Department of Defense (DoD) Defense Industrial Base (DIB) Cybersecurity (CS) Activities, 17741-17749 [2024-04752]
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Federal Register / Vol. 89, No. 49 / Tuesday, March 12, 2024 / Rules and Regulations
DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 236
[Docket ID: DoD–2019–OS–0112]
RIN 0790–AK86
Department of Defense (DoD) Defense
Industrial Base (DIB) Cybersecurity
(CS) Activities
Office of the DoD Chief
Information Officer, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
The DoD is finalizing
revisions to the eligibility criteria for the
voluntary Defense Industrial Base (DIB)
Cybersecurity (CS) Program. These
revisions will allow all defense
contractors who own or operate an
unclassified information system that
processes, stores, or transmits covered
defense information to benefit from
bilateral information sharing. DoD is
also finalizing changes to definitions
and some technical corrections for
readability.
SUMMARY:
DATES:
This rule is effective on April 11,
2024.
FOR FURTHER INFORMATION CONTACT:
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• Stacy Bostjanick, Chief Defense
Industrial Base Cybersecurity, Office:
703–604–3167.
• DIB CS Program Management
Office: OSD.DIBCSIA@mail.mil.
SUPPLEMENTARY INFORMATION:
Discussion of Comments and Changes
The proposed rule was published in
the Federal Register (88 FR 27832–
27839) on May 3, 2023. Four
submissions were received and are
summarized below.
A commenter suggested DoD should
redefine terms and should change the
regulations for the program. However,
the commenter did not provide any
additional detail which would allow
DoD to consider possible changes.
A commenter suggested DoD use this
opportunity to run a targeted marketing
campaign to assist small businesses
with explaining a medium assurance
certificate’s purpose and procuring the
hardware in advance of needing it.
After consideration, DoD is modifying
the requirement for industry to obtain a
medium assurance certificate. Medium
assurance certificates can be used to
validate digital identity and facilitate
the exchange of encrypted information.
However, it is not the only technical
solution available to support identity
proofing requirements. So, DoD is
revising paragraph (e) in § 236.4, and
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separately in Department of Defense
Instruction (DoDI) 8582.01, ‘‘Security of
Non-DoD Information Systems
Processing Unclassified Nonpublic DoD
Information,’’ to require registration
with Procurement Integrated Enterprise
Environment (PIEE) 1 when submitting
mandatory cyber incident reports. This
change will reduce the burden of having
to procure a medium assurance
certificate which costs approximately
$175 annually. All DoD contracts
contain Defense Federal Acquisition
Regulation Supplement (DFARS) clause
252.232–7003 (48 CFR 252.232–7003),
which specifies requirements for
electronic submission of payment
requests. In order to access the
electronic systems associated with
electronic payments the contractor must
also complete the required identity
proofing and registration process with
PIEE.
Multiple commenters provided input
on the accuracy of the burden estimates.
One commentor recommended allowing
one report to cover multiple contracts to
reduce the administrative reporting
burden on all parties and enhance
consistency across DoD data. Another
commentor noted that many firms will
lack in-depth familiarity with existing
policy, compliance requirements, and
other details of the DIB CS Program and,
as such, the estimate of 30 minutes for
new entrants to familiarize themselves
with the rule is an underestimate.
As DoD is modifying the requirement
for industry to obtain a medium
assurance certificate with this final rule,
the Department believes the burden to
companies participating in the DIB CS
Program is being reduced. In response to
concerns about submitting a nearly
identical report for multiple contracts,
DoD would like to clarify that a
contractor may submit one report for an
event that impacts multiple contracts.
Finally, DoD would like to clarify the
estimate of 30 minutes to review
changes to this final rule and choose
whether to apply to the voluntary DIB
CS Program does not include time for
contractors to develop in-depth
familiarity with existing policies and
compliance requirements. It is expected
DoD contractors will invest time to
familiarize themselves with
contractually mandated requirements in
addition to this estimate.
A commenter highlighted the revision
to the DIB CS Program omits a key
component of the Critical Infrastructure
Protection Act (CIPA) of 2001, and the
revisions to the DIB CS Program will
exclude operationally critical support
(OCS) contractors from its provisions
1 https://piee.eb.mil/.
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17741
unless such contractors have covered
defense information (CDI) resident in
their information systems (IS). The
commenter recommended including
contractors performing under contracts
that are designated as providing OCS,
regardless of whether those IS contain
CDI.
In accordance with 10 U.S.C. 391, the
DoD must include mechanisms for
Department personnel to, if requested,
assist operationally critical contractors
in detecting and mitigating penetrations.
Pursuant to section 1642(b) of the
National Defense Authorization Act for
Fiscal Year 2019 DoD has authority to
engage with the DIB that is
complementary to, but distinct from, the
DIB Cybersecurity Activities that
implement the requirements levied
upon the Department in 10 U.S.C. 391
and 393. To meet the requirements
specified in 10 U.S.C. 391, the DIB CS
program will refer ineligible applicants
to other U.S. Government Departments
and Agencies sharing cybersecurity
equities to ensure Federal unity of
effort.
A commenter posed several questions
about the role of third-party service
providers seeking to understand if a
third-party service provider may submit
reports on behalf of a client, and if a
third-party service provider must own
or operate covered contractor
information systems.
Currently, a contractor may authorize
a third-party service provider to report
incidents on behalf of the contractor. If
that contractor and the third-party
service provider are interested in
participating in the DIB CS Program, an
amendment to the DIB CS Program
Framework Agreement is available to
authorize the third-party service
provider access to DIB CS resources.
This agreement details whether the
third-party service provider will provide
on-site or off-site support; clarifies the
respective roles of the contractor and
the third-party service provider
regarding accessing the governmentfurnished information on the DIB CS
web portal and voluntary reporting of
cyber incidents and indicators to the
Government. The Framework
Agreement and all Program
amendments are made available through
https://dibnet.dod.mil to an eligible
company after the company has been
verified by the DoD. The third-party
service provider does not need to own
or operate a covered defense system.
Two commenters reiterated the need
for training and best practices but did
not indicate if they are familiar with
DoD’s current training programs or if
they believe the programs are adequate.
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DoD notes the DIB CS Program offers
training and best practices through inperson and virtual meetings and
provides information about digital
resources on https://dibnet.dod.mil.
One commenter stated a link or a
copy of the ‘‘standardized’’ Government
Framework Agreement on the website
will help contractors better understand
their ability to meet the requirement
before submitting an application—
potentially saving all parties time and
resources.
DoD notes factsheets and
informational materials are publicly
available on https://dibnet.dod.mil. The
Framework Agreement between the
Government and a DIB participant is
made available after the company
applies to the program and DoD verifies
the company meets the eligibility
requirements set forth in § 236.7.
A commenter suggested access and
information for cleared companies
should remain as it is today and
recommended an ‘‘impact statement’’ to
information released to uncleared firms
to help contextualize the information
and the reason for disseminating it.
The Privacy Impact Assessment (PIA)
for DoD’s DIB CS Activities provides
procedures on how the Government
handles personally identifiable
information (PII), as well as other forms
of sensitive contractor information (e.g.,
contractor attributional/proprietary).
The PIA is publicly available at https://
dodcio.defense.gov/Portals/0/
Documents/DIB_PIA.pdf and no
changes to the PIA are being proposed.
The Security Classification Guide
(SCG) 2 is the tool used by DoD
Personnel to identify and safeguard
national security information when
derivatively classifying information. All
information will be designated and
handled in accordance with the DIB CS
Activities SCG, the NISPOM Program as
defined in 32 CFR part 117 and the
Controlled Unclassified Information
(CUI) Program as defined in 32 CFR part
2002.
A commenter asked about a future
opportunity to map the level of access
to DIB CS resources to a company’s
certification(s) level or assessment
scoring.
DoD notes all companies currently
participating in the DIB CS Program are
eligible to receive Government
Furnished Information (GFI) under the
voluntary DIB CS Program and
cybersecurity information is shared to
the greatest extent possible in
accordance with the Program’s SCG.
Information about a company’s
2 DIB CS Activities Security Classification Guide
is available via https://www.DTIC.mil.
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certification level or assessment score is
controlled information and not available
to the DIB CS Program at this time.
A commenter recommended
providing consistent controls and data
access channels to help companies
synthesize and apply the threat
information to their market.
The DIB CS Program marks all
documents in accordance with the
SCG 3 and DIBNet remains the primary
channel for disseminating threat
products. DoD has recently relaunched
DIBNet to provide an API-based data
access channel to complement the
ability for a DIB CS Participant to
download PDF, TXT, and CSV based
products which should allow a
participating company to analyze threat
information unique to their market.
A commenter recommended adding
headers to § 236.4 for paragraph (f), (g),
(j), and (o) to increase uniformity.
DoD has added headers to § 236.4 for
paragraphs (f), (g), and (o). Paragraph (j)
has a header, and an administrative
correction will be made to correct the
format of paragraph (n).
A commenter asked if the rights and
responsibilities for submittals under the
DIB CS Program have changed with
respect to Freedom of Information Act
(FOIA).
The rights and responsibilities for
submittals under the DIB CS Program
have not changed with respect to
Freedom of Information Act (FOIA). The
Office of the Assistant to the Secretary
of Defense for Privacy, Civil Liberties,
and Transparency (OATSD(PCLT))
maintains a DoD FOIA Handbook
available at https://open.defense.gov/
Transparency/FOIA/FOIA
Handbook.aspx.
Background and Authority
The DIB means the DoD, 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.
The DIB Cybersecurity Program is a
voluntary program to enhance and
supplement participants’ capabilities to
safeguard DoD information that resides
on, or transits, DIB unclassified
information systems. The program
encourages greater threat information
sharing to complement mandatory
aspects of DoD’s DIB cybersecurity
activities which are contractually
mandated through DFARS 252.204–
7012, Safeguarding Covered Defense
Information and Cyber Incident
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Reporting.4 This program supports and
complements DoD-specific authorities at
10 U.S.C. 2224 and the Federal
Information Security Management Act
(FISMA 2002) as amended by the
Federal Information Security
Modernization Act, 2014. Cyber threat
information sharing activities under this
final rule also fulfill important elements
of DoD’s critical infrastructure
protection responsibilities, as the sector
risk management agency for the DIB (see
Presidential Policy Directive 21 (PPD–
21),5 ‘‘Critical Infrastructure Security
and Resilience’’). This program is
aligned with the requirements of the
Controlled Unclassified Information
(CUI) program established in Executive
Order 13556. Expanding eligibility
requirements for the DIB CS Program
will augment DoD’s information sharing
activities with the DIB.
Currently, the DIB CS Program has the
following objectives:
• Establish a voluntary, mutually
acceptable framework to protect
information from unauthorized access.
• Protect the confidentiality of
information exchanged to the maximum
extent authorized by law.
• Create a trusted environment to
maximize network defense and
remediation efforts by:
1. Sharing cyber threat information
and incident reports.
2. Providing mitigation/remediation
strategies and malware analysis.
This program is part of DoD’s larger
portfolio of work to protect DoD
information handled by the DIB by
understanding and sharing information,
building security partnerships,
implementing long-term risk
management programs, and maximizing
efficient use of resources. It supports
two-way information sharing and
maintains meaningful relationships and
frequent dialogue across the diverse
array of eligible defense contractors. For
eligible defense contractors, the program
maintains a capability for companies to
access classified government cyber
threat information providing additional
context to better understand the cyber
threats targeting their networks and
information systems.
In May 2012, DoD published an
interim final rule establishing the
voluntary DIB CS Program and the
bilateral information sharing model still
used today.6 The 2012 rule established
4 https://www.ecfr.gov/current/title-48/chapter-2/
subchapter-H/part-252/subpart-252.2/section252.204-7012.
5 https://obamawhitehouse.archives.gov/thepress-office/2013/02/12/presidential-policydirective-critical-infrastructure-security-and-resil.
6 77 FR 27615, May 11, 2012 (https://
www.govinfo.gov/content/pkg/FR-2012-05-11/pdf/
2012-10651.pdf).
