[Federal Register Volume 77, Number 92 (Friday, May 11, 2012)]
[Rules and Regulations]
[Pages 27615-27621]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-10651]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 236

[DOD-2009-OS-0183/RIN 0790-AI60]


Department of Defense (DoD)-Defense Industrial Base (DIB) 
Voluntary Cyber Security and Information Assurance (CS/IA) Activities

AGENCY: Office of the DoD Chief Information Officer, DoD.

ACTION: Interim final rule.

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SUMMARY: DoD is publishing an interim final rule to establish a 
voluntary cyber security information sharing program between DoD and 
eligible DIB companies. The program enhances and supplements DIB 
participants' capabilities to safeguard DoD information that resides 
on, or transits, DIB unclassified information systems.

DATES: This rule is effective May 11, 2012. Comments must be received 
by July 10, 2012.

ADDRESSES: You may submit comments, identified by docket number and/or 
RIN number and title, by any of the following methods:
     Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Federal Docket Management System Office, 4800 Mark 
Center Drive, East Tower, Suite 02G09, Alexandria, VA 22350-3100.
    Instructions: All submissions received must include the agency name 
and docket number or Regulatory Information Number (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 on the Internet at http://www.regulations.gov as they are received without change, including any 
personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: DIB Cyber Security and Information 
Assurance Program Office: (703) 604-3167, toll free (855) 363-4227, 
email DIB.CS/IA.Reg@osd.mil.

SUPPLEMENTARY INFORMATION:

Background

    Cyber threats to DIB unclassified information systems represent an 
unacceptable risk of compromise of DoD information and pose an imminent 
threat to U.S. national security and economic security interests. DoD's 
voluntary DIB CS/IA program enhances and supplements DIB participants' 
capabilities to safeguard DoD information that resides on, or transits, 
DIB unclassified information systems.
    This rule is being published as an interim final rule to:
    (a) Allow eligible DIB companies to receive USG threat information 
and share information about network intrusions that could compromise 
critical DOD programs and missions.
    (b) Permit DIB companies and DOD to assess and reduce damage to 
critical DOD programs and missions when DOD information is compromised.
    (c) Fulfill statutory requirements to ensure the protection of DOD 
information.
    (d) Address vigorous congressional and public interest in 
increasing cyber security and information assurance activities through 
government-industry cooperation.
    (e) Immediately provide a voluntary framework for DOD and DIB 
companies to share information to address sophisticated cyber threats 
that represent an imminent threat to U.S. national security and 
economic security interests.
    Until this rule is published as an interim final rule, eligible DIB 
companies cannot receive USG information about cyber threats and 
mitigation strategies or share information about cyber incidents that 
may compromise critical DOD programs and missions. Without this 
information, eligible DIB companies' ability to protect USG information 
cannot be fully effective. While this vulnerability remains open, the 
USG faces an elevated risk that critical program information

[[Page 27616]]

