S 3662 PCS

To establish the Controlled Unclassified Information Office, to require policies and procedures for the designation, marking, safeguarding, and dissemination of controlled unclassified information, and for other purposes.

October 1 (legislative day, September 17), 2008

Mr. LIEBERMAN, from the Committee on Homeland Security and Governmental Affairs, reported the following original bill; which was read twice and placed on the calendar

To establish the Controlled Unclassified Information Office, to require policies and procedures for the designation, marking, safeguarding, and dissemination of controlled unclassified information, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Implementing the Controlled Unclassified Information Framework Act of 2008'.

SEC. 2. DEFINITIONS.

In this Act:

(1) CONTROLLED UNCLASSIFIED INFORMATION- The term `controlled unclassified information' means information that--

(A) is not classified information, as that term is defined in section 1 of the Classified Information Procedures Act (18 U.S.C. App.);

(B) does not meet the standards for National Security Classification under Executive Order 12958;

(C) is pertinent to the national interests of the United States or to the important interests of entities outside the Federal Government; and

(D) under a Federal statute, executive order, Presidential memorandum, or regulation requires protection from unauthorized disclosure, special handling safeguards, or prescribed limits on exchange or dissemination.

(2) CONTROLLED UNCLASSIFIED INFORMATION FRAMEWORK- The term `controlled unclassified information framework' means a set of policies and procedures governing the designation, marking, safeguarding, and dissemination of controlled unclassified information that originates in a Federal department or agency, regardless of the medium used for the display, storage, or transmittal of such information.

(3) COUNCIL- The term `Council' means the Controlled Unclassified Information Council established under section 3(c).

(4) FEDERAL DEPARTMENT OR AGENCY- The term `Federal department or agency'--

(A) means an Executive agency, as defined in section 105 of title 5, United States Code, a military department, as defined in section 102 of title 5, or the United States Postal Service; and

(B) does not include the Government Accountability Office.

(5) INFORMATION SHARING COUNCIL- The term `Information Sharing Council' has the meaning given that term in section 1016 of the Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 485).

(6) UNITED STATES PERSON- The term `United States person' has the meaning give that term in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).

SEC. 3. CONTROLLED UNCLASSIFIED INFORMATION FRAMEWORK.

(a) Controlled Unclassified Information Office- There is established within the National Archives and Records Administration a Controlled Unclassified Information Office, which shall be headed by a Director, who shall be appointed by, and report directly to, the Archivist of the United States.

(b) Authorities and Responsibilities- The Archivist of the United States, acting through the Director of the Controlled Unclassified Information Office, shall--

(1) in consultation with the Council, develop and publicly issue the controlled unclassified information framework and controlled unclassified information implementation guidance (including appropriate recommendations to State, local, and tribal governments, law enforcement agencies, and private sector entities for implementing the controlled unclassified information framework) that are consistent with this Act and the document issued by the President on May 7, 2008, entitled `Designation and Sharing of Controlled Unclassified Information (CUI)', and any successor thereto;

(2) establish safeguarding and dissemination controls, and, upon a determination that extraordinary circumstances warrant the use of additional controlled unclassified information markings, authorize the use of such additional markings;

(3) establish and serve as the chairperson of the Council and work with the members of the Council to develop a consensus regarding the contents of the controlled unclassified information framework;

(4) for any aspect of the controlled unclassified information framework relating to which the Council is not able to reach a consensus, consult with the chairperson of the Information Sharing Council;

(5) establish, approve, and maintain safeguarding standards and dissemination instructions for controlled unclassified information, including specified dissemination requirements proposed by the head of a Federal department or agency;

(6) publish controlled unclassified information safeguarding and dissemination standards and instructions;

(7) establish standards for the designating of controlled unclassified information;

(8) monitor compliance by each Federal department or agency with controlled unclassified information policy, standards, and markings;

(9) establish baseline training requirements and develop a Governmentwide controlled unclassified information training program to be implemented by each Federal department or agency;

(10) provide appropriate information regarding the controlled unclassified information framework to Congress, State, local, and tribal governments, private sector entities, and relevant experts;

(11) advise the head of each Federal department or agency on the resolution by the Council of complaints and disputes among Federal departments or agencies concerning the proper designation or marking of controlled unclassified information;

(12) ensure that all relevant documents regarding the controlled unclassified information framework, including implementation guidance issued by the Archivist of the United States, implementation guidance issued by the head of the Federal department or agency, safeguarding and dissemination standards and instructions, specified dissemination requirements proposed by the head of a Federal department or agency under paragraph (5), and the annual report required under subsection (j)(1), are made available on the website of the National Archives and Records Administration in a timely manner; and

(13) establish, in consultation with any affected Federal department or agency, a process that addresses enforcement mechanisms and penalties for improper handling of controlled unclassified information.

