1 September 2006
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[Federal Register: September 1, 2006 (Volume 71, Number 170)]
[Rules and Regulations]
[Page 52261-52277]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01se06-14]
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Part IV
Department of Homeland Security
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6 CFR Part 29
Procedures for Handling Critical Infrastructure Information; Final Rule
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DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 29
RIN 1601-AA14
Procedures for Handling Critical Infrastructure Information
AGENCY: Office of the Secretary, DHS.
ACTION: Final rule.
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SUMMARY: This final rule amends the February 2004 Interim Rule
establishing uniform procedures to implement the Critical
Infrastructure Information Act of 2002. These procedures govern the
receipt, validation, handling, storage, marking, and use of critical
infrastructure information voluntarily submitted to the Department of
Homeland Security. The procedures are applicable to all Federal, State,
local, and tribal government agencies and contractors that have access
to, handle, use, or store critical infrastructure information that
enjoys protection under the Critical Infrastructure Information Act of
2002.
DATES: Effective Date: This final rule is effective September 1, 2006.
FOR FURTHER INFORMATION CONTACT: Laura Kimberly, Directorate for
Preparedness (202) 360-3023, not a toll-free call.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction
II. Major Issues in the February 2004 Interim Rule
A. Indirect Submissions of PCII
B. Definitional Issues Affecting Qualifying Information
(1) In the public domain
(2) Voluntary or voluntarily
C. Protected and Non-Protected Information
(1) Portion Marking
(2) Definition of PCII
(3) Source of the Information
(4) Interplay of Sections 214(a)(1)(C) and 214(c) of the CII Act
(5) Good Faith Submission of CII
(6) Communications with the Submitting Person or Entity
D. Loss of Protected Status
E. Sharing of PCII with Foreign Governments
F. Emergency Disclosure of PCII
III. Other Changes to the Rule by Section
A. Purpose and Scope: Section 29.1
B. Definitions: Section 29.2
C. Effect of the Provisions: Section 29.3
D. PCII Program Administration: Section 29.4
E. Requirements for Protection: Section 29.5
(1) Express Statement on the Information
(2) Oral Statements
(3) Certification Statement
(4) Submission to the Program
F. Acknowledgment of Receipt, Validation, and Marking: Section
29.6
(1) Presumption of Protection
(2) Marking
(3) Acknowledgement
(4) Determinations of Non-Protected Status
(5) Changes from Protected to Non-Protected Status
G. Safeguarding of PCII: Section 29.7
H. Disclosure of PCII: Section 29.8
I. Investigation and Reporting of Violation of PCII Procedures:
Section 29.9
IV. Revision of Part 29
V. Consideration of Various Laws and Executive Orders
A. Administrative Procedure Act
B. Executive Order 12866 Assessment
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act of 1995
E. Small Business Regulatory Enforcement Act of 1996
F. Executive Order 13132--Federalism
G. Executive Order 12988--Civil Justice Reform
H. Paperwork Reduction Act of 1995
I. Environmental Analysis
PART 29--PROTECTED CRITICAL INFRASTRUCTURE INFORMATION
Table of Abbreviations
In this document, the following abbreviations are commonly used:
APA--Administrative Procedure Act
CII--Critical Infrastructure Information
CII Act--Critical Infrastructure Information Act of 2002
DHS--Department of Homeland Security
FOIA--Freedom of Information Act
HSA--Homeland Security Act of 2002
ISAO--Information Sharing and Analysis Organization
NPRM--Notice of Proposed Rulemaking
PCII--Protected Critical Infrastructure Information
PCIIMS--Protected Critical Infrastructure Information Management
System
I. Introduction
The Critical Infrastructure Information Act of 2002 (CII Act) \1\
is a crucial tool in facilitating the Department of Homeland Security's
(DHS) analysis of infrastructure vulnerability and related information
for planning, preparedness, warnings and other purposes. The CII Act
enables DHS to collaborate effectively to protect America's critical
infrastructure, eighty-five percent of which is in the private sector's
hands. The CII Act authorized DHS to accept information relating to
critical infrastructure from the public, owners and operators of
critical infrastructure, and State, local, and tribal governmental
entities, while limiting public disclosure of that sensitive
information under the Freedom of Information Act, 5 U.S.C. 552 (FOIA),
and other laws, rules, and processes.
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\1\ Homeland Security Act of 2002 (HSA) Pub. L. 108-275, tit.
II, subtit. B, sec. 211, 116 Stat. 2135, 2150 (Nov. 25, 2002) (6
U.S.C. 131-134).
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In responding to comments and drafting this final rule, DHS has
been careful to further the purposes of the Protected Critical
Infrastructure Information (PCII) Program as an effective anti-
terrorism tool while also carefully observing its limitations. For the
PCII Program to be successful, DHS believes that the rule must be as
clear and certain as possible, yet flexible to respond to changing
conditions. Among other measures, this final rule:
Clarifies that a submittal validated as PCII will not
thereafter lose its protected status except under a very narrow set of
circumstances (section 29.6(g));
Requires that PCII will be shared only for the Homeland
Security purposes specified in the statute and in no event for other
collateral regulatory purposes (section 29.3(b));
Provides the PCII Program Manager with the flexibility to
designate certain types of infrastructure information as presumptively
valid PCII in order to accelerate the validation process and provide
greater certainty to potential submitters (section 29.6(f));
Provides that submissions not validated as PCII be
returned to the submitter or destroyed (section 29.6(e)(2)(ii));
Provides for submission of CII for protection through DHS
field representatives (section 29.5(a)(1));
Identifies procedures for indirect submissions to DHS
through other Federal agencies (sections 29.1(f), 29.5(a)(1), 29.6(b),
(d)); and
Simplifies the information submission process (section
29.6).
On April 15, 2003, DHS published a notice of proposed rulemaking
(NPRM) regarding the establishment of the PCII Program. 68 FR 18523
(Apr. 15, 2003). Written comments were accepted through June 16, 2003.
DHS received 117 sets of comments.
DHS subsequently published an interim rule on February 20, 2004 at
69 FR 8074. In the February 2004 Interim Rule, DHS responded to the
public comments received in response to the initial NPRM and invited
additional public comments. DHS received 32 sets of responsive comments
from various entities, including trade organizations writing on behalf
of their membership, private sector and public interest entities, one
State government agency, and individual commenters. The comments may be
reviewed at http://www.dhs.gov/dhspublic/interapp/editorial/editorial_0438.xml
.
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II. Major Issues in the February 2004 Interim Rule
DHS has resolved several major issues raised in public comments on
the February 2004 Interim Rule. The following sections identify
specific issues raised by commenters and describe how these issues have
been resolved.
A. Indirect Submissions of PCII
The preamble to the February 2004 Interim Rule discussed ``indirect
submission'' of CII. Section 29.2 of the NPRM \2\ defined ``submission
of CII to DHS,'' to include ``either directly or indirectly via another
Federal agency, which, upon receipt of the CII will forward it to
DHS.'' In section 29.5(b)(1), the proposed rule provided that CII would
receive the protections of the CII Act only when the information was
submitted either ``directly to the IAIP [Preparedness] Directorate or
indirectly to the DHS IAIP Directorate by submitting it to any Federal
agency which then * * * forwards the information to the DHS IAIP
Directorate.'' Other provisions of the proposed rule specifically
required submittals to be made to the PCII Program Manager, either
directly or indirectly.
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\2\ For ease of reference, all references in this final rule to
sections or paragraphs without full citation refer to sections and
paragraphs of promulgated 6 CFR part 29.
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DHS responded to the public comments on indirect submission
received in the February 2004 Interim Final Rule. The preamble stated
that, in light of substantial concern about allowing indirect
submissions, DHS had removed references to indirect submissions from
the rule and made clear that submissions must be made to the PCII
Program Manager or the PCII Program Manager's designees. At the same
time, DHS noted that it had received comments voicing support for
indirect submissions. These comments favored the NPRM original intent,
which was to facilitate information sharing with the Federal government
through established relationships between owners of the nation's
critical infrastructure and those Federal agencies that are sector
leaders for particular infrastructure. Accordingly, after the PCII
Program had become operational, and pending further analysis, the final
rule might allow for indirect submissions. The February 2004 Interim
Rule invited additional public comment.
Twenty additional sets of comments on this subject were received.
Nine commenters opposed allowing indirect submissions, citing such
considerations as the restrictions imposed on the use of PCII, concerns
about the protection of submitted CII within agencies other than DHS,
the potential for confusion as to what other agencies may do with
information in their possession, and the risk of an appearance that
PCII had been misused. Six other commenters considered indirect
submissions problematic and believed that permitting such submissions
would require additional clarification or a system of checks and
balances. On the other hand, five organizations warned that not
allowing indirect submissions would run contrary to their normal
information flow with Federal agencies other than DHS.
Upon considering these comments, DHS has concluded that certain
Federal personnel outside the Program Manager's Office at DHS
(``Program Office''), including certain DHS field representatives and
certain personnel in other federal agencies, should be permitted to
receive and forward CII to the Program Manager, but that (absent a
categorical inclusion, discussed below at section III.F.) only the PCII
Program Office within DHS will be authorized to make the decision as to
whether to validate a submission as PCII. The PCII Program Manager will
authorize personnel in Federal governmental entities other than the
PCII Program Office to accept a submission on behalf of the Program
Office, but only when such personnel are trained to ensure compliance
with the requirements of this final rule. The PCII Program Manager will
normally take this step only when the particular governmental entity:
(1) Has appointed a PCII Officer; (2) has the necessary staff, who are
trained in PCII procedures; (3) has implemented measures to comply with
this final rule; and (4) has agreed that the PCII Program Office may at
any time verify that agency's compliance with the Final Rule and other
program requirements. See section 29.5. Note that this final rule does
not restrict the authority of the Secretary or the PCII Program Manager
to designate officials to receive CII or take other actions in exigent
circumstances.
B. Definitional Issues Affecting Qualifying Information
According to section 214(a)(1) of the CII Act (6 U.S.C. 133(a)(1)),
``critical infrastructure information'' that is ``voluntarily
submitted'' to a ``covered Federal agency'' (i.e., DHS) for its use for
the specified purposes, when accompanied by an ``express statement,''
qualifies for CII Act protections. Section 212(3) of the CII Act (6
U.S.C. 131(3)) defines ``critical infrastructure information'' to mean,
in pertinent part, ``information not customarily in the public
domain,'' and section 212(7) of the CII Act (6 U.S.C. 131(7)) defines
``voluntary.'' In the final rule, changes have been made to two
definitions that are relevant to these statutory provisions, and
corollary definitions have been added.
(1) In the Public Domain
In the preamble to the February 2004 Interim Rule, DHS declined to
interpret further the meaning of ``information not customarily in the
public domain.'' Three commenters on the February 2004 Interim Rule
urged that this phrase be defined. In response, in section 29.2(d), DHS
has defined ``in the public domain'' in part as ``information lawfully,
properly and regularly disclosed generally or broadly to the public.''
This definition draws in part on section 214(c) of the CII Act (6
U.S.C. 133(c)), which stipulates that nothing in section 214 constrains
the collection of critical infrastructure information ``including any
information lawfully and properly disclosed generally or broadly to the
public * * *.'' The new definition further identifies certain types of
information that are considered not to be in the public domain--
specifically, ``information regarding systems, facilities, or
operational security, or that is proprietary, business sensitive, or
which might be used to identify a submitting person or entity.''
