CONTRACT 3938 Grant Agreement39
Subreciyien t Agreem en t
With the. City of E/ Segundo
Grant Year 2007
Buffer Zone Protection
Program
AGREEMENT
BETWEEN THE COUNTY OF LOS ANGELES
AND
THE CITY OF EL SEGUNDO
THIS AGREEMENT is made and entered into by and between the County of Los
Angeles, a political subdivision of the State of California (the "County of Los Angeles"),
and the City of El Segundo, a public agency (the "Subrecipient")
WITNESSETH
WHEREAS, the U.S. Department of Homeland Security Title 28 C.F.R. through
the Office of Grants and Training (G &T), has provided financial assistance from the
Buffer Zone Protection Program, Catalog of Federal Domestic Assistance (CFDA)
97.078 directly to The California Office of Homeland Security (OHS) for the Fiscal Year
(FY) 2007 Buffer Zone Protection Program (BZPP); and
WHEREAS, the OHS, provides said funds to the Los Angeles County Chief
Executive Officer (CEO) as its Subgrantee, and CEO is responsible for managing the
Grant and overseeing the funds which are distributed, by CEO, to other specified
jurisdictions within Los Angeles County.
WHEREAS, this financial assistance is being provided to the Subrecipient in
order to address the unique equipment and planning management needs of the
Subrecipient, and to assist them in building effective prevention and protection
capabilities to prevent, respond to, and recover from threats or acts of terrorism; and
WHEREAS, the CEO as Subgrantee has obtained approval of a BZPP FY 2007
Grant from OHS for the Subrecipient in the amount of $177,388; and
WHEREAS, the CEO now wishes to distribute BZPP Grant Funds to the
Subrecipient, as further detailed in this Agreement;
WHEREAS, the CEO is authorized to enter into subrecipient agreements
with cities providing for re- allocation and use of these funds; and to execute all future
amendments, modifications, extensions, and augmentations relative to the sub -
recipient agreements, as necessary;
WHEREAS, the County of Los Angeles and Subrecipient are desirous of
executing this Agreement as authorized by the County Board of Supervisors on January
6, 2009, which authorize the CEO to prepare and execute this Agreement.
NOW, THEREFORE, the County of Los Angeles and Subrecipient agree as follows:
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SECTION I
INTRODUCTION
§101. Parties to this Agreement
The parties to this Agreement are:
A. County of Los Angeles, a political subdivision of the State of California, having its
principal office at Kenneth Hahn Hall of Administration, 500 West Temple St.,
Los Angeles, CA 90012.; and
B. City of El Segundo, a public agency, having its principal office at 350 Main Street,
El Segundo, CA 90245.
§102. -Representatives of the Parties and Service of Notices
A. The representatives of the respective parties who are authorized to administer
this Agreement and to whom formal notices, demands and communications shall
be given are as follows:
1. The representative of the County of Los Angeles shall be, unless
otherwise stated in this Agreement:
Carol Kindler, Homeland Security Grant Administrator
Chief Executive Office, Los Angeles County (LAC)
Room 754
500 W Temple Street
Los Angeles, CA 90012
Phone: (213) 974 -1154
Fax: (213) 687 -3765
With a copy to:
Norman Braverman, Grants Manager, Chief Executive Office, LAC
Room 754
500 W Temple Street
Los Angeles, CA 90012
Phone: (213) 893 -7955
Fax: (213) 687 -3765
Nbraverman @ceo.lacounty.gov
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2. The representative of Subrecipient shall be:
Name and Walter G. Krumbach, Lieutenant
Title:
Organization El Segundo Police Department
Address: 348 Main Street
City /State /Zip: El Segundo, CA 90245
Phone: (310) 524 -2200
Fax: (310) 640 -8648
Email WKrumbach @else4undo org
With a copy to:
Name and Carlos Mendoza, Lieutenant
Title:
Organization El Segundo Police Department
Address: 348 Main Street
City /State/Zip: El Segundo, CA 90245
Phone: (310) 524 -2200
Fax: (310) 640 -8648
Email CMendoza @elsegundo.org
B. Formal notices, demands and communications to be given hereunder by either
party shall be made in writing and may be effected by personal delivery or by
registered or certified mail, postage prepaid, return receipt requested and shall
be deemed communicated as of the date of mailing.
C. If the name and/or title of the person designated to receive the notices, demands
or communications or the address of such person is changed, written notice shall
be given, in accord with this section, within five (5) business days of said change.
§103. Independent Party
Subrecipient is acting hereunder as an independent party, and not as an agent or
employee of the County of Los Angeles. No employee of Subrecipient is, or shall
be an employee of the County of Los Angeles by virtue of this Agreement, and
Subrecipient shall so inform each employee organization and each employee
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who is hired or retained under this Agreement. Subrecipient shall not represent
or otherwise hold out itself or any of its directors, officers, partners, employees,
or agents to be an agent or employee of the County of Los Angeles.
§104. Conditions Precedent to Execution of This Agreement
Subrecipient shall provide the following signed documents to the County of
Los Angeles, unless otherwise exempted.
A. Certifications and Disclosures Regarding Lobbying, in accordance with
§411.A.14 of this Agreement and attached hereto as Exhibit A and made a part
hereof. Subrecipient shall also file a Disclosure Form at the end of each
calendar quarter in which there occurs any event requiring disclosure or which
materially affects the accuracy of the information contained in any Disclosure
Form previously filed by Subrecipient.
B. Certifications Regarding Ineligibility, Suspension and Debarment as required by
Executive Order 12549 in accordance with §411.A.12 of this Agreement and
attached hereto as Exhibit B and made a part hereof.
C. Certification Regarding Drug -Free Workplace, in accordance with §411.A.13 of
this agreement and attached hereto as Exhibit C and made a part hereof.
SECTION II
TERM AND SERVICES TO BE PROVIDED
§201. Time of Performance
The term of this Agreement shall commence upon execution by all parties and
shall expire on the later of March 30, 2010 or such later date that any necessary
close out activities are completed. Said term is subject to the provisions herein.
§202. U19 of Grant Funds and_Comoliance with Protected Critical Infrastructure
Information R2quirements
A. Subrecipient has previously completed a budgettexpenditure plan, hereinafter
"Budget," for the BZPP FY 2007 Grant, which has been approved by the
California Emergency Management Agency (formerly known as the Office of
Homeland Security (OHS)), hereafter CEMA. This information has been
validated as Protected Critical Infrastructure Information (PCII) and is exempt
from release under the Freedom of Information Act (5 U.S.0 552) and similar
State and local disclosure laws, to include the California Public Records Act
(California Government Code § §6250- 6270). Unauthorized release of this
information or any newly created document containing PCII may result in criminal
and administrative penalties. This information and any newly created document
containing PCII is to be safeguarded and disseminated in accordance with the
Critical Infrastructure Information Act of 2002, 6 U.S.C, § §131 et seq., the
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implementing Regulation at 6 C.F.R. Part 29 and PCII Program requirements, a
copy of the Final Rule: Procedures for Handling Protected Critical Infrastructure
Information is attached to this Agreement as Exhibit G. Subrecipient
acknowledges that it is familiar with all pertinent statutory and regulatory
requirements which govern the marking, storage, handling, dissemination and
destruction of PCII.
Any request by Subrecipient to modify the Budget must be made in writing with
the appropriate justification and submitted to CEMA for approval. Modifications
must be approved in writing by CEMA during the term of this Agreement. Upon
approval, all other terms of this Agreement will remain in effect.
Subrecipient shall utilize grant funds in accordance with all Federal regulations
and State Guidelines. Any subcontract entered into by Subrecipient, relating to
this Contract, to the extent allowed hereunder, shall include the provisions of this
paragraph and be subject to such provisions, and shall attach a copy of the Final
Rule: Procedures for Handling Protected Critical Infrastructure Information,
which is attached hereto as Exhibit G.
B. Subrecipient agrees that grant funds awarded will be used to supplement existing
funds for program activities, and will not supplant (replace) non - Federal funds.
C. Subrecipient shall review the Federal Debarment Listing at
http :www.epls.gov /epls /search prior to the purchase of equipment or services to
ensure the intended vendor is not listed and also maintain documentation that
the list was verified.
D. Prior to the purchase of equipment or services utilizing a sole source contract
justification must be presented to CEO, who upon review, will request approval
from OHS. Such approval in writing must be obtained prior to the commitment of
funds.
F. Subrecipient shall provide monthly status reports to CEO indicating their
progress on meeting program goals and the submission of claims for
reimbursement along with any reports requested by the County of Los Angeles
regarding performance of this Agreement. Reports shall be in the form requested
by the County of Los Angeles, and shall be provided by the 15th of the following
month.
G Subrecipient shall provide a copy of their Annual Single Audit Report, as required
by Office of Management and Budget circular A -133, to CEO no later than March
31't of the year following the reporting period.
H Subrecipient shall provide a Corrective Action Plan to CEO within 30 days of any
audit finding.
I. Subrecipient will be monitored by the County of Los Angeles on an annual basis
to ensure compliance with OHS grant program requirements. Said monitoring
will include, at a minimum, one on -site visit during the term of this Agreement.
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J. Any equipment acquired pursuant to this Agreement shall be authorized in FY
2007 G &T Authorized Equipment List (AEL) available online at
httQ : / /www.rkb.miQt.ora and the Allowable Cost Matrix to the 2007 Homeland
Security Grant Program, Program Guidance and Application Kit, incorporated by
reference, and attached hereto as Exhibit D. Subrecipient shall provide the
County of Los Angeles a copy of its most current procurement guidelines and
follow its own procurement requirements as long as they meet or exceed the
minimum Federal requirements. Federal procurement requirements for the BZPP
2007 Grant can be found at OMB Circular A -102, Title 28 C.F.R. Part 66.36, and
Office of G &T Financial Guide.
Any equipment acquired or obtained with Grant Funds:
1. Will be made available under the California Disaster and Civil Defense
Master Mutual Aid Agreement in consultation with representatives of the
various fire, emergency medical, hazardous materials response services,
and law enforcement agencies within the jurisdiction of the applicant;
2. Will be consistent with needs as identified in the State Buffer Zone
Protection Program Guidance and will be deployed in conformance with
that plan;
3. Will be made available pursuant to applicable terms of the California
Disaster and Civil Defense Master Mutual Aid Agreement and deployed
with personnel trained in the use of such equipment in a manner
consistent with the California Law Enforcement Mutual Aid Plan or the
California Fire Services and Rescue Mutual Aid Plan.
K. Equipment acquired pursuant to this Agreement shall be subject to the
requirements of Title 28, C.F.R. 66.32, 66.33 and Office of G &T Financial Guide.
For the purposes of this subsection, "Equipment' is defined as tangible
nonexpendable property, having a useful life of more than one year which costs
$5,000 or more per unit. Items costing less than $5,000, but acquired under the
"Equipment" category of the Grant shall also be listed on any required Equipment
Ledger.
1. Equipment shall be used by Subrecipient in the program or project for
which it was acquired as long as needed, whether or not the project or
program continues to be supported by Federal funds. When no longer
needed for the original program or project, the Equipment may be used in
other activities currently or previously supported by a Federal agency.
2. Subrecipient shall make Equipment available for use on other like projects
or programs currently or previously supported by the Federal Government,
providing such use will not interfere with the work on the projects or
program for which it was originally acquired. First preference for other use
shall be given to other programs or projects supported by the awarding
agency.
3. An Equipment Ledger shall be maintained listing each item of Equipment
acquired with BZPP funds. The Equipment Ledger must be kept up to
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date at all times. Any changes shall be recorded in the Ledger within ten
(10) business days and the updated Ledger is to be forwarded to the
County's Auditor - Controller. The Equipment Ledger shall include: (a)
description of the item of Equipment, (b) manufacturer's model and serial
number, (c) Federal Stock number, national stock number, or other
identification number; (d) the fund source /grant year of acquisition of the
Equipment, including the award number, (e) date of acquisition; (f) the per
unit acquisition cost of the Equipment, (g) location and condition of
Equipment and (h) disposition data, including date and sale price, if
applicable. Records must be retained pursuant to Title 28 C.F.R. Part
66.42.
