Notice2023-17424
Request for Information on Cyber Regulatory Harmonization; Request for Information: Opportunities for and Obstacles To Harmonizing Cybersecurity Regulations
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Published
August 16, 2023
Issuing agencies
Office of the National Cyber Director
Abstract
The Office of the National Cyber Director (ONCD) invites public comments on opportunities for and obstacles to harmonizing cybersecurity regulations, per Strategic Objective 1.1 of the National Cybersecurity Strategy. ONCD seeks input from stakeholders to understand existing challenges with regulatory overlap, and explore a framework for reciprocity (the recognition or acceptance by one regulatory agency of another agency's assessment, determination, finding, or conclusion with respect to the extent of a regulated entity's compliance with certain cybersecurity requirements) in regulator acceptance of other regulators' recognition of compliance with baseline requirements.
Full Text
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<title>Federal Register, Volume 88 Issue 157 (Wednesday, August 16, 2023)</title>
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[Federal Register Volume 88, Number 157 (Wednesday, August 16, 2023)]
[Notices]
[Pages 55694-55697]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-17424]
[[Page 55694]]
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OFFICE OF THE NATIONAL CYBER DIRECTOR
[Docket ID Number: ONCD-2023-0001]
RIN 0301-AA00
Request for Information on Cyber Regulatory Harmonization;
Request for Information: Opportunities for and Obstacles To Harmonizing
Cybersecurity Regulations
AGENCY: Office of the National Cyber Director, Executive Office of the
President.
ACTION: Request for information (RFI).
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SUMMARY: The Office of the National Cyber Director (ONCD) invites
public comments on opportunities for and obstacles to harmonizing
cybersecurity regulations, per Strategic Objective 1.1 of the National
Cybersecurity Strategy. ONCD seeks input from stakeholders to
understand existing challenges with regulatory overlap, and explore a
framework for reciprocity (the recognition or acceptance by one
regulatory agency of another agency's assessment, determination,
finding, or conclusion with respect to the extent of a regulated
entity's compliance with certain cybersecurity requirements) in
regulator acceptance of other regulators' recognition of compliance
with baseline requirements.
DATES: The original comment deadline for this RFI was 5 p.m. EDT
September 15, 2023. ONCD has extended the deadline for comments to be
received to 5 p.m. EDT October 31, 2023.
ADDRESSES: Interested parties may submit comments through
<a href="http://www.regulations.gov">www.regulations.gov</a>. For detailed instructions on submitting comments
and additional information on this process, see the SUPPLEMENTARY
INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Requests for additional information
may be sent to: Elizabeth Irwin, 202-881-6791,
<a href="/cdn-cgi/l/email-protection#047661636c6576696b6a6d7e65706d6b6a446a67602a616b742a636b72"><span class="__cf_email__" data-cfemail="98eafdfff0f9eaf5f7f6f1e2f9ecf1f7f6d8f6fbfcb6fdf7e8b6fff7ee">[email protected]</span></a> .
SUPPLEMENTARY INFORMATION: In this RFI, ONCD invites public comments on
cybersecurity regulatory conflicts, inconsistencies, redundancies,
challenges, and priorities, in response to the questions below.
Strategic Objective 1.1 of the National Cybersecurity Strategy \1\
recognizes that while voluntary approaches to critical infrastructure
cybersecurity have produced meaningful improvements, the lack of
mandatory requirements has resulted in inadequate and inconsistent
outcomes. The Strategy calls for establishing cybersecurity regulations
to secure critical infrastructure where existing measures are
insufficient, harmonizing and streamlining new and existing
regulations, and enabling regulated entities to afford to achieve
security. ONCD, in coordination with the Office of Management and
Budget (OMB), has been tasked with leading the Administration's efforts
on cybersecurity regulatory harmonization.\2\ We will work with
independent and executive branch regulators to identify opportunities
to harmonize baseline cybersecurity requirements for critical
infrastructure.\3\
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\1\ <a href="https://www.whitehouse.gov/wp-content/uploads/2023/03/National-Cybersecurity-Strategy-2023.pdf">https://www.whitehouse.gov/wp-content/uploads/2023/03/National-Cybersecurity-Strategy-2023.pdf</a>.