(c) Controlled Unclassified Information Council-

(1) ESTABLISHMENT- There is established as a subcommittee of the Information Sharing Council a Controlled Unclassified Information Council.

(2) MEMBERS- The head of each Federal department or agency that has a representative on the Information Sharing Council and any other Federal department or agency determined appropriate by the Archivist of the United States shall appoint a representative to the Council, who may be the officer or employee appointed by the head of the Federal department or agency as a member of the Information Sharing Council.

(d) Responsibilities of the Council- The Council shall--

(1) serve as the primary advisor to the Archivist of the United States on issues relating to the controlled unclassified information framework;

(2) advise the Archivist of the United States in developing procedures, guidelines, and standards necessary to establish, implement, and maintain the controlled unclassified information framework;

(3) ensure coordination among each Federal department or agency participating in the controlled unclassified information framework;

(4) advise the Archivist of the United States on the resolution of complaints and disputes among Federal departments or agencies about proper designation or marking of controlled unclassified information; and

(5) as appropriate, consult with any other subcommittee of the Information Sharing Council, Congress, State, local, and tribal governments, private sector entities, and relevant experts.

(e) Agency Responsibilities- The head of each Federal department or agency that uses controlled unclassified information shall--

(1) implement the controlled unclassified information framework consistent with the implementation guidance issued under subsection (b)(1);

(2) publicly issue guidance for the implementation of the controlled unclassified information framework within the Federal department or agency, consistent with the implementation guidance issued under subsection (b)(1);

(3) designate an appropriately qualified senior officer with the Federal department or agency as the representative of the Federal department or agency on the Council;

(4) implement a controlled unclassified information training program for the Federal department or agency, based on the Governmentwide training program established under subsection (b)(9), and ensure all appropriate personnel understand controlled unclassified information policies and procedures, and can apply them when creating, disseminating, or safeguarding controlled unclassified information material;

(5) establish a process that enables the Federal department or agency to address noncompliance with or misuse of the controlled unclassified information framework within the Federal department or agency (including a process that allows an officer or employee of the Federal department or agency to challenge the use of controlled unclassified information markings), and ensure management and oversight issues or concerns can be resolved by the appropriate officer of the Federal department or agency;

(6) establish a process within the Federal department or agency that, where appropriate, promptly raises to the Archivist of the United States matters of concern regarding the controlled unclassified information framework;

(7) consistent with the standards established under subsection (b)(7), and where appropriate, develop tools to track and monitor the designation of controlled unclassified information by employees and contractors of the Federal department or agency, for the purpose of assessing compliance with and detecting the misuse of the controlled unclassified information framework;

(8) provide training to officers and employees of the Federal department or agency on the controlled unclassified information framework; and

(9) ensure that, not later than May 9, 2013, the Federal department or agency has fully implemented the controlled unclassified information framework, consistent with policies, guidance, and standards established by the Archivist of the United States.

(f) Implementation of the Controlled Unclassified Information Framework- In carrying out subsection (e), the head of a Federal department or agency shall ensure that--

(1) information is designated as controlled unclassified information and includes an authorized controlled unclassified information marking only if--

(A) a statute requires or authorizes such a designation and marking; or

(B) the head of the Federal department or agency, through a regulation, directive, or other specific guidance to the Federal department or agency that has been submitted to and approved by the Archivist of the United States and published on the website of the National Archives and Records Administration, determines that the information is controlled unclassified information based on criteria established by the Archivist of the United States, in consultation with the heads of Federal departments and agencies;

(2) notwithstanding paragraph (1), information is not designated as controlled unclassified information--

(A) to conceal a violation of law, inefficiency, or administrative error;

(B) to prevent embarrassment to the Federal Government, a State, local, tribal, or territorial government, any official, department, agency, or organization of the Federal Government or a State, local, tribal, or territorial government, or any organization;

(C) to improperly or unlawfully interfere with competition in the private sector;

(D) to prevent or delay the release of information that does not require such protection;

(E) if the information is required to be made available to the public; or

(F) if the information has already been released to the public under proper authority; and