4. All Equipment obtained under this Agreement shall have an appropriate
identification decal affixed to it, and, when practical, shall be affixed where
it is readily visible.
5. A physical inventory of the Equipment shall be taken by the Subrecipient
and the results reconciled with the Equipment Ledger at least once every
year or prior to any site visit by State or Federal auditors /monitors. The
Subrecipient is required to submit a letter certifying as to the accuracy of
the Equipment Ledger to the County of Los Angeles, in the frequency as
above.
L. Any planning paid pursuant to this Agreement shall conform to the guidelines as
listed in FY 2007 Buffer Zone Protection Program, Program Guidance and
Application Kitor subsequent grant year programs.
SECTION III
PAYMENT
§301. Payment of Grant Funds and Method of Payment
A. The County of Los Angeles shall reimburse Subrecipient the grant amount of
$177,388 as expenditures are incurred and paid by Subrecipient and all
documentation is reviewed and approved by County. All expenditures shall be
for the purchase of equipment and planning as described in Section II of this
Agreement. The grant amount represents the amount allocated to Subrecipient in
the FY 2007 BZPP Grant Award Letter from OHS.
B. Subrecipient shall submit invoices to the County of Los Angeles Chief Executive
Office requesting payment as soon as ,expenses are incurred and paid, and the
required supporting documentation is available. Said timeframe should be
within ten (10) business days of Subrecipients' payment to vendors and/or
prescribed due dates by CEO and /or OHS. Each reimbursement request shall
be accompanied by the Reimbursement Request Checklist and Form (attached
hereto as Exhibit E). All appropriate back -up documentation must be attached to
the reimbursement form, including invoices, proof of payment and packing slips.
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C. If Subrecipient has not expended grant funds by the prescribed due date County,
at its discretion, and with OHS approval, upon notice to Subrecipient, may
reallocate the unexpended funds to another subrecipient and the payment
amount specified in §301.A., above, will be reduced accordingly
D. Notwithstanding anything to the contrary herein, Subrecipient may procure
equipment through the "Equipment Purchase Assistance Program," as more fully
described in "Fiscal Year 2007, Homeland Security Grant Program, Program
Guidelines and Application Kit, Appendix D page D -2. Under this program, the
Federal Government will pay the vendor directly, and the dollar amount of this
Agreement as stated in §301. A., above, shall be reduced by the corresponding
amount. Subrecipient shall notify the County of Los Angeles thirty (30) days prior to
using the "Equipment Purchase Program," and shall submit to the County of Los
Angeles a final report reconciling the full amount of this Agreement, ninety (90) days
before this Agreement terminates.
E. Payment of final invoice shall be withheld by the County of Los Angeles until the
County has determined that Subrecipient has turned in all supporting
documentation and completed the requirements of this Agreement.
F. It is understood that the County of Los Angeles makes no commitment to fund
this Agreement beyond the terms set forth herein.
G. 1. County's obligation is payable only from funds appropriated for the
purpose of this Agreement. All funds for payments after the end of the current
fiscal year are subject to Federal, State or County's legislative appropriation for
this purpose. In the event this Agreement extends into succeeding fiscal year
periods and the Board of Supervisors or the State or Federal Legislature does
not allocate sufficient funds for the next succeeding fiscal year payments,
services shall automatically be terminated as of the end of the then current fiscal
year.
2. County shall make a good -faith effort to notify subrecipient, in writing,
of such non - appropriation at the earliest time.
SECTION IV
STANDARD PROVISIONS
§401. Construction of Provisions and Titles Herein
All titles or subtitles appearing herein have been inserted for convenience and
shall not be deemed to affect the meaning or construction of any of the terms or
provisions hereof. The language of this Agreement shall be construed according
to its fair meaning and not strictly for or against either party.
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§402. Applicable Law Interpretation and Enforcement
Each party's performance hereunder shall comply with all applicable laws of the
United States of America, the State of California, and the County of Los Angeles.
This Agreement shall be enforced and interpreted under the laws of the State of
California and the County of Los Angeles.
If any part, term or provision of this Agreement shall be held void, illegal,
unenforceable, or in conflict with any law of a Federal, State or Local
Government having jurisdiction over this Agreement, the validity of the remaining
portions of provisions shall not be affected thereby.
Applicable Federal or State requirements that are more restrictive shall be
followed.
§403. Integrated Agreement
This Agreement sets forth all of the rights and duties of the parties with respect to
the subject matter hereof, and replaces any and all previous agreements or
understandings, whether written or oral, relating thereto. This Agreement may be
amended only as provided for herein.
§404. Breach
If any party fails to perform, in whole or in part, any promise, covenant, or
agreement set forth herein, or should any representation made by it be untrue,
any aggrieved party may avail itself of all rights and remedies, at law or equity, in
the courts of law. Said rights and remedies are cumulative of those provided for
herein except that in no event shall any party recover more than once, suffer a
penalty or forfeiture, or be unjustly compensated.
§405. Prohibition Against Assignment or Delegation
Subrecipient may not, unless it has first obtained the written permission of the
County of Los Angeles:
A. Assign or otherwise alienate any of its rights hereunder, including the right to
payment; or
B. Delegate, subcontract, or otherwise transfer any of its duties hereunder.
§406. Permits
Subrecipient and its officers, agents and employees shall obtain and maintain all
permits and licenses necessary for Subrecipient's performance hereunder and
shall pay any fees required therefor. Subrecipient further certifies to immediately
notify the County of Los Angeles of any suspension, termination, lapses, non
renewals or restrictions of licenses, certificates, or other documents.
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§407. Nond_iscrimi nation and Affirmatives Action
Subrecipient shall comply with the applicable nondiscrimination and affirmative
action provisions of the laws of the United States of America, the State of
California, and the County of Los Angeles. In performing this Agreement,
Subrecipient shall not discriminate in its employment practices against any
employee or applicant for employment because of such person's race, religion,
national origin, ancestry, sex, sexual orientation, age, physical handicap, mental
disability, marital status, domestic partner status or medical condition.
Subrecipient shall comply with Executive Order 11246, entitled "Equal
Employment Opportunity," as amended by Executive Order 11375, and as
supplemented in Department of Labor regulations (41 CRF Part 60).
If required, Subrecipient shall submit an Equal Employment Opportunity Plan
( "EEOP ") to the DOJ Office of Civil Rights ( "OCR ") in accordance with guidelines
listed at http: // www.ojp.usdoj.gov /ocr /esop.htm.
Any subcontract entered into by the Subrecipient relating to this Agreement, to
the extent allowed hereunder, shall be subject'to the provisions of this § 407 of
this Agreement.
§408. IndeMnificatign
Each of the parties to this Agreement is a public entity. In contemplation of the
provisions of Section 895.2 of the Government Code of the State of California
imposing certain tort liability jointly upon public entities, solely by reason of such
entities being parties to an Agreement as defined by Section 895 of said Code,
the parties hereto, as between themselves, pursuant to the authorization
contained in Section 895.4 and 895.6 of said Code, will each assume the full
liability imposed upon it or upon any of its officers, agents, or employees by law,
for injury caused by a negligent or wrongful act or omission occurring in the
performance of this Agreement, to the same extent that such liability would be
imposed in the absence of Section 895.2 of said Code. To achieve the above -
stated purpose, each party indemnifies and holds harmless the other party solely
by virtue of said Section 895.2. The provision of Section 2778 of the California
Civil Code is made a part hereto as if fully set forth herein. Subrecipient certifies
that it has adequate self insured retention of funds to meet any obligation arising
from this Agreement.
§409. Conflict of Interest
A. The Subrecipient covenants that none of its directors, officers, employees, or
agents shall participate in selecting, or administrating any subcontract supported
(in whole or in part) by Federal funds where such person is a director, officer,
employee or agent of the subcontractor; or where the selection of subcontractors
is or has the appearance of being motivated by a desire for personal gain for
themselves or others such as family business, etc.; or where such person knows
or should have known that:
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A member of such person's immediate family, or domestic partner or
organization has a financial interest in the subcontract;
2. The subcontractor is someone with whom such person has or is
negotiating any prospective employment; or
3. The participation of such person would be prohibited by the California
Political Reform Act, California Government Code §87100 et seq. if such
person were a public officer, because such person would have a "financial
or other interest" in the subcontract.
B. Definitions:
1. The term "immediate family" includes but is not limited to domestic partner
and/or those persons related by blood or marriage, such as husband, wife,
father, mother, brother, sister, son, daughter, father in law, mother in law,
brother in law, sister in law, son in law, daughter in law.
2. The term "financial or other interest" includes but is not limited to:
a. Any direct or indirect financial interest in the specific contract,
including a commission or fee, a share of the proceeds, prospect of
a promotion or of future employment, a profit, or any other form of
financial reward.
b. Any of the following interests in the subcontractor ownership:
partnership interest or other beneficial interest of five percent or
more; ownership of five percent or more of the stock; employment
in a managerial capacity; or membership on the board of directors
or governing body.
C. The Subrecipient further covenants that no officer, director, employee, or agent
shall solicit or accept gratuities, favors, anything of monetary value from any
actual or potential subcontractor, supplier, a party to a sub agreement, (or
persons who are otherwise in a position to benefit from the actions of any officer,
employee, or agent).
D. The Subrecipient shall not subcontract with a former director, officer, or
employee within a one year period following the termination of the relationship
between said person and the Subrecipient.
E. Prior to obtaining the County of Los Angeles' approval of any subcontract, the
Subrecipient shall disclose to the County of Los Angeles any relationship,
financial or otherwise, director indirect, of the Subrecipient or any of its officers,
directors or employees or their immediate family with the proposed subcontractor
and its officers, directors or employees.
F. For further clarification of the meaning of any of the terms used herein, the
parties agree that references shall be made to the guidelines, rules, and laws of
the County of Los Angeles, State of California, and Federal regulations regarding
conflict of interest.
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G. The Subrecipient warrants that it has not paid or given and will not pay or give to
any third person any money or other consideration for obtaining this Agreement.
H. The Subrecipient covenants that no member, officer or employee of Subrecipient
shall have interest, direct or indirect, in any contract or subcontract or the
proceeds thereof for work to be performed in connection with this project during
his /her tenure as such employee, member or officer or for one year thereafter.
I. The Subrecipient shall incorporate the foregoing subsections of this Section into
every agreement that it enters into in connection with this grant and shall
substitute the term "subcontractor" for the term "Subrecipient" and "sub
subcontractor" for "Subcontractor ".
§410. Restriction on Disclosures
Any reports, analysis, studies, drawings, information, or data generated as a
result of this Agreement are to be governed by the California Public Records Act
(California Government Code Sec. 6250 et seq.).
§411. Statutes and Regulations Applicable To All Grant Contracts
A. Subrecipient shall comply with all applicable requirements of State, Federal, and
County of Los Angeles laws, executive orders, regulations, program and
administrative requirements, policies and any other requirements governing this
Agreement. Subrecipient shall comply with applicable State and Federal laws
and regulations pertaining to labor, wages, hours, and other conditions of
employment. Subrecipient shall comply with new, amended, or revised laws,
regulations, and/or procedures that apply to the performance of this Agreement.
These requirements include, but are not limited to:
1. Office of Management and Budget (OMB) Circulars
Subrecipient shall comply with OMB Circulars, as applicable: OMB
Circular A -21 (Cost Principles for Educational Institutions); OMB Circular
A -87 (Cost Principles for State, Local, and Indian Tribal Governments);
OMB Circular A -102 (Grants and Cooperative Agreements with State and
Local Governments); Common Rule, Subpart C for public agencies or
OMB Circular A -110 (Uniform Administrative Requirements for Grants and
Other Agreements with Institutions of Higher Education, Hospitals and
Other Non - Profit Organizations); OMB Circular A -122 (Cost Principles for
Non - Profit Organizations); OMB Circular A -133 (Audits of States, Local
Governments, and Non - Profit Organizations.
2. Single Audit Act
Since Federal funds are used in the performance of this Agreement,
Subrecipient shall, as applicable, adhere to the rules and regulations of
the Single Audit Act, 31 USC Sec. 7501 et seq.;); OMB Circular A -133 and
any administrative regulation or field memos implementing the Act.
