified 
Information''; E.O. 13691, ``Promoting Private Sector Cybersecurity 
Information Sharing''; E.O. 12333, ``United States Intelligence 
Activities''; 42 U.S.C. 2011 et seq. (also known as and referred to in 
this rule as the ``AEA of 1954,'' as amended); '' 50 U.S.C. Ch. 44 
(also known as the ``National Security Act of 1947,'' as amended); 50 
U.S.C. 3501 et seq. (also known as the ``Central Intelligence Agency 
Act of 1949,'' as amended); Public Law 108-458 (also known as the 
``Intelligence Reform and Terrorism Prevention Act of 2004''); and 32 
CFR part 2004:
    (1) Prescribes industrial security procedures and practices, under 
E.O. 12829 or successor orders, to safeguard USG classified information 
that is developed by or disclosed to contractors of the USG.
    (2) Prescribes requirements, restrictions, and other safeguards to 
prevent unauthorized disclosure of classified information and protect 
special classes of classified information.
    (3) Prescribes that contractors will implement the provisions of 
this rule no later than 6 months from the effective date of this rule.


Sec.  117.2   Applicability.

    (a) This rule applies to:
    (1) The Office of the Secretary of Defense, the Military 
Departments, the Office of the Chairman of the Joint Chiefs of Staff 
and the Joint Staff, the Combatant Commands, the Office of the 
Inspector General of the Department of Defense, the Defense Agencies, 
the DoD Field Activities, and all other organizational entities within 
the DoD (referred to collectively in this rule as the ``DoD 
Components'').
    (2) All executive branch departments and agencies.
    (3) All industrial, educational, commercial, or other non-USG 
entities granted access to classified information by the USG executive 
branch departments and agencies or by foreign governments.
    (4) The release of classified information by the USG to 
contractors, who are required to safeguard classified information 
released during all phases of the contracting, agreement (including 
cooperative research and development agreements), licensing, and grant 
processes, i.e., the preparation and submission of bids and proposals, 
negotiation, award, performance, and termination. Also, it applies in 
situations involving a contract, agreement, license, or grant when 
actual knowledge of classified information is not required, but 
reasonable physical security measures cannot be employed to prevent 
aural or visual access to classified information, because there is the 
ability and opportunity to gain knowledge of classified information. It 
also applies to any other situation in which classified information or 
FGI that is furnished to a contractor requires protection in the 
interest of national security, but which is not released under a 
contract, license, certificate or grant.
    (b) This rule does not:
    (1) Limit in any manner the authority of USG executive branch 
departments and agencies to grant access to classified information 
under the cognizance of their department or agency to any individual 
designated by them. The granting of such access is outside the scope of 
the NISP and is accomplished pursuant to E.O. 12968, E.O. 13526, E.O. 
13691, the AEA, and applicable disclosure policies.
    (2) Apply to criminal proceedings in the courts or authorize 
contractors or their employees to disclose classified information in 
connection with any criminal proceedings. Defendants and their 
representative in criminal proceedings in U.S. District Courts, Courts 
of Appeal, and the U.S. Supreme Court may gain access to classified 
information in accordance with 18 U.S.C. Appendix 3, Section 1, also 
known as and referred to in this rule as the ``Classified Information 
Procedures Act,'' as amended.


Sec.  117.3   Acronyms and Definitions.

    (a) Acronyms. Unless otherwise noted, these acronyms and their 
terms are for the purposes of this rule.

ACCM alternative compensatory control measures
AEA Atomic Energy Act of 1954, as amended
AUS Australia
CAGE commercial and government entity
CCIPP classified critical infrastructure protection program
CDC cleared defense contractor
CFIUS Committee on Foreign Investment in the United States
CFR Code of Federal Regulations

[[Page 83313]]

CI Counterintelligence
CIA Central Intelligence Agency
CNSS Committee on National Security Systems
CNWDI critical nuclear weapons design information
COMSEC communications security
COR central office of record
CSA cognizant security agency
CSO cognizant security office
CUSR Central United States Registry
DCSA Defense Counterintelligence and Security Agency
DD Department of Defense (forms only)
DDTC Directorate of Defense Trade Controls
DGR designated government representative
DHS Department of Homeland Security
DNI Director of National Intelligence
DoD Department of Defense
DoDD Department of Defense Directive
DoDI Department of Defense Instruction
DoDM Department of Defense Manual
DOE Department of Energy
ECP electronic communications plan
E.O. Executive order
FBI Federal Bureau of Investigation
FCL facility (security) clearance
FGI foreign government information
FOCI foreign ownership, control, or influence
FRD Formerly Restricted Data
FSCC Facility Security Clearance Certificate (NATO)
FSO facility security officer
GCA government contracting activity
GCMS government contractor monitoring station
GSA General Services Administration
GSC government security committee
IDE intrusion detection equipment
IDS intrusion detection system
IFB invitation for bid
ISOO Information Security Oversight Office
ISSM information system security manager
ISSO information systems security officer
ITAR International Traffic in Arms Regulations
ITPSO insider threat program senior official
KMP key management personnel
LAA limited access authorization
MFO multiple facility organization
NATO North Atlantic Treaty Organization
NDA nondisclosure agreement
NIAG NATO Industrial Advisory Group
NID national interest determination
NISP National Industrial Security Program
NISPOM National Industrial Security Program Operating Manual
NIST National Institute for Standards and Technology
NNPI Naval Nuclear Propulsion Information
NNSA National Nuclear Security Administration
NPLO NATO Production Logistics Organization
NRC Nuclear Regulatory Commission
NRTL nationally recognized testing laboratory
NSA National Security Agency
NSI national security information
NTIB National Technology and Industrial Base
OCA original classification authority
OMB Office of Management and Budget
PA proxy agreement
PCL personnel (security) clearance
RD Restricted Data
RFP request for proposal
RFQ request for quotation
SAP special access program
SCA security control agreement
SCI sensitive compartmented information
SD Secretary of Defense (forms only)
SEAD Security Executive Agent directive
SF standard form
SMO senior management official
SSA special security agreement
SSP systems security plan
TCP technology control plan
TFNI Transclassified Foreign Nuclear Information
TP transportation plan
UK United Kingdom
UL Underwriters' Laboratories
U.S.C. United States Code
USD (I&S) Under Secretary of Defense for Intelligence and Security
USG United States Government
USML United States Munitions List
VAL visit authorization letter
VT voting trust

    (b) Definitions. Unless otherwise noted, these terms and their 
definitions are for the purposes of this rule.
    Access means the ability and opportunity to gain knowledge of 
classified information.
    Access Permittee means the holder of an Access Permit issued 
pursuant to the regulations set forth in 10 CFR part 725, ``Permits For 
Access to Restricted Data.''
    ACCM are security measures used by USG agencies to safeguard 
classified intelligence or operations when normal measures are 
insufficient to achieve strict need-to-know controls and where SAP 
controls are not required.
    Adverse information means any information that adversely reflects 
on the integrity or character of a cleared employee, that suggests that 
his or her ability to safeguard classified information may be impaired, 
that his or her access to classified information clearly may not be in 
the interest of national security, or that the individual constitutes 
an insider threat.
    Affiliate means each entity that directly or indirectly controls, 
is directly or indirectly controlled by, or is under common control 
with, the ultimate parent entity.
    Agency(ies) means any ``Executive agency'' as defined in 5 U.S.C. 
105; any ``Military department'' as defined in 5 U.S.C. 102; and any 
other entity within the executive branch that releases classified 
information to private sector entities. This includes component 
agencies under another agency or under a cross-agency oversight office 
(such as ODNI with CIA), which are also agencies for purposes of this 
rule.
    Alarm service company means an entity or branch office from which 
all of the installation, service, and maintenance of alarm systems are 
provided, and the monitoring and investigation of such systems are 
either provided by its own personnel or with personnel assigned by this 
location.
    Alarm system description form means a form describing an alarm 
system and monitoring information.
    Approved security container means a GSA approved security container 
originally procured through the Federal Supply system. The security 
containers bear the GSA Approval label on the front face of the 
container, which identifies them as meeting the testing requirements of 
the assigned federal specification and having been maintained according 
to Federal Standard 809.
    Approved vault means a vault built to Federal Standard 832 and 
approved by the CSA.
    AUS community consists of the Government of Australia entities and 
Australian non-governmental facilities identified on the DDTC website 
(https://pmddtc.state.gov/) at the time of export or transfer.
    Authorized person means a person who has a favorable determination 
of eligibility for access to classified information, has signed an 
approved nondisclosure agreement, and has a need-to-know.
    Branch office means an office of an entity which is located 
somewhere other than the entity's main office location. A branch office 
is simply another location of the same legal business entity, and is 
still involved in the business activities of the entity.
    CCIPP means security sharing of classified information under a 
designated critical infrastructure protection program with such 
authorized individuals and organizations as determined by the Secretary 
of Homeland Security.
    CDC means a subset of contractors cleared under the NISP who have 
classified contracts with the DoD.
    Certification means comprehensive evaluation of an information 
system component that establishes the extent to which a particular 
design and implementation meets a set of specified security 
requirements.
    Classification guide means a document issued by an authorized 
original classifier that identifies the elements of information 
regarding a specific subject that must be classified and prescribes the 
level and duration of classification and appropriate declassification 
instructions.
    Classified contract means any contract, license, agreement, or 
grant requiring access to classified information by a contractor and 
its

[[Page 83314]]

employees for performance. A contract is referred to in this rule as a 
``classified contract'' even when the contract document and the 
contract provisions are not classified. The requirements prescribed for 
a ``classified contract'' also are applicable to all phases of 
precontract, license or grant activity, including solicitations (bids, 
quotations, and proposals), precontract negotiations, post-contract 
activity, or other government contracting activity (GCA) programs or 
projects which require access to classified information by a 
contractor.
    Classified covered information system means an information system 
that is owned or operated by or for a cleared defense contractor and 
that processes, stores, or transmits information created by or for the 
DoD with respect to which such contractor is required to apply enhanced 
protection (e.g., classified information). A classified covered 
information system is a type of covered network consistent with the 
requirements of Section 941 of Public Law 112-239 and 10 U.S.C. 391.
    Classified information means information that has been determined, 
pursuant to E.O. 13526, or any predecessor or successor order, and the 
AEA of 1954, as amended, to require protection against unauthorized 
disclosure in the interest of national security and which has been so 
designated. The term includes NSI, RD, and FRD.
    Classified meetings means a conference, seminar, symposium, 
exhibit, convention, training course, or other such gathering during 
which classified information is disclosed.
    Classified visit means a visit during which a visitor will require, 
or is expected to require, access to classified information.
    Classifier means any person who makes a classification 
determination and applies a classification category to information or 
material. The determination may be an original classification action or 
it may be a derivative classification action. Contractors make 
derivative classification determinations based on classified source 
material, a security classification guide, or a contract security 
classification specification, or equivalent.
    Cleared commercial carrier means a carrier that is authorized by 
law, regulatory body, or regulation to transport SECRET and 
CONFIDENTIAL material and has been granted a SECRET facility clearance 
in accordance with the NISP.
    Cleared employees means all employees of industrial or commercial 
contractors, licensees, certificate holders, or grantees of an agency, 
as well as all employees of subcontractors and personal services 
contractor personnel, and who are granted favorable eligibility 
determinations for access to classified information by a CSA or are 
being processed for eligibility determinations for access to classified 
information by a CSA. A contractor may give an employee access to 
classified information in accordance with the provisions of Sec.  
117.10(a)(1)(iii).
    Closed area means an area that meets the requirements of this rule 
for safeguarding classified material that, because of its size, nature, 
or operational necessity, cannot be adequately protected by the normal 
safeguards or stored during nonworking hours in approved containers.
    CNWDI means a DoD category of TOP SECRET RD or SECRET RD 
information that reveals the theory of operation or design of the 
components of a thermonuclear or fission bomb, warhead, demolition 
munition, or test device. Specifically excluded is information 
concerning arming, fusing, and firing systems; limited life components; 
and total contained quantities of fissionable, fusionable, and high 
explosive materials by type. Among these excluded items are the 
components that DoD personnel set, maintain, operate, test or replace.
    Compromise means an unauthorized disclosure of classified 
information.
    COMSEC means the protective measures taken to deny unauthorized 
persons information derived from USG telecommunications relating to 
national security and to ensure the authenticity of such 
communications.
    CONFIDENTIAL means the classification level applied to information, 
the unauthorized disclosure of which reasonably could be expected to 
cause damage to the national security that the original classification 
authority (OCA) is able to identify or describe.
    Consignee means a person, firm, or Government (i.e., USG or foreign 
government) activity named as the receiver of a shipment; one to whom a 
shipment is consigned.
    Consignor means a person, firm, or Government (i.e., USG or foreign 
government) activity by which articles are shipped. The consignor is 
usually the shipper.
    Constant surveillance service means a transportation protective 
service provided by a commercial carrier qualified by the Surface 
Deployment and Distribution Command to transport CONFIDENTIAL 
shipments. The service requires constant surveillance of the shipment 
at all times by a qualified carrier representative; however, an FCL is 
not required for the carrier. The carrier providing the service must 
maintain a signature and tally record for the shipment.
    Consultant means an individual under contract, and compensated 
directly, to provide professional or technical assistance to a 
contractor in a capacity requiring access to classified information.
    Continuous evaluation as defined in SEAD 6 is a personnel security 
investigative process to review the background of a covered individual 
who has been determined to be eligible for access to classified 
information or to hold a sensitive position at any time during the 
period of eligibility. Continuous evaluation leverages a set of 
automated records checks and business rules, to assist in the ongoing 
assessment of an individual's continued eligibility. It supplements, 
but does not replace, the established personnel security program for 
scheduled periodic reinvestigations of individuals for continuing 
eligibility.
    Continuous monitoring program means a system that facilitates 
ongoing awareness of threats, vulnerabilities, and information security 
to support organizational risk management decisions.
    Contracting officer means a USG official who, in accordance with 
departmental or agency procedures, has the authority to enter into and 
administer contracts, licenses or grants and make determinations and 
findings with respect thereto, or any part of such authority. The term 
also includes the designated representative of the contracting officer 
acting within the limits of his or her authority.
    Contractor means any industrial, educational, commercial, or other 
entity that has been granted an entity eligibility determination by a 
CSA. This term also includes licensees, grantees, or certificate 
holders of the USG with an entity eligibility determination granted by 
a CSA. As used in this rule, ``contractor'' does not refer to 
contractor employees or other personnel.
    Cooperative agreement means a legal instrument which, consistent 
with 31 U.S.C. 6305, is used to enter into the same kind of 
relationship as a grant (see definition of ``grant'' in this subpart), 
except that substantial involvement is expected between USG and the 
recipient when carrying out the activity contemplated by the 
cooperative agreement. The term does not include ``cooperative research 
and development agreements'' as defined in 15 U.S.C. 3710a.

[[Page 83315]]

    Cooperative research and development agreement means any agreement 
between one or more Federal laboratories and one or more non-Federal 
parties under which the Government, through its laboratories, provides 
personnel, services, facilities, equipment, intellectual property, or 
other resources with or without reimbursement (but not funds to non-
Federal parties) and the non-Federal parties provide funds, personnel, 
services, facilities, equipment, intellectual property, or other 
resources toward the conduct of specified research or development 
efforts which are consistent with the missions of the laboratory; 
except that such term does not include a procurement contract or 
cooperative agreement as those terms are used in sections 6303, 6304, 
and 6305 of title 31.
    Corporate family means an entity, its parents, subsidiaries, 
divisions, and branch offices.
    Counterintelligence means information gathered and activities 
conducted to protect against espionage, other intelligence activities, 
sabotage, or assassinations conducted for or on behalf of foreign 
powers, organizations or persons, or international terrorist 
activities, but not including personnel, physical, document or 
communications security programs.
    Courier means a cleared employee, designated by the contractor, 
whose principal duty is to transmit classified material to its 
destination, ensuring that the classified material remains under their 
constant and continuous protection and that they make direct point-to-
point delivery.
    CRYPTO means the marking or designator that identifies unencrypted 
COMSEC keying material used to secure or authenticate 
telecommunications carrying classified or sensitive USG or USG-derived 
information. This includes non-split keying material used to encrypt or 
decrypt COMSEC critical software and software based algorithms.
    CSA means an agency designated as having NISP implementation and 
security responsibilities for its own agencies (including component 
agencies) and any entities and non-CSA agencies under its cognizance. 
The CSAs are: DoD; DOE; NRC; ODNI; and DHS.
    CSO means an organizational unit to which the head of a CSA 
delegates authority to administer industrial security services on 
behalf of the CSA.
    CUI means information the USG creates or possesses, or that an 
entity creates or possesses for or on behalf of the USG, that a law, 
regulation, or USG-wide policy requires or permits an agency to handle 
using safeguarding or dissemination controls. However, CUI does not 
include classified information 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.
    Custodian means an individual who has possession of, or is 
otherwise charged with, the responsibility for safeguarding classified 
information.
    Cybersecurity means prevention of damage to, protection of, and 
restoration of computers, electronic communications systems, electronic 
communications services, wire communication, and electronic 
communication, including information contained therein, to ensure its 
availability, integrity, authentication, confidentiality, and 
nonrepudiation.
    Cyber incident means actions taken through the use of computer 
networks that result in an actual or potentially adverse effect on an 
information system or the information residing therein.
    Declassification means a date or event which coincides with the 
lapse of the information's national security sensitivity, as determined 
by the OCA. Declassification occurs when the OCA has determined that 
the classified information no longer requires, in the interest of 
national security, any degree of protection against unauthorized 
disclosure, and the information has had its classification designation 
removed or cancelled.
    Defense articles means those articles, services, and related 
technical data, including software, in tangible or intangible form, 
which are listed on the United States Munitions List (USML) of the 
International Traffic in Arms Regulations (ITAR), as modified or 
amended. Defense articles exempt from the scope of ITAR section 126.17 
are identified in Supplement No. 1 to Part 126 of the ITAR.
    Defense services means:
    (1) Furnishing assistance (including training) to foreign persons, 
whether in the United States or abroad, in the design, development, 
engineering, manufacture, production, assembly, testing, repair, 
maintenance, modification, operation, demilitarization, destruction, 
processing or use of defense articles;
    (2) Furnishing to foreign persons any controlled technical data, 
whether in the United States or abroad; or
    (3) Providing military training of foreign units and forces, 
regular and irregular, including formal or informal instruction of 
foreign persons in the United States or abroad or by correspondence 
courses, technical, educational, or information publications and media 
of all kinds, training aid, orientation, training exercise, and 
military advice.
    Derivative classification means the incorporating, paraphrasing, 
restating, or generating in new form information that is already 
classified, and marking the newly developed material consistent with 
the classification markings that apply to the source information. 
Derivative classification includes classifying information based on 
classification guidance. Duplicating or reproducing existing classified 
information is not derivative classification.
    Document means any recorded information, regardless of the nature 
of the medium, or the method or circumstances of recording.
    Downgrade means a determination by a declassification authority 
that information classified and safeguarded at a specified level will 
be classified and safeguarded at a lower level.
    Embedded system means an information system that performs or 
controls a function, either in whole or in part, as an integral element 
of a larger system or subsystem, such as, ground support equipment, 
flight simulators, engine test stands, or fire control systems.
    Empowered official is defined in 22 CFR part 120.
    Entity is a generic and comprehensive term which may include sole 
proprietorships, partnerships, corporations, limited liability 
companies, societies, associations, institutions, contractors, 
licensees, grantees, certificate holders, and other organizations 
usually established and operating to carry out a commercial, 
industrial, educational, or other legitimate business, enterprise, or 
undertaking, or parts of these organizations. It may reference an 
entire organization, a prime contractor, parent organization, a branch 
or division, another type of sub-element, a sub-contractor, subsidiary, 
or other subordinate or connected entity (referred to as ``sub-
entities'' when necessary to distinguish such entities from prime or 
parent entities). It may also reference a specific location or 
facility, or the headquarters or official business location of the 
organization, depending upon the organization's business structure, the 
access needs involved, and the responsible CSA's procedures. The term 
``entity'' as used in this rule refers to the particular entity to 
which an agency might release, or is releasing, classified information, 
whether that entity is a parent or

[[Page 83316]]

subordinate organization. The term ``entity'' in this rule includes 
contractors.
    Entity eligibility determination means an assessment by the CSA as 
to whether an entity is eligible for access to classified information 
of a certain level (and all lower levels). Entity eligibility 
determinations may be broad or limited to specific contracts, 
sponsoring agencies, or circumstances. A favorable entity eligibility 
determination results in eligibility to access classified information 
under the cognizance of the responsible CSA to the level approved. When 
the entity would be accessing categories of information such as RD or 
SCI for which the CSA for that information has set additional 
requirements, CSAs must also assess whether the entity is eligible for 
access to that category of information. Some CSAs refer to their 
favorable entity eligibility determinations as FCLs. However, a 
favorable entity eligibility determination for the DHS CCIPP is not 
equivalent to an FCL and does not meet the requirements for FCL 
reciprocity. A favorable entity eligibility determination does not 
convey authority to store classified information.
    Escort means a cleared person, designated by the contractor, who 
accompanies a shipment of classified material to its destination. The 
classified material does not remain in the personal possession of the 
escort but the conveyance in which the material is transported remains 
under the constant observation and control of the escort.
    Extent of protection means the designation (such as ``Complete'') 
used to describe the degree of alarm protection installed in an alarmed 
area.
    Facility means a plant, laboratory, office, college, university, or 
commercial structure with associated warehouses, storage areas, 
utilities, and components, that, when related by function and location, 
form an operating entity.
    FCL means an administrative determination that, from a security 
viewpoint, an entity is eligible for access to classified information 
of a certain level (and all lower levels) (e.g., a type of favorable 
entity eligibility determination used by some CSAs). An entity 
eligibility determination for the DHS CCIPP is not the equivalent of an 
FCL and does not meet the requirements for FCL reciprocity.
    FGI means information that is:
    (1) Provided to the United States by a foreign government or 
governments, an international organization of governments, or any 
element thereof with the expectation, expressed or implied, that the 
information, the source of the information, or both, are to be held in 
confidence; or
    (2) Produced by the United States pursuant to, or as a result of, a 
joint arrangement with a foreign government or governments, an 
international organization of governments, or any element thereof, 
requiring that the information, the arrangement, or both are to be held 
in confidence.
    Foreign interest means any foreign government, agency of a foreign 
government, or representative of a foreign government; any form of 
business enterprise or legal entity organized, chartered or 
incorporated under the laws of any country other than the United States 
or its territories, and any person who is not a citizen or national of 
the United States.
    Foreign national means any person who is not a citizen or national 
of the United States.
    Foreign person is defined in 31 CFR 800.224 for CFIUS purposes.
    FRD means classified information removed from the Restricted Data 
category upon a joint determination by the DOE and DoD that such 
information relates primarily to the military utilization of atomic 
weapons and that such information can be adequately safeguarded as 
classified defense information.
    Freight forwarder (transportation agent) means any agent or 
facility designated to receive, process, and transship U.S. material to 
foreign recipients. In the context of this rule, it means an agent or 
facility cleared specifically to perform these functions for the 
transfer of U.S. classified material to foreign recipients.
    GCA means an element of an agency that the agency head has 
designated and delegated broad authority regarding acquisition 
functions. A foreign government may also be a GCA.
    Governing board means an entity's board of directors, board of 
managers, board of trustees, or equivalent governing body.
    Grant means a legal instrument which, consistent with 31 U.S.C. 
6304, is used to enter into a relationship: (a) Of which the principal 
purpose is to transfer a thing of value to the recipient to carry out a 
public purpose of support or stimulation authorized by a law of the 
United States, rather than to acquire property or services for the 
USG's direct benefit or use; or, (b) In which substantial involvement 
is not expected between DoD and the recipient when carrying out the 
activity contemplated by the award. Throughout this rule, the term 
grant will include both the grant and cooperative agreement.
    Grantee means the entity that receives a grant or cooperative 
agreement.
    Hand carrier means a cleared employee, designated by the 
contractor, who occasionally hand carries classified material to its 
destination in connection with a classified visit or meeting. The 
classified material remains in the personal possession of the hand 
carrier except for authorized overnight storage.
    Home office means the headquarters of a multiple facility entity.
    Industrial security means that portion of information security 
concerned with the protection of classified information in the custody 
of U.S. industry.
    Information means any knowledge that can be communicated or 
documentary material, regardless of its physical form or 
characteristics.
    Information security means the system of policies, procedures, and 
requirements established pursuant to executive order, statute, or 
regulation to protect information that, if subjected to unauthorized 
disclosure, could reasonably be expected to cause damage to national 
security. The term also applies to policies, procedures, and 
requirements established to protect unclassified information that may 
be withheld from release to the public.
    Information system means an assembly of computer hardware, 
software, and firmware configured for the purpose of automating the 
functions of calculating, computing, sequencing, storing, retrieving, 
displaying, communicating, or otherwise manipulating data, information 
and textual material.
    Insider means cleared contractor personnel with authorized access 
to any USG or contractor resource, including personnel, facilities, 
information, equipment, networks, and systems.
    Insider threat means the likelihood, risk, or potential that an 
insider will use his or her authorized access, wittingly or 
unwittingly, to do harm to the national security of the United States. 
Insider threats may include harm to contractor or program information, 
to the extent that the information impacts the contractor or agency's 
obligations to protect classified NSI.
    Joint venture means an association of two or more persons or 
entities engaged in a single defined project with all parties 
contributing assets and efforts, and sharing in the management, profits 
and losses, in accordance with the terms of an agreement among the 
parties.
    KMP means an entity's senior management official (SMO), facility 
security officer (FSO), insider threat program senior official (ITPSO), 
and all other entity officials who either hold majority interest or 
stock in, or have

[[Page 83317]]

direct or indirect authority to influence or decide issues affecting 
the management or operations of, the entity or classified contract 
performance.
    L access authorization means an access determination that is 
granted by DOE or NRC based on a Tier 3 or successor background 
investigation as set forth in applicable national-level requirements 
and DOE directives. Within DOE and NRC, an ``L'' access authorization 
permits an individual who has an official ``need to know'' to access 
Confidential Restricted Data, Secret and Confidential Formerly 
Restricted Data, Secret and Confidential Transclassified Foreign 
Nuclear Information, or Secret and Confidential National Security 
Information, required in the performance of official duties. An ``L'' 
access authorization determination is required for individuals with a 
need to know outside of DOE, NRC, DoD, and in limited cases NASA, to 
access Confidential Restricted Data.
    LAA means security access authorization to CONFIDENTIAL or SECRET 
information granted to non-U.S. citizens requiring only limited access 
in the course of their regular duties.
    Material means any product or substance on or in which information 
is embodied.
    Matter means anything in physical form that contains or reveals 
classified information.
    Media means physical devices or writing surfaces including but not 
limited to, magnetic tapes, optical disks, magnetic disks, large-scale 
integration memory chips, and printouts (but not including display 
media) onto which information is recorded, stored, or printed within an 
information system.
    MFO means a legal entity (single proprietorship, partnership, 
association, trust, or corporation) composed of two or more entities 
(facilities).
    National of the United States means a person who owes permanent 
allegiance to the United States. All U.S. citizens are U.S. nationals; 
however, not all U.S. nationals are U.S. citizens (for example, persons 
born in American Samoa or Swains Island).
    NATO information means information bearing NATO markings, 
indicating the information is the property of NATO, access to which is 
limited to representatives of NATO and its member nations unless NATO 
authority has been obtained to release outside of NATO.
    NATO visits means visits by personnel representing a NATO entity 
and relating to NATO contracts and programs.
    Need-to-know means a determination made by an authorized holder of 
classified information that a prospective recipient has a requirement 
for access to, knowledge of, or possession of the classified 
information to perform tasks or services essential to the fulfillment 
of a classified contract or program.
    Network means a system of two or more information systems that can 
exchange data or information.
    NNPI is classified or unclassified information concerning the 
design, arrangement, development, manufacture, testing, operation, 
administration, training, maintenance, and repair of the propulsion 
plants of naval nuclear-powered ships and prototypes, including the 
associated shipboard and shore-based nuclear support facilities.
    Non-DoD executive branch agencies means the non-DoD agencies that 
have entered into agreements with DoD to receive NISP industrial 
security services from DoD. A list of these agencies is on the Defense 
Counterintelligence and Security Agency website at https://www.dcsa.mil.
    Non-Federal information system is defined in 32 CFR part 2002.
    NRTL means a private sector organizations recognized by the 
Occupational Safety and Health Administration to perform certification 
for certain products to ensure that they meet the requirements of both 
the construction and general industry Occupational Safety and Health 
Administration electrical standards. Each NRTL is recognized for a 
specific scope of test standards.
    NSI means information that has been determined pursuant to E.O. 
13526 or predecessor order to require protection against unauthorized 
disclosure and marked to indicate its classified status.
    NTIB means the industrial bases of the United States and Australia, 
Canada, and the United Kingdom.
    NTIB entity means a person that is a subsidiary located in the 
United States for which the ultimate parent entity and any intermediate 
parent entities of such subsidiary are located in a country that is 
part of the national technology and industrial base (as defined in 
section 2500 of title 10, United States Code); and that is subject to 
the foreign ownership, control, or influence requirements of the 
National Industrial Security Program.
    Nuclear weapon data means Restricted Data or Formerly Restricted 
Data concerning the design, manufacture, or utilization (including 
theory, development, storage, characteristics, performance and effects) 
of nuclear explosives, nuclear weapons or nuclear weapon components, 
including information incorporated in or related to nuclear explosive 
devices. Nuclear weapon data is matter in any combination of documents 
or material, regardless of physical form or characteristics.
    OCA means an individual authorized in writing, either by the 
President, the Vice President, or by agency heads or other officials 
designated by the President, to classify information in the first 
instance.
    Original classification means an initial determination that 
information requires, in the interest of national security, protection 
against unauthorized disclosure. Only USG officials who have been 
designated in writing may apply an original classification to 
information.
    Parent means an entity that owns at least a majority of another 
entity's voting securities.
    PCL means an administrative determination that an individual is 
eligible, from a security point of view, for access to classified 
information of the same or lower category as the level of the personnel 
clearance being granted.
    Prime contract means a contract awarded by a GCA to a contractor 
for a legitimate USG purpose.
    Prime contractor means the contractor who receives a prime contract 
from a GCA.
    Privileged user means a user that is authorized (and, therefore, 
trusted) to perform security-relevant functions that ordinary users are 
not authorized to perform.
    Proscribed information means:
    (1) TOP SECRET information;
    (2) COMSEC information or material, excluding controlled 
cryptographic items when unkeyed or utilized with unclassified keys.
    (3) RD;
    (4) SAP information; or.
    (5) SCI.
    Protective security service means a transportation protective 
service provided by a cleared commercial carrier qualified by DoD's 
Surface Deployment and Distribution Command to transport SECRET 
shipments.
    Q access authorization means an access determination that is 
granted by DOE or NRC based on a Tier 5 or successor background 
investigation as set forth in applicable national-level requirements 
and DOE directives. Within DOE and the NRC, a ``Q'' access 
authorization permits an individual with an official ``need to know'' 
to access Top Secret, Secret and Confidential Restricted Data, Formerly 
Restricted Data, Transclassified Foreign

[[Page 83318]]

Nuclear Information, National Security Information, or special nuclear 
material in Category I or II quantities, as required in the performance 
of official duties. A ``Q'' access authorization is required for 
individuals with a need to know outside of DOE, NRC, DoD, and in a 
limited case NASA, to access Top Secret and Secret Restricted Data.
    Remote terminal means a device communicating with an automated 
information system from a location that is not within the central 
computer facility.
    Restricted area means a controlled access area established to 
safeguard classified material that, because of its size or nature, 
cannot be adequately protected during working hours by the usual 
safeguards, but is capable of being stored during non-working hours in 
an approved repository or secured by other methods approved by the CSA.
    RD means all data concerning (1) design, manufacture, or 
utilization of atomic weapons; (2) the production of special nuclear 
material; or (3) the use of special nuclear material in the production 
of energy, but does not include data declassified or removed from the 
RD category pursuant to section 142 of the AEA.
    SAP means any program that is established to control access and 
distribution and to provide protection for particularly sensitive 
classified information beyond that normally required for TOP SECRET, 
SECRET, or CONFIDENTIAL information. A SAP can be created or continued 
only as authorized by a senior agency official delegated such authority 
pursuant to E.O. 13526.
    Schedule 13D means a form required by the Securities and Exchange 
Commission when a person or group of persons acquires beneficial 
ownership of more than 5% of a voting class of a company's equity 
securities registered under Section 12 of the ``Securities Exchange Act 
of 1934'' (available at: https://www.sec.gov/fast-answers/answerssched13htm.html).
    SCI means a subset of classified national intelligence concerning 
or derived from intelligence sources, methods or analytical processes 
that is required to be protected within formal access control systems 
established by the DNI.
    SECRET means the classification level applied to information, the 
unauthorized disclosure of which reasonably could be expected to cause 
serious damage to the national security that the OCA is able to 
identify or describe.
    Security in depth means a determination made by the CSA that a 
contractor's security program consists of layered and complementary 
security controls sufficient to deter and detect unauthorized entry and 
movement within the facility. Examples include, but are not limited to, 
use of perimeter fences, employee and visitor access controls, use of 
an Intrusion Detection System (IDS), random guard patrols throughout 
the facility during nonworking hours, closed circuit video monitoring, 
or other safeguards that mitigate the vulnerability of open storage 
areas without alarms and security storage cabinets during nonworking 
hours.
    Security violation means failure to comply with the policy and 
procedures established by this part that reasonably could result in the 
loss or compromise of classified information.
    Shipper means one who releases custody of material to a carrier for 
transportation to a consignee. (See also ``Consignor.'')
    SMO is the contractor's official responsible for the entity policy 
and strategy. The SMO is an entity employee occupying a position in the 
entity with ultimate authority over the facility's operations and the 
authority to direct actions necessary for the safeguarding of 
classified information in the facility. This includes the authority to 
direct actions necessary to safeguard classified information when the 
access to classified information by the facility's employees is solely 
at other contractor facilities or USG locations.
    Source document means an existing document that contains classified 
information that is incorporated, paraphrased, restated, or generated 
in new form into a new document.
    Standard practice procedures means a document prepared by a 
contractor that implements the applicable requirements of this rule for 
the contractor's operations and involvement with classified information 
at the contractor's facility.
    Subcontract means any contract entered into by a contractor to 
furnish supplies or services for performance of a prime contract or a 
subcontract. It includes a contract, subcontract, purchase order, lease 
agreement, service agreement, request for quotation (RFQ), request for 
proposal (RFP), invitation for bid (IFB), or other agreement or 
procurement action between contractors that requires or will require 
access to classified information to fulfill the performance 
requirements of a prime contract.
    Subcontractor means a supplier, distributor, vendor, or firm that 
enters into a contract with a prime contractor to furnish supplies or 
services to or for the prime contractor or another subcontractor. For 
the purposes of this rule, each subcontractor will be considered as a 
prime contractor in relation to its subcontractors.
    Subsidiary means an entity in which another entity owns at least a 
majority of its voting securities.
    System software means computer programs that control, monitor, or 
facilitate use of the information system; for example, operating 
systems, programming languages, communication, input-output controls, 
sorts, security packages, and other utility-type programs. Also 
includes off-the-shelf application packages obtained from manufacturers 
and commercial vendors, such as for word processing, spreadsheets, data 
base management, graphics, and computer-aided design.
    Technical data means:
    (1) Information, other than software, which is required for the 
design, development, production, manufacture, assembly, operation, 
repair, testing, maintenance or modification of defense articles. This 
includes information in the form of blueprints, drawings, photographs, 
plans, instructions or documentation.
    (2) Classified information relating to defense articles and defense 
services on the U.S. Munitions List and 600-series items controlled by 
the Commerce Control List.
    (3) Information covered by an invention secrecy order.
    (4) Software directly related to defense articles.
    TFNI means classified information concerning the nuclear energy 
programs of other nations (including subnational entities) removed from 
the RD category under section 142(e) of the AEA after the DOE and the 
Director of National Intelligence jointly determine that it is 
necessary to carry out intelligence-related activities under the 
provisions of the National Security Act of 1947, as amended, and that 
it can be adequately safeguarded as NSI instead. This includes 
information removed from the RD category by past joint determinations 
between DOE and the CIA. TFNI does not include information transferred 
to the United States under an Agreement for Cooperation under the 
Atomic Energy Act or any other agreement or treaty in which the United 
States agrees to protect classified information.
    TOP SECRET means the classification level applied to information, 
the unauthorized disclosure of which reasonably could be expected to 
cause exceptionally grave damage to the national security that the OCA 
is able to identify or describe.