\2\ Pursuant to the National Cybersecurity Strategy: ``ONCD, in
coordination with the Office of Management and Budget (OMB), will
lead the Administration's efforts on cybersecurity regulatory
harmonization.''
\3\ Pursuant to the National Cybersecurity Strategy, the Cyber
Incident Reporting Council will coordinate, deconflict, and
harmonize Federal incident reporting requirements. ONCD is not
requesting views from respondents on incident reporting regulations.
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ONCD is particularly interested in regulatory harmonization as it
may apply to critical infrastructure sectors and sub-sectors identified
in Presidential Policy Directive 21 and the National Infrastructure
Protection Plan, and providers of communications, IT, and cybersecurity
services to owners and operators of critical infrastructure.
``Harmonization'' as used in this RFI refers to a common set of updated
baseline regulatory requirements that would apply across sectors.
Sector regulators could go beyond the harmonized baseline to address
cybersecurity risks specific to their sectors. ONCD is also interested
in newer technologies, such as cloud services, or other ``Critical and
Emerging Technologies'' identified by the National Science and
Technology Council,\4\ that are being introduced into critical
infrastructure.
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\4\ <a href="https://www.whitehouse.gov/wp-content/uploads/2022/02/02-2022-Critical-and-Emerging-Technologies-List-Update.pdf">https://www.whitehouse.gov/wp-content/uploads/2022/02/02-2022-Critical-and-Emerging-Technologies-List-Update.pdf</a>.
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ONCD strongly encourages academics, non-profit entities, industry
associations, regulated entities and others with expertise in
cybersecurity regulation, risk management, operations, compliance, and
economics to respond to this RFI. We also welcome state, local, Tribal,
and territorial (SLTT) entities to submit responses in their capacity
as regulators and as critical infrastructure entities, specifying the
sector(s) in which they are regulated or regulate.
Guidance for submitting comments:
<bullet> Please limit your narrative response to twenty-five (25)
pages total. Additional analysis and/or contextual information specific
to a question(s) may be submitted in a supplemental appendix.
<bullet> Respondents are encouraged to comment on any issues or
concerns you believe are relevant or appropriate for our consideration
and to submit written data, facts, and views addressing this subject,
including but not limited to the questions below.
<bullet> Respondents do not need to answer all questions listed--
only the question(s) for which you have relevant information. The
written RFI response should address ONLY the topics for which the
respondent has knowledge or expertise.
<bullet> Wherever possible, please provide credible data and
specific examples to support your views. If you cite academic or other
studies, they should be publicly available to be considered.
<bullet> Please provide the name of the critical infrastructure
sector(s) to which you are aligned or support.
<bullet> Do not submit comment(s) in this RFI regarding
harmonization of cyber incident reporting requirements. Such
requirements are being analyzed through a separate effort led by the
Cyber Incident Reporting Council established by the Secretary of
Homeland Security as required by the Cyber Incident Reporting for
Critical Infrastructure Act of 2022.
<bullet> All submissions are public records and may be published on
<a href="http://www.regulations.gov">www.regulations.gov</a>. Do NOT submit sensitive, confidential, or
personally identifiable information.