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3. Americans with Disabilities Act
Subrecipient hereby certifies that, as applicable, it will comply with the
Americans with Disabilities Act 42, USC §§ 12101 et seq., and its
implementing regulations. Subrecipient will provide reasonable
accommodations to allow qualified individuals with disabilities to have
access to and to participate in its programs, services and activities in
accordance with the provisions of the Americans with Disabilities Act.
Subrecipient will not discriminate against persons with disabilities nor
against persons due to their relationship to or association with a person
with a disability. Any subcontract entered into by Subrecipient, relating to
this Contract, to the extent allowed hereunder, shall be subject to the
provisions of this paragraph.
4. Political and Sectarian Activity Prohibited
None of the funds, materials, property or services provided directly or
indirectly under this Agreement shall be used for any partisan political
activity, or to further the election or defeat of any candidate for public
office. Neither shall any funds provided under this Agreement be used for
any purpose designed to support or defeat any pending legislation or
administrative regulation. None of the funds provided pursuant to this
Agreement shall be used for any sectarian purpose or to support or benefit
any sectarian activity.
Subrecipient shall file a Disclosure Form at the end of each calendar
quarter in which there occurs any event requiring disclosure or which
materially affects the accuracy of any of the information contained in any
Disclosure Form previously filed by Subrecipient. Subrecipient shall
require that the language of this Certification be included in the award
documents for all sub - awards at all tiers and that all subcontractors shall
certify and disclose accordingly.
5. Records Inspection
At any time during normal business hours and as often as either the
County of Los Angeles, the U.S. Comptroller General or the Auditor
General of the State of California may deem necessary, Subrecipient shall
make available for examination all of its records with respect to all matters
covered by this Agreement. The County of Los Angeles, the U.S.
Comptroller General and the Auditor General of the State of California
shall have the authority to audit, examine and make excerpts or transcripts
from records, including all Subrecipient's invoices, materials, payrolls,
records of personnel, conditions of employment and other data relating to
all matters covered by this Agreement.
Subrecipient agrees to provide any reports requested by the County
regarding performance of this Agreement.
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6. Records Maintenance
Records, in their original form, shall be maintained in accordance with
requirements prescribed by the County of Los Angeles with respect to all
matters specified in this Agreement. Original forms are to be maintained
on file for all documents specified in this Agreement. Such records shall
be retained for a period five (5) years after termination of this Agreement
and after final disposition of all pending matters. "Pending matters"
Include, but are not limited to, an audit, litigation or other actions involving
records. The County of Los Angeles may, at its discretion, take
possession of, retain and audit said records. Records, in their original
form pertaining to matters covered by this Agreement, shall at all times be
retained within the County of Los Angeles unless authorization to remove
them is granted in writing by the County of Los Angeles.
7. Subcontracts and Procurement
Subrecipient shall, as applicable, comply with the Federal, State and
County of Los Angeles standards in the award of any subcontracts. For
purposes of this Agreement, subcontracts shall include but not be limited
to purchase agreements, rental or lease agreements, third party
agreements, consultant service contracts and construction subcontracts.
Subrecipient shall, as applicable, ensure that the terms of this Agreement
with the County of Los Angeles are incorporated into all Subcontractor
Agreements. The Subrecipient shall submit all Subcontractor Agreements
to the County of Los Angeles for review prior to the release of any funds to
the subcontractor. The Subrecipient shall withhold funds to any
subcontractor agency that fails to comply with the terms and conditions of
this Agreement and their respective Subcontractor Agreement.
8, Labor
Subrecipient shall, as applicable, comply with the Intergovernmental
Personnel Act of 1970 (42 U.S.C. § §4728 -4763) relating to prescribed
requirements for merit systems for programs funded under one of the 19
statutes or regulations specified in Appendix A of OPM's Standards for a
Merit System Personnel Administration (5 C.F.R. 900, Subpart F).
Subrecipient shall comply, as applicable, with the provisions of the Davis -
Bacon Act (40 U.S.C. § §276a to 276a -7), the Copeland Act (40 U.S.C.
§276c and 18 U.S.C. §874), the Contract Work Hours and Safety
Standards Act (40 U.S.C. § §327 -333), regarding labor standards for
federally- assisted construction subagreements, and the Hatch Act (5 USC
§ §1501 -1508 and 7324 - 7328).
Subrecipient shall, as applicable, comply with the Federal Fair Labor
Standards Act (29 USC § 201) regarding wages and hours of
employment.
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None of the funds shall be used to promote or deter Union /labor
organizing activities. CA Gov't Code Sec. 16645 et sea.
9. Civil Rights
Subrecipient shall, as applicable, comply with all Federal statutes relating
to nondiscrimination. These include but are not limited to: (a) Title VI of the
Civil Rights Act of 1964 (P.L. 88 -352) which prohibits discrimination on the
basis of race, color or national origin; (b) Title IX of the Education
Amendments of 1972, as amended (20 U.S.C. § §1681- 1683, and 1685-
1686), which prohibits discrimination on the basis of sex; (c) Section 504
of the Rehabilitation Act of 1973, as amended (29 U.S.C. §794), which
prohibits discrimination on the basis of handicaps; (d) The Age
Discrimination act of 1975, as amended (42 U.S.C. § §6101- 6107), which
prohibits discrimination on the basis of age; (e) the Drug Abuse Office and
Treatment Act of 1972 (P.L. 92 -255), as amended, relating to
nondiscrimination on the basis of drug abuse; (f) the Comprehensive
Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation
act of 1970 (P.L. 91 -616) as amended, relating to nondiscrimination on the
basis of alcohol abuse or alcoholism; (g) § §523 and 527 of the Public
Health Service Act of 1912 (42 U.S.C. § §290 dd -3 and 290 ee 3), as
amended, relating to confidentiality of alcohol and drug abuse patient
records; (h) Title VIII of the Civil Rights Act of 1968 (42 U.S.C. § §3601 et
seq.), as amended, relating to non - discrimination in the sale, rental or
financing of housing; (i) any other nondiscrimination provisions in the
specific statute(s) under which application for Federal assistance is being
made; (j) the requirements of any other nondiscrimination statute(s) which
may apply to the application; and (k) P.L. 93 -348 regarding the protection
of human subjects involved in research, development, and related
activities supported by this award of assistance.
10. Environmental
Subrecipient shall, as applicable, comply, or has already complied, with
the requirements of Titles II and III of the Uniform Relocation Assistance
and Real Property Acquisition Policies Act of 1970 (P.L. 91 -646) which
provide for fair and equitable treatment of persons displaced or whose
property is acquired as a result of Federal or federally - assisted programs.
These requirements apply to all interests in real property acquired for
project purposes regardless of Federal participation in purchases.
Subrecipient shall comply, as applicable, with environmental standards
which may be prescribed pursuant to the following: (a) institution of
environmental quality control measures under the National Environmental
Policy Act of 1969 (P.L. 91 -190) and Executive Order (EO) 11514; (b)
notification of violating facilities pursuant to EO 11738; (c) protection of
wetlands pursuant to EO 11990; (d) evaluation of flood hazards in
floodplains in accordance with EO 11988; (e) assurance of project
consistency with the approved State management program developed
under the Coastal Zone Management Act of 1972 (16 U.S.C. § §1451 et
seq.); (f) conformity of Federal actions to State (Clean Air) Implementation
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Plans under Section 176(c) of the Clean Air Act of 1955, as amended (42
U.S.C. § §7401 et seq.); (g) protection of underground sources of drinking
water under the Safe Drinking Water Act of 1974, as amended (P.L. 93-
523); (h) protection of endangered species under the Endangered Species
Act of 1973, as amended (P.L. 93205); and (i) Flood Disaster Protection
Act of 1973 §102(a) (P.L. 93 -234).
Subrecipient shall, as applicable, comply with the Wild and Scenic Rivers
Act of 1968 (16 U.S.C. § §1271 et seq.) related to protecting components
or potential components of the national wild and scenic rivers system.
Subrecipient shall, as applicable, comply with the Lead -Based Paint
Poisoning Prevention Act (42 U.S.C. § §4801 et seq.) which prohibits the
use of lead -based paint in construction or rehabilitation of residence
structures.
Subrecipient shall, as applicable, comply with the Federal Water Pollution
Control Act (33 U.S.C. § 1251 et seq.) which restores and maintains the
chemical, physical and biological integrity of the Nation's waters.
Subrecipient shall, as applicable, ensure that the facilities under its
ownership, lease or supervision which shall be utilized in the
accomplishment of this project are not listed in the Environmental
Protection Agency's (EPA) list of Violating Facilities and that it will notify
the Federal Grantor agency of the receipt of any communication from the
Director of the EPA Office of Federal Activities indicating that a facility to
be used in the project is under consideration for listing by the EPA.
By signing this Agreement, Subrecipient ensures that it is in compliance
with the California Environmental Quality Act (CEQA), Public Resources
Code §21000 et se g.
Subrecipient shall, as applicable, comply with the Energy Policy and
Conservation Act (P.L. 94 -163, 89 Stat. 871).
Subrecipient shall comply, as applicable, with the provision of the Coastal
Barrier Resources Act (P.L. 97 -348) dated October 19, 1982 (16 USC
3501 et. seq.) which prohibits the expenditure of most new Federal funds
within the units of the Coastal Barrier Resources System.
11. Preservation
Subrecipient shall, as applicable, comply with Section 106 of the National
Historic Preservation Act of 1966, as amended (16 U.S.C. §470), EO
11593 (identification and protection of historic properties), and the
Archaeological and Historic Preservation Act of 1974 (16 U.S.C. § §469a -1
et seq.).
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12. Suspension and Debarment
Subrecipient shall, as applicable, comply with Title 28 C.F.R. Volume 67,
Number 228, regarding Suspension and Debarment, and Subrecipient
shall submit a Certification Regarding Debarment required by Executive
Order 12549 and any amendment thereto and attached here to as Exhibit
B. Said Certification shall be submitted to the County of Los Angeles
concurrent with the execution of this Agreement and shall certify that
neither Subrecipient nor its principals are presently debarred, suspended,
proposed for debarment, declared ineligible or voluntarily excluded from
participation in this transaction by any Federal department head or
agency. Subrecipient shall require that the language of this Certification
be included in the award documents for all sub -award at all tiers and that
all subcontractors shall certify accordingly.
13. Drug -Free Workplace
Subrecipient shall, as applicable, comply with the federal Drug -Free
Workplace Act of 1988, 41 USC §701, Title 28 Code of Federal
Regulations (CFR) Part 67; the California Drug -Free Workplace Act of
1990, CA Gov't Code §§ 8350 -8357, and Subrecipient shall complete the
Certification Regarding Drug -Free Workplace Requirements, attached
hereto as Exhibit C, and incorporated herein by reference. Subrecipient
shall require that the language of this Certification be included in the
award documents for all sub -award at all tiers and that all subcontractors
shall certify accordingly.
14. Lobbying Activities
Subrecipient shall, as applicable, comply with 31. U.S.C.1352 and
complete the Disclosure of Lobbying Activities, (OMB 0038 - 0046),
attached hereto as Exhibit A, and incorporated herein by reference.
15. Miscellaneous
Subrecipient shall, as applicable, comply with the Laboratory Animal
Welfare Act of 1966, as amended (P.L. 89 -544, 7 USC § §2131 et seq.).
B. Statutes and Regulations Applicable To This Particular Grant
Subrecipient shall comply with all applicable requirements of State and Federal
laws, executive orders, regulations, program and administrative requirements,
policies and any other requirements governing this particular grant program.
Subrecipient shall, as applicable, comply with new, amended, or revised laws,
regulations, and/or procedures that apply to the performance of this Agreement.
These requirements include, but are not limited to:
1. Title 28 CFR Part 66; EO 12372; (Financial Management Guide US
Department of Homeland Security Directorates Preparedness January
2006, Financial Guide; U.S. Department of Homeland Security, Office of
State and Local Government Coordination and Preparedness, Office for
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Domestic Preparedness, ODP WMD Training Course Catalogue; and DOJ
Office for Civil Rights.
Standardized Emergency Management System (SEMS) requirements as
stated in the California Emergency Services Act, Government Code
Chapter 7 of Division 1 of Title 2, § 8607.1(e) and CCR Title 19, §§ 2445-
2448.