[[Page 83319]]

    Transmission means sending information from one place to another by 
radio, microwave, laser, or other non-connective methods, as well as by 
cable, wire, or other connective medium. Transmission also includes 
movement involving the actual transfer of custody and responsibility 
for a document or other classified material from one authorized 
addressee to another.
    Transshipping activity means a government activity to which a 
carrier transfers custody of freight for reshipment by another carrier 
to the consignee.
    UK community consists of the UK Government entities with facilities 
and UK non-governmental facilities identified on the DDTC website 
(https://www.pmddtc.state.gov/) at the time of export.
    Unauthorized person means a person not authorized to have access to 
specific classified information in accordance with the requirements of 
this rule.
    United States means the 50 states and the District of Columbia.
    United States and its territorial areas means the 50 states, the 
District of Columbia, Puerto Rico, Guam, American Samoa, the Virgin 
Islands, Wake Island, Johnston Atoll, Kingman Reef, Palmyra Atoll, 
Baker Island, Howland Island, Jarvis Island, Midway Islands, Navassa 
Island, and Northern Mariana Islands.
    Upgrade means a determination that certain classified information, 
in the interest of national security, requires a higher degree of 
protection against unauthorized disclosure than currently provided, 
coupled with a change to the classification designation to reflect the 
higher degree.
    U.S. classified cryptographic information means a cryptographic key 
and authenticators that are classified and are designated as TOP SECRET 
CRYPTO or SECRET CRYPTO. This means all cryptographic media that 
embody, describe, or implement classified cryptographic logic, to 
include, but not limited to, full maintenance manuals, cryptographic 
descriptions, drawings of cryptographic logic, specifications 
describing a cryptographic logic, and cryptographic software, firmware, 
or repositories of such software such as magnetic media or optical 
disks.
    U.S. person means a United States citizen, an alien known by the 
intelligence agency concerned to be a permanent resident alien, an 
unincorporated association substantially composed of United States 
citizens or permanent resident aliens, or a corporation incorporated in 
the United States, except for a corporation directed and controlled by 
a foreign government or governments.
    Voting securities means any securities that presently entitle the 
owner or holder thereof to vote for the election of directors of the 
issuer or, with respect to unincorporated entities, individuals 
exercising similar functions.
    Working hours means the period of time when:
    (1) There is present in the specific area where classified material 
is located, a work force on a regularly scheduled shift, as contrasted 
with employees working within an area on an overtime basis outside of 
the scheduled work shift; and
    (2) The number of employees in the scheduled work force is 
sufficient in number and so positioned to be able to detect and 
challenge the presence of unauthorized personnel. This would, 
therefore, exclude janitors, maintenance personnel, and other 
individuals whose duties require movement throughout the facility.
    Working papers means documents or materials, regardless of the 
media, which are expected to be revised prior to the preparation of a 
finished product for dissemination or retention.


Sec.  117.4   Policy.

    E.O. 12829 established the NISP to serve as a single, integrated, 
cohesive industrial security program to protect classified information 
and preserve our Nation's economic and technological interests.
    (a) When contracts, licenses, agreements, and grants to contractors 
require access to classified information, national security requires 
that this information be safeguarded in a manner equivalent to its 
protection within the executive branch of the USG.
    (b) National security requires that the industrial security program 
promote the economic and technological interests of the United States. 
Redundant, overlapping, or unnecessary requirements impede those 
interests.


Sec.  117.5   Information collections.

    The information collection requirements are:
    (a) Standard Form (SF) 328 ``Certificate Pertaining to Foreign 
Interest'' (available at: https://www.gsa.gov/forms-library/certificate-pertaining-foreign-interests) in Sec.  117.8 and Sec.  
117.11, is assigned Office of Management and Budget (OMB) Control 
Number 0704-0579. The expiration date of this information collection is 
listed in the DoD Information Collections System at https://apps.sp.pentagon.mil/sites/dodiic/Pages/default.aspx.
    (b) NRC collection. ``Facility Security Clearance and Safeguarding 
of National Security Information and Restricted Data,'' is assigned OMB 
Control Number: 3150-0047. Under this collection, NRC-regulated 
facilities and other organizations are required to provide information 
and maintain records to ensure that an adequate level of protection is 
provided to NRC-classified information and material.
    (c) DOE collection. ``Security,'' a NISP CSA information 
collection, is assigned OMB Control Number: 1910-1800. This information 
collection, which includes facility security clearance information, is 
used by the DOE to exercise management, oversight, and control over its 
contractors' management and operation of DOE's Government-owned 
contractor-operated facilities, and over its offsite contractors. The 
contractor management, oversight, and control functions relate to the 
ways in which DOE contractors provide goods and services for DOE 
organizations and activities in accordance with the terms of their 
contracts and the applicable statutory, regulatory, and mission support 
requirements of the Department. Information collected from private 
industry and private individuals is used to protect national security 
and critical assets entrusted to the Department.
    (d) DoD collection. ``DoD Security Agreement,'' is assigned OMB 
Control Number: 0704-0194. ``National Industrial Security System,'' a 
CSA information collection, is assigned OMB Control Number: 0704-0571, 
and is a DoD information collection used to conduct its monitoring and 
oversight of contractors. Department of Defense ``Contract Security 
Classification Specification,'' (available at: https://www.esd.whs.mil/Portals/54/Documents/DD/forms/dd/dd0254.pdf and available at: https://www.dcsa.mil/is/nccs/), is assigned OMB Control Number 0704-0567 and 
used by both DoD and agencies which have an industrial security 
agreement with DoD. ``Defense Information System for Security,'' is 
assigned OMB Control Number: 0704-0573. Defense Information System for 
Security is a DoD automated system for personnel security, providing a 
common, comprehensive medium to record, document, and identify personal 
security actions within DoD including submitting adverse information, 
verification of security clearance status, requesting investigations, 
and supporting continuous evaluation activities. It requires personal 
data collection to facilitate the initiation, investigation and 
adjudication of information relevant to DoD security clearances and 
employment suitability

[[Page 83320]]

determinations for active duty military, civilian employees and 
contractors seeking such credentials. Joint Personnel Adjudicative 
System is assigned OMB Control Number: 0704-0496. Joint Personnel 
Adjudicative System is an information system which requires personal 
data collection to facilitate the initiation, investigation and 
adjudication of information relevant to DoD security clearances and 
employment suitability determinations for active duty military, 
civilian employees and contractors seeking such credentials.


Sec.  117.6   Responsibilities.

    (a) Under Secretary of Defense for Intelligence & Security 
(USD(I&S)). The USD(I&S), on behalf of the Secretary of Defense, and in 
accordance with E.O. 12829, 32 CFR part 2004, and DoDI 5220.22:
    (1) Carries out the direction in section 201 of E.O. 12829 that the 
Secretary of Defense issue and maintain this rule and changes to it. 
The USD(I&S) does so in consultation with all affected agencies (E.O. 
12829 section 201), with the concurrence of the Secretary of Energy, 
the Chairman of the NRC, the DNI, and the Secretary of Homeland 
Security (E.O.12829 section 201), and in consultation with the ISOO 
Director (E.O. 12829 section 102).
    (2) Acts as the CSA for DoD.
    (3) Provides policy and management of the NISP for non-DoD 
executive branch agencies who enter into inter-agency security 
agreements with DoD to provide industrial security services required 
when classified information is disclosed to contractors in accordance 
with E.O. 12829, as amended.
    (b) Director, DCSA. Under the authority, direction, and control of 
the USD(I&S), and in accordance with DoDI 5220.22 and DoD Directive 
(DoDD) 5105.42, ``Defense Security Service (DSS)'' \1\ (available at: 
https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/510542p.pdf?ver=2019-01-14-090012-283) the Director, DCSA:
---------------------------------------------------------------------------

    \1\ On June 20, 2020, the Secretary of Defense re-named the 
Defense Security Service (DSS) as the Defense Counterintelligence 
and Security Agency (DCSA), as required by Executive Oder 13467, 
section 2.6(b)(i) (as amended by Executive Order 13968, Apr. 24, 
2019, 84 FR 18125). Pursuant to Section 4 of E.O. 13968, references 
to DSS in DoD issuances should be deemed or construed to refer to 
DCSA.
---------------------------------------------------------------------------

    (1) Oversees and manages DCSA, which serves as the DoD CSO.
    (2) Administers the NISP as a separate program element on behalf of 
DoD GCAs and those agencies with agreements with DoD for security 
services.
    (3) Provides security oversight of the NISP as the DoD CSO on 
behalf of DoD components and those non-DoD executive branch agencies 
who enter into agreements with DoD as noted in paragraph (a)(3) of this 
section. The Director, DCSA, will be relieved of this oversight 
function for DoD special access programs (SAPs) when the Secretary of 
Defense or the Deputy Secretary of Defense approves a carve-out 
provision in accordance with DoDD 5205.07, ``DoD SAP Policy'' 
(available at: https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/520507p.pdf?ver=2020-02-04-142942-827).
    (c) Secretary of Energy. In addition to the responsibilities in 
paragraph (h) of this section, the Secretary of Energy:
    (1) Prescribes procedures for the portions of this rule pertaining 
to information classified under the AEA (i.e., RD, FRD, and TFNI), as 
nothing in the rule shall be construed to supersede the authority of 
the Secretary of Energy under the AEA.
    (2) Retains authority over access to information classified under 
the AEA.
    (3) Inspects and monitors contractor, licensee, certificate holder, 
and grantee programs and facilities that involve access to information 
classified under the AEA, as necessary.
    (d) Chairman of the NRC. In addition to the responsibilities in 
paragraph (h) of this section, the Chairman of the NRC:
    (1) Prescribes procedures for the portions of this rule that 
pertain to information under NRC programs classified under the AEA, 
other federal statutes, and executive orders.
    (2) Retains authority over access to information under NRC programs 
classified under the AEA, other federal statutes, and executive orders.
    (3) Inspects and monitors contractor, licensee, certificate holder, 
and grantee programs and facilities that involve access to information 
under NRC programs classified pursuant to the AEA, other federal 
statutes, and executive orders where appropriate.
    (e) DNI. In addition to the responsibilities in paragraph (h) of 
this section, the DNI:
    (1) Prescribes procedures for the portions of this rule pertaining 
to intelligence sources, methods, and activities, including, but not 
limited to, SCI.
    (2) Retains authority over access to intelligence sources, methods, 
and activities, including SCI.
    (3) Provides guidance on the security requirements for intelligence 
sources and methods of information, including, but not limited to, SCI.
    (f) Secretary of Homeland Security. In accordance with E.O. 12829, 
E.O. 13691, and in addition to the responsibilities in paragraph (h) of 
this section, the Secretary of Homeland Security:
    (1) Prescribes procedures for the portions of this rule that 
pertain to the CCIPP.
    (2) Retains authority over access to information under the CCIPP.
    (3) Inspects and monitors contractor, licensee, certificate holder, 
and grantee programs and facilities that involve access to CCIPP.
    (g) All the CSA heads. The CSA heads:
    (1) Oversee the security of classified contracts and activities 
under their purview.
    (2) Provide oversight of contractors under their security 
cognizance.
    (3) Minimize redundant and duplicative security review and audit 
activities of contractors, including such activities conducted at 
contractor locations where multiple CSAs have equities.
    (4) Execute appropriate intra-agency and inter-agency agreements to 
avoid redundant and duplicate reviews.
    (5) Designate one or more CSOs for security administration.
    (6) Designate subordinate officials, in accordance with governing 
policies, to act as the authorizing official. Authorizing officials 
will:
    (i) Assess and authorize contractors to process classified 
information on information systems.
    (ii) Conduct oversight of such information system processing and 
provide information system security guidelines in accordance with 
Federal information system security control policies, standards, and 
procedures. Minimize redundant and duplicative security review and 
audit activity of contractors, including such activity conducted at 
contractor locations where multiple CSAs have equities.
    (h) Heads of component agencies. In accordance with applicable CSA 
direction, the component agency heads:
    (1) Oversee compliance with procedures identified by the applicable 
CSA or designated CSO.
    (2) Provide oversight of contractor personnel visiting or working 
on USG installations.
    (3) Promptly apprise the CSO of information received or developed 
that could adversely affect a cleared contractor, licensee, or grantee, 
and their employees, to hold an FCL or PCL, or that otherwise raises 
substantive doubt about their ability to safeguard classified 
information entrusted to them.
    (4) Propose changes to this rule as deemed appropriate and provide 
them

[[Page 83321]]

to the applicable CSA for submission to the OUSD(I&S) 
Counterintelligence, Law Enforcement and Security Directorate.
    (i) Director, ISOO. The Director, ISOO:
    (1) Oversees the NSIP and agency compliance with it, in accordance 
with E.O. 12829.
    (2) Issues and maintains the NISP implementing directive (32 CFR 
part 2004), in accordance with E.O. 12829, to provide guidance to the 
CSAs and USG agencies under the NISP.
    (3) Chairs the NISP Policy Advisory Committee. Addresses complaints 
and suggestions from contractors, as detailed in the NISP Policy 
Advisory Committee bylaws.


Sec.  117.7   Procedures.

    (a) General. Contractors will protect all classified information 
that they are provided access to or that they possess. This 
responsibility applies at both contractor and USG locations.
    (b) Contractor Security Officials. Contractors will appoint 
security officials who are U.S. citizens, except in exceptional 
circumstances (see Sec.  117.9(m) and Sec.  117.11(e)).
    (1) Appointed security officials listed in paragraphs (b)(2), 
(b)(3), and (b)(4) of this section must:
    (i) Oversee the implementation of the requirements of this rule. 
Depending upon the size and complexity of the contractor's security 
operations, a single contractor employee may serve in more than one 
position.
    (ii) Undergo the same security training that is required for all 
other contractor employees pursuant to Sec.  117.12, in addition to 
their position specific training.
    (iii) Be designated in writing with their designation documented in 
accordance with CSA guidance.
    (iv) Undergo a personnel security investigation and national 
security eligibility determination for access to classified information 
at the level of the entity's eligibility determination for access to 
classified information (e.g., FCL level) and be on the KMP list for the 
cleared entity.
    (2) SMO. The SMO will:
    (i) Ensure the contractor maintains a system of security controls 
in accordance with the requirements of this rule.
    (ii) Appoint a contractor employee or employees, in writing, as the 
FSO and appoint the same employee or a different employee as the ITPSO. 
The SMO may appoint a single employee for both roles or may appoint one 
employee as the FSO and a different employee as the ITPSO.
    (iii) Remain fully informed of the facility's classified 
operations.
    (iv) Make decisions based on classified threat reporting and their 
thorough knowledge, understanding, and appreciation of the threat 
information and the potential impacts caused by a loss of classified 
information.
    (v) Retain accountability for the management and operations of the 
facility without delegating that accountability to a subordinate 
manager.
    (3) FSO. The FSO will:
    (i) Supervise and direct security measures necessary for 
implementing the applicable requirements of this rule and the related 
USG security requirements to ensure the protection of classified 
information.
    (ii) Complete security training pursuant to Sec.  117.12 and as 
deemed appropriate by the CSA.
    (4) ITPSO. The ITPSO will establish and execute an insider threat 
program.
    (i) If the appointed ITPSO is not also the FSO, the ITPSO will 
ensure that the FSO is an integral member of the contractor's insider 
threat program.
    (ii) The ITPSO will complete training pursuant to Sec.  117.12.
    (iii) An entity family may choose to establish an entity family-
wide insider threat program with one senior official appointed, in 
writing, to establish, and execute the program as the ITPSO. Each 
cleared entity using the entity-wide ITPSO must separately appoint that 
person as its ITPSO for that facility. The ITPSO will provide an 
implementation plan to the CSA for executing the insider threat program 
across the entity family.
    (5) ISSM. Contractors who are, or will be, processing classified 
information on an information system located at the contractor facility 
will appoint an employee to serve as the ISSM. The ISSM must be 
eligible for access to classified information to the highest level of 
the information processed on the system(s) under their responsibility. 
The contractor will ensure that the ISSM is adequately trained and 
possesses technical competence commensurate with the complexity of the 
contractor's classified information system. The contractor will notify 
the applicable CSA if there is a change in the ISSM. The ISSM will 
oversee development, implementation, and evaluation of the contractor's 
classified information system program. ISSM responsibilities are in 
Sec.  117.18.
    (6) Employees performing security duties. Those employees whose 
official duties include performance of NISP-related security functions 
will complete security training tailored to the security functions 
performed. This training requirement also applies to consultants whose 
official duties include security functions.
    (c) Other KMP. In addition to the SMO, the FSO, and the ITPSO, the 
contractor will include on the KMP list, subject to CSA concurrence, 
any other officials who either hold majority interest or stock in the 
entity, or who have direct or indirect authority to influence or decide 
issues affecting the management or operations of the contractor or 
issues affecting classified contract performance. The CSA may either:
    (1) Require these KMP to be determined to be eligible for access to 
classified information as a requirement for the entity's eligibility 
determination or;
    (2) Allow the entity to formally exclude these KMP from access to 
classified information. The entity's governing board will affirm the 
exclusion by issuing a formal action (see table), and provide a copy of 
the exclusion action to the CSA. The entity's governing board will 
document this exclusion action.

           Table 1 to Paragraph (c)(2)--Exclusion Resolutions
------------------------------------------------------------------------
     Type of affirmation        Language to be used in exclusion action
------------------------------------------------------------------------
Affirmation for Exclusion      [Insert name and address of entity or
 from Access to Classified      name and position of officer, director,
 Information.                   partner, or similar entity official or
                                officials] will not require, will not
                                have, and can be effectively and
                                formally excluded from, access to all
                                classified information disclosed to the
                                entity and does not occupy a position
                                that would enable them to adversely
                                affect the organization's policies or
                                practices in the performance of
                                classified contracts.

[[Page 83322]]

 
Affirmation for Exclusion      [Insert name and address of entity or
 from Higher-level Classified   name and position of officer, director,
 Information.                   partner, or similar entity official or
                                officials] will not require, will not
                                have, and can be effectively and
                                formally excluded from access to [insert
                                SECRET or TOP SECRET] classified
                                information and does not occupy a
                                position that would enable them to
                                adversely affect the organization's
                                policies or practices in the performance
                                of [insert SECRET or TOP SECRET]
                                classified contracts.
------------------------------------------------------------------------

    (d) Insider Threat Program. Pursuant to this rule and CSA provided 
guidance to supplement unique CSA mission requirements, the contractor 
will establish and maintain an insider threat program to gather, 
integrate, and report relevant and available information indicative of 
a potential or actual insider threat, consistent with E.O. 13587 and 
Presidential Memorandum ``National Insider Threat Policy and Minimum 
Standards for Executive Branch Insider Threat Programs.''
    (e) Standard practice procedures. The contractor will implement all 
applicable provisions of this rule at each of its cleared facility 
locations. The contractor will prepare written procedures when the CSA 
determines them to be necessary to reasonably exclude the possibility 
of loss or compromise of classified information, and in accordance with 
additional CSA-provided guidance, as applicable.
    (f) Cooperation with Federal agencies. Contractors will cooperate 
with Federal agencies and their officially credentialed USG or 
contractor representatives during official reviews, investigations 
concerning the protection of classified information, or personnel 
security investigations of present or former employees and others 
(e.g., consultants or visitors). At a minimum, cooperation includes:
    (1) Providing suitable arrangements within the facility for 
conducting private interviews with employees during normal working 
hours;
    (2) Providing, when requested, relevant employment or personnel 
files, security records, supervisory files, records pertinent to 
insider threat (e.g., security, cybersecurity, and human resources) and 
any other records pertaining to an individual under investigation that 
are, in the possession or control of the contractor or the contractor's 
representatives or located in the contractor's offices;
    (3) Providing access to employment and security records that are 
located at an offsite location; and
    (4) Rendering other necessary assistance.
    (g) Security training and briefings. Contractors will advise all 
cleared employees, including those assigned to USG locations or 
operations outside the United States, of their individual 
responsibility for classification management and for safeguarding 
classified information. Contractors will provide security training to 
cleared employees consisting of initial briefings, refresher briefings, 
and debriefings in accordance with Sec.  117.12.
    (h) Security reviews--(1) USG reviews. The applicable CSA will 
conduct recurring oversight reviews of contractors' NISP security 
programs to verify that the contractor is protecting classified 
information and implementing the provisions of this rule. The 
contractor's participation in the security review is required for 
maintaining the entity's eligibility for access to classified 
information.
    (i) Review cycle. The CSA will determine the scope and frequency of 
security reviews, which may be increased or decreased consistent with 
risk management principles.
    (ii) Procedures. (A) The CSA will generally provide notice to the 
contractor of a forthcoming review, but may also conduct unannounced 
reviews at its discretion. The CSA security review may subject 
contractor employees and all areas and receptacles under the control of 
the contractor to examination.
    (B) The CSA will make every effort to avoid unnecessary intrusion 
into the personal effects of contractor personnel.
    (C) The CSA may conduct physical examinations of the interior space 
of containers not authorized to secure classified material. Such 
examinations will always be accomplished in the presence of a 
representative of the contractor.
    (iii) Controlled unclassified information (CUI). 32 CFR part 2002 
requires agencies to implement CUI requirements, but compliance with 
CUI requirements is outside the scope of the NISP and this rule. 
However, CSAs may conduct CUI assessments in conjunction with NISP USG 
reviews when:
    (A) The contractor is a participant in the NISP based on a 
requirement to access classified information;
    (B) A classified contract under the CSA's cognizance includes 
provisions for access to, or protection or handling of, CUI; and
    (C) The CSA has provided the contractor with specific guidance 
regarding the assessment criteria and methodology it will use for 
overseeing protection of the CUI being accessed, stored or transmitted 
by the contractor as part of the classified contract.
    (2) Contractor reviews. Contractors will review their security 
programs on a continuing basis and conduct a formal self-inspection at 
least annually and at intervals consistent with risk management 
principles.
    (i) Self-inspections will include the review of the classified 
activity, classified information, classified information systems, 
conditions of the overall security program, and the insider threat 
program. They will have sufficient scope, depth, and frequency, and 
will have management support during the self-inspection and during 
remedial actions taken as a result of the self-inspection. Self-
inspections will include the review of samples representing the 
contractor's derivative classification actions, as applicable.
    (ii) The contractor will prepare a formal report describing the 
self-inspection, its findings, and its resolution of issues discovered 
during the self-inspection. The contractor will retain the formal 
report for CSA review until after the next CSA security review is 
completed.
    (iii) The SMO at the cleared facility will annually certify to the 
CSA, in writing, that a self-inspection has been conducted, that other 
KMP have been briefed on the results of the self-inspection, that 
appropriate corrective actions have been taken, and that management 
fully supports the security program at the cleared facility in the 
manner as described in the certification.
    (i) Contractors working at USG locations. Contractor employees 
performing work within the confines of a USG facility will safeguard 
classified information according to the procedures of the host 
installation or agency.
    (j) Hotlines. Federal agencies maintain hotlines to provide an 
unconstrained avenue for USG and contractor employees to report, 
without fear of reprisal, known or suspected instances

[[Page 83323]]

of security irregularities and infractions concerning contracts, 
programs, or projects. These hotlines do not supplant the contractor's 
responsibility to facilitate reporting and timely investigations of 
security issues concerning its operations or personnel. Contractor 
personnel are encouraged to report information through established 
contractor channels. The hotline may be used as an alternate means to 
report this type of information. Contractors will inform all personnel 
that hotlines may be used for reporting issues of national security 
significance. Each CSA will post hotline information and telephone 
numbers on their websites for contractor access.
    (k) Agency agreements. 32 CFR part 2004 and E.O. 12829 require non-
CSA agency heads to enter into agreements with the Secretary of Defense 
as the Executive Agent for the NISP to provide industrial security 
services. The Secretary of Defense may also enter into agreements to 
provide services for other CSA's in accordance with 32 CFR part 2004 
and E.O. 12829. Agency agreements establish the terms of the Secretary 
of Defense's (or the Secretary of Defense's designee's) 
responsibilities when acting as the CSA on behalf of these agency 
heads. The list of agencies for which the Secretary of Defense has 
agreed to render industrial security services is on the DCSA website at 
https://www.dcsa.mil.
    (l) Security cognizance. The CSA will inform contractors if 
oversight has been delegated to a CSO.
    (m) Rule interpretations. Contractors will forward requests for 
interpretations of this rule to their CSA in accordance with their CSA-
provided guidance to supplement unique CSA mission requirements.
    (n) Waivers to this rule. Contractors will submit any requests to 
waive provisions of this rule in accordance with CSA procedures, which 
may include periodic review of approved waivers. When submitting a 
request for a waiver, the contractor will, in writing, explain why it 
is impractical or unreasonable for the contractor to comply with the 
requirement it is asking to waive, identify alternative measures as 
prescribed by this rule, and include a proposed duration for the 
waiver. The contractor cannot implement a waiver unless the waiver is 
approved by the applicable CSA.
    (o) Complaints and suggestions. Contractors may forward NISP 
administration complaints and suggestions to the Director of ISOO. 
However, contractors are encouraged to forward NISP administration 
complaints and suggestions to their respective CSA prior to forwarding 
to the ISOO.

                     Table 2 to Paragraph (o) NISP Administration Complaints and Suggestions
----------------------------------------------------------------------------------------------------------------
            Addressee               Mailing address    Telephone No.      Facsimile           Email address
----------------------------------------------------------------------------------------------------------------
Director, ISOO, National          700 Pennsylvania       202-357-5250     202-357-5907  [email protected].
 Archives and Records              Avenue NW, Room
 Administration.                   100, Washington,
                                   DC 20408-0001.
----------------------------------------------------------------------------------------------------------------

Sec.  117.8   Reporting requirements.

    (a) General. Pursuant to this rule, Security Executive Agent 
Directive (SEAD) 3, (available at: https://www.dni.gov/files/NCSC/documents/Regulations/SEAD-3-Reporting-U.pdf) and CSA-provided guidance 
to supplement unique CSA mission requirements, contractors and their 
cleared employees are required to:
    (1) Report certain events that may have an effect on the status of 
the entity's or an employee's eligibility for access to classified 
information; report events that indicate an insider threat to 
classified information or to employees with access to classified 
information; report events that affect proper safeguarding of 
classified information; and report events that indicate classified 
information has been, or is suspected to be, lost or compromised.
    (2) Establish internal procedures to ensure employees with 
eligibility for access to classified information are aware of their 
responsibilities for reporting pertinent information to the FSO. The 
contractor will:
    (i) Provide reports to the FBI, or other Federal authorities as 
required by this rule, the terms of a classified contract or other 
agreement, and by U.S. law.
    (ii) Provide complete information to enable the CSA to ascertain 
whether classified information is adequately protected.
    (iii) Submit reports to the FBI, the CSA, or the ISOO as specified 
in paragraphs (b), (c), and (g) of this section.
    (3) Appropriately mark reports containing classified information in 
accordance with Sec.  117.14.
    (4) Clearly mark a report containing information submitted in 
confidence as containing that information. When reports contain 
information pertaining to an individual, 5 U.S.C. 552a (also known as 
and referred to in this rule as ``The Privacy Act of 1974, as 
amended,'') permits the withholding of certain information from the 
individual in accordance with specific exemptions, which include 
authority to withhold release of information to the extent that the 
disclosure of the information would reveal the identity of a source who 
furnished the information to the USG under an express promise that the 
identity of the source would be held in confidence.
    (b) Reports to be submitted to the FBI. The contractor will 
promptly submit a written report to the nearest field office of the FBI 
regarding information coming to the contractor's attention concerning 
actual, probable, or possible espionage, sabotage, terrorism, or 
subversive activities at any of its locations.
    (1) An initial report may be made by phone, but it must be followed 
up in writing (e.g., email or formal correspondence), regardless of the 
FBI's disposition of the report.
    (2) The contractor will promptly notify the CSA when they make a 
report to the FBI and provide the CSA a copy of the written report.
    (c) Reports to be submitted to the CSA.--(1) Adverse information. 
Contractors are required to report adverse information coming to their 
attention concerning any of their employees determined to be eligible 
for access to classified information, in accordance with this rule, 
SEAD 3, and CSA-provided guidance. Contractors will not make reports 
based on rumor or innuendo.
    (i) The termination of employment of an employee does not negate 
the requirement to submit this report. If a contractor employee is 
assigned to a USG location, the contractor will furnish a copy of the 
report and its final disposition to the USG security point of contact 
for that location.
    (ii) Pursuant to Becker v. Philco, 372 F.2d 771 (4th Cir. 1967), 
cert. denied 389 U.S. 979 (1967), and subsequent cases, a contractor 
may not be liable for defamation of an employee because of 
communications that are required of and made by a contractor to an 
agency of the United States under the requirements of this rule or 
under the terms of applicable contracts.

[[Page 83324]]

    (2) Suspicious contacts. Contractors will report information 
pertaining to suspicious contacts with employees determined to be 
eligible for access to classified information, and pertaining to 
efforts to obtain illegal or unauthorized access to the contractor's 
cleared facility by any means, including:
    (i) Efforts by any individual, regardless of nationality, to obtain 
illegal or unauthorized access to classified information.
    (ii) Efforts by any individual, regardless of nationality, to 
elicit information from an employee determined eligible for access to 
classified information, and any contact which suggests the employee may 
be the target of an attempted exploitation by an intelligence service 
of another country. See SEAD 3 for specific information to be reported.
    (3) Change in status of employees determined eligible for access to 
classified information. Contractors will report by means of the CSA-
designated reporting mechanism information pertaining to changes in 
status of employees determined eligible for access to classified 
information such as:
    (i) Death.
    (ii) Change in name.
    (iii) Termination of employment.
    (iv) Change in citizenship.
    (4) Citizenship by naturalization. Contractors will report if a 
non-U.S. citizen employee granted an LAA becomes a citizen through 
naturalization. The report will include:
    (i) City, county, and state where naturalized.
    (ii) Date naturalized.
    (iii) Court.
    (iv) Certificate number.
    (5) Employees desiring not to be processed for a national security 
eligibility determination or not to perform classified work. 
Contractors will report instances when an employee no longer wishes to 
be processed for a determination of eligibility for access to 
classified information or to continue having access to classified 
information, and the reason for that request.
    (6) Classified information nondisclosure agreement (NDA). 
Contractors will report the refusal by an employee to sign the SF 312, 
``Classified Information Nondisclosure Agreement,'' (available at: 
https://www.gsa.gov/cdnstatic/SF312-13.pdf?forceDownload=1) or other 
approved NDA.
    (7) Changed conditions affecting the contractor's eligibility for 
access to classified information. Contractors are required to report 
certain events that affect the status of the entity eligibility 
determination (e.g., FCL), affect the status of an employee's PCL, may 
indicate an employee poses an insider threat, affect the proper 
safeguarding of classified information, or indicate classified 
information has been lost or compromised, including:
    (i) Change of ownership or control of the contractor, including 
stock transfers that affect control of the entity.
    (ii) Change of operating name or address of the entity or any of 
its locations determined eligible for access to classified information.
    (iii) Any change to the information previously submitted for KMP 
including, as appropriate, the names of the individuals the contractor 
is replacing. A new complete KMP listing need be submitted only at the 
discretion of the contractor or when requested by the CSA. The 
contractor will provide a statement indicating:
    (A) Whether the new KMP are cleared for access to classified 
information, and if cleared, to what level they are cleared and when 
they were cleared, their dates and places of birth, social security 
numbers, and citizenship.
    (B) Whether they have been excluded from access to classified 
information in accordance with Sec.  117.7(b)(5)(ii).
    (C) Whether they have been temporarily excluded from access to 
classified information pending the determination of eligibility for 
access to classified information in accordance with Sec.  117.9(g).
    (iv) Any action to terminate business or operations for any reason, 
imminent adjudication or reorganization in bankruptcy, or any change 
that might affect the validity of the contractor's eligibility for 
access to classified information.
    (v) Any material change concerning the information previously 
reported concerning foreign ownership, control, or influence (FOCI). 
This report will be made by the submission of an updated SF 328, 
``Certificate Pertaining to Foreign Interests,'' in accordance with 
CSA-provided guidance. When submitting this information, it is not 
necessary to repeat answers that have not changed. When entering into 
discussion, consultations, or agreements that may reasonably lead to 
effective ownership or control by a foreign interest, the contractor 
will report the details to the CSA in writing. If the contractor has 
received a Schedule 13D from the investor, the contractor will forward 
a copy with the report.
    (8) Changes in storage capability. The contractor will report any 
changes in their storage requirement or capability to safeguard 
classified material.
    (9) Inability to safeguard classified material. The contractor will 
report any emergency situation that renders their location incapable of 
safeguarding classified material as soon as possible.
    (10) Unsatisfactory conditions of a prime or subcontractors. (i) 
Prime contractors, including subcontractors who have in turn 
subcontracted work, will report any information coming to their 
attention that may indicate that classified information cannot be 
adequately protected by a subcontractor, or other circumstances that 
may impact the validity of the eligibility for access to classified 
information of any subcontractors.
    (ii) Subcontractors will report any information coming to their 
attention that may indicate that classified information cannot be 
adequately protected or other circumstances that may impact the 
validity of the eligibility for access to classified information of 
their prime contractor.
    (11) Dispositioned material previously terminated. The contractor 
will make a report when the location or disposition of material 
previously terminated from accountability is subsequently discovered 
and brought back into accountability.
    (12) Foreign classified contracts. Contractors will report any pre-
contract negotiation or award not placed through a CSA or U.S. GCA that 
involves, or may involve:
    (i) The release or disclosure of U.S. classified information to a 
foreign interest.
    (ii) Access to classified information furnished by a foreign 
interest.
    (13) Reporting of improper receipt of foreign government material. 
The contractor will report to the CSA the receipt of classified 
material from foreign interests that is not received through USG 
channels.
    (14) Reporting by subcontractor. Subcontractors will also notify 
their prime contractors if they make any reports to their CSA in 
accordance with the provisions of paragraphs (c)(7) through (c)(10) of 
this section.
    (d) Reports of loss, compromise, or suspected compromise. The 
contractor will report any loss, compromise, or suspected compromise of 
classified information, U.S. or foreign, to the CSA in accordance with 
paragraph (d)(1) through (d)(3) of this section. Each CSA may provide 
additional guidance concerning the reporting time period. If the 
contractor is located on a USG facility, the contractor will submit the 
report to the CSA and to the head of the USG facility.
    (1) Preliminary inquiry. Immediately upon receipt of a security 
violation report involving classified information, the contractor will 
initiate a preliminary

[[Page 83325]]

inquiry to ascertain all of the circumstances surrounding the presumed 
loss, compromise, or suspected compromise, including validation of the 
classification of the information.
    (2) Initial report. If the contractor's preliminary inquiry 
confirms that a loss, compromise, or suspected compromise of any 
classified information occurred, the contractor will promptly submit an 
initial report of the incident unless otherwise notified by the CSA.
    (3) Final report. When the investigation has been completed, the 
contractor will submit a final report to the CSA which, in turn, will 
follow CSA procedures to notify the applicable GCA. The report will 
include:
    (i) Material and relevant information that was not included in the 
initial report.
    (ii) The full name and social security number of the individual or 
individuals primarily responsible for the incident, including a record 
of prior loss, compromise, or suspected compromise for which the 
individual had been determined responsible.
    (iii) A statement of the corrective action taken to preclude a 
recurrence.
    (iv) Disciplinary action taken against the responsible individual 
or individuals, if any.
    (v) Specific reasons for reaching the conclusion that loss, 
compromise, or suspected compromise occurred or did not occur.
    (4) Employee information in compromise cases. When requested by the 
CSA, the contractor will report information concerning an employee or 
other individual, determined to be responsible for the incident, when 
the information is needed by the CSA for the loss, compromise, or 
suspected compromise of classified information.
    (e) Individual culpability reports. Contractors will establish and 
enforce policies that provide for appropriate administrative or 
disciplinary actions taken against employees who violate the 
requirements of this rule.
    (1) Contractors will establish a system to manage and track 
information regarding employees with eligibility for access to 
classified information who violate the requirements of this rule in 
order to be able to identify patterns of negligence or carelessness, or 
to identify a potential insider threat.
    (2) Contractors will establish and apply a graduated scale of 
administrative and disciplinary actions in the event of employee 
security violations or negligence in the handling of classified 
information. CSAs may provide guidance to contractors with examples of 
administrative or disciplinary actions that the contractor may consider 
implementing in the event of employee violations or negligence. 
Contractors are required to submit a final report to the CSA with the 
findings of an employee's culpability and what corrective actions were 
taken.
    (3) Contractors will include a statement of the administrative or 
disciplinary actions taken against an employee in a final report to the 
CSA. A statement must be included when the individual responsible for a 
security violation can be determined. Contractors' final reports will 
indicate whether one or more of the following factors are evident:
    (i) Involved a deliberate disregard of security requirements.
    (ii) Involved negligence in the handling of classified material.
    (iii) Was not deliberate in nature but reflects a recent or 
recurring pattern of questionable judgment, irresponsibility, 
negligence, or carelessness.
    (f) CDC cyber incident reports. This paragraph applies only to CDCs 
and sets forth reporting requirements pursuant to 10 U.S.C. 391 and 393 
and Defense Federal Acquisition Regulation Supplement Clause 252.204-
7012. The reporting requirements of paragraph (f) of this section are 
in addition to the requirements in paragraphs (b) and (d) of this 
section, which can include certain activities occurring on unclassified 
information systems. DoD will provide detailed reporting instructions 
for contractors affected by these references via industrial security 
letter in accordance with DoDI 5220.22.
    (1) Reports to be submitted to the designated DoD CSO. CDCs will 
immediately report to the DoD CSO, any cyber incident on a classified 
covered information system that has been approved by that CSO to 
process classified information.
    (i) At a minimum, the report will include:
    (A) A description of the technique or method used in the cyber 
incident.
    (B) A sample of the malicious software involved in the cyber 
incident, if discovered and isolated by the CDC,
    (C) A summary of information in connection with any DoD program 
that has been potentially compromised due to the cyber incident.
    (ii) Information that is reported by the CDC (or derived from 
information reported by the CDC) will be safeguarded, used, and 
disseminated in a manner consistent with DoD procedures governing the 
handling of such information pursuant to Public Law 112-239 and 10 
U.S.C. 391.
    (iii) Reports involving classified foreign government information 
will be reported to the Director, Defense Technology Security 
Administration (DoD).
    (2) Reports on non-Federal information systems not authorized to 
process classified information. CDCs will report cyber incidents on 
non-Federal, unclassified information systems in accordance with 
contract requirements.
    (3) Access to equipment and information by DoD personnel. (i) The 
CDC will allow, upon request by DoD personnel, access by DoD personnel 
to additional equipment or information of the CDC that is necessary to 
conduct forensic analysis of reportable cyber incidents in addition to 
any analysis conducted by the CDC.
    (ii) The CDC is only required to provide DoD access to equipment or 
information to determine whether information created by or for DoD in 
connection with any DoD program was successfully exfiltrated from a 
CDC's network or information system, and what information was 
exfiltrated from the CDC's network or information system.
    (g) Reports to ISOO. (1) Contractors will report instances of 
redundant or duplicative security review and audit activity by the CSAs 
to the Director, ISOO, for resolution.
    (2) Contractors will report instances of CSAs duplicating 
processing to determine an entity's eligibility for access to 
classified information when there is an existing determination of an 
entity's eligibility for access to classified information by another 
CSA.


