PCII Procedures for Handling Critical Infrastructure Information

Friday,

September 1, 2006

Part IV

Department of
Homeland Security

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6 CFR Part 29
Procedures for Handling Critical
Infrastructure Information; Final Rule

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Federal Register / Vol. 71, No. 170 / Friday, September 1, 2006 / Rules and Regulations

DEPARTMENT OF HOMELAND
SECURITY
Office of the Secretary
6 CFR Part 29
RIN 1601–AA14

Procedures for Handling Critical
Infrastructure Information
Office of the Secretary, DHS.
Final rule.

AGENCY:
ACTION:

This final rule amends the
February 2004 Interim Rule establishing
uniform procedures to implement the
Critical Infrastructure Information Act
of 2002. These procedures govern the
receipt, validation, handling, storage,
marking, and use of critical
infrastructure information voluntarily
submitted to the Department of
Homeland Security. The procedures are
applicable to all Federal, State, local,
and tribal government agencies and
contractors that have access to, handle,
use, or store critical infrastructure
information that enjoys protection
under the Critical Infrastructure
Information Act of 2002.
DATES: Effective Date: This final rule is
effective September 1, 2006.
FOR FURTHER INFORMATION CONTACT:
Laura Kimberly, Directorate for
Preparedness (202) 360–3023, not a tollfree call.
SUPPLEMENTARY INFORMATION:

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SUMMARY:

Table of Contents
I. Introduction
II. Major Issues in the February 2004 Interim
Rule
A. Indirect Submissions of PCII
B. Definitional Issues Affecting Qualifying
Information
(1) In the public domain
(2) Voluntary or voluntarily
C. Protected and Non-Protected

Information

(1) Portion Marking
(2) Definition of PCII
(3) Source of the Information
(4) Interplay of Sections 214(a)(1)(C) and
214(c) of the CII Act
(5) Good Faith Submission of CII
(6) Communications with the Submitting
Person or Entity
D. Loss of Protected Status
E. Sharing of PCII with Foreign

Governments

F. Emergency Disclosure of PCII
III. Other Changes to the Rule by Section
A. Purpose and Scope: Section 29.1
B. Definitions: Section 29.2
C. Effect of the Provisions: Section 29.3
D. PCII Program Administration: Section
29.4
E. Requirements for Protection: Section
29.5
(1) Express Statement on the Information
(2) Oral Statements

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(3) Certification Statement
(4) Submission to the Program
F. Acknowledgment of Receipt, Validation,
and Marking: Section 29.6
(1) Presumption of Protection
(2) Marking
(3) Acknowledgement
(4) Determinations of Non-Protected Status
(5) Changes from Protected to Non-

Protected Status

G. Safeguarding of PCII: Section 29.7
H. Disclosure of PCII: Section 29.8
I. Investigation and Reporting of Violation
of PCII Procedures: Section 29.9
IV. Revision of Part 29
V. Consideration of Various Laws and
Executive Orders
A. Administrative Procedure Act
B. Executive Order 12866 Assessment
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act of 1995
E. Small Business Regulatory Enforcement
Act of 1996
F. Executive Order 13132—Federalism
G. Executive Order 12988—Civil Justice
Reform
H. Paperwork Reduction Act of 1995
I. Environmental Analysis
PART 29—PROTECTED CRITICAL
INFRASTRUCTURE INFORMATION
Table of Abbreviations
In this document, the following
abbreviations are commonly used:
APA—Administrative Procedure Act
CII—Critical Infrastructure Information
CII Act—Critical Infrastructure Information
Act of 2002
DHS—Department of Homeland Security
FOIA—Freedom of Information Act
HSA—Homeland Security Act of 2002
ISAO—Information Sharing and Analysis
Organization
NPRM—Notice of Proposed Rulemaking
PCII—Protected Critical Infrastructure
Information
PCIIMS—Protected Critical Infrastructure
Information Management System

I. Introduction
The Critical Infrastructure
Information Act of 2002 (CII Act) 1 is a
crucial tool in facilitating the
Department of Homeland Security’s
(DHS) analysis of infrastructure
vulnerability and related information for
planning, preparedness, warnings and
other purposes. The CII Act enables
DHS to collaborate effectively to protect
America’s critical infrastructure, eightyfive percent of which is in the private
sector’s hands. The CII Act authorized
DHS to accept information relating to
critical infrastructure from the public,
owners and operators of critical
infrastructure, and State, local, and
tribal governmental entities, while
limiting public disclosure of that
sensitive information under the
1 Homeland Security Act of 2002 (HSA) Pub. L.
108–275, tit. II, subtit. B, sec. 211, 116 Stat. 2135,
2150 (Nov. 25, 2002) (6 U.S.C. 131–134).

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Freedom of Information Act, 5 U.S.C.
552 (FOIA), and other laws, rules, and
processes.
In responding to comments and
drafting this final rule, DHS has been
careful to further the purposes of the
Protected Critical Infrastructure
Information (PCII) Program as an
effective anti-terrorism tool while also
carefully observing its limitations. For
the PCII Program to be successful, DHS
believes that the rule must be as clear
and certain as possible, yet flexible to
respond to changing conditions. Among
other measures, this final rule:
• Clarifies that a submittal validated
as PCII will not thereafter lose its
protected status except under a very
narrow set of circumstances (section
29.6(g));
• Requires that PCII will be shared
only for the Homeland Security
purposes specified in the statute and in
no event for other collateral regulatory
purposes (section 29.3(b));
• Provides the PCII Program Manager
with the flexibility to designate certain
types of infrastructure information as
presumptively valid PCII in order to
accelerate the validation process and
provide greater certainty to potential
submitters (section 29.6(f));
• Provides that submissions not
validated as PCII be returned to the
submitter or destroyed (section
29.6(e)(2)(ii));
• Provides for submission of CII for
protection through DHS field
representatives (section 29.5(a)(1));
• Identifies procedures for indirect
submissions to DHS through other
Federal agencies (sections 29.1(f),
29.5(a)(1), 29.6(b), (d)); and
• Simplifies the information
submission process (section 29.6).
On April 15, 2003, DHS published a
notice of proposed rulemaking (NPRM)
regarding the establishment of the PCII
Program. 68 FR 18523 (Apr. 15, 2003).
Written comments were accepted
through June 16, 2003. DHS received
117 sets of comments.
DHS subsequently published an
interim rule on February 20, 2004 at 69
FR 8074. In the February 2004 Interim
Rule, DHS responded to the public
comments received in response to the
initial NPRM and invited additional
public comments. DHS received 32 sets
of responsive comments from various
entities, including trade organizations
writing on behalf of their membership,
private sector and public interest
entities, one State government agency,
and individual commenters. The
comments may be reviewed at http://
www.dhs.gov/dhspublic/interapp/
editorial/editorial_0438.xml.

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II. Major Issues in the February 2004
Interim Rule
DHS has resolved several major issues
raised in public comments on the
February 2004 Interim Rule. The
following sections identify specific
issues raised by commenters and
describe how these issues have been
resolved.
A. Indirect Submissions of PCII
The preamble to the February 2004
Interim Rule discussed ‘‘indirect
submission’’ of CII. Section 29.2 of the
NPRM 2 defined ‘‘submission of CII to
DHS,’’ to include ‘‘either directly or
indirectly via another Federal agency,
which, upon receipt of the CII will
forward it to DHS.’’ In section 29.5(b)(1),
the proposed rule provided that CII
would receive the protections of the CII
Act only when the information was
submitted either ‘‘directly to the IAIP
[Preparedness] Directorate or indirectly
to the DHS IAIP Directorate by
submitting it to any Federal agency
which then * * * forwards the
information to the DHS IAIP
Directorate.’’ Other provisions of the
proposed rule specifically required
submittals to be made to the PCII
Program Manager, either directly or
indirectly.
DHS responded to the public
comments on indirect submission
received in the February 2004 Interim
Final Rule. The preamble stated that, in
light of substantial concern about
allowing indirect submissions, DHS had
removed references to indirect
submissions from the rule and made
clear that submissions must be made to
the PCII Program Manager or the PCII
Program Manager’s designees. At the
same time, DHS noted that it had
received comments voicing support for
indirect submissions. These comments
favored the NPRM original intent,
which was to facilitate information
sharing with the Federal government
through established relationships
between owners of the nation’s critical
infrastructure and those Federal
agencies that are sector leaders for
particular infrastructure. Accordingly,
after the PCII Program had become
operational, and pending further
analysis, the final rule might allow for
indirect submissions. The February
2004 Interim Rule invited additional
public comment.
Twenty additional sets of comments
on this subject were received. Nine
commenters opposed allowing indirect
2 For ease of reference, all references in this final
rule to sections or paragraphs without full citation
refer to sections and paragraphs of promulgated 6
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submissions, citing such considerations
as the restrictions imposed on the use of
PCII, concerns about the protection of
submitted CII within agencies other
than DHS, the potential for confusion as
to what other agencies may do with
information in their possession, and the
risk of an appearance that PCII had been
misused. Six other commenters
considered indirect submissions
problematic and believed that
permitting such submissions would
require additional clarification or a
system of checks and balances. On the
other hand, five organizations warned
that not allowing indirect submissions
would run contrary to their normal
information flow with Federal agencies
other than DHS.
Upon considering these comments,
DHS has concluded that certain Federal
personnel outside the Program
Manager’s Office at DHS (‘‘Program
Office’’), including certain DHS field
representatives and certain personnel in
other federal agencies, should be
permitted to receive and forward CII to
the Program Manager, but that (absent a
categorical inclusion, discussed below
at section III.F.) only the PCII Program
Office within DHS will be authorized to
make the decision as to whether to
validate a submission as PCII. The PCII
Program Manager will authorize
personnel in Federal governmental
entities other than the PCII Program
Office to accept a submission on behalf
of the Program Office, but only when
such personnel are trained to ensure
compliance with the requirements of
this final rule. The PCII Program
Manager will normally take this step
only when the particular governmental
entity: (1) Has appointed a PCII Officer;
(2) has the necessary staff, who are
trained in PCII procedures; (3) has
implemented measures to comply with
this final rule; and (4) has agreed that
the PCII Program Office may at any time
verify that agency’s compliance with the
Final Rule and other program
requirements. See section 29.5. Note
that this final rule does not restrict the
authority of the Secretary or the PCII
Program Manager to designate officials
to receive CII or take other actions in
exigent circumstances.
B. Definitional Issues Affecting
Qualifying Information
According to section 214(a)(1) of the
CII Act (6 U.S.C. 133(a)(1)), ‘‘critical
infrastructure information’’ that is
‘‘voluntarily submitted’’ to a ‘‘covered
Federal agency’’ (i.e., DHS) for its use
for the specified purposes, when
accompanied by an ‘‘express
statement,’’ qualifies for CII Act
protections. Section 212(3) of the CII

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Act (6 U.S.C. 131(3)) defines ‘‘critical
infrastructure information’’ to mean, in
pertinent part, ‘‘information not
customarily in the public domain,’’ and
section 212(7) of the CII Act (6 U.S.C.
131(7)) defines ‘‘voluntary.’’ In the final
rule, changes have been made to two
definitions that are relevant to these
statutory provisions, and corollary
definitions have been added.
(1) In the Public Domain
In the preamble to the February 2004
Interim Rule, DHS declined to interpret
further the meaning of ‘‘information not
customarily in the public domain.’’
Three commenters on the February 2004
Interim Rule urged that this phrase be
defined. In response, in section 29.2(d),
DHS has defined ‘‘in the public
domain’’ in part as ‘‘information
lawfully, properly and regularly
disclosed generally or broadly to the
public.’’ This definition draws in part
on section 214(c) of the CII Act (6 U.S.C.
133(c)), which stipulates that nothing in
section 214 constrains the collection of
critical infrastructure information
‘‘including any information lawfully
and properly disclosed generally or
broadly to the public * * *.’’ The new
definition further identifies certain
types of information that are considered
not to be in the public domain—
specifically, ‘‘information regarding
systems, facilities, or operational
security, or that is proprietary, business
sensitive, or which might be used to
identify a submitting person or entity.’’
(2) Voluntary or Voluntarily
The definition of ‘‘voluntary’’ in
section 29.2 of this rule implements
section 212(7)(A) of the CII Act (6 U.S.C.
131(7)(A)), which provides that a
submittal of CII is not ‘‘voluntary’’ if
such information is provided pursuant
to the exercise of legal authority by DHS
(the ‘‘covered agency’’) to compel access
to or submission of the information.
Four commenters argued for a broader
disqualification of information
submitted to other Federal agencies
pursuant to such agencies’ exercise of
their legal authority. The language of
sections 212(2) and 212(7)(A) of the CII
Act (6 U.S.C. 131(2) and 131(7)(A)) do
not support such a reading and DHS has
not adopted it.
Whether information provided to the
PCII Program manager is ‘‘voluntarily
submitted’’ is to be determined at the
time CII is submitted. The terms
‘‘submitted’’ and ‘‘relied upon’’ in
section 212(7)(B)(ii) (6 U.S.C.
131(7)(B)(ii)) are both retrospective in
nature. Both employ the past tense and
both apply to actions before the date
that information is submitted to the PCII

