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DoD Clarifies Covered Defense Information Definition in Final Cyber Reporting Rule

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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.