Questions for respondents:
1. Conflicting, mutually exclusive, or inconsistent regulations--If
applicable, please provide examples of any conflicting, mutually
exclusive, or inconsistent Federal and SLTT regulations affecting
cybersecurity--including broad enterprise-wide requirements or
specific, targeted requirements--that apply to the same information
technology (IT) or operational technology (OT) infrastructure of the
same regulated entity. Be as clear, specific, and detailed as possible.
a. Please include specific examples with legal citations or
hyperlinks to the particular Federal or SLTT cybersecurity rules or
enforceable guidance that impose conflicting, mutually exclusive, or
inconsistent requirements, and explain the specific conflicts or
inconsistencies you identify.
b. Have these conflicting, mutually exclusive, or inconsistent
rules or guidance been updated to meet new cybersecurity risks,
vulnerabilities, or threats (e.g., supply chain risk)? If so,
[[Page 55695]]
were those separate rules or guidance updated at close to the same
time?
c. How do regulated entities comply with these conflicting mutually
exclusive, or inconsistent requirements (e.g., follow the most
demanding standard)? Please describe your experiences managing such
compliance requirements.
d. For entities subject to conflicting, mutually exclusive, or
inconsistent regulations, what monetary, executive or cyber defense
team work hours, or other resource costs do they incur as a result of
managing compliance with the different requirements that apply to them
from different regulators?
e. Please identify cybersecurity requirements imposed by industry
bodies, Federal or SLTT agencies that you believe may be redundant.\5\
Please explain in detail how the requirements in question are
redundant.
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\5\ For the purpose of this RFI, ``redundant'' would mean that
(1) the same regulated entity must comply with more than one Federal
or SLTT cybersecurity requirements covering the same systems and (2)
one or more of those regulations could be eliminated while the
regulating agencies that issued the regulations are still able to
fulfill the purpose of the regulation.
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f. As to the above questions, please provide the estimated annual
cost over the past three years in terms of expenses or additional staff
to comply with the conflicting, mutually exclusive, inconsistent, or
redundant cybersecurity regulatory requirements you cite, and describe
your methodology for developing those estimates.
g. Currently, how resource intensive is it for regulated entities
to achieve cybersecurity compliance?
h. How often do prohibitive costs of compliance lead to meaningful
security gaps?
i. How can future regulations address any prohibitive costs which
lead to meaningful security gaps?
j. How can future regulations be implemented in ways which allow
regulated entities to achieve security improvements at an acceptable
cost?
2. Use of Common Guidelines--Through the Federal Financial
Institutions Examination Council (FFIEC), regulators of certain
financial institutions have issued common Interagency Guidelines
Establishing Information Security Standards and have developed a Common
Self-Assessment Tool and an Information Security Booklet to guide
examinations of entities in the financial sector.
a. Is such a model effective at providing harmonized requirements
and why?
b. What challenges are associated with such a model?
c. Are there opportunities to adapt such a model to other sectors--
or across multiple sectors--and if so, how?
d. Are there sectors or subsectors for which such a model would not
be appropriate, and if so, why?
e. How does or could such a model apply outside the context of
examination-based compliance regimes?
f. Are there opportunities to improve on such a model through
common oversight approaches, and, if so, how?
g. Does your organization voluntarily apply a self-assessment tool
regularly? What are good examples of helpful tools?
h. Would a common self-assessment tool improve the ability of
entities to meet regulatory requirements?
3. Use of Existing Standards or Frameworks--The practice of using
existing standards or frameworks in setting regulatory requirements can
reduce burdens on regulated entities and help to achieve the goals of
regulatory harmonization. Under existing law,\6\ Federal executive
agencies use voluntary consensus standards for regulatory activities
unless use of such standards is inconsistent with law or otherwise
impractical. In a recent report \7\ from the President's National
Security Telecommunications Advisory Council (NSTAC) that addressed
cybersecurity regulatory harmonization, the NSTAC noted that ``even
though most regulations cite consensus standards as the basis for their
requirements, variations in implementations across regulators often
result in divergent requirements.''
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\6\ Public Law 104-113.
\7\ <a href="https://www.cisa.gov/sites/default/files/2023-04/NSTAC_Strategy_for_Increasing_Trust_Report_%282-21-23%29_508_0.pdf">https://www.cisa.gov/sites/default/files/2023-04/NSTAC_Strategy_for_Increasing_Trust_Report_%282-21-23%29_508_0.pdf</a>.