Sec.  117.9   Entity eligibility determination for access to classified 
information.

    (a) General. This section applies to all contractors with entity 
eligibility determinations, except as provided in Sec.  117.22 for 
entity eligibility determinations for participation in the CCIPP under 
the cognizance of DHS.
    (1) Prior to the entity being granted an entity eligibility 
determination for access to classified information, the responsible CSA 
must have determined that:
    (i) The entity is eligible for access to classified information to 
meet a legitimate USG or foreign government need.
    (ii) Access is consistent with national security interests.
    (2) The CSA will provide guidance on processing entity eligibility 
determinations for entity access to classified information.
    (3) The determination of entity eligibility for access is separate 
from the determination of a classified

[[Page 83326]]

information safeguarding capability (see Sec.  117.15).
    (4) Neither the contractor nor its employees will be permitted 
access to classified information until the CSA has made an entity 
eligibility determination (e.g., issued an FCL).
    (5) The requirement for a favorable entity eligibility 
determination (also referred to in some instances as an FCL) for a 
prime contractor includes instances where all access to classified 
information will be limited to subcontractors. A prime contractor must 
have a favorable entity eligibility determination at the same or higher 
classification level as its subcontractors.
    (6) Contractors are eligible for storage of classified material in 
connection with a legitimate USG or foreign government requirement if 
they have a favorable entity eligibility determination and a classified 
information safeguarding capability approved by the CSA.
    (7) An entity eligibility determination is valid for access to 
classified information at the same or lower classification level.
    (8) Each CSA will maintain a record of entity eligibility 
determinations made by that CSA.
    (9) A contractor will not use its favorable entity eligibility 
determination for advertising or promotional purposes. This does not 
prohibit the contractor from advertising employee positions that 
require a PCL in connection with the position.
    (10) A contractor or prospective contractor cannot apply for its 
own entity eligibility determination. A GCA or a currently cleared 
contractor may sponsor an entity for an entity eligibility 
determination at any point during the contracting or agreement life 
cycle at which the entity must have access to classified information to 
participate (including the solicitation or competition phase).
    (b) Reciprocity. If an entity has an appropriate, final entity 
eligibility determination, a CSA will not duplicate the entity 
eligibility determination processes performed by another CSA. If a CSA 
cannot acknowledge an entity eligibility determination to another CSA, 
the involved entity may be subject to duplicate processing in 
accordance with 32 CFR part 2004.
    (c) Eligibility requirements. To be eligible for an initial entity 
eligibility determination or to maintain an existing entity eligibility 
determination, the entity must:
    (1) Need access to classified information in connection with a 
legitimate USG or foreign government requirement, and access must be 
consistent with U.S. national security interests as determined by the 
CSA.
    (2) Be organized and existing:
    (i) Under the laws of the United States, one of the fifty States, 
the District of Columbia, or an organized U.S. territory (Guam, 
Commonwealth of the Northern Marianas Islands, Commonwealth of Puerto 
Rico, and the U.S. Virgin Islands); or
    (ii) Under the laws of an American Indian/Alaska Native tribal 
entity if:
    (A) The American Indian or Alaska Native tribe under whose laws the 
entity is chartered has been formally acknowledged by the Assistant 
Secretary--Indian Affairs, of the U.S. Department of the Interior.
    (B) The contractor is organized and continues to exist, during the 
period of the eligibility under a tribal statue or code, or pursuant to 
a resolution of an authorized tribal legislative body.
    (C) The contractor has submitted or will submit records such as a 
charter, certificate of organization, or other applicable tribal 
documents and statute or code provisions governing the formation and 
continuation of the entity, for CSA determination that the entity is 
tribally chartered.
    (3) Be located in the United States or its territorial areas.
    (4) Have a record of integrity and lawful conduct in its business 
dealings.
    (5) Have a SMO, FSO, and ITPSO who have and who maintain 
eligibility for access to classified information and are not excluded 
from participating in USG contracts or agreements in accordance with 
Sec.  117.7(b)(1) through Sec.  117.7(b)(3).
    (6) Not be under FOCI to such a degree that a favorable entity 
eligibility determination for access to classified information would be 
inconsistent with the national interest, in the judgment of the CSA.
    (7) Maintain sufficient authorized and cleared employees to manage 
and implement the requirements of this rule in accordance with CSA 
guidance.
    (8) Not pose an unacceptable risk to national security interests, 
in the judgment of the CSA.
    (9) Meet all requirements governing access to classified 
information established by the CSA or the relevant authorizing law, 
regulation, or government-wide policy.
    (d) Processing the entity eligibility determination. The CSA will 
assess the entity's eligibility for access to classified information 
based on its business structure.
    (1) At a minimum, the entity will:
    (i) Provide CSA-requested documentation within timelines 
established by the CSA.
    (ii) Have and identify the SMO.
    (iii) Appoint a U.S. citizen employee as the FSO.
    (iv) Appoint a U.S. citizen employee as the ITPSO.
    (v) Submit requests for personnel security investigations for the 
SMO, FSO, ITPSO, and those other KMP identified by the CSA as requiring 
eligibility for access to classified information in connection with the 
entity eligibility.
    (2) If the entity is under FOCI with a special security agreement 
(SSA) as the proposed method of FOCI mitigation, and the GCA requires 
the entity to have access to proscribed information, the CSA must 
consider the measures listed in Sec.  117.11(d) as part of the entity 
eligibility determination.
    (e) Other personnel eligibility determinations concurrent with the 
entity eligibility determination. (1) Contractors may designate 
employees who require access to classified information during the 
negotiation of a contract or the preparation of a bid or quotation 
pertaining to a prime contract or a subcontract. These designated 
employees will be processed for a determination of eligibility for 
access to classified information (i.e., PCL eligibility) concurrent 
with entity's entity eligibility determination.
    (2) The entity eligibility determination is not dependent on the 
PCL eligibility for access to classified information by such employees, 
provided none of these employees are among those listed in paragraph 
(c)(5) of this section. Even so, the employees will not be granted 
access to classified information until both a favorable entity 
eligibility determination and PCL eligibility has been granted.
    (f) Exclusion procedures. If a CSA determines that certain KMP can 
be excluded from access to classified information, the contractor will 
follow the procedures in accordance with Sec.  117.7(b)(5)(ii).
    (g) Temporary exclusions. As a result of a changed condition, the 
SMO or other KMP who require eligibility for access to classified 
information in connection with the facility entity eligibility 
determination may be temporarily excluded from access to classified 
information while in the process of a PCL eligibility determination 
provided:
    (1) The SMO or other KMP are not appointed as the FSO or ITPSO. 
FSOs and ITPSOs may not be temporarily excluded. A cleared employee 
must always be appointed to fulfill the requirements of these positions 
in accordance with this rule.
    (2) An employee, cleared to the level of the entity eligibility 
determination,

[[Page 83327]]

must be able to fulfill the NISP responsibilities of the temporarily 
excluded KMP in accordance with this rule while the temporary exclusion 
is in effect.
    (3) The applicable CSA may provide additional guidance on the 
duration of a temporary exclusion from access to classified information 
based on circumstances, business structure, and other relevant security 
information.
    (4) The contractor's governing board affirms the exclusion action, 
and provides a copy of the exclusion action to the CSA. The 
organization's governing body will document this action.

       Table 1 to Paragraph (g)(4) Temporary Exclusion Resolutions
------------------------------------------------------------------------
     Type of affirmation        Language to be used in exclusion action
------------------------------------------------------------------------
Affirmation for Temporary      Pending a final determination of
 Exclusion from Access to       eligibility for access to classified
 Classified Information.        information by the U.S. Government,
                                [insert name and position] will not
                                require, will not have, and can be
                                effectively and formally excluded from
                                access to all classified information
                                disclosed to the entity.
Affirmation for Temporary      Pending a final determination of
 Exclusion from Higher Level    eligibility for access to classified
 Classified Information.        information at the [insert SECRET or TOP
                                SECRET] level, [insert name and
                                position] will not have, and can be
                                effectively and formally excluded from
                                access to higher-level classified
                                information [specify which higher level
                                of information].
------------------------------------------------------------------------

    (h) Interim entity eligibility determinations. The CSA may make an 
interim entity eligibility determination for access to classified 
information, in the sole discretion of the CSA. See Sec.  117.10(l) for 
access limitations that also apply to interim entity eligibility 
determinations.
    (i) An interim entity eligibility determination is made on a 
temporary basis pending completion of the full investigative 
requirements.
    (ii) If the contractor with an interim entity eligibility 
determination is unable or unwilling to comply with the requirements of 
this rule and CSA-provided guidance regarding the process to obtain a 
final entity eligibility determination, the CSA will withdraw the 
interim entity eligibility.
    (i) Multiple facility organizations. The home office must have an 
entity eligibility determination at the same level as the highest 
entity eligibility determination of an entity within the MFO. The CSA 
will determine whether branch offices are eligible for access to 
classified information if the branch offices need access and meet all 
other requirements.
    (j) Parent-subsidiary relationships. When a parent-subsidiary 
relationship exists, the CSA will process the parent and the subsidiary 
separately for entity eligibility determinations.
    (1) If the CSA determines the parent must be processed for an 
entity eligibility determination, then the parent must have an entity 
eligibility determination at the same or higher level as the 
subsidiary.
    (2) When a parent and subsidiary or multiple cleared subsidiaries 
are collocated, a formal written agreement to use common security 
services may be executed by the entities, subject to the approval of 
the CSA.
    (k) Joint ventures. A joint venture may be granted eligibility for 
access to classified information if it meets the eligibility 
requirements in paragraph (c) of this section, including:
    (1) The joint venture must be established as a legal business 
entity (e.g. limited liability company, corporation, or partnership). A 
joint venture established by contract that is not also established as a 
legal business entity is not eligible for an entity eligibility 
determination.
    (2) The business entity operating as a joint venture must have been 
awarded a classified contract or sponsored by a GCA or prime contractor 
for an entity eligibility determination in advance of a potential award 
for which the business entity has bid pursuant to paragraph (c) of this 
section.
    (3) The business entity operating as a joint venture must have an 
employee or employees appointed as security officials or KMP pursuant 
to Sec.  117.7(b).
    (l) Consultants. The responsible CSA will determine when there is a 
need for self-employed consultants requiring access to classified 
information to be considered for an entity eligibility determination.
    (m) Limited entity eligibility determination (Non-FOCI). (1) The 
applicable CSA may choose to allow a GCA to request limited entity 
eligibility determinations for a single, narrowly defined contract, 
agreement, or circumstance and specific to the requesting GCA's 
classified information. This is not the same as a limited entity 
eligibility determination in situations involving FOCI, when the FOCI 
is not mitigated or negated.
    (i) Limited entity eligibility determinations (or FCLs) involving 
FOCI will be processed in accordance with Sec.  117.11(e).
    (ii) This paragraph (paragraph (m) of this section) applies to 
limited entity eligibility determinations for purposes other than FOCI 
mitigation in accordance with 32 CFR part 2004. Additional guidance may 
be provided by the responsible CSA.
    (2) An entity must be sponsored for a limited entity eligibility 
determination by a GCA in accordance with the sponsorship requirements 
contained in paragraph (c) of this section. The contractor should be 
aware that the sponsorship request from the GCA to the CSA must also 
include:
    (i) Description of the compelling need for the limited entity 
eligibility determination that is in accordance with U.S. national 
security interests.
    (ii) Specific reason(s) or rationale for limiting the entity 
eligibility determination.
    (iii) The GCA's formal acknowledgement and acceptance of the risk 
associated with this rationale.
    (3) The entity must otherwise meet the entity eligibility 
determination requirements set out in this rule.
    (4) Access limitations are inherent with the limited entity 
eligibility determination and are imposed upon all of the entity's 
employees regardless of citizenship.
    (5) Contractors should be aware that the CSA will document the 
requirements of each limited entity eligibility determination it makes, 
including the scope of, and any limitations on, access to classified 
information.
    (6) Contractors should be aware that the CSA will verify limited 
entity eligibility determinations only to the requesting GCA. In the 
case of multiple limited entity eligibility determinations for a single 
entity, the CSA verifies each one separately only to its requestor.
    (7) The applicable CSA administratively terminates the limited 
entity eligibility determination when there is no longer a need for 
access to the classified information for which the CSA approved the 
limited entity eligibility determination.

[[Page 83328]]

    (n) Termination of the entity eligibility determination. Once 
granted, a favorable entity eligibility determination remains in effect 
until terminated or revoked. If the entity eligibility determination is 
terminated or revoked, the contractor will return all classified 
material in its possession to the appropriate GCA or dispose of the 
material as instructed by the CSA. The contractor should be aware that 
it may request an administrative termination or the CSA may:
    (1) After coordination with applicable GCAs, administratively 
terminate the entity eligibility determination because the contractor 
no longer has a need for access to classified information.
    (2) Revoke an entity eligibility determination if the contractor is 
unable or unwilling to protect classified information or is unable to 
comply with the security requirements of this rule.
    (o) Invalidation of the entity eligibility determination. The CSA 
may invalidate an existing entity eligibility determination. While the 
entity eligibility determination is in an invalidated status, the 
contractor may not bid on or be awarded new classified contracts or 
solicitations. The contractor may continue to work on existing 
classified contracts if the GCA agrees.
    (p) Records maintenance. Contractors will maintain the original CSA 
designated forms for the duration of the entity eligibility 
determination in accordance with CSA-provided guidance.


Sec.  117.10   Determination of eligibility for access to classified 
information for contractor employees.

    (a) General. (1) The CSA is responsible for determining an 
employee's eligibility for access to classified information.
    (i) The contractor must determine that access to classified 
information is essential in the performance of tasks or services 
related to the fulfillment of a classified contract.
    (ii) Access must be clearly consistent with U.S. national security 
interests as determined by the CSA.
    (iii) A contractor may give an employee access to classified 
information at the same or lower level of classification as the level 
of the contractor's entity eligibility determination if the employee 
has:
    (A) A valid need-to-know for the classified information.
    (B) A USG favorable eligibility determination for access to 
classified information at the appropriate level; and
    (C) Signed a non-disclosure agreement.
    (2) The CSA will determine eligibility for access to classified 
information in accordance with SEAD 4 (available at: https://www.dni.gov/files/NCSC/documents/Regulations/SEAD-4-Adjudicative-Guidelines-U.pdf) and notify the contractor when eligibility has been 
granted.
    (i) The CSA will notify the contractor when an employee's 
eligibility has been denied, suspended, or revoked.
    (ii) The contractor will immediately deny access to classified 
information to any employee when notified of a denial, revocation, or 
suspension of eligibility regardless of the contractor employee's 
location.
    (iii) If the employee's performance is at a USG facility, the 
contractor will provide notification to the appropriate GCA of any 
denial, revocation, or suspension of eligibility for access to 
classified information.
    (3) Contractors will annotate and maintain the accuracy of their 
employees' records in the system of record for contractor eligibility 
and access to classified information, when one has been designated by 
the CSA.
    (4) Within an MFO or within the same business organization, 
contractors may centrally manage eligibility for access to classified 
information and access to classified information records.
    (5) The contractor will limit requests for determinations of 
eligibility for access to classified information to the minimum number 
of employees and consultants necessary for operational efficiency in 
accordance with contractual obligations and other requirements of this 
rule. Requests for determinations of eligibility for access to 
classified information will not be used to establish a cache of cleared 
employees.
    (6) The contractor will not submit a request for an eligibility 
determination to one CSA if the employee applicant is known to be 
cleared or in process for eligibility for access to classified 
information by another CSA. In such cases, reciprocity of eligibility 
determination in accordance with SEAD 7 (available at: https://www.dni.gov/files/NCSC/documents/Regulations/SEAD-7_BI_ReciprocityU.pdf) shall be used. The contractor will provide the 
new CSA with the full name, date, and place of birth, social security 
number, clearing agency, and type of investigation for verification.
    (7) Contractors will not submit requests for determination of 
eligibility for access to classified information for individuals who 
are not their employees or consultants; nor will they submit requests 
for employees of subcontractors.
    (8) Access to SCI, SAP, FRD, and RD information is a determination 
made by the granting authority by the applicable USG granting authority 
for each category of information.
    (b) Investigative requirements. E.O. 13467, as amended, ``Reforming 
Processes Related to Suitability for Government Employment, Fitness for 
Contractor Employees, and Eligibility for Access to Classified National 
Security Information,'' designates the Security and Suitability 
Executive Agents responsible for establishing the standards for 
investigative requirements that apply to contractors.
    (1) Investigative tiers. The standards established in accordance 
with E.O. 13467, as amended, designate specific investigative tiers 
that are acceptable for access to classified information. An 
investigative tier is for positions designated as moderate risk, non-
critical sensitive, and allow access to information classified at the 
L, CONFIDENTIAL, and SECRET levels. Another investigative tier is for 
positions designated as high risk, critical sensitive, special 
sensitive, and allow access to information classified at the Q, TOP 
SECRET, and SCI levels.
    (2) Investigative coverage. (i) Automated sources. Investigative 
providers will use automation whenever possible to collect, verify, 
corroborate, or discover information about an individual, as documented 
on the request for investigation or developed from other sources, i.e., 
automated record checks and inquiries.
    (ii) Interviews. Interviews, if required, will cover areas of 
adjudicative concern.
    (iii) Information Covered in Previous Investigations. Information 
validated in a prior investigation, the results of which are not 
expected to change (e.g., verification of education degree), will not 
be repeated as part of subsequent investigations.
    (3) Polygraph. Agencies with policies authorizing the use of the 
polygraph for purposes of determining eligibility for access to 
classified information may require polygraph examinations when 
necessary. If adjudicatively relevant information arises during the 
investigation or the polygraph examination, the investigation may be 
expanded to resolve the adjudicative concerns.
    (4) Financial disclosure. When a GCA requires that a contractor 
employee complete a financial disclosure form, the contractor will 
ensure that the employee has the opportunity to complete and submit the 
form in accordance with the Privacy Act of 1974, as amended, and other 
applicable provisions of law.
    (5) Reinvestigation and Continuous Evaluation. Contractor employees

[[Page 83329]]

determined eligible for access to classified information will follow 
CSA guidance to complete reinvestigation and continuous evaluation or 
continuous vetting requirements. The contractor will validate that the 
employee requires continued eligibility for access to classified 
information before initiating the reinvestigation.
    (c) Verification of U.S. citizenship. A contractor will require 
each applicant for determination of eligibility for access to 
classified information who claims U.S. citizenship to provide evidence 
of citizenship to the FSO or other authorized representative of the 
contractor. All documentation must be the original or certified copies 
of the original documents.
    (1) Any document, or its successor, listed in this paragraph is an 
acceptable document to corroborate U.S. citizenship by birth, including 
by birth abroad to a U.S. citizen.
    (i) A birth certificate certified with the registrar's signature, 
which bears the raised, embossed, impressed, or multicolored seal of 
the registrar's office.
    (ii) A current or expired U.S. passport or passport card that is 
unaltered and undamaged and was originally issued to the individual.
    (iii) A Department of State Form FS-240, ``Consular Report of Birth 
Abroad of a Citizen of the United States of America.''
    (iv) A Department of State Form FS-545 or DS-1350, ``Certification 
of Report of Birth.''
    (2) Any document, or its successor, listed in this paragraph is an 
acceptable document to corroborate U.S. citizenship by certification, 
naturalization, or birth abroad to a U.S. citizen.
    (i) A U.S. Citizenship and Immigration Services Form N-560 or N-
561, ``Certification of U.S. Citizenship.''
    (ii) A U.S. Citizenship and Immigration Services Form 550, 551, or 
570, ``Naturalization Certificate.''
    (iii) A valid or expired U.S. passport or passport card that is 
unaltered and undamaged and was originally issued to the individual.
    (d) Procedures for completing the electronic version of the SF 86, 
``Questionnaire for National Security Positions.'' The electronic 
version of the SF 86 (available at: https://www.opm.gov/forms/pdf_fill/sf86.pdf) must be completed in e-QIP or its successor system by the 
contractor employee and reviewed by the FSO or other contractor 
employee(s) who has (have) been specifically designated by the 
contractor to review an employee's SF 86. The FSO or designee will:
    (1) Provide the employee with written notification that review of 
the SF 86 by the FSO or other contractor employee is for adequacy and 
completeness and information will be used for no other purpose within 
the entity. The use and disclosure by the U.S. Government, and by U.S. 
Government contractors operating systems of records on behalf of a U.S. 
Government agency to accomplish an agency function, of the information 
provided by the employee on the SF-86 is governed by the Privacy Act of 
1974, as amended, and by the routine uses published by the USG in the 
applicable System of Records Notice.
    (2) Not share information from the employee's SF 86 within the 
entity and will not use the information for any purpose other than 
determining the adequacy and completeness of the SF 86.
    (e) Fingerprint collection. The contractor will submit fingerprints 
in accordance with CSA guidance. Contractors will use digital 
fingerprints whenever possible.
    (f) Pre-employment eligibility determination action. (1) If a 
potential employee requires access to classified information 
immediately upon commencement of employment, the contractor may submit 
a request for investigation prior to the date of employment, provided:
    (i) A written commitment for employment has been made by the 
contractor.
    (ii) The candidate has accepted the offer in writing.
    (2) The commitment for employment must indicate employment will 
commence within 45 days of the employee being granted eligibility for 
access to classified information at a level that allows them to perform 
the tasks or services associated with the contract or USG requirement 
for which they were hired.
    (3) Contractors will comply with the requirements pursuant to 
paragraph (a) (5) of this section.
    (g) Classified information NDA. The NDA designated by the CSA 
(e.g., SF 312), is an agreement between the USG and an individual who 
is determined eligible for access to classified information.
    (1) An employee determined eligible for access to classified 
information must execute an NDA prior to being granted access to 
classified information.
    (2) The employee must sign and date the NDA in the presence of a 
witness. The employee's and witness' signatures must bear the same 
date.
    (3) The contractor will forward the executed NDA to the CSA for 
retention. The CSA may authorize the contractor to retain a copy of the 
form for administrative purposes, if appropriate.
    (4) If the employee refuses to execute the NDA, the contractor will 
deny the employee access to classified information and submit a report 
to the CSA in accordance with Sec.  117.8(c)(6).
    (h) Reciprocity. The applicable CSA is responsible for determining 
whether contractor employees have been previously determined eligible 
for access to classified information or investigated by an authorized 
investigative activity in accordance with SEAD 7 (available at: https://www.dni.gov/files/NCSC/documents/Regulations/SEAD-7_BI_ReciprocityU.pdf).
    (1) Any current eligibility determination for access to classified 
information that is based on an investigation of a scope that meets or 
exceeds that necessary for the required level of access will provide 
the basis for a new eligibility determination.
    (2) The prior investigation will be used without further 
investigation or adjudication unless the CSA becomes aware of 
significant derogatory information that was not previously adjudicated.
    (i) Break in access. There are circumstances when a contractor 
administratively terminates an employee's access to classified 
information solely because of no current requirement for such access. 
If the employee again requires access to classified information and has 
been in the contractor's continuous employment, and the employee again 
requires access to classified information, the contractor may provide 
access to classified information without further investigation, based 
on CSA guidance, so long as the employee remains eligible for access to 
classified information and has a current investigation of a scope that 
meets or exceeds that necessary for the access required and no new 
derogatory information is known. Any adverse information from or about 
the employee must continue to be reported while the employee maintains 
eligibility for access to classified information, even when access to 
classified information has been administratively terminated.
    (j) Break in employment. (1) When an employee had a break in 
employment and now requires access to classified information, the 
contractor may provide access to classified information based on CSA 
guidance provided the employee remains eligible for access to 
classified information and has a current investigation of a scope that 
meets or exceeds that necessary for the access required.

[[Page 83330]]

    (2) The contractor may not provide access to classified information 
to an employee who previously was eligible for access to classified 
information, but has had a break in employment that resulted in a loss 
of eligibility without a new eligibility determination by the CSA.
    (k) Non-U.S. citizens. (1) Contractors must make every effort to 
ensure that non-U.S. citizens are not employed in duties that may 
require access to classified information. However, compelling reasons 
may exist to grant access to classified information to a non-U.S. 
citizen. The CSA may grant such individuals a LAA in those rare 
circumstances where a non-U.S. citizen possesses unique or unusual 
skills or expertise that is urgently needed to support a specific USG 
contract involving access to specified classified information, and a 
cleared or clearable U.S. citizen is not readily available. The CSA 
will provide specific procedures for requesting an LAA, to include the 
need for approval by a GCA senior official.
    (2) An LAA granted under the provisions of this rule is not valid 
for access to:
    (i) TOP SECRET information.
    (ii) RD or FRD.
    (iii) Information that has not been determined releasable by a USG 
designated disclosure authority to the country of which the individual 
is a citizen.
    (iv) Communications security (COMSEC) information.
    (v) Intelligence information.
    (vi) NATO information. Foreign nationals of a NATO member nation 
may be authorized access to NATO information provided:
    (A) The CSA obtains a NATO security clearance certificate from the 
individual's country of citizenship.
    (B) NATO access is limited to performance on a specific NATO 
contract.
    (vii) Information for which foreign disclosure has been prohibited 
in whole or in part.
    (viii) Information provided to the USG in confidence by a third-
party government.
    (ix) Classified information furnished by a third-party government.
    (l) Temporary eligibility for access to classified information. In 
accordance with SEAD 8 (available at: https://www.dni.gov/files/NCSC/documents/Regulations/SEAD-8_Temporary_Eligibility_U.pdf), the CSA may 
grant temporary (previously called interim) eligibility for access to 
classified information, as appropriate, to applicants for access to TOP 
SECRET, SECRET, and CONFIDENTIAL information. This eligibility may only 
be granted if there is no evidence of adverse information that calls 
into question an individual's eligibility for access to classified 
information. If results are favorable following completion of full 
investigative requirements, the CSA will update the temporary 
eligibility determination for access to classified information to be 
final. In any case, a temporary eligibility determination shall not 
exceed one year unless approved by the applicable CSA in the system of 
record. Non-U.S. citizens are not eligible for access to classified 
information on a temporary basis.
    (1) A temporary SECRET or CONFIDENTIAL eligibility determination is 
valid for access to classified information at the level of the 
eligibility granted. Access to RD, COMSEC information, and NATO 
information requires a final SECRET eligibility determination.
    (2) A temporary TOP SECRET eligibility determination is valid for 
access to TOP SECRET information. If an individual has a temporary TOP 
SECRET eligibility determination and has a final SECRET eligibility 
determination based on a previously completed investigation, the 
temporary TOP SECRET eligibility determination is valid for access to 
RD, NATO, and COMSEC information at the SECRET or CONFIDENTIAL level.
    (3) Access to SCI and SAP information based on a temporary 
eligibility determination is a determination made by the granting 
authority.
    (4) When a temporary eligibility determination has been made and 
derogatory information is subsequently developed, the CSA may withdraw 
the temporary eligibility pending completion of the processing that is 
a prerequisite to the final eligibility determination.
    (5) When a temporary eligibility determination is withdrawn for an 
individual who is required to be eligible for access to classified 
information in connection with the entity eligibility determination for 
access to classified information, the contractor must remove the 
individual from access to classified information and any KMP position 
requiring PCL eligibility or the temporary entity eligibility 
determination will also be withdrawn.
    (6) Withdrawal of a temporary eligibility determination is not a 
denial, termination, or revocation of eligibility under this rule and 
may not be appealed.
    (m) Consultants. (1) A consultant will not access classified 
information off the premises of the using (hiring) contractor except in 
connection with authorized classified visits.
    (2) A contractor may only assign a consultant outside the United 
States with responsibilities requiring access to classified information 
when:
    (i) The consultant agreement between the contractor and consultant 
includes:
    (A) Identification of the contract, license, or agreement that 
requires access to classified information, the level of classified 
information that is required, and access to FGI by the consultant while 
assigned outside the United States.
    (B) A formal agreement that prohibits the consultant from 
disclosing any classified information related to the contract, license, 
or agreement as required in paragraph (m)(i)(A) of this section to any 
party other than the USG or foreign government with which the 
consultant is meeting, and who possesses the requisite clearance and 
need to know.
    (ii) The consultant and the using contractor will jointly execute 
the consultant agreement setting forth respective security 
responsibilities. The contractor will retain an original signed copy of 
the agreement and will ensure its availability if requested by the CSA.
    (iii) The contractor, in consultation with the applicable CSA as 
appropriate, will determine what threat briefing(s) the consultant 
should receive before the assignment, and conduct those briefings as 
part of the consultant's pre-assignment and recurring security 
training.
    (iv) The contractor provides notice of any changes to the 
consultant agreement to the applicable CSA during assessments or upon 
CSA request.
    (3) The using contractor will be the consumer of the consultant 
services as set forth in the consultant agreement.
    (4) For security administration purposes, a consultant will be 
considered an employee of the using contractor for compliance with this 
rule.
    (5) Consultants to GCAs are not under the purview of the NISP and 
will be processed for determination of eligibility by the GCA in 
accordance with GCA procedures.


Sec.  117.11  Foreign Ownership, Control, or Influence (FOCI).

    (a) General. Foreign investment can play an important role in 
maintaining the vitality of the U.S. industrial base. Therefore, it is 
the intent of the USG to allow foreign investment consistent with the 
national security interests of the United States. The following FOCI

[[Page 83331]]

procedures for cleared U.S. entities are intended to mitigate the risks 
associated with FOCI by ensuring that foreign firms cannot undermine 
U.S. security to gain unauthorized access to classified information.
    (1) The CSA will consider a U.S. entity to be under FOCI when:
    (i) A foreign interest has the power to direct or decide issues 
affecting the entity's management or operations in a manner that could 
either:
    (A) Result in unauthorized access to classified information; or
    (B) Adversely affect performance of a classified contract or 
agreement.
    (ii) The foreign government is currently exercising, or could 
prospectively exercise, that power, whether directly or indirectly, 
such as:
    (A) Through ownership of the U.S. entity's securities, by 
contractual arrangements, or other means, or;
    (B) By the ability to control or influence the election or 
appointment of one or more members to the entity's governing board.
    (2) When the CSA has determined that an entity is under FOCI, the 
primary consideration will be the protection of classified information. 
The CSA will take whatever action is necessary to protect classified 
information, in coordination with other affected agencies as 
appropriate.
    (3) A U.S. entity that is in process for an entity eligibility 
determination for access to classified information and subsequently 
determined to be under FOCI is ineligible for access to classified 
information unless and until effective security measures have been put 
in place to negate or mitigate FOCI to the satisfaction of the CSA.
    (4) When a contractor determined to be under FOCI is negotiating an 
acceptable FOCI mitigation or negation measure in good faith, an 
existing entity eligibility determination may continue in effect so 
long as there is no indication that classified information is at risk 
of compromise in consultation with the applicable GCA. The applicable 
CSA may decide that circumstances involving the FOCI are such that the 
entity eligibility determination will be invalidated until 
implementation of an acceptable FOCI mitigation plan.
    (5) An existing entity eligibility determination will be 
invalidated if the contractor is unable or unwilling to negotiate and 
implement an acceptable FOCI mitigation or negation measure. An 
existing entity eligibility determination will be revoked if security 
measures cannot be taken to remove the possibility of unauthorized 
access to classified information or adverse effect on performance of 
classified contracts.
    (6) Changed conditions, such as a change in ownership, 
indebtedness, or a foreign intelligence threat, may justify certain 
adjustments to the security terms under which an entity is operating 
or, alternatively, that a different FOCI mitigation or negation method 
be employed. If a changed condition is of sufficient significance, it 
might also result in a determination that a contractor is no longer 
considered to be under FOCI, or, conversely, that a contractor is no 
longer eligible for access to classified information.
    (7) The USG reserves the right, and has the obligation, to impose 
any security method, safeguard, or restriction (including denial, 
termination or revocation of an entity eligibility determination) it 
believes necessary to ensure that unauthorized access to classified 
information is effectively precluded and performance of classified 
contracts is not adversely affected.
    (8) Nothing contained in this section affects the authority of a 
Federal agency head to limit, deny, or revoke access to classified 
information under its statutory, regulatory, or contract jurisdiction.
    (b) Factors. Factors relating to the entity, relevant foreign 
interests, and the government of such foreign interests, as 
appropriate, will be considered in the aggregate to determine whether 
an applicant entity is under FOCI, its eligibility for access to 
classified information, and the protective measures required. These 
factors include:
    (1) Record of espionage against U.S. targets, either economic or 
government.
    (2) Record of enforcement actions against the entity for 
transferring technology without authorization.
    (3) Record of compliance with pertinent U.S. laws, regulations, and 
contracts or agreements.
    (4) Type and sensitivity of the information the entity would 
access.
    (5) Source, nature, and extent of FOCI, including whether foreign 
interests hold a majority or minority position in the entity, taking 
into consideration the immediate, intermediate, and ultimate parent 
entities.
    (6) Nature of any relevant bilateral and multilateral security and 
information exchange agreements.
    (7) Ownership or control, directly or indirectly, in whole or in 
part, by a foreign government.
    (8) Any other factor that indicates or demonstrates capability of 
foreign interests to control or influence the entity's operations or 
management.
    (c) Procedures. An entity is required to complete an SF 328 during 
the process for an entity eligibility determination or when significant 
changes occur to information previously submitted. In the case of a 
corporate family, the form may be a consolidated response rather than 
separate submissions from individual members of the corporate family 
based on CSA guidance.
    (1) If an entity provides any affirmative answers on the SF 328, or 
the CSA receives other information which indicates that the applicant 
entity may be under FOCI, the CSA will make a risk-based determination 
regarding the relative significance of the information in regard to:
    (i) Whether the applicant is under FOCI.
    (ii) The extent and manner to which the FOCI represents a risk to 
the national security or may adversely impact classified contract 
performance.
    (iii) The type of actions, if any, that would be necessary to 
mitigate or negate the effects of FOCI to a level deemed acceptable to 
the USG. The CSA will advise entities on the CSA's appeal channels for 
disputing CSA FOCI determinations.
    (2) When an entity with a favorable eligibility determination 
enters into negotiations for the proposed merger, acquisition, or 
takeover by a foreign interest, the entity will submit notification to 
the CSA of the commencement of such negotiations.
    (i) The submission will include the type of transaction under 
negotiation (e.g., stock purchase, asset purchase), the identity of the 
potential foreign interest investor, and a plan to negate or mitigate 
the FOCI by a method outlined in paragraph (d) of this section.
    (ii) The entity will submit copies of loan, purchase, and 
shareholder agreements, annual reports, bylaws, articles of 
incorporation, partnership agreements, other organizational documents, 
and reports filed with other Federal agencies to the CSA.
    (d) FOCI action plans. (1) When FOCI factors not related to 
ownership are present, the CSA will determine if positive measures will 
assure the CSA that the foreign interest can be effectively mitigated 
and cannot otherwise adversely affect performance on classified 
contracts. Examples of such measures include:
    (i) Modification or termination of loan agreements, contracts, and 
other understandings with foreign interests.
    (ii) Diversification or reduction of foreign-source income.

