80_FR_81722 80 FR 81472 - Defense Federal Acquisition Regulation Supplement: Network Penetration Reporting and Contracting for Cloud Services (DFARS Case 2013-D018)

80 FR 81472 - Defense Federal Acquisition Regulation Supplement: Network Penetration Reporting and Contracting for Cloud Services (DFARS Case 2013-D018)

DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System

Federal Register Volume 80, Issue 250 (December 30, 2015)

Page Range81472-81474
FR Document2015-32869

DoD is issuing an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to provide contractors with additional time to implement security requirements specified by a National Institute of Standards and Technology Special Publication.

Federal Register, Volume 80 Issue 250 (Wednesday, December 30, 2015)
[Federal Register Volume 80, Number 250 (Wednesday, December 30, 2015)]
[Rules and Regulations]
[Pages 81472-81474]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-32869]



[[Page 81472]]

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 252

[Docket DARS-2015-0039]
RIN 0750-AI61


Defense Federal Acquisition Regulation Supplement: Network 
Penetration Reporting and Contracting for Cloud Services (DFARS Case 
2013-D018)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Interim rule.

-----------------------------------------------------------------------

SUMMARY: DoD is issuing an interim rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to provide contractors with 
additional time to implement security requirements specified by a 
National Institute of Standards and Technology Special Publication.

DATES: Effective date: December 30, 2015.
    Comment date: Comments on the interim rule should be submitted in 
writing to the address shown below on or before February 29, 2016 to be 
considered in the formation of a final rule.

ADDRESSES: Submit comments identified by DFARS Case 2013-D018, using 
any of the following methods:
    [cir] Regulations.gov: http://www.regulations.gov. Submit comments 
via the Federal eRulemaking portal by entering ``DFARS Case 2013-D018'' 
under the heading ``Enter keyword or ID'' and selecting ``Search.'' 
Select the link ``Submit a Comment'' that corresponds with ``DFARS Case 
2013-D018.'' Follow the instructions provided at the ``Submit a 
Comment'' screen. Please include your name, company name (if any), and 
``DFARS Case 2013-D018'' on your attached document.
    [cir] Email: osd.dfars@mail.mil. Include DFARS Case 2013-D018 in 
the subject line of the message.
    [cir] Fax: 571-372-6094.
    [cir] Mail: Defense Acquisition Regulations System, Attn: Mr. 
Dustin Pitsch, OUSD(AT&L)DPAP/DARS, Room 3B941, 3060 Defense Pentagon, 
Washington, DC 20301-3060.
    Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To 
confirm receipt of your comment(s), please check www.regulations.gov, 
approximately two to three days after submission to verify posting 
(except allow 30 days for posting of comments submitted by mail).

FOR FURTHER INFORMATION CONTACT: Mr. Dustin Pitsch, telephone 571-372-
6090.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD published an interim rule under this case number in the Federal 
Register (80 FR 51739) on August 26, 2015, to implement section 941 of 
the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2013 
(Pub. L. 112-239), section 1632 of the NDAA for FY 2015, and DoD 
policies and procedures with regard to cloud computing. The first 
interim rule expanded safeguarding requirements to cover the 
safeguarding of covered defense information, and required compliance 
with the security requirements in the National Institute of Standards 
and Technology (NIST) Special Publication (SP) 800-171, ``Protecting 
Controlled Unclassified Information in Nonfederal Information Systems 
and organizations,'' to replace the table based on NIST SP 800-53. The 
security requirements in NIST SP 800-171 are specifically tailored for 
use in protecting sensitive information residing in contractor 
information systems and generally reduce the burden placed on 
contractors by eliminating Federal-centric processes and requirements.
    To address concerns from industry with regard to implementation of 
the first interim rule, DoD held a public meeting on Monday, December 
14, 2015 (80 FR 72712, November 20, 2015). There were 85 registered 
attendees. Various topics were discussed with industry at the public 
meeting, such as scope, applicability, training, subcontractor 
flowdown, and implementation issues. Industry representatives 
specifically expressed to DoD, both prior to and at the public meeting, 
the need for additional time to implement the security requirements 
specified by NIST SP 800-171.