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Program Manager. As discussed below
in section III, the provision in section
29.6(f) of the February 2004 Interim
Rule allowing a change of status from
‘‘Protected’’ to ‘‘non-Protected’’ based
on a subsequent requirement that the
information be submitted to DHS has
been eliminated. This does not mean
that DHS could not obtain related CII
available under other DHS legal
authority later in time. It does mean,
however, that the specific documents
voluntarily submitted as PCII will not be
publicly released. See section 214(c) of
the CII Act (6 U.S.C. 133(c)).
Section 212(7)(B)(ii) of the CII Act (6
U.S.C. 131(7)(B)(ii)), excludes from the
definition of ‘‘voluntary,’’ information
or statements ‘‘submitted or relied upon
as a basis for making licensing or
permitting determinations, or during
regulatory proceedings.’’ Neither the
term ‘‘licensing or permitting
determinations’’ nor ‘‘regulatory
proceedings’’ is defined in the CII Act,
and the CII Act does not state explicitly
to whom the information or statements
must have been submitted or which
agency relied upon them. One
commenter urged greater precision in
the definition of ‘‘voluntary,’’ and many
commenters expressed concern over the
potential impact of the PCII Program in
a ‘‘regulatory’’ context.
DHS agrees that the terms should be
defined with greater precision. It is clear
throughout the statute that the terms
‘‘voluntary’’ and ‘‘voluntarily’’ refer
only to submissions intended to reach
DHS. See section 212(2) of the CII Act
(6 U.S.C. 131(2)) (‘‘covered Federal
Agency’’ means the Department of
Homeland Security); sections 212(7)(A),
and 214(a)(1) of the CII Act (6 U.S.C.
131(7)(A), 133(a)(1)). Section
212(7)(B)(ii) of the CII Act (6 U.S.C.
131(7)(B)(ii)), incorporates the concept
of ‘‘voluntary submissions,’’ which, by
its definition, involves only submission
to DHS. Subsection 212(7)(b)(ii) limits
only the scope of a voluntary
submission to DHS. Thus, it is
reasonable and appropriate to interpret
the terms ‘‘licensing or permitting
determinations’’ and ‘‘regulatory
proceedings’’ in section 212(7)(B)(ii) as
referring to such activities within DHS
and DHS has done so. This is fully
consistent with other provisions of the
CII Act (sections 212(c) and 212(d)).
Any broader interpretation would be
inconsistent with Congress’ purpose in
creating the Act and impossible to
administer effectively. Indeed, it is
difficult to imagine how DHS could
feasibly determine if and when any
‘‘information or statements’’ in CII had
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DHS or any State, local or tribal entity
in any public or private proceeding
throughout time.
Further, the definition has been
altered to reflect that submissions may
be accepted from a ‘‘single state or local
governmental entity; or a private entity
or person; or by an ISAO acting on
behalf of its members or otherwise’’ to
address confusion expressed by
potential submitters based on
unnecessarily narrow constructions of
the definition of a submitter.
C. Protected and Non-Protected
Information
Several issues have arisen as to what
portions or aspects of submitted
information should enjoy the
protections of the CII Act, and under
which circumstances information
should enjoy protection.
(1) Portion Marking
The preamble to the February 2004
Interim Rule reported that although six
public comments advocated a
requirement for marking those portions
of submitted information that are
entitled to protection under the CII Act,
DHS had concluded that ‘‘portion
marking’’ should not be required. One
commenter on the February 2004
Interim Rule contested this position.
DHS has considered these comments
but has not altered its conclusion.
Accordingly, no portion marking will be
required.
(2) Definition of PCII
The CII Act defines CII in section
212(3) (6 U.S.C. 131(3)). DHS believes
that any information, statements or
other material reasonably necessary to
explain the CII, put the CII in context,
or describe the importance or use of the
CII are appropriately within the scope of
the protections intended by the CII Act.
Accordingly, the definition of
‘‘Protected Critical Infrastructure
Information,’’ or ‘‘PCII,’’ in section
29.2(g) has been modified to reflect this
clarification.
(3) Source of the Information
The definition of ‘‘Protected Critical
Infrastructure Information,’’ or ‘‘PCII’’ in
section 29.2 of the February 2004
Interim Rule provides that the ‘‘identity
of the submitting person or entity’’
enjoys the protections of the CII Act in
parity with the information submitted.
Two comments expressed concern about
the ‘‘anonymity’’ of those on whose
behalf an Information Sharing and
Analysis Organization (ISAO) might
submit CII. DHS recognizes that
information may be submitted on behalf
of others by an ISAO or trade

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association. DHS agrees and section 29.2
has been amended to clarify that the
Act’s protections extend to the identities
of those persons or entities on whose
behalf the information was submitted
and to any other information that could
be used to discover such identities.
Section 29.8(e), relating to disclosure of
information to appropriate entities or to
the general public, has been conformed.
(4) Interplay of Sections 214(a)(1)(C) and
214(c) of the CII Act
Questions have also arisen regarding
the meaning of section 214(a)(1)(C) of
the CII Act (6 U.S.C. 133(a)(1)(C)): PCII
‘‘shall not, without written consent of
the person or entity submitting such
information, be used directly * * * in
any civil litigation * * * if such
information is submitted [to DHS] in
good faith.’’ The issue is whether
information in the hands of submitters
will, by virtue of voluntary submission
to DHS under this provision, be
unavailable for use in civil litigation.
When CII is submitted and validated for
protection under the Act, the
information and documents provided,
and drafts and copies thereof retained
by the submitter(s) or person working
with the submitter(s), as well as any
discussions with DHS regarding the CII,
shall be considered PCII and cannot be
the subject of civil discovery or other
direct use in any civil litigation without
the submitter’s consent. DHS interprets
the statutory phrase ‘‘any civil action’’
in section 214(a)(1)(C) of the CII Act to
include civil litigation in any form or
forum whether the United States is or is
not a party. DHS disagrees with the
notion, suggested by some, that the
statutory language would permit civil
discovery of such information while
prohibiting its use as evidence at trial.
This dichotomy makes little sense.
‘‘Discovery’’ of the information in a civil
action, with all it entails, is in fact
‘‘direct’’ use of the information. The Act
is structured to spur owners of CII and
others to evaluate and share CII
vulnerabilities and other sensitive
information with the Department.
Creating a civil discovery loophole to
the protections of the Act would impede
such cooperation and be fundamentally
inconsistent with the language and
purposes of the Act.
It is also important to focus on section
214(c) of the CII Act (6 U.S.C. 133(c)).
That provision indicates that the Act
shall not ‘‘be construed to limit or
otherwise affect the ability of a State,
local, or Federal government entity [or
private litigant] * * * to obtain critical
infrastructure information in a manner
not covered by’’ section 214(a) (6 U.S.C.
133(a)). While PCII, including the

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opinions, evaluations, conclusions or
analyses that were submitted, may not
be used directly in civil litigation,
independently existing factual
information obtained independently by
a civil litigant from sources other than
the PCII can present a different question
under section 214(c).
(5) Good Faith Submission of CII
Section 29.2(n) was inserted in
response to a commenter’s request for a
definition of ‘‘good faith.’’ This new
section provides that any information
that could be reasonably considered CII
information, as defined in the
regulations, is submitted in good faith.
The subsequent validation of such
information as PCII by the PCII Program
Office, or the inclusion of such
information in a category of prevalidated information, definitively
establishes the submission as having
been made in good faith.

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(6) Communications With the
Submitting Person or Entity
Another matter that the February 2004
Interim Rule did not address is
communications of the PCII Program
Office, or of other authorized recipients
of PCII, with the submitting person or
entity about the submittal or the
submitted information. Part of the
purpose of the CII Act is to encourage
frank and open discussion with DHS
regarding CII. It would defeat the
purpose of the Act to declare such
exchanges as outside the context of PCII.
Certain communications are specifically
intended to perform the functions
enumerated in sections 29.6(d), (e)(2)
and (f), 29.8(e), and 29.9(c), or to inquire
whether the submitting person or entity
consents to disclosures of the submitted
information. Changes to sections 29.8(c)
and 29.8(d)(2), and new section
29.8(f)(1)(i)(B) fill the void by
authorizing the disclosure of PCII by
Federal government officers, employees,
and contractors, as well as State, local,
and tribal governmental entities in order
to facilitate communications with a
submitting person or an authorized
person on behalf of a submitting entity,
about a CII submission by that person or
entity.
D. Loss of Protected Status
Section 29.6(f) of the February 2004
Interim Rule responded to comments by
providing for changes from ‘‘Protected’’
to ‘‘non-Protected’’ status when the
submitting person or entity requested
the change in writing, or when the PCII
Program Manager or his or her designee
determined that ‘‘the information was
customarily in the public domain, is
publicly available through legal means,

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or is required to be submitted to DHS by
Federal law or regulation.’’ Two
commenters sought clarification of or a
change to this section.
Two of these criteria allowing a loss
of protected status have been removed
by this final rule. First, the test that
would allow a loss of protected status
because the submitted information ‘‘is
publicly available through legal means’’
has been deleted because the CII Act
does not provide for a change in status
on this ground. Second, as noted above
in the discussion of the definition of
‘‘voluntary or voluntarily,’’ the test that
would allow a loss of protected status
because the submitted information ‘‘is
required to be submitted to DHS by
Federal law or regulation’’ has been
eliminated. This change has been made
because the definitional exclusion in
section 212(7)(A) of the CII Act (6 U.S.C.
131(7)(A)), and the section 29.2
definition of ‘‘voluntary or voluntarily’’
refers expressly to the time of submittal
and is thus retrospective only. This does
not, of course, prevent DHS from using
current or future authority to mandate
submission of any information.
However, prior voluntary submissions
under the CII Act may only be utilized
in accordance with the Act’s provisions.
E. Sharing of PCII With Foreign
Governments
Ten commenters expressed concerns
about the February 2004 Interim Rule’s
provision on ‘‘Disclosure to foreign
governments’’ in section 29.8(j). Some
pointed to an ambiguity as to whether
this subsection was intended to allow
the sharing of PCII with foreign
governments, without the consent of the
submitting person or entity, to an extent
greater than would result from the
issuance of advisories, alerts and
warnings under section 214(g) of the CII
Act. Commenters argued that if that was
the intent, it was unauthorized by the
CII Act.
DHS envisions situations in which
international cooperation is required to
combat terrorism, and PCII may form
part of a warning to a foreign
governmental entity. In these cases,
appropriate cooperation may be
accomplished as a warning under
section 214(g) of the CII Act.
Accordingly, former section 29.8(j) is
unnecessary and has been omitted.
F. Emergency Disclosure of PCII
One commenter noted that exceptions
should be drafted into the final rule that
allow for the disclosure of specific
information when there is an emergency
that threatens widespread injury or loss
of life, and that such disclosure must
not be contingent on the prior written