Provisions of Title 2, 6, 28,44 CFR applicable to grants and cooperative
agreements, including Part 18, Administrative Review Procedures; Part
20, Criminal Justice Information Systems; Part 22, Confidentiality of
Identifiable Research and Statistical Information; Part 23, Criminal
Intelligence Systems Operating Policies; Part 30, Intergovernmental
Review of Department of Justice Programs and Activities; Part 35,
Nondiscrimination on the Basis of Disability in State and Local
Government Services; Part 38, Equal Treatment of Faith -based
Organizations; Part 42, Nondiscrimination/Equal Employment
Opportunities Policies and Procedures; Part 61, Procedures for
Implementing the National Environmental Policy Act; Part 63, Floodplain
Management and Wetland Protection Procedures; Part 64, Floodplain
Management and Wetland Protection Procedures; Federal laws or
regulations applicable to Federal Assistance Programs; Part 69, New
Restrictions on Lobbying; Part 70, Uniform Administrative Requirements
for Grants and Cooperative Agreements (including sub- awards) with
Institutions of Higher Learning, Hospitals and other Non - Profit
Organizations; and Part 83, Government -Wide Requirements for a Drug
Free Workplace (grants).
Nondiscrimination requirements of the Omnibus Crime Control and Safe
Streets Act of 1968, as amended, 42 USC 3789(d), or the Juvenile Justice
and Delinquency Prevention Act, or the Victims of Crime Act, as
appropriate; the provisions of the current edition of the Office of Justice
Programs Financial and Administrative Guide for Grants, M7100.1, and all
other applicable Federal laws, orders, circulars, or regulations.
2. Travel Expenses
Subrecipient as provided herein shall be compensated for Subrecipient's
reasonable travel expenses incurred in the performance of this
Agreement, to include travel and per diem, unless otherwise expressed.
Subrecipient's total travel for in -State and /or out -of -State and per diem
costs shall be included in the contract budget(s). All travel including out -
of -State travel not included in the budget(s) shall not be reimbursed
without prior written authorization from the County of Los Angeles.
Subrecipient's administrative - related travel and per diem reimbursement
costs shall be reimbursed based on the Subrecipient's policies and
procedures. For programmatic- related travel costs, Subrecipient's
reimbursement rates shall not exceed the amounts established by the
County of Los Angeles.
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3. Noncompliance
Subrecipient understands that failure to comply with any of the above
assurances may result in suspension, termination or reduction of grant
funds, and repayment by the Subrecipient to the County of Los Angeles of
any unauthorized expenditures.
C. Compliance With Grant Requirements
To obtain the grant funds, the State required an authorized representative of
the County of Los Angeles to sign certain promises regarding the way the
grant funds would be spent. These requirements are included in the 2007
Program Guidance and Application Kit and in the "Grant Assurances ",
attached hereto as Exhibit F. By signing these Grant Assurances and
accepting the Program Guidances, the County of Los Angeles became liable
to the State for any funds that are used in violation of the grant requirements.
Subrecipient shall be liable to the Grantor for any funds the State determines
that Subrecipient used in violation of these Grant Assurances. Subrecipient
shall indemnify and hold harmless the County of Los Angeles for any sums
the State or Federal government determines Subrecipient used in violation of
the Grant Assurances.
§412. Federal. State and Local Taxes
Federal, State and local taxes shall be the responsibility of the Subrecipient as
an independent party and not of the County of Los Angeles and shall be paid
prior to requesting reimbursement. However, these taxes are an allowable
expense under the grant program.
§413. Inventions. Patents and Cogvriahts
A. Reporting Procedure for Inventions
If any project produces any invention or discovery (Invention) patentable or
otherwise under Title 35 of the U.S. Code, including, without limitation, processes
and business methods made in the course of work under this Agreement, the
Subrecipient shall report the fact and disclose the Invention promptly and fully to
the County of Los Angeles. The County of Los Angeles shall report the fact and
disclose the Invention to the State. Unless there is a prior agreement between
the County of Los Angeles and the State, the State shall determine whether to
seek protection on the Invention. The State shall determine how the rights in the
Invention, including rights under any patent issued thereon, will be allocated and
administered in order to protect the public interest consistent with the policy
( "Policy") embodied in the Federal Acquisition Regulations System, which is
based on Ch. 18 of title 35 U.S.C. Sections 200 et seq. (Pub. L. 95 -517, Pub. L.
98 -620, Title 37 CFR Part 401); Presidential Memorandum on Government
Patent Policy to the Heads of the Executive Departments and Agencies, dated
2/18/1983); and Executive Order 12591, 4/10/87, 52 FR 13414, Title 3 CFR,
1987 Comp., p. 220 (as amended by Executive Order 12618, 12/22/87, 52 FR
48661, Title 3 CFR, 1987 Comp., p. 262). Subrecipient hereby agrees to be
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bound by the Policy, and will contractually require ,its personnel to be bound by
the Policy.
B. Rights to Use Inventions
County of Los Angeles shall have an unencumbered right, and a non - exclusive,
irrevocable, royalty -free license, to use, manufacture, improve upon, and allow
others to do so for all government purposes, any Invention developed under this
Agreement.
C. Copyright Policy
1. Unless otherwise provided by the terms of the State or of this Agreement,
when copyrightable material (Material) is developed under this Agreement,
the County of Los Angeles, at the County's discretion, may copyright the
Material. If the County of Los Angeles declines to copyright the Material,
the County of Los Angeles shall have an unencumbered right, and a non-
exclusive, irrevocable, royalty -free license, to use, manufacture, improve
upon, and allow others to do so for all government purposes, any Material
developed under this Agreement.
2. The State shall have an unencumbered right, and a non - exclusive,
irrevocable, royalty -free license, to use, manufacture, improve upon, and
allow others to do so for all government purposes, any Material developed
under this Agreement or any Copyright purchased under this Agreement.
3. Subrecipient shall comply with Title 24 CFR 85.34.
D. Rights to Data
The State and the County of Los Angeles shall have unlimited rights or copyright
license to any data first produced or delivered under this Agreement. "Unlimited
rights" means the right to use, disclose, reproduce, prepare derivative works,
distribute copies to the public, and perform and display publicly, or permit others
to do so; as required by Title 48 CFR 27.401. Where the data are not first
produced under this Agreement or are published copyrighted data with the notice
of 17 U.S.C. Section 401 or 402, the State acquires the data under a copyright
license as set forth in Title 48 CFR 27.404(f)(2) instead of unlimited rights. (Title
48 CFR 27.404(a)).
E. Obligations Binding on Subcontractors
Subrecipient shall require all subcontractors to comply with the obligations of this
section by incorporating the terms of this section into all subcontracts.
§414. Child Suogort AssignmQnt Orders
Under the terms of this Agreement, Subrecipient shall comply with California
Family Code Section 5230 et seq. as applicable.
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§415. Minority, Women, And Other Business Enterprise Outreach Program
It is the policy of the County of Los Angeles to provide Minority Business
Enterprises, Women Business Enterprises and all other business enterprises an
equal opportunity to participate in the performance of all Subrecipient's contracts,
including procurement, construction and personal services. This policy applies to
all the Subrecipient's contractors and sub - contractors.
SECTION V
DEFAULTS SUSPENSION TERMINATION AND AMENDMENTS
§501. Defaults
Should either party fail for any reason to comply with the contractual obligations
of this Agreement within the time specified by this Agreement, the non - breaching
party reserves the right to terminate the Agreement, reserving all rights under
State and Federal law.
§502. Amendments
Any change in the terms of this Agreement, including changes in the services to
be performed by Subrecipient, and any increase or decrease in the amount of
compensation which are agreed to by the Subrecipient and County of Los
Angeles must be incorporated into this Agreement by a written amendment
properly executed and signed by the person authorized to bind the parties
thereto.
SECTION VI
ENTIRE AGREEMENT
§601. Complete Agreement
This Agreement contains the full and complete Agreement between the two
parties. Neither verbal agreement nor conversation with any officer or employee
of either party shall affect or modify any of the terms and conditions of this
Agreement.
§602. Number of Pages and Attachments
This Agreement may be executed in two (2) duplicate originals, each of which is
deemed to be an original. This Agreement includes (23) pages and (7) Exhibits
which constitute the entire understanding and agreement of the parties.
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IN WITNESS WHEREOF, the Subrecipient and County of Los Angeles have caused
this Agreement to be executed by their duly authorized representatives.
COUNTY OF LOS ANGELES
By
WILLIA T FU I KA
Chief Executive Officer
--By
'AC�H A. AI I✓
Executive er, and of Supervisors
APPROVED AS TO FORM
ounty ouo$M '�
BY
Principal Deputy County Counsel
i
Date
By
WENDY LAWATANABE
0 oiin Auditor - Controller
t -G�
Date
,V//.r/pf
ate
S -z6 -off'
Date
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EXHIBITS
Exhibit A Certification and Disclosures Regarding Lobbying
Exhibit B Certification Regarding Debarment, Suspension, Ineligibility and
Voluntary Exclusion Lower Tier Covered Transactions and
Exhibit C Certification Regarding Drug -Free Workplace
Exhibit D Allowable Cost Matrix
Exhibit E Reimbursement Request Form
Exhibit F Grant Assurances
Exhibit G Department of Homeland Security — Procedures for Handling Critical
Infrastructure Information; Final Rule and Protected Critical Infrastructure
Information Requirements for Use
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DISCLOSURE OF LOBBYING ACTIVITIES
Complete this forth to disclose lobbying activities pursuant to 31 U.S.C. 1352
icy_- 4... w..L.l:w Iv.m— manna""
393•.e.
Exhibit A
Approved by OMB
M4&0046
1. Type of Federal Action:
2. Status of Federal Action:
3. Report Type:
aa. contract
�a. bid/offer /appiloadon
F-1 a. initial filing
b. grant
b. initial award
b. material change
c. cooperative agreement
c. post -award
For Matertal Change Only:
d. loan
year quarter
e. loan guarantee
date of last report
I. loan Insurance
4. Nsms and Address of Reporting Entity:
S. if Reporting Entity In No. 4 is a Subawardee, Enter Name
E3 P,i,,,, E] subrwadw
and Address of Prime:
Tier if known:
Con sessional District If known: 4c
Con tonal Disirfct rylrnorvn:
6. Federal Dope rtmentlAgency:
7. Federal Program Name/Description:
CFDA Number. ff appWiNe:
8. Federal Action Number, lfknown:
8. Award Amount, ffkrxma-
10. a. Name and Address of Lobbying Registrant
b. Individuals Perforrrdng Services (lncluo7rtg address ff
(ff k dlvfdual, last name, "name, Mo.
Akent from No. 100)
(last name, first name, M1):
Mdow"aft mqnoo Orapb dr, On N ewWfted br We at UAA MWO-
11. tae. T* dWw n a Waft w*Aa ti • anwW nNwe"nWa a eea
Signature:
w.noe" nv W" nude
or enwrd Yee. 'nee dr =n Is no" PUMM a at It sa to 'MIS
print Name•
id«enelfoa .rowan weei.b.wrrowvoolft AWpv .ewedrdlar»
w�+neea"ue..naa..q.ouei dW1 pwift 91vAImtw:r000ead
Title:
Telephone No.: Date:
rA Won M NOUN i1w rim" e.
Autodmd for Lac d Nmpeodudkm
Standard Form ILL MW, 7.97)
3 a ';
INSTRUCTIONS FOR COMPLETION OF SF LLL, DISCLOSURE OF LOBBYING ACTIVITIES
This disclosure form shall be completed by the reporting entity. whether subawardeeor prime Federal recipient, at the initiation or receipt of a covered Federal
action, or a material change to a previous filing, Pursuant to title 31 U.S.C. section 1352. The filing of a form is required for each payment or agreement to make
Paymentio any lobbying entity for influencing or attempting to Influence an o(flcer or employesof any agency, a Member of Congress, an officer or employee of
Congress, or an employeeof a Memberof Congress in connecftonwlth a covered Federalaction. Complateaft items that apply for both the initial Ming and employee
change report. Refer to the implementing guidance published by the Office of Management and Budget for additional Information.