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a voluntary cyber threat information
sharing program for cleared defense
contractors (CDC) with the ability to
safeguard classified information,
estimated at 2,650 in 2012. Under the
rule CDC is defined as a private entity
granted clearance by DoD to access,
receive, or store classified information
for the purpose of bidding for a contract
or conducting activities in support of
any program of DoD. The 2012 rule
stated DoD would maintain a website to
facilitate the following aspects of
program participation: (1) sharing
information regarding eligibility and
participation in the program with
potential participants, (2) applying to
the program online, and 3) executing the
necessary agreements with the
Government. DoD has established this
capability as an online portal referred to
as ‘‘DIBNet,’’ located at https://dibnet.
dod.mil. A final rule responding to
public comments was published in
October 2013.7 In October 2015,
responding to new statutory
requirements for cyber incident
reporting for DoD contractors,
subcontractors, and those providing
operationally critical support, DoD
published another interim final rule 8 to
expand eligibility to all cleared defense
contractors (estimated at 8,500 in 2015
and 12,000 in 2022), subject to program
eligibility requirements. The 2015 rule
removed the requirement that CDCs be
able to safeguard classified information
to participate in the program. The rule
also removed the mandatory program
eligibility requirement to have or
acquire a Communications Security
(COMSEC) account 9 and obtain access
to DoD’s secure voice and data
transmission systems, although
participants still have to fulfill these
requirements to receive classified cyber
threat information electronically. A final
rule responding to public comments
was published in October 2016.10
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Discussion of the Final Rule
With this rule, the Department is
expanding eligibility requirements to
allow greater program participation and
increase the benefits of bilateral
information sharing, which helps
protect DoD controlled unclassified
information from cyberattack, as well as
to better align the voluntary DIB CS
7 78 FR 62430, October 22, 2013 (https://
www.govinfo.gov/content/pkg/FR-2013-10-22/pdf/
2013-24256.pdf).
8 80 FR 59581, October 2, 2015 (https://
www.govinfo.gov/content/pkg/FR-2015-10-02/pdf/
2015-24296.pdf).
9 The National Security Agency administers
COMSEC accounts.
10 81 FR 68312, October 4, 2016 (https://
www.govinfo.gov/content/pkg/FR-2016-10-04/pdf/
2016-23968.pdf).
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Program with DoD’s mandatory cyber
incident reporting requirements. The
current eligibility requirements, based
on the October 2016 rule, requires a
company to be a cleared defense
contractor 11 who:
• Has DoD-approved medium
assurance certificates; 12
• Has an existing facility clearance 13
to at least the Secret level; and
• Can execute the standardized
Framework Agreement 14 provided to
interested contractors after the
Department has verified the DIB
company is eligible.
The program has experienced steady
growth, with the annual number of
applications more than tripling since
2016 (80 total applications received in
2016, 266 total applications received in
2022). It has also seen a steady increase
in the percentage of defense contractors
who are interested in participating but
do not meet current eligibility
requirements. The percentage of
applications received from ineligible
defense contractors has risen at an
average rate of 5% per year since 2016;
10% of applications received in 2016
were from ineligible defense
contractors, while 45% of applicants in
2022 were ineligible. The steady
increase in DIB applicants indicates an
increasing desire amongst defense
contractors to participate in a cyber
threat information sharing program.
In addition, the Department has
actively engaged defense associations,
universities, and companies in the DIB,
as well as participated in many public
forums discussing cyber threats and the
way forward. The overwhelming
feedback was for the Department to
facilitate engagement with the broader
community of defense contractors
beyond just the cleared defense
11 32 CFR 236.2 defines cleared defense
contractor to mean a subset of contractors cleared
under the National Industrial Security Program
(NISP) who have classified contracts with the DoD.
12 The DoD has established the External
Certification Authority (ECA) program to support
the issuance of DoD-approved certificates to
industry partners and other external entities and
organizations. The ECA program is designed to
provide the mechanism for these entities to securely
communicate with the DoD and authenticate to DoD
Information Systems. [https://public.cyber.mil/eca/
].
13 Entities (including companies and academic
institutions) engaged in providing goods or services
to the U.S. Government involving access to or
creation of classified information may be granted a
Facility Clearance (FCL). The Defense
Counterintelligence and Security Agency (DCSA)
processes, issues, and monitors the continued
eligibility of entities for an FCL. [https://
www.dcsa.mil/mc/isd/fc/].
14 Applicants to the DIB CS Program submit an
application from https://dibnet.dod.mil. Once a
company has been verified, the Framework
Agreement is made available for review.
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community. In general, smaller defense
contractors have fewer resources to
devote to cybersecurity, which may
provide a vector for adversaries to
access information critical to national
security. In addition, the Department is
working on providing more tailored
threat information to support the needs
of a broader community of defense
contractors with varying cybersecurity
capabilities. The gap in eligibility in the
current program, feedback from
interested but ineligible contractors, a
vulnerable DoD supply chain, and a
pervasive cyber threat have prompted
DoD to propose revising the eligibility
requirements of the DIB CS Program to
allow participation by non-cleared
defense contractors.
The maximum number of defense
contractors estimated to be subject to
mandatory cyber incident reporting
under DFARS clause 252.204–7012 is
80,000. The presence of the clause in a
contract does not establish that covered
defense information is shared. DoD is
working on reporting mechanisms to
better assess contractors managing
covered defense information. The
population of defense contractors in
possession of covered defense
information and subject to mandatory
incident reporting requirements far
exceeds the population of defense
contractors currently eligible to
participate in the voluntary DIB CS
Program. With the changes to the
eligibility criteria, an estimated
additional 68,000 defense contractors
will be eligible to participate in the
voluntary DIB CS Program. Based on
prior participation statistics, it is
estimated that about 10% of the eligible
contractors (12,000 + 68,000 = 80,000)
will actually apply to join the voluntary
DIB CS Program (80,000 × 0.10 = 8,000).
Currently, the DIB CS Program has
approximately 1,000 cleared defense
contractors participating in the program.
Program participants have access to
technical exchange meetings, a
collaborative web platform (DIBNet-U),
and threat information products and
services through the DoD Cyber Crime
Center (DC3). DC3 implements the
program’s operations by sharing cyber
threat information and intelligence with
the DIB, and offering a variety of
products, tools, services, and events.
DC3 serves as the single clearinghouse
for unclassified Mandatory Incident
Reports (MIRs) and voluntary threat
information sharing reports.
Changes to Definitions
In addition to the program eligibility
changes described above, DoD is also
finalizing the following changes.
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Section 236.2 Definitions
1. Access to media—This definition is
being removed as it is no longer used in
the rule text.
2. DIB CS Program participant—This
definition has been revised to align with
the revised eligibility requirements set
forth in this final rule.
3. Government furnished information
(GFI)—This definition was revised to
adopt the convention of referring to the
DIB CS Program with a capital ‘P’.
Other Finalized Changes
DoD is amending § 236.4 (Mandatory
cyber incident reporting procedures), in
response to public comments received
about the burden associated with
medium assurance certificates. The
amendment will require contractors to
obtain PIEE account in conjunction with
mandatory cyber incident reporting.
This change will align the identity
proofing processes used by DoD for the
majority of DIB companies and will
eliminate the cost associated with
procuring medium assurance
certificates. DoD will continue to accept
medium assurance certificates to fulfil
identity proofing requirements.
DoD is amending § 236.5 (DoD’s DIB
CS program) in order to align the
program description with the revised
eligibility requirements. As a result,
references to cleared defense contractors
have been replaced with contractors that
own or operate a covered contractor
information system. Security clearance
information is only collected, when
applicable, if a company elects and is
eligible to participate in classified
information sharing. In addition, the
language stating participation is
typically three to ten companydesignated points of contact (POC) has
been removed, to avoid confusion
regarding the number of POCs, as some
larger companies may wish to nominate
a larger number of POCs and smaller
companies may wish to nominate fewer.
DoD is amending § 236.7 (DoD’s DIB
CS program requirements) to remove the
requirement that a company have an
existing active facility clearance (FCL)
to at least the Secret level granted under
32 CFR part 117, National Industrial
Security Program Operating Manual
(NISPOM),15 to be eligible to participate
in the DIB CS Program. In addition,
references to cleared defense contractors
have been replaced with contractors that
own or operate a covered contractor
information system.
A foundational element of the
activities described in § 236.7 is the
recognition that the information shared
15 https://www.ecfr.gov/current/title-32/subtitleA/chapter-I/subchapter-D/part-117.
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between DoD and DIB CS Program
participants pursuant to the DIB CS
Program includes CUI,16 which requires
protection. For additional information
regarding the Government’s
safeguarding of information received
from contractors that requires
protection, see the Privacy Impact
Assessment (PIA) for the DIB
Cybersecurity Activities located at:
https://dodcio.defense.gov/Portals/0/
Documents/DIB_PIA.pdf. The PIA
provides detailed procedures for
handling personally identifiable
information (PII), attributional
information about the strengths or
vulnerabilities of specific covered
contractor information systems,
information providing a perceived or
real competitive advantage on future
procurement action, and contractor
information marked as proprietary or
commercial or financial information. In
addition, personnel information is
covered by Office of the Secretary of
Defense (OSD) System of Records Notice
(SORN) DCIO 01 (https://dpcld.defense.
gov/Portals/49/Documents/Privacy/
SORNs/OSDJS/DCIO-01.pdf). No
changes to the PIA or SORN are being
made in conjunction with this final rule.
Expected Impact of the Final Rule
Comments were received on the cost
of a DoD-approved medium assurance
certificates and the accuracy of
estimates relating to familiarization
costs and attending meetings. DoD is
removing the requirement for the DIB to
have a DoD-approved medium
assurance certificate to report cyber
incidents. The requirement is being
replaced with the requirement to
register in PIEE which has established
procedures to perform digital identity
proofing. The basis for the cost estimate
for a company to familiarize themselves
with changes to this rule and determine
if they would like to apply to the DIB
CS Program does not include time for a
company to perform an in-depth review
of preexisting contractually mandated
requirements. The basis for the cost
estimate to participate in meetings uses
the assumption a company sends the
equivalent of an Information Security
Analyst with the mean wage estimate
published by the Bureau of Labor
Statistics. If the company elects to send
more senior representatives the cost will
be higher. The economic analysis is
being finalized without changes.
Costs
DoD believes the cost impact of the
changes to this final rule is not
significant, as the changes primarily
16 https://www.archives.gov/cui.
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expand the availability of the
established DIB CS Program to
additional defense contractors. The
newly eligible population of defense
contractors may incur costs to
familiarize itself with the rule and those
who elect to participate in the program
will incur costs related to program
participation. The Government will
continue to incur costs related to
operating the program. The DIB CS
Program conducts outreach activities to
defense contractors through press
releases, participation in defenseoriented conferences, speaking
engagements, and through digital media.
The program will leverage preestablished channels to message
changes to the program and engage with
the eligible population of defense
contractors. Based on the program
growth experienced that during the last
phase of program expansion the
program is forecasting annual growth at
just over 1% of the eligible population.
At a growth rate of 1% per year it will
take the program approximately 10
years to achieve the estimated 10%
participation rate of the eligible DIB.
Costs to DIB Participants
In order to join the DIB CS Program
there is an initial labor burden for a
defense contractor to familiarize
themselves with the rule and
subsequently apply to the program and
provide POC information. In total, if it
takes each contractor 30 minutes to read
and familiarize him/herself with the
rule, it will take contractors 4,000 hours
to familiarize themselves with the rule
(8,000 participants x .5 = 4,000 hours).
At an hourly wage of $108.92, the total
cost incurred by contractors for rule
familiarization will amount to $217,840
($108.92 × .5 hours = $54.46 × 4,000
hours = $217,840). The hourly labor cost
is based on the mean wage estimate
from the Bureau of Labor Statistics for
an Information Security Analysts,
Occupational Employment and Wages,
May 2021 and is covered under
information collection 0704–0490. This
hourly wage is adjusted upward by
100% to account for overhead and
benefits, which implies a value of
$108.92 per hour.