II. Discussion and Analysis

    This second interim rule amends DFARS provision 252.204-7008, 
Compliance with Safeguarding and Covered Defense Information Controls, 
and DFARS clause 252.204-7012, Safeguarding Covered Defense Information 
and Cyber Incident Reporting, to provide offerors additional time to 
implement the security requirements specified by NIST SP 800-171, which 
will be required to be in place not later than December 31, 2017. The 
clause is also amended to require contractors to notify the DoD Chief 
Information Officer (CIO) of any NIST SP 800-171 security requirements 
that are not implemented at the time of contract award, within 30 days 
of contract award. The status provided by the contractor to the DoD CIO 
on implementation of the NIST SP 800-171 security requirements will 
enable the Department to monitor progress across the Defense industrial 
base, identify trends in the implementation of these requirements and, 
in particular, identify issues with industry implementation of specific 
requirements that may require clarification or adjustment. 
Additionally, this information will inform the Department in assessing 
the overall risk to DoD covered defense information on unclassified 
contractor systems and networks.
    The second interim rule makes the following additional changes:
     The subcontractor flowdown requirements in DFARS provision 
252.204-7009 and clause 252.204-7012 are amended to require, when 
applicable, inclusion of the clause without alteration, except to 
identify the parties.
     The subcontractor flowdown requirement in DFARS clause 
252.204-7012 is further amended to limit the requirement to flow down 
the clause only to subcontractors where their efforts will involve 
covered defense information or where they will provide operationally 
critical support.
     DFARS clause 252.204-7012 is amended to remove the 
requirement for DoD CIO acceptance of alternative but equally effective 
security measures prior to award.
    This rule is part of DoD's retrospective plan, completed in August 
2011, under Executive Order 13563, ``Improving Regulation and 
Regulatory Review.'' DoD's full plan and updates can be accessed at: 
http://www.regulations.gov/#!docketDetail;D=DOD-2011-OS-0036.

III. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This is not a significant regulatory action and, therefore, was not 
subject to review under section 6(b) of E.O. 12866, Regulatory Planning 
and

[[Page 81473]]

Review, dated September 30, 1993. This rule is not a major rule under 5 
U.S.C. 804.

IV. Regulatory Flexibility Act

    DoD expects that the additional implementation period provided by 
this interim rule may have a significant beneficial economic impact on 
a substantial number of small entities within the meaning of the 
Regulatory Flexibility Act 5 U.S.C. 601, et seq. Therefore, an initial 
regulatory flexibility analysis has been prepared and is summarized as 
follows:
    This rule allows contractors until December 31, 2017, to implement 
the security requirements specified by the National Institute of 
Standards and Technology (NIST) Special Publication (SP) 800-171, 
``Protecting Controlled Unclassified Information in Nonfederal 
Information Systems and organizations,'' for safeguarding sensitive 
information residing in contractor information systems, contained in 
Defense Federal Acquisition Regulation Supplement clause 252.204-7012, 
Safeguarding Covered Defense Information and Cyber Incident Reporting.
    The objective of this rule is to allow contractors additional time 
to implement the security requirements necessary to improve protection 
for DoD information stored on or transiting contractor systems.
    This rule will apply to all contractors with covered defense 
information transiting their information systems. DoD estimates that 
this rule may apply to 10,000 contractors and that less than half of 
those are small businesses.
    This second interim rule requires contractors, within 30 days of 
contract award, to notify the DoD Chief Information Officer of any NIST 
SP 800-171 security requirements that are not implemented at the time 
of contract award. This new reporting requirement affects the existing 
information collection requirements approved under the first interim 
rule under OMB Control number 0704-0478, titled ``Enhanced Safeguarding 
and Cyber Incident Reporting of Unclassified DoD Information Within 
Industry,'' but the effect on the total burden hours is negligible.
    The rule does not duplicate, overlap, or conflict with any other 
Federal rules.
    No significant alternatives, that would minimize the economic 
impact of the rule on small entities, were determined.
    DoD invites comments from small business concerns and other 
interested parties on the expected impact of this rule on small 
entities.
    DoD will also consider comments from small entities concerning the 
existing regulations in subparts affected by this rule in accordance 
with 5 U.S.C. 610. Interested parties must submit such comments 
separately and should cite 5 U.S.C. 610 (DFARS Case 2013-D018), in 
correspondence.

V. Paperwork Reduction Act

    This rule affects the information collection requirements in the 
clause at DFARS 252.204-7012, currently approved under OMB Control 
Number 0704-0478, titled ``Enhanced Safeguarding and Cyber Incident 
Reporting of Unclassified DoD Information Within Industry,'' in 
accordance with the Paperwork Reduction Act (44 U.S.C. chapter 35). The 
impact, however, is negligible, because the new reporting requirement 
is not anticipated to increase the estimate of total burden hours.