[[Page 83332]]

    (iii) Demonstration of financial viability independent of foreign 
interests.
    (iv) Elimination or resolution of problem debt.
    (v) Assignment of specific oversight duties and responsibilities to 
board members.
    (vi) Formulation of special executive-level security committees to 
consider and oversee issues that affect the performance of classified 
contracts.
    (vii) Physical or organizational separation of the contractor 
component performing on classified contracts.
    (viii) Adoption of special board resolutions.
    (ix) Other actions that negate or mitigate foreign control or 
influence.
    (x) A combination of these methods, as determined by the CSA.
    (2) When FOCI factors related to ownership are present, methods the 
CSA may apply to negate or mitigate the risk of foreign ownership 
include, but are not limited to:
    (i) Board resolution. (A) When a foreign interest does not possess 
voting interests sufficient to elect, or otherwise is not entitled to 
representation on the entity's governing board, a resolution(s) by the 
governing board may be adequate. In the resolution, the governing board 
will:
    (1) Identify the foreign shareholder.
    (2) Describe the type and number of foreign-owned shares.
    (3) Acknowledge the entity's obligation to comply with all 
industrial security program requirements.
    (4) Certify that the foreign owner does not require, will not have, 
and can be effectively precluded from unauthorized access to all 
classified information entrusted to or held by the entity.
    (B) The governing board will provide for annual certifications to 
the CSA acknowledging the continued effectiveness of the resolution.
    (C) The entity will distribute to members of its governing board 
and to its KMP copies of such resolutions, and report in the entity's 
corporate records the completion of such distribution.
    (ii) Security control agreement (SCA). When a foreign interest does 
not effectively own or control an entity (i.e., the entity is under 
U.S. control), but the foreign interest is entitled to representation 
on the entity's governing board, an SCA may be adequate. At least one 
cleared U.S. citizen must serve as an outside director on the entity's 
governing board. There are no access limitations under an SCA.
    (iii) SSA. When a foreign interest effectively owns or controls an 
entity, an SSA may be adequate. An SSA is an arrangement that, based 
upon an assessment of the source and nature of FOCI and FOCI factors, 
imposes various industrial security measures within an 
institutionalized set of entity practices and procedures. The SSA 
preserves the foreign owner's right to be represented on the entity's 
board or governing body with a direct voice in the entity's business 
management, while denying the foreign owner majority representation and 
unauthorized access to classified information.
    (A) Requirement for a National Interest Determination (NID). Unless 
otherwise prohibited by law or regulation (e.g., Section 842 of Pub. L. 
115-232), the applicable CSA must determine whether allowing an entity 
access to proscribed information under an SSA is consistent with 
national security interests of the U.S. with concurrence from 
controlling agencies, as applicable. Such NIDs will be made as part of 
an entity eligibility determination or because of a changed condition 
when a GCA requires an entity to have access to proscribed information 
and the CSA proposes an SSA as the mitigation measure. The NID can be 
program, project, or contract specific.
    (B) NID process: (1) The CSA makes a NID for TOP SECRET or SAP 
information to which the entity requires access. Contractors should be 
aware that DOE Order 470.4B provides additional information and 
requirements for processing NID requests for access to RD.
    (2) In cases in which any category of the proscribed information is 
controlled by another agency (ODNI for SCI, DOE for RD, the National 
Security Agency (NSA) for COMSEC), the CSA asks that controlling agency 
to concur or non-concur on the NID for that category of information.
    (3) The CSA informs the GCA and the entity when the NID is 
complete. In cases involving SCI, RD, or COMSEC, the CSA also informs 
the GCA and the entity when a controlling agency concurs or non-concurs 
on that agency's category of proscribed information. The entity may 
begin accessing a category of proscribed information once the CSA 
informs the GCA and the entity that the controlling agency concurs, 
even if other categories of proscribed information are pending 
concurrence.
    (4) An entity's access to SCI, RD, or COMSEC remains in effect so 
long as the entity remains eligible for access to classified 
information and the contract or agreement (or program or project) which 
imposes the requirement for access to those categories of proscribed 
information remains in effect, except under any of the following 
circumstances:
    (i) The CSA, GCA, or controlling agency becomes aware of adverse 
information that impacts the entity eligibility determination.
    (ii) The CSA's threat assessment pertaining to the entity indicates 
a risk to one of the categories of proscribed information.
    (iii) The CSA becomes aware of any material change regarding the 
source, nature, and extent of FOCI.
    (iv) The entity's record of NISP compliance, based on CSA reviews, 
becomes less than satisfactory. Consult DOE Order 470.4B for additional 
information and requirements for processing NID requests for access to 
RD.
    (5) Under any of the circumstances in paragraphs 
(d)(2)(iii)(B)(4)(i) through (d)(2)(iii)(B)(4)(iv) in this section, the 
CSA determines whether the entity remains eligible for access to 
classified information, it must change the FOCI mitigation measure in 
order to remain eligible for access to classified information, or the 
CSA must terminate or revoke the access to classified information.
    (6) When an entity is eligible for access to classified information 
that includes a favorable NID for SCI, RD, or COMSEC, the CSA does not 
have to request a new NID concurrence for the same entity if the access 
to classified information requirements for the relevant category of 
proscribed information and terms remain unchanged for:
    (i) Renewing the contract or agreement.
    (ii) New task orders issued under the contract or agreement.
    (iii) A new contract or agreement that contains the same provisions 
as the previous one (this usually applies when the contract or 
agreement is for a program or project.)
    (iv) Renewing the SSA.
    (7) Under certain conditions, entities under an SSA may not require 
a NID for one or more categories of proscribed information in 
accordance with CSA-provided guidance. Categories of proscribed 
information for entities under SSAs not requiring a NID will be 
recorded in the CSA's system of record for entity eligibility 
determinations.
    (iv) Voting Trust (VT) or Proxy Agreement (PA). The VT and the PA 
are arrangements that vest the voting rights of the foreign-owned stock 
in cleared U.S. citizens approved by the USG. Under a VT, the foreign 
owner transfers legal title its ownership interests in the entity to 
the trustees. Under a PA, the foreign owner's voting rights are

[[Page 83333]]

conveyed to the proxy holders. Neither arrangement imposes any 
restrictions on the entity's eligibility to have access to classified 
information or to compete for classified contracts.
    (A) Establishment of a VT or PA involves the selection of trustees 
or proxy holders, all of whom must become members of the entity's 
governing board. Both arrangements must provide for the exercise of all 
prerogatives of ownership by the trustees or proxy holders with 
complete freedom to act independently from the foreign owners, except 
as provided in the VT or PA. The arrangements may limit the authority 
of the trustees or proxy holders by requiring approval be obtained from 
the foreign owner with respect to issues such as:
    (1) The sale or disposal of the entity's assets or a substantial 
part thereof.
    (2) Pledges, mortgages, or other encumbrances on the entity's 
assets, capital stock, or ownership interests.
    (3) Mergers, consolidations, or reorganizations.
    (4) Dissolution.
    (5) Filing of a bankruptcy petition.
    (B) The trustees or proxy holders may consult with the foreign 
owner, or vice versa, where otherwise consistent with U.S. laws, 
regulations, and the terms of the VT or PA.
    (C) The trustees or proxy holders assume full responsibility for 
the foreign owner's voting interests and for exercising all governance 
and management prerogatives relating thereto to ensure the foreign 
owner will be insulated from the entity, thereby solely retaining the 
status of a beneficiary. The entity must be organized, structured, and 
financed to be capable of operating as a viable business entity and 
independent from the foreign owners' interests that required FOCI 
mitigation or negation.
    (v) Combination measures. The CSA may apply combinations of the 
measures in paragraphs (d)(2)(i) through (d)(2)(iv) in this section or 
other similar measures that effectively mitigate or negate the risks 
involved with foreign ownership.
    (e) Limited entity eligibility determination due to FOCI. In 
accordance with the provisions of this section and CSA-provided 
guidance, a limited entity eligibility determination may be an option 
for a single, narrowly defined contract, agreement, or circumstance for 
entities under FOCI without mitigation or negation. Limitations on 
access to classified information are inherent with the granting of 
limited entity eligibility determinations and are imposed upon all of 
the entity's employees regardless of citizenship.
    (1) In exceptional circumstances, when an entity is under FOCI, the 
CSA may decide that a limited entity eligibility determination is 
appropriate when the entity is unable or unwilling to implement FOCI 
mitigation or negation measures, and the conditions in paragraphs 
(e)(1)(i) through (iii) of this section are met. This is not the same 
as a limited entity eligibility determination for purposes not related 
to FOCI. Information on limited entity eligibility determinations for 
purposes other than FOCI can be found in Sec.  117.9(m). A CSA may 
decide that a limited entity eligibility is appropriate for an entity 
under FOCI if:
    (i) The limited entity eligibility determination is in accordance 
with national security interests and a GCA has informed the CSA that 
access to classified information by the contractor is essential to 
contract or agreement performance.
    (ii) There is an industrial security agreement with the foreign 
government of the country from which the FOCI is derived.
    (iii) The contractor meets all other entity eligibility 
requirements outlined in Sec.  117.9(c) except that KMP, other than the 
FSO, may be citizens of the country from which the FOCI derives and the 
United States has obtained security assurances at the appropriate level 
from that country.
    (2) A U.S. subsidiary of a foreign entity may be sponsored for a 
limited entity eligibility determination by a foreign government when 
the foreign government desires to award a contract or agreement to the 
U.S. subsidiary that involves access to only that classified 
information for which the foreign government is the OCA.
    (3) Limited entity eligibility determinations are specific to the 
classified information for the requesting GCA or foreign government and 
the single narrowly defined contract, agreement, or circumstance the 
request was based on. The limited entity eligibility determination will 
only be verified to that GCA or foreign government for the authorized 
level of access to classified information and any limitations to that 
access to classified information.
    (4) A limited entity eligibility determination is not an option for 
contractors that require access to proscribed information when a 
foreign government has ownership or control over the entity.
    (5) Release of classified information must be in conformity with 
the U.S. National Disclosure Policy-1 (provided to designated 
disclosure authorities on a need-to-know basis from the Office of the 
Under Secretary of Defense for Policy, Defense Technology Security 
Administration).
    (6) A limited entity eligibility determination will be 
administratively terminated when there is no longer a need for the 
contractor to access the classified information for which it was 
sponsored. Administrative termination of one limited entity eligibility 
determination does not impact a contractor's other limited entity 
eligibility determinations.
    (7) If there is no industrial security agreement with the foreign 
government of the country from which the FOCI is derived, in 
extraordinary circumstances, a limited entity eligibility determination 
may also be granted if there is a compelling need to do so consistent 
with U.S. national security interests and the GCA has informed the 
applicable CSA that access to classified information by the contractor 
is essential to contract or agreement performance. Under this 
circumstance, the entity must follow all provisions of this rule.
    (f) Qualifications of trustees, proxy holders, and outside 
directors. Individuals who serve as trustees, proxy holders, or outside 
directors must meet the following criteria:
    (1) Trustees and proxy holders must be resident U.S. citizens who 
can exercise governance and management prerogatives relating to their 
position in a way that ensures that the foreign owner can be 
effectively insulated from the entity.
    (2) Outside directors must be resident U.S. citizens who can 
exercise governance and management prerogatives relating to their 
position in a way that ensures that the foreign owner can be 
effectively separated from the entity's classified work.
    (3) New trustees, proxy holders, and outside directors must be 
completely disinterested individuals with no prior involvement with the 
entity, the entities with which it is affiliated, or the foreign owner.
    (4) The CSA may consider other circumstances that may affect an 
individual's eligibility to serve effectively including the number of 
boards on which the individual serves, the length of time serving on 
any other governance boards, and other factors in accordance with CSA-
provided guidance.
    (5) Trustees, proxy holders, and outside directors must be 
determined eligible for access to classified information at the level 
of the entity eligibility determination for access to

[[Page 83334]]

classified information. Individuals who are serving as trustees, proxy 
holders, or outside directors as part of a mitigation measure for the 
entity are not considered to have prior involvement solely by 
performing that role for purposes of paragraph (f)(3) of this section.
    (g) Government security committee (GSC). Under a VT, PA, SSA, or 
SCA, the contractor is required to establish a permanent committee of 
its board of directors, known as the GSC.
    (1) Unless otherwise approved by the CSA, the GSC consists of 
trustees, proxy holders, or outside directors and those officer 
directors who have been determined to be eligible for access to 
classified information.
    (2) The members of the GSC are required to ensure that the 
contractor adheres to laws and regulations and maintains internal 
entity policies and procedures to safeguard classified information 
entrusted to it. The GSC ensures that violations of those policies and 
procedures are promptly investigated and reported to the appropriate 
authority when it has been determined that a violation has occurred.
    (3) The contractor's FSO will be the principal advisor to the GSC 
and attend GSC meetings. The chairman of the GSC must concur with the 
appointment and replacement of FSOs selected by management. The FSO 
functions will be carried out under the authority of the GSC.
    (h) Additional procedures for FOCI mitigation or negation measures. 
In addition to the basic requirements of the FOCI mitigation or 
negation agreement, the entity may be required to document and 
implement additional procedures based upon the circumstances of an 
entity's operations. Those additional procedures will be established in 
supplements to the FOCI mitigation agreement to allow for flexibility 
as circumstances change without having to renegotiate the entire 
agreement. When making use of supplements, the CSA does not consider 
the FOCI mitigation measure final until the CSA has approved the 
required supplements. These supplements may include:
    (1) Technology control plan (TCP). A TCP approved by the CSA will 
be developed and implemented by those entities cleared under a VT, PA, 
SSA and SCA and when otherwise deemed appropriate by the CSA. The TCP 
will prescribe all security measures determined necessary to reasonably 
prevent the possibility of access by non-U.S. citizen employees and 
visitors to information for which they are not authorized. The TCP will 
also prescribe measures designed to assure that access by non-U.S. 
citizens is strictly limited to only that specific information for 
which appropriate USG disclosure authorization has been obtained, e.g., 
an approved export license or technical assistance agreement. Unique 
badging, escort, segregated work area, security indoctrination schemes, 
and other measures will be included, as appropriate.
    (2) Electronic communications plan (ECP). The contractor will 
develop and implement an ECP, subject to CSA approval, tailored to the 
contractor's operations to verify that electronic controls are in place 
for clear technical and logical separation of electronic communications 
and networks between the contractor, the foreign interest, and its 
affiliates. The purpose is to prevent the unauthorized disclosure of 
classified information to the foreign parent or its affiliates. The 
contractor will include in the ECP a detailed network description and 
configuration diagram that clearly delineates which networks will be 
shared and which will be protected from access by the foreign parent or 
its affiliates. The network description will address firewalls, remote 
administration, monitoring, maintenance, and separate email servers, as 
appropriate.
    (3) Affiliated operations plan. There may be circumstances when the 
parties to a transaction propose in the FOCI action plan that the U.S. 
contractor provides certain services for the foreign interest or enters 
into arrangements with the foreign interest, or the foreign interest 
provides services for or enters into arrangements with the U.S. 
contractor. In such circumstances, the contractor will document a plan, 
subject to CSA approval, outlining the entity's consolidated policies 
and procedures regarding the control of affiliated operations, 
regardless of whether such endeavors are administrative, operational, 
or commercial, performed directly or through third-party service 
providers, within the entity, or among any of the entity's controlled 
entities, or the foreign interest and its affiliates.
    (4) Facilities location plan. When a contractor is potentially 
collocated with or in close proximity to its foreign parent or an 
affiliate, the contractor will prepare a facilities location plan to 
assist the CSA in determining if the contractor is collocated or if the 
close proximity can be allowed under the FOCI mitigation plan. A U.S. 
entity generally cannot be collocated with the foreign parent or 
affiliate, i.e., at the same address or in the same location.
    (i) Annual review and certification.--(1) Annual review. The CSA 
will meet at least annually, and otherwise as required by 
circumstances, with the GSCs of contractors operating under a VT, PA, 
SSA, or SCA to review the purpose and effectiveness of the clearance 
arrangement and to establish a common understanding of the operating 
requirements and their implementation. These reviews will include an 
examination of:
    (i) Acts of compliance or noncompliance with the approved security 
arrangement, standard rules, and applicable laws and regulations.
    (ii) Problems or impediments associated with the practical 
application or utility of the security arrangement.
    (iii) Whether security controls, practices, or procedures warrant 
adjustment.
    (2) Annual certification. For contractors operating under a VT, PA, 
SSA, or SCA, the chairman of the GSC will submit to the CSA one year 
from the effective date of the agreement and annually thereafter, an 
implementation and compliance report. Such reports will include:
    (i) A detailed description of the manner in which the contractor is 
carrying out its obligations under the agreement.
    (ii) Changes to security procedures, implemented or proposed, and 
the reasons for those changes.
    (iii) A detailed description of any acts of noncompliance, whether 
inadvertent or intentional, with a discussion of remedial measures, 
including steps taken to prevent such acts from recurring.
    (iv) Any changes, or impending changes, of KMP or key board 
members, including the reasons therefore.
    (v) Any changes or impending changes in the organizational 
structure or ownership, including any reorganizations, acquisitions, 
mergers, or divestitures.
    (vi) Any other issues that could have a bearing on the 
effectiveness of the applicable agreement.
    (j) Transactions involving foreign persons, and the Committee on 
Foreign Investment in the United States (CFIUS).
    (1) The CFIUS is a USG interagency committee chaired by the 
Treasury Department that conducts assessments, reviews and 
investigations of transactions that could result in foreign control of 
a U.S. business, and certain non-controlling investments and certain 
real estate transactions involving foreign persons under 50 U.S.C. 
4565.
    (2) In CFIUS cases where the acquired U.S. business requires access 
to classified information, the CFIUS assessment, review or 
investigation, as applicable, and the CSA industrial

[[Page 83335]]

security FOCI review are carried out in parallel, but are separate 
processes with different time constraints and considerations.
    (3) The CSA will promptly advise the parties in a transaction under 
CFIUS review that would require FOCI negation or mitigation measures if 
consummated, to submit to the CSA a plan to negate or mitigate FOCI. If 
it appears that an agreement cannot be reached on material terms of a 
FOCI action plan, or if the U.S. person that is a party, or in 
applicable cases, a subject of the proposed transaction fails to comply 
with the FOCI reporting requirements of this rule, the CSA may 
recommend a full investigation of the transaction by the CFIUS to 
determine the effects on national security.


Sec.  117.12   Security training and briefings.

    (a) General. Contractors will provide all cleared employees with 
security training and briefings commensurate with their involvement 
with classified information.
    (b) Training materials. Contractors may obtain security, threat 
awareness, and other education and training information and material 
from their CSA or other sources.
    (c) Government provided briefings. The CSA is responsible for 
providing initial security briefings to the FSO and for ensuring other 
briefings required for special categories of information are provided 
to the FSO.
    (d) FSO training. Contractors will ensure the FSO and others 
performing security duties complete training considered appropriate by 
the CSA. Training requirements will be based on the contractor's 
involvement with classified information. Training may include an FSO 
orientation course, and for FSOs at contractor locations with a 
classified information safeguarding capability, an FSO program 
management course. Contractor FSOs will complete training within six 
months of appointment to the position of FSO. When determined by the 
applicable CSA, contractor FSOs must complete an FSO program management 
course within six months of the CSA approval to store classified 
information at the contractor.
    (e) Initial security briefings. Prior to being granted access to 
classified information, contractors will provide employees with an 
initial security briefing that includes:
    (1) Threat awareness, including insider threat awareness in 
accordance with paragraph (g) in this section.
    (2) Counterintelligence (CI) awareness.
    (3) Overview of the information security classification system.
    (4) Reporting obligations and requirements, including insider 
threat.
    (5) Cybersecurity training for all authorized information system 
users in accordance with CSA-provided guidance pursuant to Sec.  
117.18(a)(1) and (a)(2).
    (6) Security procedures and duties applicable to the employee's 
position requirements (e.g. marking and safeguarding of classified 
information) and criminal, civil, or administrative consequences that 
may result from the unauthorized disclosure of classified information, 
even though the individual has not yet signed an NDA.
    (f) CUI training. While outside the requirements of the NISPOM, 
when a classified contract includes provisions for CUI training, 
contractors will comply with those contract requirements.
    (g) Insider threat training. The designated ITPSO will ensure that 
contractor program personnel assigned insider threat program 
responsibilities and all other cleared employees complete training 
consistent with applicable CSA provided guidance.
    (1) The contractor will provide training to insider threat program 
personnel, including the contractor's designated ITPSO, on:
    (i) CI and security fundamentals.
    (ii) Procedures for conducting insider threat response actions.
    (iii) Applicable laws and regulations regarding the gathering, 
integration, retention, safeguarding, and use of records and data, 
including the consequences of misuse of such information.
    (iv) Applicable legal, civil liberties, and privacy policies and 
requirements applicable to insider threat programs.
    (2) The contractor will provide insider threat awareness training 
to all cleared employees on an annual basis. Depending upon CSA 
specific guidance, a CSA may instead conduct such training. The 
contractor must provide all newly cleared employees with insider threat 
awareness training before granting access to classified information. 
Training will address current and potential threats in the work and 
personal environment and will include at a minimum:
    (i) The importance of detecting potential insider threats by 
cleared employees and reporting suspected activity to the insider 
threat program designee.
    (ii) Methodologies of adversaries to recruit trusted insiders and 
collect classified information, in particular within information 
systems.
    (iii) Indicators of insider threat behavior and procedures to 
report such behavior.
    (iv) CI and security reporting requirements, as applicable.
    (3) The contractor will establish procedures to validate all 
cleared employees who have completed the initial and annual insider 
threat training.
    (h) Derivative classification.--(1) Initial training. The 
contractor will ensure all employees authorized to make derivative 
classification decisions are trained in the proper application of the 
derivative classification principles, in accordance with CSA direction. 
Employees are not authorized to conduct derivative classification until 
they receive such training.
    (2) Refresher training. In addition to the initial training, 
contractors will ensure all employees who conduct derivative 
classification receive training at least once every two years. 
Contractors will suspend an employee's derivative classification 
authority for any employee who does not receive such training at least 
once every two years. Training will emphasize the avoidance of over-
classification and address:
    (i) Classification levels.
    (ii) Duration of classification.
    (iii) Identification and markings.
    (iv) Classification prohibitions and limitations.
    (v) Sanctions and classification challenges.
    (vi) Security classification guides.
    (vii) Information sharing.
    (3) Record of training. Contractors will retain records of the date 
of the most recent training (initial or refresher) and type of training 
provided to employees.
    (i) Information systems security. All information system authorized 
users will receive training on the security risks associated with their 
user activities and responsibilities under the NISP. The contractor 
will determine the appropriate content of the training, taking into 
consideration assigned roles and responsibilities, specific security 
requirements, and the information system to which personnel are 
authorized access.
    (j) Temporary help suppliers. A cleared temporary help supplier, or 
other contractor who employs cleared individuals solely for dispatch 
elsewhere, will be responsible for ensuring that required briefings 
(both initial and refresher training) are provided to their cleared 
personnel. The temporary help supplier or the using contractor may 
conduct these briefings.

[[Page 83336]]

    (k) Refresher training. The contractor will provide all cleared 
employees with security education and training every 12 months. 
Refresher training will reinforce the information provided during the 
initial security briefing and will keep cleared employees informed of 
changes in security regulations and should also address issues or 
concerns identified during contractor self-reviews. Training methods 
may include group briefings, interactive videos, dissemination of 
instructional materials, or other media and methods. Contractors will 
maintain records about the programs offered and employee participation 
in them.
    (l) Debriefings. Contractors will debrief cleared employees and 
annotate the debriefing in the appropriate contractor records when 
access to classified information is no longer needed; at the time of 
termination of employment (discharge, resignation, or retirement); when 
an employee's eligibility for access to classified information is 
terminated, suspended, or revoked; and upon termination of the entity 
eligibility determination.


Sec.  117.13   Classification.

    (a) Original classification. Only a USG official designated or 
delegated the authority in writing can make an original classification 
decision.
    (1) An OCA classifies information pursuant to E.O. 13526 and 32 CFR 
part 2001, designates and marks it as TOP SECRET, SECRET, or 
CONFIDENTIAL, and, except as provided by statute, may use no other 
terms to identify classified information.
    (2) The designation UNCLASSIFIED is used to identify information 
that does not meet the criteria for classification in accordance with 
E.O. 13526. In accordance with 32 CFR 2002, CUI implementing guidance 
(including the Marking Handbook) and any GCA-provided guidance, CUI 
commingled with classified information must be marked as CUI to alert 
users to its presence and sensitivity. The CUI regulation, guidance, 
and handbook are available at: https://www.archives.gov/cui.
    (b) Derivative classification. (1) Contractor personnel make 
derivative classification decisions when they incorporate, paraphrase, 
restate, or generate in new form, information that is already 
classified. They must mark the newly developed material consistently 
with the classification markings that apply to the source information.
    (2) Derivative classification is the classification of information 
based on guidance from an OCA, which may be either a properly marked 
source document or a current security classification guide provided by 
a GCA in accordance with E.O. 13526. The duplication or reproduction of 
existing classified information is not derivative classification.
    (3) A source document that does not contain portion markings, due 
to an ISOO-approved waiver, must contain a warning statement that it 
may not be used as a source for derivative classification in accordance 
with 32 CFR 2001.24(k)(4).
    (4) Classified information in email messages is marked pursuant to 
E.O. 13526 and 32 CFR part 2001. If an email is transmitted on a 
classified system, includes a classified attachment, and contains no 
classified information within the body of the email itself, the email 
serves as a transmittal document and is not a derivatively classified 
document. The email's overall classification must reflect the highest 
classification level present in the attachment.
    (c) Derivative classification responsibilities. Contractors will 
provide employees with pertinent classification guidance to fulfill 
their derivative classification responsibilities. All contractor 
employees authorized to make derivative classification decisions will:
    (1) Mark the face of each derivatively classified document with a 
classification authority block that includes the employee's name and 
position or personal identifier, the entity name, and when applicable, 
the division or the branch.

     Figure 1 to Paragraph (c)(1) Example of Industry Classification
                             Authority Block
  UNCLASSIFIED: CLASSIFICATION MARKINGS FOR ILLUSTRATION PURPOSES ONLY
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
Classified by: John Doe, Security Specialist, Entity ABC Security
 Division
Derived From: SecDef Memo, dtd 20101024, Subj: ___
Declassify On: 20201024
------------------------------------------------------------------------

    (2) Observe and respect original classification decisions.
    (3) Carry forward the pertinent classification markings to any 
newly created documents. For information derivatively classified based 
on multiple sources, the derivative classifier will carry forward:
    (i) The date or event for declassification that corresponds to the 
longest period of classification among the sources.
    (ii) A listing of the source materials.
    (4) Be trained, in accordance with Sec.  117.12(h), in the proper 
application of the derivative classification principles at least once 
every two years.
    (5) Whenever possible, use a classified addendum if classified 
information constitutes a small portion of an otherwise unclassified 
document.
    (d) Security classification guidance. (1) Contractors should be 
aware the GCA will:
    (i) Incorporate appropriate security requirement clauses in a 
classified contract, IFB, RFP, RFQ, or all solicitations leading to a 
classified contract.
    (ii) Provide the contractor with the security classification 
guidance needed during performance of the contract.
    (iii) Provide this guidance to the contractor in the contract 
security classification specification, or equivalent.
    (2) The contract security classification specification, or 
equivalent, must identify the specific elements of classified 
information involved in the contract that require security protection.
    (3) At the discretion of the CSA, contractors may, to the extent 
possible, advise and assist in the development and any updates to or 
any revisions to the contract security classification specification, or 
equivalent.
    (4) The contractor will comply with all aspects of the 
classification guidance.
    (i) Users of classification guides are encouraged to notify the 
originator of the guide when they acquire information that suggests the 
need for change in the instructions contained in the guide.
    (ii) Classification guidance is the exclusive responsibility of the 
GCA, and the final determination of the appropriate classification for 
the information rests with that activity. The contract security 
classification specification, or equivalent, is a contractual 
specification necessary for the performance of a classified contract. 
Challenges to classification status are in paragraph (e) in this 
section.
    (iii) If the contractor receives a classified contract without a 
contract security classification specification, or equivalent, the 
contractor will notify the GCA. If the GCA does not respond with the 
appropriate contract security classification specification, or 
equivalent, the contractor will notify the CSA.
    (5) Upon completion of a classified contract, the contractor must 
return all USG provided or deliverable information to the custody of 
the USG.
    (i) If the GCA does not advise to the contrary, the contractor may 
retain

[[Page 83337]]

copies of the USG material for a period of two years following the 
completion of the contract. The contract security classification 
specification, or equivalent, will continue in effect for this two-year 
period.
    (ii) If the GCA determines the contractor has a continuing need for 
the copies of the USG material beyond the two-year period, the GCA will 
issue a final contract security classification specification, or 
equivalent, for the classified contract and will include disposition 
instructions for the copies.
    (e) Challenges to classification status. (1) The contractor will 
address challenges to classification status with the GCA and request 
remedy when:
    (i) Information is classified improperly or unnecessarily.
    (ii) Current security considerations justify downgrading to a lower 
classification level or upgrading to a higher classification level.
    (iii) Security classification guidance is not provided, improper or 
inadequate.
    (2) If the GCA does not provide a remedy, and the contractor still 
believes that corrective action is required, the contractor will make a 
formal written challenge to the GCA. The challenge will include:
    (i) A description sufficient to identify the issue.
    (ii) The reasons why the contractor thinks that corrective action 
is required.
    (iii) Recommendations for appropriate corrective action.
    (3) The contractor will safeguard the information as required for 
its assigned or proposed level of classification, whichever is higher, 
until action is completed.
    (4) If the contractor does not receive a written answer from the 
GCA within 60 days, the contractor will request assistance from the 
CSA. If the contractor does not receive a response from the GCA within 
120 days, the contractor may appeal the challenge to the Interagency 
Security Classification Appeals Panel through ISOO.
    (5) The fact that a contractor has initiated such a challenge will 
not, in any way, serve as a basis for adverse action against the 
contractor by the USG. If a contractor believes that adverse action did 
result from a classification challenge, the contractor will promptly 
furnish full details to ISOO for resolution.
    (f) Contractor developed information. Whenever a contractor 
develops an unsolicited proposal or originates information not in the 
performance of a classified contract, the provisions of this paragraph 
apply.
    (1) If the information was previously identified as classified, it 
will be classified according to an appropriate classification guide, or 
source document, and appropriately marked.
    (2) If the information was not previously classified, but the 
contractor believes the information may or should be classified, the 
contractor will:
    (i) Protect the information as though classified at the appropriate 
level.
    (ii) Submit the information to the agency that has an interest for 
a classification determination. In such cases, clearly mark the 
material ``CLASSIFICATION DETERMINATION PENDING; Protect as either TOP 
SECRET, SECRET, or CONFIDENTIAL.'' This marking will appear 
conspicuously at least once on the material but no further markings are 
necessary until a classification determination is received.
    (iii) Not be precluded from marking such material as entity-private 
or entity-proprietary information, unless the material was based upon 
information obtained from prior deliverables to the USG or was 
developed from USG material.
    (iv) Protect the information pending a final classification 
determination. The information may be CUI, if it is not classified. 
Only information that is owned by, produced by, produced for, or is 
under the control of the USG can be classified in accordance with E.O. 
13526.
    (3) To be eligible for classification:
    (i) The information must incorporate classified information to 
which the contractor was given prior access.
    (ii) The information must be partially or wholly owned by, produced 
by or for, or under the control of the USG.
    (4) 10 CFR 1045.21 includes provisions for the DOE with regard to 
privately generated RD, whereby the DOE may classify such information 
in accordance with the AEA.
    (g) Improperly released classified information appearing in public 
media. Improperly released classified information is not automatically 
declassified. When classified information has been improperly released, 
and even when that classified information has become publicly 
available, contractors will:
    (1) Continue to protect the information at the appropriate 
classification level until formally advised to the contrary by the GCA.
    (2) Bring any questions about the propriety of continued 
classification in these cases to the immediate attention of the GCA.
    (3) Notify the applicable CSA if an employee downloads the 
improperly released classified information to determine how to resolve 
a data spill.
    (h) Downgrading or declassifying classified information. 
Information is downgraded or declassified based on the loss of 
sensitivity of the information due to the passage of time or on 
occurrence of a specific event. Downgrading or declassifying actions 
constitute implementation of a directed action based on a review by 
either the OCA or the USG-designated classification authority. 
Declassification is not an approval for public disclosure.
    (1) Downgrading. Contractors will refer information for 
classification or downgrade to the GCA based on the guidance provided 
in a contract security classification specification, or equivalent, or 
upon formal notification.
    (2) Declassification. Contractors are not authorized to implement 
downgrading or declassification instructions even when the material is 
marked for automatic downgrading or declassification. If the material 
is marked for automatic declassification and the contractor notes that 
the date or event for the automatic declassification has occurred, the 
contractor will seek guidance from the GCA.
    (i) RD, FRD, and TFNI. Protection requirements for RD, FRD, and 
TFNI are pursuant to Sec.  117.23(e). Information about classification 
and declassification of RD, FRD, or TFNI documents is in Sec.  
117.23(e)(5).


Sec.  117.14   Marking requirements.