The estimated annual burden for a
company to apply to the program or for
a participating company to update POC
information is $36.31, with a total
annual cost to all participants of
$319,498.67 at peak program
participation. This calculation is based
on 8,000 participants submitting an
average of one application per year and
10% of the population (800
participants) submitting an update each
year, with 20 minutes of labor per
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submission, at a cost of $108.92 per
hour ($108.92 × 1⁄3 hours = $36.31 ×
8,800 events = $319,498.67).
There is an estimated annual burden
projected at $1,089.20 for defense
contractors voluntarily sharing cyber
threat information. This is based on a
defense contractor electing to submit an
average of five informational reports per
year with two hours of labor per
voluntary submission, at a cost of
Year 1
DIB CS
Participants .....
Voluntary
Reports
Received
Annual
Cost ......
Year 2
Year 3
Year 5
Year 6
Year 8
Year 9
3,380
4,180
4,980
5,780
6,580
7,380
8,000
8,900
12,900
16,900
20,900
24,900
28,900
32,900
36,900
40,000
$1,938,776
$2,810,136
$3,681,496
$4,552,856
$5,424,216
$6,295,576
$7,166,936
$8,038,296
$8,713,600
Year 1
Year 2
program. First, DoD incurs costs to
implement this program operationally
by responding to inquiries, processing
application submissions and collecting,
sharing, and managing POC information
for program administration and
management purposes. Second, DoD
incurs costs to collect, analyze, and
disseminate threat information.
DoD responds to an average of 2,000
questions each year and these responses
are estimated to take 20 minutes per
response. If it takes 20 minutes to
respond to each question, it will take
667 hours to respond to questions. At an
hourly wage of $51.16,17 it will cost the
Year 3
Year 4
Year 5
DoD $34,107 dollars to respond to
questions ($51.16 × (.333 × 2,000) =
$34,107). Costs to the government are
incurred when a company applies to the
DIB CS Program to validate and store
POC information and to perform followup activities with a company when the
information is outdated. The processing
time for these activities is estimated to
be one hour per company.
If, by Year 9, 8,000 companies
participate in the program and 10% of
the companies update information with
the program annually the labor cost to
the government is expected to be
$72,647.20 = (620 + 800 × $51.16).
Year 6
Year 7
Year 8
Year 9
1780
2580
3380
4180
4980
5780
6580
7380
8000
780
178
800
258
800
338
800
418
800
498
800
578
800
658
800
738
620
800
$49,011.28
$54,127.28
$58,220.08
$62,312.88
$66,405.68
$70,498.48
$74,591.28
$78,684.08
$72,647.20
In addition, there is a cost incurred by
the DoD to receive cyber threat
information submitted by defense
contractors to have it analyzed by cyber
threat experts at DC3. By year 9 of the
expanded program, it is estimated DC3
will receive 40,000 responses per year,
based on the estimate that each
participating company elects to submit
5 informational reports (8,000
participants × 5 reports). Each product
takes approximately two hours to create
and incurs an hourly labor cost of
$51.16 per hour. This equals $102.32 (2
hours × 51.16) per response. The labor
cost to the government is forecasted to
be $4,092,800 annually after 9 years of
growth. In addition to processing cyber
threat information, the DoD incurs
operational and maintenance costs for
the system receiving and storing cyber
threat information. This system costs
the DoD $5,100,000 annually to
maintain (covered under information
collection 0704–0489).
17 This is based upon the 2022 General Schedule
(GS) pay scale for a GS–9 Step 5 and is adjusted
upward by 100% to adjust for overhead and
benefits.
VerDate Sep<11>2014
Year 7
2,580
Costs to the Government
The DoD has identified general areas
of costs related to the operation of this
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Year 4
the first year of the program expanding
there are 980 participants and 800 new
participants join the program, there will
be a total of 1,780 participants.
Assuming each participant responds
five times, this totals 8,900 annual
responses times $217.84 per response
and will equal $1,938,776 in total
annual cost to participants, which is
covered in information collection 0704–
0489.
1,780
In addition, DIB CS Program
participants may choose to attend
meetings in conjunction with the DIB
CS Program. All new participants are
invited to attend an orientation session
and all existing participants are invited
to attend meetings on a quarterly basis.
If a defense contractor chooses to send
an employee to a day-long meeting each
quarter, the defense contractor would
incur a cost of $3,485.44 ($108.92 × 8
hours = $871.36 × 4 meetings =
$3,485.44).
DIB CS
Participants .....
New Applications ..
Updates ....
Annual
Cost ......
$108.92 per hour ($108.92 × 2 hours =
$217.84 × 5 reports = $1,089.20). It is
estimated that 1% of the newly eligible
population will elect to join the DIB CS
Program annually, which currently has
approximately 1,000 participants, with
program growth plateauing at 10% of
the population by Year 9. The table
below shows the costs to industry to
voluntarily sharing cyber threat
information over a 9-year period. If, in
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Benefits
This program benefits the Department
by increasing the overall security of the
DIB through increasing awareness and
improving assessments of cyber
incidents that may affect mission
critical capabilities and services. It
continues to be an important element of
the Department’s comprehensive effort
to defend DoD information, protect U.S.
national interests against cyber-attacks,
and support military operations and
contingency plans worldwide. Once a
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defense contractor joins the program,
they are encouraged to share
information, including cyber threat
indicators, that they believe may be of
value in alerting the Government and
others, as appropriate, of adversary
activity to enable the development of
mitigation strategies and proactively
counter threat actor activity. DC3
develops written products that include
analysis of the threat, mitigations, and
indicators of adversary activity. Even
cyber incidents that are not
compromises of covered defense
information may be of interest to DoD
for situational awareness purposes. This
information is disseminated as
anonymized threat products that are
shared with authorized DoD personnel,
other Federal agencies, and companydesignated POCs participating in the
DIB CS Program. With the revisions to
the eligibility criteria, the Department
will be able to reduce the impact of
cyber threat activity on DIB networks
and information systems and, in turn,
preserve its technological advantage and
protect DoD information and
warfighting capabilities. The mitigation
of the cyber threat targeting defense
contractors reinforces the nation’s
national security and economic vitality.
For DIB participants, this program
provides unique cyber threat
information and technical assistance
through analyst-to-analyst exchanges,
mitigation and remediation strategies,
and cybersecurity best practices in a
collaborative environment. The shared
unclassified and classified cyber threat
information is used to bolster a
company’s cybersecurity posture and
mitigate the growing cyber threat. The
program’s tailored support for small,
mid-size, and large companies with
varying cybersecurity maturity levels is
an asset for participants. The program
remains a key element of DoD’s
cybersecurity efforts by providing
services to help protect DIB CS Program
participants and the sensitive DoD
information they handle.
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Regulatory Compliance Analysis
A. Executive Order 12866, ‘‘Regulatory
Planning and Review’’ and Executive
Order 13563, ‘‘Improving Regulation
and Regulatory Review’’
Executive Order 12866 directs
agencies to assess all costs, benefits, and
available regulatory alternatives and, if
regulation is necessary, to select
regulatory approaches that maximize
net benefits (including potential
economic, environmental, public health,
safety effects, distributive impacts, and
equity). Executive Order 13563
emphasizes the importance of
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quantifying both costs and benefits, of
reducing costs, of harmonizing rules,
and of promoting flexibility. This final
rule has been designated ‘‘significant,’’
under Executive Order 12866.
B. Congressional Review Act (5 U.S.C.
801 et seq.)
Pursuant to the Congressional Review
Act, this final rule has not been
designated a major rule, as defined by
5 U.S.C. 804(2). This final rule will not
have an economic effect above the $100
million threshold defined in 5 U.S.C.
804(2) or spur a major increase in costs
or prices for consumers, individual
industries, Federal, State, or local
government agencies, or geographic
regions; or have significant adverse
effects on competition, employment,
investment, productivity, innovation, or
on the ability of United States-based
enterprises to compete with foreignbased enterprises in domestic and
export markets.
C. Public Law 96–354, ‘‘Regulatory
Flexibility Act’’ (5 U.S.C. 601)
The Office of the DoD Chief
Information Officer certified that this
final rule 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.
This final rule will have a significant
positive impact on small entities that
will become eligible to participate in
and receive benefits through the DIB CS
Program. For DIB participants, this
program provides cyber threat
information and technical assistance
through analyst-to-analyst exchanges,
mitigation and remediation strategies,
and cybersecurity best practices in a
collaborative environment. The shared
threat information is used to bolster a
company’s cybersecurity posture and
mitigate the growing cyber threat. The
program’s tailored support for small,
mid-size, and large companies with
varying cybersecurity maturity levels is
an asset for participants, and in fact can
avoid expending resources to obtain
threat intelligence from private sources
if the company elects to participate in
services offered by the DoD that directly
integrate threat intelligence.
Participation in the DIB CS Program is
voluntary. Program application and
participation costs are described in the
cost analysis section of this final rule.
These costs are voluntarily incurred and
associated with the labor and resource
costs to complete the required program
paperwork, including execution of the
Framework Agreement, to submit
information to the Government, and to
receive information from the
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Government. The costs associated with
applying to the DIB CS Program are
associated exclusively with labor costs
and estimated to be $18.15 per
company. None of the program’s
offering come at an additional fee to DIB
participants and additional costs related
to participation are estimated based on
the time investment (labor hours)
required to obtain the benefits as
described in the cost analysis of this
preamble. Therefore, the Regulatory
Flexibility Act, as amended, does not
require us to prepare a regulatory
flexibility analysis.
D. Sec. 202, Public Law 104–4,
‘‘Unfunded Mandates Reform Act’’
Section 202 of the Unfunded
Mandates Reform Act of 1995 (2 U.S.C.
1532) requires agencies to assess
anticipated costs and benefits before
issuing any rule whose mandates
require spending in any one year of
$100 million in 1995 dollars, updated
annually for inflation. When the Federal
Government passes legislation requiring
a State, local, or tribal government to
perform certain actions or offer certain
programs but does not include any
funds for the actions or programs in the
law, an unfunded mandate is the result.
This final rule will not mandate any
requirements for State, local, or tribal
governments, and will not mandate
private sector incurred costs above the
$100 million threshold defined in 2
U.S.C. 1532.
E. Public Law 96–511, ‘‘Paperwork
Reduction Act’’ (44 U.S.C. Chapter 35)
Section 236.2 of this rule contains
information collection requirements. As
required by the Paperwork Reduction
Act (44 U.S.C. Chapter 35), DoD
submitted information collection
requests to the Office of Management
and Budget for review and approval. In
response to DoD’s invitation in the
proposed rule to comment on any
potential paperwork burden associated
with this rule, there were no comments
from the public. This final rule contains
the following information collection
requirements under the Paperwork
Reduction Act (PRA) of 1995.
• OMB Control Number 0704–0489,
‘‘DoD’s Defense Industrial Base (DIB)
Cybersecurity (CS) Activities Cyber
Incident Reporting,’’
• OMB Control Number 0704–0490,
‘‘DoD’s Defense Industrial Base (DIB)
Cybersecurity (CS) Points of Contact
(POC) Information.’’
The System of Records Notice
associated with these information
collections (DCIO 01, ‘‘Defense
Industrial Base (DIB) Cybersecurity (CS)
Activities Records’’) published on May
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17, 2019. The Federal Register citation
for the SORN is 84 FR 22477.
The Privacy Impact Assessment for
the Defense Industrial Base (DIB)
Cybersecurity (CS) Activities is posted
at: https://dodcio.defense.gov/Portals/0/
Documents/DIB_PIA.pdf.
F. Executive Order 13132, ‘‘Federalism’’
Executive Order 13132 establishes
certain requirements that an agency
must meet when it promulgates a final
rule that imposes substantial direct
requirement costs on 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.
G. Executive Order 13175,
‘‘Consultation and Coordination With
Indian Tribal Governments’’
Executive Order 13175 establishes
certain requirements that an agency
must meet when it promulgates a final
rule that imposes substantial direct
compliance costs on one or more Indian
tribes, preempts tribal law, or effects the
distribution of power and
responsibilities between the Federal
Government and Indian tribes. This
final rule will not have a substantial
effect on Indian tribal governments.