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consent of the submitter. In response to
this comment, DHS has modified
section 29.8(e) to permit the use of PCII
in advisories, alerts, and warnings
without the consent of the submitting
person or entity, but prior to doing so,
DHS must ‘‘take appropriate actions to
protect * * * information that is
proprietary, business sensitive, relates
specifically to the submitting person or
entity, or is otherwise not appropriately
in the public domain’’ (section 214(g) of
the CII Act (6 U.S.C. 133(g))).
III. Other Changes to the Rule by
Section
A. Purpose and Scope: Section 29.1
The February 2004 Interim Rule
provided that warnings could be issued
by DHS that were predicated upon CII
submissions provided that the
‘‘identity’’ of the submitter was
protected and the disclosure did not
result in the public dissemination of the
submitter’s business proprietary/
sensitive information (i.e., information
that is not ‘‘customarily available’’ in
the public domain). The requirement to
protect the ‘‘identity’’ of the disclosure
has been broadened to protect the
‘‘source’’ of information, as well as
information that might be used to
identify the submitting person or entity.
This broader formulation tracks the
language in section 214(g)(1) of the CII
Act (6 U.S.C. 133(g)(1)). It also
recognizes that there may be instances
in which PCII is provided to DHS by an
ISAO or trade association. In such a
case, confidentiality should extend to
both the submitter of the information
(the ISAO or trade association) and to
the individual that provided the CII to
the ISAO for submission. This has
become particularly important with the
development of collaboration with
industry-wide working groups and
ISAOs. The phrase ‘‘otherwise not
appropriately in the public domain’’
was drawn from section 214(g)(2) of the
CII Act (6 U.S.C. 133(g)(2)), and replaces
‘‘customarily available.’’ This change is
intended to conform the language in this
final rule to the statute and to be more
protective of an owner or operator’s
proprietary or business confidential
information. Then relevant portions of
the revised definition of ‘‘in the public
domain’’ in section 29.2, discussed in
detail in section II above, has been
added to this section.
With respect to the ‘‘Scope’’ of the
PCII rule set forth in section 29.1(b), five
commenters asked for clarification of
the interrelationship between the
procedures established by this rule and
the requirements for the handling of
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information, such as Sensitive Security
Information (SSI). This rule covers CII
voluntarily submitted to DHS when
accompanied by the statutory express
statement. While other Federal agencies
are not required to participate in the
PCII Program, those that do desire to
participate must first undergo
appropriate training programs and take
necessary steps to adhere to the statute
and these regulations to enable the
owners of the information to receive the
full protections for their CII provided for
in the CII Act. When information that is
voluntarily submitted to the Federal
government meets the definition of SSI
in 49 CFR part 1520 and is also
designated as CII by the PCII Program
Office, it will be marked and protected
in accordance with these procedures as
PCII, but can also enjoy SSI protection.
To provide greater clarity, however,
section 29.1(b) has been revised and
simplified to reflect that these rules
apply to anyone authorized to handle,
use, or store PCII or that otherwise
receives PCII.

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B. Definitions: Section 29.2
Five commenters addressed one or
more definitional questions. The
comments suggested changes to defined
terms and also noted that some
important terms were not defined at all.
Critical Infrastructure and Critical
Infrastructure Information. Several
comments asked for a more explicit
definition of these terms. The terms are
defined in statutory language and no
changes were made. For clarity, the
statutory references on which section 2
of the Homeland Security Act of 2002 (6
U.S.C. 101), was based have been
included.
Protected Critical Infrastructure
Information Program, or PCII Program.
The previously defined term ‘‘Critical
Infrastructure Information Program’’ has
been replaced with the more descriptive
term ‘‘Protected Critical Infrastructure
Information Program,’’ or ‘‘PCII
Program.’’
Information Sharing and Analysis
Organization, or ISAO. Two comments
concerning the anonymity of those on
whose behalf an ISAO might submit are
discussed in section II.C.(2) above. An
additional comment specifically asked
for clarification that ISAOs have the
capability to make CII submissions on
behalf of their sector participants. That
comment does not require a change in
the definition. The definition of the
terms ‘‘voluntary or voluntarily’’ and
‘‘Protected Critical Infrastructure
Information,’’ discussed below, make
clear that ISAOs may submit CII on
behalf of members.

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Protected Critical Infrastructure
Information, or PCII. This definition has
been changed to make clear that the
identities of both the original providers
and subsequent submitters of
information are included within PCII
when an ISAO or trade association has
submitted the CII for validation as PCII.
The definition was also expanded to
include any information that is
necessary to explain or provide context
for the PCII. In response to a comment,
the last sentence of the definition in the
February 2004 Interim Rule has been
moved to section 29.6(b) because it
contained a policy statement rather than
an element of a definition.
Purposes of the CII Act. This term,
which conforms with the usage at 6 CFR
29.5(a), is more apt than the previously
defined ‘‘purpose of CII.’’
The terms ‘‘In the public domain,’’
‘‘Regulatory proceeding,’’ ‘‘State,’’
‘‘Submitted in good faith’’ and
‘‘Voluntary or voluntarily’’ are
discussed in detail in Section II.
C. Effect of the Provisions: Section 29.3
Several commenters expressed
concern that PCII could be used for
purposes other than securing critical
infrastructure, such as regulating
workplace safety or monitoring
compliance with environmental laws.
Congress was very clear on this point in
the CII Act, specifying a very narrow
range of appropriate uses for PCII.
Information in the PCII submission may
be employed * * * regarding the
security of critical infrastructure and
protected systems, analysis, warning,
interdependency study, recovery or
reconstitution or other information
purpose * * * Section 214(a)(1) of the
CII Act (6 U.S.C. 133(a)(1)). Indeed, the
statute expressly forbids use of PCII, and
sets forth a criminal sanction, for
purposes other than those specified in
the Act. See section 241(a)(1)(D) of the
CII Act (6 U.S.C. 133(a)(1)(D)) (noting
also appropriate use ‘‘in furtherance of
a criminal investigation or in the
prosecution of a criminal act,’’ or when
shared subject to these requirements
with specified persons in the legislative
branch); section 214(f) (6 U.S.C. 133(f))
(penalties). Section 213(a)(1)(E)
expressly forbids state and local
governments from disclosing or using
PCII material ‘‘other than for the
purposes of protecting critical
infrastructure or protected systems
* * *’’). Id.
These and other provisions of the CII
Act are unambiguous; PCII may not be
disseminated to other federal, state or
local agencies for other regulatory
purposes. Nor may any recipient of PCII
utilize any information in the PCII for

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other regulatory purposes. The PCII
Program Office will impose appropriate
restrictions on all recipients of PCII, and
will require appropriate training and
oversight to ensure compliance with
these legislative mandates.
Certain commenters have also
suggested that an individual with
collateral regulatory responsibility (e.g.
worker health and safety) would not be
able to segregate knowledge gained from
PCII information (once learned) from his
day-to-day duties on non-security
issues, and thus would ‘‘inevitably’’ use
such PCII information for non-security
purposes. The PCII Program Office is
aware of this concern and will take it
into account when determining the
appropriate persons with whom to share
particular PCII. A person proposing to
submit CII may consult with the PCII
Program Office regarding appropriate
restrictions applicable to use of the
particular potential submission prior to
making that submission.
D. PCII Program Administration: Section
29.4
Three commenters addressed the
provisions of this section. Only one
paragraph was changed. Paragraph (e)
was modified from the February 2004
Interim Rule to make clear that the
‘‘development’’ of the Protected Critical
Infrastructure Information Management
System (PCIIMS) is the responsibility of
the PCII Program Manager.
Three commenters suggested that the
PCIIMS contain only what could be
called the tracking data and that the
actual PCII should be kept elsewhere.
The suggestions will not be adopted.
The tracking data may include
information that identifies the
submitter, and to the extent that it does,
it is included in the revised definition
of PCII (section 29.2) under the CII Act.
DHS has an obligation to safeguard all
PCII. Accordingly, DHS will maintain
PCII according to a distributed model
with information stored in a number of
databases including the PCIIMS.
E. Requirements for Protection: Section
29.5
Eleven commenters addressed various
aspects of the requirements for
protection, and a substantial number of
changes have been made to section 29.5.
(1) Express Statement on the
Information
As the comments suggest, the
‘‘information and records’’ provided as
PCII are occasionally not easily
susceptible to labeling with an ‘‘express
statement.’’ required for a proper
submission. For that reason, the final
rule provides for the use of a separate,

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written ‘‘express statement’’ as set forth
in paragraph (a)(3)(i).

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(2) Oral Statements
Two comments were received
regarding oral submissions during an
ongoing crisis. These comments
suggested that, where there might be
many submissions, either the
requirements for a written follow-up
could be waived or PCII status could be
assigned once and maintained
throughout the crisis. DHS agrees with
this suggestion and the rule has been
changed to expand this capacity to the
extent practical. The requirement for
both an express statement and a
certification statement has not been
changed. However, the time in which
these statements are required has been
changed to ‘‘a reasonable period’’, as
determined by the PCII Program
Manager on a case-by-case basis, after
CII submission, in whatever form.
Further, DHS has added a section to
make clear that electronic submissions
are authorized and to establish
appropriate procedures for such
submissions.
(3) Certification Statement
Three commenters noted the
requirement for a certification statement
is not statutory. The certification
statement is considered necessary,
however, for effective program
management and the rule continues to
require a certification statement in
paragraph (a)(4). The commenters
suggested that there may be a public
burden in submitting such a statement,
and DHS has, in response, significantly
simplified the submission requirements.
The only information required in the
certification statement is the submitter’s
contact information and any language
considered necessary by the PCII
Program Manager.
One commenter suggested that
submitters be required to identify the
steps that the submitter itself takes to
protect the CII. The commenter
suggested this information would assist
the PCII Program Manager in
determining a more appropriate and
accurate determination of status. DHS
has not adopted the suggestion.
One commenter suggested that the
certification statement should be treated
as PCII. The identifying information
within the certification statement will
be treated as PCII. Some substantive
requirements of the certification
statement have changed, however. The
certification has been modified to
incorporate provisions that the PCII
Program Office has found necessary
from an operating standpoint. For
instance, PCII Program Office needs to

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know with whom it is dealing and how
to contact responsible individuals. One
commenter was concerned that
unauthorized individuals might submit
information on behalf of an entity, and
suggested that, as a result, DHS establish
parameters as to who is eligible to
submit on behalf of an institution. DHS
declines to do so. Even if parameters
were established, there would be no
practical way for DHS to determine
whether the submitting individual is
authorized by the entity to do so.
A commenter suggested DHS should
provide forms for the PCII Program.
Forms are not currently provided, and
DHS does not believe that specific forms
are needed. DHS has posted guidelines
for submitters on the DHS Web site to
assist potential submitters.
(4) Submission to the Program
The second sentence in paragraph (b)
of the February 2004 Interim Rule
relating to submissions to DHS
components other than the
Preparedness Directorate has been
deleted as unnecessary. The PCII
Program Manager or the Program
Manager’s designees should receive
submittals of CII, as discussed above in
Section II.A. This process effectively
responds to a commenter that
questioned the internal DHS receipt of
CII.
Another commenter asked for special
consideration for CII inadvertently
submitted to the wrong agency or
person. DHS believes its process is
straightforward and further
consideration for inadvertent
submission is unnecessary. DHS will
make available to potential submitters
the means for submitting CII, and those
means will be consistent with the
protections of the Act.
A commenter suggested that it would
be helpful if DHS could make advance
determinations that any record falling
within a certain class or category would
be validated once and not every time a
submission is made. As discussed
below, DHS has added a new section
29.6(f) that addresses this issue and
would be pleased to confer with any
potential submitter regarding a possible
submission.
F. Acknowledgment of Receipt,
Validation, and Marking: Section 29.6
Section 29.6 was revised extensively
in response to the comments received
from the twelve commenters on this
section and in light of operational
decisions made by DHS.
(1) Presumption of Protection
Three commenters expressed their
support for the presumption of