could be compromised, resulting in potential economic losses or damage 
to U.S. national security. For example, the compromise of such 
information can significantly diminish return on DIB company and U.S. 
Government research and development investment and represents a loss of 
intellectual property that compromises the security and technical 
advantages of DoD weapons systems.
    DIB CS/IA activities, including the collection, management and 
sharing of information for cyber security purposes, support and 
implement the following national and DoD-specific guidance and 
authority: information assurance (IA) requirements to establish 
programs and activities to protect DoD information and DoD information 
systems, including information and information systems operated and 
maintained by contractors or others in support of DoD activities (see 
10 U.S.C. 2224; and the Federal Information Security Management Act 
(FISMA), codified at 44 U.S.C. 3541 et seq.); critical infrastructure 
protection responsibilities, in which DoD is the sector specific agency 
for the DIB sector, (see Homeland Security Presidential Directive 7 
(HSPD-7), ``Critical Infrastructure Identification, Prioritization, and 
Protection'').
    The DoD established the voluntary DIB CS/IA program to enhance and 
supplement DIB participants' capabilities to safeguard DoD unclassified 
information that resides on, or transits, DIB unclassified information 
systems. At the core of the program is a bilateral cyber security 
information sharing activity, in which DoD provides cyber threat 
information and information assurance (IA) best practices to DIB 
companies to enhance and supplement DIB companies' capabilities to 
safeguard DoD unclassified information; and in return, DIB companies 
report certain types of cyber intrusion incidents to the Defense Cyber 
Crime Center's DoD-DIB Collaborative Information Sharing Environment 
(DCISE), DoD's operational focal point for cyber threat information 
sharing and incident response under this program. The DoD analyzes the 
information reported by the DIB company regarding any such cyber 
incident, to glean information regarding cyber threats, 
vulnerabilities, and the development of effective response measures. In 
addition to this initial reporting and analysis, the DoD and DIB 
company may pursue, on a voluntary basis, follow-on, more detailed, 
digital forensics analysis or damage assessments of individual 
incidents, including sharing of additional electronic media/files or 
information regarding the incident or the affected systems, networks, 
or information. The information sharing arrangements between the DoD 
and each participating DIB company are memorialized in a standardized 
bilateral Framework Agreement (FA), signed by the participating DIB 
company and the Government, that implements the requirements of this 
part and is signed by the participating DIB company and the Government. 
The FA is available to eligible DIB companies during the application 
process. As provided by the FA, participation in the program is 
entirely voluntary and does not obligate any DIB participant to change 
its information systems or otherwise alter its normal conduct of cyber 
security activities. In keeping with the voluntary, collaborative 
nature of the activity described in the FA, each Party bears 
responsibility for its own actions under this FA. The FA emphasizes 
sharing to the greatest extent possible information to provide the 
clearest understanding of the cyber threat. This will allow the Company 
to improve defense and remediation efforts and allow the Government to 
assess the damage or impact to defense information and programs 
entrusted to the Company.
    A foundational element of this bilateral information sharing model 
is the recognition that the information being shared between the 
parties includes extremely sensitive nonpublic information, which must 
be protected against unauthorized uses and disclosures in order to 
preserve the integrity of the program. For example, the cyber threat 
information shared by the Government must be protected against 
compromise by the cyber threat, which may already have a presence on 
the DIB participant's system; and thus the DIB participants must 
utilize security measures and limited sharing within the company, to 
ensure that the cyber threat information retains its operational 
value--for the benefit of all of the DIB participants. Similarly, the 
DIB participants typically treat information regarding potential cyber 
intrusion incidents on their networks as extremely sensitive 
proprietary, commercial, or operational information and tightly control 
that information within the company, let alone sharing outside the 
company. The DIB participants share this type of information with the 
Government only on the condition that the Government safeguards that 
information against any unauthorized use or release (both within the 
Government and outside the Government), which could cause substantial 
competitive harm to the DIB participant that reported that information. 
In addition, during any follow-on forensics or damage assessment 
activities, the Government and DIB companies may share additional types 
of sensitive information, which may include information regarding the 
types of DoD information or DIB company information that may have been 
compromised during the reported incident--potentially including the 
most sensitive types of unclassified information (e.g., critical 
program information relating to DoD weapons systems, DIB company trade 
secrets related to DoD programs, personally identifiable information 
(PII) regarding individuals). For additional information regarding the 
Government's safeguarding of information received from the DIB 
companies, with specific focus on PII, see the Privacy Impact 
Assessment for the DIB CS/IA Program (http://dodcio.defense.gov/Portals/0/Documents/DIB%20CS-IA%20PIA_FINAL_signed_30jun2011_VMSS_GGMR_RC.pdf).
    As part of DoD's instantiation of the voluntary DIB CS/IA program, 
DoD developed new policies and procedures, developed a dedicated threat 
sharing and collaboration system, and validated on-line application 
procedures in order to support participation by a large number of 
companies. The on-line application procedures provide the 
administrative and security requirements for DIB participants, 
including the standardized bilateral FA that implements the 
requirements of the DIB CS/IA program. The FA will typically be 
executed by a senior DoD official, such as the DoD Chief Information 
Officer (CIO), and by a DIB company corporate senior official (e.g., 
Company CIO or equivalent).
    This interim-final rule establishes a new part 236 in title 32 of 
the Code of Federal Regulations, with the following new sections: 
Section 236.2 establishes the definitions of terms used in the new 
part, leveraging established definitions to the maximum extent possible 
(e.g., those provided in the Committee on National Security Systems 
Instruction No. 4009, ``National Information Assurance Glossary'') 
(http://www.cnss.gov/Assets/pdf/cnssi_4009.pdf); Section 236.4 sets 
forth the basic requirements and procedures of the voluntary program, 
including information collection requirements; Section 236.5 
characterizes cyber security information sharing and collection 
procedures; Section 236.6 establishes the general provisions of the 
voluntary DIB CS/IA program; and Section 236.7 sets forth the 
eligibility