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a. To what extent are cybersecurity requirements applicable to your
industry or sector based on, consistent with, or aligned with existing
standards or frameworks?
i. Which standards or frameworks have been applied to your industry
or sector?
ii. Have these standards or frameworks been adopted in whole,
either through the same requirements or incorporation by reference, or
have they been modified by regulators?
If modified, how were they modified by particular regulators? Has
your entity or have others in your sector provided input that the
regulator used to develop or adapt existing standards for your sector?
If so, what are the mechanisms, frequency, and nature of the inputs?
b. Is demonstrating conformity with existing standards or
frameworks that your industry is required by regulation to use readily
auditable or verifiable and why?
c. What, if any, additional opportunities exist to align
requirements to existing standards or frameworks and, if there are such
opportunities, what are they?
4. Third-Party Frameworks--Both the government (for example,
through the NIST Cybersecurity Framework) and non-government third
parties have developed frameworks and related resources that map
cybersecurity standards and controls to cybersecurity outcomes. These
frameworks and related resources have also been applied to map controls
to regulatory requirements, including where requirements are leveled by
multiple agencies.
a. Please identify such frameworks and related resources, both
governmental and non-governmental, currently in use with respect to
mitigating cybersecurity risk.
b. How well do such frameworks and related resources work in
practice to address disparate cybersecurity requirements?
5. Tiered Regulation--Different levels of risk across and within
sectors may in part be addressed through a tiered model (e.g., low,
moderate, or high risk),\8\ potentially assisting in tailoring baseline
requirements for each regulatory purpose. Tiering may also help smaller
businesses meet requirements commensurate with their risk. For example,
while these are not regulations, tiering into several baselines is a
feature of Federal Information Processing Standard 199 and the NIST
Risk Management Framework.
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\8\ FIPS 199, Standards for Security Categorization of Federal
Information and Information Systems (<a href="http://nist.gov">nist.gov</a>).
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a. Could such a model be adapted to apply to multiple regulated
sectors? If so, how would tiers be structured?
b. How could this tiered approach be defined across disparate
operational environments and what might be some of the opportunities
and challenges associated with doing so?
6. Oversight--Please provide examples of cybersecurity oversight by
multiple regulators of the same entity, and describe whether the
oversight involved IT or OT infrastructure. Some of these questions
reference a potential ``regulatory reciprocity'' model, under which
cybersecurity oversight and enforcement as to cross-sector baseline
cybersecurity requirements would be divided among regulators, with the
``primary'' or ``principal'' regulator for an entity having authority
to oversee
[[Page 55696]]
and enforce compliance with that baseline.
a. Please identify the Federal, state or local agencies that are
engaged in cybersecurity oversight of the same IT or OT systems,
components, or data (``infrastructure'') at the same regulated entity.
This may be multiple Federal regulatory schema or multiple
intergovernmental bodies (e.g., Federal, state, local, Tribal,
territorial).
b. Please describe the method(s) of cybersecurity oversight
utilized by the agencies identified in your response to the question
above.
c. To what extent, if any, are you aware that the agencies engaged
in cybersecurity oversight of the same IT or OT infrastructure
coordinate their oversight activities? Please describe.
d. Where multiple agencies are engaged in cybersecurity oversight
of the same IT or OT infrastructure:
i. Is the role of a ``primary'' or ``principal'' agency recognized?