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protection afforded by this provision. To
conform to the definition of PCII in
section 29.2, new language clarifies that
voluntarily submitted CII is PCII when
submitted with an express statement
even if the certification statement
required by section 29.5(a)(4) is not
initially received. See also section
29.6(d). If the information is deficient,
the PCII Program Manager will attempt
to contact the submitter to afford the
submitter an opportunity to rectify the
error or withdraw the submission and
may properly label the submission him
or herself.
(2) Marking
One commenter suggested that
submitters be required to mark portions
of submissions. DHS does not agree for
reasons articulated elsewhere.
In response to another comment,
language has been added to the marking
statement contained in paragraph (c) to
highlight the criminal and
administrative penalties that could
result from unauthorized release. This
statement was omitted from the
February 2004 Interim Rule provision.
The last sentence of marking
statement included in paragraph (c)
addresses what could otherwise be an
alternative interpretation based on a
literal reading that the regulation
requires the submitter to maintain the
submitted information in accordance
with the procedures and requirements
established by DHS rather than in
accordance with its own procedures.
That is not intended.
(3) Acknowledgement
A change to paragraph (d) adjusts the
February 2004 Interim Rule statement
regarding what is required before a
submission receives the presumption of
protection. Since submitted information
need only be accompanied by an
‘‘express statement’’ in order to enjoy
the presumption of protection, it is
unnecessary to provide a certification
before the PCII Program Manager or the
PCII Program Manager’s designee
acknowledges receipt and takes action.
(4) Determinations of Non-Protected
Status
Nine commenters addressed the
handling and disposition of information
that is found ineligible for protection
under the CII Act, proposing the
required destruction or the required
return of the information; compliance
with the submitter’s instructions; or
assurance that the information will
continue to be treated confidentially
and withheld from disclosure under the
FOIA. As stated in the preamble to the
February 2004 Interim Rule, DHS will

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return submissions in almost all cases
when it does not qualify as PCII.
The added words, ‘‘within thirty
calendar days of making a final
determination,’’ provide a new time
limit for disposition of non-validated CII
submissions, which is consistent with
the period employed in the last sentence
of the subparagraph. The 30-day period
will run from the date of the notification
rather than from the date of receipt of
the notification by the submitter. The
changes also supply a step previously
missing from the language in the
February 2004 Interim Rule regarding
this provision, i.e., that the PCII
Program Office will make the initial
determination final.
A commenter suggested that a 30-day
time period for the Program Office to
acknowledge receipt of a PCII
submission was excessive; another
requested the establishment of a time
period to complete the validation
process. Neither suggestion will be
adopted. The volume of submissions is
unpredictable, and 30 days to
acknowledge receipt is a reasonable
period. Recognizing the importance of
timeliness, the PCII Program Manager
will ensure that all processing is
efficiently performed.
While notification to the submitter
may, at the PCII Program Office’s
option, contain an explanation of why
submitted information is not considered
to be PCII under paragraph (e)(2)(ii),
DHS does not accept the suggestion of
two commenters that such an
explanation be made obligatory.
Additionally, paragraph (e)(2)(i)(A) has
been modified to reflect the possible
need to ask the submitter to provide the
statement called for by section
29.5(a)(4), or any of the certifications
that the statement is required to include,
in order to perfect a submission.
Further, a new paragraph has been
added at section 29.6 to allow for
‘‘categorical inclusions’’ in response to
comments. This provision clarifies the
Program Manager’s authority to
establish categories of information for
which PCII status will automatically
apply without a separate act of
validation by the PCII Program Office.
(5) Changes From Protected to NonProtected Status
Changes to paragraph (g) regarding a
change in status from protected to nonprotected are explained above in
Section II. In response to a comment,
this section has also been changed to
specify that the procedures in paragraph
(e)(2) of this section will be used prior
to final determination of a change of
status. As stated in the discussion of
section 29.3(b) above, proposals that

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DHS either continuously review or
establish a fixed schedule for regularly
reviewing all PCII have been rejected.
G. Safeguarding of PCII: Section 29.7
Nine commenters addressed
safeguarding issues in section 29.7, and
two changes were made. In paragraph
(b), the phrase ‘‘in accordance with
procedures prescribed by the PCII
Program Manager’’ was added in
response to several comments asking for
greater specificity in procedures for use
and storage. The second change deletes
a phrase in the February 2004 Interim
Rule at the end of the paragraph that
three commenters interpreted as giving
the PCII Program Manager the discretion
to establish ‘‘tiered’’ levels of security.
One commenter asked for a definition
of ‘‘official duties’’ as that term is used
in paragraph (c) regarding reproduction
of PCII. Because the recipients of PCII
are diverse, no general definition of
‘‘official duties’’ applicable to all is
appropriate.
Two commenters believed paragraph
(d) should specify that disposal should
be in accordance with the Federal
Records Act, 44 U.S.C. 3301. This
section applies to Federal as well as
other entities and DHS believes that
requiring non-Federal entities to adhere
to the Federal Records Act would be
unnecessarily burdensome.
Two commenters suggested that
paragraph (f) require transmission by
secure and encrypted means. Another
commenter asked for examples of what
might be considered secure means. The
PCII Program Manager will, as the rule
states, determine the method of secure
transmission. The method of
transmission will not be the same in all
cases. Encryption may be practical in
some cases but not in others.
H. Disclosure of PCII: Section 29.8
This section was revised extensively
based on comments received from
sixteen commenters and on the
operating experience of the PCII
Program Office.
In response to two comments, a
clarifying cross-reference in paragraph
(a) was inserted in order to avoid giving
this subsection an unintended legal
effect that renders the subsequent
provisions superfluous. Other language
was deleted from this provision in the
February 2004 Interim Rule because it
was duplicative.
Four commenters proposed the
involvement of submitters in DHS’
information sharing decisions. DHS has
not accepted these suggestions. Another
commenter’s objection to provisions
requiring the submitter’s consent to
further disclosures of PCII likewise was

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rejected. DHS must make disclosure
decisions based in the interests of the
United States as a whole, including the
interests of the submitters and the
specific reasons and events that may
warrant disclosure.
DHS is clarifying the distinction in
paragraph (b) between how PCII may be
used by the Federal government, and
how it may be used by State, local, and
tribal agencies. The CII Act limits the
purposes for which State, local and
tribal governments may use PCII and
how State, local and tribal governments
may share PCII. According to sections
214(a)(1)(E)(ii) and (iii) of the CII Act (6
U.S.C. 133(a)(1)(E)(ii) and (iii)), PCII
may not be used by those governments
for purposes other than protecting
critical infrastructure or protected
systems, or in furtherance of an
investigation or the prosecution of a
criminal act, and an agency of those
governments may not further disclose
the information without the consent of
the submitter. These limitations are
echoed in paragraphs (d)(1) and (3) of
the February 2004 Interim Rule. The
revision of this subsection brings the
State, local and tribal sharing provisions
into conformity with the statute and the
other related rule provisions. The final
sentence alters the requirement that
State, local and tribal government
entities enter into written agreements
with the PCII Program Manager,
specifying that they must instead enter
into arrangements with the PCII
Program Manager. This change was
made to promote flexibility and, in
exigent circumstances, a speedy sharing
of information.
In response to eight commenters who
expressed concern over possible
unauthorized State, local or tribal
government disclosures of PCII that
might be provided to them, or who
urged the adoption of strict controls on
the sharing of such information with
State, local and tribal governments,
these arrangements, except in exigent
circumstances will be very specific, will
require safeguarding, handling,
violation reporting, and other
procedures consistent with this rule,
and will further provide for compliance
monitoring. In most cases DHS
anticipates that these arrangements will
be in the form of a Memorandum of
Agreement (MOA) that will also
recognize the preeminence of PCII status
under the CII Act and these regulations
in relation to any State, territorial, or
tribal public disclosure laws or policies.
Further, DHS has added language that
makes clear that PCII may not be used
for regulatory purposes.
In paragraph (c), the first change
clarifies that State, local and tribal

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contractors can receive PCII under the
same conditions as Federal contractors.
As in the case of Federal contractors,
State, local, and tribal contractors are
agents of a governmental entity, carrying
out the functions on behalf of the
government in furtherance of its mission
and under its direction. Therefore, DHS
does not consider State, local and tribal
contractors to be precluded from
receiving PCII as ‘‘any other party;’’
rather, DHS considers them an
extension of the State, local or tribal
governmental entity.
The second change is to employ a
term defined in section 29.2, to replace
the subjective term, ‘‘purposes of DHS’’
with the term ‘‘purposes of the CII Act.’’
This change also better lends itself to
PCII Program Office certifications of
contractors to Federal agencies other
than DHS. All contractor employees
working on PCII Program matters and
having access to PCII, rather than the
more abstract ‘‘identified category’’ of
employees, will be required to sign a
nondisclosure agreement (NDA). Also
added is a provision that the NDAs will
be in a form prescribed by the PCII
Program Manager. Based on PCII
Program Office operating experience,
reference to ‘‘contractor’’ signature of
NDAs has been deleted; contractors will
continue to be obliged to agree, by
contract, to comply with all
programmatic requirements.
Additionally, as discussed above in
section II.C, a change was made to
permit employees of Federal, State,
local, and tribal contractors who are
engaged in the performance of services
in support of the purposes of the CII
Act, to communicate with a submitting
person or an authorized person of a
submitting entity about their submittal
or information when authorized by the
PCII Program Manager or a PCII Program
Manager’s designee. The previous
prohibition against disclosure to any of
the contractors’ components and the
reference to ‘‘additional employees’’
posed an unnecessary operating
difficulty for contractors, which was
noted by one commenter. These
provisions have been replaced by the
more comprehensible but sufficiently
strict prohibition on disclosing to ‘‘any
other party.’’ This is the term used in
section 29.8(d)(1), which prohibits
State, local, and tribal governments from
making disclosures to ‘‘any other party
not already authorized to receive such
information.’’
A commenter suggested that a PCII
Officer certify the distribution of PCII to
Federal contractors on a specific PCII
case-by-case basis rather than based on
a certification that the contractor was
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This suggestion will not be adopted.
Such a requirement could be
burdensome, and moreover, is
unnecessary. PCII will only be
distributed as required for the
contractor’s use. The single certification
does not entitle the contractor to all
PCII, but only PCII the governmental
agency determines the contractor needs.
Another commenter asked for
clarification of what type of language
would constitute the authorization from
the submitter to enable sharing of PCII.
The relevant question is how DHS will
ask for permission, and DHS envisions
that the request will be in writing, state
the tracking number previously
provided to the submitter, identify the
requester and the intended recipient,
and ask for a response within a certain
number of days.
Consistent with the changes discussed
above, a change was made in paragraph
(d)(1) to eliminate the idea that consent
to further disclosure could be made by
someone ‘‘on whose behalf’’ information
was submitted.
A comment questioned the statement
in the preamble to the February 2004
Interim Rule that State, local and tribal
governments ‘‘will be asked to track
further disclosures’’ and suggested the
requirement to track should remain with
DHS. As the comment noted, any
further distribution by State, local, and
tribal governments requires submitter
permission, a process administratively
handled by DHS. DHS will impose a
tracking requirement on State, local and
tribal governments and will also have its
own records of permissions in the
PCIIMS.
Changes in paragraph (e) of this
section have been explained in detail in
section II above. An additional change
to paragraph (e) not discussed above is
that the language now allows not only
the Directorate for Preparedness, but
also other Federal agencies, as well as
State, local and tribal government
entities, to use PCII in preparing
advisories and similar communications.
The list of things to be protected from
disclosure has been rephrased in the
disjunctive, correcting the unduly
restrictive conjunctive phrasing, which
was noted by one commenter. The final
change adds language that permits
Federal, State, local and tribal
governmental entities to contact
submitters directly to confer if there is
a question about the PCII to be used in
the advisory, alert, or warning.
A comment suggested that paragraph
(f)(1)(i), which limits use or disclosure
of PCII by Federal employees except as
authorized, is important enough to
warrant its own rule provision. The
comment was considered; however,