(2) Voluntary or Voluntarily
The definition of ``voluntary'' in section 29.2 of this rule
implements section 212(7)(A) of the CII Act (6 U.S.C. 131(7)(A)), which
provides that a submittal of CII is not ``voluntary'' if such
information is provided pursuant to the exercise of legal authority by
DHS (the ``covered agency'') to compel access to or submission of the
information. Four commenters argued for a broader disqualification of
information submitted to other Federal agencies pursuant to such
agencies' exercise of their legal authority. The language of sections
212(2) and 212(7)(A) of the CII Act (6 U.S.C. 131(2) and 131(7)(A)) do
not support such a reading and DHS has not adopted it.
Whether information provided to the PCII Program manager is
``voluntarily submitted'' is to be determined at the time CII is
submitted. The terms ``submitted'' and ``relied upon'' in section
212(7)(B)(ii) (6 U.S.C. 131(7)(B)(ii)) are both retrospective in
nature. Both employ the past tense and both apply to actions before the
date that information is submitted to the PCII
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Program Manager. As discussed below in section III, the provision in
section 29.6(f) of the February 2004 Interim Rule allowing a change of
status from ``Protected'' to ``non-Protected'' based on a subsequent
requirement that the information be submitted to DHS has been
eliminated. This does not mean that DHS could not obtain related CII
available under other DHS legal authority later in time. It does mean,
however, that the specific documents voluntarily submitted as PCII will
not be publicly released. See section 214(c) of the CII Act (6 U.S.C.
133(c)).
Section 212(7)(B)(ii) of the CII Act (6 U.S.C. 131(7)(B)(ii)),
excludes from the definition of ``voluntary,'' information or
statements ``submitted or relied upon as a basis for making licensing
or permitting determinations, or during regulatory proceedings.''
Neither the term ``licensing or permitting determinations'' nor
``regulatory proceedings'' is defined in the CII Act, and the CII Act
does not state explicitly to whom the information or statements must
have been submitted or which agency relied upon them. One commenter
urged greater precision in the definition of ``voluntary,'' and many
commenters expressed concern over the potential impact of the PCII
Program in a ``regulatory'' context.
DHS agrees that the terms should be defined with greater precision.
It is clear throughout the statute that the terms ``voluntary'' and
``voluntarily'' refer only to submissions intended to reach DHS. See
section 212(2) of the CII Act (6 U.S.C. 131(2)) (``covered Federal
Agency'' means the Department of Homeland Security); sections
212(7)(A), and 214(a)(1) of the CII Act (6 U.S.C. 131(7)(A),
133(a)(1)). Section 212(7)(B)(ii) of the CII Act (6 U.S.C.
131(7)(B)(ii)), incorporates the concept of ``voluntary submissions,''
which, by its definition, involves only submission to DHS. Subsection
212(7)(b)(ii) limits only the scope of a voluntary submission to DHS.
Thus, it is reasonable and appropriate to interpret the terms
``licensing or permitting determinations'' and ``regulatory
proceedings'' in section 212(7)(B)(ii) as referring to such activities
within DHS and DHS has done so. This is fully consistent with other
provisions of the CII Act (sections 212(c) and 212(d)). Any broader
interpretation would be inconsistent with Congress' purpose in creating
the Act and impossible to administer effectively. Indeed, it is
difficult to imagine how DHS could feasibly determine if and when any
``information or statements'' in CII had been previously submitted to
or relied upon by any Federal agency other than DHS or any State, local
or tribal entity in any public or private proceeding throughout time.
Further, the definition has been altered to reflect that
submissions may be accepted from a ``single state or local governmental
entity; or a private entity or person; or by an ISAO acting on behalf
of its members or otherwise'' to address confusion expressed by
potential submitters based on unnecessarily narrow constructions of the
definition of a submitter.
C. Protected and Non-Protected Information
Several issues have arisen as to what portions or aspects of
submitted information should enjoy the protections of the CII Act, and
under which circumstances information should enjoy protection.
(1) Portion Marking
The preamble to the February 2004 Interim Rule reported that
although six public comments advocated a requirement for marking those
portions of submitted information that are entitled to protection under
the CII Act, DHS had concluded that ``portion marking'' should not be
required. One commenter on the February 2004 Interim Rule contested
this position. DHS has considered these comments but has not altered
its conclusion. Accordingly, no portion marking will be required.
(2) Definition of PCII
The CII Act defines CII in section 212(3) (6 U.S.C. 131(3)). DHS
believes that any information, statements or other material reasonably
necessary to explain the CII, put the CII in context, or describe the
importance or use of the CII are appropriately within the scope of the
protections intended by the CII Act. Accordingly, the definition of
``Protected Critical Infrastructure Information,'' or ``PCII,'' in
section 29.2(g) has been modified to reflect this clarification.
(3) Source of the Information
The definition of ``Protected Critical Infrastructure
Information,'' or ``PCII'' in section 29.2 of the February 2004 Interim
Rule provides that the ``identity of the submitting person or entity''
enjoys the protections of the CII Act in parity with the information
submitted. Two comments expressed concern about the ``anonymity'' of
those on whose behalf an Information Sharing and Analysis Organization
(ISAO) might submit CII. DHS recognizes that information may be
submitted on behalf of others by an ISAO or trade association. DHS
agrees and section 29.2 has been amended to clarify that the Act's
protections extend to the identities of those persons or entities on
whose behalf the information was submitted and to any other information
that could be used to discover such identities. Section 29.8(e),
relating to disclosure of information to appropriate entities or to the
general public, has been conformed.
(4) Interplay of Sections 214(a)(1)(C) and 214(c) of the CII Act
Questions have also arisen regarding the meaning of section
214(a)(1)(C) of the CII Act (6 U.S.C. 133(a)(1)(C)): PCII ``shall not,
without written consent of the person or entity submitting such
information, be used directly * * * in any civil litigation * * * if
such information is submitted [to DHS] in good faith.'' The issue is
whether information in the hands of submitters will, by virtue of
voluntary submission to DHS under this provision, be unavailable for
use in civil litigation. When CII is submitted and validated for
protection under the Act, the information and documents provided, and
drafts and copies thereof retained by the submitter(s) or person
working with the submitter(s), as well as any discussions with DHS
regarding the CII, shall be considered PCII and cannot be the subject
of civil discovery or other direct use in any civil litigation without
the submitter's consent. DHS interprets the statutory phrase ``any
civil action'' in section 214(a)(1)(C) of the CII Act to include civil
litigation in any form or forum whether the United States is or is not
a party. DHS disagrees with the notion, suggested by some, that the
statutory language would permit civil discovery of such information
while prohibiting its use as evidence at trial. This dichotomy makes
little sense. ``Discovery'' of the information in a civil action, with
all it entails, is in fact ``direct'' use of the information. The Act
is structured to spur owners of CII and others to evaluate and share
CII vulnerabilities and other sensitive information with the
Department. Creating a civil discovery loophole to the protections of
the Act would impede such cooperation and be fundamentally inconsistent
with the language and purposes of the Act.
It is also important to focus on section 214(c) of the CII Act (6
U.S.C. 133(c)). That provision indicates that the Act shall not ``be
construed to limit or otherwise affect the ability of a State, local,
or Federal government entity [or private litigant] * * * to obtain
critical infrastructure information in a manner not covered by''
section 214(a) (6 U.S.C. 133(a)). While PCII, including the
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opinions, evaluations, conclusions or analyses that were submitted, may
not be used directly in civil litigation, independently existing
factual information obtained independently by a civil litigant from
sources other than the PCII can present a different question under
section 214(c).
(5) Good Faith Submission of CII
Section 29.2(n) was inserted in response to a commenter's request
for a definition of ``good faith.'' This new section provides that any
information that could be reasonably considered CII information, as
defined in the regulations, is submitted in good faith. The subsequent
validation of such information as PCII by the PCII Program Office, or
the inclusion of such information in a category of pre-validated
information, definitively establishes the submission as having been
made in good faith.
(6) Communications With the Submitting Person or Entity
Another matter that the February 2004 Interim Rule did not address
is communications of the PCII Program Office, or of other authorized
recipients of PCII, with the submitting person or entity about the
submittal or the submitted information. Part of the purpose of the CII
Act is to encourage frank and open discussion with DHS regarding CII.
It would defeat the purpose of the Act to declare such exchanges as
outside the context of PCII. Certain communications are specifically
intended to perform the functions enumerated in sections 29.6(d),
(e)(2) and (f), 29.8(e), and 29.9(c), or to inquire whether the
submitting person or entity consents to disclosures of the submitted
information. Changes to sections 29.8(c) and 29.8(d)(2), and new
section 29.8(f)(1)(i)(B) fill the void by authorizing the disclosure of
PCII by Federal government officers, employees, and contractors, as
well as State, local, and tribal governmental entities in order to
facilitate communications with a submitting person or an authorized
person on behalf of a submitting entity, about a CII submission by that
person or entity.
D. Loss of Protected Status
Section 29.6(f) of the February 2004 Interim Rule responded to
comments by providing for changes from ``Protected'' to ``non-
Protected'' status when the submitting person or entity requested the
change in writing, or when the PCII Program Manager or his or her
designee determined that ``the information was customarily in the
public domain, is publicly available through legal means, or is
required to be submitted to DHS by Federal law or regulation.'' Two
commenters sought clarification of or a change to this section.
Two of these criteria allowing a loss of protected status have been
removed by this final rule. First, the test that would allow a loss of
protected status because the submitted information ``is publicly
available through legal means'' has been deleted because the CII Act
does not provide for a change in status on this ground. Second, as
noted above in the discussion of the definition of ``voluntary or
voluntarily,'' the test that would allow a loss of protected status
because the submitted information ``is required to be submitted to DHS
by Federal law or regulation'' has been eliminated. This change has
been made because the definitional exclusion in section 212(7)(A) of
the CII Act (6 U.S.C. 131(7)(A)), and the section 29.2 definition of
``voluntary or voluntarily'' refers expressly to the time of submittal
and is thus retrospective only. This does not, of course, prevent DHS
from using current or future authority to mandate submission of any
information. However, prior voluntary submissions under the CII Act may
only be utilized in accordance with the Act's provisions.
E. Sharing of PCII With Foreign Governments
Ten commenters expressed concerns about the February 2004 Interim
Rule's provision on ``Disclosure to foreign governments'' in section
29.8(j). Some pointed to an ambiguity as to whether this subsection was
intended to allow the sharing of PCII with foreign governments, without
the consent of the submitting person or entity, to an extent greater
than would result from the issuance of advisories, alerts and warnings
under section 214(g) of the CII Act. Commenters argued that if that was
the intent, it was unauthorized by the CII Act.
DHS envisions situations in which international cooperation is
required to combat terrorism, and PCII may form part of a warning to a
foreign governmental entity. In these cases, appropriate cooperation
may be accomplished as a warning under section 214(g) of the CII Act.
Accordingly, former section 29.8(j) is unnecessary and has been
omitted.
F. Emergency Disclosure of PCII
One commenter noted that exceptions should be drafted into the
final rule that allow for the disclosure of specific information when
there is an emergency that threatens widespread injury or loss of life,
and that such disclosure must not be contingent on the prior written
consent of the submitter. In response to this comment, DHS has modified
section 29.8(e) to permit the use of PCII in advisories, alerts, and
warnings without the consent of the submitting person or entity, but
prior to doing so, DHS must ``take appropriate actions to protect * * *
information that is proprietary, business sensitive, relates
specifically to the submitting person or entity, or is otherwise not
appropriately in the public domain'' (section 214(g) of the CII Act (6
U.S.C. 133(g))).
