Title 32 Part 2002 → Subpart C

Title 32 → Subtitle B → Chapter XX → Part 2002 → Subpart C

Electronic Code of Federal Regulations e-CFR

Title 32 Part 2002 → Subpart C

e-CFR data is current as of January 24, 2020

Title 32Subtitle BChapter XXPart 2002 → Subpart C

Title 32: National Defense

§2002.30   Education and training.

(a) The CUI SAO must establish and implement an agency training policy. At a minimum, the training policy must address the means, methods, and frequency of agency CUI training.

(b) Agency training policy must ensure that personnel who have access to CUI receive training on designating CUI, relevant CUI categories and subcategories, the CUI Registry, associated markings, and applicable safeguarding, disseminating, and decontrolling policies and procedures.

(c) Agencies must train employees on these matters when the employees first begin working for the agency and at least once every two years thereafter.

(d) The CUI EA reviews agency training materials to ensure consistency and compliance with the Order, this part, and the CUI Registry.

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§2002.32   CUI cover sheets.

(a) Agencies may use cover sheets for CUI. If an agency chooses to use cover sheets, it must use CUI EA-approved cover sheets, which agencies can find on the CUI Registry.

(b) Agencies may use cover sheets to identify CUI, alert observers that CUI is present from a distance, and serve as a shield to protect the attached CUI from inadvertent disclosure.

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§2002.34   Transferring records.

(a) When feasible, agencies must decontrol records containing CUI prior to transferring them to NARA.

(b) When an agency cannot decontrol records before transferring them to NARA, the agency must:

(1) Indicate on a Transfer Request (TR) in NARA's Electronic Records Archives (ERA) or on an SF 258 paper transfer form, that the records should continue to be controlled as CUI (subject to NARA's regulations on transfer, public availability, and access; see 36 CFR parts 1235, 1250, and 1256); and

(2) For hard copy transfer, do not place a CUI marking on the outside of the container.

(c) If the agency does not indicate the status as CUI on the TR or SF 258, NARA may assume the agency decontrolled the information prior to transfer, regardless of any CUI markings on the actual records.

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§2002.36   Legacy materials.

(a) Agencies must review documents created prior to November 14, 2016 and re-mark any that contain information that qualifies as CUI in accordance with the Order, this part, and the CUI Registry. When agencies do not individually re-mark legacy material that qualifies as CUI, agencies must use an alternate permitted marking method (see §2002.20(a)(8)).

(b) When the CUI SAO deems re-marking legacy documents to be excessively burdensome, the CUI SAO may grant a legacy material marking waiver under §2002.38(b).

(c) When the agency re-uses any information from legacy documents that qualifies as CUI, whether the documents have obsolete control markings or not, the agency must designate the newly-created document (or other re-use) as CUI and mark it accordingly.

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§2002.38   Waivers of CUI requirements.

(a) Limited CUI marking waivers within the agency. When an agency designates information as CUI but determines that marking it as CUI is excessively burdensome, an agency's CUI SAO may approve waivers of all or some of the CUI marking requirements while that CUI remains within agency control.

(b) Limited legacy material marking waivers within the agency. (1) In situations in which the agency has a substantial amount of stored information with legacy markings, and removing legacy markings and designating or re-marking it as CUI would be excessively burdensome, the agency's CUI SAO may approve a waiver of these requirements for some or all of that information while it remains under agency control.

(2) When an authorized holder re-uses any legacy information or information derived from legacy documents that qualifies as CUI, they must remove or redact legacy markings and designate or re-mark the information as CUI, even if the information is under a legacy material marking waiver prior to re-use.

(c) Exigent circumstances waivers. (1) In exigent circumstances, the agency head or the CUI SAO may waive the provisions and requirements established in this part or the CUI Registry for any CUI while it is within the agency's possession or control, unless specifically prohibited by applicable laws, regulations, or Government-wide policies.

(2) Exigent circumstances waivers may apply when an agency shares the information with other agencies or non-Federal entities. In such cases, the authorized holders must make recipients aware of the CUI status of any disseminated information.

(d) For all waivers. (1) The CUI SAO must still ensure that the agency appropriately safeguards and disseminates the CUI. See §2002.20(a)(7);

(2) The CUI SAO must detail in each waiver the alternate protection methods the agency will employ to ensure protection of CUI subject to the waiver;

(3) All marking waivers apply to CUI subject to the waiver only while that agency continues to possess that CUI. No marking waiver may accompany CUI when an authorized holder disseminates it outside that agency;

(4) Authorized holders must uniformly and conspicuously apply CUI markings to all CUI prior to disseminating it outside the agency unless otherwise specifically permitted by the CUI EA; and

(5) When the circumstances requiring the waiver end, the CUI SAO must reinstitute the requirements for all CUI subject to the waiver without delay.

(e) The CUI SAO must:

(1) Retain a record of each waiver;

(2) Include a description of all current waivers and waivers issued during the preceding year in the annual report to the CUI EA, along with the rationale for each waiver and the alternate steps the agency takes to ensure sufficient protection of CUI; and

(3) Notify authorized recipients and the public of these waivers.

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§2002.44   CUI and disclosure statutes.

