Q&A from May 19 class
Question: Will unclassified contracts have DD 254s issued to provide CUI Guidance or will unclassified contracts have simple attachments similar to the current FOUO for guidance??
Answer: DD 254’s are only to be used with contracts that include CNSI requirements. The CUI EA has been working to develop a FAR case(with GSA, DoD, NASA, DHS) that will be used to standardize the way Executive branch agencies convey safeguarding guidance for CUI. This FAR case includes a draft standard form,similar to the DD 254, that is intended to consolidate where contract related CUI requirements are conveyed).
Question: Will CUI Training be available through CDSE?
Answer: Likely. . It is our understanding that DoD is working to develop CUI Training and that some CUI Training may be included on CDSE, who will be required to take the training and what training requirements it will meet are still to be decided by DoD. Specific questions regarding DoD’s implementation can be directed to: osd.pentagon.ousd-intel-sec.mbx.dod-cui@mail.mil Current information about CUI on the CDSE platform can be found at https://www.cdse.edu/toolkits/cui/index.php
Question: Who is the responsible party for issuing Legacy CUI marking waivers?
Answer: Per 32 CFR 2002.38 agency Senior Agency Officials (SAO) may issue marking waivers for CUI while it remains under agency control.
Question: Can you point out the agency CUI POC list?
Answer: https://www.archives.gov/cui/about/contact.html#contact-an-agency
Question: who is responsible for marking CUI. We have run into agencies failing to do so. If we don’t generate the material what is contractor responsibility?
Answer: Upon implementation, agencies are responsible for marking or identifying any CUI shared with non-federal entities. Questions regarding the status of information (marked or unmarked) should be directed back to the contracting activity. Keep in mind, many agencies are not yet marking CUI and are still implementing the elements of the CUI program. Contractors should not follow CUI program requirements or markings until directed to do so in a contract or agreement.
Question: Define AGENCY when discussing Legacy Information
Answer: Agency (also Federal agency, executive agency, executive branch agency) is any “executive agency,” as defined in 5 U.S.C. 105; the United States Postal Service; and any other independent entity within the executive branch that designates or handles CUI.
Question: What do you consider reuse of CUI?
Answer: Re-use means incorporating, restating, or paraphrasing information from its originally designated form into a newly created document.
Question: What’s the difference between CUI and Controlled?
Answer: There is no difference, both are authorized CUI Control Markings and can be used interchangeably unless limited by agency policy
Question: You authorize “NOFORN” and “REL TO” as dissemination control markings. Why don’t we have a marking equivalent to “RELIDO” (which is an intelligence marking that allows authorized people downstream to further disseminate as needed without going back to the originator)?
Answer: The only authorized Limited Dissemination Control (LDC) markings that can be used with CUI are those found on the CUI Registry. CUI Notice 2018-07(https://www.archives.gov/files/cui/documents/20181116-cui-notice-2018-07-limited-dissemination-controls.pdf) describes the proper use of LDC and also the process for submitting new/additional LDCs for use with CUI. The dissemination of all CUI is governed by the principle of “Lawful Government Purpose” this means that any recipient of CUI be deemed to have a mission related purpose to receive the information and that there must be no prohibition to that dissemination in law, regulation, or governmentwide policy. If an agency wishes to communicate a restriction beyond this, any of the above mentioned dissemination controls can be applied as appropriate.
Question: Can you give a few examples of CUI Basic?
Answer: The CUI Registry lists all authorized CUI Categories (basic and specified). https://www.archives.gov/cui/registry/category-marking-list The categories on this page that do not have a marking with “SP-” are CUI basic categories, like the Agriculture category and the Asylee category.
Question: For Industry Contractors, do we ever mark CUI?
Answer: Yes, but only when instructed to do so in the contract or supporting documentation.
Question: Are we basically only concerned with protecting CUI that we actually receive from our government customer?
Answer: CUI must be safeguarded in accordance with the contract, whether it is created or collected for the government or shared from the government to the contractor.
Question: Especially when talking about Legacy information, do we just wait until the government agency sends us new documents that are marked CUI?
Answer: Any information received or created as part of a current or previous contract should be protected in accordance with the terms of the contract under which it was received or created.As agencies implement, CUI requirements will be added to existing and new contracts.
Question: What do you do if you have your customer marking every document as CONTROLLED with no true banner marking. Is that considered Basic? The word Controlled is an authorized bannermarking for Basic CUI.
Answer: Under the CUI program, information marked “CONTROLLED” without additional markings would be CUI basic. Confirm with your customer and your contract that they are using CUI markings and ensure you follow any and all requirements in your contract or agreement.
Question: How do you navigate a situation where you feel you have CUI but it hasn’t been marked appropriately?
Answer: Questions regarding the status of CUI should be directed to the originator of the information or the contracting activity.
Question: What is the difference between U//FOUO and CUI?
Answer: U//FOUO is a legacy marking used to indicate sensitivity based on agency policy or practice. CUI is a marking that is used to indicate the presence of CUI basic information. CUI Markings are applied only to those information types (categories) found on the CUI Registry and can be linked to laws, regulations, or Government wide policies calling for protection or control of the information. As the CUI Program is implemented U//FOUO will cease to be an authorized marking, but you may still see it on legacy documents as we transition to CUI.
Question: Banner Marking and document marking works for unstructured data? What about marking structured data such as databases?
Answer: For databases or applications, splash screens or banner marking can be used to satisfy the marking and identification requirements of the CUI Program. System outputs can also be modified to apply markings upon printing or downloading from the application. The CUI office is working with NIEM to create a CUI Metadata standard that can be used to indicate CUI markings. Check the CUI blog for updates on this project,
Question: Do you mark/tag fields in the Database or categorize the system itself?