III. Other Changes to the Rule by Section
A. Purpose and Scope: Section 29.1
The February 2004 Interim Rule provided that warnings could be
issued by DHS that were predicated upon CII submissions provided that
the ``identity'' of the submitter was protected and the disclosure did
not result in the public dissemination of the submitter's business
proprietary/sensitive information (i.e., information that is not
``customarily available'' in the public domain). The requirement to
protect the ``identity'' of the disclosure has been broadened to
protect the ``source'' of information, as well as information that
might be used to identify the submitting person or entity. This broader
formulation tracks the language in section 214(g)(1) of the CII Act (6
U.S.C. 133(g)(1)). It also recognizes that there may be instances in
which PCII is provided to DHS by an ISAO or trade association. In such
a case, confidentiality should extend to both the submitter of the
information (the ISAO or trade association) and to the individual that
provided the CII to the ISAO for submission. This has become
particularly important with the development of collaboration with
industry-wide working groups and ISAOs. The phrase ``otherwise not
appropriately in the public domain'' was drawn from section 214(g)(2)
of the CII Act (6 U.S.C. 133(g)(2)), and replaces ``customarily
available.'' This change is intended to conform the language in this
final rule to the statute and to be more protective of an owner or
operator's proprietary or business confidential information. Then
relevant portions of the revised definition of ``in the public domain''
in section 29.2, discussed in detail in section II above, has been
added to this section.
With respect to the ``Scope'' of the PCII rule set forth in section
29.1(b), five commenters asked for clarification of the
interrelationship between the procedures established by this rule and
the requirements for the handling of other types of homeland security
[[Page 52266]]
information, such as Sensitive Security Information (SSI). This rule
covers CII voluntarily submitted to DHS when accompanied by the
statutory express statement. While other Federal agencies are not
required to participate in the PCII Program, those that do desire to
participate must first undergo appropriate training programs and take
necessary steps to adhere to the statute and these regulations to
enable the owners of the information to receive the full protections
for their CII provided for in the CII Act. When information that is
voluntarily submitted to the Federal government meets the definition of
SSI in 49 CFR part 1520 and is also designated as CII by the PCII
Program Office, it will be marked and protected in accordance with
these procedures as PCII, but can also enjoy SSI protection. To provide
greater clarity, however, section 29.1(b) has been revised and
simplified to reflect that these rules apply to anyone authorized to
handle, use, or store PCII or that otherwise receives PCII.
B. Definitions: Section 29.2
Five commenters addressed one or more definitional questions. The
comments suggested changes to defined terms and also noted that some
important terms were not defined at all.
Critical Infrastructure and Critical Infrastructure Information.
Several comments asked for a more explicit definition of these terms.
The terms are defined in statutory language and no changes were made.
For clarity, the statutory references on which section 2 of the
Homeland Security Act of 2002 (6 U.S.C. 101), was based have been
included.
Protected Critical Infrastructure Information Program, or PCII
Program. The previously defined term ``Critical Infrastructure
Information Program'' has been replaced with the more descriptive term
``Protected Critical Infrastructure Information Program,'' or ``PCII
Program.''
Information Sharing and Analysis Organization, or ISAO. Two
comments concerning the anonymity of those on whose behalf an ISAO
might submit are discussed in section II.C.(2) above. An additional
comment specifically asked for clarification that ISAOs have the
capability to make CII submissions on behalf of their sector
participants. That comment does not require a change in the definition.
The definition of the terms ``voluntary or voluntarily'' and
``Protected Critical Infrastructure Information,'' discussed below,
make clear that ISAOs may submit CII on behalf of members.
Protected Critical Infrastructure Information, or PCII. This
definition has been changed to make clear that the identities of both
the original providers and subsequent submitters of information are
included within PCII when an ISAO or trade association has submitted
the CII for validation as PCII. The definition was also expanded to
include any information that is necessary to explain or provide context
for the PCII. In response to a comment, the last sentence of the
definition in the February 2004 Interim Rule has been moved to section
29.6(b) because it contained a policy statement rather than an element
of a definition.
Purposes of the CII Act. This term, which conforms with the usage
at 6 CFR 29.5(a), is more apt than the previously defined ``purpose of
CII.''
The terms ``In the public domain,'' ``Regulatory proceeding,''
``State,'' ``Submitted in good faith'' and ``Voluntary or voluntarily''
are discussed in detail in Section II.
C. Effect of the Provisions: Section 29.3
Several commenters expressed concern that PCII could be used for
purposes other than securing critical infrastructure, such as
regulating workplace safety or monitoring compliance with environmental
laws. Congress was very clear on this point in the CII Act, specifying
a very narrow range of appropriate uses for PCII. Information in the
PCII submission may be employed * * * regarding the security of
critical infrastructure and protected systems, analysis, warning,
interdependency study, recovery or reconstitution or other information
purpose * * * Section 214(a)(1) of the CII Act (6 U.S.C. 133(a)(1)).
Indeed, the statute expressly forbids use of PCII, and sets forth a
criminal sanction, for purposes other than those specified in the Act.
See section 241(a)(1)(D) of the CII Act (6 U.S.C. 133(a)(1)(D)) (noting
also appropriate use ``in furtherance of a criminal investigation or in
the prosecution of a criminal act,'' or when shared subject to these
requirements with specified persons in the legislative branch); section
214(f) (6 U.S.C. 133(f)) (penalties). Section 213(a)(1)(E) expressly
forbids state and local governments from disclosing or using PCII
material ``other than for the purposes of protecting critical
infrastructure or protected systems * * *''). Id.
These and other provisions of the CII Act are unambiguous; PCII may
not be disseminated to other federal, state or local agencies for other
regulatory purposes. Nor may any recipient of PCII utilize any
information in the PCII for other regulatory purposes. The PCII Program
Office will impose appropriate restrictions on all recipients of PCII,
and will require appropriate training and oversight to ensure
compliance with these legislative mandates.
Certain commenters have also suggested that an individual with
collateral regulatory responsibility (e.g. worker health and safety)
would not be able to segregate knowledge gained from PCII information
(once learned) from his day-to-day duties on non-security issues, and
thus would ``inevitably'' use such PCII information for non-security
purposes. The PCII Program Office is aware of this concern and will
take it into account when determining the appropriate persons with whom
to share particular PCII. A person proposing to submit CII may consult
with the PCII Program Office regarding appropriate restrictions
applicable to use of the particular potential submission prior to
making that submission.
D. PCII Program Administration: Section 29.4
Three commenters addressed the provisions of this section. Only one
paragraph was changed. Paragraph (e) was modified from the February
2004 Interim Rule to make clear that the ``development'' of the
Protected Critical Infrastructure Information Management System
(PCIIMS) is the responsibility of the PCII Program Manager.
Three commenters suggested that the PCIIMS contain only what could
be called the tracking data and that the actual PCII should be kept
elsewhere. The suggestions will not be adopted. The tracking data may
include information that identifies the submitter, and to the extent
that it does, it is included in the revised definition of PCII (section
29.2) under the CII Act. DHS has an obligation to safeguard all PCII.
Accordingly, DHS will maintain PCII according to a distributed model
with information stored in a number of databases including the PCIIMS.
E. Requirements for Protection: Section 29.5
Eleven commenters addressed various aspects of the requirements for
protection, and a substantial number of changes have been made to
section 29.5.
(1) Express Statement on the Information
As the comments suggest, the ``information and records'' provided
as PCII are occasionally not easily susceptible to labeling with an
``express statement.'' required for a proper submission. For that
reason, the final rule provides for the use of a separate,
[[Page 52267]]
written ``express statement'' as set forth in paragraph (a)(3)(i).
(2) Oral Statements
Two comments were received regarding oral submissions during an
ongoing crisis. These comments suggested that, where there might be
many submissions, either the requirements for a written follow-up could
be waived or PCII status could be assigned once and maintained
throughout the crisis. DHS agrees with this suggestion and the rule has
been changed to expand this capacity to the extent practical. The
requirement for both an express statement and a certification statement
has not been changed. However, the time in which these statements are
required has been changed to ``a reasonable period'', as determined by
the PCII Program Manager on a case-by-case basis, after CII submission,
in whatever form. Further, DHS has added a section to make clear that
electronic submissions are authorized and to establish appropriate
procedures for such submissions.
(3) Certification Statement
Three commenters noted the requirement for a certification
statement is not statutory. The certification statement is considered
necessary, however, for effective program management and the rule
continues to require a certification statement in paragraph (a)(4). The
commenters suggested that there may be a public burden in submitting
such a statement, and DHS has, in response, significantly simplified
the submission requirements. The only information required in the
certification statement is the submitter's contact information and any
language considered necessary by the PCII Program Manager.
One commenter suggested that submitters be required to identify the
steps that the submitter itself takes to protect the CII. The commenter
suggested this information would assist the PCII Program Manager in
determining a more appropriate and accurate determination of status.
DHS has not adopted the suggestion.
One commenter suggested that the certification statement should be
treated as PCII. The identifying information within the certification
statement will be treated as PCII. Some substantive requirements of the
certification statement have changed, however. The certification has
been modified to incorporate provisions that the PCII Program Office
has found necessary from an operating standpoint. For instance, PCII
Program Office needs to know with whom it is dealing and how to contact
responsible individuals. One commenter was concerned that unauthorized
individuals might submit information on behalf of an entity, and
suggested that, as a result, DHS establish parameters as to who is
eligible to submit on behalf of an institution. DHS declines to do so.
Even if parameters were established, there would be no practical way
for DHS to determine whether the submitting individual is authorized by
the entity to do so.
A commenter suggested DHS should provide forms for the PCII
Program. Forms are not currently provided, and DHS does not believe
that specific forms are needed. DHS has posted guidelines for
submitters on the DHS Web site to assist potential submitters.
(4) Submission to the Program
The second sentence in paragraph (b) of the February 2004 Interim
Rule relating to submissions to DHS components other than the
Preparedness Directorate has been deleted as unnecessary. The PCII
Program Manager or the Program Manager's designees should receive
submittals of CII, as discussed above in Section II.A. This process
effectively responds to a commenter that questioned the internal DHS
receipt of CII.
Another commenter asked for special consideration for CII
inadvertently submitted to the wrong agency or person. DHS believes its
process is straightforward and further consideration for inadvertent
submission is unnecessary. DHS will make available to potential
submitters the means for submitting CII, and those means will be
consistent with the protections of the Act.
A commenter suggested that it would be helpful if DHS could make
advance determinations that any record falling within a certain class
or category would be validated once and not every time a submission is
made. As discussed below, DHS has added a new section 29.6(f) that
addresses this issue and would be pleased to confer with any potential
submitter regarding a possible submission.
F. Acknowledgment of Receipt, Validation, and Marking: Section 29.6
Section 29.6 was revised extensively in response to the comments
received from the twelve commenters on this section and in light of
operational decisions made by DHS.
(1) Presumption of Protection
Three commenters expressed their support for the presumption of
protection afforded by this provision. To conform to the definition of
PCII in section 29.2, new language clarifies that voluntarily submitted
CII is PCII when submitted with an express statement even if the
certification statement required by section 29.5(a)(4) is not initially
received. See also section 29.6(d). If the information is deficient,
the PCII Program Manager will attempt to contact the submitter to
afford the submitter an opportunity to rectify the error or withdraw
the submission and may properly label the submission him or herself.