[[Page 27617]]

requirements to participate in the voluntary program.
    Nothing in this rule or program is intended to be inconsistent with 
any other related or similar federal agency or private sector activity 
or requirement. For example, nothing in this rule or program abrogates 
the Government's or the DIB participants' rights or obligations 
regarding the handling, safeguarding, sharing, or reporting of 
information, or regarding any physical, personnel, or other security 
requirements, as required by law, regulation, policy, or a valid legal 
contractual obligation.
    Similarly, this rule and program are intended to be consistent and 
coordinated with, and updated as necessary to ensure consistency with 
and support for, other federal activities related to the handling and 
safeguarding of controlled unclassified information, such as those that 
are being led by the National Archives and Records Administration 
pursuant to Executive Order 13556 ``Controlled Unclassified 
Information'' (November 4, 2010) (see http://www.archives.gov/cui/).

Executive Orders 12866, ``Regulatory Planning and Review'' and 13563, 
``Improving Regulation and Regulatory Review''

    It has been certified that 32 CFR part 236 does not:
    (a) Have an annual effect on the economy of $100 million or more, 
or adversely affect in a material way, the economy; a section of the 
economy; productivity; competition; jobs; the environment; public 
health or safety; or State, local, or tribal governments or 
communities;
    (b) Create a serious inconsistency, or otherwise interfere with, an 
action taken or planned by another Agency;
    (c) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof; or
    (d) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles as set forth in 
these Executive Orders.

Public Law 104-121, ``Congressional Review Act'' (5 U.S.C. 801)

    It has been determined that 32 CFR part 236 is not a ``major'' rule 
under 5 U.S.C. 801, enacted by Public Law 104-121, because it will not 
result in an annual effect on the economy of $100 million or more; a 
major increase in costs or prices for consumers, individual industries, 
Federal, State, or local government agencies, or geographic regions; or 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
enterprises to compete with foreign-based enterprises in domestic and 
export markets.

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

    It has been certified that 32 CFR part 236 does not contain a 
Federal mandate that may result in expenditure by State, local and 
tribal governments, in aggregate, or by the private sector, of $100 
million or more in any one year.

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

    It has been certified that 32 CFR part 236 is not subject to the 
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities. DIB participation in the DIB CS/IA Program is 
voluntary.

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

    Sections 236.4 and 236.5 and 236.7 of this interim final rule 
contain information collection requirements. DoD has submitted the 
following proposal to Office of Management and Budget (OMB) under the 
provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35). 
Comments are invited on: (a) Whether the proposed collection of 
information is necessary for the proper performance of the functions of 
DoD, including whether the information will have practical utility; (b) 
the accuracy of the estimate of the burden of the proposed information 
collection; (c) ways to enhance the quality, utility, and clarity of 
the information to be collected; and (d) ways to minimize the burden of 
the information collection on respondents, including the use of 
automated collection techniques or other forms of information 
technology.
    (a) Title: Defense Industrial Base Cyber Security/Information 
Assurance (DIB CS/IA) Points of Contact Information.
    Type of Request: New.
    Projected Responses per Respondent: One response is required 
initially and thereafter only on an ``as needed/required'' basis, as 
changes to the points of contact occur.
    Annual Responses: 275, which includes the additional responses 
required on an ``as needed/required'' basis.
    Average Burden per Response: 20 minutes.
    Annual Burden Hours: Total annual burden for respondents 92 hours.
    Total Annualized Cost to Respondents: One-time cost of ~$12 per 
respondent. Total cumulative annual cost for 250 respondents (275 
responses) is $3,337.
    Needs and Uses: The DIB CS/IA program collects Point of Contact 
(POC) information from DIB participants. POC information is needed to 
facilitate communication between DoD and DIB participants, as well as 
prospective participants. The POC information includes the names, 
security clearance information, citizenship, work addresses, including 
division/group, work email addresses and work telephone numbers of 
company-identified representatives. DIB POCs include the Chief 
Executive Officer (CEO), Chief Information Officer (CIO), Chief 
Information Security Officer (CISO), General Counsel, the Chief Privacy 
Officer, and the Corporate Security Officer (CSO) or Facility Security 
Officer (FSO), or their equivalents. DIB participants also provide POC 
information for personnel responsible for the implementation and 
execution of the DIB CS/IA program within their company including 
designated personnel authorized to report incidents and any policy, 
administrative, or technical personnel identified to interact with DOD 
in the operational implementation of the program.
    Affected Public: Business or other for-profit and not-for-profit 
institutions participating in the voluntary DIB CS/IA program.
    Frequency: On occasion.
    Respondent's Obligation: Voluntary.
    (b) Title: DIB Cyber Security/Information Assurance Cyber Incident 
Reporting.
    Type of Request: New.
    Phased expansion of DIB CS/IA Number of Participants increases to 
750 over three years.
    Projected Responses per Participant: 5.
    Annual Responses: Year 1 responses are 1,250. Year 2 responses are 
2,500. Year 3 responses are 3,750.
    Average Burden per Response: 7 hours (this includes searching 
existing data sources, gathering and maintaining the data needed, and 
completing and reviewing the collection of information).
    Annual Burden Hours: Year 1 burden hours are 8,750 hours. Year 2 
burden hours are 17,500 hours. Year 3 burden hours are 26,250 hours.
    Needs and Uses: The collection of this information is necessary to 
enhance and supplement DIB participants' information security 
capabilities to safeguard DoD information that resides on, or transits, 
DIB unclassified

