[Code of Federal Regulations] [Title 32, Volume 6] [Revised as of July 1, 2006] From the U.S. Government Printing Office via GPO Access [CITE: 32CFR2003.20] [Page 507-510] TITLE 32-NATIONAL DEFENSE CHAPTER XX--INFORMATION SECURITY OVERSIGHT OFFICE, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION PART 2003_NATIONAL SECURITY INFORMATION_STANDARD FORMS--Table of Contents Subpart B_Prescribed Forms Sec. 2003.20 Classified Information Nondisclosure Agreement: SF 312; Classified Information Nondisclosure Agreement: SF 189; Classified Information Nondisclosure Agreement (Industrial/Commercial/Non-Government): SF 189-A. (a) SF 312, SF 189, and SF 189-A are nondisclosure agreements between the United States and an individual. The prior execution of at least one of these agreements, as appropriate, by an individual is necessary before the United States Government may grant that individual access to classified information. From the effective date of this rule, September 29, 1988, the SF 312 shall be used in lieu of both the SF 189 and the SF 189-A for this purpose. In any instance in which the language in the SF 312 differs from the language in either the SF 189 or SF 189- A, agency heads shall interpret and enforce the SF 189 or SF 189-A in a manner that is fully consistent with the interpretation and enforcement of the SF 312. (b) All employees of executive branch departments, and independent agencies or offices, who have not previously signed the SF 189, must sign the SF 312 before being granted access to classified information. An employee who has [[Page 508]] previously signed the SF 189 is permitted, at his or her own choosing, to substitute a signed SF 312 for the SF 189. In these instances, agencies shall take all reasonable steps to dispose of the superseded nondisclosure agreement or to indicate on it that it has been superseded. (c) All Government contractor, licensee, and grantee employees, or other non-Government personnel requiring access to classified information in the performance of their duties, who have not previously signed either the SF 189 or the SF 189-A, must sign the SF 312 before being granted access to classified information. An employee who has previously signed either the SF 189 or the SF 189-A is permitted, at his or her own choosing, to substitute a signed SF 312 for either the SF 189 or the SF 189-A. In these instances, agencies, with the cooperation of the pertinent contractor, licensee or grantee, shall take all reasonable steps to dispose of the superseded nondisclosure agreement or to indicate on it that it has been superseded. (d) Agencies may require other persons, who are not included under paragraphs (b) or (c) of this section, and who have not previously signed either the SF 189 or the SF 189-A, to execute SF 312 before receiving access to classified information. A person in such circumstances who has previously signed either the SF 189 or the SF 189- A is permitted, at his or her own choosing, to substitute a signed SF 312 for either the SF 189 or the SF 189-A. In these instances, agencies shall take all reasonable steps to dispose of the superseded nondisclosure agreement or to indicate on it that it has been superseded. (e) The use of the ``Security Debriefing Acknowledgement'' portion of the SF 312 is optional at the discretion of the implementing agency. (f) An authorized representative of a contractor, licensee, grantee, or other non-Government organization, acting as a designated agent of the United States, may witness the execution of the SF 312 by another non-Government employee, and may accept it on behalf of the United States. Also, an employee of a United States agency may witness the execution of the SF 312 by an employee, contractor, licensee or grantee of another United States agency, provided that an authorized United States Government official or, for non-Government employees only, a designated agent of the United States subsequently accepts by signature the SF 312 on behalf of the United States. (g) The provisions of the SF 312, the SF 189, and the SF 189-A do not supersede the provisions of section 2302, title 5, United States Code, which pertain to the protected disclosure of information by Government employees, or any other laws of the United States. (h)(1) Modification of the SF 189. The second sentence of paragraph 1 of every executed copy of the SF 189 is clarified to read: As used in this Agreement, classified information is marked or unmarked classified information, including oral communications, that is classified under the standards of Executive Order 12356, or under any other Executive order or statute that prohibits the unauthorized disclosure of information in the interest of national security; and unclassified information that meets the standards for classification and is in the process of a classification determination as provided in sections 1.1(c) and 1.2(e) of Executive Order 12356, or under any other Executive order or statute that requires protection for such information in the interest of national security. (2) Scope of ``classified information''. As used in the SF 312, the SF 189, and the SF 189-A, ``classified information'' is marked or unmarked classified information, including oral communications; and unclassified information that meets the standards for classification and is in the process of a classification determination, as provided in sections 1.1(c) and 1.2(e) of Executive Order 12356 or any other statute or Executive order that requires interim protection for certain information while a classification determination is pending. ``Classified information'' does not include unclassified information that may be subject to possible classification at some future date, but is not currently in the process of a classification determination. (3) Basis for liability. A party to the SF 312, SF 189 or SF 189-A may be liable for disclosing ``classified information'' only if he or she knows or reasonably should know that: (i) The marked or unmarked information is [[Page 509]] classified, or meets the standards for classification and is in the process of a classification determination; and (ii) his or her action will result, or reasonably could result in the unauthorized disclosure of that information. In no instance may a party to the SF 312, SF 189 or SF 189-A be liable for violating its nondisclosure provisions by disclosing information when, at the time of the disclosure, there is no basis to suggest, other than pure speculation, that the information is classified or in the process of a classification determination. (4) Modification of the SF 312, SF 189 and SF 189-A. (i) Each executed copy of the SF 312, SF 189 and SF 189-A, whether executed prior to or after the publication of this rule, is amended to include the following paragraphs 10 and 11. 