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further changes were not deemed
necessary. However, in reviewing the
paragraph it is clear that sections of the
CII Act other than 214(a)(1)(D) and (E)
(6 U.S.C. 133(a)(1)(D), (E)), for example,
were applicable to the general category
of ‘‘Exceptions for disclosure.’’ The
language in the subparagraph was
therefore modified to make clear that it
applied to entities and persons other
than officers and employees of the
United States.
Language was added to make
paragraph (f)(1)(i)(A) consistent with the
position that State, local, and tribal
investigations or prosecutions should be
coordinated by a Federal law
enforcement official. It also recognizes
that PCII could be used in furtherance
of a foreign government investigation or
prosecution, and imposes, for any
disclosure to the foreign government,
the same requirement for coordination
by a Federal law enforcement official.
Paragraph (f)(1)(i)(C) has been limited
to the disclosure of information by an
officer or employee of the United States,
as this paragraph fits clearly within the
confines of section 214(a)(1)(D) of the
CII Act (6 U.S.C. 133(a)(1)(D)).
Section (f)(3) of the 2004 Interim Final
Rule referred to the Whistleblower
Protection Act and has been omitted
because is merely restates the law of the
land. Section (f)(4) of the February 2004
Interim Rule has been deleted because
it was deemed unnecessary.
DHS has modified the language in
paragraph (g) to more accurately reflect
the intention of the statutory language
in section 214(a)(1)(E)(i) of the CII Act.
As discussed in Section II, paragraph
(j) has been deleted in its entirety.
Further, paragraph (k) has been deleted
because it improperly rested sole
authority to request submitter consent
for further dissemination in the PCII
Program Manager, thus limiting
flexibility and effectiveness, especially
in exigent circumstances.
I. Investigation and Reporting of
Violation of PCII Procedures: Section
29.9
Six comments expressed concern that
there were no provisions for the
imposition of penalties or sanctions on
State, local and tribal government
employees or on contractors. The
provisions of subsection (d) reflect the
language of section 214(f) of the CII Act
(6 U.S.C. 133(f)). This section applies
unambiguously only to officers and
employees of the United States. DHS
has no authority to make these
provisions applicable to anyone else.
However, DHS will place in the MOAs
for State, local and tribal governments,
when used, or when an arrangement

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other than an MOA is used, then to the
extent practicable, language that will
require the State, local, or tribal
government to consider breaches of the
agreements by employees as matters
subject to the criminal code or to the
applicable employee code of conduct for
that jurisdiction. While States do not
have laws that were written specifically
with PCII in mind, they do have laws
that govern theft, conspiracy, trade
secrets, and the like, which could apply
to employees and to contractors as well.
The CII Act does not limit any other
enforcement mechanism; the CII Act
adds a specific criminal enforcement
provision applicable to Federal
employees.
A commenter suggested that this
section should specifically require that
the DHS Inspector General, the PCII
Program Manager, or the Preparedness
Security Officer investigate
unauthorized disclosures by State, local
and tribal governments. As previously
noted, the relevant MOAs or alternative
arrangements will generally provide for
DHS to monitor all State, local and
tribal governments with respect to their
compliance with the guidance regarding
handling PCII.
A commenter asked whether DHS had
considered the applicability of the
Privacy Act of 1974, 5 U.S.C. 552a, to
any part of the submissions process.
DHS has considered and continues to
consider the interrelationship between
the CII Act and the Privacy Act, and,
through the Program Office and the DHS
Privacy Officer, will ensure that the PCII
program conducts all activities related
to the PCII Program in conformance
with the Privacy Act.

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IV. Revision of Part 29
After considering all of the comments
and the changes warranted, DHS
determined that the entire part should
be revised rather then making
individual amendments to the specific
sections and paragraphs. Individual
amendments to each section and
paragraph would have created a very
large number of instructions to the
Federal Register and rendered the
amended regulation difficult, if not
impossible, to understand without
reading the amendments side-by-side
with the current regulations.
Accordingly, DHS has repromulgated all
of the provisions of part 29, whether
amended by this final rule or as in the
February 2004 Interim Rule, to assist the
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V. Consideration of Various Laws and
Executive Orders
A. Administrative Procedure Act
DHS has determined that good cause
exists to make this regulation effective
upon publication in the Federal
Register under 5 U.S.C. 553(d)(3). This
final rule clarifies ambiguities in the
February 2004 Interim Rule that were
identified by the public comments and
has the advantage of taking into
consideration operating experience with
submitters gained since the February
2004 Interim Rule became effective on
February 20, 2004. DHS believes that
submitters are more likely to provide
information that qualifies for protection
under the CII Act of 2002 when the final
rule goes into effect. Such PCII would
help DHS implement security measures
and issue warnings. After considering
the likelihood that valuable information
is now being withheld because of
concern and confusion as to how it
might be handled under the February
2004 Interim Rule, and the possibility
that this information could be useful in
deterring or responding to a security
incident, the Department has concluded
that good cause exists for making the
regulation effective immediately.
B. Executive Order 12866 Assessment
DHS is required to implement this
rule under the Critical Infrastructure
Information Act of 2002, Title II,
Subtitle B, of the Homeland Security
Act of 2002 (6 U.S.C. 211 et seq.). This
rule is considered by DHS to be a
significant regulatory action under
Executive Order 12866, 58 FR 51735
(Oct. 4, 1993), Regulatory Planning and
Review, section 3(f). Accordingly, this
regulation has been submitted to the
Office of Management and Budget
(OMB) for review.
DHS has performed an analysis of the
expected costs and benefits of this final
rule. A similar analysis was performed
before the February 2004 Interim Rule
was made effective. This new analysis
considers comments received regarding
staff costs and storage assumptions.
Consideration of these comments does
not change the previous conclusions.
The final rule affects persons and
entities in the private sector that have
CII they wish to share with DHS. The
final rule also affects State, local and
tribal governments with which DHS has
signed agreements detailing the
procedures on how PCII must be
safeguarded, used, and destroyed when
it is no longer needed.
Private sector submitters of CII must
determine first whether to participate
and if so, develop and follow internal
procedures for submissions that comply

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with this regulation. Recipients of PCII
must follow the procedures established
in this regulation and as specified in
agreements with the PCII Program
Manager.
Costs
DHS believes private entities that
submit CII will not incur significant
costs. For submitters of CII other than
individuals, there will likely be a onetime decision process to determine
whether participation is appropriate,
and if so, the establishment of internal
operating procedures. A legal review of
those submitters’ procedures would
likely be undertaken internally to
ensure that they result in submissions
that will receive the protections of the
CII Act. The costs to develop the
procedures would be a non-recurring
expense and it is unlikely that a
separate legal review would be required
for each submission. Individuals who
might want to submit CII will probably
read the applicable procedures posted
on the DHS Web site and have no nonrecurring costs. Recurring expenses for
submitting entities could include the
cost of transmitting the CII, office
supplies, costs associated with internal
marking of retained copies of CII, and
the expense of making available a point
of contact with DHS to discuss the
entity’s submission. The non-recurring
costs described will be different for each
entity and also depend on how
frequently submissions are made, but it
is unlikely an entity will be required to
increase its workforce. The costs are
expected to be only a slight increment
to ongoing total costs and managerially
insignificant, perhaps even
unidentifiable.
Costs for State, local and tribal
governments that are the recipients of
PCII will include the appointment of a
PCII Officer to ensure safeguarding and
destruction in accordance with these
procedures and in the required written
agreements. The position of PCII Officer
for State, local, and tribal governments
is not anticipated to be a full time
position, although it could be. Should
the position evolve into a full time one
for a State, the costs should not exceed
$150,000 per year per State. In the
unlikely event all 50 States had full time
PCII Officers, these costs would be
approximately $7,500,000 per year.
These costs are based on DHS estimates
based on equivalent Federal positions
and costs. A PCII Officer will be
required to become familiar with
procedures and be responsible for the
training of others. DHS will develop
training material and provide trainers
for this effort. DHS anticipates that
States will, to a large extent, appoint a

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PCII Officer whose responsibilities will
include overseeing local and tribal
government participation. Thus, in most
cases it will not be necessary for local
and tribal governments to appoint PCII
Officers. DHS believes that the costs to
State, local and tribal governments other
than those associated with PCII Officers
will include storage capabilities,
supplies, general overhead expenses
and record keeping systems. These costs
are variable and will depend on the
volume of PCII received. The total of
these costs is not expected to be
significant.
Benefits
This program will permit the private
sector to provide CII to DHS with
confidence that it will not be
inappropriately released to the public.
The expected benefit of this program is
centralized knowledge of the country’s
critical infrastructure everyone uses to
conduct the daily affairs of life. As
noted above, 85% of critical
infrastructure is not possessed by the
United States Government. Destruction
of this infrastructure, or interruptions in
its operating capability, could be
catastrophic. With such knowledge
comes the ability to issue warnings, to
conduct analyses of systemic
weaknesses, and to take actions to
prevent terrorist acts. If the information
provided results in but one thwarted
terrorist act, or perhaps deters even the
attempt, the benefit has been realized.
Monetarily, the benefit might be
calculated as the avoidance of the
reconstruction cost of the facility
damaged and the loss in commercial
activity attributable to the lost facility.
Not all the benefits of this regulation
can be easily quantified as the benefits
of this rule include preventing a
terrorist event and the probability and
consequences from that event are
extremely difficult to predict. Given the
relatively small implementation costs,
DHS believes the potential benefits
outweigh costs by a large margin.

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C. Regulatory Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 601 et seq.) (RFA) requires an
agency to review regulations to assess
their impact on small entities. An
agency must conduct a regulatory
flexibility analysis unless it determines
and certifies that a rule is not expected
to have a significant impact on a
substantial number of small entities.
DHS has reviewed this final rule and, by
approving it, certifies that this rule will
not have a significant economic impact
on a substantial number of small
entities.

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Many of the entities expected to
voluntarily submit CII to DHS will be
providers of infrastructure and
protected systems. Typically,
infrastructure providers are large public
utilities or companies and providers of
protected systems are large companies
that will not meet the definition of small
businesses for purposes of the RFA. It is
possible that small non-profit
organizations or any other small entities
that provide critical infrastructure, such
as telephone or electric cooperatives,
might from time to time provide CII.
The costs to send the CII to DHS are
expected to be small and depend in
large measure on the frequency of
submissions. It is unlikely that a small
utility cooperative, or any other small
entities, will send CII on any ongoing
basis, and hence any costs will not have
a significant impact on any organization
that chooses to participate. Small
governmental jurisdictions are expected
to depend on the State government for
warnings and analysis and generally not
appoint PCII Officers or establish
separate programs. Those small
jurisdictions will likely be only
receivers, not providers, of information
that is produced and distributed by the
PCII Program Office and this rule will
have no significant impact.
D. Unfunded Mandates Reform Act of
1995
This rule will not result in the
expenditure by State, local and tribal
governments, in the aggregate, or by the
private sector, of $100 million or more
(adjusted annually for inflation) in any
one year, and it will not significantly or
uniquely affect small governments.
Therefore, no actions were deemed
necessary under the provisions of the
Unfunded Mandates Reform Act of
1995.
E. Small Business Regulatory
Enforcement Act of 1996
This rule is not a major rule, as
defined by section 804 of the Small
Business Regulatory Enforcement Act of
1996. This rule will not result in an
annual effect on the United States
economy of $100 million or more, result
in a major increase in costs or prices, or
significant adverse effects on
competition, employment, investment,
productivity, innovation, or on the
ability of United States-based
companies to compete with foreignbased companies in domestic and
export markets.
F. Executive Order 13132—Federalism
The preamble to the February 2004
Interim Rule requested comment on the
federalism impact of the February 2004

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Interim Rule. No comments were
received.
This final rule was analyzed in
accordance with the principles and
criteria contained in Executive Order
13132 (‘‘Federalism’’). This rulemaking,
as required by the underlying statute,
preempts State, local and tribal laws
that might otherwise require disclosure
of PCII and precludes use of PCII in
certain State civil actions unless
permission of the submitter is obtained.
This preemption is expected to inure to
the benefit of the States by making it
possible for PCII that is provided to the
Federal Government to be shared with
the States. The rule does not impose any
regulation that has substantial direct
effects on the States, the relationship
between the national government and
the States, or the distribution of power
and responsibilities among the various
levels of government. Therefore, the
consultation requirements of Executive
Order 13132 do not apply.
G. Executive Order 12988—Civil Justice
Reform
This rule meets the applicable
standards set forth in sections 3(a) and
3(b)(2) of Executive Order 12988.
H. Paperwork Reduction Act of 1995
Under the Paperwork Reduction Act
of 1995, 44 U.S.C. 3501–3520 (PRA), a
Federal agency must obtain approval
from the OMB for each collection of
information it conducts, sponsors, or
requires through regulations. This rule
does not contain provisions for
collection of information, does not meet
the definition of ‘‘information
collection’’ as defined under 5 CFR part
1320, and is therefore exempt from the
requirements of the PRA. Accordingly,
there is no requirement to obtain OMB
approval for information collection.
I. Environmental Analysis
DHS has analyzed this regulation for
purposes of the National Environmental
Policy Act and has concluded that this
rule will not have any significant impact
on the quality of the human
environment.
List of Subjects in 6 CFR Part 29
Confidential business information,
Reporting and recordkeeping
requirements.
Authority and Issuance
For the reasons discussed in the
preamble, 6 CFR part 29 is revised to
read as follows:

■

PART 29—PROTECTED CRITICAL
INFRASTRUCTURE INFORMATION
Sec.