[[Page 27618]]

information systems. The requested information supports the information 
assurance objectives, cyber threat information sharing, and incident 
reporting between DoD and the DIB participants. In most cases, DIB 
participants report incidents using a DIB CS/IA standardized Incident 
Collection Form (ICF). In some cases, a company may elect to report the 
incident without using the ICF; and companies may report incidents 
through a variety of communications channels, including email, fax, or 
by phone, if necessary.
    Affected Public: Business or other for-profit and not-for-profit 
institutions participating in the DIB CS/IA program.
    Frequency: On occasion.
    Respondent's Obligation: Voluntary.
    OMB Desk Officer: Written comments and recommendations on the 
information collection should be sent to Ms. Jasmeet Seehra at the 
Office of Management and Budget, DoD Desk Officer, Room 10102, New 
Executive Office Building, Washington, DC 20503, with a copy to the 
Director, DIB CS/IA Program Office, at the Office of the DoD Chief 
Information Officer, 6000 Defense Pentagon, Attn: DIB CS/IA Program 
Office, Washington, DC 20301, or email at DIB.CS/IA.Reg@osd.mil. 
Comments can be received from 30 to 60 days after the date of this 
notice, but comments to OMB will be most useful if received by OMB 
within 30 days after the date of this notice.
    You may also submit comments, identified by docket number and 
title, by the following method: Federal Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
    Instructions: All submissions received must include the agency 
name, docket number and title 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 on the 
Internet at http://www.regulations.gov as they are received without 
change, including any personal identifiers or contact information.
    To request more information on this information collection or to 
obtain a copy of the proposal and associated collection instruments, 
please write to Director, DIB CS/IA Program Office, at Office of the 
DoD Chief Information Officer, Attn: DIB CS/IA Program Office, 6000 
Defense Pentagon, Washington, DC 20301.

Executive Order 13132, ``Federalism''

    It has been certified that 32 CFR part 236 does not have federalism 
implications, as set forth in Executive Order 13132. This rule does not 
have substantial direct effects on:
    (a) The States;
    (b) The relationship between the National Government and the 
States; or
    (c) The distribution of power and responsibilities among the 
various levels of Government.

List of Subjects in 32 CFR Part 236

    Contracts, Security measures.

    Accordingly 32 CFR part 236 is added to read as follows:

PART 236--DEPARTMENT OF DEFENSE (DOD)-DEFENSE INDUSTRIAL BASE (DIB) 
VOLUNTARY CYBER SECURITY AND INFORMATION ASSURANCE (CS/IA) 
ACTIVITIES

Sec.
236.1 Purpose.
236.2 Definitions.
236.3 Policy.
236.4 Procedures.
236.5 Cyber security information sharing.
236.6 General provisions.
236.7 DIB participant eligibility requirements.