    (a) Purpose for marking. (1) Physically marking classified 
information with appropriate classification markings serves to warn and 
inform holders of the information of the degree of protection required. 
Other notations facilitate downgrading and declassification, and aid in 
derivative classification actions.
    (2) Contractors will clearly mark all classified information and 
material to convey to the holder the level of classification assigned, 
the portions that contain or reveal classified information, the period 
of time protection is required, the identity (by name and position or 
personal identifier) of the classifier, the source(s) for derivative 
classification, and any other notations required for protection of the 
information.
    (b) Marking guidance for classified information and material. 
Contractors will use the marking guidance conveyed in 32 CFR 2001.22 
through 2001.26, and its companion document, ISOO booklet ``Marking 
Classified National Security Information,'' (available at: https://www.archives.gov/isoo/training/training-aids) or CSA specific provided 
guidance for marking derivatively classified information and material 
and as required by applicable security

[[Page 83338]]

classification guide. The special requirements for marking documents 
containing RD, FRD, and TFNI are addressed in Sec.  117.23.
    (c) Marking guidance for CUI. Contractors will use marking guidance 
conveyed in 32 CFR 2002.20, the CUI Marking Handbook (available at: 
https://www.archives.gov/files/cui/documents/20161206-cui-marking-handbook-v1-1-20190524.pdf), and agency policy to mark CUI in 
accordance with contract requirements.
    (d) Working papers. Working papers will be marked, destroyed, and 
retained in accordance with Sec.  117.15(e)(3).
    (e) Translations. The contractor will mark translations of U.S. 
classified information into a language other than English with the 
appropriate U.S. markings and the foreign language equivalent to show 
the United States as the country of origin.
    (f) Marking wholly unclassified material. The contractor will not 
mark or stamp wholly UNCLASSIFIED material as UNCLASSIFIED unless it is 
essential to convey to a recipient of such material that:
    (1) The material has been examined specifically with a view to 
impose a security classification and has been determined not to require 
classification by the GCA.
    (2) The material has been reviewed and has been determined to no 
longer require classification and it has been declassified by the 
applicable GCA.
    (g) Marking miscellaneous material. The contractor will:
    (1) Handle miscellaneous material developed in connection with the 
handling, processing, production, storage, and utilization of 
classified information in a manner that ensures adequate protection of 
the classified information involved.
    (2) Destroy the miscellaneous material at the earliest practical 
time, unless a requirement exists to retain such material. 
Notwithstanding the provisions of paragraph (a) of this section, there 
is no requirement for the contractor to mark such material, but 
disposition and retention requirements in Sec.  117.15(i) and (j) 
apply.
    (h) Marking training material. The contractor will clearly mark 
unclassified documents or materials that are created to simulate or 
demonstrate classified documents or material to indicate the actual 
UNCLASSIFIED status of the information. For example, the contractor may 
use: MARKINGS ARE FOR TRAINING PURPOSES ONLY, OTHERWISE UNCLASSIFIED or 
UNCLASSIFIED SAMPLE, or other similar marking.
    (i) Downgrading or declassification actions. When a contractor 
removes documents or material that have been downgraded or declassified 
from storage for use or for transmittal outside the contractor 
location:
    (1) The documents or material must be re-marked pursuant to 
paragraph (i)(1)(i) or (i)(1)(ii) in this section.
    (i) Prior to taking any action to downgrade or declassify 
information, the contractor will seek guidance from the GCA. If the GCA 
approves such action, the contractor will cancel all old classification 
markings with the new markings substituted, whenever practical. For 
documents, at a minimum the outside of the front cover, the title page, 
the first page, and the outside of the back will reflect the new 
classification markings, or include the designation UNCLASSIFIED. The 
contractor will re-mark other material by the most practical method for 
the type of material involved to ensure that it is clear to the holder 
what level of classification is assigned to the material.
    (ii) When the GCA notifies contractors of downgrading or 
declassification actions that are contrary to the markings shown on the 
material, the contractor will re-mark material to indicate the change 
and notify other holders if further dissemination was made. The 
contractor will mark the material to indicate the:
    (A) Authority for the action.
    (B) Date of the action.
    (C) Identity and position of the individual taking the action.
    (2) If the volume of material is such that prompt re-marking of 
each classified item cannot be accomplished without unduly interfering 
with operations, the contractor may attach a downgrading and 
declassification notice to the inside of the file drawers or other 
storage container instead of the re-marking otherwise required.
    (3) When such documents or materials are withdrawn from the 
container solely for transfer to another container, or when the 
container is transferred from one place to another, the transfer may be 
made without re-marking if the notice is attached to the new container 
or remains with each shipment.
    (4) For the purpose of paragraphs (i)(2) and (i)(3) in this 
section, the contractor must include in the downgrading and 
declassification notice:
    (i) The authority for the downgrading or declassification action.
    (ii) The date of the action.
    (iii) The storage container to which it applies.
    (j) Upgrading action. (1) When the contractor receives notice from 
the GCA to upgrade material to a higher level; for example, from 
CONFIDENTIAL to SECRET, the contractor will:
    (i) Immediately enter the new markings on the material according to 
the notice to upgrade, and strike through all the superseded markings.
    (ii) Enter the authority for and the date of the upgrading action 
on the material.
    (iii) Ensure all records affected are stored at the appropriate 
level of security, including digital networks and systems. Upgrades 
requiring network or system adjustment will be coordinated with the GCA 
to mitigate or account for impact on the execution of the contract.
    (2) The contractor will notify all holders to whom they 
disseminated the material. The contractor will not mark the notice as 
classified unless it contains additional information warranting 
classification.
    (3) In the case of material which was inadvertently released as 
UNCLASSIFIED, the contractor will mark and protect the notice as 
classified at the CONFIDENTIAL level, unless it contains additional 
information warranting a higher classification. The contractor will 
cite the applicable Contract Security Classification Specification, or 
equivalent, or other classification guide on the ``Derived From'' line 
and mark the notice with an appropriate declassification instruction.
    (k) Dissemination of improperly marked information. If the 
contractor inadvertently distributes classified material without the 
proper classification assigned to it, or without any markings to 
identify the material as classified, as appropriate, the contractor 
will:
    (1) Determine whether all holders of the material are cleared and 
authorized access to it.
    (2) If recipients are authorized persons, and the contractor 
disseminated the information through authorized channels, promptly 
provide written notice to all holders of the proper classification to 
be assigned. The contractor will also include the classification source 
as well as declassification instructions in the notification.
    (3) Report compromises to the CSA in accordance with the provisions 
of Sec.  117.8(d), if:
    (i) Any of the recipients of the material are not authorized 
persons.
    (ii) Any material cannot be accounted for.
    (iii) The material was transmitted through unauthorized channels.

[[Page 83339]]

    (l) Marking foreign government classified material. Foreign 
government classified information will retain its original 
classification markings or will be assigned a U.S. classification that 
provides a degree of protection at least equivalent to that required by 
the foreign government entity that furnished the information in 
accordance with 32 CFR 2001.54. The equivalent U.S. classification and 
the country of origin will be marked on the front and back in English.
    (m) Foreign government restricted information and ``in confidence'' 
information.
    (1) Some foreign governments have a fourth level of classification 
that does not correspond to an equivalent U.S. classification that is 
identified as RESTRICTED information. In many cases, security 
agreements require RESTRICTED information to be protected as U.S. 
CONFIDENTIAL information.
    (2) Some foreign governments may have a category of unclassified 
information that is protected by law. This latter category is normally 
provided to other governments with the expectation that the information 
will be treated ``In Confidence.'' The foreign government or 
international organization must state that the information is provided 
in confidence and that it must be protected from release.
    (i) 10 U.S.C. 130c protects information provided ``In Confidence'' 
by foreign governments which is not classified but meets special 
requirements.
    (ii) This provision also applies to RESTRICTED information which is 
not required by an agreement to be protected as classified information.
    (iii) The contractor will not disclose information protected by 
this statutory provision to anyone except personnel who require access 
to the information in connection with the contract.
    (3) It is the responsibility of the foreign entity that awards the 
contract to incorporate requirements for the protection and marking of 
RESTRICTED or ``In Confidence'' information in the contract. The 
contractor will advise the CSA if requirements were not provided by the 
foreign entity.
    (n) Marking U.S. documents containing FGI. (1) U.S. documents 
containing FGI must be marked on the front, ``THIS DOCUMENT CONTAINS 
(indicate country of origin) INFORMATION.'' In addition, the portions 
must be marked to identify both the country and classification level, 
(e.g., (UK-C), (GE-C)). The ``Derived From'' line will identify U.S. as 
well as foreign classification sources.
    (2) If the identity of the foreign government must be concealed, 
the front of the document will be marked ``THIS DOCUMENT CONTAINS 
FOREIGN GOVERNMENT INFORMATION;'' paragraphs will be marked FGI, 
together with the classification level (e.g., (FGI-C)); and the 
``Derived From'' line will indicate FGI in addition to any U.S. source. 
The identity of the foreign government will be maintained with the 
record copy of the document.
    (3) A U.S. document that contains FGI will not be downgraded below 
the highest level of FGI contained in the document or be declassified 
without the written approval of the foreign government that originated 
the information. Recommendations concerning downgrading or 
declassification will be submitted to the GCA or foreign government 
contracting authority, as applicable.
    (o) Marking documents prepared for foreign governments. Documents 
prepared for foreign governments that contain U.S. classified 
information and FGI will be marked as prescribed by the foreign 
government. In addition, they will be marked on the front, ``THIS 
DOCUMENT CONTAINS UNITED STATES CLASSIFIED INFORMATION.'' Portions will 
be marked to identify the U.S. classified information.
    (p) Marking requirements for transfers of defense articles to 
Australia (AUS) or the United Kingdom (UK). Marking requirements for 
transfers of defense articles to AUS or the UK without a license or 
other written authorization are pursuant to Sec.  117.19(i).
    (q) Commingling of RD and FRD. Commingling of RD, FRD, and TFNI 
with national security information (NSI) in the same document should be 
avoided to the greatest degree possible. When mixing this information 
cannot be avoided, the marking requirements in 10 CFR part 1045, 
section 140(f) and declassification requirements of 10 CFR part 1045, 
section 155 apply.


Sec.  117.15   Safeguarding Classified Information.

    (a) General safeguarding. Contractors will be responsible for 
safeguarding classified information in their custody or under their 
control, with approval for such storage of classified information by 
the applicable CSA. Individuals are responsible for safeguarding 
classified information entrusted to them. Contractors will provide the 
extent of protection to classified information sufficient to reasonably 
protect it from loss or compromise.
    (1) Oral discussions. Contractors will ensure that all cleared 
personnel are aware of the prohibition against discussing classified 
information over unsecured telephones, in public conveyances or places, 
or in any other manner that permits interception by unauthorized 
persons.
    (2) End of day security checks. (i) Contractors that store 
classified material will establish a system of security checks at the 
close of each working day to verify that all classified material and 
security repositories have been appropriately secured.
    (ii) Contractors that operate multiple work shifts will perform the 
security checks at the end of the last working shift in which 
classified material was removed from storage for use. The checks are 
not required during continuous 24-hour operations.
    (3) Perimeter controls. (i) Contractors authorized to store 
classified material will establish and maintain a system to deter and 
detect unauthorized introduction or removal of classified material from 
their facility without proper authority.
    (ii) If the unauthorized introduction or removal of classified 
material can be reasonably prevented through technical means (e.g., an 
intrusion detection system), which are encouraged, no further controls 
are necessary. The contractor will provide appropriate authorization to 
personnel who have a legitimate need to remove or transport classified 
material for passing through designated entry or exit points.
    (iii) The contractor will:
    (A) Provide appropriate authorization to personnel who have a 
legitimate need to remove or transport classified material for passing 
through designated entry or exit points.
    (B) Conspicuously post notices at all pertinent entries and exits 
that persons who enter or depart the facility are subject to an 
inspection of their personal, except under circumstances where the 
possibility of access to classified material is remote.
    (C) Limit inspections to buildings or areas where classified work 
is being performed.
    (D) Establish the extent, frequency, and location of inspections in 
a manner consistent with contractual obligations and operational 
efficiency. The contractor may use any appropriate random sampling 
technique.
    (E) Seek legal advice during the formulation of implementing 
procedures.
    (F) Submit significant problems pertaining to perimeter controls 
and inspections to the CSA.
    (iv) Contractors will develop procedures for safeguarding 
classified material in emergency situations.

[[Page 83340]]

    (A) The procedures should be as simple and practical as possible 
and adaptable to any type of emergency that may reasonably arise.
    (B) Contractors will promptly report to the CSA any emergency 
situation that renders them incapable of safeguarding classified 
material.
    (b) Standards for Security Equipment. Contractors will follow 
guidelines established in 32 CFR part 2001, when procuring storage and 
destruction equipment. Authorized repairs for GSA-approved security 
containers and vaults must be in accordance with Federal Standard 809.
    (c) Storage. Contractors will store classified information and 
material in General Services Administration (GSA)-approved security 
containers, vaults built to Federal Standard 832, or an open storage 
area constructed in accordance with 32 CFR 2001.53. In the instance 
that an open storage area has a false ceiling or raised floor, 
contractors shall develop and implement procedures to ensure their 
structural integrity. Nothing in 32 CFR part 2001, should be construed 
to contradict or inhibit compliance with local laws or building codes, 
but the contractor will notify the applicable CSA if there are any 
conflicting issues that would inhibit compliance. Contractors will 
store classified material in accordance with the specific sections of 
32 CFR 2001.43:
    (1) CONFIDENTIAL. See 32 CFR 2001.43(b)(3).
    (2) SECRET. See 32 CFR 2001.43(b)(2).
    (3) TOP SECRET Documents. See 32 CFR 2001.43(b)(1).
    (d) Intrusion Detection Systems (IDS). This paragraph specifies the 
minimum standards for an approved IDS when used for supplemental 
protection of TOP SECRET and SECRET material. The CSA will provide 
additional guidance for contingency protection procedures in the event 
of IDS malfunction, including contractors located in USG owned 
contractor operated facilities.
    (1) CSA approval. (i) CSA approval is required before installing an 
IDS. The CSA will base approval of a new IDS on the criteria of 
Intelligence Community Directive 705 (available at: https://www.dni.gov/files/documents/ICD/ICD_705_SCIFs.pdf) and any applicable 
intelligence community standard, Underwriters Laboratories (UL) 
Standard 2050 (Government agencies with a role as a CSA or CSO may 
obtain this reference without charge; available at: www.ul.com/contact), or the CSA may base approval on written CSA-specific 
standards for the information to be protected.
    (ii) Installation will be performed by an alarm services company 
certified by a NRTL that meets the requirements in 29 CFR 1910.7 to 
perform testing and certification. The NRTL-approved alarm service 
company is responsible for completing the appropriate alarm system 
description form approved by the NRTL.
    (iii) All the intrusion detection equipment (IDE) used in the IDS 
installation will be tested and approved (or listed) by a NRTL, 
ensuring its proper operation and resistance from tampering. Any IDE 
that has not been tested and approved by a NRTL will require CSA 
approval.
    (2) Central monitoring station. (i) For the purpose of monitoring 
alarms, an equivalent level of monitoring service is available from 
multiple types of providers. The central monitoring station may be 
located at a one of the following:
    (A) Government contractor monitoring station (GCMS), formerly 
called a proprietary central station.
    (B) Cleared commercial central station.
    (C) Cleared protective signal service station (e.g., fire alarm 
monitor).
    (D) Cleared residential monitoring station.
    (E) National industrial monitoring station.
    (ii) SECRET-cleared central station employees at the alarm 
monitoring station will be in attendance in sufficient number to 
monitor each alarmed area within the cleared contractor facility.
    (iii) The central monitoring station will be supervised 
continuously by a U.S. citizen who has eligibility for access to SECRET 
information.
    (iv) The IDS must be activated at the close of business whenever 
the area is not occupied by cleared personnel. Any IDS exit delay 
function must expire prior to the cleared personnel leaving the 
immediate area. A record will be maintained to identify the person or 
persons who are responsible for setting and deactivating the IDS.
    (v) Records will be maintained for 12 months indicating time of 
receipt of alarm, name(s) of security force personnel responding, time 
dispatched to facility or area, time security force personnel arrived, 
nature of alarm, and what follow-up actions were accomplished.
    (3) Investigative response to alarms. (i) Alarm response teams will 
ascertain if intrusion has occurred and, if possible, assist in the 
apprehension of the individuals involved.
    (A) If an alarm activation resets in a reasonable amount of time 
and no damage to the area is visible, then entrance into the area is 
not required and an initial response team may consist of uncleared 
personnel.
    (B) If the alarm activation does not reset and damage is observed, 
then a cleared response team must be dispatched. The initial uncleared 
response team must stay on station until relieved by the cleared 
response team. If a cleared response team does not arrive within 1 
hour, then a report to the CSA must be made by the close of the next 
business day.
    (ii) The following resources may be used to investigate alarms: 
Proprietary security force personnel, central station guards, local law 
enforcement personnel, or a subcontracted guard service. The CSA may 
approve procedures for the use of entity cleared employees who can meet 
the minimum response requirements outlined in this section.
    (A) For a GCMS, trained proprietary or subcontractor security force 
personnel, cleared to the SECRET level and sufficient in number to be 
dispatched immediately to investigate each alarm, will be available at 
all times when the IDS is in operation.
    (B) For a commercial central station, protective signaling service 
station, or residential monitoring station, there will be a sufficient 
number of trained guards available to respond to alarms. Guards will be 
cleared only if they have the ability and responsibility to access the 
area or container(s) housing classified material (i.e., keys to the 
facility have been provided or the personnel are authorized to enter 
the building or check the container or area that contains classified 
material).
    (C) Uncleared guards dispatched by a commercial central station, 
protective signaling service station, or residential monitoring station 
in response to an alarm will remain on the premises until a designated, 
cleared representative of the facility arrives, or for a period of not 
less than 1 hour, whichever comes first. If a cleared representative of 
the facility does not arrive within 1 hour following the arrival of the 
guard, the central control station must provide the CSA with a report 
of the incident that includes the name of the subscriber facility, the 
date and time of the alarm, and the name of the subscriber's 
representative who was contacted to respond. A report will be submitted 
to the CSA by the end of business on the next business day.
    (D) Subcontracted guards must be under a classified contract with 
either the installing alarm service company or the cleared facility.

[[Page 83341]]

    (iii) The response time will be in accordance with the provisions 
in paragraphs (c)(1) through (c)(3) in this section as applicable. When 
environmental factors (e.g., traffic, distance) legitimately prevent 
meeting the requirements for TOP SECRET information, as indicated in 
paragraph (c)(3) in this section, the CSA may authorize up to a 30-
minute response time. The CSA approval will be documented on the alarm 
system description form and the specified response time will be noted 
on the alarm certificate. The requirement for response is 80 percent 
within the time limits.
    (4) Installation. The IDS will be installed by an NRTL-approved 
entity or by an entity approved in writing by the CSA. When connected 
to a commercial central station, GCMS, national industrial monitoring 
station, or residential monitoring station, the service provided will 
include line security (i.e., the connecting lines are electronically 
supervised to detect evidence of tampering or malfunction). The level 
of protection for the alarmed area will include all points of probable 
entry (perimeter doors and accessible windows) with magnetic contacts 
and motion detectors positioned in the probable intruder paths from the 
probable points of entry to the classified information. In accordance 
with Federal Standard 809, no IDS sensors (magnetic contacts or 
vibration detectors) will be installed on GSA-approved security 
containers. CSA authorization on the alarm system description form is 
required in the following circumstances:
    (i) When line security is not available, installation will require 
two independent means of transmission of the alarm signal from the 
alarmed area to the monitoring station.
    (ii) Alarm installation provides a level of protection, e.g. UL's 
Extent 5, based on patrolling employees and CSA approval of security-
in-depth.
    (iii) Where law enforcement personnel are the primary alarm 
response. Under those circumstances, the contractor must obtain written 
assurance from the police department regarding the ability to respond 
to alarms in the required response time.
    (iv) Alarm signal transmission is over computer-controlled data-
networks (e.g., internet, intranet). The CSA will provide specific 
acceptance criteria (e.g., encryption requirements) for alarms 
monitored over data networks.
    (v) Alarm investigator response time exceeds the parameters 
outlined in paragraphs (c)(1) through (c)(3) in this section as 
applicable.
    (5) Certification of compliance. Evidence of compliance with the 
requirements of this section will consist of a valid (current) 
certification by an approved NRTL for the appropriate category of 
service. This certificate:
    (i) Will have been issued to the protected facility by the NRTL, 
through the alarm service company.
    (ii) Serves as evidence that the alarm service company that did the 
installation is:
    (A) Listed as furnishing security systems of the category 
indicated.
    (B) Authorized to issue the certificate of installation as 
representation that the equipment is in compliance with requirements 
established by NRTL for the class of alarm system.
    (C) Subject to the NRTL inspection program whereby periodic 
inspections are made of representative alarm installations by NRTL 
personnel to verify the correctness of certification practices.
    (6) Exceptional cases. (i) If the requirements in paragraphs (d)(1) 
through (d)(5) in this section cannot be met, the contractor may 
request CSA approval for an alarm system meeting one of these 
conditions, which will be documented on the alarm system description 
form:
    (A) Monitored by a central control station but responded to by a 
local (municipal, county, state) law enforcement organization.
    (B) Connected by direct wire to alarm receiving equipment located 
in a local (municipal, county, State) police station or public 
emergency service dispatch center. This alarm system is activated and 
deactivated by employees of the contractor, but the alarm is monitored 
and responded to by personnel of the monitoring police or emergency 
service dispatch organization. Personnel monitoring alarm signals at 
police stations or dispatch centers do not require PCLs. Police 
department response systems may be requested only when:
    (1) The contractor facility is located in an area where central 
control station services are not available with line security or 
proprietary security force personnel, or a contractually-dispatched 
response to an alarm signal cannot be achieved within the time limits 
required by the CSA.
    (2) It is impractical for the contractor to establish a GCMS or 
proprietary guard force at that location. In this case, installation of 
these systems must use NRTL-approved equipment and be accomplished by 
an NRTL-approved entity meeting the applicable testing standard for the 
category of service.
    (ii) An installation proposal, explaining how the system would 
operate, will be submitted to the CSA. The proposal must include:
    (A) Sufficient justification for the granting of an exception and 
the full name and address of the police department that will monitor 
the system and provide the required response.
    (B) The name and address of the NRTL-approved entity that will 
install the system, and inspect, maintain, and repair the equipment.
    (iii) The response times will be in accordance with the provisions 
in paragraphs (c)(1) through (c)(3) in this section as applicable. 
Arrangements will be made with the central monitoring station to 
immediately notify a contractor representative on receipt of the alarm. 
The contractor representative is required to go immediately to the 
facility to investigate the alarm and to take appropriate measures to 
secure the classified material.
    (iv) In exceptional cases where central station monitoring service 
is available, but no proprietary security force, central station, or 
subcontracted guard response is available, and where the police 
department does not agree to respond to alarms, and no other manner of 
investigative response is available, the CSA may approve cleared 
employees as the sole means of response.
    (e) Information controls.--(1) Information management system. 
Contractors will establish:
    (i) A system to verify that classified information in their custody 
is used or retained only for a lawful and authorized USG purpose.
    (ii) An information management system to protect and control the 
classified information in their possession regardless of media, to 
include information processed and stored on authorized information 
systems.
    (2) Top secret information. Contractors will establish controls for 
TOP SECRET information and material to validate procedures are in place 
to address accountability, need to know, and retention, e.g., 
demonstrating that TOP SECRET material stored in an electronic format 
on an authorized classified information system does not need to be 
individually numbered in series. These controls are in addition to the 
information management system and must be applied, unless otherwise 
directed by the applicable CSA, regardless of the media of the TOP 
SECRET information, to include information processed and stored on 
authorized information systems. Unless otherwise directed by the 
applicable

[[Page 83342]]

CSA, the contractor will establish the following additional controls:
    (i) Designate TOP SECRET control officials to receive, transmit, 
and maintain access and accountability records to TOP SECRET 
information.
    (ii) Conduct an annual inventory of TOP SECRET information and 
material.
    (iii) Establish a continuous receipt system for the transmittal of 
TOP SECRET information within and outside the contractor location.
    (iv) Number each item of TOP SECRET material in a series. Place the 
copy number on TOP SECRET documents, regardless of media, and on all 
associated transactions documents.
    (v) Establish a record of TOP SECRET material when the material is:
    (A) Completed as a finished document.
    (B) Retained for more than 180 days after creation, regardless of 
the stage of development.
    (C) Transmitted outside the contractor location.
    (vi) Establish procedures for destruction of TOP SECRET material by 
two authorized persons.
    (vii) Establish destruction records for TOP SECRET material and 
maintain the records for two years in accordance with Sec.  
117.13(d)(5) or in accordance with GCA requirements.
    (3) Working papers. Contractors will establish procedures for the 
control of classified working papers generated in the preparation of a 
finished document. The contractor will:
    (i) Date working papers when they are created.
    (ii) Mark each page of the working papers with the highest 
classification level of any information contained in them and with the 
annotation ``WORKING PAPERS.''
    (iii) Destroy working papers when no longer needed.
    (iv) Mark in the same manner prescribed for a finished document at 
the same classification level if released outside the contractor 
location or retained for more than 180 days from the date of origin.
    (4) Combinations to locks. Contractors will follow the guidance in 
32 CFR 2001.45(a)(1) and 2001.43 (c) to address thresholds when 
combinations will be changed. Combinations to locks used to secure 
vaults, open storage areas, and security containers that are approved 
for the safeguarding of classified information will be protected in the 
same manner as the highest level of classified information that the 
vault, open storage area, or security container is used to protect.
    (5) Information system passwords. Contractors will follow the 
guidance established in 32 CFR 2001.45(a)(2) for the protection of 
passwords to information systems authorized to process and store 
classified information at the highest level of classification to which 
the information system is authorized.
    (6) Reproduction of classified information. Contractors will follow 
the guidance established in 32 CFR 2001.45(b) for the reproduction of 
classified information.
    (f) Transmission of classified information. Contractors will 
establish procedures for transmitting and receiving classified 
information and material in accordance with 32 CFR 2001.46.
    (1) Top secret. The contractor must have written authorization from 
the GCA to transmit TOP SECRET material outside the contractor 
location.
    (2) Transmission outside the United States and its Territorial 
Areas. The contractor may transmit classified material to a USG 
activity outside the United States or a U.S. territorial area only 
under the provisions of a classified contract or with written 
authorization from the GCA.
    (3) Commercial delivery entities. The CSA may approve contractors 
to transmit SECRET or CONFIDENTIAL information within the United States 
and its territorial areas by means of a commercial delivery entity that 
is a current holder of the GSA contract for overnight delivery, and 
which provides nation-wide, overnight service with computer tracking 
and reporting features (a list of current contract holders may be found 
at: https://www.archives.gov/isoo/faqs#what-is-overnightcarriers). Such 
entities do not need to be determined eligible for access to classified 
information.
    (i) Prior to CSA approval, the contractor must establish and 
document procedures to ensure the proper protection of incoming and 
outgoing classified packages, including the street delivery address, 
for each cleared facility intending to use GSA-listed commercial 
delivery entities for overnight services.
    (ii) Contractors will establish procedures for the use of 
commercial delivery entities in accordance with 32 CFR part 2001. The 
procedures will:
    (A) Confirm that the commercial delivery entity provides 
nationwide, overnight delivery service with automated in-transit 
tracking of the classified packages.
    (B) Ensure the package integrity during transit and that incoming 
shipments are received by appropriately cleared personnel.
    (C) Not be used for COMSEC, NATO, or FGI.
    (4) Couriers and hand carriers. Contractors may designate cleared 
employees as couriers or hand carriers. Contractors will:
    (i) Brief employees providing such services on their responsibility 
to safeguard classified information and keep classified material in 
their possession at all times.
    (ii) Provide employees with an identification card or badge which 
contains the contractor's name and the name and a photograph of the 
employee.
    (iii) Make arrangements in advance of departure for overnight 
storage at a USG installation or at a cleared contractor's facility 
that has appropriate storage capability, if needed.
    (iv) Conduct an inventory of the material prior to departure and 
upon return. The employee will carry a copy of the inventory with them.
    (5) Use of commercial passenger aircraft. The contractor may 
authorize cleared employees to hand carry classified material aboard 
commercial passenger aircraft.
    (i) Routine processing. Employees hand carrying classified material 
are subject to routine processing by airline security agents. Hand-held 
packages will normally be screened by x-ray examination. If security 
personnel are not satisfied with the results of the inspection and 
requests the prospective passenger to open a classified package for 
visual examination, the traveler must inform the screener that the 
carry-on items contain USG classified information and cannot be opened. 
Under no circumstances may traveler or security personnel open the 
classified material unless required by customs or other government 
officials.
    (ii) Special processing. The contractor will contact the 
appropriate air carrier in advance to explain the particular 
circumstances and obtain instructions on the special screening 
procedures to follow when:
    (A) Routine processing would subject the classified material to 
compromise or damage.
    (B) Visual examination is or may be required to successfully screen 
a classified package.
    (C) Classified material is in specialized containers, which due to 
its size, weight, or other physical characteristics cannot be routinely 
processed.
    (iii) Authorization letter. Contractors will provide employees with 
written authorization to hand carry classified material on commercial 
aircraft that includes:

[[Page 83343]]

    (A) Full name, date of birth, height, weight, and signature of the 
traveler and statement that he or she is authorized to transmit 
classified material.
    (B) Description of the type of identification the traveler will 
present on request.
    (C) Description of the material being hand carried, with a request 
that it be exempt from opening.
    (D) Identification of the points of departure, destination, and 
known transfer points.
    (E) Name, telephone number, and signature of the FSO, and the 
location and telephone number of the CSA.
    (6) Escorts. If an escort is necessary to ensure the protection of 
the classified information being transported, the contractor will 
assign a sufficient number to each classified shipment to ensure 
continuous surveillance and control over the shipment while in transit. 
The contractor will furnish escorts with specific written instructions 
and operating procedures prior to shipping that include:
    (i) Name and address of persons, including alternates, to whom the 
classified material is to be delivered.
    (ii) Receipting procedures.
    (iii) Means of transportation and the route to be used.
    (iv) Duties of each escort during movement, during stops end route, 
and during loading and unloading operations.
    (v) Emergency and communication procedures.
    (g) Destruction. Contractors will:
    (1) Destroy classified material in their possession based on the 
disposition instructions in the contract security classification 
specification or equivalent.
    (2) Follow the guidance for destruction of classified material in 
accordance with 32 CFR 2001.47 and the destruction equipment standards 
in accordance with 32 CFR 2001.42(b). See https://www.nsa.gov/resources/everyone/media-destruction/ and any CSA provided guidance for 
additional information.
    (h) Disclosure. Contractors will establish processes by which 
classified information is disclosed only to authorized persons.
    (1) Disclosure to employees. Contractors are authorized to disclose 
classified information to their cleared employees with the appropriate 
eligibility for access to classified information and need to know as 
necessary, including cleared employees across the MFO, when applicable, 
for the performance of tasks or services essential to the fulfillment 
of a classified contract or subcontract.
    (2) Disclosure to subcontractors.--(i) Contractors: (A) Are 
authorized to disclose classified information to a cleared 
subcontractor with the appropriate entity eligibility determination 
(also known as a facility security clearance) and need to know when 
access to classified information is necessary for the performance of 
tasks or services essential to the fulfillment of a prime contract or a 
subcontract.
    (B) Will convey appropriate classification guidance for the 
classified information to be disclosed with the subcontract in 
accordance with Sec.  117.13.
    (ii) The CSA must have: (A) Made a determination of eligibility for 
access to classified information for the subcontractor, at the same 
level, or higher, than the classified information to be disclosed, to 
allow for such disclosures.
    (B) Approved storage capability for classified material at the 
subcontractor location if a physical transfer of classified material 
occurs.
    (3) Disclosure between parent and subsidiaries--(i) Contractors: 
(A) Are authorized to disclose classified information between parent 
and subsidiary entities with the appropriate entity eligibility 
determination (also known as a facility security clearance) and need to 
know when access to classified information is necessary for the 
performance of tasks or services essential to the fulfillment of a 
prime or subcontract.
    (B) Will convey appropriate classification guidance with the 
agreement or procurement action that necessitates the disclosure.
    (ii) The CSA must have: (A) Made a determination of eligibility for 
access to classified information for both the parent and subsidiary, at 
the same level, or higher, than the classified information to be 
disclosed, to allow for such disclosures.
    (B) Approved storage capability for classified material at the 
parent and the subsidiary if a physical transfer of classified material 
occurs.
    (4) Disclosure to federal agencies. Contractors will not disclose 
classified information received or generated under a contract from one 
agency to any other federal agency unless specifically authorized by 
the agency that has classification jurisdiction over the information.
    (5) Disclosure of classified information to foreign persons. 
Contractors will not disclose classified information to foreign persons 
unless specified by the contract and release of the information is 
authorized in writing by the government agency having classification 
jurisdiction over the information involved, i.e. the DOE for RD and FRD 
(also see Sec.  117.23), the NSA for COMSEC, the DNI for SCI, and all 
other executive branch departments and agencies for classified 
information under their respective jurisdictions.
    (6) Disclosure to other contractors. Contractors will not disclose 
classified information to another contractor except in furtherance of a 
contract, subcontract, or other GCA purpose without the authorization 
of the GCA, if such authorization is required by contract.
    (7) Disclosure of classified information in connection with 
litigation. Contractors will not disclose classified information to:
    (i) Attorneys hired solely to represent the contractor in any civil 
or criminal case in federal or State courts unless the disclosure is 
specifically authorized by the agency that has jurisdiction over the 
information.
    (ii) Any federal or state court except on specific instructions of 
the agency, which has jurisdiction over the information or the attorney 
representing the United States in the case.
    (8) Disclosure to the public. Contractors will not disclose 
classified information to the public. Contractors will not disclose 
unclassified information pertaining to a classified contract to the 
public without prior review and clearance as specified in the Contract 
Security Classification Specification, or equivalent, for the contract 
or as otherwise specified by the GCA. The procedures of this paragraph 
also apply to information pertaining to classified contracts intended 
for use in unclassified brochures, promotional sales literature, 
reports to stockholders, or similar material.
    (i) The contractor will:
    (A) Submit requests for approval through the activity specified in 
the GCA-provided classification guidance for the contract involved.
    (B) Include in each request the approximate date the contractor 
intends to release the information for public disclosure and identify 
the media to be used for the initial release.
    (C) Retain a copy of each approved request for release for a period 
of one inspection cycle for review by the CSA.
    (D) Clear all information developed subsequent to the initial 
approval through the appropriate office prior to public disclosure.
    (ii) Unless specifically prohibited by the GCA, the contractor does 
not need to request approval for disclosure of:
    (A) The fact that a contract has been received, including the 
subject of the contract or type of item in general terms

[[Page 83344]]

provided the name or description of the subject is not classified.
    (B) The method or type of contract.
    (C) Total dollar amount of the contract unless that information 
equates to:
    (1) A level of effort in a sensitive research area.
    (2) Quantities of stocks of certain weapons and equipment that are 
classified.
    (D) Whether the contract will require the hiring or termination of 
employees.
    (E) Other information that from time-to-time may be authorized on a 
case-by-case basis in a specific agreement with the contractor.
    (F) Information previously officially approved for public 
disclosure.
    (iii) Information that has been declassified is not authorized for 
public disclosure. If the information is comingled with CUI, or 
qualifies as CUI once declassified, it will be marked and protected as 
CUI until it is decontrolled pursuant to 32 CFR part 2002 and reviewed 
for public release. If the information does not qualify as CUI, it will 
be protected in accordance with the basic safeguarding requirements in 
48 CFR 52.204-21 and subject to the agency's public release procedures. 
Contractors will request approval for public disclosure of declassified 
information in accordance with the procedures of this paragraph.
    (i) Disposition. Contractors will:
    (1) Establish procedures for review of their classified holdings on 
a recurring basis to ensure the classified holdings are in support of a 
current contract or authorization to retain beyond the end of the 
contract period.
    (2) Destroy duplicate copies as soon as practical.
    (3) For disposition of classified material not received under a 
specific contract:
    (i) Return or destroy classified material received with a bid, 
proposal, or quote if the bid, proposal, or quote is not:
    (A) Submitted or is withdrawn within 180 days after the opening 
date of bids, proposals, or quotes.
    (B) Accepted within 180 days after notification that a bid, 
proposal, or quote has not been accepted.
    (ii) If the classified material was not received under a specific 
contract, such as material obtained at classified meetings or from a 
secondary distribution center, return or destroy the classified 
material within one year after receipt.
    (j) Retention. The provisions of Sec.  117.13(d)(5) apply for 
retention of classified material upon completion of a classified 
contract.
    (1) If contractors propose to retain copies of classified material 
beyond 2 years, the contractor will identify:
    (i) TOP SECRET material identified in a list of specific documents 
unless the GCA authorizes identification by subject and approximate 
number of documents.
    (ii) SECRET and CONFIDENTIAL material may be identified by general 
subject and the approximate number of documents.
    (iii) Contractors will include a statement of justification for 
retention beyond two years based on if the material:
    (A) Is necessary for the maintenance of the contractor's essential 
records.
    (B) Is patentable or proprietary data to which the contractor has 
the title.
    (C) Will assist the contractor in independent research and 
development efforts.
    (D) Will benefit the USG in the performance of other prospective or 
existing agency contracts.
    (E) Will benefit the USG in the performance of another active 
contract and will be transferred to that contract (specify contract).
    (2) If the GCA does not authorize retention beyond two years, the 
contractor will destroy all classified material received or generated 
in the performance of a classified contract unless it has been 
declassified or the GCA has requested that the material be returned.
    (k) Termination of security agreement. Notwithstanding the 
provisions for retention outlined in paragraph (i) in this section, in 
the event that the CSA terminates the contractor's eligibility for 
access to classified information, the contractor will return all 
classified material in its possession to the GCA concerned, or dispose 
of such material in accordance with instructions from the CSA.
    (l) Safeguarding CUI. While outside the requirements of the NISPOM, 
when a classified contract also includes provisions for protection of 
CUI, contractors will comply with those contract requirements.


Sec.  117.16  Visits and meetings.