(2) Marking
One commenter suggested that submitters be required to mark
portions of submissions. DHS does not agree for reasons articulated
elsewhere.
In response to another comment, language has been added to the
marking statement contained in paragraph (c) to highlight the criminal
and administrative penalties that could result from unauthorized
release. This statement was omitted from the February 2004 Interim Rule
provision.
The last sentence of marking statement included in paragraph (c)
addresses what could otherwise be an alternative interpretation based
on a literal reading that the regulation requires the submitter to
maintain the submitted information in accordance with the procedures
and requirements established by DHS rather than in accordance with its
own procedures. That is not intended.
(3) Acknowledgement
A change to paragraph (d) adjusts the February 2004 Interim Rule
statement regarding what is required before a submission receives the
presumption of protection. Since submitted information need only be
accompanied by an ``express statement'' in order to enjoy the
presumption of protection, it is unnecessary to provide a certification
before the PCII Program Manager or the PCII Program Manager's designee
acknowledges receipt and takes action.
(4) Determinations of Non-Protected Status
Nine commenters addressed the handling and disposition of
information that is found ineligible for protection under the CII Act,
proposing the required destruction or the required return of the
information; compliance with the submitter's instructions; or assurance
that the information will continue to be treated confidentially and
withheld from disclosure under the FOIA. As stated in the preamble to
the February 2004 Interim Rule, DHS will
[[Page 52268]]
return submissions in almost all cases when it does not qualify as
PCII.
The added words, ``within thirty calendar days of making a final
determination,'' provide a new time limit for disposition of non-
validated CII submissions, which is consistent with the period employed
in the last sentence of the subparagraph. The 30-day period will run
from the date of the notification rather than from the date of receipt
of the notification by the submitter. The changes also supply a step
previously missing from the language in the February 2004 Interim Rule
regarding this provision, i.e., that the PCII Program Office will make
the initial determination final.
A commenter suggested that a 30-day time period for the Program
Office to acknowledge receipt of a PCII submission was excessive;
another requested the establishment of a time period to complete the
validation process. Neither suggestion will be adopted. The volume of
submissions is unpredictable, and 30 days to acknowledge receipt is a
reasonable period. Recognizing the importance of timeliness, the PCII
Program Manager will ensure that all processing is efficiently
performed.
While notification to the submitter may, at the PCII Program
Office's option, contain an explanation of why submitted information is
not considered to be PCII under paragraph (e)(2)(ii), DHS does not
accept the suggestion of two commenters that such an explanation be
made obligatory. Additionally, paragraph (e)(2)(i)(A) has been modified
to reflect the possible need to ask the submitter to provide the
statement called for by section 29.5(a)(4), or any of the
certifications that the statement is required to include, in order to
perfect a submission.
Further, a new paragraph has been added at section 29.6 to allow
for ``categorical inclusions'' in response to comments. This provision
clarifies the Program Manager's authority to establish categories of
information for which PCII status will automatically apply without a
separate act of validation by the PCII Program Office.
(5) Changes From Protected to Non-Protected Status
Changes to paragraph (g) regarding a change in status from
protected to non-protected are explained above in Section II. In
response to a comment, this section has also been changed to specify
that the procedures in paragraph (e)(2) of this section will be used
prior to final determination of a change of status. As stated in the
discussion of section 29.3(b) above, proposals that DHS either
continuously review or establish a fixed schedule for regularly
reviewing all PCII have been rejected.
G. Safeguarding of PCII: Section 29.7
Nine commenters addressed safeguarding issues in section 29.7, and
two changes were made. In paragraph (b), the phrase ``in accordance
with procedures prescribed by the PCII Program Manager'' was added in
response to several comments asking for greater specificity in
procedures for use and storage. The second change deletes a phrase in
the February 2004 Interim Rule at the end of the paragraph that three
commenters interpreted as giving the PCII Program Manager the
discretion to establish ``tiered'' levels of security.
One commenter asked for a definition of ``official duties'' as that
term is used in paragraph (c) regarding reproduction of PCII. Because
the recipients of PCII are diverse, no general definition of ``official
duties'' applicable to all is appropriate.
Two commenters believed paragraph (d) should specify that disposal
should be in accordance with the Federal Records Act, 44 U.S.C. 3301.
This section applies to Federal as well as other entities and DHS
believes that requiring non-Federal entities to adhere to the Federal
Records Act would be unnecessarily burdensome.
Two commenters suggested that paragraph (f) require transmission by
secure and encrypted means. Another commenter asked for examples of
what might be considered secure means. The PCII Program Manager will,
as the rule states, determine the method of secure transmission. The
method of transmission will not be the same in all cases. Encryption
may be practical in some cases but not in others.
H. Disclosure of PCII: Section 29.8
This section was revised extensively based on comments received
from sixteen commenters and on the operating experience of the PCII
Program Office.
In response to two comments, a clarifying cross-reference in
paragraph (a) was inserted in order to avoid giving this subsection an
unintended legal effect that renders the subsequent provisions
superfluous. Other language was deleted from this provision in the
February 2004 Interim Rule because it was duplicative.
Four commenters proposed the involvement of submitters in DHS'
information sharing decisions. DHS has not accepted these suggestions.
Another commenter's objection to provisions requiring the submitter's
consent to further disclosures of PCII likewise was rejected. DHS must
make disclosure decisions based in the interests of the United States
as a whole, including the interests of the submitters and the specific
reasons and events that may warrant disclosure.
DHS is clarifying the distinction in paragraph (b) between how PCII
may be used by the Federal government, and how it may be used by State,
local, and tribal agencies. The CII Act limits the purposes for which
State, local and tribal governments may use PCII and how State, local
and tribal governments may share PCII. According to sections
214(a)(1)(E)(ii) and (iii) of the CII Act (6 U.S.C. 133(a)(1)(E)(ii)
and (iii)), PCII may not be used by those governments for purposes
other than protecting critical infrastructure or protected systems, or
in furtherance of an investigation or the prosecution of a criminal
act, and an agency of those governments may not further disclose the
information without the consent of the submitter. These limitations are
echoed in paragraphs (d)(1) and (3) of the February 2004 Interim Rule.
The revision of this subsection brings the State, local and tribal
sharing provisions into conformity with the statute and the other
related rule provisions. The final sentence alters the requirement that
State, local and tribal government entities enter into written
agreements with the PCII Program Manager, specifying that they must
instead enter into arrangements with the PCII Program Manager. This
change was made to promote flexibility and, in exigent circumstances, a
speedy sharing of information.
In response to eight commenters who expressed concern over possible
unauthorized State, local or tribal government disclosures of PCII that
might be provided to them, or who urged the adoption of strict controls
on the sharing of such information with State, local and tribal
governments, these arrangements, except in exigent circumstances will
be very specific, will require safeguarding, handling, violation
reporting, and other procedures consistent with this rule, and will
further provide for compliance monitoring. In most cases DHS
anticipates that these arrangements will be in the form of a Memorandum
of Agreement (MOA) that will also recognize the preeminence of PCII
status under the CII Act and these regulations in relation to any
State, territorial, or tribal public disclosure laws or policies.
Further, DHS has added language that makes clear that PCII may not be
used for regulatory purposes.
In paragraph (c), the first change clarifies that State, local and
tribal
[[Page 52269]]
contractors can receive PCII under the same conditions as Federal
contractors. As in the case of Federal contractors, State, local, and
tribal contractors are agents of a governmental entity, carrying out
the functions on behalf of the government in furtherance of its mission
and under its direction. Therefore, DHS does not consider State, local
and tribal contractors to be precluded from receiving PCII as ``any
other party;'' rather, DHS considers them an extension of the State,
local or tribal governmental entity.
The second change is to employ a term defined in section 29.2, to
replace the subjective term, ``purposes of DHS'' with the term
``purposes of the CII Act.'' This change also better lends itself to
PCII Program Office certifications of contractors to Federal agencies
other than DHS. All contractor employees working on PCII Program
matters and having access to PCII, rather than the more abstract
``identified category'' of employees, will be required to sign a
nondisclosure agreement (NDA). Also added is a provision that the NDAs
will be in a form prescribed by the PCII Program Manager. Based on PCII
Program Office operating experience, reference to ``contractor''
signature of NDAs has been deleted; contractors will continue to be
obliged to agree, by contract, to comply with all programmatic
requirements.
Additionally, as discussed above in section II.C, a change was made
to permit employees of Federal, State, local, and tribal contractors
who are engaged in the performance of services in support of the
purposes of the CII Act, to communicate with a submitting person or an
authorized person of a submitting entity about their submittal or
information when authorized by the PCII Program Manager or a PCII
Program Manager's designee. The previous prohibition against disclosure
to any of the contractors' components and the reference to ``additional
employees'' posed an unnecessary operating difficulty for contractors,
which was noted by one commenter. These provisions have been replaced
by the more comprehensible but sufficiently strict prohibition on
disclosing to ``any other party.'' This is the term used in section
29.8(d)(1), which prohibits State, local, and tribal governments from
making disclosures to ``any other party not already authorized to
receive such information.''
A commenter suggested that a PCII Officer certify the distribution
of PCII to Federal contractors on a specific PCII case-by-case basis
rather than based on a certification that the contractor was performing
services on behalf of DHS. This suggestion will not be adopted. Such a
requirement could be burdensome, and moreover, is unnecessary. PCII
will only be distributed as required for the contractor's use. The
single certification does not entitle the contractor to all PCII, but
only PCII the governmental agency determines the contractor needs.
Another commenter asked for clarification of what type of language
would constitute the authorization from the submitter to enable sharing
of PCII. The relevant question is how DHS will ask for permission, and
DHS envisions that the request will be in writing, state the tracking
number previously provided to the submitter, identify the requester and
the intended recipient, and ask for a response within a certain number
of days.
Consistent with the changes discussed above, a change was made in
paragraph (d)(1) to eliminate the idea that consent to further
disclosure could be made by someone ``on whose behalf'' information was
submitted.
A comment questioned the statement in the preamble to the February
2004 Interim Rule that State, local and tribal governments ``will be
asked to track further disclosures'' and suggested the requirement to
track should remain with DHS. As the comment noted, any further
distribution by State, local, and tribal governments requires submitter
permission, a process administratively handled by DHS. DHS will impose
a tracking requirement on State, local and tribal governments and will
also have its own records of permissions in the PCIIMS.
Changes in paragraph (e) of this section have been explained in
detail in section II above. An additional change to paragraph (e) not
discussed above is that the language now allows not only the
Directorate for Preparedness, but also other Federal agencies, as well
as State, local and tribal government entities, to use PCII in
preparing advisories and similar communications. The list of things to
be protected from disclosure has been rephrased in the disjunctive,
correcting the unduly restrictive conjunctive phrasing, which was noted
by one commenter. The final change adds language that permits Federal,
State, local and tribal governmental entities to contact submitters
directly to confer if there is a question about the PCII to be used in
the advisory, alert, or warning.
A comment suggested that paragraph (f)(1)(i), which limits use or
disclosure of PCII by Federal employees except as authorized, is
important enough to warrant its own rule provision. The comment was
considered; however, further changes were not deemed necessary.
However, in reviewing the paragraph it is clear that sections of the
CII Act other than 214(a)(1)(D) and (E) (6 U.S.C. 133(a)(1)(D), (E)),
for example, were applicable to the general category of ``Exceptions
for disclosure.'' The language in the subparagraph was therefore
modified to make clear that it applied to entities and persons other
than officers and employees of the United States.