    Authority:  10 U.S.C. 2224; 44 U.S.C. 3506; 44 U.S.C. 3544.


Sec.  236.1  Purpose.

    Cyber threats to DIB unclassified information systems represent an 
unacceptable risk of compromise of DoD information and pose an imminent 
threat to U.S. national security and economic security interests. DoD's 
voluntary DIB CS/IA program enhances and supplements DIB participants' 
capabilities to safeguard DoD information that resides on, or transits, 
DIB unclassified information systems.


Sec.  236.2  Definitions.

    As used in this part:
    (a) Attribution information means information that identifies the 
DIB participant, whether directly or indirectly, by the grouping of 
information that can be traced back to the DIB participant (e.g., 
program description, facility locations).
    (b) Compromise means disclosure of information to unauthorized 
persons or a violation of the security policy of a system in which 
unauthorized intentional, or unintentional, disclosure, modification, 
destruction, loss of an object, or the copying of information to 
unauthorized media may have occurred.
    (c) Covered defense information means unclassified information 
that:
    (1) Is:
    (i) Provided by or on behalf of the DoD to the DIB participant in 
connection with an official DoD activity; or
    (ii) Collected, developed, received, transmitted, used, or stored 
by the DIB participant in support of an official DoD activity; and
    (2) Is:
    (i) Technical information marked for restricted distribution in 
accordance with DoD Directive 5230.25, ``Withholding of Unclassified 
Technical Data From Public Disclosure,'' or DoD Directive 5230.24, 
``Distribution Statements on Technical Documents'';
    (ii) Information subject to export control under the International 
Traffic in Arms Regulations (ITAR) (http://pmddtc.state.gov/regulations_laws/itar_official.html), or the Export Administration 
Regulations (EAR) (http://ecfr.gpoaccess.gov, Title 15, part 730);
    (iii) Information designated as Critical Program Information (CPI) 
in accordance with DoD Instruction 5200.39, ``Critical Program 
Information (CPI) Protection within the Department of Defense'';
    (iv) Information that hostile intelligence systems might obtain 
that could be interpreted or pieced together to derive critical 
intelligence in time to be useful to adversaries as described in 
5205.02-M, ``DoD Operations Security (OPSEC Program Manual'';
    (v) Personally Identifiable Information (PII) that can be used to 
distinguish or trace an individual's identity in accordance with DoD 
Directive 5400.11, ``DoD Privacy Program'';
    (vi) Information bearing current and prior designations indicating 
unclassified controlled information (e.g., For Official Use Only, 
Sensitive But Unclassified, and Limited Official Use, DoD Unclassfied 
Controlled Nuclear Information, Sensitive Information) that has not 
been cleared for public release in accordance with DoD Directive 
5230.29, ``Clearance of DoD Information for Public Release'' (see also 
Appendix 3 of DoD 5200.1-R, ``Information Security Program 
Regulation''); or
    (vii) Any other information that is exempt from mandatory public 
disclosure under DoD Directive 5400.07, ``DoD Freedom of Information 
Act (FOIA) Program'', and DoD Regulation 5400.7-R, ``DoD Freedom of 
Information Program''.
    (d) Covered DIB systems means an information system that is owned 
or operated by or for a DIB participant and that processes, stores, or 
transmits covered defense information.
    (e) Cyber incident means actions taken through the use of computer 
networks that result in an actual or potentially adverse effect on an 
information system and/or the information residing therein.

[[Page 27619]]

    (f) Cyber intrusion damage assessment means a managed, coordinated 
process to determine the effect on defense programs, defense scientific 
and research projects, or defense warfighting capabilities resulting 
from compromise of a DIB participant's unclassified computer system or 
network.
    (g) Defense Industrial Base (DIB) means the Department of Defense, 
government, and private sector worldwide industrial complex with 
capabilities to perform research and development, design, produce, and 
maintain military weapon systems, subsystems, components, or parts to 
satisfy military requirements.
    (h) DIB participant means a DIB company that has met all of the 
eligibility requirements to participate in the voluntary DIB CS/IA 
information sharing program as set forth in this part (see Sec.  
236.7).
    (i) Government means the United States Government.
    (j) Government Furnished Information (GFI) means information 
provided by the Government under the voluntary DIB CS/IA program, 
including but not limited to cyber threat information and information 
assurance practices.
    (k) Information means any communication or representation of 
knowledge such as facts, data, or opinions in any medium or form, 
including textual, numerical, graphic, cartographic, narrative, or 
audiovisual.
    (l) Information system means a discrete set of information 
resources organized for the collection, processing, maintenance, use, 
sharing, dissemination, or disposition of information.
    (m) Threat means any circumstance or event with the potential to 
adversely impact organization operations (including mission, functions, 
image, or reputation), organization assets, individuals, other 
organizations, or the Nation through an information system via 
unauthorized access, destruction, disclosure, modification of 
information and/or denial of service.