VI. Determination To Issue an Interim Rule

    A determination has been made under the authority of the Secretary 
of Defense that urgent and compelling reasons exist to promulgate this 
interim rule without prior opportunity for public comment.
    The proliferation of information technology and increased 
information access has exposed DoD and DoD contractor information 
systems and networks to greater vulnerability of attacks. The first 
interim rule under this case number and title was necessary because of 
the urgent need to protect covered defense information and gain 
awareness of the full scope of cyber incidents being committed against 
defense contractors. That rule addressed the requirement for 
contractors and subcontractors to report cyber incidents that result in 
an actual or potentially adverse effect on a covered contractor 
information system or covered defense information residing therein, or 
on a contractor's ability to provide operationally critical support. 
However, since issuance of the first interim rule, industry has 
expressed to DoD the need for additional time to implement one part of 
the first interim rule, specifically the NIST SP 800-171 security 
requirements for covered contractor information systems.
    This second interim rule is being issued without the benefit of 
public comment to provide immediate relief from the requirement to have 
NIST 800-171 security requirements implemented at the time of contract 
award. Contractors are at risk of not being able to comply with the 
terms of contracts that require the handling of covered defense 
information. Contractors will be given until December 31, 2017 for 
implementation of the NIST 800-171 security requirements, thereby 
limiting the burden imposed on industry in the first interim rule. This 
rule grants additional time for contractors to assess their information 
systems and to set forth an economically efficient strategy to 
implement the new security requirements at a pace that fits within 
normal information technology lifecycle timelines. However, pursuant to 
41 U.S.C. 1707 and FAR 1.501-3(b), DoD will consider public comments 
received in response to this interim rule in the formation of the final 
rule.

List of Subjects in 48 CFR Part 252

    Government procurement.

Jennifer L. Hawes,
Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR part 252 is amended as follows:

0
1. The authority citation for 48 CFR part 252 continues to read as 
follows:

    Authority: 41 U.S.C. 1303 and CFR chapter 1.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
2. Amend section 252.204-7008 by--
0
a. Removing clause date ``(AUG 2015)'' and adding ``(DEC 2015)'' in its 
place;
0
b. Revising paragraph (c); and
0
c. Removing paragraph (d).
    The revision reads as follows:


252.204-7008  Compliance with Safeguarding Covered Defense Information 
Controls.

* * * * *
    (c) For covered contractor information systems that are not part of 
an information technology (IT) service or system operated on behalf of 
the Government (see 252.204-7012(b)(1)(ii))--
    (1) By submission of this offer, the Offeror represents that it 
will implement the security requirements specified by National 
Institute of Standards and Technology (NIST) Special Publication (SP) 
800-171, ``Protecting Controlled Unclassified Information in Nonfederal 
Information Systems and Organizations'' (see http://dx.doi.org/10.6028/NIST.SP.800-171), not later than December 31, 2017.
    (2)(i) If the Offeror proposes to vary from any of the security 
requirements specified by NIST SP 800-171 that is in effect at the time 
the solicitation is issued or as authorized by the Contracting Officer, 
the Offeror shall

[[Page 81474]]

submit to the Contracting Officer, for consideration by the DoD Chief 
Information Officer (CIO), a written explanation of--
    (A) Why a particular security requirement is not applicable; or
    (B) How an alternative but equally effective, security measure is 
used to compensate for the inability to satisfy a particular 
requirement and achieve equivalent protection.
    (ii) An authorized representative of the DoD CIO will adjudicate 
offeror requests to vary from NIST SP 800-171 requirements in writing 
prior to contract award. Any accepted variance from NIST SP 800-171 
shall be incorporated into the resulting contract.
* * * * *

0
3. Amend section 252.204-7009 by--
0
a. Removing clause date ``(AUG 2015)'' and adding ``(DEC 2015)'' in its 
place;
0
b. In paragraph (a), adding in alphabetical order a definition for 
``Compromise''; and
0
c. Revising paragraph (c).
    The addition and revision read as follows:


252.204-7009  Limitations on the Use or Disclosure of Third-Party 
Contractor Reported Cyber Incident Information.