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29.1 Purpose and scope.
29.2 Definitions.
29.3 Effect of provisions.
29.4 Protected Critical Infrastructure
Information Program administration.
29.5 Requirements for protection.
29.6 Acknowledgment of receipt,
validation, and marking.
29.7 Safeguarding of Protected Critical
Infrastructure Information.
29.8 Disclosure of Protected Critical
Infrastructure Information.
29.9 Investigation and reporting of violation
of PCII procedures.
Authority: Pub. L. 107–296, 116 Stat. 2135
(6 U.S.C. 1 et seq.); 5 U.S.C. 301.

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§ 29.1 Purpose and scope.

(a) Purpose of this Part. This Part
implements sections 211 through 215 of
the Homeland Security Act of 2002
(HSA) through the establishment of
uniform procedures for the receipt, care,
and storage of Critical Infrastructure
Information (CII) voluntarily submitted
to the Department of Homeland Security
(DHS). Title II, Subtitle B, of the
Homeland Security Act is referred to
herein as the Critical Infrastructure
Information Act of 2002 (CII Act).
Consistent with the statutory mission of
DHS to prevent terrorist attacks within
the United States and reduce the
vulnerability of the United States to
terrorism, DHS will encourage the
voluntary submission of CII by
safeguarding and protecting that
information from unauthorized
disclosure and by ensuring that such
information is, as necessary, securely
shared with State and local government
pursuant to section 214(a) through (g) of
the CII Act. As required by the CII Act,
these rules establish procedures
regarding:
(1) The acknowledgement of receipt
by DHS of voluntarily submitted CII;
(2) The receipt, validation, handling,
storage, proper marking and use of
information as PCII;
(3) The safeguarding and maintenance
of the confidentiality of such
information, appropriate sharing of such
information with State and local
governments pursuant to section 214(a)
through (g) of the HSA.
(4) The issuance of advisories, notices
and warnings related to the protection
of critical infrastructure or protected
systems in such a manner as to protect
from unauthorized disclosure the source
of critical infrastructure information
that forms the basis of the warning, and
any information that is proprietary or
business sensitive, might be used to
identify the submitting person or entity,
or is otherwise not appropriately in the
public domain.
(b) Scope. The regulations in this Part
apply to all persons and entities that are

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authorized to handle, use, or store PCII
or that otherwise accept receipt of PCII.
§ 29.2

Definitions.

For purposes of this part:
(a) Critical Infrastructure has the
meaning stated in section 2 of the
Homeland Security Act of 2002
(referencing the term used in section
1016(e) of Public Law 107–56 (42 U.S.C.
5195c(e)).
(b) Critical Infrastructure Information,
or CII, has the same meaning as
established in section 212 of the CII Act
of 2002 and means information not
customarily in the public domain and
related to the security of critical
infrastructure or protected systems,
including documents, records or other
information concerning:
(1) Actual, potential, or threatened
interference with, attack on,
compromise of, or incapacitation of
critical infrastructure or protected
systems by either physical or computerbased attack or other similar conduct
(including the misuse of or
unauthorized access to all types of
communications and data transmission
systems) that violates Federal, State,
local, or tribal law, harms interstate
commerce of the United States, or
threatens public health or safety;
(2) The ability of any critical
infrastructure or protected system to
resist such interference, compromise, or
incapacitation, including any planned
or past assessment, projection, or
estimate of the vulnerability of critical
infrastructure or a protected system,
including security testing, risk
evaluation thereto, risk-management
planning, or risk audit; or
(3) Any planned or past operational
problem or solution regarding critical
infrastructure or protected systems,
including repair, recovery,
reconstruction, insurance, or continuity,
to the extent it is related to such
interference, compromise, or
incapacitation.
(c) Information Sharing and Analysis
Organization, or ISAO, has the same
meaning as is established in section 212
of the CII Act of 2002 and means any
formal or informal entity or
collaboration created or employed by
public or private sector organizations for
purposes of:
(1) Gathering and analyzing CII in
order to better understand security
problems and interdependencies related
to critical infrastructure and protected
systems, so as to ensure the availability,
integrity, and reliability thereof;
(2) Communicating or disclosing CII
to help prevent, detect, mitigate, or
recover from the effects of an
interference, compromise, or an

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incapacitation problem related to
critical infrastructure or protected
systems; and
(3) Voluntarily disseminating CII to its
members, Federal, State, and local
governments, or any other entities that
may be of assistance in carrying out the
purposes specified in paragraphs (c)(1)
and (2) of this section.
(d) In the public domain means
information lawfully, properly and
regularly disclosed generally or broadly
to the public. Information regarding
system, facility or operational security is
not ‘‘in the public domain.’’ Information
submitted with CII that is proprietary or
business sensitive, or which might be
used to identify a submitting person or
entity will not be considered ‘‘in the
public domain.’’ Information may be
‘‘business sensitive’’ for this purpose
whether or not it is commercial in
nature, and even if its release could not
demonstrably cause substantial harm to
the competitive position of the
submitting person or entity.
(e) Local government has the same
meaning as is established in section 2 of
the Homeland Security Act of 2002 and
means:
(1) A county, municipality, city, town,
township, local public authority, school
district, special district, intrastate
district, council of governments
(regardless of whether the council of
governments is incorporated as a
nonprofit corporation under State law),
regional or interstate government entity,
or agency or instrumentality of a local
government;
(2) An Indian tribe or authorized
tribal organization, or in Alaska a Native
village or Alaska Regional Native
Corporation; and
(3) A rural community,
unincorporated town or village, or other
public entity.
(f) Program Manager’s Designee
means a Federal employee outside of
the PCII Program Office, whether
employed by DHS or another Federal
agency, to whom certain functions of
the PCII Program Office are delegated by
the Program Manager, as determined on
a case-by-case basis.
(g) Protected Critical Infrastructure
Information, or PCII, means validated
CII, including information covered by 6
CFR 29.6(b) and (f), including the
identity of the submitting person or
entity and any person or entity on
whose behalf the submitting person or
entity submits the CII, that is voluntarily
submitted, directly or indirectly, to
DHS, for its use regarding the security
of critical infrastructure and protected
systems, analysis, warning,
interdependency study, recovery,
reconstitution, or other appropriate

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purpose, and any information,
statements, compilations or other
materials reasonably necessary to
explain the CII, put the CII in context,
describe the importance or use of the
CII, when accompanied by an express
statement as described in 6 CFR 29.5.
(h) Protected Critical Infrastructure
Information Program, or PCII Program,
means the program implementing the
CII Act, including the maintenance,
management, and review of the
information provided in furtherance of
the protections provided by the CII Act.
(i) Protected system has the meaning
set forth in section 212(6) of the CII Act,
and means any service, physical or
computer-based system, process, or
procedure that directly or indirectly
affects the viability of a facility of
critical infrastructure and includes any
physical or computer-based system,
including a computer, computer system,
computer or communications network,
or any component hardware or element
thereof, software program, processing
instructions, or information or data in
transmission or storage therein,
irrespective of the medium of
transmission or storage.
(j) Purposes of the CII Act has the
meaning set forth in section 214(a)(1) of
the CII Act and includes the security of
critical infrastructure and protected
systems, analysis, warning,
interdependency study, recovery,
reconstitution, or other informational
purpose.
(k) Regulatory proceeding, as used in
Section 212(7) of the CII Act and these
rules, means administrative proceedings
in which DHS is the adjudicating entity,
and does not include any form or type
of regulatory proceeding or other matter
outside of DHS.
(l) State has the same meaning set
forth in section 2 of the Homeland
Security Act of 2002 and means any
State of the United States, the District of
Columbia, the Commonwealth of Puerto
Rico, the Virgin Islands, Guam,
American Samoa, the Commonwealth of
the Northern Mariana Islands, and any
possession of the United States.
(m) Submission as referenced in these
procedures means any transmittal,
either directly or indirectly, of CII to the
DHS PCII Program Manager or the PCII
Program Manager’s designee, as set forth
herein.
(n) Submitted in good faith means any
submission of information that could
reasonably be defined as CII or PCII
under this section. Upon validation of a
submission as PCII, DHS has
conclusively established the good faith
of the submission. Any information
qualifying as PCII by virtue of a
categorical inclusion identified by the

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Program Manager pursuant to section
214 of the CII Act and this Part is
submitted in good faith.
(o) Voluntary or voluntarily, when
used in reference to any submission of
CII, means the submittal thereof in the
absence of an exercise of legal authority
by DHS to compel access to or
submission of such information.
Voluntary submission of CII may be
accomplished by (i.e., come from) a
single state or local governmental entity;
private entity or person; or by an ISAO
acting on behalf of its members or
otherwise. There are two exclusions
from this definition. In the case of any
action brought under the securities
laws—as is defined in section 3(a)(47) of
the Securities Exchange Act of 1934 (15
U.S.C. 78c(a)(47))—the term
‘‘voluntary’’ or ‘‘voluntarily’’ does not
include information or statements
contained in any documents or
materials filed, pursuant to section 12(i)
of the Securities Exchange Act of 1934
(15 U.S.C. 781(i)), with the U.S.
Securities and Exchange Commission or
with Federal banking regulators or a
writing that accompanied the
solicitation of an offer or a sale of
securities. Information or statements
previously submitted to DHS in the
course of a regulatory proceeding or a
licensing or permitting determination
are not ‘‘voluntarily submitted.’’ In
addition, the submission of information
to DHS for purposes of seeking a Federal
preference or benefit, including CII
submitted to support an application for
a DHS grant to secure critical
infrastructure will be considered a
voluntary submission of information.
Applications for SAFETY Act
Designation or Certification under 6
CFR Part 25 will also be considered a
voluntary submission.
(p) The term used directly by such
agency, any other Federal, State, or
local authority, or any third party, in
any civil action arising under Federal or
State law in section 214(a)(1)(C) of the
CII Act means any use in any
proceeding other than a criminal
prosecution before any court of the
United States or of a State or otherwise,
of any PCII, or any drafts or copies of
PCII retained by the submitter,
including the opinions, evaluations,
analyses and conclusions prepared and
submitted as CII, as evidence at trial or
in any pretrial or other discovery,
notwithstanding whether the United
States, its agencies, officers, or
employees is or are a party to such
proceeding.
§ 29.3 Effect of provisions.

(a) Freedom of Information Act
disclosure exemptions. Information that

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is separately exempt from public
disclosure under the Freedom of
Information Act or applicable State,
local, or tribal law does not lose its
separate exemption from public
disclosure due to the applicability of
these procedures or any failure to follow
them.
(b) Restriction on use of PCII by
regulatory and other Federal, State, and
Local agencies. A Federal, State or local
agency that receives PCII may utilize the
PCII only for purposes appropriate
under the CII Act, including securing
critical infrastructure or protected
systems. Such PCII may not be utilized
for any other collateral regulatory
purposes without the written consent of
the PCII Program Manager and of the
submitting person or entity. The PCII
Program Manager or the PCII Program
Manager’s designee shall not share PCII
with Federal, State or local government
agencies without instituting appropriate
measures to ensure that PCII is used
only for appropriate purposes.
§ 29.4 Protected Critical Infrastructure
Information Program administration.