Language was added to make paragraph (f)(1)(i)(A) consistent with
the position that State, local, and tribal investigations or
prosecutions should be coordinated by a Federal law enforcement
official. It also recognizes that PCII could be used in furtherance of
a foreign government investigation or prosecution, and imposes, for any
disclosure to the foreign government, the same requirement for
coordination by a Federal law enforcement official.
Paragraph (f)(1)(i)(C) has been limited to the disclosure of
information by an officer or employee of the United States, as this
paragraph fits clearly within the confines of section 214(a)(1)(D) of
the CII Act (6 U.S.C. 133(a)(1)(D)).
Section (f)(3) of the 2004 Interim Final Rule referred to the
Whistleblower Protection Act and has been omitted because is merely
restates the law of the land. Section (f)(4) of the February 2004
Interim Rule has been deleted because it was deemed unnecessary.
DHS has modified the language in paragraph (g) to more accurately
reflect the intention of the statutory language in section
214(a)(1)(E)(i) of the CII Act.
As discussed in Section II, paragraph (j) has been deleted in its
entirety. Further, paragraph (k) has been deleted because it improperly
rested sole authority to request submitter consent for further
dissemination in the PCII Program Manager, thus limiting flexibility
and effectiveness, especially in exigent circumstances.
I. Investigation and Reporting of Violation of PCII Procedures: Section
29.9
Six comments expressed concern that there were no provisions for
the imposition of penalties or sanctions on State, local and tribal
government employees or on contractors. The provisions of subsection
(d) reflect the language of section 214(f) of the CII Act (6 U.S.C.
133(f)). This section applies unambiguously only to officers and
employees of the United States. DHS has no authority to make these
provisions applicable to anyone else. However, DHS will place in the
MOAs for State, local and tribal governments, when used, or when an
arrangement
[[Page 52270]]
other than an MOA is used, then to the extent practicable, language
that will require the State, local, or tribal government to consider
breaches of the agreements by employees as matters subject to the
criminal code or to the applicable employee code of conduct for that
jurisdiction. While States do not have laws that were written
specifically with PCII in mind, they do have laws that govern theft,
conspiracy, trade secrets, and the like, which could apply to employees
and to contractors as well. The CII Act does not limit any other
enforcement mechanism; the CII Act adds a specific criminal enforcement
provision applicable to Federal employees.
A commenter suggested that this section should specifically require
that the DHS Inspector General, the PCII Program Manager, or the
Preparedness Security Officer investigate unauthorized disclosures by
State, local and tribal governments. As previously noted, the relevant
MOAs or alternative arrangements will generally provide for DHS to
monitor all State, local and tribal governments with respect to their
compliance with the guidance regarding handling PCII.
A commenter asked whether DHS had considered the applicability of
the Privacy Act of 1974, 5 U.S.C. 552a, to any part of the submissions
process. DHS has considered and continues to consider the
interrelationship between the CII Act and the Privacy Act, and, through
the Program Office and the DHS Privacy Officer, will ensure that the
PCII program conducts all activities related to the PCII Program in
conformance with the Privacy Act.
IV. Revision of Part 29
After considering all of the comments and the changes warranted,
DHS determined that the entire part should be revised rather then
making individual amendments to the specific sections and paragraphs.
Individual amendments to each section and paragraph would have created
a very large number of instructions to the Federal Register and
rendered the amended regulation difficult, if not impossible, to
understand without reading the amendments side-by-side with the current
regulations. Accordingly, DHS has repromulgated all of the provisions
of part 29, whether amended by this final rule or as in the February
2004 Interim Rule, to assist the reader.
V. Consideration of Various Laws and Executive Orders
A. Administrative Procedure Act
DHS has determined that good cause exists to make this regulation
effective upon publication in the Federal Register under 5 U.S.C.
553(d)(3). This final rule clarifies ambiguities in the February 2004
Interim Rule that were identified by the public comments and has the
advantage of taking into consideration operating experience with
submitters gained since the February 2004 Interim Rule became effective
on February 20, 2004. DHS believes that submitters are more likely to
provide information that qualifies for protection under the CII Act of
2002 when the final rule goes into effect. Such PCII would help DHS
implement security measures and issue warnings. After considering the
likelihood that valuable information is now being withheld because of
concern and confusion as to how it might be handled under the February
2004 Interim Rule, and the possibility that this information could be
useful in deterring or responding to a security incident, the
Department has concluded that good cause exists for making the
regulation effective immediately.
B. Executive Order 12866 Assessment
DHS is required to implement this rule under the Critical
Infrastructure Information Act of 2002, Title II, Subtitle B, of the
Homeland Security Act of 2002 (6 U.S.C. 211 et seq.). This rule is
considered by DHS to be a significant regulatory action under Executive
Order 12866, 58 FR 51735 (Oct. 4, 1993), Regulatory Planning and
Review, section 3(f). Accordingly, this regulation has been submitted
to the Office of Management and Budget (OMB) for review.
DHS has performed an analysis of the expected costs and benefits of
this final rule. A similar analysis was performed before the February
2004 Interim Rule was made effective. This new analysis considers
comments received regarding staff costs and storage assumptions.
Consideration of these comments does not change the previous
conclusions.
The final rule affects persons and entities in the private sector
that have CII they wish to share with DHS. The final rule also affects
State, local and tribal governments with which DHS has signed
agreements detailing the procedures on how PCII must be safeguarded,
used, and destroyed when it is no longer needed.
Private sector submitters of CII must determine first whether to
participate and if so, develop and follow internal procedures for
submissions that comply with this regulation. Recipients of PCII must
follow the procedures established in this regulation and as specified
in agreements with the PCII Program Manager.
Costs
DHS believes private entities that submit CII will not incur
significant costs. For submitters of CII other than individuals, there
will likely be a one-time decision process to determine whether
participation is appropriate, and if so, the establishment of internal
operating procedures. A legal review of those submitters' procedures
would likely be undertaken internally to ensure that they result in
submissions that will receive the protections of the CII Act. The costs
to develop the procedures would be a non-recurring expense and it is
unlikely that a separate legal review would be required for each
submission. Individuals who might want to submit CII will probably read
the applicable procedures posted on the DHS Web site and have no non-
recurring costs. Recurring expenses for submitting entities could
include the cost of transmitting the CII, office supplies, costs
associated with internal marking of retained copies of CII, and the
expense of making available a point of contact with DHS to discuss the
entity's submission. The non-recurring costs described will be
different for each entity and also depend on how frequently submissions
are made, but it is unlikely an entity will be required to increase its
workforce. The costs are expected to be only a slight increment to
ongoing total costs and managerially insignificant, perhaps even
unidentifiable.
Costs for State, local and tribal governments that are the
recipients of PCII will include the appointment of a PCII Officer to
ensure safeguarding and destruction in accordance with these procedures
and in the required written agreements. The position of PCII Officer
for State, local, and tribal governments is not anticipated to be a
full time position, although it could be. Should the position evolve
into a full time one for a State, the costs should not exceed $150,000
per year per State. In the unlikely event all 50 States had full time
PCII Officers, these costs would be approximately $7,500,000 per year.
These costs are based on DHS estimates based on equivalent Federal
positions and costs. A PCII Officer will be required to become familiar
with procedures and be responsible for the training of others. DHS will
develop training material and provide trainers for this effort. DHS
anticipates that States will, to a large extent, appoint a
[[Page 52271]]
PCII Officer whose responsibilities will include overseeing local and
tribal government participation. Thus, in most cases it will not be
necessary for local and tribal governments to appoint PCII Officers.
DHS believes that the costs to State, local and tribal governments
other than those associated with PCII Officers will include storage
capabilities, supplies, general overhead expenses and record keeping
systems. These costs are variable and will depend on the volume of PCII
received. The total of these costs is not expected to be significant.
Benefits
This program will permit the private sector to provide CII to DHS
with confidence that it will not be inappropriately released to the
public. The expected benefit of this program is centralized knowledge
of the country's critical infrastructure everyone uses to conduct the
daily affairs of life. As noted above, 85% of critical infrastructure
is not possessed by the United States Government. Destruction of this
infrastructure, or interruptions in its operating capability, could be
catastrophic. With such knowledge comes the ability to issue warnings,
to conduct analyses of systemic weaknesses, and to take actions to
prevent terrorist acts. If the information provided results in but one
thwarted terrorist act, or perhaps deters even the attempt, the benefit
has been realized. Monetarily, the benefit might be calculated as the
avoidance of the reconstruction cost of the facility damaged and the
loss in commercial activity attributable to the lost facility. Not all
the benefits of this regulation can be easily quantified as the
benefits of this rule include preventing a terrorist event and the
probability and consequences from that event are extremely difficult to
predict. Given the relatively small implementation costs, DHS believes
the potential benefits outweigh costs by a large margin.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA)
requires an agency to review regulations to assess their impact on
small entities. An agency must conduct a regulatory flexibility
analysis unless it determines and certifies that a rule is not expected
to have a significant impact on a substantial number of small entities.
DHS has reviewed this final rule and, by approving it, certifies that
this rule will not have a significant economic impact on a substantial
number of small entities.
Many of the entities expected to voluntarily submit CII to DHS will
be providers of infrastructure and protected systems. Typically,
infrastructure providers are large public utilities or companies and
providers of protected systems are large companies that will not meet
the definition of small businesses for purposes of the RFA. It is
possible that small non-profit organizations or any other small
entities that provide critical infrastructure, such as telephone or
electric cooperatives, might from time to time provide CII. The costs
to send the CII to DHS are expected to be small and depend in large
measure on the frequency of submissions. It is unlikely that a small
utility cooperative, or any other small entities, will send CII on any
ongoing basis, and hence any costs will not have a significant impact
on any organization that chooses to participate. Small governmental
jurisdictions are expected to depend on the State government for
warnings and analysis and generally not appoint PCII Officers or
establish separate programs. Those small jurisdictions will likely be
only receivers, not providers, of information that is produced and
distributed by the PCII Program Office and this rule will have no
significant impact.
D. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more (adjusted annually for inflation) in any one year, and
it will not significantly or uniquely affect small governments.
Therefore, no actions were deemed necessary under the provisions of the
Unfunded Mandates Reform Act of 1995.
E. Small Business Regulatory Enforcement Act of 1996
This rule is not a major rule, as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will not
result in an annual effect on the United States economy of $100 million
or more, result in a major increase in costs or prices, or significant
adverse effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based companies to
compete with foreign-based companies in domestic and export markets.
F. Executive Order 13132--Federalism
The preamble to the February 2004 Interim Rule requested comment on
the federalism impact of the February 2004 Interim Rule. No comments
were received.
This final rule was analyzed in accordance with the principles and
criteria contained in Executive Order 13132 (``Federalism''). This
rulemaking, as required by the underlying statute, preempts State,
local and tribal laws that might otherwise require disclosure of PCII
and precludes use of PCII in certain State civil actions unless
permission of the submitter is obtained. This preemption is expected to
inure to the benefit of the States by making it possible for PCII that
is provided to the Federal Government to be shared with the States. The
rule does not impose any regulation that has substantial direct effects
on the States, the relationship between the national government and the
States, or the distribution of power and responsibilities among the
various levels of government. Therefore, the consultation requirements
of Executive Order 13132 do not apply.
G. Executive Order 12988--Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
H. Paperwork Reduction Act of 1995
Under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520
(PRA), a Federal agency must obtain approval from the OMB for each
collection of information it conducts, sponsors, or requires through
regulations. This rule does not contain provisions for collection of
information, does not meet the definition of ``information collection''
as defined under 5 CFR part 1320, and is therefore exempt from the
requirements of the PRA. Accordingly, there is no requirement to obtain
OMB approval for information collection.