Sec.  236.3  Policy.

    It is DoD policy to:
    (a) Establish a comprehensive approach for enhancing and 
supplementing DIB information assurance capabilities to safeguard 
covered defense information on covered DIB systems.
    (b) Increase the Government and DIB situational awareness of the 
extent and severity of cyber threats to DOD information.


Sec.  236.4  Procedures.

    (a) The Government and each DIB participant will execute a 
voluntary standardized agreement, referred to as a Framework Agreement 
(FA), to share, in a timely and secure manner, on a recurring basis, 
and to the greatest extent possible, cyber security information 
relating to information assurance for covered defense information on 
covered DIB systems.
    (b) Each such FA between the Government and a DIB participant must 
comply with and implement the requirements of this part, and will 
include additional terms and conditions as necessary to effectively 
implement the voluntary information sharing activities described in 
this part with individual DIB participants.
    (c) DoD's DIB CS/IA Program Office is the overall point of contact 
for the program. The DoD Cyber Crime Center's DoD-DIB Collaborative 
Information Sharing Environment (DC3/DCISE) is the operational focal 
point for cyber threat information sharing and incident reporting under 
the DIB CS/IA program.
    (d) The Government will maintain a Web site or other Internet-based 
capability to provide potential DIB participants with information about 
eligibility and participation in the program, to enable the online 
application or registration for participation, and to support the 
execution of necessary agreements with the Government. (http://dibnet.dod.mil/)
    (e) Prior to receiving GFI from the Government, each DIB 
participant shall provide the requisite points of contact information, 
to include security clearance and citizenship information, for the 
designated personnel within their company (e.g., typically 3-10 company 
designated points of contact) in order to facilitate the DoD-DIB 
interaction in the DIB CS/IA program. The Government will confirm the 
accuracy of the information provided as a condition of that point of 
contact being authorized to act on behalf of the DIB participant for 
this program.
    (f) GFI will be issued via both unclassified and classified means. 
DIB participant handling and safeguarding of classified information 
shall be in compliance with the National Industrial Security Program 
Operating Manual (NISPOM) (DoD 5220.22-M). The Government shall specify 
transmission and distribution procedures for all GFI, and shall inform 
DIB participants of any revisions to previously specified transmission 
or procedures.
    (g) Except as authorized in this part or in writing by the 
Government, DIB participants may use GFI to safeguard covered defense 
information only on covered DIB systems that are U.S. based (i.e., 
provisioned, maintained, or operated within the physical boundaries of 
the United States); and share GFI only within their company or 
organization, on a need to know basis, with distribution restricted to 
U.S. citizens (i.e., a person born in the United States, or 
naturalized, holding a U.S. passport). However, in individual cases, 
upon request of a DIB participant that has determined that it requires 
the ability to share the information with a non-U.S. citizen, or to use 
the GFI on a non-U.S. based covered DIB system, and can demonstrate 
that appropriate information handling and protection mechanisms are in 
place, the Government may authorize such disclosure or use under 
appropriate terms and conditions.
    (h) DIB participants shall maintain the capability to 
electronically disseminate GFI within the Company in an encrypted 
fashion (e.g., using Secure/Multipurpose Internet Mail Extensions (S/
MIME), secure socket layer (SSL), Transport Layer Security (TLS) 
protocol version 1.2, DoD-approved medium assurance certificates).
    (i) The DIB participants shall not share GFI outside of their 
company or organization, regardless of personnel clearance level, 
except as authorized in this part or otherwise authorized in writing by 
the Government.
    (j) If the DIB participant utilizes a third-party service provider 
(SP) for information system security services, the DIB participant may 
share GFI with that SP under the following conditions and as authorized 
in writing by the Government:
    (1) The DIB participant must identify the SP to the Government and 
request permission to share or disclose any GFI with that SP (which may 
include a request that the Government share information directly with 
the SP on behalf of the DIB participant) solely for the authorized 
purposes of this program;
    (2) The SP must provide the Government with sufficient information 
to enable the Government to determine whether the SP is eligible to 
receive such information, and possesses the capability to provide 
appropriate protections for the GFI;
    (3) Upon approval by the Government, the SP must enter into a 
legally binding agreement with the DIB participant (and also an 
appropriate agreement with the Government in any case in which the SP 
will receive or share information directly with the Government on 
behalf of the DIB participant) under which the SP is subject to all 
applicable requirements of