(a) Preparedness Directorate Program
Management. The Secretary of
Homeland Security hereby designates
the Under Secretary for Preparedness as
the senior DHS official responsible for
the direction and administration of the
PCII Program. He shall administer this
program through the Assistant Secretary
for Infrastructure Protection.
(b) Appointment of a PCII Program
Manager. The Under Secretary for
Preparedness shall:
(1) Appoint a PCII Program Manager
serving under the Assistant Secretary for
Infrastructure Protection who is
responsible for the administration of the
PCII Program;
(2) Commit resources necessary for
the effective implementation of the PCII
Program;
(3) Ensure that sufficient personnel,
including such detailees or assignees
from other Federal national security,
homeland security, or law enforcement
entities as the Under Secretary deems
appropriate, are assigned to the PCII
Program to facilitate secure information
sharing with appropriate authorities.
(4) Promulgate implementing
directives and prepare training materials
as ppropriate for the proper treatment of
PCII.
(c) Appointment of PCII Officers. The
PCII Program Manager shall establish
procedures to ensure that each DHS
component and each Federal, State, or
local entity that works with PCII
appoint one or more employees to serve
as a PCII Officer in order to carry out the
responsibilities stated in paragraph (d)

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of this section. Persons appointed to
serve as PCII Officers shall be fully
familiar with these procedures.
(d) Responsibilities of PCII Officers.
PCII Officers shall:
(1) Oversee the handling, use, and
storage of PCII;
(2) Ensure the secure sharing of PCII
with appropriate authorities and
individuals, as set forth in 6 CFR
29.1(a), and paragraph (b)(3) of this
section;
(3) Establish and maintain an ongoing
self-inspection program, to include
periodic review and assessment of the
compliance with handling, use, and
storage of PCII;
(4) Establish additional procedures,
measures and penalties as necessary to
prevent unauthorized access to PCII;
and
(5) Ensure prompt and appropriate
coordination with the PCII Program
Manager regarding any request,
challenge, or complaint arising out of
the implementation of these regulations.
(e) Protected Critical Infrastructure
Information Management System
(PCIIMS). The PCII Program Manager
shall develop, for use by the PCII
Program Manager and the PCII
Manager’s designees, an electronic
database, to be known as the ‘‘Protected
Critical Infrastructure Information
Management System’’ (PCIIMS), to
record the receipt, acknowledgement,
validation, storage, dissemination, and
destruction of PCII. This compilation of
PCII shall be safeguarded and protected
in accordance with the provisions of the
CII Act. The PCII Program Manager may
require the completion of appropriate
background investigations of an
individual before granting that
individual access to any PCII.

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§ 29.5 Requirements for protection.

(a) CII shall receive the protections of
section 214 of the CII Act when:
(1) Such information is voluntarily
submitted, directly or indirectly, to the
PCII Program Manager or the PCII
Program Manager’s designee;
(2) The information is submitted for
protected use regarding the security of
critical infrastructure or protected
systems, analysis, warning,
interdependency study, recovery,
reconstitution, or other appropriate
purposes including, without limitation,
for the identification, analysis,
prevention, preemption, disruption,
defense against and/or mitigation of
terrorist threats to the homeland;
(3) The information is labeled with an
express statement as follows:
(i) In the case of documentary
submissions, written marking on the
information or records substantially

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similar to the following: ‘‘This
information is voluntarily submitted to
the Federal government in expectation
of protection from disclosure as
provided by the provisions of the
Critical Infrastructure Information Act
of 2002’’; or
(ii) In the case of oral information:
(A) Through an oral statement, made
at the time of the oral submission or
within a reasonable period thereafter,
indicating an expectation of protection
from disclosure as provided by the
provisions of the CII Act; and
(B) Through a written statement
substantially similar to the one specified
above accompanied by a document that
memorializes the nature of oral
information initially provided received
by the PCII Program Manager or the PCII
Program Manager’s designee within a
reasonable period after using oral
submission; and
(iii) In the case of electronic
information:
(A) Through an electronically
submitted statement within a reasonable
period of the electronic submission
indicating an expectation of protection
from disclosure as provided by the
provisions of the CII Act; and
(B) Through a non-electronically
submitted written statement
substantially similar to the one specified
above accompanied by a document that
memorializes the nature of e-mailed
information initially provided, to be
received by the PCII Program Manager
or the PCII Program Manager’s designee
within a reasonable period after using email submission.
(4) The submitted information
additionally is accompanied by a
statement, signed by the submitting
person or an authorized person on
behalf of an entity identifying the
submitting person or entity, containing
such contact information as is
considered necessary by the PCII
Program Manager, and certifying that
the information being submitted is not
customarily in the public domain;
(b) Information that is not submitted
to the PCII Program Manager or the PCII
Program Manager’s designees will not
qualify for protection under the CII Act.
Only the PCII Program Manager or the
PCII Program Manager’s designees are
authorized to acknowledge receipt of
information being submitted for
consideration of protection under the
Act.
(c) All Federal, State and local
government entities shall protect and
maintain information as required by
these rules or by the provisions of the
CII Act when that information is
provided to the entity by the PCII
Program Manager or the PCII Program

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Manager’s designee and is marked as
required in 6 CFR 29.6(c).
(d) All submissions seeking PCII
status shall be presumed to have been
submitted in good faith until validation
or a determination not to validate
pursuant to these rules.
§ 29.6 Acknowledgment of receipt,
validation, and marking.

(a) Authorized officials. Only the DHS
PCII Program Manager is authorized to
validate, and mark information as PCII.
The PCII Program Manager or the
Program Manager’s designees, may mark
information qualifying under categorical
inclusions pursuant to 6 CFR 29.6(f).
(b) Presumption of protection. All
information submitted in accordance
with the procedures set forth hereby
will be presumed to be and will be
treated as PCII, enjoying the protections
of section 214 of the CII Act, from the
time the information is received by the
PCII Program Office or the PCII Program
Manager’s designee. The information
shall remain protected unless and until
the PCII Program Office renders a final
decision that the information is not
PCII. The PCII Program Office will, with
respect to information that is not
properly submitted, inform the
submitting person or entity within thirty
days of receipt, by a means of
communication to be prescribed by the
PCII Program Manager, that the
submittal was procedurally defective.
The submitter will then have an
additional 30 days to remedy the
deficiency from receipt of such notice.
If the submitting person or entity does
not cure the deficiency within thirty
calendar days of the date of receipt of
the notification provided in this
paragraph, the PCII Program Office may
determine that the presumption of
protection is terminated. Under such
circumstances, the PCII Program Office
may cure the deficiency by labeling the
submission with the information
required in 6 CFR 29.5 or may notify the
applicant that the submission does not
qualify as PCII. No CII submission will
lose its presumptive status as PCII
except as provided in 6 CFR 29.6(g).
(c) Marking of information. All PCII
shall be clearly identified through
markings made by the PCII Program
Office. The PCII Program Office shall
mark PCII materials as follows: ‘‘This
document contains PCII. In accordance
with the provisions of 6 CFR Part 29,
this document is exempt from release
under the Freedom of Information Act
(5 U.S.C. 552(b)(3)) and similar laws
requiring public disclosure.
Unauthorized release may result in
criminal and administrative penalties.
This document is to be safeguarded and

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Federal Register / Vol. 71, No. 170 / Friday, September 1, 2006 / Rules and Regulations
disseminated in accordance with the CII
Act and the PCII Program
requirements.’’ When distributing PCII,
the distributing person shall ensure that
the distributed information contains this
marking.
(d) Acknowledgement of receipt of
information. The PCII Program Office or
the PCII Program Manager’s designees
shall acknowledge receipt of
information submitted as CII and
accompanied by an express statement,
and in so doing shall:
(1) Contact the submitting person or
entity, within thirty calendar days of
receipt of the submission of CII, by the
means of delivery prescribed in
procedures developed by the PCII
Program Manager. In the case of oral
submissions, receipt will be
acknowledged in writing within thirty
calendar days after receipt by the PCII
Program Office or the PCII Program
Manager’s designee of a written
statement, certification, and documents
that memorialize the oral submission, as
referenced in 6 CFR 29.5(a)(3)(ii);
(2) Enter the appropriate data into the
PCIIMS as required in 6 CFR 29.4(e);
and
(3) Provide the submitting person or
entity with a unique tracking number
that will accompany the information
from the time it is received by the PCII
Program Office or the PCII Program
Manager’s designees.
(e) Validation of information. (1) The
PCII Program Manager shall be
responsible for reviewing all
submissions that request protection
under the CII Act. The PCII Program
Manager shall review the submitted
information as soon as practicable. If a
final determination is made that the
submitted information meets the
requirements for protection, the PCII
Program Manager shall ensure that the
information has been marked as
required in paragraph (c) of this section,
notify the submitting person or entity of
the determination, and disclose it only
pursuant to 6 CFR 29.8.
(2) If the PCII Program Office makes
an initial determination that the
information submitted does not meet
the requirements for protection under
the CII Act, the PCII Program Office
shall:
(i) Notify the submitting person or
entity of the initial determination that
the information is not considered to be
PCII. This notification also shall, as
necessary:
(A) Request that the submitting
person or entity complete the
requirements of 6 CFR 29.5(a)(4) or
further explain the nature of the
information and the submitting person
or entity’s basis for believing the

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information qualifies for protection
under the CII Act;
(B) Advise the submitting person or
entity that the PCII Program Office will
review any further information provided
before rendering a final determination;
(C) Advise the submitting person or
entity that the submission can be
withdrawn at any time before a final
determination is made;
(D) Notify the submitting person or
entity that until a final determination is
made the submission will be treated as
PCII;
(E) Notify the submitting person or
entity that any response to the
notification must be received by the
PCII Program Office no later than thirty
calendar days after the date of the
notification; and
(F) Request the submitting person or
entity to state whether, in the event the
PCII Program Office makes a final
determination that any such information
is not PCII, the submitting person or
entity prefers that the information be
maintained without the protections of
the CII Act or returned to the submitter
or destroyed. If a request for withdrawal
is made, all such information shall be
returned to the submitting person or
entity.
(ii) If the information submitted has
not been withdrawn by the submitting
person or entity, and the PCII Program
Office, after following the procedures
set forth in paragraph (e)(2)(i) of this
section, makes a final determination
that the information is not PCII, the PCII
Program Office, in accordance with the
submitting person or entity’s written
preference, shall, within thirty calendar
days of making a final determination,
return the information to the submitter.
If return to the submitter is impractical,
the PCII Program Office shall destroy
the information within 30 days. This
process is consistent with the
appropriate National Archives and
Records Administration-approved
records disposition schedule. If the
submitting person or entity cannot be
notified or the submitting person or
entity’s response is not received within
thirty calendar days of the date of the
notification as provided in paragraph
(e)(2)(i) of this section, the PCII Program
Office shall make the initial
determination final and return the
information to the submitter.
(f) Categorical Inclusions of Certain
Types of Infrastructure as PCII. The PCII
Program Manager has discretion to
declare certain subject matter or types of
information categorically protected as
PCII and to set procedures for receipt
and processing of such information.
Information within a categorical
inclusion will be considered validated

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52275

upon receipt by the Program Office or
any of the Program Manager’s designees
without further review, provided that
the submitter provides the express
statement required by section 214(a)(1).
Designees shall provide to the Program
Manager information submitted under a
categorical inclusion.
(g) Changing the status of PCII to nonPCII. Once information is validated,
only the PCII Program Office may
change the status of PCII to that of nonPCII and remove its PCII markings.
Status changes may only take place
when the submitting person or entity
requests in writing that the information
no longer be protected under the CII
Act; or when the PCII Program Office
determines that the information was, at
the time of the submission, customarily
in the public domain. Upon making an
initial determination that a change in
status may be warranted, but prior to a
final determination, the PCII Program
Office, using the procedures in
paragraph (e)(2) of this section, shall
inform the submitting person or entity
of the initial determination of a change
in status. Notice of the final change in
status of PCII shall be provided to all
recipients of that PCII under 6 CFR 29.8.
§ 29.7 Safeguarding of Protected Critical
Infrastructure Information.