* * * * *
    (a) * * *
    Compromise means disclosure of information to unauthorized persons, 
or a violation of the security policy of a system, in which 
unauthorized intentional or unintentional disclosure, modification, 
destruction, or loss of an object, or the copying of information to 
unauthorized media may have occurred.
* * * * *
    (c) Subcontracts. The Contractor shall include this clause, 
including this paragraph (c), in subcontracts, or similar contractual 
instruments, for services that include support for the Government's 
activities related to safeguarding covered defense information and 
cyber incident reporting, including subcontracts for commercial items, 
without alteration, except to identify the parties.
* * * * *

0
4. Amend section 252.204-7012 by--
0
a. Removing clause date ``(SEP 2015)'' and adding ``(DEC 2015)'' in its 
place;
0
b. In paragraph (a), in the definition of ``Cyber incident,'' adding 
``a compromise or'' after ``that result in'';
0
c. Revising paragraphs (b)(1)(ii)(A) and (B); and
0
d. Revising paragraphs (m)(1) and (2).
    The revisions read as follows:


252.204-7012  Safeguarding Covered Defense Information and Cyber 
Incident Reporting.

* * * * *
    (b) * * *
    (1) * * *
    (ii) * * *
    (A) The security requirements in National Institute of Standards 
and Technology (NIST) Special Publication (SP) 800-171, ``Protecting 
Controlled Unclassified Information in Nonfederal Information Systems 
and Organizations,'' http://dx.doi.org/10.6028/NIST.SP.800-171 that is 
in effect at the time the solicitation is issued or as authorized by 
the Contracting Officer, as soon as practical, but not later than 
December 31, 2017. The Contractor shall notify the DoD CIO, via email 
at osd.dibcsia@mail.mil, within 30 days of contract award, of any 
security requirements specified by NIST SP 800-171 not implemented at 
the time of contract award; or
    (B) Alternative but equally effective security measures used to 
compensate for the inability to satisfy a particular requirement and 
achieve equivalent protection accepted in writing by an authorized 
representative of the DoD CIO; and
* * * * *
    (m) * * *
    (1) Include this clause, including this paragraph (m), in 
subcontracts, or similar contractual instruments, for operationally 
critical support, or for which subcontract performance will involve a 
covered contractor information system, including subcontracts for 
commercial items, without alteration, except to identify the parties; 
and
    (2) When this clause is included in a subcontract, require 
subcontractors to rapidly report cyber incidents directly to DoD at 
http://dibnet.dod.mil and the prime Contractor. This includes providing 
the incident report number, automatically assigned by DoD, to the prime 
Contractor (or next higher-tier subcontractor) as soon as practicable.
* * * * *
[FR Doc. 2015-32869 Filed 12-29-15; 8:45 am]
BILLING CODE 5001-06-P