[[Page 27620]]

this part and of any supplemental terms and conditions in the DIB 
participant's FA with the Government, and which authorizes the SP to 
use the GFI only as authorized by the Government.
    (k) The DIB participant may not sell, lease, license, or otherwise 
incorporate the GFI into its products or services, except that this 
does not prohibit a DIB participant from being appropriately designated 
an SP in accordance with paragraph (j) of this section.


Sec.  236.5  Cyber security information sharing.

    (a) GFI. The Government shall share GFI with DIB participants or 
designated SPs in accordance with this part.
    (b) Initial incident reporting. The DIB participant shall report to 
DC3/DCISE cyber incidents involving covered defense information on a 
covered DIB system. These initial reports will be provided within 72 
hours of discovery. DIB participants also may report other cyber 
incidents to the Government if the DIB participant determines the 
incident may be relevant to information assurance for covered defense 
information or covered DIB systems or other information assurance 
activities of the Government.
    (c) Follow-up reporting. After an initial incident report, the 
Government and the DIB participant may voluntarily share additional 
information that is determined to be relevant to a reported incident, 
including information regarding forensic analyses, mitigation and 
remediation, and cyber intrusion damage assessments.
    (d) Cyber intrusion damage assessment. Following analysis of a 
cyber incident, DC3/DCISE may provide information relevant to the 
potential or known compromise of DoD acquisition program information to 
the Office of the Secretary of Defense's Damage Assessment Management 
Office (OSD DAMO) for a cyber intrusion damage assessment. The 
Government may provide DIB participants with information regarding the 
damage assessment.
    (e) DIB participant attribution information. The Government 
acknowledges that information shared by the DIB participants under this 
program may include extremely sensitive proprietary, commercial, or 
operational information that is not customarily shared outside of the 
company, and that the unauthorized use or disclosure of such 
information could cause substantial competitive harm to the DIB 
participant that reported that information. The Government shall take 
reasonable steps to protect against the unauthorized use or release of 
such information (e.g., attribution information and other nonpublic 
information) received from a DIB participant or derived from such 
information provided by a DIB participant, including applicable 
procedures pursuant to paragraph (h) of this section. The Government 
will restrict its internal use and disclosure of attribution 
information to only Government personnel and Government support 
contractors that are bound by appropriate confidentiality obligations 
and restrictions relating to the handling of this sensitive information 
and are engaged in lawfully authorized activities.
    (f) Non-attribution information. The Government may share non-
attribution information that was provided by a DIB participant (or 
derived from information provided by a DIB participant) with other DIB 
participants in the DIB CS/IA program, and may share such information 
throughout the Government (including with Government support 
contractors that are bound by appropriate confidentiality obligations) 
for cyber security and information assurance purposes for the 
protection of Government information or information systems.
    (g) Electronic media. Electronic media/files provided by DIB 
participants to DC3 under paragraphs (b), (c) and (d) of this section 
are maintained by the digital and multimedia forensics laboratory at 
DC3, which implements specialized handling procedures to maintain its 
accreditation as a digital and multimedia forensics laboratory. DC3 
will maintain, control, and dispose of all electronic media/files 
provided by DIB participants to DC3 in accordance with established DoD 
policies and procedures.
    (h) Freedom of Information Act (FOIA). Agency records, which may 
include qualifying information received from non-federal entities, are 
subject to request under the Freedom of Information Act (5 U.S.C. 552) 
(FOIA), which is implemented in the Department of Defense by DoD 
Directive 5400.07 and DoD Regulation 5400.7-R (see 32 CFR parts 285 and 
286, respectively). Pursuant to established procedures and applicable 
regulations, the Government will protect sensitive nonpublic 
information under this Program against unauthorized public disclosure 
by asserting applicable FOIA exemptions, and will inform the non-
Government source or submitter (e.g., DIB participants) of any such 
information that may be subject to release in response to a FOIA 
request, to permit the source or submitter to support the withholding 
of such information or pursue any other available legal remedies.