(a) Safeguarding. All persons granted
access to PCII are responsible for
safeguarding such information in their
possession or control. PCII shall be
protected at all times by appropriate
storage and handling. Each person who
works with PCII is personally
responsible for taking proper
precautions to ensure that unauthorized
persons do not gain access to it.
(b) Background Checks on Persons
with Access to PCII. For those who
require access to PCII, DHS will, to the
extent practicable and consistent with
the purposes of the Act, undertake
appropriate background checks to
ensure that individuals with access to
PCII do not pose a threat to national
security. These checks may also be
waived in exigent circumstances.
(c) Use and Storage. When PCII is in
the physical possession of a person,
reasonable steps shall be taken, in
accordance with procedures prescribed
by the PCII Program Manager, to
minimize the risk of access to PCII by
unauthorized persons. When PCII is not
in the physical possession of a person,
it shall be stored in a secure
environment.
(d) Reproduction. Pursuant to
procedures prescribed by the PCII
Program Manager, a document or other
material containing PCII may be
reproduced to the extent necessary

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consistent with the need to carry out
official duties, provided that the
reproduced documents or material are
marked and protected in the same
manner as the original documents or
material.
(e) Disposal of information.
Documents and material containing PCII
may be disposed of by any method that
prevents unauthorized retrieval, such as
shredding or incineration.
(f) Transmission of information. PCII
shall be transmitted only by secure
means of delivery as determined by the
PCII Program Manager, and in
conformance with appropriate federal
standards.
(g) Automated Information Systems.
The PCII Program Manager shall
establish security requirements
designed to protect information to the
maximum extent practicable, and
consistent with the Act, for Automated
Information Systems that contain PCII.
Such security requirements will be in
conformance with the information
technology security requirements in the
Federal Information Security
Management Act and the Office of
Management and Budget’s
implementing policies.

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§ 29.8 Disclosure of Protected Critical
Infrastructure Information.

(a) Authorization of access. The
Under Secretary for Preparedness, the
Assistant Secretary for Infrastructure
Protection, or either’s designee may
choose to provide or authorize access to
PCII under one or more of the
subsections below when it is
determined that this access supports a
lawful and authorized government
purpose as enumerated in the CII Act or
other law, regulation, or legal authority.
(b) Federal, State and Local
government sharing. The PCII Program
Manager or the PCII Program Manager’s
designees may provide PCII to an
employee of the Federal government,
provided, subject to subsection (f) of
this section, that such information is
shared for purposes of securing the
critical infrastructure or protected
systems, analysis, warning,
interdependency study, recovery,
reconstitution, or for another
appropriate purpose including, without
limitation, the identification, analysis,
prevention, preemption, and/or
disruption of terrorist threats to the
homeland. PCII may not be used,
directly or indirectly, for any collateral
regulatory purpose. PCII may be
provided to a State or local government
entity for the purpose of protecting
critical infrastructure or protected
systems, or in furtherance of an
investigation or the prosecution of a

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criminal act. The provision of PCII to a
State or local government entity will
normally be made only pursuant to an
arrangement with the PCII Program
Manager providing for compliance with
the requirements of paragraph (d) of this
section and acknowledging the
understanding and responsibilities of
the recipient. State and local
governments receiving such information
will acknowledge in such arrangements
the primacy of PCII protections under
the CII Act; agree to assert all available
legal defenses to disclosure of PCII
under State, or local public disclosure
laws, statutes or ordinances; and will
agree to treat breaches of the agreements
by their employees or contractors as
matters subject to the criminal code or
to the applicable employee code of
conduct for the jurisdiction.
(c) Disclosure of information to
Federal, State and local government
contractors. Disclosure of PCII to
Federal, State, and local contractors may
be made when necessary for an
appropriate purpose under the CII Act,
and only after the PCII Program Manager
or a PCII Officer certifies that the
contractor is performing services in
support of the purposes of the CII Act.
The contractor’s employees who will be
handling PCII must sign individual
nondisclosure agreements in a form
prescribed by the PCII Program
Manager, and the contractor must agree
by contract, whenever and to whatever
extent possible, to comply with all
relevant requirements of the PCII
Program. The contractor shall safeguard
PCII in accordance with these
procedures and shall not remove any
‘‘PCII’’ markings. An employee of the
contractor may, in the performance of
services in support of the purposes of
the CII Act and when authorized to do
so by the PCII Program Manager or the
PCII Program Manager’s designee,
communicate with a submitting person
or an authorized person of a submitting
entity, about a submittal of information
by that person or entity. Contractors
shall not further disclose PCII to any
other party not already authorized to
receive such information by the PCII
Program Manager or PCII Program
Manager’s Designee, without the prior
written approval of the PCII Program
Manager or the PCII Program Manager’s
designee.
(d) Further use or disclosure of
information by State, and local
governments. (1) State and local
governments receiving information
marked ‘‘Protected Critical
Infrastructure Information’’ shall not
share that information with any other
party not already authorized to receive
such information by the PCII Program

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Manager or PCII Program Manager’s
designee, with the exception of their
contractors after complying with the
requirements of paragraph (c) of this
section, or remove any PCII markings,
without first obtaining authorization
from the PCII Program Manager or the
PCII Program Manager’s designees, who
shall be responsible for requesting and
obtaining written consent from the
submitter of the information.
(2) State and local governments may
use PCII only for the purpose of
protecting critical infrastructure or
protected systems, or as set forth
elsewhere in these rules.
(e) Disclosure of information to
appropriate entities or to the general
public. PCII may be used to prepare
advisories, alerts, and warnings to
relevant companies, targeted sectors,
governmental entities, ISAOs or the
general public regarding potential
threats and vulnerabilities to critical
infrastructure as appropriate pursuant to
the CII Act. Unless exigent
circumstances require otherwise, any
such warnings to the general public will
be authorized by the Secretary, Under
Secretary for Preparedness, Assistant
Secretary for Cyber Security and
Telecommunications, or Assistant
Secretary for Infrastructure Protection.
Such exigent circumstances exist only
when approval of the Secretary, the
Under Secretary for Preparedness,
Assistant Secretary for Cyber Security
and Telecommunications, or the
Assistant Secretary for Infrastructure
Protection cannot be obtained within a
reasonable time necessary to issue an
effective advisory, alert, or warning. In
issuing advisories, alerts and warnings,
DHS shall consider the exigency of the
situation, the extent of possible harm to
the public or to critical infrastructure,
and the necessary scope of the advisory
or warning; and take appropriate actions
to protect from disclosure any
information that is proprietary, business
sensitive, relates specifically to, or
might be used to identify, the
submitting person or entity, or any
persons or entities on whose behalf the
CII was submitted, or is not otherwise
appropriately in the public domain.
Depending on the exigency of the
circumstances, DHS may consult or
cooperate with the submitter in making
such advisories, alerts or warnings.
(f) Disclosure for law enforcement
purposes and communication with
submitters; access by Congress, the
Comptroller General, and the Inspector
General; and whistleblower
protection.—(1) Exceptions for
disclosure. (i) PCII shall not, without the
written consent of the person or entity
submitting such information, be used or

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disclosed for purposes other than the
purposes of the CII Act, except—
(A) In furtherance of an investigation
or the prosecution of a criminal act by
the Federal government, or by a State,
local, or foreign government, when such
disclosure is coordinated by a Federal
law enforcement official;
(B) To communicate with a
submitting person or an authorized
person on behalf of a submitting entity,
about a submittal of information by that
person or entity when authorized to do
so by the PCII Program Manager or the
PCII Program Manager’s designee; or
(C) When disclosure of the
information is made by any officer or
employee of the United States—
(1) To either House of Congress, or to
the extent of matter within its
jurisdiction, any committee or
subcommittee thereof, any joint
committee thereof or subcommittee of
any such joint committee; or
(2) To the Comptroller General, or any
authorized representative of the
Comptroller General, in the course of
the performance of the duties of the
Government Accountability Office.
(ii) If any officer or employee of the
United States makes any disclosure
pursuant to these exceptions,
contemporaneous written notification
must be provided to DHS through the
PCII Program Manager.
(2) Consistent with the authority to
disclose information for any of the
purposes of the CII Act, disclosure of
PCII may be made, without the written
consent of the person or entity
submitting such information, to the DHS
Inspector General.
(g) Responding to requests made
under the Freedom of Information Act
or State, local, and tribal information
access laws. PCII shall be treated as
exempt from disclosure under the
Freedom of Information Act and any
State or local law requiring disclosure of
records or information. Any Federal,
State, local, or tribal government agency
with questions regarding the protection
of PCII from public disclosure shall
contact the PCII Program Manager, who
shall in turn consult with the DHS
Office of the General Counsel.

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(h) Ex parte communications with
decisionmaking officials. Pursuant to
section 214(a)(1)(B) of the Homeland
Security Act of 2002, PCII is not subject
to any agency rules or judicial doctrine
regarding ex parte communications with
a decisionmaking official.
(i) Restriction on use of PCII in civil
actions. Pursuant to section 214(a)(1)(C)
of the Homeland Security Act of 2002,
PCII shall not, without the written
consent of the person or entity
submitting such information, be used
directly by any Federal, State or local
authority, or by any third party, in any
civil action arising under Federal, State,
local, or tribal law.
§ 29.9 Investigation and reporting of
violation of PCII procedures.

(a) Reporting of possible violations.
Persons authorized to have access to
PCII shall report any suspected violation
of security procedures, the loss or
misplacement of PCII, and any
suspected unauthorized disclosure of
PCII immediately to the PCII Program
Manager or the PCII Program Manager’s
designees. Suspected violations may
also be reported to the DHS Inspector
General. The PCII Program Manager or
the PCII Program Manager’s designees
shall in turn report the incident to the
appropriate Security Officer and to the
DHS Inspector General.
(b) Review and investigation of written
report. The PCII Program Manager, or
the appropriate Security Officer shall
notify the DHS Inspector General of
their intent to investigate any alleged
violation of procedures, loss of
information, and/or unauthorized
disclosure, prior to initiating any such
investigation. Evidence of wrongdoing
resulting from any such investigations
by agencies other than the DHS
Inspector General shall be reported to
the Department of Justice, Criminal
Division, through the DHS Office of the
General Counsel. The DHS Inspector
General also has authority to conduct
such investigations, and shall report any
evidence of wrongdoing to the
Department of Justice, Criminal
Division, for consideration of
prosecution.

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(c) Notification to originator of PCII. If
the PCII Program Manager or the
appropriate Security Officer determines
that a loss of information or an
unauthorized disclosure has occurred,
the PCII Program Manager or the PCII
Program Manager’s designees shall
notify the person or entity that
submitted the PCII, unless providing
such notification could reasonably be
expected to hamper the relevant
investigation or adversely affect any
other law enforcement, national
security, or homeland security interest.
(d) Criminal and administrative
penalties. (1) As established in section
214(f) of the CII Act, whoever, being an
officer or employee of the United States
or of any department or agency thereof,
knowingly publishes, divulges,
discloses, or makes known in any
manner or to any extent not authorized
by law, any information protected from
disclosure by the CII Act coming to the
officer or employee in the course of his
or her employment or official duties or
by reason of any examination or
investigation made by, or return, report,
or record made to or filed with, such
department or agency or officer or
employee thereof, shall be fined under
title 18 of the United States Code,
imprisoned not more than one year, or
both, and shall be removed from office
or employment.
(2) In addition to the penalties set
forth in paragraph (d)(1) of this section,
if the PCII Program Manager determines
that an entity or person who has
received PCII has violated the
provisions of this Part or used PCII for
an inappropriate purpose, the PCII
Program Manager may disqualify that
entity or person from future receipt of
any PCII or future receipt of any
sensitive homeland security information
under section 892 of the Homeland
Security Act, provided, however, that
any such decision by the PCII Program
Manager may be appealed to the Office
of the Under Secretary for Preparedness.
Michael Chertoff,
Secretary.
[FR Doc. 06–7378 Filed 8–31–06 8:45 am]
BILLING CODE 4410–10–P

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