(a) General policy. The fact that an agency designates certain information as CUI does not affect an agency's or employee's determinations pursuant to any law that requires the agency or the employee to disclose that information or permits them to do so as a matter of discretion. The agency or employee must make such determinations according to the criteria set out in the governing law, not on the basis of the information's status as CUI.

(b) CUI and the Freedom of Information Act (FOIA). Agencies must not cite the FOIA as a CUI safeguarding or disseminating control authority for CUI. When an agency is determining whether to disclose information in response to a FOIA request, the agency must base its decision on the content of the information and applicability of any FOIA statutory exemptions, regardless of whether an agency designates or marks the information as CUI. There may be circumstances in which an agency may disclose CUI to an individual or entity, including through a FOIA response, but such disclosure does not always constitute public release as defined in this part. Although disclosed via a FOIA response, the agency may still need to control the CUI while the agency continues to hold the information, despite the disclosure, unless the agency otherwise decontrols it (or the agency includes in its policies that FOIA disclosure always results in public release and the CUI does not otherwise have another legal requirement for its continued control).

(c) CUI and the Whistleblower Protection Act. This part does not change or affect existing legal protections for whistleblowers. The fact that an agency designates or marks certain information as CUI does not determine whether an individual may lawfully disclose that information under a law or other authority, and does not preempt or otherwise affect whistleblower legal protections provided by law, regulation, or executive order or directive.

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§2002.46   CUI and the Privacy Act.

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

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

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

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§2002.50   Challenges to designation of information as CUI.

(a) Authorized holders of CUI who, in good faith, believe that its designation as CUI is improper or incorrect, or who believe they have received unmarked CUI, should notify the disseminating agency of this belief. When the disseminating agency is not the designating agency, the disseminating agency must notify the designating agency.

(b) If the information at issue is involved in Government litigation, or the challenge to its designation or marking as CUI arises as part of the litigation, the issue of whether the challenger may access the information will be addressed via the litigation process instead of by the agency CUI program. Challengers should nonetheless notify the agency of the issue through the agency process described below, and include its litigation connection.

(c) CUI SAOs must create a process within their agency to accept and manage challenges to CUI status. At a minimum, this process must include a timely response to the challenger that:

(1) Acknowledges receipt of the challenge;

(2) States an expected timetable for response to the challenger;

(3) Provides an opportunity for the challenger to define a rationale for belief that the CUI in question is inappropriately designated;

(4) Gives contact information for the official making the agency's decision in this matter; and

(5) Ensures that challengers who are authorized holders have the option of bringing such challenges anonymously, and that challengers are not subject to retribution for bringing such challenges.

(d) Until the challenge is resolved, authorized holders should continue to safeguard and disseminate the challenged CUI at the control level indicated in the markings.

(e) If a challenging party disagrees with the response to a challenge, that party may use the Dispute Resolution procedures described in §2002.52.

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§2002.52   Dispute resolution for agencies.

(a) When laws, regulations, or Government-wide policies governing the CUI involved in a dispute set out specific procedures, processes, and requirements for resolving disputes, agencies must follow those processes for that CUI. This includes submitting the dispute to someone other than the CUI EA for resolution if the authority so requires. If the CUI at issue is involved in litigation, the agency should refer the issue to the appropriate attorneys for resolution through the litigation process.

(b) When laws, regulations, and Government-wide policies governing the CUI do not set out specific procedures, processes, or requirements for CUI dispute resolution (or the information is not involved in litigation), this part governs.

(c) All parties to a dispute arising from implementing or interpreting the Order, this part, or the CUI Registry should make every effort to resolve the dispute expeditiously. Parties should address disputes within a reasonable, mutually acceptable time period, taking into consideration the parties' mission, sharing, and protection requirements.

(d) If parties to a dispute cannot reach a mutually acceptable resolution, either party may refer the matter to the CUI EA.

(e) The CUI EA acts as the impartial arbiter of the dispute and has the authority to render a decision on the dispute after consulting with all affected parties. If a party to the dispute is also a member of the Intelligence Community, the CUI EA must consult with the Office of the Director of National Intelligence when the CUI EA receives the dispute for resolution.

(f) Until the dispute is resolved, authorized holders should continue to safeguard and disseminate any disputed CUI at the control level indicated in the markings, or as directed by the CUI EA if the information is unmarked.

(g) Parties may appeal the CUI EA's decision through the Director of OMB to the President for resolution, pursuant to section 4(e) of the Order. If one of the parties to the dispute is the CUI EA and the parties cannot resolve the dispute under paragraph (c) of this section, the parties may likewise refer the matter to OMB for resolution.

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§2002.54   Misuse of CUI.

(a) The CUI SAO must establish agency processes and criteria for reporting and investigating misuse of CUI.

(b) The CUI EA reports findings on any incident involving misuse of CUI to the offending agency's CUI SAO or CUI Program manager for action, as appropriate.

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§2002.56   Sanctions for misuse of CUI.

(a) To the extent that agency heads are otherwise authorized to take administrative action against agency personnel who misuse CUI, agency CUI policy governing misuse should reflect that authority.

(b) Where laws, regulations, or Government-wide policies governing certain categories or subcategories of CUI specifically establish sanctions, agencies must adhere to such sanctions.

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