                                                81472        Federal Register / Vol. 80, No. 250 / Wednesday, December 30, 2015 / Rules and Regulations

                                                DEPARTMENT OF DEFENSE                                   submission to verify posting (except                  Information Officer (CIO) of any NIST
                                                                                                        allow 30 days for posting of comments                 SP 800–171 security requirements that
                                                Defense Acquisition Regulations                         submitted by mail).                                   are not implemented at the time of
                                                System                                                  FOR FURTHER INFORMATION CONTACT: Mr.                  contract award, within 30 days of
                                                                                                        Dustin Pitsch, telephone 571–372–6090.                contract award. The status provided by
                                                48 CFR Part 252                                                                                               the contractor to the DoD CIO on
                                                                                                        SUPPLEMENTARY INFORMATION:
                                                [Docket DARS–2015–0039]
                                                                                                                                                              implementation of the NIST SP 800–171
                                                                                                        I. Background                                         security requirements will enable the
                                                RIN 0750–AI61                                                                                                 Department to monitor progress across
                                                                                                           DoD published an interim rule under
                                                                                                        this case number in the Federal Register              the Defense industrial base, identify
                                                Defense Federal Acquisition                                                                                   trends in the implementation of these
                                                Regulation Supplement: Network                          (80 FR 51739) on August 26, 2015, to
                                                                                                        implement section 941 of the National                 requirements and, in particular, identify
                                                Penetration Reporting and Contracting                                                                         issues with industry implementation of
                                                for Cloud Services (DFARS Case 2013–                    Defense Authorization Act (NDAA) for
                                                                                                        Fiscal Year (FY) 2013 (Pub. L. 112–239),              specific requirements that may require
                                                D018)                                                                                                         clarification or adjustment.
                                                                                                        section 1632 of the NDAA for FY 2015,
                                                AGENCY:  Defense Acquisition                                                                                  Additionally, this information will
                                                                                                        and DoD policies and procedures with
                                                Regulations System, Department of                                                                             inform the Department in assessing the
                                                                                                        regard to cloud computing. The first
                                                Defense (DoD).                                                                                                overall risk to DoD covered defense
                                                                                                        interim rule expanded safeguarding
                                                                                                                                                              information on unclassified contractor
                                                ACTION: Interim rule.                                   requirements to cover the safeguarding
                                                                                                                                                              systems and networks.
                                                                                                        of covered defense information, and                      The second interim rule makes the
                                                SUMMARY:   DoD is issuing an interim rule               required compliance with the security
                                                amending the Defense Federal                                                                                  following additional changes:
                                                                                                        requirements in the National Institute of                • The subcontractor flowdown
                                                Acquisition Regulation Supplement                       Standards and Technology (NIST)
                                                (DFARS) to provide contractors with                                                                           requirements in DFARS provision
                                                                                                        Special Publication (SP) 800–171,                     252.204–7009 and clause 252.204–7012
                                                additional time to implement security                   ‘‘Protecting Controlled Unclassified
                                                requirements specified by a National                                                                          are amended to require, when
                                                                                                        Information in Nonfederal Information                 applicable, inclusion of the clause
                                                Institute of Standards and Technology                   Systems and organizations,’’ to replace
                                                Special Publication.                                                                                          without alteration, except to identify the
                                                                                                        the table based on NIST SP 800–53. The                parties.
                                                DATES: Effective date: December 30,                     security requirements in NIST SP 800–                    • The subcontractor flowdown
                                                2015.                                                   171 are specifically tailored for use in              requirement in DFARS clause 252.204–
                                                  Comment date: Comments on the                         protecting sensitive information                      7012 is further amended to limit the
                                                interim rule should be submitted in                     residing in contractor information                    requirement to flow down the clause
                                                writing to the address shown below on                   systems and generally reduce the                      only to subcontractors where their
                                                or before February 29, 2016 to be                       burden placed on contractors by                       efforts will involve covered defense
                                                considered in the formation of a final                  eliminating Federal-centric processes                 information or where they will provide
                                                rule.                                                   and requirements.                                     operationally critical support.
                                                ADDRESSES:   Submit comments                               To address concerns from industry                     • DFARS clause 252.204–7012 is
                                                identified by DFARS Case 2013–D018,                     with regard to implementation of the                  amended to remove the requirement for
                                                using any of the following methods:                     first interim rule, DoD held a public                 DoD CIO acceptance of alternative but
                                                   Æ Regulations.gov: http://                           meeting on Monday, December 14, 2015                  equally effective security measures prior
                                                www.regulations.gov. Submit comments                    (80 FR 72712, November 20, 2015).                     to award.
                                                via the Federal eRulemaking portal by                   There were 85 registered attendees.                      This rule is part of DoD’s
                                                entering ‘‘DFARS Case 2013–D018’’                       Various topics were discussed with                    retrospective plan, completed in August
                                                under the heading ‘‘Enter keyword or                    industry at the public meeting, such as               2011, under Executive Order 13563,
                                                ID’’ and selecting ‘‘Search.’’ Select the               scope, applicability, training,                       ‘‘Improving Regulation and Regulatory
                                                link ‘‘Submit a Comment’’ that                          subcontractor flowdown, and                           Review.’’ DoD’s full plan and updates
                                                corresponds with ‘‘DFARS Case 2013–                     implementation issues. Industry                       can be accessed at: http://www.
                                                D018.’’ Follow the instructions provided                representatives specifically expressed to             regulations.gov/#!docketDetail;D=DOD-
                                                at the ‘‘Submit a Comment’’ screen.                     DoD, both prior to and at the public                  2011-OS-0036.
                                                Please include your name, company                       meeting, the need for additional time to
                                                                                                        implement the security requirements                   III. Executive Orders 12866 and 13563
                                                name (if any), and ‘‘DFARS Case 2013–
                                                D018’’ on your attached document.                       specified by NIST SP 800–171.                            Executive Orders (E.O.s) 12866 and
                                                   Æ Email: osd.dfars@mail.mil. Include                                                                       13563 direct agencies to assess all costs
                                                                                                        II. Discussion and Analysis                           and benefits of available regulatory
                                                DFARS Case 2013–D018 in the subject
                                                line of the message.                                      This second interim rule amends                     alternatives and, if regulation is
                                                   Æ Fax: 571–372–6094.                                 DFARS provision 252.204–7008,                         necessary, to select regulatory
                                                   Æ Mail: Defense Acquisition                          Compliance with Safeguarding and                      approaches that maximize net benefits
                                                Regulations System, Attn: Mr. Dustin                    Covered Defense Information Controls,                 (including potential economic,
                                                Pitsch, OUSD(AT&L)DPAP/DARS,                            and DFARS clause 252.204–7012,                        environmental, public health and safety
                                                Room 3B941, 3060 Defense Pentagon,                      Safeguarding Covered Defense                          effects, distributive impacts, and
                                                Washington, DC 20301–3060.                              Information and Cyber Incident                        equity). E.O. 13563 emphasizes the
mstockstill on DSK4VPTVN1PROD with RULES




