The Department of Defense (DoD) on October 4, 2016, issued a
rule finalizing cyber reporting regulations applicable to DoD
contractors and subcontractors set forth in 32 CFR Part 236.
The rule finalizes an interim rule DoD issued on October 2, 2015
and addresses cyber incident reporting obligations for DoD
prime contractors and subcontractors.
Notably, the final rule clarifies the by now well-known
definition of the term 'covered defense information'
("CDI"). This same term is used in DFARS
252.204-7012. This DFARS clause defines CDI to include four
different categories: (1) covered technical information
("CTI"); (2) operations security; (3) export controlled
information; and (4) any other information, marked or otherwise
identified in the contract, that requires safeguarding or
dissemination controls pursuant to and consistent with law,
regulations, and government-wide policies.
Given the similarities of this final category to the definition
of controlled unclassified information ("CUI")
promulgated in connection with the National Archives and Records
Administration's (NARA) rule, we have understood this
latter category to include CUI identified by NARA pursuant to its
efforts under EO 13556. The DoD's new final rule provides
support for this understanding because it narrows the definition of
CDI to only two categories: (1) CTI and (2) CUI. This
modification accordingly appears to make clear that the
"catch-all" category of CDI contained in DFARS
252.204-7012 was intended to align with NARA's CUI efforts.
Importantly, this final rule makes no changes to the DFARS
clause itself, and it is likely that conforming changes will
be made to the DFARS clause in a future revision. The
December 2015 version of the DFARS clause remains effective.
Nevertheless, in light of the final rule contractors and
subcontractors seeking to understand the scope of the CDI
under the DFARS clause should include CUI in their review as they
await further revision to the clause.
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