If so, please describe how.
ii. To what extent do one or more of these agencies rely on or
accept the findings, assessments or conclusions of another agency with
respect to compliance with regard to certain cybersecurity requirements
(``regulatory reciprocity'')? Please provide specific examples.
iii. What are the barriers to regulatory reciprocity (legal,
cultural, sector-specific technical expertise, or other)?
e. Are there situations in which regulations related to physical
security, safety, or other matters are intertwined with cybersecurity
in such a way that baseline cybersecurity regulatory requirements from
a separate Federal entity might have unintended consequences on
physical security, safety, or another matter? If so, please provide
specific examples.
f. If you are a regulated entity, what is the estimated annual cost
over the past five years in terms of expenses or additional staff to
address overlapping cybersecurity oversight of the same IT or OT
infrastructure? Please describe the methodology used to develop the
cost estimate.
g. Do multiple public sector agencies examine or audit your
cybersecurity compliance for the same IT or OT infrastructure? If so,
how many entities examine or audit the infrastructure and how often do
these audits occur?
h. What, if any, obstacles or inefficiencies have you experienced
with regard to cybersecurity oversight, examination or enforcement
related to OT components, systems, or data?
i. Please provide examples of regulatory reciprocity between two or
more Federal agencies with respect to cybersecurity, including the
recognition or acceptance by one regulatory agency of another agency's
assessment, determination, finding, or conclusion with respect to the
extent of a regulated entity's compliance with certain IT or OT
cybersecurity requirements.
j. Are you aware of examples of regulatory reciprocity in contexts
other than cybersecurity? If so, please describe briefly the agencies
and the context.
k. Please provide examples of self-attestation in cybersecurity
regulation. What are the strengths and weaknesses of this model?
l. Please comment on models of third-party assessments of
cybersecurity compliance that may be effective at reducing burdens and
harmonizing processes. For example, FedRAMP relies on Third Party
Assessment Organizations (3PAOs) to perform initial assessments to
inform decisions on FedRAMP eligibility. 3PAOs are accredited by an
independent accreditation body.
i. Are there circumstances under which use of third-party assessors
would be most appropriate?
ii. Are there circumstances under which use of third-party
assessors would not be appropriate?
7. Cloud and Other Service Providers--Information technology, as a
sector, is not regulated directly by the Federal government. However,
regulated entities' use of cloud and other service provider
infrastructure is often regulated. To date, regulators have typically
not directly regulated cloud providers operating in their sector.
Rather, regulatory agencies have imposed obligations on their regulated
entities that are passed along by contract to the cloud provider/
service provider.
a. Please provide specific examples of conflicting, mutually
exclusive, or inconsistent cybersecurity regulatory requirements that
are passed along by contract to third-party service providers.
b. Please provide examples of direct cybersecurity regulation of
third-party service providers.
c. Please provide information regarding the costs to third-party
service providers of conflicting, mutually exclusive, or inconsistent
cybersecurity regulatory requirements that are passed on to them
through their contracts with regulated customers. Please also provide
estimated costs to a regulated customer of using a third-party service
provider when conflicting, mutually exclusive, or inconsistent
cybersecurity regulatory requirements are passed to the customer
through contracts. In either case, please detail the methodology for
developing the cost estimate.
d. Describe any two or more conflicting, mutually exclusive, or
inconsistent regulation, one of which permits the use of cloud, while
another does not. How does this impact your sector? Explain if these
requirements also restrict the use of Managed Security Service
Providers (MSSPs) and security tools that utilize the cloud.
e. Have any non-U.S. governments instituted effective models for
regulating the use of cloud services by regulated entities in a
harmonized and consistent manner? Please provide examples and explain
why these models are effective.
f. The Department of Defense allows defense industrial base
contractors to meet security requirements for the use of the cloud by
using FedRAMP-approved infrastructure. Please provide examples of how
the FedRAMP process differs, positively or negatively, from other
requirements. What, if anything, would need to change about the FedRAMP
certification process and requirements for it to be usable to meet
other cybersecurity regulatory requirements?
g. To the extent not included in response to any other question,
please identify any specific Critical or Emerging Technologies that are
subject to conflicting, mutually exclusive, or inconsistent regulation
related to cybersecurity.