    (a) Visits. This paragraph applies when, for a lawful and 
authorized USG purpose, it is anticipated that classified information 
will be disclosed during a visit to a cleared contractor facility or to 
a USG facility.
    (1) Classified visits. The number of classified visits will be held 
to a minimum. The contractor:
    (i) Must determine that the visit is necessary and the purpose of 
the visit cannot be achieved without access to, or disclosure of, 
classified information.
    (ii) Will establish procedures to ensure positive identification of 
visitors, appropriate PCL, and need-to-know prior to the disclosure of 
any classified information.
    (iii) Will establish procedures to ensure that visitors are only 
afforded access to classified information consistent with the purpose 
of the visit.
    (2) Need-to-know determination. The responsibility for determining 
need-to-know in connection with a classified visit rests with the 
individual who will disclose classified information during the visit. 
Need-to-know is generally based on a contractual relationship between 
the contractors. In other circumstances, disclosure of the information 
will be based on an assessment that the receiving contractor has a bona 
fide need to access the information in furtherance of a GCA purpose.
    (3) Visits by USG representatives. Representatives of the USG, when 
acting in their official capacities as inspectors, investigators, or 
auditors, may visit a contractor's facility, provided these 
representatives present appropriate USG credentials upon arrival.
    (4) Visit authorization. (i) If a visit requires access to 
classified information, the host contractor will verify the visitor's 
PCL level. Verification of a visitor's PCL may be accomplished by a 
review of a CSA-designated database that contains the information or by 
a visit authorization letter (VAL) provided by the visitor's employer.
    (ii) If a CSA-designated database is not available and a VAL is 
required, contractors will include in all VALs:
    (A) Contractor's name, employee's name, address, and telephone 
number, assigned commercial and government entity (CAGE) code, if 
applicable, and certification of the level of the entity eligibility 
determination.
    (B) Name, date and place of birth, and citizenship of the employee 
intending to visit.
    (C) Certification of the proposed visitor's PCL and any special 
access authorizations required for the visit.
    (D) Name of person(s) to be visited.
    (E) Purpose and sufficient justification for the visit to allow for 
a determination of the necessity of the visit.
    (F) Date or period during which the VAL is to be valid.
    (5) Long term visitors. (i) When USG employees or employees of one 
contractor are temporarily stationed at another contractor's facility, 
the security procedures of the host contractor will govern.
    (ii) USG personnel assigned to or visiting a contractor facility 
and engaged in oversight of an acquisition program

[[Page 83345]]

will retain control of their work product. Classified work products of 
USG employees will be handled in accordance with this rule. Contractor 
procedures will not require USG employees to relinquish control of 
their work products, whether classified or not, to a contractor.
    (iii) Contractor employees at USG installations will follow the 
security requirements of the host. This does not relieve the contractor 
from security oversight of their employees who are long-term visitors 
at USG installations.
    (b) Classified meetings. This paragraph applies to a conference, 
seminar, symposium, exhibit, convention, training course, or other such 
gathering during which classified information is disclosed, hereafter 
called a ``meeting.'' Disclosure of classified information to large 
diverse audiences such as conferences increases security risks. 
Classified disclosure at such meetings may occur when it serves a 
government purpose and adequate security measures have been provided in 
advance.
    (1) Meeting conducted by a cleared contractor. If conducted by a 
cleared contractor, the meeting is authorized by a USG agency that has 
agreed to assume security jurisdiction. The USG agency:
    (i) Must approve security arrangements, announcements, attendees, 
and the location of the meeting.
    (ii) May delegate certain responsibilities to a cleared contractor 
for the security arrangements and other actions necessary for the 
meeting under the general supervision of the USG agency.
    (2) Request for authorization. Contractors desiring to conduct 
meetings that require sponsorship will submit their requests to the USG 
agency that has principal interest in the subject of each meeting. 
Requests for authorization will include:
    (i) An explanation of the USG purpose to be served by disclosing 
classified information at the meeting and why the use of conventional 
channels for release of the classified information will not advance 
those interests.
    (ii) The subject of the meeting and scope of classified topics, to 
include the classification level, to be disclosed at the meeting.
    (iii) The expected dates and location of the meeting.
    (iv) The general content of the proposed announcement or invitation 
to be sent to prospective attendees or participants.
    (v) The identity of any other non-government organization involved 
and a full description of the type of support it will provide.
    (vi) A list of any foreign representatives (including their 
nationality, name, organizational affiliation) whose attendance at the 
meeting is proposed.
    (vii) A description of the security arrangements necessary for the 
meeting to comply with the requirements of this rule.
    (3) Locations of meetings. Classified sessions will be held only at 
a USG installation or a cleared contractor facility where adequate 
physical security and procedural controls have been approved. The 
authorizing USG agency is responsible for evaluating and approving the 
location proposed for the meeting.
    (4) Security arrangements for meetings. The contractor will develop 
the security measures and procedures to be used and obtain the 
authorizing agency's approval. The security arrangements must provide:
    (i) Announcements. Approval of the authorizing agency will be 
obtained for all announcements of the meeting.
    (A) Announcements will be unclassified and will be limited to a 
general description of topics expected to be presented, names of 
speakers, and administrative instructions for requesting invitations or 
participation. Classified presentations will not be solicited in the 
announcement.
    (B) When the meeting has been approved, announcements may only 
state that the USG agency has authorized the conduct of classified 
sessions and will provide necessary security assistance.
    (C) The announcement will further specify that security clearances 
and justification to attend classified sessions are to be forwarded to 
the authorizing agency or its designee.
    (D) Invitations to foreign persons will be sent by the authorizing 
USG agency.
    (ii) Clearance and need-to-know. All persons in attendance at 
classified sessions will possess the requisite clearance and need-to-
know for the information to be disclosed.
    (A) Need-to-know will be determined by the authorizing agency or 
its designee based on the justification provided.
    (B) Attendance will be authorized only to those persons whose 
security clearance and justification for attendance have been verified 
by the security officer of the organization represented.
    (C) The names of all authorized attendees or participants must 
appear on an access list with entry permitted to the classified session 
only after verification of the attendee's identity based on 
presentation of official photographic identification such as a 
passport, contractor or USG identification card.
    (iii) Presentations. Classified information must be authorized for 
disclosure in advance by the USG agency having jurisdiction over the 
information to be presented.
    (A) Individuals making presentations at meetings will provide 
sufficient classification guidance to enable attendees to identify what 
information is classified and the level of classification.
    (B) Classified presentations will be delivered orally or visually.
    (C) Copies of classified presentation materials will not be 
distributed at the classified meeting, and any classified notes or 
electronic recordings of classified presentations will be classified, 
safeguarded, and transmitted as required by this rule.
    (iv) Physical security. The physical security measures for the 
classified sessions will provide for control of, access to, and 
dissemination of, the classified information to be presented and will 
provide for secure storage capability, if necessary.
    (5) Disclosure authority at meetings. Authority to disclose 
classified information at meetings, whether disclosure is by officials 
of industry or USG, must be granted by the USG agency or activity that 
has classification jurisdiction over the information to be disclosed. 
Each contractor that desires to disclose classified information at a 
meeting is responsible for requesting and obtaining disclosure 
approvals. Associations are not responsible for ensuring that 
classified presentations and papers of other organizations have been 
approved for disclosure. A contractor desiring to disclose classified 
information at a meeting will:
    (i) Obtain prior written authorization for each proposed disclosure 
of classified information from the USG agency having jurisdiction over 
the information involved.
    (ii) Furnish a copy of the disclosure authorization to the USG 
agency sponsoring the meeting.
    (6) Requests to attend classified meetings. Before a contractor 
employee can attend a classified meeting, the contractor will provide 
justification for why the employee requires access to the classified 
information, cite the classified contract or GCA program or project 
involved, and forward the information to the authorizing USG agency.

[[Page 83346]]

Sec.  117.17  Subcontracting.

    (a) Prime contractor responsibilities.--(1) Responsibilities. 
Before a prime contractor may release or disclose classified 
information to a subcontractor, or cause classified information to be 
generated by a subcontractor, a determination that access to classified 
information will be required and such access serves a legitimate USG 
requirement for the performance of a ``classified contract'' in 
accordance with Sec.  117.9(a) must be made. Prime contractors are 
responsible for communicating the appropriate security requirements to 
all subcontractors.
    (i) A ``security requirements clause'' and a ``Contract Security 
Classification Specification,'' or equivalent, will be incorporated in 
the solicitation and in the subcontract. (See the ``security 
requirements clause'' in the prime contract.)
    (ii) The subcontractor must possess an appropriate entity 
eligibility determination and a classified information safeguarding 
capability if possession of classified information will be required.
    (A) If access to classified information will not be required in the 
pre-award phase, prospective subcontractors are not required to possess 
an entity eligibility determination to receive or bid on the 
solicitation.
    (B) If a prospective subcontractor requires access to classified 
information during the pre-award phase and does not have the 
appropriate entity eligibility determination or a classified 
information safeguarding capability, the prime contractor will request 
the CSA of the subcontractor to initiate the necessary action.
    (iii) If access to classified information will not be required, the 
contract is not a classified contract within the meaning of this rule. 
If the prime contract contains requirements for release or disclosure 
of protected information that is not classified, such as CUI, the 
requirements will be incorporated in the solicitation and the 
subcontract and are not covered by this rule.
    (2) Prospective subcontractors entity eligibility determinations. 
(i) The prime contractor will verify whether the prospective 
subcontractors have the appropriate entity eligibility determination 
and also a classified information safeguarding capability, if a 
subcontract requirement. This determination can be made if there is an 
existing contractual relationship between the parties involving 
classified information of the same or higher category, and must be 
verified by accessing the CSA-designated database, or by contacting the 
CSA.
    (ii) If a prospective subcontractor does not have the appropriate 
entity eligibility determination or a classified information 
safeguarding capability, the prime contractor will request that the CSA 
of the subcontractor initiate the necessary action.
    (A) Requests will include, at a minimum, the full name, address, 
and contact information for the requester; the full name, address, and 
contact information for a contact at the facility to be processed for 
an entity eligibility determination; the level of clearance and the 
required classified information safeguarding capability; and full 
justification for the request.
    (B) Requests for safeguarding capability will include a 
description, quantity, end-item, and classification of the information 
related to the proposed subcontract.
    (C) Other factors necessary to help the CSA determine if the 
prospective subcontractor meets the requirements of this rule will be 
identified, such as any special access requirements.
    (3) Lead time for entity eligibility determination when awarding to 
an uncleared subcontractor. Requesting contractors will allow 
sufficient lead time in connection with the award of a classified 
subcontract to enable an uncleared bidder to be processed for the 
necessary entity eligibility determination. When the entity eligibility 
determination cannot be granted in sufficient time to qualify the 
prospective subcontractor for participation in the current procurement 
action, the CSA will continue the entity eligibility determination 
processing action to qualify the prospective subcontractor for future 
contract consideration provided:
    (i) The delay in processing the entity eligibility determination 
was not caused by a lack of cooperation on the part of the prospective 
subcontractor.
    (ii) Future classified negotiations may occur within 12 months.
    (iii) There is reasonable likelihood the subcontractor may be 
awarded a classified subcontract.
    (iv) Subcontracting that involves access to FGI. (A) A U.S. 
contractor may award a subcontract that involves access to FGI to 
another U.S. contractor after verifying with the CSA that the 
prospective subcontractor has the appropriate entity eligibility 
determination and a classified information storage capability, and 
review of the prime contract to determine if there are any contractual 
limitations for approval before awarding a subcontract. The contractor 
awarding a subcontract will provide appropriate security classification 
guidance and incorporate the pertinent security provisions in the 
subcontract.
    (B) The contractor cannot award subcontracts involving FGI to a 
contractor in a third country or to a U.S. entity with a limited entity 
eligibility determination based on third-country FOCI without the 
express written consent of the originating foreign government. The CSA 
will coordinate with the appropriate foreign government authorities.
    (b) Security classification guidance. (1) Prime contractors will 
ensure that a Contract Security Classification Specification, or 
equivalent, is incorporated in each classified subcontract.
    (i) When preparing classification guidance for a subcontract, the 
prime contractor may extract pertinent information from:
    (A) The Contract Security Classification Specification, or 
equivalent, issued with the prime contract.
    (B) Security classification guides issued with the prime contract.
    (C) Any security guides that provide guidance for the classified 
information furnished to, or that will be generated by, the 
subcontractor.
    (ii) The Contract Security Classification Specification, or 
equivalent, prepared by the prime contractor will be certified by a 
designated official of the contractor.
    (iii) In the absence of exceptional circumstances, the 
classification specification will not contain any classified 
information. If classified supplements are required as part of the 
Contract Security Classification Specification, or equivalent, they 
will be identified and forwarded to the subcontractor by separate 
correspondence.
    (2) An original Contract Security Classification Specification, or 
equivalent, will be included with each RFQ, RFP, IFB, or other 
solicitation to ensure that the prospective subcontractor is aware of 
the security requirements of the subcontract and can plan accordingly. 
An original Contract Security Classification Specification, or 
equivalent, will also be included in the subcontract awarded to the 
successful bidder.
    (3) A revised Contract Security Classification Specification, or 
equivalent, will be issued as necessary during the lifetime of the 
subcontract when the security requirements change.
    (4) Requests for public release by a subcontractor will be 
forwarded through the prime contractor to the GCA.

[[Page 83347]]

    (c) Responsibilities upon completion of the subcontracts. (1) Upon 
completion of the subcontract, the subcontractor may retain classified 
material received or generated under the subcontract for a two-year 
period, in accordance with the provisions in Sec.  117.13(d)(5).
    (2) If retention is required beyond the two-year period, the 
subcontractor must request written retention authority through the 
prime contractor to the GCA, including the information required by 
Sec.  117.15(j).
    (3) If retention authority is approved by the GCA, the prime 
contractor will issue a final Contract Security Classification 
Specification, or equivalent, annotated to provide the retention period 
and final disposition instructions.
    (d) Notification of invalidation, marginal, or unsatisfactory 
conditions. The prime contractor will be notified if the CSA discovers 
marginal or unsatisfactory conditions at the subcontractor's facility 
or if the CSA invalidates the subcontractor's facility clearance. Once 
notified, the prime contractor will follow the instructions received on 
what action, if any, should be taken in order to safeguard classified 
material relating to the subcontract.


Sec.  117.18   Information system security.

    (a) General. (1) Contractor information systems that are used to 
capture, create, store, process, or distribute classified information 
must be properly managed to protect against unauthorized disclosure of 
classified information. The contractor will implement protective 
measures using a risk-based approach that incorporates minimum 
standards for their insider threat program in accordance with CSA-
provided guidance.
    (2) The CSA will issue guidance based on requirements for federal 
systems, pursuant to 44 U.S.C. Ch. 35 of subchapter II, also known as 
the ``Federal Information Security Modernization Act,'' and as set 
forth in National Institute of Standards and Technology (NIST) Special 
Publication 800-37 (available at: https://csrc.nist.gov/publications/detail/sp/800-37/rev-2/final), Committee on National Security Systems 
(CNSS) Instruction 1253 (available at: https://www.cnss.gov/CNSS/openDoc.cfm?QwPYrAJ5Ldq+s+jvttTznQ==), and other applicable CNSS and 
NIST publications (e.g., NIST Special Publication 800-53).
    (b) Information system security program. The contractor will 
maintain an information system security program that supports overall 
information security by incorporating a risk-based set of management, 
operational, and technical security controls in accordance with CSA-
provided guidance. The contractor will incorporate into the program:
    (1) Policies and procedures that reduce information security risks 
to an acceptable level and address information security throughout the 
information system life cycle.
    (2) Plans and procedures to assess, report, isolate, and contain 
data spills and compromises, to include sanitization and recovery 
methods.
    (3) Information system security training for authorized users, as 
required in CSA provided guidance.
    (4) Policies and procedures that address key components of the 
contractor's insider threat program, such as:
    (i) User activity monitoring network activity, either automated or 
manual.
    (ii) Information sharing procedures.
    (iii) A continuous monitoring program.
    (iv) Protecting, interpreting, storing, and limiting access to user 
activity monitoring automated logs to privileged users.
    (5) Processes to continually evaluate threats and vulnerabilities 
to contractor activities, facilities, and information systems to 
ascertain the need for additional safeguards.
    (6) Change control processes to accommodate configuration 
management and to identify security relevant changes that may require 
re-authorization of the information system.
    (7) Methods to ensure users are aware of rights and 
responsibilities through the use of banners and user agreements.
    (c) Contractor responsibilities--(1) Certification. The contractor 
will:
    (i) Certify to the CSA that the security program for information 
systems to process classified information addresses management, 
operation, and technical controls in accordance with CSA-provided 
guidelines.
    (ii) Provide adequate resources to the information system security 
program and organizationally align to ensure prompt support and 
successful execution of a compliant information system security 
program.
    (2) ISSM. Contractors that are or will be processing classified 
information on an information system will appoint an employee ISSM. The 
contractor will confirm that the ISSM is adequately trained, has 
sufficient experience, and possesses technical competence commensurate 
with the complexity of the information system. The ISSM will:
    (i) Oversee the development, implementation, and evaluation of the 
contractor's information system program for contractor management, 
information system personnel, users, and others as appropriate.
    (ii) Coordinate with the contractor's insider threat senior program 
official so that insider threat awareness is addressed in the 
contractor's information system security program.
    (iii) Develop, document, and monitor compliance of the contractor's 
information system security program in accordance with CSA-provided 
guidelines for management, operational, and technical controls.
    (iv) Verify self-inspections are conducted at least every 12 months 
on the contractor's information systems that process classified 
information, and that corrective actions are taken for all identified 
findings.
    (v) Certify to the CSA in writing that the systems security plan 
(SSP) is implemented for each authorized information systems, specified 
in the SSP; the specified security controls are in place and properly 
tested; and the information system continues to function as described 
in the SSP.
    (vi) Brief users on their responsibilities with regard to 
information system security and verify that contractor personnel are 
trained on the security restrictions and safeguards of the information 
system prior to access to an authorized information system.
    (vii) Develop and maintain security documentation of the security 
authorization request to the CSA. Documentation may include:
    (A) SSPs.
    (B) Security assessment reports.
    (C) Plans of actions and milestones.
    (D) Risk assessments.
    (E) Authorization decision letters.
    (F) Contingency plans.
    (G) Configuration management plans.
    (H) Security configuration checklists.
    (I) System interconnection agreements.
    (3) Information systems security officer (ISSO). The ISSM may 
assign an ISSO. If assigned, the ISSO will:
    (i) Verify the implementation of the contractor's information 
system security program as delegated by the ISSM.
    (ii) Ensure continuous monitoring strategies and verify corrective 
actions to the ISSM.
    (iii) Conduct self-inspections and verify corrective actions to the 
ISSM.
    (4) Information system users. All information system users will:
    (i) Comply with the information system security program 
requirements as part of their responsibilities for protecting 
classified information.
    (ii) Be accountable for their actions on an authorized information 
system.

[[Page 83348]]

    (iii) Not share any authentication mechanisms (including passwords) 
issued for the control of their access to an information system.
    (iv) Protect authentication mechanisms at the highest 
classification level and most restrictive classification category of 
information to which the mechanisms permit access.
    (v) Be subject to monitoring of their activity on any classified 
network, understanding that the results of such monitoring can be used 
against them in a criminal, security, or administrative proceeding or 
action.
    (vi) Notify the ISSM or ISSO when access to a classified system is 
no longer required.
    (d) Information system security life-cycle. The CSA-provided 
guidance on the information system security life-cycle is based on the 
risk management framework outlined in NIST special publication 800-37 
that emphasizes:
    (1) Building security into information systems during initial 
development.
    (2) Maintaining continuous awareness of the current state of 
information system security.
    (3) Keeping contractor management informed to facilitate risk 
management decisions.
    (4) Supporting reciprocity of information system authorizations.
    (e) Risk management framework. The risk management framework is a 
seven-step process used for managing information system security-
related risks. These steps will be used to help ensure security 
capabilities provided by the selected security controls are 
implemented, tested, validated, and approved by the USG authorizing 
official with a degree of assurance appropriate for the information 
system. This process accommodates an on-going risk mitigation strategy.
    (1) Prepare. The contractor will execute essential activities at 
the organization, mission and business process, and system levels of 
the organization to help prepare the organization to manage its 
security and privacy risks using the Risk Management Framework.
    (2) Categorize. The contractor will categorize the information 
system and the information processed, stored, and transmitted by the 
information system based on an impact analysis. Unless imposed by 
contract, the information system baseline is moderate-confidentiality, 
low-integrity, and low-availability.
    (3) Select. The contractor will select an initial set of baseline 
security controls for the information system based on the security 
categorization; tailoring and supplementing the security control 
baseline as needed based on an organizational assessment of risk and 
local conditions.
    (4) Implement. The contractor will implement the security controls 
and document how the controls are deployed within the information 
system and the operational environment.
    (5) Assess. The contractor will assess the security controls to 
determine the extent to which the controls are implemented correctly, 
operating as intended, and producing the desired outcome with respect 
to meeting the security requirements for the information system. The 
contractor will review and certify to the CSA that all systems have the 
appropriate protection measures in place.
    (6) Authorize. The CSA will use the information provided by the 
contractor to make a timely, credible, and risk-based decision to 
authorize the system to process classified information. The CSA must 
authorize the system before the contractor can use the system to 
process classified information.
    (7) Monitor. The contractor will monitor and assess selected 
security controls in the information system on an ongoing basis:
    (i) Effectiveness of security controls.
    (ii) Documentation of changes to the information system and the 
operational environment.
    (iii) Analysis of the security impact of changes to the information 
system.
    (iv) Making appropriate reports to the CSA.
    (f) Unclassified information systems that process, store, or 
transmit CUI. While outside the requirements of the NISPOM, contractors 
will comply with contract requirements regarding contractor information 
systems that process, store, or transmit CUI.


Sec.  117.19  International security requirements.

    (a) General. This section provides information and procedures 
governing the protection of classified information in international 
programs.
    (b) Disclosure of classified U.S. information to foreign 
interests.--(1) Applicable federal law. The transfer of articles, 
services, and related data to a foreign person, within or outside the 
United States, or the movement of such material or information to any 
destination outside of the legal jurisdiction of the United States 
constitutes an export. Depending on the nature of the articles or data, 
most exports are pursuant to (1) 22 U.S.C. chapter 39, also known and 
referred to in this rule as the ``Arms Export Control Act,'' (2) 50 
U.S.C. 4801 et seq., also known as the ``Export Control Reform Act of 
2018,'' or (3) the AEA. This section applies to those exports that 
involve classified information.
    (2) Security agreements.--(i) Bilateral security agreements (e.g., 
General Security of Information Agreements and General Security of 
Military Information Agreements) are negotiated with various foreign 
governments. Confidentiality requested by some foreign governments 
prevents a listing of the countries that have executed these 
agreements. The bilateral security agreement, negotiated through 
diplomatic channels:
    (A) Requires that each government provide substantially the same 
degree of protection to classified information released by the other 
government.
    (B) Contains provisions concerning limits on the use of each 
government's information, including restrictions on third-party 
transfers and proprietary rights.
    (C) Does not commit governments to share classified information, 
nor does it constitute authority to release classified material to that 
government.
    (D) Satisfies, in part, the eligibility requirements of the Arms 
Export Control Act concerning the agreement of the recipient foreign 
government to protect U.S. classified defense articles and classified 
information.
    (ii) The applicable CSA will provide a mechanism for contractors to 
access, for official purposes, classified general security agreements.
    (iii) Industrial security agreements have been negotiated with 
certain foreign governments that identify the procedures to be used 
when foreign government classified information is provided to U.S. 
industry and UUSG classified information is provided to foreign defense 
industry.
    (3) Authorization for disclosure. The GCA will provide disclosure 
guidance.
    (i) Contractors will only disclose non-public USG information to 
foreign persons in accordance with specified requirements of the 
contract. In the absence of any specified requirements the contractor 
will not disclose non-public USG information to foreign persons.
    (ii) Disclosure authorization may be in the form of an export 
license or other export authorization by a cognizant export authority.
    (iii) The contractor may not use disclosure guidance provided by 
the GCA for a previous contract or program unless so instructed in 
writing by the GCA or the licensing authority.
    (iv) Disclosure and export of classified information, authorized by 
an appropriate USG disclosure official, by a contractor will ensure the 
following:

[[Page 83349]]

    (A) International agreements. Contractors may not disclose 
classified information until agreements are signed by the participating 
government and disclosure guidance and security arrangements are 
established. The export of technical data pursuant to such agreements 
may be exempt by approval of the Department of State or the Department 
of Commerce.
    (B) Symposia, seminars, exhibitions, and conferences. Contractors 
must assure that any foreign nationals who will be attending a 
classified gathering have the appropriate export license, disclosure 
authority, and security assurance on file.
    (C) Visits by foreign nationals to the contractor. The contractor 
will limit disclosure of classified information to that specific 
information authorized in connection with an approved visit request and 
an export authorization, as required.
    (D) Temporary exports. Classified articles, including articles that 
require the use of classified information for operation, exported for 
demonstration purposes must remain under U.S. control. The contractor 
must obtain an export authorization from the relevant authority (i.e., 
from the Department of State in accordance with 22 CFR parts 120-130, 
also known as and referred to in this rule as the ``International 
Traffic in Arms Regulations,'' or from the Department of Commerce in 
accordance with 15 CFR parts 730-774, also known as the ``Export 
Administration Regulations'').
    (4) Direct commercial arrangements. (i) The disclosure of 
classified information may be authorized pursuant to a direct 
commercial sale with the appropriate export authorization. A direct 
commercial arrangement includes sales, loans, leases, or grants of 
classified items, including sales under a government agency sales 
financing program.
    (ii) If a proposed disclosure is in support of a foreign government 
requirement, the contractor should consult with U.S. in-country 
officials, normally the U.S. Security Assistance/Armaments Cooperation 
Office or Commercial Counselor.
    (A) Before a contractor makes a proposal to a foreign interest that 
involves the eventual disclosure of U.S. classified information, the 
contractor must obtain appropriate government disclosure authorization.
    (B) Such disclosure authorization does not equate with 
authorization for export. Export authorization must be obtained from 
the appropriate regulatory body.
    (iii) The contractor will request a FCL assurance for a foreign 
entity through the CSA from the security authority of the foreign 
entity's sponsoring government prior to entering into a contractual 
arrangement with the foreign entity.
    (5) Subcontract security provisions. (i) A U.S. contractor may be 
authorized to enter into an agreement involving classified information 
with a foreign contractor. The U.S. contractor's empowered official 
will verify the contractor can release the information to a foreign 
person. Such agreements may include:
    (A) Award of a subcontract.
    (B) Department of State authorized manufacturing license agreement, 
technical assistance agreement, or other direct commercial arrangement.
    (ii) The contractor will incorporate security provisions into the 
subcontract document or agreement, and provide security classification 
guidance by means of a Contract Security Classification Specification, 
or equivalent.
    (iii) The contractor will provide a copy of the signed contract 
with the provisions and the classification guidance to the CSA.
    (iv) If the export authorization specifies that additional security 
arrangements are necessary for performance on the contract, the 
contractor will incorporate those additional arrangements by 
appropriate provision in the contract or in a separate security 
document.
    (v) The contractor will prepare and maintain a written record that 
identifies the originator or source of classified information that will 
be used in providing classified defense articles, material or services 
to foreign customers. The contractor will maintain this listing with 
the contractor's record copy of the pertinent export authorization.
    (vi) The contractor will include the security provisions in 
accordance with paragraph (b)(5) in this section in all contracts and 
subcontracts involving classified information that are awarded to 
foreign contractors. Contractors must insert the bracketed contract 
specific information (e.g., applicable country and disposition of 
classified material) where noted, when using the following security 
clauses in the contract.
    (A) All classified information and material furnished or generated 
under the contract will be protected to ensure that:
    (1) The recipient will not release the information or material to 
any third party without disclosure authorization and export 
authorization, as appropriate.
    (2) The recipient will afford the information and material a degree 
of protection equivalent to that afforded it by the releasing 
government.
    (3) The recipient will not use the information and material for 
other than the purpose for which it was furnished without the prior 
written consent of the releasing government.
    (B) Classified information and material furnished or generated 
under this contract will be transferred through government channels or 
other channels specified in writing by the governments of the United 
States and [insert applicable country]. It will only be transferred to 
persons who have an appropriate security clearance and an official need 
for access to the information in order to perform on the contract.
    (C) Classified information and material furnished under the 
contract will be re-marked by the recipient with its government's 
equivalent security classification markings.
    (D) Classified information and material generated under the 
contract must be assigned a security classification as specified by the 
Contract Security Classification Specifications, or equivalent, 
provided with this contract.
    (E) All cases in which it is known or there is reason to believe 
that classified information or material furnished or generated under 
the contract has been lost or disclosed to unauthorized persons will be 
reported promptly and fully by the contractor to its government's 
security authorities.
    (F) Classified information and material furnished or generated 
pursuant to the contract will not be further provided to another 
potential contractor or subcontractor unless:
    (1) A potential contractor which is located in the United States or 
[insert applicable country] has been approved for access to classified 
information and material by the USG or [insert applicable country] 
security authorities; or
    (2) If located in a third country, prior written USG consent is 
obtained.
    (G) Upon completion of the contract, all classified material 
furnished or generated pursuant to the contract will be [insert whether 
the material is to be returned or destroyed, or provide other 
instructions].
    (H) The recipient contractor will insert terms that substantially 
conform to the language of these provisions, including this one, in all 
subcontracts under this contract that involve access

[[Page 83350]]

to classified information furnished or generated under this contract.
    (c) FGI.--(1) General. The contractor will notify the csa when 
awarded contracts by a foreign interest that will involve access to 
classified information. The csa will oversee and ensure implementation 
of the security requirements of the contract on behalf of the foreign 
government, including the establishment of channels for the transfer of 
classified material.
    (2) Contract security requirements. The foreign entity that awards 
a classified contract is responsible for providing appropriate security 
classification guidance and any security requirements clauses. The 
contractor will report to the CSA when a foreign entity fails to 
provide classification guidance.
    (3) Marking foreign government classified material. Foreign 
government classified material will be marked in accordance with Sec.  
117.14(l).
    (4) Foreign Government RESTRICTED Information and ``In Confidence'' 
Information. Foreign government RESTRICTED information and ``in 
confidence'' information will be marked in accordance with Sec.  
117.14(m).
    (5) Marking U.S. documents containing FGI. U.S. documents 
containing FGI will be marked in accordance with Sec.  117.14(n).
    (6) Marking documents prepared for foreign governments. Marking 
documents prepared for foreign governments will be marked in accordance 
with Sec.  117.14(o).
    (7) Storage and control. Contractors will store foreign government 
material and control access generally in the same manner as U.S. 
classified material of an equivalent classification. Contractors will 
store foreign government material in a manner that will separate it 
from other material. Separation can be accomplished by establishing 
distinct files in a storage container or on an information system.
    (8) Disclosure and use limitations. (i) FGI is provided by the 
foreign government to the United States. The contractor will:
    (A) Not disclose FGI to nationals of a third country, or to any 
other third party, or use it for any purpose other than that for which 
it was provided without the prior written consent of the originating 
foreign government.
    (B) Submit requests for other uses or further disclosure to the GCA 
for U.S. contracts, and through the CSA for direct commercial 
contracts.
    (ii) Approval of the request by the foreign government does not 
eliminate the requirement for the contractor to obtain an export 
authorization.
    (9) Transfer. The contractor will transfer FGI within the United 
States and its territories using the same channels as specified for 
U.S. classified information of an equivalent classification, except 
that contractors cannot use non-cleared express overnight carriers for 
FGI.
    (10) Reproduction. The reproduction of foreign government TOP 
SECRET or equivalent information requires the written approval of the 
originating government.
    (11) Disposition. The contractor:
    (i) Will destroy FGI on completion of the contract unless the 
contract specifically authorizes retention or return of the information 
to the U.S. GCA or foreign government that provided the information.
    (ii) Must witness the destruction of TOP SECRET, execute a 
destruction certificate, and retain the destruction certificate for two 
years.
    (12) Reporting of improper receipt of foreign government material. 
The contractor will report improper receipt of foreign government 
material in accordance with Sec.  117.8(c)(13).
    (13) Subcontracting. Subcontracting procedures will be in 
accordance with Sec.  117.17(a)(4).
    (d) International transfers of classified material.--(1) General. 
This paragraph (d) contains the procedures for international transfers 
of classified material through government-to-government channels or 
other arrangements agreed to by the governments involved, otherwise 
referred to as government-to-government transfers. The requirements in 
this paragraph (d) do not apply to the transmission of classified 
material to usg activities outside the united states.
    (i) All international transfers of classified material must take 
place through channels approved by both governments. U.S. control of 
classified material must be maintained until the material is officially 
transferred to the intended recipient government through its designated 
government representative (DGR).
    (ii) To ensure government control, written transmission 
instructions must be prepared for all international transfers of 
classified material. The contractor is responsible for the preparation 
of instructions for direct commercial arrangements, and the GCA will 
prepare instructions for government arrangements.
    (iii) The contractor will contact the CSA at the earliest possible 
stage in deliberations that will lead to the international transfer of 
classified material. The CSA will advise the contractor on the transfer 
arrangements, identify the recipient government's DGR, appoint a U.S. 
DGR, and ensure that the transportation plan prepared by the contractor 
or foreign government is adequate.
    (iv) The contractor's empowered official is responsible for 
requests for all export authorizations, including ones that will 
involve the transfer of classified information.
    (2) Transfers of freight.--(i) Transportation plan (TP). (A) A 
requirement to prepare a TP will be included in each arrangement that 
involves the international transfer of classified material as freight. 
The TP will:
    (1) Describe requirements for the secure shipment of the material 
from the point of origin to the ultimate destination.
    (2) Provide for security requirements in the event the transfer 
cannot be made promptly.
    (B) The U.S. and recipient government DGRs will be identified in 
the TP as well as any requirement for an escort. When there are to be 
repetitive shipments, a notice of classified consignment will be used.
    (ii) Government agency arrangements. Classified material to be 
furnished to a foreign government under such transactions normally will 
be shipped via government agency-arranged transportation and be 
transferred to the foreign government's DGR within the recipient 
government's territory.
    (A) The government agency that executes the arrangement is 
responsible, in coordination with the recipient foreign government, for 
preparing a TP.
    (B) When the point of origin is a U.S. contractor facility, the GCA 
will provide the contractor with a copy of the TP and the applicable 
letter of offer and acceptance. If a freight forwarder will be involved 
in processing the shipment, the GCA will provide a copy of the TP to 
the freight forwarder.
    (C) Commercial arrangements. (1) The contractor will prepare a TP 
in coordination with the receiving government. This requirement applies 
whether the material is moved by land, sea, or air, and applies to U.S. 
and foreign classified contracts.
    (2) After the CSA approves the TP, the CSA will forward it to the 
recipient foreign government security authorities for final 
coordination and approval. The CSA will notify the contractor upon the 
concurrence by the respective parties.
    (D) International carriers. The international transfer of 
classified material will be made using only ships, aircraft, or other 
carriers that:
    (1) Are owned or chartered by the USG or under U.S. registry;

[[Page 83351]]

    (2) Are owned or chartered by or under the registry of the 
recipient government; or
    (3) Are other than those described that are expressly authorized to 
perform this function in writing by the Designated Security Authority 
of the GCA and the security authorities of the foreign government 
involved. This authority cannot be delegated and this exception may be 
authorized only when a carrier described in paragraph (d)(2)(iv)(A) or 
(d)(2)(iv)(B) in this section is not available and an urgent 
operational requirement dictates use of the exception.
    (E) Escorts. (1) The contractor must provide escorts for 
international shipments of SECRET or CONFIDENTIAL material by air.
    (2) Escorts must have an eligibility determination and access to 
classified information at the classification level of the material 
being shipped.
    (3) Escorts are responsible for ensuring that the classified 
material being shipped is safeguarded in the event of an emergency stop 
en route, re-routing of the aircraft, or in the event that the 
recipient government's representative fails to meet the shipment at its 
destination.
    (4) The contractor does not have to provide escorts if:
    (i) The classified material is shipped by the Defense 
Transportation System or a U.S. military carrier.
    (ii) The recipient government DGR has signed for the receipt of the 
classified material within the United States.
    (iii) The classified material is shipped via a military carrier of 
the recipient government or a carrier owned by or registered to the 
recipient government.
    (iv) The classified material is shipped via a cleared U.S. 
commercial freight carrier, so long as the contractor has a written 
agreement from the U.S. commercial freight carrier to provide an escort 
who is eligible for access to classified information and has access to 
classified information at the classification level of the material 
being shipped.
    (v) There are exceptional circumstances, and procedures have been 
approved by both the USG and the recipient government.
    (3) Secure communications plan. (i) The contractor is required to 
meet all requirements outlined in this section, as applicable, for the 
secure communications plan.
    (ii) The secure communications plan may be approved within a 
program security instruction, SSP, or a government to government 
agreement by the designated security authorities. A separate memorandum 
of understanding or memorandum of agreement is not required.
    (iii) Additionally, an SSP must be authorized in accordance with 
Sec.  117.18 and the CSA provided guidance.
    (4) Return of material for repair, modification, or maintenance. 
(i) A foreign government or foreign contractor may return classified 
material to a U.S. contractor for repair, modification, or maintenance.
    (ii) The approved methods of return will be specified in either the 
GCA sales arrangement, the security requirements section of a direct 
commercial sales arrangement or, in the case of material transferred as 
freight, in the original TP.
    (iii) The contractor, on receipt of notification that classified 
material is to be received, will notify the applicable CSA.
    (5) Use of freight forwarders. (i) A commercial freight forwarder 
may be used to arrange for the international transfer of classified 
material as freight.
    (A) The freight forwarder must be under contract to a USG agency, 
U.S. contractor, or the recipient foreign government.
    (B) The contract will describe the specific functions to be 
performed by the freight forwarder.
    (C) The responsibility for security and control of the classified 
material that is processed by freight forwarders remains with the USG 
until the freight is transferred to a DGR of the recipient government.
    (ii) Only freight forwarders that have a valid determination of 
eligibility for access to classified information and storage capability 
for classified material at the appropriate level are eligible to take 
custody or possession of classified material for delivery as freight to 
foreign recipients. Freight forwarders that only process unclassified 
paperwork and make arrangements for the delivery of classified material 
to foreign recipients do not require an eligibility determination for 
access to classified information.
    (iii) A freight forwarder cannot serve as a DGR.
    (6) Hand carrying classified material. To meet contractual 
requirements, the CSA may authorize contractor employees to hand carry 
classified material outside the United States. SECRET is the highest 
level of classified material to be carried and it must be of such size 
and weight that the courier can retain it in his or her possession at 
all times.
    (i) The CSA will ensure that the contractor has made necessary 
arrangements with U.S. airport security and customs officials and that 
security authorities of the receiving government approve the plan. If 
the transfer is under a contract or a bilateral or multinational 
government program, the GCA will approve the request in writing. The 
contractor will notify the CSA of a requirement to hand carry at least 
5 working days in advance of the transfer.
    (ii) The courier must be a full-time employee of the dispatching or 
receiving contractor who has been determined eligible and has been 
granted access to classified information.
    (iii) The employing contractor will provide the courier with a 
courier certificate that is consecutively numbered and valid for one 
journey only. The journey may include more than one stop if approved by 
the CSA and secure government storage has been arranged at each stop. 
The courier will return the courier certificate to the dispatching 
contractor immediately on completion of the journey.
    (iv) Before commencement of each journey, the courier will read and 
initial the notes to the courier attached to the courier certificate 
and sign the courier declaration. The contractor will maintain the 
declaration until completion of the next CSA security review.
    (v) The dispatching contractor will inventory, wrap, and seal the 
material in the presence of the U.S. DGR. The contractor will place the 
address of the receiving security office and the return address of the 
dispatching contractor security office on the inner envelope or 
wrapping and mark it with the appropriate classification. The 
contractor will place the address of the receiving government's DGR on 
the outer envelope or wrapping along with the return address of the 
dispatching contractor.
    (vi) The dispatching contractor will prepare three copies of a 
receipt based on the inventory and list the classified material that is 
being sent. The dispatching contractor will retain one copy of the 
receipt. The contractor will pack the other two copies with the 
classified material. The contractor will obtain a receipt for the 
sealed package from the courier.
    (vii) The dispatching contractor will provide the receiving 
contractor with 24 work hours advance notification of the anticipated 
date and time of the courier's arrival and the identity of the courier. 
The receiving contractor must notify the dispatching contractor if the 
courier does not arrive within 8 hours of the expected time of arrival. 
The dispatching contractor will notify its DGR of any delay, unless 
officially notified otherwise of a change in the courier's itinerary.