                                                   Comments received generally will be                  Reporting, to provide offerors additional             importance of quantifying both costs
                                                posted without change to http://                        time to implement the security                        and benefits, of reducing costs, of
                                                www.regulations.gov, including any                      requirements specified by NIST SP 800–                harmonizing rules, and of promoting
                                                personal information provided. To                       171, which will be required to be in                  flexibility. This is not a significant
                                                confirm receipt of your comment(s),                     place not later than December 31, 2017.               regulatory action and, therefore, was not
                                                please check www.regulations.gov,                       The clause is also amended to require                 subject to review under section 6(b) of
                                                approximately two to three days after                   contractors to notify the DoD Chief                   E.O. 12866, Regulatory Planning and


                                           VerDate Sep<11>2014   16:09 Dec 29, 2015   Jkt 238001   PO 00000   Frm 00034   Fmt 4700   Sfmt 4700   E:\FR\FM\30DER1.SGM   30DER1


                                                             Federal Register / Vol. 80, No. 250 / Wednesday, December 30, 2015 / Rules and Regulations                                             81473

                                                Review, dated September 30, 1993. This                    DoD will also consider comments                     given until December 31, 2017 for
                                                rule is not a major rule under 5 U.S.C.                 from small entities concerning the                    implementation of the NIST 800–171
                                                804.                                                    existing regulations in subparts affected             security requirements, thereby limiting
                                                                                                        by this rule in accordance with 5 U.S.C.              the burden imposed on industry in the
                                                IV. Regulatory Flexibility Act
                                                                                                        610. Interested parties must submit such              first interim rule. This rule grants
                                                   DoD expects that the additional                      comments separately and should cite 5                 additional time for contractors to assess
                                                implementation period provided by this                  U.S.C. 610 (DFARS Case 2013–D018), in                 their information systems and to set
                                                interim rule may have a significant                     correspondence.                                       forth an economically efficient strategy
                                                beneficial economic impact on a                                                                               to implement the new security
                                                                                                        V. Paperwork Reduction Act
                                                substantial number of small entities                                                                          requirements at a pace that fits within
                                                within the meaning of the Regulatory                       This rule affects the information                  normal information technology lifecycle
                                                Flexibility Act 5 U.S.C. 601, et seq.                   collection requirements in the clause at              timelines. However, pursuant to 41
                                                Therefore, an initial regulatory                        DFARS 252.204–7012, currently                         U.S.C. 1707 and FAR 1.501–3(b), DoD
                                                flexibility analysis has been prepared                  approved under OMB Control Number                     will consider public comments received
                                                and is summarized as follows:                           0704–0478, titled ‘‘Enhanced                          in response to this interim rule in the
                                                   This rule allows contractors until                   Safeguarding and Cyber Incident                       formation of the final rule.
                                                December 31, 2017, to implement the                     Reporting of Unclassified DoD
                                                                                                        Information Within Industry,’’ in                     List of Subjects in 48 CFR Part 252
                                                security requirements specified by the
                                                National Institute of Standards and                     accordance with the Paperwork                              Government procurement.
                                                Technology (NIST) Special Publication                   Reduction Act (44 U.S.C. chapter 35).
                                                                                                        The impact, however, is negligible,                   Jennifer L. Hawes,
                                                (SP) 800–171, ‘‘Protecting Controlled
                                                                                                        because the new reporting requirement                 Editor, Defense Acquisition Regulations
                                                Unclassified Information in Nonfederal                                                                        System.
                                                Information Systems and                                 is not anticipated to increase the
                                                organizations,’’ for safeguarding                       estimate of total burden hours.                         Therefore, 48 CFR part 252 is
                                                sensitive information residing in                       VI. Determination To Issue an Interim                 amended as follows:
                                                contractor information systems,                         Rule                                                  ■ 1. The authority citation for 48 CFR
                                                contained in Defense Federal                               A determination has been made under                part 252 continues to read as follows:
                                                Acquisition Regulation Supplement                       the authority of the Secretary of Defense                  Authority: 41 U.S.C. 1303 and CFR chapter
                                                clause 252.204–7012, Safeguarding                       that urgent and compelling reasons exist              1.