(3) the controlled unclassified information framework is administered in a manner that ensures that--

(A) information sharing within the Federal Government and with State, local, tribal, and territorial governments, the private sector, and the public is enhanced and improved as a result of the implementation of the controlled unclassified information framework;

(B) all policies and standards of the Federal department or agency for the designation, marking, safeguarding, and dissemination of controlled unclassified information are consistent with the controlled unclassified information framework and any other policies, guidelines, procedures, instructions, or standards established by the President, including in any Presidential memoranda or executive orders;

(C) the controlled unclassified information framework is implemented in a manner consistent with applicable law, including Federal and State laws protecting the privacy rights and other legal rights of United States persons;

(D) the number of employees and contractors of the Federal department or agency who have the authority to designate information as controlled unclassified information is limited appropriately;

(E) controlled unclassified information markings are not a determinant of public disclosure under section 552 of title 5, United States Code (commonly referred to as the `Freedom of Information Act');

(F) controlled unclassified information markings are placed on archived or legacy material whenever circulated, consistent with the controlled unclassified information framework and any other policies, guidelines, procedures, instructions, or standards established by the President, including in any executive memorandum or executive order;

(G) material that contains controlled unclassified information and information that is not controlled unclassified information, or that contains multiple categories of controlled unclassified information, is marked accordingly by portions such that those categorical distinctions are apparent; and

(H) the controlled unclassified information framework supersedes any policy or procedure relating to the creation, control, and sharing of sensitive but unclassified information issued by the Federal department or agency before the date of enactment of this Act, except where otherwise provided by law.

(g) Public Access to Unclassified Information- A Federal department or agency shall make available to members of the public all controlled unclassified information and other unclassified information in the possession of the Federal department or agency that may be released under an appropriate request under section 552 of title 5, United States Code (commonly referred to as the `Freedom of Information Act').

(h) Rule of Construction- Nothing in this section may be construed to prevent or discourage a Federal department or agency from voluntarily releasing to the public any unclassified information that is not exempt from disclosure under section 552 of title 5, United States Code (commonly referred to as the `Freedom of Information Act').

(i) Congressional Access to Unclassified Information- The right of Congress to obtain access to and release unclassified information, including controlled unclassified information, shall remain unimpeded by the provisions of this Act.

(j) Reporting and Oversight Requirements-

(1) ANNUAL REPORT-

(A) IN GENERAL- Not less frequently than once each year, the Archivist of the United States shall submit to Congress a report on the implementation of the controlled unclassified information framework.

(B) CONTENTS- Each report submitted under subparagraph (A) shall include--

(i) an overall assessment on the implementation of the controlled unclassified information framework by the Federal Government;

(ii) an assessment of the efforts by each Federal department or agency to implement the controlled unclassified information framework;

(iii) an estimate of the costs and savings associated with the implementation of the controlled unclassified information framework;

(iv) a description of the activities of the Council; and

(v) recommendations on how to improve the sharing of controlled unclassified information within the Federal Government and with State, local and tribal governments.

(2) INSPECTORS GENERAL- Not later than 5 years after the date of enactment of this Act, the Inspectors General of each Federal department or agency that is a member of the Information Sharing Council and the Inspectors General of the Environmental Protection Agency and Nuclear Regulatory Commission shall--

(A) audit the compliance of the applicable Federal department or agency with this Act and the policies and procedures established under the controlled unclassified information framework; and

(B) submit a report on the findings of the audit by the Inspector General under this paragraph to--

(i) the Committee on Oversight and Government Reform of the House of Representatives;

(ii) the Committee on Homeland Security and Governmental Affairs of the Senate;

(iii) any other committee of Congress with jurisdiction of the applicable Federal department or agency, as appropriate; and

(iv) the Archivist of the United States.

(k) Authorization of Appropriations- There are authorized to be appropriated to the Archivist of the United States to carry out this Act--

(1) $2,500,000 for fiscal year 2009;

(2) $2,500,000 for fiscal year 2010;

(3) $3,500,000 for fiscal year 2011;

(4) $3,500,000 for fiscal year 2012; and

(5) $2,500,000 for fiscal year 2013.

Calendar No. 1106

To establish the Controlled Unclassified Information Office, to require policies and procedures for the designation, marking, safeguarding, and dissemination of controlled unclassified information, and for other purposes.

October 1 (legislative day, September 17), 2008