I. Environmental Analysis
DHS has analyzed this regulation for purposes of the National
Environmental Policy Act and has concluded that this rule will not have
any significant impact on the quality of the human environment.
List of Subjects in 6 CFR Part 29
Confidential business information, Reporting and recordkeeping
requirements.
Authority and Issuance
0
For the reasons discussed in the preamble, 6 CFR part 29 is revised to
read as follows:
PART 29--PROTECTED CRITICAL INFRASTRUCTURE INFORMATION
Sec.
[[Page 52272]]
29.1 Purpose and scope.
29.2 Definitions.
29.3 Effect of provisions.
29.4 Protected Critical Infrastructure Information Program
administration.
29.5 Requirements for protection.
29.6 Acknowledgment of receipt, validation, and marking.
29.7 Safeguarding of Protected Critical Infrastructure Information.
29.8 Disclosure of Protected Critical Infrastructure Information.
29.9 Investigation and reporting of violation of PCII procedures.
Authority: Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C. 1 et seq.);
5 U.S.C. 301.
Sec. 29.1 Purpose and scope.
(a) Purpose of this Part. This Part implements sections 211 through
215 of the Homeland Security Act of 2002 (HSA) through the
establishment of uniform procedures for the receipt, care, and storage
of Critical Infrastructure Information (CII) voluntarily submitted to
the Department of Homeland Security (DHS). Title II, Subtitle B, of the
Homeland Security Act is referred to herein as the Critical
Infrastructure Information Act of 2002 (CII Act). Consistent with the
statutory mission of DHS to prevent terrorist attacks within the United
States and reduce the vulnerability of the United States to terrorism,
DHS will encourage the voluntary submission of CII by safeguarding and
protecting that information from unauthorized disclosure and by
ensuring that such information is, as necessary, securely shared with
State and local government pursuant to section 214(a) through (g) of
the CII Act. As required by the CII Act, these rules establish
procedures regarding:
(1) The acknowledgement of receipt by DHS of voluntarily submitted
CII;
(2) The receipt, validation, handling, storage, proper marking and
use of information as PCII;
(3) The safeguarding and maintenance of the confidentiality of such
information, appropriate sharing of such information with State and
local governments pursuant to section 214(a) through (g) of the HSA.
(4) The issuance of advisories, notices and warnings related to the
protection of critical infrastructure or protected systems in such a
manner as to protect from unauthorized disclosure the source of
critical infrastructure information that forms the basis of the
warning, and any information that is proprietary or business sensitive,
might be used to identify the submitting person or entity, or is
otherwise not appropriately in the public domain.
(b) Scope. The regulations in this Part apply to all persons and
entities that are authorized to handle, use, or store PCII or that
otherwise accept receipt of PCII.
Sec. 29.2 Definitions.
For purposes of this part:
(a) Critical Infrastructure has the meaning stated in section 2 of
the Homeland Security Act of 2002 (referencing the term used in section
1016(e) of Public Law 107-56 (42 U.S.C. 5195c(e)).
(b) Critical Infrastructure Information, or CII, has the same
meaning as established in section 212 of the CII Act of 2002 and means
information not customarily in the public domain and related to the
security of critical infrastructure or protected systems, including
documents, records or other information concerning:
(1) Actual, potential, or threatened interference with, attack on,
compromise of, or incapacitation of critical infrastructure or
protected systems by either physical or computer-based attack or other
similar conduct (including the misuse of or unauthorized access to all
types of communications and data transmission systems) that violates
Federal, State, local, or tribal law, harms interstate commerce of the
United States, or threatens public health or safety;
(2) The ability of any critical infrastructure or protected system
to resist such interference, compromise, or incapacitation, including
any planned or past assessment, projection, or estimate of the
vulnerability of critical infrastructure or a protected system,
including security testing, risk evaluation thereto, risk-management
planning, or risk audit; or
(3) Any planned or past operational problem or solution regarding
critical infrastructure or protected systems, including repair,
recovery, reconstruction, insurance, or continuity, to the extent it is
related to such interference, compromise, or incapacitation.
(c) Information Sharing and Analysis Organization, or ISAO, has the
same meaning as is established in section 212 of the CII Act of 2002
and means any formal or informal entity or collaboration created or
employed by public or private sector organizations for purposes of:
(1) Gathering and analyzing CII in order to better understand
security problems and interdependencies related to critical
infrastructure and protected systems, so as to ensure the availability,
integrity, and reliability thereof;
(2) Communicating or disclosing CII to help prevent, detect,
mitigate, or recover from the effects of an interference, compromise,
or an incapacitation problem related to critical infrastructure or
protected systems; and
(3) Voluntarily disseminating CII to its members, Federal, State,
and local governments, or any other entities that may be of assistance
in carrying out the purposes specified in paragraphs (c)(1) and (2) of
this section.
(d) In the public domain means information lawfully, properly and
regularly disclosed generally or broadly to the public. Information
regarding system, facility or operational security is not ``in the
public domain.'' Information submitted with CII that is proprietary or
business sensitive, or which might be used to identify a submitting
person or entity will not be considered ``in the public domain.''
Information may be ``business sensitive'' for this purpose whether or
not it is commercial in nature, and even if its release could not
demonstrably cause substantial harm to the competitive position of the
submitting person or entity.
(e) Local government has the same meaning as is established in
section 2 of the Homeland Security Act of 2002 and means:
(1) A county, municipality, city, town, township, local public
authority, school district, special district, intrastate district,
council of governments (regardless of whether the council of
governments is incorporated as a nonprofit corporation under State
law), regional or interstate government entity, or agency or
instrumentality of a local government;
(2) An Indian tribe or authorized tribal organization, or in Alaska
a Native village or Alaska Regional Native Corporation; and
(3) A rural community, unincorporated town or village, or other
public entity.
(f) Program Manager's Designee means a Federal employee outside of
the PCII Program Office, whether employed by DHS or another Federal
agency, to whom certain functions of the PCII Program Office are
delegated by the Program Manager, as determined on a case-by-case
basis.
(g) Protected Critical Infrastructure Information, or PCII, means
validated CII, including information covered by 6 CFR 29.6(b) and (f),
including the identity of the submitting person or entity and any
person or entity on whose behalf the submitting person or entity
submits the CII, that is voluntarily submitted, directly or indirectly,
to DHS, for its use regarding the security of critical infrastructure
and protected systems, analysis, warning, interdependency study,
recovery, reconstitution, or other appropriate
[[Page 52273]]
purpose, and any information, statements, compilations or other
materials reasonably necessary to explain the CII, put the CII in
context, describe the importance or use of the CII, when accompanied by
an express statement as described in 6 CFR 29.5.
(h) Protected Critical Infrastructure Information Program, or PCII
Program, means the program implementing the CII Act, including the
maintenance, management, and review of the information provided in
furtherance of the protections provided by the CII Act.
(i) Protected system has the meaning set forth in section 212(6) of
the CII Act, and means any service, physical or computer-based system,
process, or procedure that directly or indirectly affects the viability
of a facility of critical infrastructure and includes any physical or
computer-based system, including a computer, computer system, computer
or communications network, or any component hardware or element
thereof, software program, processing instructions, or information or
data in transmission or storage therein, irrespective of the medium of
transmission or storage.
(j) Purposes of the CII Act has the meaning set forth in section
214(a)(1) of the CII Act and includes the security of critical
infrastructure and protected systems, analysis, warning,
interdependency study, recovery, reconstitution, or other informational
purpose.
(k) Regulatory proceeding, as used in Section 212(7) of the CII Act
and these rules, means administrative proceedings in which DHS is the
adjudicating entity, and does not include any form or type of
regulatory proceeding or other matter outside of DHS.
(l) State has the same meaning set forth in section 2 of the
Homeland Security Act of 2002 and means any State of the United States,
the District of Columbia, the Commonwealth of Puerto Rico, the Virgin
Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana
Islands, and any possession of the United States.
(m) Submission as referenced in these procedures means any
transmittal, either directly or indirectly, of CII to the DHS PCII
Program Manager or the PCII Program Manager's designee, as set forth
herein.
(n) Submitted in good faith means any submission of information
that could reasonably be defined as CII or PCII under this section.
Upon validation of a submission as PCII, DHS has conclusively
established the good faith of the submission. Any information
qualifying as PCII by virtue of a categorical inclusion identified by
the Program Manager pursuant to section 214 of the CII Act and this
Part is submitted in good faith.
(o) Voluntary or voluntarily, when used in reference to any
submission of CII, means the submittal thereof in the absence of an
exercise of legal authority by DHS to compel access to or submission of
such information. Voluntary submission of CII may be accomplished by
(i.e., come from) a single state or local governmental entity; private
entity or person; or by an ISAO acting on behalf of its members or
otherwise. There are two exclusions from this definition. In the case
of any action brought under the securities laws--as is defined in
section 3(a)(47) of the Securities Exchange Act of 1934 (15 U.S.C.
78c(a)(47))--the term ``voluntary'' or ``voluntarily'' does not include
information or statements contained in any documents or materials
filed, pursuant to section 12(i) of the Securities Exchange Act of 1934
(15 U.S.C. 781(i)), with the U.S. Securities and Exchange Commission or
with Federal banking regulators or a writing that accompanied the
solicitation of an offer or a sale of securities. Information or
statements previously submitted to DHS in the course of a regulatory
proceeding or a licensing or permitting determination are not
``voluntarily submitted.'' In addition, the submission of information
to DHS for purposes of seeking a Federal preference or benefit,
including CII submitted to support an application for a DHS grant to
secure critical infrastructure will be considered a voluntary
submission of information. Applications for SAFETY Act Designation or
Certification under 6 CFR Part 25 will also be considered a voluntary
submission.
(p) The term used directly by such agency, any other Federal,
State, or local authority, or any third party, in any civil action
arising under Federal or State law in section 214(a)(1)(C) of the CII
Act means any use in any proceeding other than a criminal prosecution
before any court of the United States or of a State or otherwise, of
any PCII, or any drafts or copies of PCII retained by the submitter,
including the opinions, evaluations, analyses and conclusions prepared
and submitted as CII, as evidence at trial or in any pretrial or other
discovery, notwithstanding whether the United States, its agencies,
officers, or employees is or are a party to such proceeding.
Sec. 29.3 Effect of provisions.
(a) Freedom of Information Act disclosure exemptions. Information
that is separately exempt from public disclosure under the Freedom of
Information Act or applicable State, local, or tribal law does not lose
its separate exemption from public disclosure due to the applicability
of these procedures or any failure to follow them.
(b) Restriction on use of PCII by regulatory and other Federal,
State, and Local agencies. A Federal, State or local agency that
receives PCII may utilize the PCII only for purposes appropriate under
the CII Act, including securing critical infrastructure or protected
systems. Such PCII may not be utilized for any other collateral
regulatory purposes without the written consent of the PCII Program
Manager and of the submitting person or entity. The PCII Program
Manager or the PCII Program Manager's designee shall not share PCII
with Federal, State or local government agencies without instituting
appropriate measures to ensure that PCII is used only for appropriate
purposes.
Sec. 29.4 Protected Critical Infrastructure Information Program
administration.
(a) Preparedness Directorate Program Management. The Secretary of
Homeland Security hereby designates the Under Secretary for
Preparedness as the senior DHS official responsible for the direction
and administration of the PCII Program. He shall administer this
program through the Assistant Secretary for Infrastructure Protection.