                                                Covered Defense Information and Cyber                   to promulgate this interim rule without
                                                Incident Reporting.                                     prior opportunity for public comment.                 PART 252—SOLICITATION
                                                   The objective of this rule is to allow                  The proliferation of information                   PROVISIONS AND CONTRACT
                                                contractors additional time to                          technology and increased information                  CLAUSES
                                                implement the security requirements                     access has exposed DoD and DoD
                                                necessary to improve protection for DoD                                                                       ■ 2. Amend section 252.204–7008 by—
                                                                                                        contractor information systems and                    ■ a. Removing clause date ‘‘(AUG
                                                information stored on or transiting                     networks to greater vulnerability of
                                                contractor systems.                                                                                           2015)’’ and adding ‘‘(DEC 2015)’’ in its
                                                                                                        attacks. The first interim rule under this            place;
                                                   This rule will apply to all contractors              case number and title was necessary                   ■ b. Revising paragraph (c); and
                                                with covered defense information                        because of the urgent need to protect                 ■ c. Removing paragraph (d).
                                                transiting their information systems.                   covered defense information and gain                    The revision reads as follows:
                                                DoD estimates that this rule may apply                  awareness of the full scope of cyber
                                                to 10,000 contractors and that less than                incidents being committed against                     252.204–7008 Compliance with
                                                half of those are small businesses.                     defense contractors. That rule addressed              Safeguarding Covered Defense Information
                                                   This second interim rule requires                    the requirement for contractors and                   Controls.
                                                contractors, within 30 days of contract                 subcontractors to report cyber incidents              *      *      *     *     *
                                                award, to notify the DoD Chief                          that result in an actual or potentially                  (c) For covered contractor information
                                                Information Officer of any NIST SP 800–                 adverse effect on a covered contractor                systems that are not part of an
                                                171 security requirements that are not                  information system or covered defense                 information technology (IT) service or
                                                implemented at the time of contract                     information residing therein, or on a                 system operated on behalf of the
                                                award. This new reporting requirement                   contractor’s ability to provide                       Government (see 252.204–
                                                affects the existing information                        operationally critical support. However,              7012(b)(1)(ii))—
                                                collection requirements approved under                  since issuance of the first interim rule,                (1) By submission of this offer, the
                                                the first interim rule under OMB                        industry has expressed to DoD the need                Offeror represents that it will implement
                                                Control number 0704–0478, titled                        for additional time to implement one                  the security requirements specified by
                                                ‘‘Enhanced Safeguarding and Cyber                       part of the first interim rule, specifically          National Institute of Standards and
                                                Incident Reporting of Unclassified DoD                  the NIST SP 800–171 security                          Technology (NIST) Special Publication
                                                Information Within Industry,’’ but the                  requirements for covered contractor                   (SP) 800–171, ‘‘Protecting Controlled
                                                effect on the total burden hours is                     information systems.                                  Unclassified Information in Nonfederal
                                                negligible.                                                This second interim rule is being                  Information Systems and
                                                   The rule does not duplicate, overlap,                issued without the benefit of public                  Organizations’’ (see http://dx.doi.org/10.
                                                or conflict with any other Federal rules.               comment to provide immediate relief                   6028/NIST.SP.800-171), not later than
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                                                   No significant alternatives, that would              from the requirement to have NIST 800–                December 31, 2017.
                                                minimize the economic impact of the                     171 security requirements implemented                    (2)(i) If the Offeror proposes to vary
                                                rule on small entities, were determined.                at the time of contract award.                        from any of the security requirements
                                                   DoD invites comments from small                      Contractors are at risk of not being able             specified by NIST SP 800–171 that is in
                                                business concerns and other interested                  to comply with the terms of contracts                 effect at the time the solicitation is
                                                parties on the expected impact of this                  that require the handling of covered                  issued or as authorized by the
                                                rule on small entities.                                 defense information. Contractors will be              Contracting Officer, the Offeror shall


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                                                81474        Federal Register / Vol. 80, No. 250 / Wednesday, December 30, 2015 / Rules and Regulations