10. These restrictions are consistent with and do not supersede, conflict with or otherwise alter the employee obligations, rights or liabilities created by Executive Order 12356; section 7211 of title 5 U.S.C. (governing disclosures to Congress); section 1034 of title 10 U.S.C., as amended by the Military Whistleblower Protection Act (governing disclosure to Congress by members of the military); section 2302(b)(8) of title 5 U.S.C., as amended by the Whistleblower Protection Act (governing disclosures of illegality, waste, fraud, abuse or public health or safety threats); the Intelligence Identities Protection Act of 1982 (50 U.S.C. 421 et seq.) (governing disclosures that could expose confidential Government agents), and the statutes which protect against disclosure that may compromise the national security, including sections 641, 793, 794, 798, and 952 of title 18 U.S.C., and section 4(b) of the Subversive Activities Act of 1950 (50 U.S.C. section 783(b)). The definitions, requirements, obligations, rights, sanctions and liabilities created by said Executive Order and listed statutes are incorporated into this Agreement and are controlling. 11. I have read this Agreement carefully and my questions, if any, have been answered. I acknowledge that the briefing officer has made available to me the Executive Order and statutes referenced in this Agreement and its implementing regulation (32 CFR 2003.20) so that I may read them at this time, if I so choose. (ii) The first sentence of paragraph 7 of each executed copy of the SF 312, SF 189 and SF 189-A, whether executed prior to or after the publication of this rule, is amended to read: I understand that all classified information to which I have access or may obtain access by signing this Agreement is now and will remain the property of, or under the control of the United States Government unless and until otherwise determined by an authorized official or final ruling of a court of law. The second sentence of paragraph 7 of each executed copy of the SF 312 (September 1988 version), SF 189 and SF 189-A, which reads, ``I do not now, nor will I ever, possess any right, interest, title or claim whatsoever to such information,'' and whether executed prior to or after the publication of this rule, is deleted. (i) Points of clarification. (1) As used in paragraph 3 of SF 189 and SF-189-A, the word ``indirect'' refers to any situation in which the knowing, willful or negligent action of a party to the agreement results in the unauthorized disclosure of classified information even though the party to the agreement does not directly communicate, deliver or transmit classified information to a person who is not authorized to receive it. (2) As used in paragraph 7 of SF 189, ``information'' refers to ``classified information,'' exclusively. (3) As used in the third sentence of paragraph 7 of SF 189 and SF 189-A, the words ``all materials which have, or may have, come into my possession,'' refer to ``all classified materials which have or may come into my possession,'' exclusively. (j) Each agency must retain its executed copies of the SF 312, SF 189, and SF 189-A in file systems from which an agreement can be expeditiously retrieved in the event that the United States must seek its enforcement or a subsequent employer must confirm its prior execution. The original, or a legally enforceable facsimile that is retained in lieu of the original, such as microfiche, microfilm, computer disk, or electronic storage medium, must be retained for 50 years following its date of execution. For agreements executed by civilian employees of the United States Government, an agency may store the executed copy of the SF 312 and SF 189 in the United States Office of Personnel Management's Official Personnel Folder (OPF) as a long-term [[Page 510]] (right side) document for that employee. An agency may permit its contractors, licensees and grantees to retain the executed agreements of their employees during the time of employment. Upon the termination of employment, the contractors, licensee or grantee shall deliver the original or legally enforceable facsimile of the executed SF 312, SF 189 or SF 189-A of that employee to the Government agency primarily responsible for his or her classified work. A contractor, licensee or grantee of an agency participating in the Defense Industrial Security Program shall deliver the copy or legally enforceable facsimile of the executed SF 312, SF 189 or SF 189-A of a terminated employee to the Defense Industrial Security Clearance Office. Each agency shall inform ISOO of the file systems that it uses to store these agreements for each category of affected individuals. (k) Only the National Security Council may grant an agency's request for a waiver from the use of the SF 312. To apply for a waiver, an agency must submit its proposed alternative nondisclosure agreement to the Director of ISOO, along with a justification for its use. The Director of ISOO will request a determination about the alternative agreement's enforceability from the Department of Justice prior to making a recommendation to the National Security Council. An agency that has previously received a waiver from the use of the SF 189 or the SF 189-A need not seek a waiver from the use of the SF 312. (l) The national stock number for the SF 312 is 7540-01-280-5499. [53 FR 38279, Sept. 29, 1988, as amended at 56 FR 2645, Jan. 23, 1991; 56 FR 27559, June 14, 1991]