1. Identify the type of covered Federal action for which lobbying activity is and/or has been secured to Influence the outcome of a covered Federal action.
2. Identify the status of the covered Federal actlwL
3. Identity the aPPrgPdatsclassiftoatlon of this report If this Is a followup report caused by a materiel change to the Information previously reported, enter
the year and quarter in which the change occurred Enter the date
action. of the Fait prevlouslysubmitted report by this reporting entity for this covered Federal
4. Enter the full name. address, city. State and zip code ofthe reporting amity. Include Congressionall3istrial, 9 knowrL Check the appropriallaclassilication
of the reporting enthythatdesknaMaif it le, orerrpablo be. a pdmeorsubaward fadOent Identify#mtlerof the subawardae,e.g., the fkat subawardee
of the prime is the 1 at tier. Subawards include but are not limited to subcoMmots, subgrents and contract awards under grants.
5 N the organization tiling the report in item 4 shacks 'Subawardee, "then enter the tuft name. address, city. State and zip code of the prime Federal
recipiettL include Congressional Dfsblot, if krwwm.
B. Enter the name of the Federal agency making the award or loan commitmenL Include at least one 01`9811zationanevel below, agency name. N known. For
example, Department of Transportation, United States Coast Guard.
7. Enter the Federal program name or description for the covered Federal action (hem f). If known. order the tug Cadabgof Federal Domestic Assistance
(CFDA) number for grants, 0001301'ative agreements, loans, and loan commitments.
IL Enter the most apPropfnateFederal klentNying number evaflablefor the Federal
Invitation for Bid (IFB) raunber, action identified to Item 1 leg., Request for Proposal
grant announcement number, tits contract, grant, or ban award number; the appftoatloNProposal (control number
assigned by the Federal agencryj Include preflxee, a 0. - RFP- DE- 90-f)01
9. For a covered Federal action where Ihere has been an award or loan commitment by the Federal agency, enter the Federal amount of the award4oan
commitment for the prime entity identified in hem 4 or 5.
10. (a) Enter the fun name, address, city, State and zip code of the lobbying registrant under ft Lobbying Disclosure Act of 1995 engaged by the reporting
entity identirod In item 4 to influence the covered Federal action.
(b) Ester the full names of the individuals) pr bmdng services. and Include full address N different from 10 (a). Ender Last Name, Fist Name, and
Middle Initial (MI).
11. The "allying offf" shaft sign and dale tits farm, Print irtMW mitre, 9W, and telephone number.
X010 be PaPsrwwdtPAdudion Ao% as emended,no tkr+orts era rogtt0red fD respond b a collection of
W- The vend OMB control number for ft irdam*Aon collection b OMB No 0941! 0048. Public unless p diaplays a valid OMB
sled to average 10 minutes par response, Including time for nvlewd Ong 6x for tills collection of k ormedon is G*ftg xk and complefing and 1svWeWkW the cWSd0n of inionnslton, Send nreatlorts, "`roN� ° °01!"0°6' �0� and maintaining the ItW i 9 tmtggestions for reducing Ihia burden, to the 018ce of MarmgemeM&W Budget, paparwctk psduction P� �p8a of title coUsotlon of
00048). WashkVbx%
3938•,111
EXHIBIT B
CERTIFICATION REGARDING
DEBARMENT, SUS WERIOTIE,R
INELIGIBILITY AND VOLUNTARY EXCLUSION
LO CO FRED TRANSACTIONS
This certification is required by the regulations implementing Executive Order 12549,
Debarment and Suspension, 24 CFR Par t 24 Section 24.510, Participants'
responsibilities.
(READ ATTACHED INSTRUCTIONS FOR CERTIFICATION BEFORE
COMPLETING)
1. The prospective recipient of Federal assistance funds certifies that neither it
nor its principals are presently debarred, suspended, proposed for
debarment, declared ineligible, or voluntarily excluded from participation in
this transaction by any Federal department or agency.
2. Where the prospective recipient of Federal assistance funds is unable to
certify to any of the statements in this certification, such prospective
participant shall attach an explanation to this proposal.
AGREEMENT NUMBER
CONTRACTOR/BORROWER/AGENCY
NAME AND TITLE OF AUTHORIZED REPRESENTATIVE
SIGNATURE DATE
39
INSTRUCTIONS FOR CERTIFICATION
1. By signing and submitting this document, the prospective recipient of Federal assistance
is providing the certification as set out below.
2. The certification in this clause is a material representation of fact upon which reliance
was placed when this transaction was entered into. If tit is later determined that he
prospective recipient of Federal assistance funds knowingly rendered an erroneous
certification, in addition to other remedies available to the Federal Government, the
department or agency with which this transaction originated may pursue available
remedies, including suspension and/or debarment.
3. The prospective recipient of Federal assistance funds shall provide immediate written
notice to the person to which this agreement is entered, if at any time the prospective
recipient of Federal assistance funds learns that its certification was erroneous, when
submitted or has become erroneous by reason of changed circumstances.
4. The terms "covered transaction," "debarred," "suspended," "Ineligible," "lower tier
covered transaction," "participant," "person," " primary covered transaction," `principal,"
"proposal; and "voluntarily excluded," as used in this clause, have the meanings set out
in the Definitions and Coverage sections of rules implementing Executive Order 12549.
5. The prospective recipient of Federal assistance funds agrees by submitting this proposal
that, should the proposed covered transaction be entered into, it shall not knowingly
enter into any lower tier covered transaction with a person who is debarred, suspended,
declared ineligible, or voluntarily excluded from participation on this covered transaction,
unless authorized by the department or agency with which this transaction originated.
6. The prospective recipient of Federal assistance funds further agrees by submitting this
proposal that it will include the clause titled "Certification Regarding Debarment,
Suspension, Ineligibility and Voluntary Exclusion Lower Tier Covered Transactions,"
without modification, in all lower tier covered transactions and in all solicitations for lower
tier covered transactions.
7. A participant in a covered transaction may rely upon a certification of a prospective
participant in a lower tier covered transaction, unless it knows that the certification is
erroneous. A participant may decide the method and frequency by which it determines
the eligibility of its principals. Each participant may, but is not required to, check the List
of Parties Excluded from Procurement or Non Procurement Programs.
8. Nothing contained in the foregoing shall be construed to require establishment of a
system of records in order to render in good faith the certification required by this clause.
The knowledge and information of a participant is not required to exceed that which is
normally possessed by a prudent person in the ordinary course of business dealings.
9. Except for transactions authorized under Paragraph 5 of these instructions, if a
participant in a covered transaction knowingly enters into a lower tier covered
transaction with a person who is suspended, debarred, ineligible, or voluntary excluded
form participation in this transaction, in addition to other remedies available to the
Federal Government, the department or agency with which this transaction originated
may pursue available remedies, including suspension and/or debarment.
397 ;3.. .
EXHIBIT C
CERTIFICATION REGARDING DRUG -FREE WORKPLACE ACT REQUIREMENTS
The Contractor certifies that it will provide a drug -free workplace, in accordance with State law and State
Employment Development Department (EDD) Directive No. D907 by:
1. Publishing a statement notifying employees that the unlawful manufacture, distribution,
dispensing, possession or use of a controlled substance is prohibited in the Contractor's
workplace and specifying the actions that will be taken against employees for violation of
such prohibition.
2. Establishing a drug -free awareness program to inform employees about:
a. The dangers of drug abuse in the workplace;
b. The Contractor's policy of maintaining a drug -free workplace;
c. Any available drug counseling, rehabilitation and employee assistance programs; and
d. The penalties that may be Imposed upon employees for drug abuse violations occurring
In the workplace.
3. Making it a requirement that each employee to be engaged In the performance of this
program be given a copy of the statement required by paragraph 1.above.
4. Notifying the employee in the statement required by paragraph 1. that, as a condition of
employment under this program, the employee will:
a. Abide by the terms of the statement, and
b. Notify the Contractor of any criminal drug statute convictions for a violation occurring in
the workplace no later than five days after such conviction.
5. Notifying the County within ten days after receiving notice under subparagraph 4.b. from an
employee or otherwise receiving actual notice of such conviction.
6. Taking one of the following actions, within 30 days of receiving notice under subparagraph
4.b. with respect to any employee who is so convicted by taking appropriate personnel action
against such an employee, up to and including termination.
7. Making a good faith effort to continue to maintain a drug -free workplace through
implementation of the provision of this certification.
CONTRACTOR /AGENCY
NAME AND TITLE OF AUTHORIZED REPRESENTATIVE
SIGNATURE OF AUTHORIZED REPRESENTATIVE
DATE
Exhibit D
U.S. DEPARTMENT OF HOMELAND SECURITY j HOMELAND SECURITY GRANT Dannowu
Table 5 — FY 2007 Allowable Cost Matrix
U.S. DEPARTMENT OF HOMELAND SECURITY J HOMELAND SECURITY GRANT PROGRAM
3 9
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Ua DEPARTMENT OF HOMELAND SECURITY I HOMELAND SECURITY GRANT PROGRAM
'Only select sub - categories within AEL Cat%pbs 3 and 20 are eligible for FY 2007 SZPP
funding. These sedaons induds: 3.1.6, 3.2.2, 3.2.3, 3.2.4, and 20.3.
A-4
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MINE
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Exhibit F
OMB Approval NO.' 4040 -0007
Expiration Date: 0413012008
Aaciioestr_GC _unN.cnNSTRUCTION PROGRAMS
Public reporting burden for this cotladlon of information is estimated to average 15 minutes per response, including time for reviewing
instructions. aearc ling existing data sources, gathering and maintaining the data needed, and completing and raviewlhg the collection of
information. Send comments regerdkV the burden estimato or any other aspect of this coilection of informatlon. Including suggestions for
reducing this burden, to the Office of Management and Budget, Paperwork Reduction Project ( 0348 - 0040), Washington, DC 20503.
PLEASE DO NOT RETURN YOUR COMPLETED FORM TO THE OFFICE OF MANAGEMENT AND BUDGET. SEND
IT TO THE ADDRESS PROVIDED BY THE SPONSORING AGENCY.
NOTE; Certain of these assurances may not be applicable to your projector program. K you have questions, please contact me
awarding agency. Further, certain Federal awarding agencies may requlm applicants to certify to additional assurance&
It such is the case, you will be notified.
As the duly authorized representative of the applicant, l certify that the applicant*
1. Has the legal authority to apply for l assistance
and the Institutional, managwial and
(including finds sufficient to pay the non - Federal share
of project cast) to ensure proper ptannt , management
and f the proldf esai in this^ -'
ap
2. Wig give the awarding agency, the Comptroller General
of the Untied States and. if appropriate. the State.
through any authorized representative. 19OLIp and
the right to examine all reoords' books, papers, or
aw and wil
documents rateted to the l establish a
proper accounting system in accordance with generally
accepted accounting standards or agency directives.
3. WIN establish safeguards to prohibit employees from
using their positions for a purpose that constitutes or
presents the appearance of personal or organizational
conflict of interest, or personal gain.
4. Wiil Iniogtp nd com ate the work within the applicable
time frames rrrece Pt of approval of the awarding
agency.
5. Wilt comply with to Intergovernmental Personnel Act of
1970 (42 U.S.C. 114728.4763) reisong.to prescribed
standards for mark systems for programs funded under
one of the ie statutes or regulations specified In
Appendix A of OPM's Standards for a Mot System of
Personnel Administration (5 C.F.R. 900, Subpart F).
Wig comply with alt Federal statutes relating to
nondiscrimination. These Include but are not ilrnited to.
(a) Title VI of the CNN Rights Act of 1954 (PL 88 -'352)
which prohioks discrimination an the basis of rac% color
or national origin (b) Tile IX of do Education
Amendments of 1972. as amended (20 U.S.C.§§1681-
1683. and 1685 - 1686), which prohibits dieceininatlon on
the bests of swc; (c) Section 504 of the Rehabilitation
Act of 1975. as amended (29 U.S.C. §794), which
prohibits discrimination on the basis of handicaps; (d)
the Age DiscrWhallon Act of 1875. as amended (42 U.