(b) Appointment of a PCII Program Manager. The Under Secretary for
Preparedness shall:
(1) Appoint a PCII Program Manager serving under the Assistant
Secretary for Infrastructure Protection who is responsible for the
administration of the PCII Program;
(2) Commit resources necessary for the effective implementation of
the PCII Program;
(3) Ensure that sufficient personnel, including such detailees or
assignees from other Federal national security, homeland security, or
law enforcement entities as the Under Secretary deems appropriate, are
assigned to the PCII Program to facilitate secure information sharing
with appropriate authorities.
(4) Promulgate implementing directives and prepare training
materials as ppropriate for the proper treatment of PCII.
(c) Appointment of PCII Officers. The PCII Program Manager shall
establish procedures to ensure that each DHS component and each
Federal, State, or local entity that works with PCII appoint one or
more employees to serve as a PCII Officer in order to carry out the
responsibilities stated in paragraph (d)
[[Page 52274]]
of this section. Persons appointed to serve as PCII Officers shall be
fully familiar with these procedures.
(d) Responsibilities of PCII Officers. PCII Officers shall:
(1) Oversee the handling, use, and storage of PCII;
(2) Ensure the secure sharing of PCII with appropriate authorities
and individuals, as set forth in 6 CFR 29.1(a), and paragraph (b)(3) of
this section;
(3) Establish and maintain an ongoing self-inspection program, to
include periodic review and assessment of the compliance with handling,
use, and storage of PCII;
(4) Establish additional procedures, measures and penalties as
necessary to prevent unauthorized access to PCII; and
(5) Ensure prompt and appropriate coordination with the PCII
Program Manager regarding any request, challenge, or complaint arising
out of the implementation of these regulations.
(e) Protected Critical Infrastructure Information Management System
(PCIIMS). The PCII Program Manager shall develop, for use by the PCII
Program Manager and the PCII Manager's designees, an electronic
database, to be known as the ``Protected Critical Infrastructure
Information Management System'' (PCIIMS), to record the receipt,
acknowledgement, validation, storage, dissemination, and destruction of
PCII. This compilation of PCII shall be safeguarded and protected in
accordance with the provisions of the CII Act. The PCII Program Manager
may require the completion of appropriate background investigations of
an individual before granting that individual access to any PCII.
Sec. 29.5 Requirements for protection.
(a) CII shall receive the protections of section 214 of the CII Act
when:
(1) Such information is voluntarily submitted, directly or
indirectly, to the PCII Program Manager or the PCII Program Manager's
designee;
(2) The information is submitted for protected use regarding the
security of critical infrastructure or protected systems, analysis,
warning, interdependency study, recovery, reconstitution, or other
appropriate purposes including, without limitation, for the
identification, analysis, prevention, preemption, disruption, defense
against and/or mitigation of terrorist threats to the homeland;
(3) The information is labeled with an express statement as
follows:
(i) In the case of documentary submissions, written marking on the
information or records substantially similar to the following: ``This
information is voluntarily submitted to the Federal government in
expectation of protection from disclosure as provided by the provisions
of the Critical Infrastructure Information Act of 2002''; or
(ii) In the case of oral information:
(A) Through an oral statement, made at the time of the oral
submission or within a reasonable period thereafter, indicating an
expectation of protection from disclosure as provided by the provisions
of the CII Act; and
(B) Through a written statement substantially similar to the one
specified above accompanied by a document that memorializes the nature
of oral information initially provided received by the PCII Program
Manager or the PCII Program Manager's designee within a reasonable
period after using oral submission; and
(iii) In the case of electronic information:
(A) Through an electronically submitted statement within a
reasonable period of the electronic submission indicating an
expectation of protection from disclosure as provided by the provisions
of the CII Act; and
(B) Through a non-electronically submitted written statement
substantially similar to the one specified above accompanied by a
document that memorializes the nature of e-mailed information initially
provided, to be received by the PCII Program Manager or the PCII
Program Manager's designee within a reasonable period after using e-
mail submission.
(4) The submitted information additionally is accompanied by a
statement, signed by the submitting person or an authorized person on
behalf of an entity identifying the submitting person or entity,
containing such contact information as is considered necessary by the
PCII Program Manager, and certifying that the information being
submitted is not customarily in the public domain;
(b) Information that is not submitted to the PCII Program Manager
or the PCII Program Manager's designees will not qualify for protection
under the CII Act. Only the PCII Program Manager or the PCII Program
Manager's designees are authorized to acknowledge receipt of
information being submitted for consideration of protection under the
Act.
(c) All Federal, State and local government entities shall protect
and maintain information as required by these rules or by the
provisions of the CII Act when that information is provided to the
entity by the PCII Program Manager or the PCII Program Manager's
designee and is marked as required in 6 CFR 29.6(c).
(d) All submissions seeking PCII status shall be presumed to have
been submitted in good faith until validation or a determination not to
validate pursuant to these rules.
Sec. 29.6 Acknowledgment of receipt, validation, and marking.
(a) Authorized officials. Only the DHS PCII Program Manager is
authorized to validate, and mark information as PCII. The PCII Program
Manager or the Program Manager's designees, may mark information
qualifying under categorical inclusions pursuant to 6 CFR 29.6(f).
(b) Presumption of protection. All information submitted in
accordance with the procedures set forth hereby will be presumed to be
and will be treated as PCII, enjoying the protections of section 214 of
the CII Act, from the time the information is received by the PCII
Program Office or the PCII Program Manager's designee. The information
shall remain protected unless and until the PCII Program Office renders
a final decision that the information is not PCII. The PCII Program
Office will, with respect to information that is not properly
submitted, inform the submitting person or entity within thirty days of
receipt, by a means of communication to be prescribed by the PCII
Program Manager, that the submittal was procedurally defective. The
submitter will then have an additional 30 days to remedy the deficiency
from receipt of such notice. If the submitting person or entity does
not cure the deficiency within thirty calendar days of the date of
receipt of the notification provided in this paragraph, the PCII
Program Office may determine that the presumption of protection is
terminated. Under such circumstances, the PCII Program Office may cure
the deficiency by labeling the submission with the information required
in 6 CFR 29.5 or may notify the applicant that the submission does not
qualify as PCII. No CII submission will lose its presumptive status as
PCII except as provided in 6 CFR 29.6(g).
(c) Marking of information. All PCII shall be clearly identified
through markings made by the PCII Program Office. The PCII Program
Office shall mark PCII materials as follows: ``This document contains
PCII. In accordance with the provisions of 6 CFR Part 29, this document
is exempt from release under the Freedom of Information Act (5 U.S.C.
552(b)(3)) and similar laws requiring public disclosure. Unauthorized
release may result in criminal and administrative penalties. This
document is to be safeguarded and
[[Page 52275]]
disseminated in accordance with the CII Act and the PCII Program
requirements.'' When distributing PCII, the distributing person shall
ensure that the distributed information contains this marking.
(d) Acknowledgement of receipt of information. The PCII Program
Office or the PCII Program Manager's designees shall acknowledge
receipt of information submitted as CII and accompanied by an express
statement, and in so doing shall:
(1) Contact the submitting person or entity, within thirty calendar
days of receipt of the submission of CII, by the means of delivery
prescribed in procedures developed by the PCII Program Manager. In the
case of oral submissions, receipt will be acknowledged in writing
within thirty calendar days after receipt by the PCII Program Office or
the PCII Program Manager's designee of a written statement,
certification, and documents that memorialize the oral submission, as
referenced in 6 CFR 29.5(a)(3)(ii);
(2) Enter the appropriate data into the PCIIMS as required in 6 CFR
29.4(e); and
(3) Provide the submitting person or entity with a unique tracking
number that will accompany the information from the time it is received
by the PCII Program Office or the PCII Program Manager's designees.
(e) Validation of information. (1) The PCII Program Manager shall
be responsible for reviewing all submissions that request protection
under the CII Act. The PCII Program Manager shall review the submitted
information as soon as practicable. If a final determination is made
that the submitted information meets the requirements for protection,
the PCII Program Manager shall ensure that the information has been
marked as required in paragraph (c) of this section, notify the
submitting person or entity of the determination, and disclose it only
pursuant to 6 CFR 29.8.
(2) If the PCII Program Office makes an initial determination that
the information submitted does not meet the requirements for protection
under the CII Act, the PCII Program Office shall:
(i) Notify the submitting person or entity of the initial
determination that the information is not considered to be PCII. This
notification also shall, as necessary:
(A) Request that the submitting person or entity complete the
requirements of 6 CFR 29.5(a)(4) or further explain the nature of the
information and the submitting person or entity's basis for believing
the information qualifies for protection under the CII Act;
(B) Advise the submitting person or entity that the PCII Program
Office will review any further information provided before rendering a
final determination;
(C) Advise the submitting person or entity that the submission can
be withdrawn at any time before a final determination is made;
(D) Notify the submitting person or entity that until a final
determination is made the submission will be treated as PCII;
(E) Notify the submitting person or entity that any response to the
notification must be received by the PCII Program Office no later than
thirty calendar days after the date of the notification; and
(F) Request the submitting person or entity to state whether, in
the event the PCII Program Office makes a final determination that any
such information is not PCII, the submitting person or entity prefers
that the information be maintained without the protections of the CII
Act or returned to the submitter or destroyed. If a request for
withdrawal is made, all such information shall be returned to the
submitting person or entity.
(ii) If the information submitted has not been withdrawn by the
submitting person or entity, and the PCII Program Office, after
following the procedures set forth in paragraph (e)(2)(i) of this
section, makes a final determination that the information is not PCII,
the PCII Program Office, in accordance with the submitting person or
entity's written preference, shall, within thirty calendar days of
making a final determination, return the information to the submitter.
If return to the submitter is impractical, the PCII Program Office
shall destroy the information within 30 days. This process is
consistent with the appropriate National Archives and Records
Administration-approved records disposition schedule. If the submitting
person or entity cannot be notified or the submitting person or
entity's response is not received within thirty calendar days of the
date of the notification as provided in paragraph (e)(2)(i) of this
section, the PCII Program Office shall make the initial determination
final and return the information to the submitter.
(f) Categorical Inclusions of Certain Types of Infrastructure as
PCII. The PCII Program Manager has discretion to declare certain
subject matter or types of information categorically protected as PCII
and to set procedures for receipt and processing of such information.
Information within a categorical inclusion will be considered validated
upon receipt by the Program Office or any of the Program Manager's
designees without further review, provided that the submitter provides
the express statement required by section 214(a)(1). Designees shall
provide to the Program Manager information submitted under a
categorical inclusion.
(g) Changing the status of PCII to non-PCII. Once information is
validated, only the PCII Program Office may change the status of PCII
to that of non-PCII and remove its PCII markings. Status changes may
only take place when the submitting person or entity requests in
writing that the information no longer be protected under the CII Act;
or when the PCII Program Office determines that the information was, at
the time of the submission, customarily in the public domain. Upon
making an initial determination that a change in status may be
warranted, but prior to a final determination, the PCII Program Office,
using the procedures in paragraph (e)(2) of this section, shall inform
the submitting person or entity of the initial determination of a
change in status. Notice of the final change in status of PCII shall be
provided to all recipients of that PCII under 6 CFR 29.8.
Sec. 29.7 Safeguarding of Protected Critical Infrastructure
Information.