[[Page 83352]]

    (viii) The receiving DGR will verify the contents and sign the 
receipts enclosed in the consignment. The receiving DGR will return one 
copy to the courier. On return, the courier will provide the executed 
receipt to the dispatching contractor.
    (ix) Throughout the journey, the courier will maintain the 
classified material under direct personal control. The courier will not 
leave the material unattended at any time during the journey, in the 
transport being used, in hotel rooms, in cloakrooms, or other such 
location, and will not deposit it in hotel safes, luggage lockers, or 
in luggage offices. In addition, the courier will not open envelopes or 
packages containing the classified material en route, unless required 
by customs or other government officials.
    (x) When inspection by government officials is unavoidable, the 
courier will request that the officials provide written verification 
that they have opened the package. The courier will notify their 
employing contractor as soon as possible. The contractor will notify 
the U.S. DGR. If the inspecting officials are not of the same country 
as the dispatching contractor, the CSA will notify the designated 
security authority in the country whose officials inspected the 
consignment. Under no circumstances will the courier hand over the 
classified material to customs or other officials for their custody.
    (xi) When carrying classified material, the courier will not travel 
by surface routes through third countries, except as authorized by the 
CSA. The courier will travel only on carriers described in paragraph 
(d)(2)(iv) in this section, and will travel direct routes between the 
United States and the destination.
    (7) Classified material receipts. (i) The U.S. DGR and the DGR of 
the ultimate foreign recipient will maintain a continuous chain of 
receipts to record international transfers of all classified material 
from the contractor through the dispatching DGR and recipient DGR to 
the ultimate foreign recipient. The dispatching contractor will retain:
    (A) An active suspense record until return of applicable receipts 
for the material.
    (B) A copy of the external receipt that records the passing of 
custody of the package containing the classified material and each 
intermediate consignee in a suspense file until the receipt that is 
enclosed in the package is signed and returned.
    (ii) The contractor will initiate follow-up action through the CSA 
if the signed receipt is not returned within 45 days.
    (8) Contractor preparations for international transfers of 
classified material pursuant to direct commercial and foreign military 
sales. To prepare for international transfers the contractor will:
    (i) Identify each party to be involved in the transfer in the 
applicable contract or agreement and in the license application or 
letter request.
    (ii) Notify the appropriate U.S. DGR when the material is ready.
    (iii) When the classified material is also ITAR-controlled, provide 
documentation or written certification by an empowered official (as 
defined in the ITAR) to the U.S. DGR. This documentation must verify 
that the classified shipment is within the limitation scope of the 
pertinent export authorization or an authorized exemption to the export 
authorization requirements, or is within the limitations of the 
pertinent GCA contract.
    (iv) Have the classified shipment ready for visual review and 
verification by the DGR. As a minimum this will include:
    (A) Preparing the packaging materials, address labels, and receipts 
for review.
    (B) Marking the contents with the appropriate U.S. classification 
or the equivalent foreign government classification, downgrading, and 
declassification markings, as applicable.
    (C) Ensuring that shipping documents (including, as appropriate, 
the shipper's export declaration) include the name and contact 
information for the CSA that validates the license or letter 
authorization, and the FSO or designee for the particular transfer.
    (D) Sending advance notification of the shipment to the CSA, the 
recipient, and to the freight forwarder, if applicable. The 
notification will require that the recipient confirm receipt of the 
shipment or provide notice to the contractor if the shipment is not 
received in accordance with the prescribed shipping schedule.
    (9) Transfers pursuant to an ITAR exemption. (i) The contractor 
will provide to the DGR valid documentation (i.e., license, export 
authorization, letter of offer and acceptance, or agreement) to verify 
the export authorization for classified technical data information or 
certain defense articles to be transferred under an exemption to the 
ITAR exemption. The documentation must include a copy of the Department 
of State Form DSP-83 associated with the original export authorization.
    (ii) Classified technical data information or certain defense 
articles to be exported pursuant to ITAR exemptions will be supported 
by a written authorization signed by an authorized exemption official 
or exemption certifying official who has been appointed by the GCA's 
responsible disclosure authority.
    (A) The contractor will provide a copy of the authorization to the 
CSA.
    (B) The CSA will provide a copy of the authorization to the 
Department of State Directorate of Defense Trade Controls (DDTC).
    (e) International visits.--(1) General. (i) The contractor will 
establish procedures to monitor international visits by their employees 
and visits or assignments of foreign nationals to the contractor 
location. Doing so will ensure that the disclosure of, and access to, 
classified export-controlled articles related to classified information 
are limited to those that are approved by an export authorization.
    (ii) Contractors cannot use visit authorizations to employ or 
otherwise acquire the services of foreign nationals that require access 
to export-controlled information. An export authorization is required 
for such situations.
    (2) International visits by U.S. contractor employees.--(i) Types 
and purpose of international visits.--(A) One-time visits. A visit for 
a single, short-term occasion (normally 30 days or fewer) for a 
specified purpose.
    (B) Recurring visits. Intermittent, recurring visits over a 
specified period of time, normally up to one year in duration, in 
support of a government-approved arrangement, such as an agreement, 
contract, or license. By agreement of the governments, the term of the 
authorization may be for the duration of the arrangement, subject to 
annual review, and validation.
    (C) Long-term visits. A single visit for an extended period of 
time, normally up to one year, in support of an agreement, contract, or 
license.
    (D) Emergency visits. A visit related to a specific government-
approved contract, international agreement or announced request for 
proposal, and failure to make the visit could be reasonably expected to 
seriously jeopardize performance on the contract or program, or result 
in the loss of a contract opportunity.
    (ii) Requests for visits. Visit requests are necessary to make 
administrative arrangements and disclosure decisions and obtain 
security assurances.
    (A) Many foreign governments require the submission of a visit 
request for all visits to a government facility or a cleared contractor 
facility, even though classified information may not be involved. They 
may also require that the requests be received a specified number of 
days in advance of the visit.
    (B) The contractor can obtain information pertaining to the visit

[[Page 83353]]

requirements of other governments and the NATO from the CSA. The 
contractor must obtain an export authorization if classified export 
controlled articles or technical data is to be disclosed or if 
information to be divulged is related to a classified USG program, 
unless the disclosure of the information is covered by other 
agreements, authorizations, or exemptions.
    (iii) Request format. Contractors will request a visit request 
template from the CSA. The contractor will forward the visit request to 
the security official designated by the CSA. The host for the visit 
should coordinate the visit in advance with appropriate government 
authorities who are required to approve the visit. It is the visitor's 
responsibility to ensure that such coordination has occurred.
    (iv) Government agency programs. The contractor will submit a visit 
request when contractor employees are to visit foreign government 
facilities or foreign contractors on USG orders in support of a 
government contract or agreement.
    (v) Requests for emergency visits. The requester will include in 
the emergency visit request, and any other requirements in accordance 
with applicable CSA guidance:
    (A) The complete name, position, address, and telephone number of 
the person to be visited.
    (B) A knowledgeable foreign government point of contact.
    (C) The identification of the contract, agreement, or program and 
the justification for submission of the emergency visit request.
    (vi) Requests for recurring visits. Contractors will request 
recurring visit authorizations at the beginning of each program. After 
approval of the request, the contractor may arrange individual visits 
directly with the security office of the location to be visited subject 
to 5 working days advance notice.
    (vii) Amendments. (A) Once visit requests have been approved or are 
being processed, the contractor may amend them only to change, add, or 
delete names and change dates.
    (B) The contractor cannot amend visit requests to specify dates 
that are earlier than originally specified.
    (C) The contractor cannot amend emergency visit authorizations.
    (3) Classified visits by foreign nationals to U.S. contractors.--
(i) Requests for classified visits. Requests for visits by foreign 
nationals to U.S. contractors that will involve the disclosure of 
classified information may require authorization by the Department of 
State. Classified visits by foreign nationals must be processed by 
government national security authorities on behalf of the contractor 
through the sponsoring foreign government (normally the visitor's 
embassy) to the USG for approval.
    (ii) USG approval. The USG may approve or deny the request or 
decline to render a decision.
    (A) USG-Approved Visits. (1) USG approved classified visits cannot 
be used to avoid the export licensing requirements for commercial 
initiatives.
    (2) When the cognizant USG agency approves a classified visit, the 
notification of approval will contain instructions on the level and 
scope of classified and unclassified information authorized for 
disclosure, as well as any limitations.
    (3) Final acceptance for the visit will be subject to the 
concurrence of the contractor. The contractor will notify the USG 
agency when a classified visit is not desired.
    (B) Visit request denials. (1) If the USG agency does not approve 
the disclosure of the information related to the proposed classified 
visit, it will deny the classified visit request. The USG agency will 
advise the requesting government and the contractor to be visited of 
the reason for the denial.
    (2) The contractor may accept the visitor(s), but only information 
that is in the public domain may be disclosed during the classified 
visit.
    (C) Non-sponsorship. The USG agency will decline to render a 
decision on a classified visit request that is not in support of a USG 
program. The USG agency will furnish a declination notice indicating 
that the classified visit is not USG-approved (i.e., the classified 
visit is non-sponsored) to the requesting foreign government with an 
information copy to the U.S. contractor to be visited.
    (1) A declination notice does not preclude the classified visit, 
provided the contractor has, or obtains, an export authorization for 
the information involved and, has been notified that the requesting 
foreign government has provided the required security assurance of the 
proposed visitor to the USG agency in the original classified visit 
request.
    (2) It is the contractor's responsibility to consult applicable 
export regulations to determine licensing requirements regarding the 
disclosure of export-controlled information during such classified 
visits by foreign nationals.
    (D) Visits to subsidiaries. A classified visit request 
authorization for a classified visit to any element of a corporate 
family may be used for visits to other divisions or subsidiaries within 
the same corporate family in accordance with Sec.  117.15(h)(3), 
provided disclosures are for the same purpose and the information to be 
disclosed does not exceed the parameters of the approved classified 
visit request.
    (E) Long-term classified visits and assignments of foreign 
nationals. Extended classified visits and assignments of foreign 
nationals to contractor locations can be authorized only when it is 
essential pursuant to a contract or government agreement (e.g., joint 
venture, liaison representative to a joint or multinational program, 
and direct commercial sale). The contractor will:
    (1) Consult with its empowered official for guidance.
    (2) Notify the CSA in advance of all long-term classified visits 
and assignments of foreign nationals.
    (3) Provide the CSA with a copy of the approved classified visit 
authorization or the USG export authorization.
    (4) Control of foreign visitors to U.S. contractors.--(i) 
Contractor. The contractor will:
    (A) Establish procedures to ensure that foreign visitors are not 
afforded access to classified information except as authorized by an 
export license, approved visit request, or other exemption to the 
licensing requirements.
    (B) Not inform the foreign visitor of the scope of access 
authorized or of the limitations imposed by the government.
    (ii) Foreign visitors. Foreign visitors will not be given custody 
of classified material except when they are acting as official couriers 
of the government and the CSA authorizes the transfer.
    (iii) Visitor records. The contractor will maintain a record of 
foreign visitors for one year when the visit involves access to 
classified information.
    (iv) Temporary approval of safeguarding. (A) Classified U.S. and 
foreign government material at a U.S. contractor location is to remain 
under U.S. contractor custody and control and is subject to self-
inspection and CSA security reviews.
    (B) This does not preclude the contractor from furnishing a foreign 
visitor with a security container for the temporary storage of 
classified material, consistent with the purpose of the visit or 
assignment, provided the CSA approves and responsibility for the 
container and its contents remains with the U.S. contractor.
    (1) The CSA may approve exceptions to this policy on a case-by-case 
basis for the storage of foreign government classified information 
furnished to the visitor by the visitor's government through government 
channels.
    (2) The CSA must approve such exceptions in advance in writing with

[[Page 83354]]

agreement from the visitor's government. The agreed procedures will be 
included in the contractor's TCP, will require the foreign nationals to 
provide receipts for the material, and will include an arrangement for 
the CSA to ensure compliance, including provisions for the CSA to 
inspect and inventory the material.
    (v) TCP. A TCP is required to control access by foreign nationals 
assigned to, or employed by, cleared contractor facilities, and when 
foreign nationals visit cleared contractor facilities on a long-term or 
extended basis, unless the CSA determines that procedures already in 
place at the contractor's facility are adequate. The TCP will contain 
procedures to control access for all export-controlled information. A 
sample TCP may be obtained from the CSA.
    (f) Contractor operations abroad.--(1) Access by contractor 
employees assigned outside the United States. (i) Contractor employees 
assigned outside the United States, its possessions, or territories may 
have access to classified information in connection with performance on 
a specified U.S., NATO, or foreign government classified contract.
    (ii) The assignment of an employee who is a non-U.S. citizen 
outside the United States on programs that will involve access to 
classified information is prohibited.
    (2) Storage, custody, and control of classified information abroad 
by contractor employees. (i) The USG is responsible for the storage, 
custody, and control of classified information required by a U.S. 
contractor employee abroad. Therefore, the storage of classified 
information by contractor employees at any location abroad that is not 
under USG control is prohibited. The storage may be at a U.S. military 
facility, an American Embassy or consulate, or other location occupied 
by a USG organization.
    (ii) A contractor employee may be furnished a security container to 
temporarily store classified material at a USG agency overseas 
location. The decision to permit a contractor to temporarily store 
classified information must be approved in writing by the senior 
security official for the USG host organization.
    (iii) A contractor employee may be permitted to temporarily remove 
classified information from an overseas USG-controlled facility when 
necessary for the performance of a GCA contract or pursuant to an 
approved export authorization.
    (A) The responsible USG security official at the facility will 
verify that the contractor has an export authorization or other written 
USG approval to have the material, verify the need for the material to 
be removed from the facility, and brief the employee on handling 
procedures.
    (1) In such cases, the contractor employee will sign a receipt for 
the classified material.
    (2) Arrangements will also be made with the USG custodian for the 
return and storage of the classified material during non-duty hours.
    (B) The security office at the USG facility will report violations 
of this policy to the applicable CSA.
    (iv) A contractor employee will not store classified information at 
overseas divisions or subsidiaries of U.S. entities incorporated or 
located in a foreign country.
    (A) The divisions or subsidiaries may possess classified 
information that has been transferred to the applicable foreign 
government through government-to-government channels pursuant to an 
approved export authorization or other written USG authorization.
    (B) Access to this classified information at such locations by a 
U.S. contractor employee assigned abroad by the parent facility on a 
visit authorization in support of a foreign government contract or 
subcontract, is governed by the laws and regulations of the country in 
which the division or subsidiary is registered or incorporated. The 
division or subsidiary that has obtained the information from the 
foreign government will provide the access.
    (v) U.S. contractor employees assigned to foreign government or 
foreign contractor locations under a direct commercial sales 
arrangement will be subject to the host-nation's industrial security 
policies.
    (3) Transmission of classified material to employees abroad. The 
transmission of classified material to a cleared contractor employee 
located outside the United States will be through USG channels.
    (i) If the material is to be used for other than USG purposes, an 
export authorization is required and a copy of the authorization, 
validated by the DGR, will accompany the material. The material will be 
addressed to a U.S. military organization or other USG organization 
(e.g., an embassy).
    (ii) USG organization abroad will be responsible for custody and 
control of the material.
    (4) Security briefings. An employee being assigned outside the 
United States will be briefed on the security requirements of his or 
her assignment, including the handling, disclosure, and storage of 
classified information overseas.
    (g) NATO information security requirements.--(1) General. This 
section provides the security requirements needed to comply with the 
procedures established by the U.S. Security Authority for NATO Affairs 
Instruction 1-07 (available at: http://archives.nato.int/informationobject/browse?topLod=0&query=United+States+Security+Authority+for+NATO+Affairs+Instruction+1-07) for safeguarding NATO information provided to U.S. 
industry.
    (2) NATO security classification levels.

     Table 1 to Paragraph (g)(2) NATO Security Classification Levels
------------------------------------------------------------------------
      NATO security classification             Classification level
------------------------------------------------------------------------
COSMIC TOP SECRET......................  Top Secret.
NATO SECRET............................  Secret.
NATO CONFIDENTIAL......................  Confidential.
NATO RESTRICTED \1\....................  Does not correspond to an
                                          equivalent U.S.
                                          classification.
------------------------------------------------------------------------
\1\ Pursuant to applicable NATO security regulations and United States
  Security Authority, NATO Instruction 1-07, security accreditation may
  be delegated to contractors for information systems processing only
  NATO RESTRICTED information. The contractor will be responsible for
  executing specific provisions under contract for the accreditation of
  such systems, and shall provide the Contracting Authority with a
  written statement confirming the information system has been
  accredited in compliance with the minimum requirements established in
  the contract security clause or contract Security Aspects Letter.

    (3) ATOMAL Classification Markings. ATOMAL is a marking applied to 
U.S. RESTRICTED DATA or FORMERLY RESTRICTED DATA and UK Atomic 
information that has been released to the NATO.

[[Page 83355]]



       Table 2 to Paragraph (g)(3) ATOMAL Classification Markings
------------------------------------------------------------------------
             ATOMAL marking                    Classification level
------------------------------------------------------------------------
COSMIC TOP SECRET ATOMAL...............  Top Secret.
NATO SECRET ATOMAL.....................  Secret.
NATO CONFIDENTIAL ATOMAL...............  Confidential.
------------------------------------------------------------------------

    (4) NATO contracts. NATO contracts involving NATO-unique systems, 
programs, or operations are awarded by a NATO Production and Logistics 
Organization (NPLO), a designated NATO Management Agency, the NATO 
Research Staff, or a NATO Command. In the case of NATO infrastructure 
projects (e.g., airfields, communications), the NATO contract is 
awarded by a contracting agency or prime contractor of the NATO nation 
responsible for the infrastructure project.
    (5) NATO facility security clearance certificate (FSCC). A NATO 
FSCC is required for a contractor to negotiate or perform on a NATO 
classified contract.
    (i) A U.S. entity qualifies for a NATO FSCC if it has an equivalent 
U.S. entity eligibility determination and its personnel have been 
briefed on NATO procedures.
    (ii) The CSA will provide the NATO FSCC to the requesting activity.
    (iii) A NATO FSCC is not required for GCA contracts involving 
access to NATO classified information.
    (6) Eligibility for personnel access to classified information. 
Access to NATO classified information requires a final determination 
that an individual is eligible for access to classified information at 
the equivalent level.
    (7) NATO briefings. Before having access to NATO classified 
information, the contractor will give employees a NATO security 
briefing that covers the requirements of this section and the 
consequences of negligent handling of NATO classified information. A 
representative of the CSA will give the initial briefing to the 
contractor. The contractor must conduct annual refresher briefings.
    (i) When access to NATO classified information is no longer 
required, the contractor will debrief the employees. The employees will 
sign a certificate stating that they have been briefed or debriefed, as 
applicable, and acknowledge their responsibility for safeguarding NATO 
information.
    (ii) The contractor will maintain certificates for two years for 
NATO SECRET and CONFIDENTIAL, and three years for COSMIC TOP SECRET and 
all ATOMAL information. The contractor will maintain a record of all 
NATO briefings and debriefings in the CSA-designated database.
    (8) Access to NATO classified information by foreign nationals. 
Foreign nationals of non-NATO nations may have access to NATO 
classified information only with the consent of the NATO Office of 
Security and the contracting activity.
    (i) Requests will be submitted to the Central U.S. Registry (CUSR).
    (ii) Access to NATO classified information may be permitted for 
citizens of NATO member nations, provided a NATO security clearance 
certificate is provided by their government and they have been briefed.
    (9) Subcontracting for NATO contracts. The contractor will obtain 
prior written approval from the NATO contracting activity and a NATO 
FSCC must be issued prior to awarding the subcontract. The contractor 
will forward the request for approval through the CSA.
    (10) Preparing and marking NATO documents. All classified documents 
created by a U.S. contractor will be portion-marked. Any portion 
extracted from a NATO document that is not portion marked, must be 
assigned the classification that is assigned to the NATO document.
    (i) All U.S.-originated NATO classified documents will bear an 
assigned reference number and date on the first page. The reference 
numbers will be assigned as follows:
    (A) The first element will be the abbreviation for the name of the 
contractor.
    (B) The second element will be the abbreviation for the highest 
classification followed by a hyphen and the 4-digit sequence number for 
the document within that classification that has been generated for the 
applicable calendar year.
    (C) The third element will be the year; e.g., MM/NS-0013/17.
    (ii) COSMIC TOP SECRET, NATO SECRET, and ATOMAL documents will bear 
the reference number on each page and a copy number on the cover or 
first page.
    (A) Copies of NATO documents will be serially numbered.
    (B) Pages will be numbered.
    (C) The first page, index, or table of contents will include a 
list, including page numbers, of all annexes and appendices.
    (D) The total number of pages will be stated on the first page.
    (E) All annexes or appendices will include the date of the original 
document and the purpose of the new text (addition or substitution) on 
the first page.
    (iii) One of the following markings will be applied to NATO 
documents that contain ATOMAL information:
    (A) ``This document contains U.S. ATOMIC Information (RESTRICTED 
DATA or FORMERLY RESTRICTED DATA) made available pursuant to the NATO 
Agreement for Cooperation Regarding ATOMIC Information, dated 18 June 
1964, and will be safeguarded accordingly.''
    (B) ``This document contains UK ATOMIC Information. This 
information is released to NATO including its military and civilian 
agencies and member states on condition that it will not be released by 
the recipient organization to any other organization or government or 
national of another country or member of any other organization without 
prior permission from H.M. Government in the United Kingdom.''
    (iv) Working papers will be retained only until a final product is 
produced and in accordance with Sec.  117.15(e)(3).
    (11) Classification guidance. Classification guidance will be in 
the form of a NATO security aspects letter and a security requirements 
checklist for NATO contracts, or a Contract Security Classification 
Specification, or equivalent.
    (i) If adequate classification guidance is not received, the 
contractor will contact the CSA for assistance.
    (ii) NATO classified documents and NATO information in other 
documents will not be declassified or downgraded without the prior 
written consent of the originating activity.
    (iii) Recommendations concerning the declassification or 
downgrading of NATO classified information will be forwarded to the 
CUSR.
    (12) Further distribution. The contractor will not release or 
disclose NATO classified information to a third party or outside the 
contractor's facility for any purpose without the prior written 
approval of the contracting agency.

[[Page 83356]]

    (13) Storage of NATO documents. NATO classified documents will be 
stored as prescribed for U.S. documents of an equivalent classification 
level, except as follows:
    (i) NATO classified documents will not be comingled with other 
documents.
    (ii) Combinations for containers used to store NATO classified 
information will be changed annually. The combination also will be 
changed when an individual with access to the container departs or no 
longer requires access to the container, and if the combination is 
suspected of being compromised.
    (iii) When the combination is recorded it will be marked with the 
highest classification level of documents stored in the container as 
well as to indicate the level and type of NATO documents in the 
container. The combination record must be logged and controlled in the 
same manner as NATO classified documents.
    (14) International transmission. The NATO has a registry system for 
the receipt and distribution of NATO documents within each NATO member 
nation. The central distribution point for the United States is the 
CUSR now located at 9301 Chapek Road, Building 1458, Fort Belvoir, 
Virginia 22060.
    (i) The CUSR establishes sub registries at USG organizations for 
further distribution and control of NATO documents. Sub registries may 
establish control points at contractor facilities.
    (ii) COSMIC TOP SECRET, NATO SECRET, and all ATOMAL documents will 
be transferred through the registry system. NATO CONFIDENTIAL documents 
provided as part of NATO infrastructure contracts will be transmitted 
via government channels in compliance with paragraph (d) in this 
section.
    (15) Hand carrying. NATO SECRET and NATO CONFIDENTIAL documents may 
be hand carried across international borders if authorized by the GCA. 
The courier will be issued a NATO Courier Certificate by the CSA. When 
hand carrying is authorized, the documents will be delivered to a U.S. 
organization at NATO, which will transfer them to the intended NATO 
recipient.
    (16) Reproduction. Reproductions of COSMIC TOP SECRET and COSMIC 
TOP SECRET ATOMAL information will be performed by the responsible 
Registry. The reproduction of NATO SECRET and CONFIDENTIAL documents 
may be authorized to meet contractual requirements unless reproduction 
is prohibited by the contracting entity. Copies of COSMIC TOP SECRET, 
NATO SECRET, and ATOMAL documents will be serially numbered and 
controlled and accounted for in the same manner as the original.
    (17) Disposition. (i) Generally, all NATO classified documents will 
be returned to the contracting activity that provided them on 
completion of the contract. Documents provided in connection with an 
invitation to bid also will be returned immediately if the bid is not 
accepted or submitted.
    (ii) NATO classified documents may also be destroyed when 
permitted. COSMIC TOP SECRET and COSMIC TOP SECRET ATOMAL documents 
will be destroyed by the registry that provided the documents.
    (A) Destruction certificates are required for all NATO classified 
documents except NATO CONFIDENTIAL.
    (B) The destruction of COSMIC TOP SECRET, NATO SECRET, and all 
ATOMAL documents must be witnessed.
    (18) Accountability records. Logs, receipts, and destruction 
certificates are required for NATO classified information. Records for 
NATO documents will be maintained separately from records of non-NATO 
documents (methods such as separate drawers of a container).
    (i) COSMIC TOP SECRET and all ATOMAL documents will be recorded on 
logs maintained separately from other NATO logs and will be assigned 
unique serial control numbers.
    (ii) Additionally, disclosure records bearing the name and 
signature of each person who has access are required for all COSMIC TOP 
SECRET, COSMIC TOP SECRET ATOMAL, and all other ATOMAL or NATO 
classified documents to which special access limitations have been 
applied.
    (iii) Minimum identifying data on logs, receipts, and destruction 
certificates will include the NATO reference number, short title, date 
of the document, classification, and serial copy numbers. Logs will 
reflect the short title, unclassified subject, and distribution of the 
documents.
    (iv) Receipts are required for all NATO classified documents except 
NATO CONFIDENTIAL.
    (v) Inventories will be conducted annually of all COSMIC TOP 
SECRET, NATO SECRET, and ATOMAL documents.
    (vi) Accountability records for ATOMAL documents will be retained 
for 10 years after transfer or destruction of the ATOMAL document. 
Destruction certificates will be retained for 10 years after 
destruction of the related ATOMAL documents.
    (19) Security violations and loss, compromise, or possible 
compromise. The contractor will immediately report the loss, 
compromise, or suspected loss or compromise, as well as any other 
security violations involving NATO classified information to the CSA.
    (20) Extracting from NATO documents. Permission to extract from a 
COSMIC TOP SECRET or ATOMAL document will be obtained from the CUSR.
    (i) If extracts of NATO information are included in a U.S. document 
prepared for a non-NATO contract, the document will be marked with U.S. 
classification markings. The caveat, ``THIS DOCUMENT CONTAINS NATO 
(level of classification) INFORMATION'' also will be marked on the 
front cover or first page of the document. Additionally, each paragraph 
or portion containing the NATO information will be marked with the 
appropriate NATO classification, abbreviated in parentheses (e.g., 
``NS'' for NATO SECRET) preceding the portion or paragraph. 
Declassification and downgrading instructions shall indicate that the 
NATO information is exempt from declassification or downgrading without 
the prior consent of NATO, in the absence of other originator 
instructions, citing the reason ``Foreign Government Information.''
    (ii) The declassification or downgrading of NATO information in a 
U.S. document requires the approval of the originating NATO activity. 
Requests will be submitted to the CUSR for NATO contracts, through the 
GCA for U.S. contracts, and through the CSA for non-NATO contracts 
awarded by a NATO member nation.
    (21) Release of U.S. information to NATO. (i) Release of U.S. 
classified or export-controlled information to NATO requires an export 
authorization or other written disclosure authorization. When a 
document containing U.S. classified information is being prepared for 
NATO, the appropriate NATO classification markings will be applied to 
the document.
    (A) Documents containing U.S. classified information and U.S. 
classified documents that are authorized for release to NATO will be 
marked on the cover or first page ``THIS DOCUMENT CONTAINS U.S. 
CLASSIFIED INFORMATION. THE INFORMATION IN THIS DOCUMENT HAS BEEN 
AUTHORIZED FOR RELEASE TO (cite the NATO organization) BY (cite the 
applicable license or other written authority).''
    (B) The CSA will provide transmission instructions to the 
contractor. The material will be

[[Page 83357]]

addressed to a U.S. organization at NATO, which will then place the 
material into NATO security channels. The material will be accompanied 
by a letter to the U.S. organization that provides transfer 
instructions and assurances that the material has been authorized for 
release to NATO. The inner wrapper will be addressed to the intended 
NATO recipient.
    (C) Material to be sent to NATO via mail will be routed through the 
U.S. Postal Service and U.S. military postal channels to the U.S. 
organization that will make the transfer.
    (ii) A record will be maintained that identifies the originator and 
source of classified information that are used in the preparation of 
documents for release to NATO. The record will be provided with any 
request for release authorization.
    (22) Visits. NATO visits will be handled in accordance with the 
requirements in paragraph (e) of this section. A NATO Certificate of 
Security Clearance will be included with the visit request.
    (i) NPLO and NATO industrial advisory group (NIAG) recurring 
visits. NATO has established special procedures for recurring visits 
involving contractors, government departments and agencies, and NATO 
commands and agencies that are participating in a NPLO or NIAG contract 
or program. The NATO management office or agency responsible for the 
NPLO program will prepare a list of the government and contractor 
facilities participating in the program. For NIAG programs, the list 
will be prepared by the responsible NATO staff element. The list will 
be forwarded to the appropriate clearance agency of the participating 
nations, which will forward it to the participating contractor.
    (ii) Visitor record. The contractor will maintain a record of NATO 
visits including those by U.S. personnel assigned to NATO. The records 
will be maintained for three years.
    (h) Security and export control violations involving foreign 
nationals. Contractors will report any violation of administrative 
security procedures or export control regulations that would subject 
classified information to possible compromise by foreign visitors or 
foreign national employees to the applicable CSA.
    (i) Transfers of defense articles to the UK or AUS without a 
license or other written authorization.--(1) Treaties with AUS and UK. 
Exemptions in ITAR parts 126.16 and 126.17 implement the Defense Trade 
Cooperation Treaty between the Government of the United States of 
America and the Government of the UK of Great Britain and Northern 
Ireland and the Defense Trade Cooperation Treaty between the Government 
of the United States of America and the Government of AUS, also known 
as the ``U.S.-UK Treaty'' and ``U.S.-AUS Treaty,'' respectively, 
referred to collectively in this rule as ``the Treaties.''
    (i) The Treaties provide a comprehensive framework for exports and 
transfers to the UK or AUS of certain classified and unclassified 
defense articles without a license or other written authorization.
    (ii) The ITAR part 126, supplement no. 1 identifies those defense 
articles and services that are not eligible for export via treaty 
exemptions.
    (iii) This exemption applies to contractors registered with the 
DDTC and eligible to export defense articles.
    (2) Defense articles. Defense articles fall under the scope of the 
Treaties when they are in support of:
    (i) U.S. and UK or U.S. and AUS combined military or counter-
terrorism operations.
    (ii) U.S. and UK or U.S. and AUS cooperative security and defense 
research, development, production, and support programs.
    (iii) Mutually agreed specific security and defense projects where 
the government of the UK or AUS is the end-user.
    (iv) USG end-use.
    (3) Marking requirements. Contractors are required to mark defense 
articles that fall under the scope of the treaty prior to transferring 
from the U.S. to the UK in accordance with the provisions of this 
paragraph. All other standard classification marking in accordance with 
Sec.  117.14 also apply. When defense articles are returned from the UK 
or AUS to the United States, any defense articles marked as RESTRICTED 
in the manner shown in Table 4 purely for the purposes of the treaties 
will be considered to be unclassified and such marking will be removed.

                      Table 3 to Paragraph (i)(3) Classified U.S. Defense Article Markings
                      UNCLASSIFIED: CLASSIFICATION MARKINGS FOR ILLUSTRATION PURPOSES ONLY
----------------------------------------------------------------------------------------------------------------
                                                                                 Example (for SECRET classified
                Treaty with:                              Marking                       defense articles)
----------------------------------------------------------------------------------------------------------------
Government of UK...........................  //CLASSIFICATION LEVEL USML/REL    //SECRET USML//REL GBR AND USA
                                              GBR AND USA TREATY COMMUNITY//.    TREATY COMMUNITY//''
Government of AUS..........................  //CLASSIFICATION LEVEL USML/REL    //SECRET USML//REL AUS AND USA
                                              AUS AND USA TREATY COMMUNITY//.    TREATY COMMUNITY//''
----------------------------------------------------------------------------------------------------------------


 Table 4 to Paragraph (i)(3) Unclassified U.S. Defense Article Markings
  UNCLASSIFIED: CLASSIFICATION MARKINGS FOR ILLUSTRATION PURPOSES ONLY
------------------------------------------------------------------------
              Treaty with:                            Marking
------------------------------------------------------------------------
Government of UK........................  //RESTRICTED-USML//REL GBR AND
                                           USA TREATY COMMUNITY//
Government of AUS.......................  //RESTRICTED-USML//REL AUS AND
                                           USA TREATY COMMUNITY//
------------------------------------------------------------------------

    (4) Notice. A notice will be included (e.g., as part of the bill of 
lading) whenever defense articles are exported in accordance with the 
provisions of these treaties and the ITAR.