S.C. §§6101 -0107), which prohibits discrimination on
the basis of age; (e) the Drug Abuse Office and
Treatment Act of 1972 (P.L. 92-2551 as amended,
relating to nondiscrimination on the basis of drug
abuse; (Q the Comprehensive Alcohol Abuse and
Aloohohm Prevention, Treatment and Rehablgtation
Act of 1970 (P.L. 91 -616), as amended, relating to
nondiscrimination on the basis of alcohol abuse or
alcoholism; (g) §§523 and 527 of the Public Health
Service Act of 1912 (42 U.S.C. §§290 dd-3 and 290
as- 3). as amended. relating to confidentiality of alcohol
and drug abuse patient records; (h) Tide Vill of the Ova
Rights Act of 1968 (42 U.S.C. 1§3601 at seq.), as
amended, relating to nondiscrimination in the sale,
rental or Manclng of housing; (1) any other
nondleadminadon provisions In the specific statute(s)
under which application for Federal assistance is being
made; arid. (D the requirements of any other
nondtacri inalion statute(s) which may apply to the
application.
Wig comply, or has already compiled. with the
requ inianerds of titles h and IIi-of to Uniform
Relocation Assistance and Real Properly Aoq*Mon
Policies Act of-1970 (P.L. 91.646) which provide for
fair and equitable treatment of persona displaced or
whose property is acquired as a result of Federal or
federatiyadejeted programs. These requlmnents
apply to all irttsreste in real property acquired for
project purposes regardbas of Federal participation In
purchases.
S. Will comply, as applicable, wilt proNstaa of the
Hatch Act (S U.S.C. §§15Q14 508 and 7324-7328)
which "Ste political activities of employees whose
principal employment activities are funded to whole
or M part with Federal funds.
Provbea Edabe WabN ahndwd Form 4 0 (Rw.TM)
Authorized for local Reprodte tion Pren tad by OMB CkGWW M102
9. Will comply, as applicable, with the provisions of the Davis-
Bacon Act (40 U.S.C. § §276a to 27Ba -7), the Copeland Act
(40 U.S.C. §276c and 18 U.S.C. §874), and the Contract
Work Hours and Safety Standards Act (40 U.S.C. §§327-
333), regarding labor standards for federeilyassisled
construction subagreements.
10.
11.
WiN comply, If applicable, with flood insurance purchase
requirements of Section 102(a) of the Flood Disaster
Protection Act of 1973 (P.L. 93 -234) which requires
recipients in a special food hazard area to participate in the
Program and to purchase flood Insurance if the total cost of
-Insurable constnxctlon and acquisition is $10,000 or more.
Will comply with environmental standards which may be
Prescribed pursuant to the following. (a) InstibX n of
environmental quality control measures under Om National
Environmental PONcy Act of 1969 (P.L 91.190) and
Executive Order (EO) 11514; (b) notification of vfoh&V
facilities Pursuant to EO 11738; (c) protection of wetlands
Pursuant to EO 11990; (d) evaluation of flood hazards in
floodplains in accordance with EO 11988; (a) assurance of
Project consistency with the approved State management
Program developed under the Coastal Zone Management
Act of 1972 (16 U.S.C. §§1451 at seq.); (f) conformity of
Federal acdor* to State (Clean Air) Implementation Plans
under Section 176(c) of the Clean Air Act of 1955, as
amended t42 U.S.C_ §§7401 at seq.); (g) protection of
underground sources of drinking water under the Safe
Drinking Water Act of 1974, as amended (P.L 93.623k
and. (h) Protection of endangered species under the
Endangered Species Act of 1973, as amended (P.L 93.
205).
3 9 ;D
12. WIN comply with the Wild and Scenic Rivers Act of
1968 (16 U.S.C. 01271 et seq.) related to protecting
components or potential components of the national
wild and scenic rivers system.
13. WIN assist the awarding agency to assuring compliance
with Section 106 of the National Historic Preservation
Act of 1966, as amended (16 U.S.C. §470), EO 11593
(identification and protection of historic properties), and
the Archaeological and Historic Preservation Act of
1974 (16 US.C. §§469s -1 at seq.).
14. WIN comply with P.L 93-348 regarding the protection of
human subjects Involved in research, development, and
related activities supported by this award of assistance.
15. WE comply with the Laboratory Animal Welfare Act of
1968 (P.L. 89.644, as amended, 7 U.S.C. § §2131 et
seq.) pertaining to the chre, handling, and treatment of
warm blooded aniriihls held for research, leaching, or
other activities supported by this award of assistance.
16. Will comply with the Lead -Based Paint Poisoning
Prevention Act (42 U.S.C. 04801 at seq.) which
Prohibits the use of lead -based paint to construction or
rehabilitation of residence structures,
017. WIN cause to be performad the required financial and
compliance audits in accordance with the Single Audit
Act Amendments Of 1996 and OMB Circular No. M133.
"Audits of States, Local Governments, and Non -Profit
Organizations."
1�18. Will comply with all applicable requirements of all other
Federal laws, executive orders, regulations, and policies
governing this program.
` SIGNATURE OF AUTHORIZED CERTIFYING OFFICIAL . TITLE
toted on submission to Graats.gov
APPLICANT ORGANIZATION ' DATE SUBMITTED
2eted os avbaissioa to Grants.gov
at"Wwd Form 44a IM 7.077 Back
-W
h. .o
WffM
3903•...1
Exhibit G
Friday,
September 1, 2006
Part N
Department of
Homeland Security
6 CPR Part 29
procedures for Handling Critical
Inftwtracture Information; Final Rule
52262 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
AGENCY: Office of the Secretary, DHS.
ACTION: Final rule.
SUMMARY: 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 toll -
free call.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction
II. Major Issues in the February 2004 Interim
A. Indirect Submissions of PCU
B. Definitional Issues Affecting Qualifying
Information
(1) In the public domain
(2) Voluntary or voluntarily
C. Protected and Non - Protected
Information
(2) Portion Marking
(2) Definition of PCH
(3) Source of the Information
(4) Interplay of Sections 214(axi)(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 PCH with Foreign
Governments
F. Emergency Disclosure of PCH
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 29.9
D. PCII Program Administration: Section
29.4
E. Requirements for Protection: Section
29.5
(1) Express Statement on the Information
(2) Oral Statements
(3) Certification Statement
(4) Submission to the Program
F. Acknowledgment of Receipt, Validation,
and Marking: Section 29.8
(1) Presumption of Protection
(2) Marking
(3) Acknowledgement
(4) Determinations of Non - Protected Status
(5) Changes from Protected to Non.
Protected Status
G. SSd guarding of PCII: Section 29.7
H, closure 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— Federaliam
G. Executive Order 12988 —Civil justice
Reform
H. Paperwork Reduction Act of 1995
L Environmental Analysis
PART 29— PROTECTED CRITICAL
INFRASTRUCTURE INFORMATION
Table of Abbreviations
In this document, the followin
abbreviations are commonly used:
APA— AdminisRative Procedure Act
CII— Critical Infrastructure Information
CII Act— (1ritical Infrastructure Information
Act of 2002
DHS— Departnent of Homeland Security
FOIA— Fresdom of laformation Act
HSA Homeland Security Act of 2002
]SAO— Information Sharing and Analysis
Organization
NPRM --- Notice of Proposed Rulemaking
PCII— Protected Critical Infrastructure
Information
PC MS— 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
plying. Preparedness, warnings and
other purposes. The CII Act enables
DHS to collaborate effectively to protect
America's critical infrastructure, eighty -
five percent of which is in the private
sector's hands. The CII Act authorized
DHS to accept information relay 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
Homeland Security Act of 2002 (HSA) Pub. L
108-275, tit. n, subtit. s, w— 211,116 Stal. 2135,
2150 CNQV. 25-2002) (a U.S Q 131 -134L
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 Iafiastructure
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:
e 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(8));
e Requires that PCB will be shared
only for the Homeland Security ,
purposes specified in the statute and in
no avant for other collateral regulatory
purposes (section 29.3(b));
e Provides the PCB Program Manager
with the flexibility to designate certain
types of infrastructure information as
presumptively valid PCH in order to
accelerate the validation process and
provide greater certainty to potential
submitters (section 29.60);
• Provides that submissions not
validated as PCH 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(6), (d)); and
• Simplifies the information
submission process (section 29.8).
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 1dhspuWic1intawpp1
editorial /editori 2L0438.xm1.
Federal Register / Vol. 71, No. 170/Friday, September 1, 2006/Rules and
IL 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
foll owing section identify specific
issues raised by commanters and
describe how these issues have been
resolved.
A. Indirect Submissions of PCIZ
The preamble to the February 2004
Interim Rule discussed "indirect
submission" of CH. 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 29.6(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 ra%rences to indirect
submissions from the rule and made
clear that submissions must be made to
the PCH Program Manager or the PCIII
Program Manger'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 flacilitats infi n etion
sharing with the Federal government
thro Iug established relationships
between owners of the nation's critical
infrastructure and those Federal
agencies that are sector leaders for
particular infrastructure. Accordingly,
after the PCH Program had become
operational, and pending further
analysis, the fine 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
$For sae of r lawns, all raison" in this Seel
role to sections or paragnpW v4diout [all citation
aster to sweoau and pangaphs of p —u*tsd a
CPR part 29.
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 PCM 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-
"
pon considering these comments,
DHS has concluded that certain Federal
personnel outside the Program
Mtmagoes Office at DHS C'Program
Office'), including certain DHS field
re resentatives and certain personnel In
other federal agencies, should be
permitted to receive and forward CII to
the program Manager, but that (absent a
categoncal inclusion, discussed below
at section M.F.) only the PCH 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 requiremams of
this final rule. The PCH Program
Manager will normally take this step
only when the particular governmental
entity: (1) Has appointed a PCH Officer;
(2) has the necessary staff, who are
trained in PCa procedures; (3) has
implemented measures to comply with
this final rule; and (4) has agreed that
the pC1I Program Office may at any time
vertfy that egency'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(e)(i) of the
CII Act (5 U.S.C. 133(a)(1)). "critical
infrastructure information" that is
"voluntarily submitted" to a "covered
Federal agency" U.s., 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
52263
Act (6 U.S.C. 131(3)) defines "critical
inhastrudure information" to mean, in
pertinent part, "information not
customarily in the public domain." and
section 212(7) of the CU Act (5 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 an 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)(6)), 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'l to compel access
to or submission of the information.
Four commenters argued fora 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 2,12(7)CAI of the CII
Act Co 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)(it)) an both retrospective in
nature. Both employ the past tense and
both apply to actions before the data
that information is submitted to the PCII
52264 Federal Register /Vol. 71, No. 170 /Friday, September 1, 2006 /Rules and Regulations
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
proceedigs" is defined in the CII Act,
and the CH 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.
231(7)(A), 133(a)(1)). Section
212(7)(B)(ii) of the CII Act (6 U.S.C.
131(7)(Bxii)), incorporates the concept
of "voluntary submissions," which, by
its definition, involves onl submission
to DHS. Subsection 212(7)&(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
been previously submitted to or relied
upon by any Federal agency other than
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.
Acc y, the definition of
Prntecte Critical Infrastructure
Information." or "PCH, ' in section
29.2W 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 Shari and
Analysis Organization (ISAO might
submit CII. DHS recognizes that
Information may be submitted on behalf
of others by an ISAO or trade
39.)•.
association. DHS agrees and section 29.2
has bean 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 re ading
the meaning of section 214(a)(i (C) of
the CII Act ES 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 DHSI 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 litfgation.
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 sub 'a 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 1 e would permit civil
discovery of 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 for
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
-Z
J `
Federal Register / Vol. 71, No. 170/Friday, September 1, 2006 / Rules and Regulations 52265
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 then
the PCII can present a different question
under section 214(c).
(S) Good Faith Submission of CII
Section 29.2(u) was inserted in
response to a commenter's request for a
definition of "good faith." This new
section des that any information
that d be reasonably considered CII
information, as defined in the
regulations, is submitted in good faith.
The subsequent validation of such
information as PCH by the PCH Program
Office, or the inclusion of such
information in a category of pre -
validated information, definitively
astabliahes the submission as having
been made in good faith.