1. The authority citation for 32 CFR
part 236 is revised to read as follows:
■
Authority: 10 U.S.C. 391, 393, and 2224; 44
U.S.C. 3506 and 3554; 50 U.S.C. 3330.
2. Revise the heading of 32 CFR part
236 to read as set forth above.
■ 3. Revise and republish § 236.1 to read
as follows:
■
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Purpose.
Cyber threats to contractor
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. This part requires all DoD
contractors to rapidly report cyber
incidents involving covered defense
information on their covered contractor
information systems or cyber incidents
affecting the contractor’s ability to
provide operationally critical support.
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Definitions.
*
*
*
*
*
DIB CS Program participant means a
contractor that has met all of the
eligibility requirements to participate in
the voluntary DIB CS Program as set
forth in this part (see § 236.7).
*
*
*
*
*
[Amended]
5. Amend § 236.3 by:
a. Removing the word ‘‘program’’ and
adding in its place the words ‘‘Program
participants’’ in paragraph (b)(1).
■ b. Removing the words ‘‘DIB CS
program’’ and adding in their place the
words ‘‘DIB CS Program’’ in paragraph
(c).
■ 6. Amend § 236.4 by:
■ a. Removing the text ‘‘http’’ and
adding in its place the text ‘‘https’’ in
paragraphs (b)(2), (c), and (d).
■ b. Revising paragraphs (e) through (g).
■ c. Removing the words ‘‘paragraph
(e)’’ and adding in their place the words
‘‘paragraph (i)’’ in paragraph (k).
■ d. Revising paragraph (m)(4).
■ e. Adding a heading for paragraph (o).
■ f. Revising paragraph (p).
The revisions and additions read as
follows:
■
■
PART 236—DEPARTMENT OF
DEFENSE (DoD) DEFENSE
INDUSTRIAL BASE (DIB)
CYBERSECURITY (CS) ACTIVITIES
VerDate Sep<11>2014
§ 236.2
§ 236.3
List of Subjects in 32 CFR Part 236
Government contracts, Security
measures.
Accordingly, DoD amends 32 CFR
part 236 as follows:
§ 236.1
The part also permits eligible DoD
contractors to participate in the
voluntary DIB CS Program to share
cyber threat information and
cybersecurity best practices with DIB CS
Program participants. The DIB CS
Program enhances and supplements DIB
CS Program participants’ capabilities to
safeguard DoD information that resides
on, or transits, DIB unclassified
information systems.
■ 4. Amend § 236.2 by:
■ a. Removing the definition of ‘‘Access
to media’’.
■ b. Removing the definition of ‘‘DIB
participant’’ and adding the definition
‘‘DIB CS Program participant’’ in its
place.
■ c. Removing the words ‘‘DIB CS
program’’ in the definition of
‘‘Government furnished information
(GFI)’’ and adding in their place the
words ‘‘DIB CS Program’’.
The addition reads as follows:
§ 236.4 Mandatory cyber incident reporting
procedures.
*
*
*
*
*
(e) Procurement Integrated Enterprise
Environment (PIEE) account
requirement. To report cyber incidents
in accordance with this section, the
contractor or subcontractor shall have a
PIEE account to access https://
dibnet.dod.mil. For information on
obtaining a PIEE account, see https://
piee.eb.mil/.
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17747
(f) Third-party service provider
support. If the contractor utilizes a
third-party service provider (SP) for
information system security services,
the contractor may authorize the SP to
report cyber incidents on behalf of the
contractor.
(g) Voluntary information sharing.
Contractors are encouraged to report
information to promote sharing of cyber
threat indicators that they believe are
valuable in alerting the Government and
others, as appropriate, in order to better
counter threat actor activity. Cyber
incidents that are not compromises of
covered defense information or do not
adversely affect the contractor’s ability
to perform operationally critical support
may be of interest to the DIB and DoD
for situational awareness purposes.
*
*
*
*
*
(m) * * *
(4) For national security purposes,
including cyber situational awareness
and defense purposes (including sharing
non-attributional cyber threat
information with defense contractors
participating in the DIB CS Program
authorized by this part); or
*
*
*
*
*
(o) Contractor activities. * * *
(p) 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). The
Government will notify the nonGovernment source or submitter (e.g.,
contractor or DIB CS Program
participant) of the information in
accordance with the procedures in 32
CFR 286.10.
*
*
*
*
*
■ 7. Revise and republish § 236.5 to read
as follows:
§ 236.5
DoD’s DIB CS Program.
(a) All defense contractors that meet
the requirements set forth in § 236.7 are
eligible to join the DIB CS Program as
a DIB CS Program participant. Defense
contractors meeting the additional
eligibility requirements in § 236.7 can
elect to access and receive classified
information electronically.
(b) Under the voluntary activities of
the DIB CS Program, the Government
and each DIB CS Program participant
will execute a 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, cybersecurity
information.
(c) Each such FA between the
Government and a DIB CS Program
participant must comply with and
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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 CS Program
participants.
(d) DoD’s DIB CS Program
Management Office is the overall point
of contact for the program. The DC3
managed DoD–DIB Collaborative
Information Sharing Environment
(DCISE) is the operational focal point for
cyber threat information sharing and
incident reporting under the DIB CS
Program.
(e) The Government will maintain a
website or other internet-based
capability to provide potential DIB CS
Program participants with information
about eligibility and participation in the
program, to enable online application or
registration for participation, and to
support the execution of necessary
agreements with the Government.
(f) As participants of the DIB CS
Program, defense contractors are
encouraged to share cyber threat
indicators and information that they
believe are valuable in alerting the
Government and other DIB CS Program
participants to better counter threat
actor activity. Cyber activity that is not
covered under § 236.4 may be of interest
to DIB CS Program participants and
DoD.
(g) The Government shall share GFI
DIB CS Program participant or
designated SP in accordance with this
part.
(h) Prior to receiving GFI, each DIB CS
Program participant shall provide the
requisite points of contact information,
to include U.S. citizenship and security
clearance information, as applicable, for
the designated personnel within their
company in order to facilitate the DoD–
DIB interaction in the DIB CS 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 CS Program participant for this
program.
(i) GFI will be issued via both
unclassified and classified means. DIB
CS Program participants handling and
safeguarding of classified information
shall be in compliance with 32 CFR part
117. The Government shall specify
transmission and distribution
procedures for all GFI, and shall inform
DIB CS Program participants of any
revisions to previously specified
transmission or procedures.
(j) Except as authorized in this part or
in writing by the Government, DIB CS
Program participants may:
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16:07 Mar 11, 2024
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(1) Use GFI only on U.S. based
covered contractor information systems,
or U.S. based networks or information
systems used to provide operationally
critical support; and
(2) Share GFI only within their
company or organization, on a need-toknow basis, with distribution restricted
to U.S. citizens.
(k) In individual cases DIB CS
Program participants may request, and
the Government may authorize,
disclosure and use of GFI under
applicable terms and conditions when
the DIB CS Program participant can
demonstrate that appropriate
information handling and protection
mechanisms are in place and has
determined that it requires the ability:
(1) To share the GFI with a non-U.S.
citizen; or
(2) To use the GFI on a non-U.S. based
covered contractor information system;
or
(3) To use the GFI on a non-U.S. based
network or information system in order
to better protect a contractor’s ability to
provide operationally critical support.
(l) DIB CS Program 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).
(m) DIB CS Program 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.
(n) If the DIB CS Program participant
utilizes a SP for information system
security services, the DIB CS Program
participant may share GFI with that SP
under the following conditions and as
authorized in writing by the
Government:
(1) The DIB CS Program 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 CS
Program 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
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CS Program 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 CS Program participant)
under which the SP is subject to all
applicable requirements of this part and
of any supplemental terms and
conditions in the DIB CS Program
participant’s FA with the Government,
and which authorizes the SP to use the
GFI only as authorized by the
Government.
(o) The DIB CS Program participant
may not sell, lease, license, or otherwise
incorporate the GFI into its products or
services, except that this does not
prohibit a DIB CS Program participant
from being appropriately designated an
SP in accordance with paragraph (n) of
this section.
■ 8. Revise and republish § 236.6 to read
as follows:
§ 236.6 General provisions of DoD’s DIB
CS Program.
(a) Confidentiality of information that
is exchanged under the DIB CS Program
will be protected to the maximum
extent authorized by law, regulation,
and policy. DoD and DIB CS Program
participants each bear responsibility for
their own actions under the voluntary
DIB CS Program.
(b) All DIB CS Program participants
may participate in the Department of
Homeland Security’s Enhanced
Cybersecurity Services (ECS) program
(https://www.cisa.gov/resources-tools/
programs/enhanced-cybersecurityservices-ecs).
(c) Participation in the voluntary DIB
CS Program does not obligate the DIB
CS Program participant to utilize the
GFI in, or otherwise to implement any
changes to, its information systems. Any
action taken by the DIB CS Program
participant based on the GFI or other
participation in this program is taken on
the DIB CS Program participant’s own
volition and at its own risk and expense.
(d) A DIB CS Program participant’s
participation in the voluntary DIB CS
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 CS
Program participant, its information
systems, or its products or services.
(e) The DIB CS Program participant
and the Government may each
unilaterally limit or discontinue
participation in the voluntary DIB CS
Program at any time. Termination shall
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not relieve the DIB CS Program
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.
(f) Upon termination of the FA,
change of status as a defense contractor,
and/or change of Facility Security
Clearance (FCL) status below Secret, GFI
must be returned to the Government or
destroyed pursuant to direction of, and
at the discretion of, the Government.
(g) Participation in these activities
does not abrogate the Government’s, or
the DIB CS Program 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. However,
participation in the voluntary activities
of the DIB CS Program does not
eliminate the requirement for DIB CS
Program participants to report cyber
incidents in accordance with § 236.4.
■ 9. Revise § 236.7 to read as follows:
khammond on DSKJM1Z7X2PROD with RULES
§ 236.7 DoD’s DIB CS Program
requirements.
(a) To participate in the DIB CS
Program, a contractor must own or
operate a covered contractor
information system and shall execute
the standardized FA with the
Government (available during the
application process), which implements
the requirements set forth in §§ 236.5
and 236.6.
(b) In order for DIB CS Program
participants to receive classified cyber
threat information electronically, the
company must be a cleared defense
contractor and must:
(1) Have an existing active facility
clearance level (FCL) to at least the
Secret level in accordance with 32 CFR
part 117;
(2) Have or acquire a Communication
Security (COMSEC) account in
accordance with 32 CFR part 117, which
provides procedures and requirements
for COMSEC activities;
(3) Have or acquire approved
safeguarding for at least Secret
information, and continue to qualify
under 32 CFR part 117 for retention of
its FCL and approved safeguarding; and
(4) Obtain access to DoD’s secure
voice and data transmission systems
supporting the voluntary DIB CS
Program.
VerDate Sep<11>2014
16:07 Mar 11, 2024
Jkt 262001
Dated: March 1, 2024.
Patricia L. Toppings,
OSD Federal Register Liaison Officer,
Department of Defense.
[FR Doc. 2024–04752 Filed 3–11–24; 8:45 am]
BILLING CODE 6001–FR–P
DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 310
[Docket ID: DoD–2023–OS–0060]
RIN 0790–AL64
Privacy Act of 1974; Implementation
Office of the Secretary of
Defense (OSD), Department of Defense
(DoD).
ACTION: Final rule.
AGENCY:
The Department of Defense
(Department or DoD) is issuing a final
rule to amend its regulations to exempt
portions of the system of records titled
DoD–0019, ‘‘Information Technology
Access and Audit Records,’’ from
certain provisions of the Privacy Act of
1974.
DATES: This rule is effective on March
12, 2024.
FOR FURTHER INFORMATION CONTACT: Ms.
Rahwa Keleta, Privacy and Civil
Liberties Directorate, Office of the
Assistant to the Secretary of Defense for
Privacy, Civil Liberties, and
Transparency, Department of Defense,
4800 Mark Center Drive, Mailbox #24,
Suite 08D09, Alexandria, VA 22350–
1700; OSD.DPCLTD@mail.mil; (703)
571–0070.