Sec.  236.6  General provisions.

    (a) Confidentiality of information that is exchanged under this 
program will be protected to the maximum extent authorized by law, 
regulation, and policy.
    (b) The Government and DIB participants will conduct their 
respective activities under this program in accordance with applicable 
laws and regulations, including restrictions on the interception, 
monitoring, access, use, and disclosure of electronic communications or 
data. The Government and the DIB participant each bear responsibility 
for their own actions under this program.
    (c) Prior to sharing any information with the Government under this 
program pursuant to the FA, the DIB participant shall perform a legal 
review of its policies and practices that support its activities under 
this program, and shall make a determination that such policies, 
practices, and activities comply with applicable legal requirements. 
The Government may request from any DIB participant additional 
information or assurances regarding such DIB participant's policies or 
practices, or the determination by the DIB participant that such 
policies or practices comply with applicable legal requirements.
    (d) This voluntary DIB CS/IA program is intended to safeguard 
covered defense information. None of the restrictions on the 
Government's use or sharing of information under the DIB CS/IA program 
shall limit the Government's ability to conduct law enforcement, 
counterintelligence activities, or other activities in the interest of 
national security; and participation does not supersede other 
regulatory or statutory requirements.
    (e) Participation in the DIB CS/IA program is voluntary and does 
not obligate the DIB participant to utilize the GFI in, or otherwise to 
implement any changes to, its information systems. Any action taken by 
the DIB participant based on the GFI or other participation in this 
program is taken on the DIB participant's own volition and at its own 
risk and expense.
    (f) A DIB participant's voluntary participation in this program is 
not intended to create any unfair competitive advantage or disadvantage 
in DoD source selections or competitions, or to provide any other form 
of unfair preferential treatment, and shall not in any way be 
represented or interpreted as a Government endorsement or approval of 
the DIB

[[Page 27621]]

participant, its information systems, or its products or services.
    (g) The DIB participant and the Government may each unilaterally 
limit or discontinue participation in this program at any time. 
Termination shall not relieve the DIB participant or the Government 
from obligations to continue to protect against the unauthorized use or 
disclosure of GFI, attribution information, contractor proprietary 
information, third-party proprietary information, or any other 
information exchanged under this program, as required by law, 
regulation, contract, or the FA.
    (h) Upon termination of the FA, and/or change of Facility Security 
Clearance status below Secret, GFI must be returned to the Government 
or destroyed pursuant to direction of, and at the discretion of, the 
Government.
    (i) Participation in this program does not abrogate the 
Government's or the DIB participants' rights or obligations regarding 
the handling, safeguarding, sharing, or reporting of information, or 
regarding any physical, personnel, or other security requirements, as 
required by law, regulation, policy, or a valid legal contractual 
obligation.


Sec.  236.7  DIB participant eligibility requirements.

    To be eligible to participate in this program, a DIB company must:
    (a) Have or acquire DoD-approved medium assurance certificates to 
enable encrypted unclassified information sharing between the 
Government and DIB participants;
    (b) Have an existing active Facility Security Clearance (FCL) 
granted under the National Industrial Security Program Operating Manual 
(NISPOM) (DoD 5220.22-M) with approved safeguarding for at least Secret 
information, and continue to qualify under the NISPOM for retention of 
its FCL and approved safeguarding (http://www.dtic.mil/whs/directives/corres/pdf/522022m.pdf);
    (c) Have or acquire a Communication Security (COMSEC) account in 
accordance with the NISPOM Chapter 9, Section 4 (DoD 5220.22-M), which 
provides procedures and requirements for COMSEC activities;
    (d) Obtain access to DoD's secure voice and data transmission 
systems supporting the DIB CS/IA program,
    (e) Own or operate covered DIB system(s), and
    (f) Execute the standardized FA with the Government (available 
during the application process), which implements the requirements set 
forth in sections 236.4 through 236.6 of this part.

    Dated: April 30, 2012.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2012-10651 Filed 5-2-12; 8:45 am]
BILLING CODE 5001-06-P