(e) 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 authorised recipients
of PCII, with the submitting person or
entity about the submittal or the
submitted information. Part of the
ose of the CII Act is to encourage
and Nn It with DHS
regarding CII It would defeat the
purpose of the Act to declare such
anges as outside the context of PCII.
Certain communications as specifically
intended to perform the functions
enumerated in sections 29.6(d), (e)(2)
and (f), 29.8(9), 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)(0(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-bshalf of a submitting entity.
about a CII submission by that person or
entity.
D. Loss of Frotected Status
Section 29.8(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 o is or her designee
determined that "the information was
customarily in the public domain, is
publicly available through legal means,
or is required to be submitted to DHS by
Federal law or ggulation. ' 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"
iras 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
Fe oral law or regulation" has been
eliminated. This change has been made
because the definitional exclusion in
section 212(7)(A) of the C1I 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.
S. Shoring of PCII With Foreign
Governments
Ten commenters expressed concerns
about the February 2004 Interim Rule's
provision on "Disclosure to foreign
governments" in section 29.8Q). 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(8) 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(8) of the CII Act.
Accordingly, former section 29.8Q) Is
unnecessary and has been emitted.
A,grnergencyDisclosure of PCU
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
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
parson 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(8) of
the CII Act (6 U.S.C. 133(g))).
M. 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 avallable" 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
A(age in section 214(g)(1) of the CII
6 U.S.C. 233(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
cane, 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(8)(2) of the
CII Act (6 U.S.C. 133(8)(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 11 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
other types of homeland security
.I
52266 Federal Register /Vol. 71, No. 170 /Friday, September 1, 2006 /Rules and Regulations
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 tha statute
and these regulations to enable the
owners of the information to receive the
full protections for their CII provided for
in the CII Acct. 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.
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
liif ustructure 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
Informotion Program, cr PCII Program.
The previously defined term "Critical
Infrastructure Information Program•, has
been replaced with the more descriptive
term " Protected Critical Infiastructure
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 H.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.
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 C11 Act. This term,
which conforms with the usage at 6 CFR
29.5(a), is more apt then 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 29.8
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 CH 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
C11 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 z41(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) (8 U.S.C. 133(p)
(penalties). Section 213(a)(i)(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
.•,� Vii � •
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 (PCMAS) Is the responsibility of
the PCII Program Manager.
Three commenters suggested that the
PCIMS contain only what could be
called the tracking data and that the
actual PCII should be kept elsewhere.
The a, ons will not be adopted.
The track ng 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 ob tion to safeguard all
PCII. Accordingly, DHS will maintain
PCII according to a distributed model
with information stored in a number of
databases including the PCIDNS.
B. Requirements for Protection: Section
29.5
Maven commenters addressed various
aspects of the requirements for
protection, and a substantial number of
changes have been made to section 29.5.
(i) Express Statement on the
Information
As the c:omments , the
"Information and recd " provided as
PCII are occasionally not easily
susceptible to label' with en "express
statement." requires for a proper
submission. For that reason, the final
rule provides for the use of a separate,
Federal Register / Vol. 71, No. 170/Friday, September 1, 2006/Rules and Regulations 62267
written "exprese statement" as set forth
in paragraph (a)(3)(i).
(2) Oral Statements
Two comments were received
regarding oral submissions during an
ongoing crisis. These comments
suggested that, where there might be
manyy submissions, either the
requitau►eMa 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 ca acity to the
extent practical. The r nt ent for
both an express
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
M on a case-by -case basis, after
CII submission, in whatever form.
Further, DHS has added a section to
make clear that electronic submissions
era 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 �t there may be public
b� 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
Pr Men"Ut r.
ne cosnmeatesu� isrued��ated that
submitters be req�m to identify the
steps that the submitter itself takes to
protect the CU. The commenter
suggested this information would assist
the PCII Program Manager in
determining is 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 O ce has found necessary
from an operating standpoint. For
instance, rM Program office needs to
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 fbr 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 H.A. This process effectively
responds to a commenter that
questioned the internal DHS receipt of
CU.
Another commenter asked for special
consideration for CU 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 CU, 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(1) that addresses this issue and
would be pleased to confer with any
potential submitter regarding a possible
submission.
P. Aaknow/edgment 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.
(i) Presumption of Protection
Three commenters expressed their
support for the presumption of
protection afforded by this provision. To
conform to the definition of PCII in
section 29.2, new language clarifies that
voluntarily submitted Cif 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
hi blight the criminal and
alministrative penalties that could
result from unauthorized release. This
statement was omitted from the
February 2004 Interim Rule provision.
The last sentence of markkiing .
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 then in
accordance with its own procedures.
That is not intended.
(3) Acknowledgement
A change to paragraph (d) adjusts the
February 2004 interim Rule statement
re drag 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
Pal 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
...4
52288 Federal Register /Vol. 71, No. 170/Friday, September 1, 2008 /Rules and Regulations
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 then 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)(H),
DHS does not accept the suggestion of
two commenters that such an
explanation be made oblig
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(x)(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 This section was revised extensively
"categorical inclusions" in response to based on comments received from
comments. This provision clarifies the sixteen commenters and on the
Pr Manager's authority to operating experience of the PCII
e lish categories of information for Program Office.
which PCII status will automatically In response to two comments, a
apply without a separate act of clarifying cross - reference in paragraph
validation by the PCII Program Office. (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
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 securi T.
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 P=. Section 29.8
(5) Changes From Protected to Non -
Protected Status
Changes to paragraph (g) regarding a
change in status from protected to non-
protected 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
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)(B)(ii) and (iii) of the CH Act (5
U.S.C.133(a)(1)M(ii) and (iii)), PCII
may not be used by those governments
for purposes other than pro
c
tectills
ritical infrastructure or protects
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 submittm 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
Profeat m Manager. This change was
ma o 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, )oral and tribal governments,
these arrangements, except in ma ant
circumstances will be very specific, will
regy#e 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 CH 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
fo r gulatory p ores.
parsgi�aph (ffthe first change
clarifies that State. local and tribal
39.3.3 • . .
Federal Register / Vol. 71, No. 170/Friday, September 1, 2006 / Rules and Regulations 52269
contractors can receive Pal under the
This suggestion will not be adopted.
Such a requirement could be
further changes were not deemed
necessary However, in reviewing the
soma conditions as Federal contractors.
As in the case of Federal contractors,
burdensome, and moreover, is
PCU will only be
paragraph it is clear that sections of the
CII Act other than 214(a)(1)(D) and CC)
State, local, and tribal contractors are
agents of a governmental entity, carrying
the functions on behalf of the
unnecessary.
distributed as required for the
contractor's use. The single certification
(8 U.S.C. 133(a)(1)(1)), (B)), for example,
were applicable to the general category
out
government in furtherance of its mission
and under its direction. Therefore, DHS
does not entitle the contractor to all
PCIL but only PCH the governmental
of "Exceptions f disclosure. The
language subparagraph
to make clear that it
does not consider State, local and tribal
contactors to be precluded from
agency determines the contractor needs.
Another commenter asked for
language
therefore modified
applied to entities and persons other
than officers and employees of the
receivi PCII as y other ply; f
them an
clarification of what type of
would constitute the authorization from
United States.
rather, DHS considers
extension of the State, local or tribal
the submitter to enable sharing of PCII.
The relevant question is how DHS will
Language was added to make
paragraph (f)(i)(i)(A) consistent with the
governmental entity.
The second change is to employ a
defined in section 29.2, to replace
ask for permission, and DHS envisions
that the request will be in writing, state
position that State, local, end tribal
investigations or prosecutions should be
term
the subjective term, "purposes of DHS"
the term "purposes of the CII Act."
the tracking number previously
provided to the submitter, identify the
coordinated by a Federal law
enforcement official. It also recognizes
with
This change also better lends itself to
pCQ Progreso Office certifications of
requester and the intended recipient,
and ask for a response within a certain
that PCA could be used in furtherance
of a government investigation or
contractors l Federal agendas other
DHS. All contactor employees
number sotfe With the changes discussed
l
disclosure to the foreign government.
than
working on PCII Program matters and
having to 1C=, rather than the
above, a change was made in paragraph
(d)(1) to eliminate the idea that consent
the same requirement for coordination
by a Federal law enforcement official.
limited
access
more abstract "identified category„ of
to further disclosure could be made by
"on whose behalf' information
Paragraph (f)(i)(i)(C) has been
to the disclosure of information by an
employees, will be required to sign a
nondisclosure agreement (NDA). Also
someone
was submitted.
A comment questioned the statement
officer or employee of the United States,
as this paragraph fits clearly within the
added is a provision that the NDAs will
be in a form prescribed by the PCII
in the preamble to the February 2004
Interim Rule that State, local and tribal
confines of section 214(a)(1)(D) of the
CII Act (8 U.S.C.133(a)(i)(D)).
Program Manager. Based on PCII
Program Office operating experience.
gave�rnments "will be asked to track
further disclosures" and suggested the
Section (f)(3) of the 2004 Interim Final
Rule referred to the Whistleblower
reference to "contractor' signature of
NDAs has been deleted; contractors will
to be obliged to by
requirement to track should remain with
DHS. As the comment noted, any
Protection Act and has been omitted
because is merely restates the law of the
continue agree,
further distribution by State, local, and
land. Section (f)(4) of the February 2004
contract, to comply with all
programmatic requimments,
Additionally, as discussed above in
tribal governments requires submitter
permission,
Interim Rule has been deleted because
it DHS deemed unnecessary. in
section II.C, a change was made to
employees of Federal, State,
DHS. DHS will um'm� sly
Y P
tracking requirement on State, local and
paragraph (g) to more accurately reflect
permit
local. and tribal contractors who are
tribal governments and will also have its
the intention of the statutory language
the Ca Act
engaged in the performance of services
in support of the purposes of the CII
own records of permissions in the
PCIff�•
in section 214(e)(i)(if)(i) of
As discussed in Section 11 psrgraph
Act, to communicate with a submitting
of a
Changan is paragraph (e) of this
section have been explained in detail in
(j) has been deleted in its entirety.
Further, paragraph (1ci has been deleted
person or an authorized parson
submitting entity about their submittal
section II above. An additional change
because it improperly rested sole
or information when authorized by the
F Manager or a PCII Program
PGII
to paragraph (e) not discussed above is
that the language now allows not only
authority to request submitter consent
for further dissemination in the PCII
am
� . The previous
i disclosure to any of
the Directorate for Preparedness, but
also other Federal agencies, as well as
Program Manager, thus limiting
flexibility and effectiveness, especially
the contractors' components and the
State, local and tribal government
in exigent circumstances.
reference to "additional employees„
uumecsasary uug
entities, to use PC 31 in preparing
advisories and similar commuaicatiorus.
L Investigation and Reporting of
violation of PCII Procedures: Section
��
ty for contractors, which was
The list of thimga to be protected from
disclosure has been rephrased in the
29.9
noted by one commenter. These
provisions have been replaced by the
disjunctive, correcting the unduly
conjunctive which
Six comments expressed that
comments
there were no provisions for the
more comprehensible but sufficiently
strict prohibition on disclosing to "any
restrictive phrasing,
was noted by one commenter. The final
imposition of penalties or sanctions on
State, local and tribal government
other party." This is the term used in
change adds language that permits
Federal, State, local and tribal
employees or on contractors. The
section 29.8(d)(1), which prohibits
State, local, and tribal vernments from governmental entities to contact
disci to confer if there is
provisions of subsection (d) reflect the
language of section 214(f) of the CII Act
making disclosures to any other party
not already authorized to receive such
submitters p
a question about the PCII to be used in
(e U.S.C. 133(f)). This section applies
unambiguously only to officers and
informatiaLf,
A commenter suggested that a PCII
Officer certify the distribution of PCII to
the advisory, alert, or warning.
A comment suggested that psagraph
tf)(1)(i), which limits use or disclosure
employees of the United States. DHS
has no authority to make these
Federal contractors on a specific PCII
of PCII by Federal employees except as
is important enough to
provisions applicable to anyone else.