SUPPLEMENTARY INFORMATION:
SUMMARY:
Discussion of Comments and Changes
The proposed rule published in the
Federal Register (88 FR 60411–60413)
on September 1, 2023. Comments were
accepted for 60 days until October 31,
2023. No comments were received.
I. Background
In finalizing this rule, DoD is
exempting portions of this system of
records titled, DoD–0019, ‘‘Information
Technology Access and Audit Records,’’
from certain provisions of the Privacy
Act of 1974. The purpose of this system
of records is to support information
systems being established within the
DoD using the same categories of data
for the same purposes. This system of
records covers DoD’s maintenance of
records related to requests for user
access, attempts to access, granting of
access, records of user actions for DoD
information technology (IT) systems,
PO 00000
Frm 00057
Fmt 4700
Sfmt 4700
17749
and user agreements. This includes
details of programs, databases,
functions, and sites accessed and/or
used, and the information products
created, received, or altered during the
use of IT systems. The system consists
of both electronic and paper records and
will be used by DoD components and
offices to maintain records about
individuals who have user agreements,
user access to and activity on networks,
computer systems, applications,
databases, or other digital technologies.
II. Privacy Act Exemption
The Privacy Act allows Federal
agencies to exempt eligible records in a
system of records from certain
provisions of the Act, including those
that provide individuals with a right to
request access to and amendment of
their own records. If an agency intends
to exempt a particular system of records,
it must first go through the rulemaking
process pursuant to 5 U.S.C. 553(b)(1)–
(3), (c), and (e). The OSD is amending
32 CFR part 310 to add a new Privacy
Act exemption rule for this system of
records. The DoD is adding exemptions
for this system of records pursuant to 5
U.S.C. 552a(k)(1) and (2) because some
of its records may contain classified
national security information or
investigatory material compiled for law
enforcement purposes. The DoD is
claiming an exemption from several
provisions of the Privacy Act, including
various access, amendment, disclosure
of accounting, and certain
recordkeeping and notice requirements,
to avoid, among other harms, frustrating
the underlying purposes for which the
information was gathered.
Regulatory Analysis
Executive Order 12866—Regulatory
Planning and Review; Executive Order
13563—Improving Regulation and
Regulatory Review; and Executive Order
14094—Modernizing Regulatory Review
Executive Orders 12866 (as amended
by Executive Order 14094) 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, distributive impacts, and
equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits, of
reducing costs, of harmonizing rules,
and of promoting flexibility. It has been
determined that this rule is not a
significant regulatory action under these
Executive orders.
E:\FR\FM\12MRR1.SGM
12MRR1
Agencies
[Federal Register Volume 89, Number 49 (Tuesday, March 12, 2024)]
[Rules and Regulations]
[Pages 17741-17749]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-04752]
[[Page 17741]]
=======================================================================
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 236
[Docket ID: DoD-2019-OS-0112]
RIN 0790-AK86
Department of Defense (DoD) Defense Industrial Base (DIB)
Cybersecurity (CS) Activities
AGENCY: Office of the DoD Chief Information Officer, Department of
Defense (DoD).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The DoD is finalizing revisions to the eligibility criteria
for the voluntary Defense Industrial Base (DIB) Cybersecurity (CS)
Program. These revisions will allow all defense contractors who own or
operate an unclassified information system that processes, stores, or
transmits covered defense information to benefit from bilateral
information sharing. DoD is also finalizing changes to definitions and
some technical corrections for readability.
DATES: This rule is effective on April 11, 2024.
FOR FURTHER INFORMATION CONTACT:
Stacy Bostjanick, Chief Defense Industrial Base
Cybersecurity, Office: 703-604-3167.
DIB CS Program Management Office: [email protected].
SUPPLEMENTARY INFORMATION:
Discussion of Comments and Changes
The proposed rule was published in the Federal Register (88 FR
27832-27839) on May 3, 2023. Four submissions were received and are
summarized below.
A commenter suggested DoD should redefine terms and should change
the regulations for the program. However, the commenter did not provide
any additional detail which would allow DoD to consider possible
changes.
A commenter suggested DoD use this opportunity to run a targeted
marketing campaign to assist small businesses with explaining a medium
assurance certificate's purpose and procuring the hardware in advance
of needing it.
After consideration, DoD is modifying the requirement for industry
to obtain a medium assurance certificate. Medium assurance certificates
can be used to validate digital identity and facilitate the exchange of
encrypted information. However, it is not the only technical solution
available to support identity proofing requirements. So, DoD is
revising paragraph (e) in Sec. 236.4, and separately in Department of
Defense Instruction (DoDI) 8582.01, ``Security of Non-DoD Information
Systems Processing Unclassified Nonpublic DoD Information,'' to require
registration with Procurement Integrated Enterprise Environment (PIEE)
\1\ when submitting mandatory cyber incident reports. This change will
reduce the burden of having to procure a medium assurance certificate
which costs approximately $175 annually. All DoD contracts contain
Defense Federal Acquisition Regulation Supplement (DFARS) clause
252.232-7003 (48 CFR 252.232-7003), which specifies requirements for
electronic submission of payment requests. In order to access the
electronic systems associated with electronic payments the contractor
must also complete the required identity proofing and registration
process with PIEE.
---------------------------------------------------------------------------
\1\ https://piee.eb.mil/.
---------------------------------------------------------------------------
Multiple commenters provided input on the accuracy of the burden
estimates. One commentor recommended allowing one report to cover
multiple contracts to reduce the administrative reporting burden on all
parties and enhance consistency across DoD data. Another commentor
noted that many firms will lack in-depth familiarity with existing
policy, compliance requirements, and other details of the DIB CS
Program and, as such, the estimate of 30 minutes for new entrants to
familiarize themselves with the rule is an underestimate.
As DoD is modifying the requirement for industry to obtain a medium
assurance certificate with this final rule, the Department believes the
burden to companies participating in the DIB CS Program is being
reduced. In response to concerns about submitting a nearly identical
report for multiple contracts, DoD would like to clarify that a
contractor may submit one report for an event that impacts multiple
contracts. Finally, DoD would like to clarify the estimate of 30
minutes to review changes to this final rule and choose whether to
apply to the voluntary DIB CS Program does not include time for
contractors to develop in-depth familiarity with existing policies and
compliance requirements. It is expected DoD contractors will invest
time to familiarize themselves with contractually mandated requirements
in addition to this estimate.
A commenter highlighted the revision to the DIB CS Program omits a
key component of the Critical Infrastructure Protection Act (CIPA) of
2001, and the revisions to the DIB CS Program will exclude
operationally critical support (OCS) contractors from its provisions
unless such contractors have covered defense information (CDI) resident
in their information systems (IS). The commenter recommended including
contractors performing under contracts that are designated as providing
OCS, regardless of whether those IS contain CDI.
In accordance with 10 U.S.C. 391, the DoD must include mechanisms
for Department personnel to, if requested, assist operationally
critical contractors in detecting and mitigating penetrations. Pursuant
to section 1642(b) of the National Defense Authorization Act for Fiscal
Year 2019 DoD has authority to engage with the DIB that is
complementary to, but distinct from, the DIB Cybersecurity Activities
that implement the requirements levied upon the Department in 10 U.S.C.
391 and 393. To meet the requirements specified in 10 U.S.C. 391, the
DIB CS program will refer ineligible applicants to other U.S.
Government Departments and Agencies sharing cybersecurity equities to
ensure Federal unity of effort.
A commenter posed several questions about the role of third-party
service providers seeking to understand if a third-party service
provider may submit reports on behalf of a client, and if a third-party
service provider must own or operate covered contractor information
systems.
Currently, a contractor may authorize a third-party service
provider to report incidents on behalf of the contractor. If that
contractor and the third-party service provider are interested in
participating in the DIB CS Program, an amendment to the DIB CS Program
Framework Agreement is available to authorize the third-party service
provider access to DIB CS resources. This agreement details whether the
third-party service provider will provide on-site or off-site support;
clarifies the respective roles of the contractor and the third-party
service provider regarding accessing the government-furnished
information on the DIB CS web portal and voluntary reporting of cyber
incidents and indicators to the Government. The Framework Agreement and
all Program amendments are made available through https://dibnet.dod.mil to an eligible company after the company has been
verified by the DoD. The third-party service provider does not need to
own or operate a covered defense system.
Two commenters reiterated the need for training and best practices
but did not indicate if they are familiar with DoD's current training
programs or if they believe the programs are adequate.
[[Page 17742]]
DoD notes the DIB CS Program offers training and best practices
through in-person and virtual meetings and provides information about
digital resources on https://dibnet.dod.mil.
One commenter stated a link or a copy of the ``standardized''
Government Framework Agreement on the website will help contractors
better understand their ability to meet the requirement before
submitting an application--potentially saving all parties time and
resources.
DoD notes factsheets and informational materials are publicly
available on https://dibnet.dod.mil. The Framework Agreement between
the Government and a DIB participant is made available after the
company applies to the program and DoD verifies the company meets the
eligibility requirements set forth in Sec. 236.7.
A commenter suggested access and information for cleared companies
should remain as it is today and recommended an ``impact statement'' to
information released to uncleared firms to help contextualize the
information and the reason for disseminating it.
The Privacy Impact Assessment (PIA) for DoD's DIB CS Activities
provides procedures on how the Government handles personally
identifiable information (PII), as well as other forms of sensitive
contractor information (e.g., contractor attributional/proprietary).
The PIA is publicly available at https://dodcio.defense.gov/Portals/0/Documents/DIB_PIA.pdf and no changes to the PIA are being proposed. The
Security Classification Guide (SCG) \2\ is the tool used by DoD
Personnel to identify and safeguard national security information when
derivatively classifying information. All information will be
designated and handled in accordance with the DIB CS Activities SCG,
the NISPOM Program as defined in 32 CFR part 117 and the Controlled
Unclassified Information (CUI) Program as defined in 32 CFR part 2002.
---------------------------------------------------------------------------
\2\ DIB CS Activities Security Classification Guide is available
via https://www.DTIC.mil.
---------------------------------------------------------------------------
A commenter asked about a future opportunity to map the level of
access to DIB CS resources to a company's certification(s) level or
assessment scoring.
DoD notes all companies currently participating in the DIB CS
Program are eligible to receive Government Furnished Information (GFI)
under the voluntary DIB CS Program and cybersecurity information is
shared to the greatest extent possible in accordance with the Program's
SCG. Information about a company's certification level or assessment
score is controlled information and not available to the DIB CS Program
at this time.
A commenter recommended providing consistent controls and data
access channels to help companies synthesize and apply the threat
information to their market.
The DIB CS Program marks all documents in accordance with the SCG
\3\ and DIBNet remains the primary channel for disseminating threat
products. DoD has recently relaunched DIBNet to provide an API-based
data access channel to complement the ability for a DIB CS Participant
to download PDF, TXT, and CSV based products which should allow a
participating company to analyze threat information unique to their
market.
A commenter recommended adding headers to Sec. 236.4 for paragraph
(f), (g), (j), and (o) to increase uniformity.
DoD has added headers to Sec. 236.4 for paragraphs (f), (g), and
(o). Paragraph (j) has a header, and an administrative correction will
be made to correct the format of paragraph (n).
A commenter asked if the rights and responsibilities for submittals
under the DIB CS Program have changed with respect to Freedom of
Information Act (FOIA).
The rights and responsibilities for submittals under the DIB CS
Program have not changed with respect to Freedom of Information Act
(FOIA). The Office of the Assistant to the Secretary of Defense for
Privacy, Civil Liberties, and Transparency (OATSD(PCLT)) maintains a
DoD FOIA Handbook available at https://open.defense.gov/Transparency/FOIA/FOIAHandbook.aspx.