                                                submit to the Contracting Officer, for                  object, or the copying of information to              authorized by the Contracting Officer, as
                                                consideration by the DoD Chief                          unauthorized media may have occurred.                 soon as practical, but not later than
                                                Information Officer (CIO), a written                    *      *    *     *     *                             December 31, 2017. The Contractor shall
                                                explanation of—                                            (c) Subcontracts. The Contractor shall             notify the DoD CIO, via email at
                                                   (A) Why a particular security                        include this clause, including this                   osd.dibcsia@mail.mil, within 30 days of
                                                requirement is not applicable; or                       paragraph (c), in subcontracts, or similar            contract award, of any security
                                                   (B) How an alternative but equally                   contractual instruments, for services                 requirements specified by NIST SP 800–
                                                effective, security measure is used to                  that include support for the                          171 not implemented at the time of
                                                compensate for the inability to satisfy a               Government’s activities related to                    contract award; or
                                                particular requirement and achieve                      safeguarding covered defense                            (B) Alternative but equally effective
                                                equivalent protection.                                  information and cyber incident                        security measures used to compensate
                                                   (ii) An authorized representative of                 reporting, including subcontracts for                 for the inability to satisfy a particular
                                                the DoD CIO will adjudicate offeror                     commercial items, without alteration,                 requirement and achieve equivalent
                                                requests to vary from NIST SP 800–171                   except to identify the parties.                       protection accepted in writing by an
                                                requirements in writing prior to contract               *      *    *     *     *                             authorized representative of the DoD
                                                award. Any accepted variance from                       ■ 4. Amend section 252.204–7012 by—                   CIO; and
                                                NIST SP 800–171 shall be incorporated                   ■ a. Removing clause date ‘‘(SEP 2015)’’              *     *     *      *     *
                                                into the resulting contract.                            and adding ‘‘(DEC 2015)’’ in its place;                 (m) * * *
                                                *       *   *     *     *                               ■ b. In paragraph (a), in the definition of
                                                                                                        ‘‘Cyber incident,’’ adding ‘‘a                          (1) Include this clause, including this
                                                ■ 3. Amend section 252.204–7009 by—
                                                                                                        compromise or’’ after ‘‘that result in’’;             paragraph (m), in subcontracts, or
                                                ■ a. Removing clause date ‘‘(AUG                                                                              similar contractual instruments, for
                                                                                                        ■ c. Revising paragraphs (b)(1)(ii)(A)
                                                2015)’’ and adding ‘‘(DEC 2015)’’ in its                                                                      operationally critical support, or for
                                                place;                                                  and (B); and
                                                                                                        ■ d. Revising paragraphs (m)(1) and (2).              which subcontract performance will
                                                ■ b. In paragraph (a), adding in                                                                              involve a covered contractor
                                                                                                           The revisions read as follows:
                                                alphabetical order a definition for                                                                           information system, including
                                                ‘‘Compromise’’; and                                     252.204–7012 Safeguarding Covered                     subcontracts for commercial items,
                                                ■ c. Revising paragraph (c).                            Defense Information and Cyber Incident
                                                                                                                                                              without alteration, except to identify the
                                                   The addition and revision read as                    Reporting.
                                                                                                                                                              parties; and
                                                follows:                                                *      *   *     *      *
                                                                                                          (b) * * *                                             (2) When this clause is included in a
                                                252.204–7009 Limitations on the Use or                    (1) * * *                                           subcontract, require subcontractors to
                                                Disclosure of Third-Party Contractor                      (ii) * * *                                          rapidly report cyber incidents directly
                                                Reported Cyber Incident Information.                      (A) The security requirements in                    to DoD at http://dibnet.dod.mil and the
                                                *     *     *     *    *                                National Institute of Standards and                   prime Contractor. This includes
                                                  (a) * * *                                             Technology (NIST) Special Publication                 providing the incident report number,
                                                  Compromise means disclosure of                        (SP) 800–171, ‘‘Protecting Controlled                 automatically assigned by DoD, to the
                                                information to unauthorized persons, or                 Unclassified Information in Nonfederal                prime Contractor (or next higher-tier
                                                a violation of the security policy of a                 Information Systems and                               subcontractor) as soon as practicable.
                                                system, in which unauthorized                           Organizations,’’ http://dx.doi.org/10.                *     *     *      *     *
                                                intentional or unintentional disclosure,                6028/NIST.SP.800-171 that is in effect at             [FR Doc. 2015–32869 Filed 12–29–15; 8:45 am]
                                                modification, destruction, or loss of an                the time the solicitation is issued or as             BILLING CODE 5001–06–P
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Document Created: 2015-12-30 03:15:45
Document Modified: 2015-12-30 03:15:45
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionInterim rule.
ContactMr. Dustin Pitsch, telephone 571-372- 6090.
FR Citation80 FR 81472 
RIN Number0750-AI61

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