(a) Safeguarding. All persons granted access to PCII are
responsible for safeguarding such information in their possession or
control. PCII shall be protected at all times by appropriate storage
and handling. Each person who works with PCII is personally responsible
for taking proper precautions to ensure that unauthorized persons do
not gain access to it.
(b) Background Checks on Persons with Access to PCII. For those who
require access to PCII, DHS will, to the extent practicable and
consistent with the purposes of the Act, undertake appropriate
background checks to ensure that individuals with access to PCII do not
pose a threat to national security. These checks may also be waived in
exigent circumstances.
(c) Use and Storage. When PCII is in the physical possession of a
person, reasonable steps shall be taken, in accordance with procedures
prescribed by the PCII Program Manager, to minimize the risk of access
to PCII by unauthorized persons. When PCII is not in the physical
possession of a person, it shall be stored in a secure environment.
(d) Reproduction. Pursuant to procedures prescribed by the PCII
Program Manager, a document or other material containing PCII may be
reproduced to the extent necessary
[[Page 52276]]
consistent with the need to carry out official duties, provided that
the reproduced documents or material are marked and protected in the
same manner as the original documents or material.
(e) Disposal of information. Documents and material containing PCII
may be disposed of by any method that prevents unauthorized retrieval,
such as shredding or incineration.
(f) Transmission of information. PCII shall be transmitted only by
secure means of delivery as determined by the PCII Program Manager, and
in conformance with appropriate federal standards.
(g) Automated Information Systems. The PCII Program Manager shall
establish security requirements designed to protect information to the
maximum extent practicable, and consistent with the Act, for Automated
Information Systems that contain PCII. Such security requirements will
be in conformance with the information technology security requirements
in the Federal Information Security Management Act and the Office of
Management and Budget's implementing policies.
Sec. 29.8 Disclosure of Protected Critical Infrastructure
Information.
(a) Authorization of access. The Under Secretary for Preparedness,
the Assistant Secretary for Infrastructure Protection, or either's
designee may choose to provide or authorize access to PCII under one or
more of the subsections below when it is determined that this access
supports a lawful and authorized government purpose as enumerated in
the CII Act or other law, regulation, or legal authority.
(b) Federal, State and Local government sharing. The PCII Program
Manager or the PCII Program Manager's designees may provide PCII to an
employee of the Federal government, provided, subject to subsection (f)
of this section, that such information is shared for purposes of
securing the critical infrastructure or protected systems, analysis,
warning, interdependency study, recovery, reconstitution, or for
another appropriate purpose including, without limitation, the
identification, analysis, prevention, preemption, and/or disruption of
terrorist threats to the homeland. PCII may not be used, directly or
indirectly, for any collateral regulatory purpose. PCII may be provided
to a State or local government entity for the purpose of protecting
critical infrastructure or protected systems, or in furtherance of an
investigation or the prosecution of a criminal act. The provision of
PCII to a State or local government entity will normally be made only
pursuant to an arrangement with the PCII Program Manager providing for
compliance with the requirements of paragraph (d) of this section and
acknowledging the understanding and responsibilities of the recipient.
State and local governments receiving such information will acknowledge
in such arrangements the primacy of PCII protections under the CII Act;
agree to assert all available legal defenses to disclosure of PCII
under State, or local public disclosure laws, statutes or ordinances;
and will agree to treat breaches of the agreements by their employees
or contractors as matters subject to the criminal code or to the
applicable employee code of conduct for the jurisdiction.
(c) Disclosure of information to Federal, State and local
government contractors. Disclosure of PCII to Federal, State, and local
contractors may be made when necessary for an appropriate purpose under
the CII Act, and only after the PCII Program Manager or a PCII Officer
certifies that the contractor is performing services in support of the
purposes of the CII Act. The contractor's employees who will be
handling PCII must sign individual nondisclosure agreements in a form
prescribed by the PCII Program Manager, and the contractor must agree
by contract, whenever and to whatever extent possible, to comply with
all relevant requirements of the PCII Program. The contractor shall
safeguard PCII in accordance with these procedures and shall not remove
any ``PCII'' markings. An employee of the contractor may, in the
performance of services in support of the purposes of the CII Act and
when authorized to do so by the PCII Program Manager or the PCII
Program Manager's designee, communicate with a submitting person or an
authorized person of a submitting entity, about a submittal of
information by that person or entity. Contractors shall not further
disclose PCII to any other party not already authorized to receive such
information by the PCII Program Manager or PCII Program Manager's
Designee, without the prior written approval of the PCII Program
Manager or the PCII Program Manager's designee.
(d) Further use or disclosure of information by State, and local
governments. (1) State and local governments receiving information
marked ``Protected Critical Infrastructure Information'' shall not
share that information with any other party not already authorized to
receive such information by the PCII Program Manager or PCII Program
Manager's designee, with the exception of their contractors after
complying with the requirements of paragraph (c) of this section, or
remove any PCII markings, without first obtaining authorization from
the PCII Program Manager or the PCII Program Manager's designees, who
shall be responsible for requesting and obtaining written consent from
the submitter of the information.
(2) State and local governments may use PCII only for the purpose
of protecting critical infrastructure or protected systems, or as set
forth elsewhere in these rules.
(e) Disclosure of information to appropriate entities or to the
general public. PCII may be used to prepare advisories, alerts, and
warnings to relevant companies, targeted sectors, governmental
entities, ISAOs or the general public regarding potential threats and
vulnerabilities to critical infrastructure as appropriate pursuant to
the CII Act. Unless exigent circumstances require otherwise, any such
warnings to the general public will be authorized by the Secretary,
Under Secretary for Preparedness, Assistant Secretary for Cyber
Security and Telecommunications, or Assistant Secretary for
Infrastructure Protection. Such exigent circumstances exist only when
approval of the Secretary, the Under Secretary for Preparedness,
Assistant Secretary for Cyber Security and Telecommunications, or the
Assistant Secretary for Infrastructure Protection cannot be obtained
within a reasonable time necessary to issue an effective advisory,
alert, or warning. In issuing advisories, alerts and warnings, DHS
shall consider the exigency of the situation, the extent of possible
harm to the public or to critical infrastructure, and the necessary
scope of the advisory or warning; and take appropriate actions to
protect from disclosure any information that is proprietary, business
sensitive, relates specifically to, or might be used to identify, the
submitting person or entity, or any persons or entities on whose behalf
the CII was submitted, or is not otherwise appropriately in the public
domain. Depending on the exigency of the circumstances, DHS may consult
or cooperate with the submitter in making such advisories, alerts or
warnings.
(f) Disclosure for law enforcement purposes and communication with
submitters; access by Congress, the Comptroller General, and the
Inspector General; and whistleblower protection.--(1) Exceptions for
disclosure. (i) PCII shall not, without the written consent of the
person or entity submitting such information, be used or
[[Page 52277]]
disclosed for purposes other than the purposes of the CII Act, except--
(A) In furtherance of an investigation or the prosecution of a
criminal act by the Federal government, or by a State, local, or
foreign government, when such disclosure is coordinated by a Federal
law enforcement official;
(B) To communicate with a submitting person or an authorized person
on behalf of a submitting entity, about a submittal of information by
that person or entity when authorized to do so by the PCII Program
Manager or the PCII Program Manager's designee; or
(C) When disclosure of the information is made by any officer or
employee of the United States--
(1) To either House of Congress, or to the extent of matter within
its jurisdiction, any committee or subcommittee thereof, any joint
committee thereof or subcommittee of any such joint committee; or
(2) To the Comptroller General, or any authorized representative of
the Comptroller General, in the course of the performance of the duties
of the Government Accountability Office.
(ii) If any officer or employee of the United States makes any
disclosure pursuant to these exceptions, contemporaneous written
notification must be provided to DHS through the PCII Program Manager.
(2) Consistent with the authority to disclose information for any
of the purposes of the CII Act, disclosure of PCII may be made, without
the written consent of the person or entity submitting such
information, to the DHS Inspector General.
(g) Responding to requests made under the Freedom of Information
Act or State, local, and tribal information access laws. PCII shall be
treated as exempt from disclosure under the Freedom of Information Act
and any State or local law requiring disclosure of records or
information. Any Federal, State, local, or tribal government agency
with questions regarding the protection of PCII from public disclosure
shall contact the PCII Program Manager, who shall in turn consult with
the DHS Office of the General Counsel.
(h) Ex parte communications with decisionmaking officials. Pursuant
to section 214(a)(1)(B) of the Homeland Security Act of 2002, PCII is
not subject to any agency rules or judicial doctrine regarding ex parte
communications with a decisionmaking official.
(i) Restriction on use of PCII in civil actions. Pursuant to
section 214(a)(1)(C) of the Homeland Security Act of 2002, PCII shall
not, without the written consent of the person or entity submitting
such information, be used directly by any Federal, State or local
authority, or by any third party, in any civil action arising under
Federal, State, local, or tribal law.
Sec. 29.9 Investigation and reporting of violation of PCII
procedures.
(a) Reporting of possible violations. Persons authorized to have
access to PCII shall report any suspected violation of security
procedures, the loss or misplacement of PCII, and any suspected
unauthorized disclosure of PCII immediately to the PCII Program Manager
or the PCII Program Manager's designees. Suspected violations may also
be reported to the DHS Inspector General. The PCII Program Manager or
the PCII Program Manager's designees shall in turn report the incident
to the appropriate Security Officer and to the DHS Inspector General.
(b) Review and investigation of written report. The PCII Program
Manager, or the appropriate Security Officer shall notify the DHS
Inspector General of their intent to investigate any alleged violation
of procedures, loss of information, and/or unauthorized disclosure,
prior to initiating any such investigation. Evidence of wrongdoing
resulting from any such investigations by agencies other than the DHS
Inspector General shall be reported to the Department of Justice,
Criminal Division, through the DHS Office of the General Counsel. The
DHS Inspector General also has authority to conduct such
investigations, and shall report any evidence of wrongdoing to the
Department of Justice, Criminal Division, for consideration of
prosecution.
(c) Notification to originator of PCII. If the PCII Program Manager
or the appropriate Security Officer determines that a loss of
information or an unauthorized disclosure has occurred, the PCII
Program Manager or the PCII Program Manager's designees shall notify
the person or entity that submitted the PCII, unless providing such
notification could reasonably be expected to hamper the relevant
investigation or adversely affect any other law enforcement, national
security, or homeland security interest.
(d) Criminal and administrative penalties. (1) As established in
section 214(f) of the CII Act, whoever, being an officer or employee of
the United States or of any department or agency thereof, knowingly
publishes, divulges, discloses, or makes known in any manner or to any
extent not authorized by law, any information protected from disclosure
by the CII Act coming to the officer or employee in the course of his
or her employment or official duties or by reason of any examination or
investigation made by, or return, report, or record made to or filed
with, such department or agency or officer or employee thereof, shall
be fined under title 18 of the United States Code, imprisoned not more
than one year, or both, and shall be removed from office or employment.
(2) In addition to the penalties set forth in paragraph (d)(1) of
this section, if the PCII Program Manager determines that an entity or
person who has received PCII has violated the provisions of this Part
or used PCII for an inappropriate purpose, the PCII Program Manager may
disqualify that entity or person from future receipt of any PCII or
future receipt of any sensitive homeland security information under
section 892 of the Homeland Security Act, provided, however, that any
such decision by the PCII Program Manager may be appealed to the Office
of the Under Secretary for Preparedness.
Michael Chertoff,
Secretary.
[FR Doc. 06-7378 Filed 8-31-06 8:45 am]
BILLING CODE 4410-10-P