Background and Authority
The DIB means the DoD, 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. The
DIB Cybersecurity Program is a voluntary program to enhance and
supplement participants' capabilities to safeguard DoD information that
resides on, or transits, DIB unclassified information systems. The
program encourages greater threat information sharing to complement
mandatory aspects of DoD's DIB cybersecurity activities which are
contractually mandated through DFARS 252.204-7012, Safeguarding Covered
Defense Information and Cyber Incident Reporting.\4\ This program
supports and complements DoD-specific authorities at 10 U.S.C. 2224 and
the Federal Information Security Management Act (FISMA 2002) as amended
by the Federal Information Security Modernization Act, 2014. Cyber
threat information sharing activities under this final rule also
fulfill important elements of DoD's critical infrastructure protection
responsibilities, as the sector risk management agency for the DIB (see
Presidential Policy Directive 21 (PPD-21),\5\ ``Critical Infrastructure
Security and Resilience''). This program is aligned with the
requirements of the Controlled Unclassified Information (CUI) program
established in Executive Order 13556. Expanding eligibility
requirements for the DIB CS Program will augment DoD's information
sharing activities with the DIB.
---------------------------------------------------------------------------
\4\ https://www.ecfr.gov/current/title-48/chapter-2/subchapter-H/part-252/subpart-252.2/section-252.204-7012.
\5\ https://obamawhitehouse.archives.gov/the-press-office/2013/02/12/presidential-policy-directive-critical-infrastructure-security-and-resil.
---------------------------------------------------------------------------
Currently, the DIB CS Program has the following objectives:
Establish a voluntary, mutually acceptable framework to
protect information from unauthorized access.
Protect the confidentiality of information exchanged to
the maximum extent authorized by law.
Create a trusted environment to maximize network defense
and remediation efforts by:
1. Sharing cyber threat information and incident reports.
2. Providing mitigation/remediation strategies and malware
analysis.
This program is part of DoD's larger portfolio of work to protect
DoD information handled by the DIB by understanding and sharing
information, building security partnerships, implementing long-term
risk management programs, and maximizing efficient use of resources. It
supports two-way information sharing and maintains meaningful
relationships and frequent dialogue across the diverse array of
eligible defense contractors. For eligible defense contractors, the
program maintains a capability for companies to access classified
government cyber threat information providing additional context to
better understand the cyber threats targeting their networks and
information systems.
In May 2012, DoD published an interim final rule establishing the
voluntary DIB CS Program and the bilateral information sharing model
still used today.\6\ The 2012 rule established
[[Page 17743]]
a voluntary cyber threat information sharing program for cleared
defense contractors (CDC) with the ability to safeguard classified
information, estimated at 2,650 in 2012. Under the rule CDC is defined
as a private entity granted clearance by DoD to access, receive, or
store classified information for the purpose of bidding for a contract
or conducting activities in support of any program of DoD. The 2012
rule stated DoD would maintain a website to facilitate the following
aspects of program participation: (1) sharing information regarding
eligibility and participation in the program with potential
participants, (2) applying to the program online, and 3) executing the
necessary agreements with the Government. DoD has established this
capability as an online portal referred to as ``DIBNet,'' located at
https://dibnet.dod.mil. A final rule responding to public comments was
published in October 2013.\7\ In October 2015, responding to new
statutory requirements for cyber incident reporting for DoD
contractors, subcontractors, and those providing operationally critical
support, DoD published another interim final rule \8\ to expand
eligibility to all cleared defense contractors (estimated at 8,500 in
2015 and 12,000 in 2022), subject to program eligibility requirements.
The 2015 rule removed the requirement that CDCs be able to safeguard
classified information to participate in the program. The rule also
removed the mandatory program eligibility requirement to have or
acquire a Communications Security (COMSEC) account \9\ and obtain
access to DoD's secure voice and data transmission systems, although
participants still have to fulfill these requirements to receive
classified cyber threat information electronically. A final rule
responding to public comments was published in October 2016.\10\
---------------------------------------------------------------------------
\6\ 77 FR 27615, May 11, 2012 (https://www.govinfo.gov/content/pkg/FR-2012-05-11/pdf/2012-10651.pdf).
\7\ 78 FR 62430, October 22, 2013 (https://www.govinfo.gov/content/pkg/FR-2013-10-22/pdf/2013-24256.pdf).
\8\ 80 FR 59581, October 2, 2015 (https://www.govinfo.gov/content/pkg/FR-2015-10-02/pdf/2015-24296.pdf).
\9\ The National Security Agency administers COMSEC accounts.
\10\ 81 FR 68312, October 4, 2016 (https://www.govinfo.gov/content/pkg/FR-2016-10-04/pdf/2016-23968.pdf).
---------------------------------------------------------------------------
Discussion of the Final Rule
With this rule, the Department is expanding eligibility
requirements to allow greater program participation and increase the
benefits of bilateral information sharing, which helps protect DoD
controlled unclassified information from cyberattack, as well as to
better align the voluntary DIB CS Program with DoD's mandatory cyber
incident reporting requirements. The current eligibility requirements,
based on the October 2016 rule, requires a company to be a cleared
defense contractor \11\ who:
---------------------------------------------------------------------------
\11\ 32 CFR 236.2 defines cleared defense contractor to mean a
subset of contractors cleared under the National Industrial Security
Program (NISP) who have classified contracts with the DoD.
---------------------------------------------------------------------------
Has DoD-approved medium assurance certificates; \12\
---------------------------------------------------------------------------
\12\ The DoD has established the External Certification
Authority (ECA) program to support the issuance of DoD-approved
certificates to industry partners and other external entities and
organizations. The ECA program is designed to provide the mechanism
for these entities to securely communicate with the DoD and
authenticate to DoD Information Systems. [https://public.cyber.mil/eca/].
---------------------------------------------------------------------------
Has an existing facility clearance \13\ to at least the
Secret level; and
---------------------------------------------------------------------------
\13\ Entities (including companies and academic institutions)
engaged in providing goods or services to the U.S. Government
involving access to or creation of classified information may be
granted a Facility Clearance (FCL). The Defense Counterintelligence
and Security Agency (DCSA) processes, issues, and monitors the
continued eligibility of entities for an FCL. [https://www.dcsa.mil/mc/isd/fc/].
---------------------------------------------------------------------------
Can execute the standardized Framework Agreement \14\
provided to interested contractors after the Department has verified
the DIB company is eligible.
---------------------------------------------------------------------------
\14\ Applicants to the DIB CS Program submit an application from
https://dibnet.dod.mil. Once a company has been verified, the
Framework Agreement is made available for review.
---------------------------------------------------------------------------
The program has experienced steady growth, with the annual number
of applications more than tripling since 2016 (80 total applications
received in 2016, 266 total applications received in 2022). It has also
seen a steady increase in the percentage of defense contractors who are
interested in participating but do not meet current eligibility
requirements. The percentage of applications received from ineligible
defense contractors has risen at an average rate of 5% per year since
2016; 10% of applications received in 2016 were from ineligible defense
contractors, while 45% of applicants in 2022 were ineligible. The
steady increase in DIB applicants indicates an increasing desire
amongst defense contractors to participate in a cyber threat
information sharing program.
In addition, the Department has actively engaged defense
associations, universities, and companies in the DIB, as well as
participated in many public forums discussing cyber threats and the way
forward. The overwhelming feedback was for the Department to facilitate
engagement with the broader community of defense contractors beyond
just the cleared defense community. In general, smaller defense
contractors have fewer resources to devote to cybersecurity, which may
provide a vector for adversaries to access information critical to
national security. In addition, the Department is working on providing
more tailored threat information to support the needs of a broader
community of defense contractors with varying cybersecurity
capabilities. The gap in eligibility in the current program, feedback
from interested but ineligible contractors, a vulnerable DoD supply
chain, and a pervasive cyber threat have prompted DoD to propose
revising the eligibility requirements of the DIB CS Program to allow
participation by non-cleared defense contractors.
The maximum number of defense contractors estimated to be subject
to mandatory cyber incident reporting under DFARS clause 252.204-7012
is 80,000. The presence of the clause in a contract does not establish
that covered defense information is shared. DoD is working on reporting
mechanisms to better assess contractors managing covered defense
information. The population of defense contractors in possession of
covered defense information and subject to mandatory incident reporting
requirements far exceeds the population of defense contractors
currently eligible to participate in the voluntary DIB CS Program. With
the changes to the eligibility criteria, an estimated additional 68,000
defense contractors will be eligible to participate in the voluntary
DIB CS Program. Based on prior participation statistics, it is
estimated that about 10% of the eligible contractors (12,000 + 68,000 =
80,000) will actually apply to join the voluntary DIB CS Program
(80,000 x 0.10 = 8,000).
Currently, the DIB CS Program has approximately 1,000 cleared
defense contractors participating in the program. Program participants
have access to technical exchange meetings, a collaborative web
platform (DIBNet-U), and threat information products and services
through the DoD Cyber Crime Center (DC3). DC3 implements the program's
operations by sharing cyber threat information and intelligence with
the DIB, and offering a variety of products, tools, services, and
events. DC3 serves as the single clearinghouse for unclassified
Mandatory Incident Reports (MIRs) and voluntary threat information
sharing reports.
Changes to Definitions
In addition to the program eligibility changes described above, DoD
is also finalizing the following changes.
[[Page 17744]]
Section 236.2 Definitions
1. Access to media--This definition is being removed as it is no
longer used in the rule text.
2. DIB CS Program participant--This definition has been revised to
align with the revised eligibility requirements set forth in this final
rule.
3. Government furnished information (GFI)--This definition was
revised to adopt the convention of referring to the DIB CS Program with
a capital `P'.
Other Finalized Changes
DoD is amending Sec. 236.4 (Mandatory cyber incident reporting
procedures), in response to public comments received about the burden
associated with medium assurance certificates. The amendment will
require contractors to obtain PIEE account in conjunction with
mandatory cyber incident reporting. This change will align the identity
proofing processes used by DoD for the majority of DIB companies and
will eliminate the cost associated with procuring medium assurance
certificates. DoD will continue to accept medium assurance certificates
to fulfil identity proofing requirements.
DoD is amending Sec. 236.5 (DoD's DIB CS program) in order to
align the program description with the revised eligibility
requirements. As a result, references to cleared defense contractors
have been replaced with contractors that own or operate a covered
contractor information system. Security clearance information is only
collected, when applicable, if a company elects and is eligible to
participate in classified information sharing. In addition, the
language stating participation is typically three to ten company-
designated points of contact (POC) has been removed, to avoid confusion
regarding the number of POCs, as some larger companies may wish to
nominate a larger number of POCs and smaller companies may wish to
nominate fewer.
DoD is amending Sec. 236.7 (DoD's DIB CS program requirements) to
remove the requirement that a company have an existing active facility
clearance (FCL) to at least the Secret level granted under 32 CFR part
117, National Industrial Security Program Operating Manual
(NISPOM),\15\ to be eligible to participate in the DIB CS Program. In
addition, references to cleared defense contractors have been replaced
with contractors that own or operate a covered contractor information
system.
---------------------------------------------------------------------------
\15\ https://www.ecfr.gov/current/title-32/subtitle-A/chapter-I/subchapter-D/part-117.
---------------------------------------------------------------------------
A foundational element of the activities described in Sec. 236.7
is the recognition that the information shared between DoD and DIB CS
Program participants pursuant to the DIB CS Program includes CUI,\16\
which requires protection. For additional information regarding the
Government's safeguarding of information received from contractors that
requires protection, see the Privacy Impact Assessment (PIA) for the
DIB Cybersecurity Activities located at: https://dodcio.defense.gov/Portals/0/Documents/DIB_PIA.pdf. The PIA provides detailed procedures
for handling personally identifiable information (PII), attributional
information about the strengths or vulnerabilities of specific covered
contractor information systems, information providing a perceived or
real competitive advantage on future procurement action, and contractor
information marked as proprietary or commercial or financial
information. In addition, personnel information is covered by Office of
the Secretary of Defense (OSD) System of Records Notice (SORN) DCIO 01
(https://dpcld.defense.gov/Portals/49/Documents/Privacy/SORNs/OSDJS/DCIO-01.pdf). No changes to the PIA or SORN are being made in
conjunction with this final rule.
---------------------------------------------------------------------------
\16\ https://www.archives.gov/cui.