[[Page 83358]]



  Table 5 to Paragraph (i)(4) Notice Text for Exported Defense Articles
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Notice text........................  These U.S. Munitions List
                                      commodities are authorized by the
                                      U.S. Government under the U.S.
                                      [AUS or UK, as applicable] Defense
                                      Trade Cooperation Treaty for
                                      export only to [AUS or UK, as
                                      applicable] for use in approved
                                      projects, programs or operations
                                      by members of the [AUS or UK, as
                                      applicable] Community. They may
                                      not be retransferred or re-
                                      exported or used outside of an
                                      approve project, program, or
                                      operation, either in their
                                      original form or after being
                                      incorporated into other end-items,
                                      without the prior written approval
                                      of the U.S. Department of State.
------------------------------------------------------------------------

    (5) Labeling. (i) Defense articles (other than technical data) will 
be individually labeled with the appropriate identification; or, where 
such labeling is impracticable (e.g., propellants, chemicals), will be 
accompanied by documentation (such as contracts or invoices) clearly 
associating the defense articles with the appropriate markings.
    (ii) Technical data (including data packages, technical papers, 
manuals, presentations, specifications, guides and reports), regardless 
of media or means of transmission (i.e., physical, oral, or 
electronic), will be individually labeled with the appropriate 
identification detailed. Where such labeling is impracticable, the data 
will be accompanied by documentation (such as contracts or invoices) or 
oral notification clearly associating the technical data with the 
appropriate markings.
    (iii) Defense services will be accompanied by documentation (e.g. 
contracts, invoices, shipping bills, or bills of lading clearly labeled 
with the appropriate identification).
    (6) Transfers. (i) All defense articles that fall under the scope 
of the Treaties must be transferred from the U.S. point of embarkation 
through channels approved by both the United States and the UK or the 
United States and AUS, as applicable.
    (ii) For transfers of defense articles as freight, the contractor 
will prepare a transportation plan. For transfer of classified U.S. 
defense articles, a freight forwarder must have a valid entity 
eligibility determination and a classified information storage 
capability at the appropriate level. For unclassified U.S. defense 
articles transferred as freight, a freight forwarder is not required to 
be cleared.
    (7) Records. Contractors will maintain records of exports, 
transfers, re-exports, or re-transfers of defense articles subject to 
the Treaties for a minimum of five years. The contractor will make 
records available to the CSA upon request. In accordance with the ITAR 
parts 126.16 and 126.17 the records will contain:
    (i) Port of entry or exit.
    (ii) Date and time of export or import.
    (iii) Method of export or import.
    (iv) Commodity code and description of the commodity, including 
technical data.
    (v) Value of export.
    (vi) Justification for export under the Treaties.
    (vii) End-user or end-use.
    (viii) Identification of all U.S. and foreign parties to the 
transaction.
    (ix) How export was marked.
    (x) Security classification of the export.
    (xi) All written correspondence with the USG on the export.
    (xii) All information relating to political contributions, fees, or 
commissions furnished or obtained, offered, solicited, or agreed upon, 
as outlined in the ITAR parts 126.16(m) or 126.17(m).
    (xiii) Purchase order, contract, or letter of intent.
    (xiv) Technical data actually exported.
    (xv) The internal transaction number for the electronic export 
information filing in the automated export system.
    (xvi) All shipping documentation (including, but not limited to, 
the airway bill, bill of lading, packing list, delivery verification, 
and invoice).
    (xvii) Statement of registration (Department of State Form DS-2032 
(available at: https://www.pmddtc.state.gov/sys_attachment.do?sysparm_referring_url=tear_off&view=true&sys_id=dabc05f6db6be344529d368d7c961984)).


Sec.  117.20   Critical Nuclear Weapon Design Information (CNWDI).

    (a) General. This section contains the special requirements for 
protection of CNDWI. The sensitivity of DoD CNWDI is such that access 
shall be granted to the absolute minimum number of employees who 
require it for the accomplishment of assigned responsibilities on a 
classified contract. Because of the importance of such information, 
special requirements have been established for its control. DoDI 
5210.02, ``Access to and Dissemination of Restricted Data and Formerly 
Restricted Data'' (available at: https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/521002p.pdf?ver=2019-01-14-072742-700) 
establishes these controls in the DoD.
    (b) Briefings. Prior to having access to CNWDI, employees will be 
briefed on its sensitivity by the FSO or his or her alternate. The FSO 
will be initially briefed by a USG representative.
    (1) The briefing will include:
    (i) The definition of CNWDI.
    (ii) A reminder of the extreme sensitivity of the information.
    (iii) An explanation of the individual's continuing responsibility 
for properly safeguarding CNWDI and for ensuring that dissemination is 
strictly limited to other personnel who have been authorized for access 
and have a need-to-know for the particular information.
    (2) The briefing will also be tailored to cover any special local 
requirements. Upon termination of access to CNWDI, the employee will be 
given an oral debriefing.
    (c) Markings. In addition to any other required markings, CNWDI 
material will be clearly marked in accordance with DoDI 5210.02. At a 
minimum, CNWDI documents will show such markings on the cover or first 
page. Portions of documents that contain CNWDI will be marked with an 
(N) or (CNWDI) following the classification of the portion; for 
example, TS (RD)(N) or TS(RD)(CNWDI).
    (d) Subcontractors. Contractors will not disclose CNWDI to 
subcontractors without the prior written approval of the GCA. This 
approval may be included in a contract security classification 
specification, or equivalent, other contract-related document, or by 
separate correspondence.
    (e) Transmission outside the facility. Transmission of CNWDI 
outside the contractor's facility is authorized only to the GCA, or to 
a subcontractor as described in paragraph (d) of this section. Any 
other transmission must be approved by the GCA.
    (1) Prior to transmission to another cleared facility, the 
contractor will verify from the CSA that the facility has been 
authorized access to CNWDI. When CNWDI is transmitted to another 
facility, the inner wrapping will be addressed to the personal 
attention of the FSO or his or her alternate, and in addition to any 
other prescribed markings, the inner wrapping will be marked: 
``Critical Nuclear Weapon Design Information-DoD Instruction 5210.02 
Applies.''

[[Page 83359]]

    (2) The same marking will be used on the inner wrapping of 
transmissions addressed to the GCA or other USG.
    (f) Records. Contractors will annotate CNWDI access in the CSA-
designated database for all employees who have been authorized access 
to CNWDI.
    (g) Nuclear weapon data. Some nuclear weapon data is divided into 
Sigma categories, the protection of which is prescribed by DOE Order 
452.8 (available at: https://www.directives.doe.gov/directives-documents/400-series/0452.8-border/@@images/file). However, certain 
nuclear weapon data has been re-categorized as CNWDI and is protected 
as described in this section.


Sec.  117.21   COMSEC.

    (a) General. The procedures in this section pertaining to 
classified COMSEC information will apply to contractors when the 
contractor:
    (1) Requires the use of COMSEC systems in the performance of a 
contract.
    (2) Is required to install, maintain, or operate COMSEC equipment 
for the USG.
    (3) Is required to accomplish research, development, or production 
of COMSEC systems, COMSEC equipment, or related COMSEC material.
    (b) Instructions. Specific requirements for the management and 
safeguarding of COMSEC material in industry are established in the 
COMSEC material control and operating procedures provided to the 
account manager of each industrial COMSEC account by the agency central 
office of record (COR) responsible for establishing the account. Such 
procedures that are above the baseline requirements detailed in the 
other sections of this rule will be contractually mandated.
    (c) Clearance and access requirements. (1) Before a COMSEC account 
can be established and a contractor may receive or possess COMSEC 
material accountable to a COR, individuals occupying the positions of 
FSO, COMSEC account manager, and alternate COMSEC account manager must 
have a final PCL appropriate for the material to be held in the 
account.
    (i) COMSEC account managers and alternate COMSEC account managers 
having access to operational TOP SECRET keying material marked as 
CRYPTO must have a final TOP SECRET security clearance based upon a 
current investigation of a scope that meets or exceeds that necessary 
for the access required.
    (ii) This requirement does not apply to contractors using only data 
transfer devices and seed key.
    (2) Before disclosure of COMSEC information to a contractor, GCAs 
must first verify with the CSA that appropriate COMSEC procedures are 
in place at the contractor facility. If procedures are not in place, 
the GCA will provide a written request and justification to the CSA to 
establish COMSEC procedures and a COMSEC account, if appropriate, at 
the facility and to conduct the initial COMSEC or cryptographic access 
briefings for the FSO and COMSEC account personnel.
    (3) Access to COMSEC information by a contractor requires a final 
entity eligibility determination and a USG-issued final PCL at the 
appropriate level; however, an Interim TOP SECRET entity eligibility 
determination or PCL is valid for access to COMSEC at the SECRET and 
CONFIDENTIAL levels.
    (4) If a COMSEC account will be required, the Contract Security 
Classification Specification, or equivalent, will contain a statement 
regarding the establishment of a COMSEC account as appropriate.
    (d) Establishing a COMSEC account. (1) When COMSEC material that is 
accountable to a COR is to be provided, acquired, or produced under a 
contract, the contracting officer will inform the contractor that a 
COMSEC account must be established. The contractor will forward the 
names of U.S. citizen employees who will serve as the COMSEC account 
manager and alternate COMSEC account manager to the CSA. The CSA will 
forward the names of the FSO, COMSEC account manager, and alternate 
COMSEC account manager, along with a contractual requirement for the 
establishment of a COMSEC account (using DD Form 254 or equivalent) to 
the appropriate COR, with a copy to the GCA, indicating that the 
persons have been cleared and COMSEC has been briefed.
    (2) The COR will then establish the COMSEC account and notify the 
CSA that the account has been established.
    (3) An individual may be appointed as the COMSEC account manager or 
alternate COMSEC account manager for more than one account only when 
approved by each COR concerned.
    (e) COMSEC briefing and debriefing. (1) All contractor employees 
who require access to classified COMSEC information in the performance 
of their duties will be briefed before access is granted. Depending on 
the nature of COMSEC access required, either a COMSEC briefing or a 
cryptographic access briefing will be given. The FSO, the COMSEC 
account manager, and the alternate COMSEC account manager will be 
briefed by a USG representative or their designee. Other contractor 
employees will be briefed by the FSO, the COMSEC account personnel, or 
other individual designated by the FSO. The purpose of the briefing is 
to ensure that the contractor understands:
    (i) The unique nature of COMSEC information and its unusual 
sensitivity.
    (ii) The special security requirements for the handling and 
protection of COMSEC information.
    (iii) The penalties prescribed in 18 U.S.C. 793, 794, and 798 for 
disclosure of COMSEC information.
    (2) COMSEC debriefings are not required.
    (3) The contractor will maintain a record of all COMSEC briefings 
as specified by the appropriate COR.
    (f) U.S. classified cryptographic information access briefing and 
debriefing requirements. (1) U.S. classified cryptographic information 
does not include seed key or controlled cryptographic items.
    (2) A contractor's employee may be granted access to U.S. 
classified cryptographic information only if the employee:
    (i) Is a U.S. citizen.
    (ii) Has a final USG-issued eligibility determination appropriate 
to the classification of the U.S. cryptographic information to be 
accessed.
    (iii) Has a valid need-to-know to perform duties for, or on behalf 
of, the USG.
    (iv) Receives a security briefing appropriate to the U.S. 
Classified Cryptographic Information to be accessed.
    (v) Acknowledges the granting of access to classified information 
by executing Section I of Secretary of Defense (SD) Form 572, 
``Cryptographic Access Certification and Termination'' (available at: 
https://www.esd.whs.mil/Portals/54/Documents/DD/forms/sd/sd0572.pdf).
    (vi) Where so directed by a USG department or agency head, 
acknowledges the possibility of being subject to a CI scope polygraph 
examination that will be administered in accordance with department or 
agency directives and applicable law.
    (3) An employee granted access to cryptographic information will be 
debriefed and execute Section II of the SD 572 not later than 90 days 
from the date access is no longer required.
    (4) The contractor will maintain the SD 572 for a minimum of five 
years following the debriefing.
    (5) Cryptographic access briefings must fully meet the requirements 
of paragraph (e) of this section.

[[Page 83360]]

    (g) Destruction and disposition of COMSEC material. The appropriate 
GCA representative, e.g., the contracting officer representative, will 
provide directions to the contractor when accountable COMSEC material 
is to be destroyed. These directions may be provided in superseding 
editions of publications or by specific instructions.
    (h) Subcontracting COMSEC work. Subcontracts requiring the 
disclosure of classified COMSEC information will be awarded only upon 
the written approval of the GCA.
    (i) Unsolicited proposals. Any unsolicited proposal for a COMSEC 
system, equipment, development, or study that may be submitted by a 
contractor to a USG agency will be forwarded to the Deputy National 
Manager for National Security Systems for review and follow up action 
at: Deputy National Manager for National Security Systems, NSA, Fort 
George G. Meade, MD 20755-6000.


Sec.  117.22   DHS CCIPP.

    (a) General. DHS will coordinate with other USG agencies that have 
an equity with a private sector entity and the CCIPP in accordance with 
Sec.  117.6(f).
    (b) Authority. (1) The Secretary of Homeland Security has the 
authority to determine the eligibility for personnel security 
clearances and to administer the sharing of relevant classified NSI 
with certain private sectors or non-federal partners for the purpose of 
furthering cybersecurity information sharing among critical 
infrastructure partners pursuant to E.O. 13691.
    (2) DHS provides security oversight and assumes security 
responsibilities similar to those of an FSO, unless otherwise provided 
in this section. Participating entities will cooperate with DHS 
security officials to ensure the entity is in compliance with 
requirements in this rule.


Sec.  117.23   Supplement to this rule: Security Requirements for 
Alternative Compensatory Control Measures (ACCM), Special Access 
Programs (SAPs), Sensitive Compartmented Information (SCI), Restricted 
Data (RD), Formerly Restricted Data (FRD), Transclassified Foreign 
Nuclear Information (TFNI), and NNPI.

    (a) General. Given the sensitive nature of Alternative Compensatory 
Control Measures (ACCM), SAPs, SCI, RD, FRD, TFNI, and NNPI, the 
security requirements prescribed in this section exceed baseline 
standards for this rule and must be applied, as applicable, through 
specific contract requirements.
    (1) Compliance. The contractor will comply with the security 
measures reflected in this section and other documents specifically 
referenced, when applied by the GCA or designee as part of a contract. 
Acceptance of the contract security measures is a prerequisite to any 
negotiations leading to program participation and an area accreditation 
(e.g., an SCI facility or SAP facility accreditation).
    (2) CSA-imposed higher standards. In some cases, security or 
sensitive factors of a CSA-created program may require security 
measures that exceed the standards of this section. In such cases, the 
CSA-imposed higher standards specifically detailed in the contract or 
conveyed through other applicable directives will be binding on USG and 
contractor participants. In cases of doubt over the specific 
provisions, the contractor should consult the program security officer 
and the contracting officer before taking any action or expending 
program-related funds. In cases of extreme emergencies requiring 
immediate attention, the action taken should protect the USG's interest 
and the security of the program from loss or compromise.
    (3) Waivers. Every effort will be made to avoid waivers to 
established standards unless they are in the best interest of the USG. 
In those cases where waivers are deemed necessary, a request will be 
submitted in accordance with the procedures established by the CSA.
    (b) Intelligence information. National intelligence is under the 
jurisdiction and control of the DNI, who establishes security policy 
for the protection of national intelligence and intelligence sources, 
methods, and activities. In addition to the guidance in this rule, 
contractors will follow Intelligence Community directives, policy 
guidance, standards, and specifications for the protection of 
classified national intelligence and SCI.
    (c) ACCM. Contractors may participate in ACCMs, or be directed to 
participate, only when such access and the associated security plan are 
identified in DD Form 254 or equivalent. Care must be taken to ensure 
identification of the security plan does not disclose ACCM-protected 
data.
    (1) ACCM contracts. DoD contractors will implement the security 
requirements for ACCMs, when established by contract, in accordance 
with applicable statutes, E.O.s, CSA directives, instructions, manuals, 
regulations, standards, and memorandums.
    (2) Non-DoD with ACCMs. Contractors performing on ACCM contracts 
issued by other than DoD GCAs will implement ACCM protection 
requirements imposed in their contracts.
    (d) SAPs.--(1) DoD SAP contracts. Contractors will implement the 
security requirements for SAPs codified in SAP-related policy, when 
established by contract. These documents include, but are not limited 
to, statutes, E.O.s, CSA directives, instructions, manuals, 
regulations, standards, memorandums, and other SAP security related 
policy documents.
    (2) Non-DoD SAPs. Contractors performing on SAP contracts issued by 
non-DoD GCAs will implement SAP protection requirements imposed in 
their contracts. These requirements may be from, but are not limited 
to, statutes, E.O.s, CSA directives, instructions, manuals, 
regulations, standards, memorandums, and other SAP security related 
policy documents.
    (e) RD, FRD, and TFNI.--(1) General. This section describes some of 
the requirements for nuclear-related information designated RD, FRD, or 
TFNI in accordance with the AEA and 10 CFR part 1045. 10 CFR part 1045 
contains the full requirements for classification and declassification 
of RD, FRD, and TFNI. Information on safeguarding of RD by access 
permittees is contained in 10 CFR part 1016. For RD that is NNPI, the 
additional provisions of paragraph (f) of this section apply.
    (i) The DOE is the sole authority for establishing requirements for 
classifying, accessing, handling, securing, and protecting RD. The DOE 
and the DoD share authority for the requirements for FRD. The DOE and 
ODNI share authority for establishing requirements for TFNI.
    (ii) RD, FRD, and TFNI categories are distinguished from the NSI 
category, which is governed in accordance with E.O. 13526.
    (A) RD, FRD, and TFNI have unique marking requirements and are not 
subject to automatic declassification. In addition, RD and FRD have 
special restrictions regarding foreign release.
    (B) It is necessary to differentiate between the handling of this 
information and NSI because of its direct relationship to our nation's 
nuclear deterrent.
    (iii) Some access requirements for RD and FRD exceed the 
requirements for NSI. Due to the unique national security implications 
of RD and FRD, and to facilitate maintaining consistency of codified 
requirement, they are not repeated in the baseline of this rule, but 
may be applied through specific contract requirements.
    (iv) When RD is transclassified as TFNI, it is safeguarded as NSI. 
Such information will be labeled as TFNI. The label TFNI will be 
included on

[[Page 83361]]

documents to indicate it is exempt from automatic declassification as 
specified in 10 CFR part 1045, the AEA, E.O. 13526, and 32 CFR part 
2001.
    (2) Unauthorized disclosures. Contractors will report all 
unauthorized disclosures involving RD, FRD and TFNI information to the 
CSA.
    (3) International requirements. The AEA provides for a program of 
international cooperation to promote common defense and security and to 
make available to cooperating nations the benefits of peaceful 
applications of atomic energy as widely as expanding technology and 
considerations of the common defense and security will permit.
    (i) Information controlled in accordance with the AEA, RD, and FRD 
may be shared with another nation only under the terms of an agreement 
for cooperation. The disclosure by a contractor of RD and FRD will not 
be permitted until an agreement is signed by the United States and 
participating governments, and disclosure guidance and security 
arrangements are established.
    (ii) RD and FRD will not be transmitted to a foreign national or 
regional defense organization unless such action is approved and 
undertaken under an agreement for cooperation between the United States 
and the cooperating entity and supporting statutory determinations, as 
prescribed in the AEA.
    (4) Personnel security clearance and access. Only the DOE, the NRC, 
the DoD, and the National Aeronautics and Space Agency can grant access 
to RD and FRD that is under their cognizance. Access to RD and FRD must 
be granted in accordance with the AEA. Baseline requirements for access 
to RD and FRD are codified in specific DoD, DOE, NRC, and the National 
Aeronautics and Space Agency directives and regulations. In addition, 
need-to-know and other restrictions on access apply.
    (5) Classification and declassification. (i) All persons with 
access to RD and FRD must receive initial and periodic refresher 
training as required under Sec.  1045.120 10 CFR. The training must 
include the following information:
    (A) What information is potentially RD and FRD.
    (B) Matter that potentially contains RD or FRD must be reviewed by 
an RD derivative classifier to determine whether it is RD or FRD.
    (C) The DOE must review matter that potentially contains RD or TFNI 
for public release and DOE or DoD must review matter that potentially 
contains FRD for public release.
    (D) RD derivative classification authority is required to classify 
or upgrade matter containing RD or FRD, or to downgrade the level of 
matter containing RD or FRD.
    (E) Only a person trained in accordance with Sec.  1045.120 10 CFR 
may classify matter containing TFNI.
    (F) Matter containing RD, FRD, and TFNI is not automatically 
declassified and only DOE-authorized persons may downgrade the category 
or declassify matter marked as containing RD. Only DOE or DoD 
authorized persons may downgrade the category or declassify matter 
marked as containing FRD.
    (G) How to submit a challenge if they believe RD, FRD, or TFNI 
information (e.g., a guide topic) or matter containing RD, FRD, or TFNI 
is not properly classified.
    (H) Access requirements for matter marked as containing RD or FRD.
    (ii) All persons with access to TFNI must receive initial and 
periodic refresher training as required under Sec.  1045.120 10 CFR. 
This training may be combined with the training for access to RD and 
FRD. The training must include the following information:
    (A) What information is potentially TFNI.
    (B) Only a person with appropriate training may determine if matter 
contains TFNI.
    (C) Marking requirements for matter containing TFNI.
    (D) Matter containing TFNI is not automatically declassified and 
only DOE authorized persons may downgrade the category or declassify 
matter marked as containing TFNI.
    (E) How to submit a challenge if they believe TFNI information 
(e.g., a guide topic) or matter containing TFNI is not properly 
classified.
    (iii) Persons with access to RD, FRD, or TFNI must submit matter 
that potentially contains RD or FRD to an RD derivative classifier for 
review. If matter potentially contains TFNI, it must be submitted to a 
person trained to make TFNI determinations. Matter potentially 
containing RD, FRD, or TFNI must be reviewed, even if the potential RD, 
FRD, or TFNI is derived from the open literature. Prior to review, the 
matter must be marked as a working paper under 10 CFR 1045.140(c). If 
the matter is intended for pubic release and potentially contains RD or 
TFNI, it must be submitted to the DOE for review. If the matter is 
intended for public release and contains FRD, it must be submitted to 
the DOE or the DoD.
    (iv) Only RD derivative classifiers may classify matter containing 
RD or FRD. RD derivative classifiers must receive initial training and 
refresher training every two years as required under 10 CFR 1045.120. 
The training must include the content for persons with access to RD and 
FRD, along with the following:
    (A) The use of classification guides, classification bulletins, and 
portion-marked source documents to classify matter containing RD and 
FRD.
    (B) What to do if applicable classification guidance is not 
available.
    (C) Limitations on an RD derivative classifier's authority to 
remove RD or FRD portions from matter.
    (D) Marking requirements for matter containing RD and FRD.
    (v) Only persons with appropriate training may review matter to 
determine if it contains TFNI. Training must be completed prior to 
making determinations and every two years after. The training must 
include the content for persons with access to TFNI and the following:
    (A) The markings applied to matter containing TFNI.
    (B) Limitations on their authority to remove TFNI portions from 
matter.
    (C) Only DOE authorized persons may determine that classified 
matter no longer contains TFNI.
    (D) Only DOE-authorized persons may declassify matter marked as 
containing TFNI.
    (E) The DOE must review matter that potentially contains TFNI for 
public release.
    (vi) RD derivative classifiers must use approved classification 
guides, classification bulletins, or portion-marked source documents as 
the basis for classifying matter containing RD and FRD.
    (vii) Persons trained to make TFNI determinations must use approved 
TFNI guidelines, classification guides, classification bulletins, or 
portion-marked source documents as the basis for classifying or upgrade 
matter containing TFNI.
    (6) Marking matter containing RD, FRD, and TFNI. The front page of 
matter containing RD or FRD must have the highest classification level 
of the information on the top and bottom of the first page, the RD or 
FRD admonishment, the subject or title marking, and the classification 
authority block. Matter containing TFNI must include the TFNI 
identifier on each page unless the matter also contains RD or FRD, in 
which case the RD or FRD takes precedence.
    (i) Documents classified as RD or FRD must also include a 
Classification Authority Block with the RD derivative classifier's name 
and position, title, or unique identifier and the classification guide 
or source document (by title and

[[Page 83362]]

date) used to classify the document. No declassification date or event 
may be placed on a document containing RD, FRD, or TFNI. If a document 
containing RD, FRD, or TFNI also contains NSI, ``N/A to RD/FRD/TFNI'' 
(as appropriate) must be placed on the ``Declassify On:'' line.
    (ii) Each interior page of matter containing RD or FRD must be 
clearly marked at the top and bottom with the overall classification 
level and category of the matter or the overall classification level 
and category of the page, whichever is preferred. The abbreviations 
``RD'' or ``FRD'' may be used in conjunction with the matter 
classification (e.g., SECRET//RD, CONFIDENTIAL//FRD).

    Table 1 to Paragraph (e)(6)(ii) RD and FRD Admonishment Markings
------------------------------------------------------------------------
                                      Admonishment that must be included
        Document containing           on the  front page of the document
------------------------------------------------------------------------
RD.................................  ``RESTRICTED DATA
                                     This document contains RESTRICTED
                                      DATA as defined in the Atomic
                                      Energy Act of 1954. Unauthorized
                                      disclosure is subject to
                                      administrative and criminal
                                      sanctions.''
FRD................................  ``FORMERLY RESTRICTED DATA
                                     Unauthorized disclosure subject to
                                      administrative and criminal
                                      sanctions. Handle as Restricted
                                      Data in foreign dissemination.
                                      Section 144b, AEA 1954.''
------------------------------------------------------------------------

    (iii) Documents classified as RD or FRD must also include a 
Classification Authority Block with the RD derivative classifier's name 
and position, title, or unique identifier and the classification guide 
or source document (by title and date) used to classify the document.
    (iv) Other than the required subject or title markings, portion 
marking is permitted, but not required, for matter containing RD or 
FRD. Each agency that generates matter containing RD or FRD determines 
the policy for portion-marking matter generated within the agency. If 
matter containing RD or FRD is portion-marked, each portion containing 
RD or FRD must be marked with the level and category of the information 
in the portion (e.g., SRD, CFRD, S//RD, C//FRD).
    (v) Additional information and requirements are in 10 CFR 1045.140. 
Requests for additional information about the classification and 
declassification of RD, FRD, and TFNI can be directed to Agency RD 
Management Officials or the DOE Office of Classification at 
[email protected] or at (301) 903-7567.
    (7) Declassification. (i) No date or event for automatic 
declassification ever applies to RD, FRD, or TFNI documents, even if 
they contain classified NSI. RD, FRD, or TFNI documents remain 
classified until a positive action by a designated DOE official (for 
RD, FRD, or TFNI) or an appropriate DoD official (for FRD) is taken to 
declassify them.
    (ii) RD derivative classifiers may remove RD or FRD from portion-
marked source matter if the resulting matter is not for public release. 
RD derivative classifiers cannot declassify matter marked as containing 
RD, FRD, and TFNI. Matter that potentially contains RD or TFNI must be 
sent to designated individuals in the DOE and those containing FRD must 
be sent to designated individuals in the DoD for declassification or 
removal of the RD, FRD, or TFNI prior to public release.
    (iii) Matter containing TFNI is excluded from the automatic 
declassification provisions of E.O. 13526 until the TFNI designation is 
properly removed by the DOE. When the DOE determines that a TFNI 
designation may be removed, any remaining classified information must 
be referred to the appropriate agency.
    (iv) Any matter marked as or that potentially contains RD, FRD, or 
TFNI within a document intended for public release that contains RD or 
FRD subject area indicators must be reviewed by the appropriate DOE 
organization.
    (8) Challenges to RD, FRD, and TFNI. A contractor employee who 
believes RD, FRD, or TFNI is classified improperly or unnecessarily may 
challenge that classification following the procedures established by 
the GCA. They may also send challenges directly to the Director, Office 
of Classification, AU-60/Germantown Building; U.S. Department of 
Energy; 1000 Independence Avenue SW, Washington, DC 20585, at any time. 
Under no circumstance is an employee subject to retribution for 
challenging the classification status of RD, FRD, or TFNI.
    (9) Commingling. Commingling of RD, FRD, and TFNI with NSI in the 
same document should be avoided to the greatest degree possible. When 
mixing this information cannot be avoided, the marking requirements in 
10 CFR part 1045, section 140(f) and declassification requirements of 
10 CFR part 1045, section 155 apply.
    (10) Protection of RD and FRD. Most of the protection requirements 
for RD and FRD are similar to NSI and are based on the classification 
level. However, there are some protection requirements for certain RD 
information that may be applied through specific contract requirements 
by the GCA. These range from distribution limitations through the 
limitation of access to specifically authorized individuals to specific 
storage requirements, including the requirement for IDSs, and 
additional accountability records.
    (i) Any DOE contractor that violates a classified information 
security requirement may be subject to a civil penalty under the 
provisions of 10 CFR part 824.
    (ii) Certification is required for individuals authorized access to 
specific Sigma categories, as appropriate. Address questions regarding 
these requirements to DOE's National Nuclear Security Administration, 
Office of Defense Programs.
    (iii) Storage and distribution requirements are determined by the 
classification level, category, and Sigma category. Sigma designation 
is not a requirement for all RD documents. Storage and distribution 
requirements will be dependent only on classification level and 
category.
    (11) Accountability. In addition to TOP SECRET information, some 
SECRET RD information is considered accountable (e.g., specific Sigma 
14 matter). Each nuclear weapon data control point will keep a record 
of transactions involving Secret nuclear weapon data documents under 
its jurisdiction including origination, receipt, transmission, current 
custodian, reproduction, change of classification, declassification, 
and destruction.
    (12) Cybersecurity. Classified databases, systems, and networks 
containing RD and FRD are protected under the requirements developed 
and distributed by the DOE Office of the Chief Information Officer.
    (f) NNPI. NNPI is information associated with the Naval Nuclear 
Propulsion Program and is governed by Office of the Chief of Naval 
Operations

[[Page 83363]]

Instruction (OPNAVINST) N9210.3, ``Safeguarding of Naval Nuclear 
Propulsion Information'' (available at: https://www.secnav.navy.mil/doni/Directives/09000%20General%20Ship%20Design%20and%20Support/09-200%20Propulsion%20Plants%20Support/N9210.3%20(Unclas%20Portion).pdf). 
Naval Reactors, a joint DOE/Department of Navy organization established 
under 50 U.S.C. 2406 and 2511, is responsible for the protection of 
this information. All contracts which grant access to NNPI must require 
compliance with the specific safeguarding requirements contained in 
OPNAVINST N9210.3. All waivers or deviations involving security 
requirements protecting NNPI require Naval Reactors' concurrence. 
Classified NNPI may not be processed on any contractor information 
system unless approved by the cognizant authorizing authority with 
concurrence from Naval Reactors.


Sec.  117.24   Cognizant Security Office information.

    (a) DoD. Refer to the DCSA website (https://www.dcsa.mil) for a 
listing of office locations and areas of responsibility and for 
information on verification of facility clearances and safeguarding. In 
those cases where the cleared facility is located on a DoD installation 
the applicable DCSA field office can advise if the installation 
commander is providing security oversight.

                             Table 1 to Paragraph (a) DoD Cognizant Security Office
----------------------------------------------------------------------------------------------------------------
              Designation                       Office name              Mailing address         Telephone No.
----------------------------------------------------------------------------------------------------------------
Headquarters, CSO......................  Defense                    27130 Telegraph Rd.,          (888) 282-7682
                                          Counterintelligence and    Quantico, VA 22134.
                                          Security Agency.
----------------------------------------------------------------------------------------------------------------

    (b) DOE.

                             Table 2 to Paragraph (b) DOE Cognizant Security Offices
----------------------------------------------------------------------------------------------------------------
              Designation                       Office name              Mailing address         Telephone No.
----------------------------------------------------------------------------------------------------------------
Headquarters...........................  Headquarters Office of     19901 Germantown Road,        (301) 903-2177
                                          Security Operations (AU-   Germantown, MD 20874.
                                          40).
CSO, Clearance Agency, Central           DOE/National Nuclear       Pennsylvania & H Street,      (505) 845-4154
 Verification Activity, Adjudicative      Security Administration    Kirtland Air Force Base,
 Authority, and PCL and FCL databases.    Office of Personnel and    Albuquerque, NM 87116.
                                          Facility Clearances and
                                          Classifications.
CSO....................................  U.S. Department of         850 Energy Drive, Idaho       (208) 526-2216
                                          Energy, Idaho Operations   Falls, ID 83401.
                                          Office.
----------------------------------------------------------------------------------------------------------------


                        Table 3 to Paragraph (b) DOE Cognizant Security Offices Continued
----------------------------------------------------------------------------------------------------------------
              Designation                       Office name              Mailing address         Telephone No.
----------------------------------------------------------------------------------------------------------------
CSO, Naval Nuclear Propulsion            Director, Naval Reactors.  NA-30, 1240 Isaac Hull        (202) 781-6297
 Information.                                                        Ave., SE., Washington
                                                                     Navy Yard, DC 20376.
CSO....................................  U.S. Department of         200 Administration Road,      (865) 576-2140
                                          Energy, Office of          P.O. Box 2001, Oak
                                          Science Consolidated       Ridge, TN 37830.
                                          Service Center.
CSO....................................  U.S. Department of         902 Battelle Boulevard,       (888) 375-7665
                                          Energy, Pacific            Richland, WA 99354.
                                          Northwest Site Office.
CSO....................................  U.S. Department of         825 Jadwin Avenue, P.O.       (509) 376-7411
                                          Energy, Richland           Box 550, Richland, WA
                                          Operations Office.         99352.
CSO....................................  U.S. Department of         Road 1A, Aiken, SC 29801.     (803) 725-6211
                                          Energy, Savannah River
                                          Operations Office.
----------------------------------------------------------------------------------------------------------------

    (c) NRC.

         Table 4 to Paragraph (c) NRC Cognizant Security Offices
------------------------------------------------------------------------
          Designation              Mailing address       Telephone No.
------------------------------------------------------------------------
CSO, Adjudicative Authority,    U.S. Nuclear              (301) 415-8080
 PCL and FCL databases, and      Regulatory
 Industrial Security Program.    Commission, ATTN:
                                 Director of
                                 Facilities and
                                 Security,
                                 Washington, DC 20555.
CSO, FCL Database and           U.S. Nuclear              (301) 415-7048
 Industrial Security Program     Regulatory
 for Licensees.                  Commission, ATTN:
                                 Information Security
                                 Branch, 11555
                                 Rockville Pike,
                                 Rockville, MD 20853.
Clearance Agency..............  U.S. Nuclear              (301) 415-8080
                                 Regulatory
                                 Commission, ATTN:
                                 Director of
                                 Facilities and
                                 Security Personnel
                                 Security, 11545
                                 Rockville Pike,
                                 Rockville, MD 20853.
Central Verification Agency...  U.S. Nuclear              (301) 415-8080
                                 Regulatory
                                 Commission, ATTN:
                                 Director of Security
                                 Facilities Security,
                                 11545 Rockville
                                 Pike, Rockville, MD
                                 20853.
------------------------------------------------------------------------


[[Page 83364]]

    (d) DHS.

         Table 6 to Paragraph (d) DHS Cognizant Security Office
------------------------------------------------------------------------
          Designation              Mailing address       Telephone No.
------------------------------------------------------------------------
CSO...........................  DHS Cognizant            (202) 447-5424;
                                 Security Office,         (202) 447-5345
                                 ATTN: Chief Security
                                 Officer, 245 Murray
                                 Lane, M/S 0120-3,
                                 Washington, DC 20528.
------------------------------------------------------------------------


    Dated: December 11, 2020.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2020-27698 Filed 12-18-20; 8:45 am]
BILLING CODE 5001-06-P