However, DHS will place in the MOAs
case -bye basis rather than based on
a certification that the contractor was
performing services on behalf of DHS.
authorized,
warrant its awn rule provision. The
comment was considered; however,
for State, local and tribal governments,
when used, or when an arrangement
52270 Federal Register / Vol. 71, No. 170/Friday, September 1, 2006 /Rules and Regulations
It. th
o er an an MOA is used, then to the V. Consideration of Various Laws and
extent practicable, language that will Executive Orders
require the Slate, local, or tribal A. Administrative Procedure Act
government to consider breaches of the
agreements by employees as matters DHS has determined that good cause
subject to the criminal code or to the exists to make this regulation effective
applicable employee code of conduct for upon publication in the Federal
that jurisdiction. While States do not Register under 5 U.S.C. 553(d)(3). This
have laws that were written specifically final rule clarifies ambiguities in the
with PCII in mind, they do have laws Y February 2004 Interim Rule that were
that govern theft, conspiracy, trade identified by the public comments and
secrets, and the like, which could apply has the advantage of taking into
to employees and to contractors as well consideration operating experience with
The CII Act does not limit an other submitters gained since the February
Y 2004 Interim Rule became effective on
enforcement mechanism. the CII Act February 20, 2004. DHS believes that
adds a specific criminal enforcement submitters are more likely to provide
provision applicable to Federal information that qualifies for protection
employees. under the CH Act of 2002 when the final
A commenter suggested that this rule goes into effect. Such PCII would
section should specifically require that help DHS implement security measures
the DHS Inspector General, the PCII and issue warnings. After considering
Program Manager, or the Preparedness the likelihood that valuable information
Security Officer investigate is now being withheld because of
unauthorized disclosures by State, local concern and confusion as to how it
and tribal governments. As previously might be handled under the February
g r Y 2004 Interim Rule, and the possibility
noted, the relevant MOAs or alternative that this information could be use in
arrangements will generally provide for deterring or responding to a security
DHS to monitor all State, local and incident, the Department has concluded
tribal governments with respect to their that good cause exists for making the
compliance with the guidance regarding regulation effective immediately.
handling PCII.
A commenter asked whether DHS had B. Executive Order 72866 Assessment
considered the applicability of the DHS is required to implement this
Privacy Act of 1974, 5 U.S.C. 552a, to rule under the Critical Infrastructure
any part of the submissions process. Information Act of 2002, Title II,
DHS has considered and continues to Subtitle B, of the Homeland Security
consider the interrelationship between Act of 2002 (6 U.S.C. 211 et seq.). This
the CII Act and the Privacy Act, and, rule is considered by DHS to be a
through the Program Office and the DHS significant regulatory action under
Privacy Officer, will ensure that the PCII Executive Order 12866, 58 FR 51735
program conducts all activities related (Oct. 4. 1993). Regulatory Planning and
to the PCII Program in conformance Review, section 3(f). Accordingly, this
with the Privacy Act. 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
N. 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
F 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
reader.
with this regulation. Recipients of PCII
must follow the procedures established
in this regulation and as specified in
agreements with the PC 31 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 one-
time decision process to determine
whether participation is appropriate,
-and if so, the establishment of internal
opera procedures. A legal review of
those su mitters' 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 CH will probably
read the applicable procedures posted
on the DHS Web site and have no non-
recurring costs. Recurring expenses for
submitting entities could include the
cost of transmitting the CH, office
supplies, costs associated with internal
marking of retained copies of CM, 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 requited 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 par 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
Federal Register / Vol. 71, No. 170/Friday, September 1, 2006/Rules and Regulations 52271
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 keepin systems. These costs
as 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 CSI 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
caukrophkc. 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.
Moneterily. the benefit might be
calculated as the avoidance of the
reconstruction cost of the fadlity
damaged and the loss in = --mmercial
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.
C. RegulatoryF/exibility Act
The Regulatory Flexibility Act (5
U.S.C. 801 st seq.) (RFA) requires an
agency to review ations to assess
their impact on 1 entities. An
agency must conduct a regulstory
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.
Many of the entities expected to
voluntarily submit CH 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 as
organizations or any other small entities
that provide critical infrastructure, such
as telephone or a actric 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 CH 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 to 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.
B. Small Business Regulatory
EnforcemantAct of 1998
This rule is not a major rule, as
defined by section 804 of the Small
Business Regulatory Enforcement Act of
199e. 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 fore�'gn
based 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
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 pprovided 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. Mmutive Order 12988 —Cavil 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 ONE 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.
L 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 man
on the quality of the hu
environment.
Ust of Subjects in a CFR Part 29
Confidential business information,
Reporting and recordkeeping
requirements.
Authority and Issuance
■ For the reasons discussed in the
preamble, a CFR part 29 is revised to
read as follows:
PART 29— PROTECTED CRITICAL
INFRASTRUCTURE INFORMATION
Sec.
.1
52272 Federal Register / Vol. 71, No. 170/Friday, September 1, 2006 / Rules and Regulations
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.
29.6 Disclosure of protected Critical
Infrastructure Information.
29.9 Investigation and reporting of violation
of PCSI procedures.
Authority: Pub. L. 107- 296,115 Stat. 2135
(6 U.S.C. 1 at seq.); 5 U.S.Q 301.
§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 CH;
(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 sharurg of such
information with State and local
governments pursuant to section 214(a)
through (g) of the HSA.
(4) rho 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
authorized to handle, use, or store PCII
or that otherwise accept receipt of PCIL
§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 Ini ostructum 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 inf wtructure or protected
systems by either physical or computer-
based 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 pest assessment, pro)ectlon, 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 Sliming and Analysis
Organisation, 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
purposea of.
(1) Gathering and analyzing CIl 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
30
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
p oses s ecified 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.
(i) 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 ProF m Office are delegated by
the Program Manager, as determined on
a case -by -case basis.
(g) Protected Cddcal Infrastructure
Information, or PM means validated
CII, including information covered by e
CPR 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 CI1, 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
Federal Register / Vol. 71, No. 170/Friday, September 1, 2006/Rules and
purpose, and any information,
statements, compilations or other
materials reasonably necessary to
explain the CIL put the CII in context,
describe the importance or use of the
CH, when accompanied by an express
statement as described in a CFR 29.5.
(h) Protected Critical lafrastcucture
Information program, or PCII Program,
manna the progrom implementing the
CH Act, including the maintenance,
management, and review of the
information provided in furtherance of
the sotections provided by the CM Act.
(iFPmtected aystam has the meaning
set forth in section 212(6) of the CU Act,
and means any service, physical or
computerbased system, process, or
procedure that directly or indirectly
affects the viability of a facility of
critical infrastructure and includes any
physical or computer4mwed 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.
0) purposes of the C17Acthas 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
p m Re latory raceeding, as used in
Section 212(7) .Tithe CU Act and these
rules, means administrative proceedings
in which DHS is the adjudicating entity,
and does not Include any form or type
of story proceeding or other matter
de of DHS.
0) State has the same meaning set
forth in section 2 of the Homeland
Security Act of 2002 and mesas any
State of the United States, the District of
Columbia, the Commonwealth of Puerto
Rico, the Virgin Islands, Guam,
American Samoa, the Commonwealth
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 En to the
DHS PCII Program Manager, or the PCII
Program Manager's designee, as set fortl
herein.
(n) Submitted in good faith means an
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 PCH by virtue of a
catagMcal inclusion identified by the
Program Manager pursuant to section
214 of the C11 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(x)(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 Sled, pursuant to section 12(i)
of the Securities Exchange Act of 1934
(15 U.S.C. 781(1)), 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
licensinf or permitting determination
are not' volunterily 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
CPR Part 25 will also be considered a
voluntary submission.
(p) The term used directly by auch
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
of CU 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 an drafts or copies of
PCII retained by the submitter,
including the opinions, evaluations,
analyses and conclusions prepared and
submitted as CU, as evidence at trial or
Y
In any pretrial or other discovery,
notwithatandingwhather the United
Stater, its agencies, officers, or
employees is or are a party to such
proceeding.
;29.3 Erh of of provlslons.
(a) Freedom of Information Act
disclosure exemptions. Information the
52273
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 PCH 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 uraany other collateral regulatory
C pCII without
rogram Manager and o the of
submitting person or entity. The PCII
Program Manager or the PCII Program
Manager's designee shall not share PCII
with Pederal, State or local government
agencies without instituting appropriate
measures to ensure that PCII is used
only for appropriate purposes. IhIraftructam
nfoormationProtected m nietrodon.
(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 PCil 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
PCH Program;
(2) Commit resources necessary for
the effective implementation of the PCII
(Ensure that sufficient personnel,
including such detailess 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 ofPC,f Cffi establish
e
PCH Program Manager
procedures to ensure that each DHS
component and each Federal, State, or
I ocal entity that works with PCH
appoint one or more employees to serve
as a PCII Officer in order to cagy out the
t responsibilities stated in paragraph (d)
• J
o is section. Persons appointed to
serve as PCII Officers shall be fully
familiar with these procedures.
(d) Responsibilities of PCII Offlcers.
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 em
(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 PC H Program Manager may
require the completion of appropriate
background investigations of an
individual before granting that
individual access to any PCII.
120.5 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;
(21 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, preenphon, 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
52274 Federal Register /Vol. 71, No. 170 /Friday, September 1, 2006 /Rules and Regulations
f th'
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
(if) 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 PC H 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 e-
mail 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
Pr am 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 Pal Program
Manager's designee and is marked as
required in 6 CFR 29.6(c).
(d) All submissions seeking PCIl
status shall be presumed to have been
submitted in good faith until validation
or a determination not to validate
pursuant to these rules.
$ 20.6 Acknowledgment of receipt,
validation, and marking.
(a) Authorized of j3cials. 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 cote orical
inclusions pursuant to 6 CFR 29.6g(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 a 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
PC IL 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 Pro gram 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 PCIII. No CII submission will
lose its presumptive status as PCII
except as provided in 8 CFR 29.8(al
(c1 Marking of information. All TCQ
shall be clearly identified through
markings made by the PC31 Program
Office. The PCII Program Office shall
mark PC33 materials as follows: "This
document contains PCII. In accordance
with the provisions of 8 CPR 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
398
Federal Register / Vol. 71, No. 170/Friday, September 1, 2006 / Rules and Regulations 52275
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
i*rmadon. The PM Prorem Office or
the PCII Program Manager a 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 CH, by the
mesas of delivery prescribed to
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 and submission, as
referenced in 8 CPR 29.5(a)(3)(ii);
(2) Enter the appropriate date into the
PCI M3 as required in a CPR 29.4(9);
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
Manam+s designees.
(e) Dalidation of information. (1) The
PCII Program Manager shall be
responsible for reviewing all
submissions that request n
under the CII Act. The I Program
Manager shall review the submitted
Information as soon as practicable. Ii a
final determination is made that the
submitted information meats the
requirements for protection, the PCII
Program Manager shall ensure that the
information has bean marked as
required in paragraph (c) of this section,
notify the submitting person or entity of
the determination, and disclose it only
pursuant to a CPR 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:
0) 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 complate the
requirements of 8 CFR 29.5(a)(4) or
further explain the nature of the
information and-the submitting person
or entity's basis for believing the
Information qualifies for protection
under the CH 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;
($) Notify the submitting person or
enti that any respponse 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 CH 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
eats
(H) Nthe 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 (9)(2)(1) 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 shell destroy
the information within 30 days. This
process to 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 Infiastructune 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
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 PCIl to non -
PCII. Once information is validated,
only the PCII Program Office may
change the status of PCII to that of non-
PCII 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 C1I
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 PM under a CFR 29.8.
129.7 9a1epu*rd1ng oI 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 eaut circumstances.
(c) Use and Storage. When PCII is to
the'physical possession of a person,
reasonable steps shell 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 PCH may be
reproduced to the extent necessary
41
52276 Federal Register /Vol. 71, No. 170 /Friday, September 1, 2006 /Rules and Regulations
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.
(0 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.
129.8 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 sha ' The PCII Program
Manager dr 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 infrestructure or protected
systems. or in furtherance of an
Investigation or the prosecution of a
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) Disclasure 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 performeace 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
deg ee.
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
3 9 I , 6'
J
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.
(6) 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 ft in 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 whirdeblower
protection: -4'1) Bkceptions for
disclosure. (1) PCII shall not, without the
written consent of the person or entity
submitting such information. be used or