---------------------------------------------------------------------------
Expected Impact of the Final Rule
Comments were received on the cost of a DoD-approved medium
assurance certificates and the accuracy of estimates relating to
familiarization costs and attending meetings. DoD is removing the
requirement for the DIB to have a DoD-approved medium assurance
certificate to report cyber incidents. The requirement is being
replaced with the requirement to register in PIEE which has established
procedures to perform digital identity proofing. The basis for the cost
estimate for a company to familiarize themselves with changes to this
rule and determine if they would like to apply to the DIB CS Program
does not include time for a company to perform an in-depth review of
preexisting contractually mandated requirements. The basis for the cost
estimate to participate in meetings uses the assumption a company sends
the equivalent of an Information Security Analyst with the mean wage
estimate published by the Bureau of Labor Statistics. If the company
elects to send more senior representatives the cost will be higher. The
economic analysis is being finalized without changes.
Costs
DoD believes the cost impact of the changes to this final rule is
not significant, as the changes primarily expand the availability of
the established DIB CS Program to additional defense contractors. The
newly eligible population of defense contractors may incur costs to
familiarize itself with the rule and those who elect to participate in
the program will incur costs related to program participation. The
Government will continue to incur costs related to operating the
program. The DIB CS Program conducts outreach activities to defense
contractors through press releases, participation in defense-oriented
conferences, speaking engagements, and through digital media. The
program will leverage pre-established channels to message changes to
the program and engage with the eligible population of defense
contractors. Based on the program growth experienced that during the
last phase of program expansion the program is forecasting annual
growth at just over 1% of the eligible population. At a growth rate of
1% per year it will take the program approximately 10 years to achieve
the estimated 10% participation rate of the eligible DIB.
Costs to DIB Participants
In order to join the DIB CS Program there is an initial labor
burden for a defense contractor to familiarize themselves with the rule
and subsequently apply to the program and provide POC information. In
total, if it takes each contractor 30 minutes to read and familiarize
him/herself with the rule, it will take contractors 4,000 hours to
familiarize themselves with the rule (8,000 participants x .5 = 4,000
hours). At an hourly wage of $108.92, the total cost incurred by
contractors for rule familiarization will amount to $217,840 ($108.92 x
.5 hours = $54.46 x 4,000 hours = $217,840). The hourly labor cost is
based on the mean wage estimate from the Bureau of Labor Statistics for
an Information Security Analysts, Occupational Employment and Wages,
May 2021 and is covered under information collection 0704-0490. This
hourly wage is adjusted upward by 100% to account for overhead and
benefits, which implies a value of $108.92 per hour.
The estimated annual burden for a company to apply to the program
or for a participating company to update POC information is $36.31,
with a total annual cost to all participants of $319,498.67 at peak
program participation. This calculation is based on 8,000 participants
submitting an average of one application per year and 10% of the
population (800 participants) submitting an update each year, with 20
minutes of labor per
[[Page 17745]]
submission, at a cost of $108.92 per hour ($108.92 x \1/3\ hours =
$36.31 x 8,800 events = $319,498.67).
There is an estimated annual burden projected at $1,089.20 for
defense contractors voluntarily sharing cyber threat information. This
is based on a defense contractor electing to submit an average of five
informational reports per year with two hours of labor per voluntary
submission, at a cost of $108.92 per hour ($108.92 x 2 hours = $217.84
x 5 reports = $1,089.20). It is estimated that 1% of the newly eligible
population will elect to join the DIB CS Program annually, which
currently has approximately 1,000 participants, with program growth
plateauing at 10% of the population by Year 9. The table below shows
the costs to industry to voluntarily sharing cyber threat information
over a 9-year period. If, in the first year of the program expanding
there are 980 participants and 800 new participants join the program,
there will be a total of 1,780 participants. Assuming each participant
responds five times, this totals 8,900 annual responses times $217.84
per response and will equal $1,938,776 in total annual cost to
participants, which is covered in information collection 0704-0489.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Year 7 Year 8 Year 9
--------------------------------------------------------------------------------------------------------------------------------------------------------
DIB CS Participants................ 1,780 2,580 3,380 4,180 4,980 5,780 6,580 7,380 8,000
Voluntary Reports Received......... 8,900 12,900 16,900 20,900 24,900 28,900 32,900 36,900 40,000
Annual Cost........................ $1,938,776 $2,810,136 $3,681,496 $4,552,856 $5,424,216 $6,295,576 $7,166,936 $8,038,296 $8,713,600
--------------------------------------------------------------------------------------------------------------------------------------------------------
In addition, DIB CS Program participants may choose to attend
meetings in conjunction with the DIB CS Program. All new participants
are invited to attend an orientation session and all existing
participants are invited to attend meetings on a quarterly basis. If a
defense contractor chooses to send an employee to a day-long meeting
each quarter, the defense contractor would incur a cost of $3,485.44
($108.92 x 8 hours = $871.36 x 4 meetings = $3,485.44).
Costs to the Government
The DoD has identified general areas of costs related to the
operation of this program. First, DoD incurs costs to implement this
program operationally by responding to inquiries, processing
application submissions and collecting, sharing, and managing POC
information for program administration and management purposes. Second,
DoD incurs costs to collect, analyze, and disseminate threat
information.
DoD responds to an average of 2,000 questions each year and these
responses are estimated to take 20 minutes per response. If it takes 20
minutes to respond to each question, it will take 667 hours to respond
to questions. At an hourly wage of $51.16,\17\ it will cost the DoD
$34,107 dollars to respond to questions ($51.16 x (.333 x 2,000) =
$34,107). Costs to the government are incurred when a company applies
to the DIB CS Program to validate and store POC information and to
perform follow-up activities with a company when the information is
outdated. The processing time for these activities is estimated to be
one hour per company.
---------------------------------------------------------------------------
\17\ This is based upon the 2022 General Schedule (GS) pay scale
for a GS-9 Step 5 and is adjusted upward by 100% to adjust for
overhead and benefits.
---------------------------------------------------------------------------
If, by Year 9, 8,000 companies participate in the program and 10%
of the companies update information with the program annually the labor
cost to the government is expected to be $72,647.20 = (620 + 800 x
$51.16).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Year 7 Year 8 Year 9
--------------------------------------------------------------------------------------------------------------------------------------------------------
DIB CS Participants................ 1780 2580 3380 4180 4980 5780 6580 7380 8000
New Applications................... 780 800 800 800 800 800 800 800 620
Updates............................ 178 258 338 418 498 578 658 738 800
Annual Cost........................ $49,011.28 $54,127.28 $58,220.08 $62,312.88 $66,405.68 $70,498.48 $74,591.28 $78,684.08 $72,647.20
--------------------------------------------------------------------------------------------------------------------------------------------------------
In addition, there is a cost incurred by the DoD to receive cyber
threat information submitted by defense contractors to have it analyzed
by cyber threat experts at DC3. By year 9 of the expanded program, it
is estimated DC3 will receive 40,000 responses per year, based on the
estimate that each participating company elects to submit 5
informational reports (8,000 participants x 5 reports). Each product
takes approximately two hours to create and incurs an hourly labor cost
of $51.16 per hour. This equals $102.32 (2 hours x 51.16) per response.
The labor cost to the government is forecasted to be $4,092,800
annually after 9 years of growth. In addition to processing cyber
threat information, the DoD incurs operational and maintenance costs
for the system receiving and storing cyber threat information. This
system costs the DoD $5,100,000 annually to maintain (covered under
information collection 0704-0489).
Benefits
This program benefits the Department by increasing the overall
security of the DIB through increasing awareness and improving
assessments of cyber incidents that may affect mission critical
capabilities and services. It continues to be an important element of
the Department's comprehensive effort to defend DoD information,
protect U.S. national interests against cyber-attacks, and support
military operations and contingency plans worldwide. Once a
[[Page 17746]]
defense contractor joins the program, they are encouraged to share
information, including cyber threat indicators, that they believe may
be of value in alerting the Government and others, as appropriate, of
adversary activity to enable the development of mitigation strategies
and proactively counter threat actor activity. DC3 develops written
products that include analysis of the threat, mitigations, and
indicators of adversary activity. Even cyber incidents that are not
compromises of covered defense information may be of interest to DoD
for situational awareness purposes. This information is disseminated as
anonymized threat products that are shared with authorized DoD
personnel, other Federal agencies, and company-designated POCs
participating in the DIB CS Program. With the revisions to the
eligibility criteria, the Department will be able to reduce the impact
of cyber threat activity on DIB networks and information systems and,
in turn, preserve its technological advantage and protect DoD
information and warfighting capabilities. The mitigation of the cyber
threat targeting defense contractors reinforces the nation's national
security and economic vitality.
For DIB participants, this program provides unique cyber threat
information and technical assistance through analyst-to-analyst
exchanges, mitigation and remediation strategies, and cybersecurity
best practices in a collaborative environment. The shared unclassified
and classified cyber threat information is used to bolster a company's
cybersecurity posture and mitigate the growing cyber threat. The
program's tailored support for small, mid-size, and large companies
with varying cybersecurity maturity levels is an asset for
participants. The program remains a key element of DoD's cybersecurity
efforts by providing services to help protect DIB CS Program
participants and the sensitive DoD information they handle.
Regulatory Compliance Analysis
A. Executive Order 12866, ``Regulatory Planning and Review'' and
Executive Order 13563, ``Improving Regulation and Regulatory Review''
Executive Order 12866 directs agencies to assess all costs,
benefits, and available regulatory alternatives and, if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health, safety
effects, distributive impacts, and equity). Executive Order 13563
emphasizes the importance of quantifying both costs and benefits, of
reducing costs, of harmonizing rules, and of promoting flexibility.
This final rule has been designated ``significant,'' under Executive
Order 12866.
B. Congressional Review Act (5 U.S.C. 801 et seq.)
Pursuant to the Congressional Review Act, this final rule has not
been designated a major rule, as defined by 5 U.S.C. 804(2). This final
rule will not have an economic effect above the $100 million threshold
defined in 5 U.S.C. 804(2) or spur a major increase in costs or prices
for consumers, individual industries, Federal, State, or local
government agencies, or geographic regions; or have 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.
C. Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
The Office of the DoD Chief Information Officer certified that this
final rule 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. This final rule will
have a significant positive impact on small entities that will become
eligible to participate in and receive benefits through the DIB CS
Program. For DIB participants, this program provides cyber threat
information and technical assistance through analyst-to-analyst
exchanges, mitigation and remediation strategies, and cybersecurity
best practices in a collaborative environment. The shared threat
information is used to bolster a company's cybersecurity posture and
mitigate the growing cyber threat. The program's tailored support for
small, mid-size, and large companies with varying cybersecurity
maturity levels is an asset for participants, and in fact can avoid
expending resources to obtain threat intelligence from private sources
if the company elects to participate in services offered by the DoD
that directly integrate threat intelligence.
Participation in the DIB CS Program is voluntary. Program
application and participation costs are described in the cost analysis
section of this final rule. These costs are voluntarily incurred and
associated with the labor and resource costs to complete the required
program paperwork, including execution of the Framework Agreement, to
submit information to the Government, and to receive information from
the Government. The costs associated with applying to the DIB CS
Program are associated exclusively with labor costs and estimated to be
$18.15 per company. None of the program's offering come at an
additional fee to DIB participants and additional costs related to
participation are estimated based on the time investment (labor hours)
required to obtain the benefits as described in the cost analysis of
this preamble. Therefore, the Regulatory Flexibility Act, as amended,
does not require us to prepare a regulatory flexibility analysis.
D. Sec. 202, Public Law 104-4, ``Unfunded Mandates Reform Act''
Section 202 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1532) requires agencies to assess anticipated costs and benefits before
issuing any rule whose mandates require spending in any one year of
$100 million in 1995 dollars, updated annually for inflation. When the
Federal Government passes legislation requiring a State, local, or
tribal government to perform certain actions or offer certain programs
but does not include any funds for the actions or programs in the law,
an unfunded mandate is the result. This final rule will not mandate any
requirements for State, local, or tribal governments, and will not
mandate private sector incurred costs above the $100 million threshold
defined in 2 U.S.C. 1532.
E. Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter
35)
Section 236.2 of this rule contains information collection
requirements. As required by the Paperwork Reduction Act (44 U.S.C.