8. State, Local, Tribal, and Territorial Regulation. State, local,
Tribal and territorial entities often impose regulatory requirements
that affect critical infrastructure owners and operators across state
lines, as well as entities that do not neatly fall into a defined
critical infrastructure sector. The New York Department of Financial
Services, for example, established cybersecurity requirements for
financial services companies.\9\ California similarly passed a
cybersecurity law requiring manufacturers of the internet-of-things
(IoT) devices to take certain measures.\10\ Dozens of states have
followed suit to date. Companies that operate in multiple states are
often required to comply with a variety of overlapping state and
Federal cybersecurity requirements.
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\9\ See 23 NYCRR Part 500.
\10\ See Senate Bill No. 327.
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a. Please provide examples where SLTT cybersecurity regulations are
effectively harmonized or aligned with Federal regulations.
b. Please provide examples of regulatory reciprocity between
Federal and SLTT regulatory agencies.
c. Please highlight any examples or models for harmonizing
regulations
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across multiple SLTT jurisdictions, to include Federal support for such
efforts.
d. Please provide examples, if any, where regulatory requirements
related to cybersecurity are conflicting, mutually exclusive or
inconsistent within one jurisdiction (for example, state regulatory
requirements that conflict with regulations at the local level).
9. International--Many regulated entities within the United States
operate internationally. A recent report from the NSTAC noted that
foreign governments have been implementing regulatory regimes with
``overlapping, redundant or inconsistent requirements. . .''.
a. Identify specific instances in which U.S. Federal cybersecurity
requirements conflict with foreign government cybersecurity
requirements.
b. Are there specific countries or sectors that should be
prioritized in considering harmonizing cybersecurity requirements
internationally?
c. Which international dialogues are engaged in work on harmonizing
or aligning cybersecurity requirements? Which would be the most
promising venues to pursue such alignment?
d. Please identify any ongoing initiatives by international
standards organizations, trade groups, or non-governmental
organizations that are engaged in international cybersecurity
standardization activities relevant to regulatory purposes. Describe
the nature of those activities. Please identify any examples of
regulatory reciprocity within a foreign country.
e. Please identify any examples of regulatory reciprocity between
foreign countries or between a foreign country and the United States.
10. Additional Matters--Please provide any additional comments or
raise additional matters you feel relevant that are not in response to
the above questions.
Comments must be received no later than 5 p.m. EDT, October 31,
2023.
By October 31, 2023, all interested respondents should submit a
written RFI response, in MS Word or PDF format, with their answers to
questions on which they have expertise and insights for the Government
through <a href="http://regulations.gov">regulations.gov</a>.
Inputs that meet most of the following criteria will be considered
most valuable:
<bullet> Concise: Please limit your narrative response to twenty-
five (25) pages total. Additional analysis and/or contextual
information specific to a question may be submitted in a supplemental
appendix.
<bullet> Easy to review and understand: Content that is modularly
organized in the order of the questions in the RFI and presented in
such a fashion that it can be readily lifted (by topic area) and shared
with relevant stakeholders in an easily consumable format.
<bullet> Expert: The Government, through this effort, is seeking
insights to understand current best practices and approaches applicable
to the above topics, as well as new and emerging solutions.
<bullet> Clearly worded/not vague: Clear, descriptive, and concise
language is appreciated. Please avoid generalities and vague
statements.
<bullet> Actionable: Please provide enough detail so that we can
understand how to apply the information you provide.
<bullet> Cost effective & impactful: If applicable, respondents
should consider whether their suggestions have a clear return on
investment that can be articulated to secure funding and support.
<bullet> Strategic shifts: Challenges that seem to be intractable
and overwhelmingly complex can often be resolved with a change in
perspective that unlocks hidden opportunities and aligns stakeholder
interests. We welcome these ideas as well.
Kemba E. Walden,
Acting National Cyber Director.
[FR Doc. 2023-17424 Filed 8-15-23; 8:45 am]
BILLING CODE 3340-D3-P
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