Answer: Individual fields can be marked or a general alert can be placed on entry into the database/system. System outputs should be modified to include applicable CUI markings as needed.
Question: How would I mark/tag a system?
Answer: See the CUI Marking handbook, page 27
Question: What you’re saying is purple is recommended, but not required?
Answer: The SF 901 is Purple. If color printing is not available, the form can be printed using a black and white printer.
Question: To clarify Contractors only have to mark CUI if their contract requires it?
Answer: Yes. Contractors need to follow whatever guidelines are in their contract, as the CUI program is an executive branch program CUI requirements do not bind the public, except as authorized by law or regulation or as incorporated into a contract or agreement.
Question: Are there reporting requirements and corrective actions for CUI spillage, similar to those present for Classified information?
Answer: Agencies/organizations should develop reporting requirements/mechanisms for CUI incidents. Certain categories of CUI (like Privacy) have special reporting requirements for loss or incidents.
Question: So CUI designation is replacing anything that we would have labeled FOUO//?
Answer: Once agencies implement the CUI Program, legacy markings such as FOUO or SBU will no longer be used. In many cases what was previously marked as FOUO would align and be able to be marked as CUI. There are some information types currently marked as FOUO that may not qualify as CUI.
Question: How should industry label their computers or usb containing cui. what should the label contain?
Answer: SF 902 and 903 can be used by industry to label hard drives or USBs (media) that contain CUI. They can be ordered from GSA here https://www.gsaadvantage.gov/advantage/ws/search/advantage_search?q=0:27540-01-679-3318&db=0&searchType=0
Question: What about ITAR controls?
Answer: Please see the Export Control Category of CUI. https://www.archives.gov/cui/registry/category-detail/export-control.html
Question: Do Industry personnel (FSO, etc) have authority to generate original CUI?
Answer: Maybe. Depending on the terms of the contract, industry may have the authority to generate CUI on behalf of the USG.
Question: What’s the difference between CUI, FOUO, and the Privacy Act Coversheets and markings?
Answer: The CUI Coversheet (SF 901) is authorized for use with CUI. Upon the implementation of the CUI Program, coversheets (and markings) that are not required per underlying authorities, such as FOUO and Privacy Act, may no longer be used.
Question: As a subcontractor, doesn’t our customer have to flow down what is CUI?
Answer: The Draft CUI FAR case will have strict flowdown requirements much like the DFARs 252.204-7012. Flowdown requirements should be reflected in the primary contract.
Question: Are you familiar with any solutions that can automate the process of email marking?
Answer: We are aware of a number of efforts within industry and within agencies to develop automated/assisted marking solutions for CUI. There are no plans, by the CUI Executive Agent/ISOO, to publish an evaluated or approved list of vendors who have developed automated/assisted marking tools for CUI.
Question: Our activity uses the NOFORN marking for Naval Nuclear Propulsion Information category CUI, but we do not use the CUI//SP-NNPI for the marking, we use NOFORN. Should we switch over to using SP-NNPI?
We also use a GREEN NOFORN Cover Sheet instead of the purple CUI one.
Answer: Industry should continue to follow the terms of existing contracts. As agencies implement the CUI Program, contacts will be modified to reflect CUI requirements.
Question: Can we use the coversheet instead of marking each page of the document or do we need to use both the cover sheet and also mark each page?
Answer: A coversheet (SF 901) may be used in lieu of marking every page of a document. Be sure to list (on the SF 901) any Specified categories, limited dissemination controls, or requirements called for by underlying, related laws, regulations, or government wide policies.
Question: Is it required that CUI be stored in an GSA approved safe?
Answer: No. CUI Must be stored behind a locking barrier inside of a controlled environment that prevents unauthorized access. Organizations have some flexibility in determining what qualifies as a controlled environment. CUI specified categories may have additional physical security requirements.
Question: Where can we access the CUI Marking Handbook?
Answer: https://www.archives.gov/files/cui/documents/20161206-cui-marking-handbook-v1-1-20190524.pdf
Question: What is the mechanism for removing markings or lifting restrictions on documents if/when the restriction has expired or no longer applies?
Answer: CUI Markings can be removed (or stuck through) when the information has been decontrolled. Decontrolling occurs when an authorized holder, consistent with 32 CFR 2002 and the CUI Registry, removes safeguarding or dissemination controls from CUI that no longer require such controls. Decontrol may occur automatically or through agency action. See § 2002.18.
Question: If you use a Coversheet for a multipage document, do you still need to mark every page?
Answer: No, if you use a CUI coversheet (SF 901) marking every page is not required.
Question: Are there specific/special Record Retention issues/timeframes specific to CUI?
Answer: No. Records retention issues/timeframes are not impacted by a records status as CUI.
Question: (If you asked a DoD specific question your answer is here)what about DoD?
Answer:For answers about compliance with your dod contracts, the first place to check is the contract itself or the POC for the contract.
For questions about compliance with DFARs 7012 check out the DoD Procurement Toolbox at: https://dodprocurementtoolbox.com/faqs/cybersecurity/cybersecurity-faqs.
“osd.dibcsia@mail.mil” can be contacted for clarification on DFARS 252.204-7012 or NIST SP 800-171 in support of DFARS 252.204-7012. Emails sent to that address are reviewed frequently and distributed as appropriate to a cross-functional team of subject matter experts for action.
For questions about the planned CMMC program please see the CMMC website at: https://www.acq.osd.mil/cmmc/
Training specific information will likely be included on the CDSE CUI page at: https://www.cdse.edu/toolkits/cui/index.php