Chapter 35), DoD submitted information collection requests to the
Office of Management and Budget for review and approval. In response to
DoD's invitation in the proposed rule to comment on any potential
paperwork burden associated with this rule, there were no comments from
the public. This final rule contains the following information
collection requirements under the Paperwork Reduction Act (PRA) of
1995.
OMB Control Number 0704-0489, ``DoD's Defense Industrial
Base (DIB) Cybersecurity (CS) Activities Cyber Incident Reporting,''
OMB Control Number 0704-0490, ``DoD's Defense Industrial
Base (DIB) Cybersecurity (CS) Points of Contact (POC) Information.''
The System of Records Notice associated with these information
collections (DCIO 01, ``Defense Industrial Base (DIB) Cybersecurity
(CS) Activities Records'') published on May
[[Page 17747]]
17, 2019. The Federal Register citation for the SORN is 84 FR 22477.
The Privacy Impact Assessment for the Defense Industrial Base (DIB)
Cybersecurity (CS) Activities is posted at: https://dodcio.defense.gov/Portals/0/Documents/DIB_PIA.pdf.
F. Executive Order 13132, ``Federalism''
Executive Order 13132 establishes certain requirements that an
agency must meet when it promulgates a final rule that imposes
substantial direct requirement costs on 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.
G. Executive Order 13175, ``Consultation and Coordination With Indian
Tribal Governments''
Executive Order 13175 establishes certain requirements that an
agency must meet when it promulgates a final rule that imposes
substantial direct compliance costs on one or more Indian tribes,
preempts tribal law, or effects the distribution of power and
responsibilities between the Federal Government and Indian tribes. This
final rule will not have a substantial effect on Indian tribal
governments.
List of Subjects in 32 CFR Part 236
Government contracts, Security measures.
Accordingly, DoD amends 32 CFR part 236 as follows:
PART 236--DEPARTMENT OF DEFENSE (DoD) DEFENSE INDUSTRIAL BASE (DIB)
CYBERSECURITY (CS) ACTIVITIES
0
1. The authority citation for 32 CFR part 236 is revised to read as
follows:
Authority: 10 U.S.C. 391, 393, and 2224; 44 U.S.C. 3506 and
3554; 50 U.S.C. 3330.
0
2. Revise the heading of 32 CFR part 236 to read as set forth above.
0
3. Revise and republish Sec. 236.1 to read as follows:
Sec. 236.1 Purpose.
Cyber threats to contractor 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. This part requires all DoD contractors to rapidly report
cyber incidents involving covered defense information on their covered
contractor information systems or cyber incidents affecting the
contractor's ability to provide operationally critical support. The
part also permits eligible DoD contractors to participate in the
voluntary DIB CS Program to share cyber threat information and
cybersecurity best practices with DIB CS Program participants. The DIB
CS Program enhances and supplements DIB CS Program participants'
capabilities to safeguard DoD information that resides on, or transits,
DIB unclassified information systems.
0
4. Amend Sec. 236.2 by:
0
a. Removing the definition of ``Access to media''.
0
b. Removing the definition of ``DIB participant'' and adding the
definition ``DIB CS Program participant'' in its place.
0
c. Removing the words ``DIB CS program'' in the definition of
``Government furnished information (GFI)'' and adding in their place
the words ``DIB CS Program''.
The addition reads as follows:
Sec. 236.2 Definitions.
* * * * *
DIB CS Program participant means a contractor that has met all of
the eligibility requirements to participate in the voluntary DIB CS
Program as set forth in this part (see Sec. 236.7).
* * * * *
Sec. 236.3 [Amended]
0
5. Amend Sec. 236.3 by:
0
a. Removing the word ``program'' and adding in its place the words
``Program participants'' in paragraph (b)(1).
0
b. Removing the words ``DIB CS program'' and adding in their place the
words ``DIB CS Program'' in paragraph (c).
0
6. Amend Sec. 236.4 by:
0
a. Removing the text ``http'' and adding in its place the text
``https'' in paragraphs (b)(2), (c), and (d).
0
b. Revising paragraphs (e) through (g).
0
c. Removing the words ``paragraph (e)'' and adding in their place the
words ``paragraph (i)'' in paragraph (k).
0
d. Revising paragraph (m)(4).
0
e. Adding a heading for paragraph (o).
0
f. Revising paragraph (p).
The revisions and additions read as follows:
Sec. 236.4 Mandatory cyber incident reporting procedures.
* * * * *
(e) Procurement Integrated Enterprise Environment (PIEE) account
requirement. To report cyber incidents in accordance with this section,
the contractor or subcontractor shall have a PIEE account to access
https://dibnet.dod.mil. For information on obtaining a PIEE account,
see https://piee.eb.mil/.
(f) Third-party service provider support. If the contractor
utilizes a third-party service provider (SP) for information system
security services, the contractor may authorize the SP to report cyber
incidents on behalf of the contractor.
(g) Voluntary information sharing. Contractors are encouraged to
report information to promote sharing of cyber threat indicators that
they believe are valuable in alerting the Government and others, as
appropriate, in order to better counter threat actor activity. Cyber
incidents that are not compromises of covered defense information or do
not adversely affect the contractor's ability to perform operationally
critical support may be of interest to the DIB and DoD for situational
awareness purposes.
* * * * *
(m) * * *
(4) For national security purposes, including cyber situational
awareness and defense purposes (including sharing non-attributional
cyber threat information with defense contractors participating in the
DIB CS Program authorized by this part); or
* * * * *
(o) Contractor activities. * * *
(p) 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).
The Government will notify the non-Government source or submitter
(e.g., contractor or DIB CS Program participant) of the information in
accordance with the procedures in 32 CFR 286.10.
* * * * *
0
7. Revise and republish Sec. 236.5 to read as follows:
Sec. 236.5 DoD's DIB CS Program.
(a) All defense contractors that meet the requirements set forth in
Sec. 236.7 are eligible to join the DIB CS Program as a DIB CS Program
participant. Defense contractors meeting the additional eligibility
requirements in Sec. 236.7 can elect to access and receive classified
information electronically.
(b) Under the voluntary activities of the DIB CS Program, the
Government and each DIB CS Program participant will execute a
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, cybersecurity information.
(c) Each such FA between the Government and a DIB CS Program
participant must comply with and
[[Page 17748]]
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 CS Program participants.
(d) DoD's DIB CS Program Management Office is the overall point of
contact for the program. The DC3 managed DoD-DIB Collaborative
Information Sharing Environment (DCISE) is the operational focal point
for cyber threat information sharing and incident reporting under the
DIB CS Program.
(e) The Government will maintain a website or other internet-based
capability to provide potential DIB CS Program participants with
information about eligibility and participation in the program, to
enable online application or registration for participation, and to
support the execution of necessary agreements with the Government.
(f) As participants of the DIB CS Program, defense contractors are
encouraged to share cyber threat indicators and information that they
believe are valuable in alerting the Government and other DIB CS
Program participants to better counter threat actor activity. Cyber
activity that is not covered under Sec. 236.4 may be of interest to
DIB CS Program participants and DoD.
(g) The Government shall share GFI DIB CS Program participant or
designated SP in accordance with this part.
(h) Prior to receiving GFI, each DIB CS Program participant shall
provide the requisite points of contact information, to include U.S.
citizenship and security clearance information, as applicable, for the
designated personnel within their company in order to facilitate the
DoD-DIB interaction in the DIB CS 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 CS Program
participant for this program.
(i) GFI will be issued via both unclassified and classified means.
DIB CS Program participants handling and safeguarding of classified
information shall be in compliance with 32 CFR part 117. The Government
shall specify transmission and distribution procedures for all GFI, and
shall inform DIB CS Program participants of any revisions to previously
specified transmission or procedures.
(j) Except as authorized in this part or in writing by the
Government, DIB CS Program participants may:
(1) Use GFI only on U.S. based covered contractor information
systems, or U.S. based networks or information systems used to provide
operationally critical support; and
(2) Share GFI only within their company or organization, on a need-
to-know basis, with distribution restricted to U.S. citizens.
(k) In individual cases DIB CS Program participants may request,
and the Government may authorize, disclosure and use of GFI under
applicable terms and conditions when the DIB CS Program participant can
demonstrate that appropriate information handling and protection
mechanisms are in place and has determined that it requires the
ability:
(1) To share the GFI with a non-U.S. citizen; or
(2) To use the GFI on a non-U.S. based covered contractor
information system; or
(3) To use the GFI on a non-U.S. based network or information
system in order to better protect a contractor's ability to provide
operationally critical support.
(l) DIB CS Program 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).
(m) DIB CS Program 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.
(n) If the DIB CS Program participant utilizes a SP for information
system security services, the DIB CS Program participant may share GFI
with that SP under the following conditions and as authorized in
writing by the Government:
(1) The DIB CS Program 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 CS Program
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 CS Program 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 CS Program participant) under which the SP is subject
to all applicable requirements of this part and of any supplemental
terms and conditions in the DIB CS Program participant's FA with the
Government, and which authorizes the SP to use the GFI only as
authorized by the Government.
(o) The DIB CS Program participant may not sell, lease, license, or
otherwise incorporate the GFI into its products or services, except
that this does not prohibit a DIB CS Program participant from being
appropriately designated an SP in accordance with paragraph (n) of this
section.
0
8. Revise and republish Sec. 236.6 to read as follows:
Sec. 236.6 General provisions of DoD's DIB CS Program.
(a) Confidentiality of information that is exchanged under the DIB
CS Program will be protected to the maximum extent authorized by law,
regulation, and policy. DoD and DIB CS Program participants each bear
responsibility for their own actions under the voluntary DIB CS
Program.
(b) All DIB CS Program participants may participate in the
Department of Homeland Security's Enhanced Cybersecurity Services (ECS)
program (https://www.cisa.gov/resources-tools/programs/enhanced-cybersecurity-services-ecs).
(c) Participation in the voluntary DIB CS Program does not obligate
the DIB CS Program participant to utilize the GFI in, or otherwise to
implement any changes to, its information systems. Any action taken by
the DIB CS Program participant based on the GFI or other participation
in this program is taken on the DIB CS Program participant's own
volition and at its own risk and expense.
(d) A DIB CS Program participant's participation in the voluntary
DIB CS 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 CS Program participant, its
information systems, or its products or services.
(e) The DIB CS Program participant and the Government may each
unilaterally limit or discontinue participation in the voluntary DIB CS
Program at any time. Termination shall
[[Page 17749]]
not relieve the DIB CS Program 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.
(f) Upon termination of the FA, change of status as a defense
contractor, and/or change of Facility Security Clearance (FCL) status
below Secret, GFI must be returned to the Government or destroyed
pursuant to direction of, and at the discretion of, the Government.
(g) Participation in these activities does not abrogate the
Government's, or the DIB CS Program 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. However, participation in the voluntary
activities of the DIB CS Program does not eliminate the requirement for
DIB CS Program participants to report cyber incidents in accordance
with Sec. 236.4.
0
9. Revise Sec. 236.7 to read as follows:
Sec. 236.7 DoD's DIB CS Program requirements.
(a) To participate in the DIB CS Program, a contractor must own or
operate a covered contractor information system and shall execute the
standardized FA with the Government (available during the application
process), which implements the requirements set forth in Sec. Sec.
236.5 and 236.6.
(b) In order for DIB CS Program participants to receive classified
cyber threat information electronically, the company must be a cleared
defense contractor and must:
(1) Have an existing active facility clearance level (FCL) to at
least the Secret level in accordance with 32 CFR part 117;
(2) Have or acquire a Communication Security (COMSEC) account in
accordance with 32 CFR part 117, which provides procedures and
requirements for COMSEC activities;
(3) Have or acquire approved safeguarding for at least Secret
information, and continue to qualify under 32 CFR part 117 for
retention of its FCL and approved safeguarding; and
(4) Obtain access to DoD's secure voice and data transmission
systems supporting the voluntary DIB CS Program.
Dated: March 1, 2024.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2024-04752 Filed 3-11-24; 8:45 am]
BILLING CODE 6001-FR-P