UPDATE: DoD withdraws the unpublished Advanced Notice of Proposed Rulemaking

On November 5, 2021, an Editorial Note was added to the Federal Register stating “An agency letter requesting withdrawal of this document was received after placement on public inspection. The document will remain on public inspection through close of business November 4, 2021. A copy of the agency’s withdrawal letter is available for inspection at the Office of the Federal Register.”   The reason for the Department of Defense withdrawal of the unpublished Advanced Notice of Proposed Rulemaking was not provided.

On Thursday, November 4, 2021, the Department of Defense (DoD) filed an Advanced Notice of Proposed Rulemaking (ANPRM) on Version 2.0 of the Cybersecurity Maturity Model Certification (CMMC).  The notice will published in the Federal Register on November 5, 2021.  DoD also provided a release regarding the enhanced CMMC 2.0.  We have discussed previous versions of the CMMC in earlier blog posts, and the changes discussed in this ANPRM represent a significant departure from those versions.

DoD’s announcement explains “the way forward” for the latest version of the CMMC.  The previous version, CMMC Version 1.0, was designed to protect the defense industry from malicious cyber actors threatening the security of federal contract information and controlled unclassified information (CUI).  CMMC Version 1.0 measured cybersecurity maturity at one of five levels, and required compliance with both “practices” (i.e., technical controls) and “processes” (i.e., measures of implementation).  CMMC Version 1.0 also included third-party certification requirements to ensure that defense contractors adopted these mandatory processes and practices, including those sufficient to protect CUI at Level 3 and above.  DoD had previously taken the position that compliance with the CMMC model represented effective safeguarding measures to protect information crucial to the Department’s mission and priorities.

Although CMMC 2.0 will remain generally consistent with DoD’s previously stated information safeguarding priorities, the ANPRM indicates that DoD will conduct two rulemakings—one in title 32 CFR (National Defense) and the other in title 48 CFR (the Federal Acquisition Regulation and agency supplements, including the Defense Federal Acquisition Regulation Supplement)—to implement a series of changes in the CMMC framework.  DoD has suspended the CMMC piloting efforts that began in December 2020 and will not approve inclusion of a CMMC requirement in DoD solicitations until rulemakings relating to CMMC 2.0 are effective.

The new CMMC Version 2.0 will include several modifications relative to the prior version.  According to Jesse Salazar, Deputy Assistant Secretary of Defense for Industrial Policy, these modifications “establish[] a more collaborative relationship with industry,” and “will support businesses in adopting the practices they need to thwart cyber threats while minimizing barriers to compliance with DoD requirements.” Modifications include:

  • Elimination of Levels 2 and 4 of the prior model. DoD has previously only referred to Level 2 as a step-stone to Level 3 and has grouped Levels 4 and 5 together as means to protect particularly sensitive information that may be the subject of advanced persistent threats.  Elimination of these Levels leaves contractors with only three levels of compliance, depending on the sensitivity of the information and the nature of the work that they perform:  Level 1 (the minimum necessary to protect Federal Contract Information), Level 3 (the minimum necessary to protect CUI), and Level 5 (the minimum necessary to protect CUI that may be the target of advanced persistent threats).
  • Bifurcation of Level 3 requirements to require independent assessment only for “prioritized acquisitions” and self-assessments for other procurements, and allowing for self-assessments for all contracts at Level 1. These are particularly notable changes, as DoD had previously required third party assessment at all certification levels.  Given the limited number of authorized third party assessors to date, this change will likely allow DoD to be significantly less constrained by the availability of assessors as CMMC is rolled out.
  • Development of a time-bound, enforceable Plan of Action and Milestone process (“POA&M”) and development of a time-bound waiver process. These changes are also notable, as DoD previously indicated that a significant driver of its shift to the CMMC model was to move contractors away from reliance on POA&Ms and to require contractors to achieve full implementation of required security controls in order to perform work on DoD contracts involving sensitive information.  As DoD did not elaborate on exactly how reliance on POA&Ms and a potential waiver process would function, further development of regulations in this area are likely to be of keen interest to contractors.  But it seems clear that DoD will want insight into contractors’ progress against their POA&Ms.
  • Elimination of “CMMC-unique practices and all maturity processes from the CMMC Model.” Although it is unclear what DoD considers to be “CMMC-unique” practices, this change could signal a shift, at least at the Level 3 and Level 5 certification levels, to remove those controls that were incorporated into the prior version of the CMMC model that were not included in the 110 security controls in NIST SP 800-171 (Level 3), NIST SP 800-53 (Level 5), or NIST SP 800-172 (Enhanced Security Requirements for Protecting CUI).  Additionally, removal of the maturity processes requirement could significantly simplify the requirements to achieve certification, shifting the focus away from documentation and towards technical implementation of required controls.

Overall, the proposed changes are a notable simplification of the CMMC model relative to Version 1.0 and represent a model that is much closer to existing requirements that contractors must comply with.  Given the significance of the changes, and questions that remain unanswered about how CMMC Version 2.0 will operate in practice, DoD contractors should consider whether to participate in the rulemakings that will accompany CMMC 2.0.  DoD explained that it would solicit public comments in connection with its title 32 CFR rulemaking establishing the CMMC 2.0 program and the subsequent title 48 CFR rulemaking establishing contractual requirements consistent with the new model.

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Photo of Susan B. Cassidy Susan B. Cassidy

Ms. Cassidy represents clients in the defense, intelligence, and information technologies sectors.  She works with clients to navigate the complex rules and regulations that govern federal procurement and her practice includes both counseling and litigation components.  Ms. Cassidy conducts internal investigations for government…

Ms. Cassidy represents clients in the defense, intelligence, and information technologies sectors.  She works with clients to navigate the complex rules and regulations that govern federal procurement and her practice includes both counseling and litigation components.  Ms. Cassidy conducts internal investigations for government contractors and represents her clients before the Defense Contract Audit Agency (DCAA), Inspectors General (IG), and the Department of Justice with regard to those investigations.  From 2008 to 2012, Ms. Cassidy served as in-house counsel at Northrop Grumman Corporation, one of the world’s largest defense contractors, supporting both defense and intelligence programs. Previously, Ms. Cassidy held an in-house position with Motorola Inc., leading a team of lawyers supporting sales of commercial communications products and services to US government defense and civilian agencies. Prior to going in-house, Ms. Cassidy was a litigation and government contracts partner in an international law firm headquartered in Washington, DC.

Photo of Robert Huffman Robert Huffman

Bob Huffman counsels government contractors on emerging technology issues, including artificial intelligence (AI), cybersecurity, and software supply chain security, that are currently affecting federal and state procurement. His areas of expertise include the Department of Defense (DOD) and other agency acquisition regulations governing…

Bob Huffman counsels government contractors on emerging technology issues, including artificial intelligence (AI), cybersecurity, and software supply chain security, that are currently affecting federal and state procurement. His areas of expertise include the Department of Defense (DOD) and other agency acquisition regulations governing information security and the reporting of cyber incidents, the proposed Cybersecurity Maturity Model Certification (CMMC) program, the requirements for secure software development self-attestations and bills of materials (SBOMs) emanating from the May 2021 Executive Order on Cybersecurity, and the various requirements for responsible AI procurement, safety, and testing currently being implemented under the October 2023 AI Executive Order. 

Bob also represents contractors in False Claims Act (FCA) litigation and investigations involving cybersecurity and other technology compliance issues, as well more traditional government contracting costs, quality, and regulatory compliance issues. These investigations include significant parallel civil/criminal proceedings growing out of the Department of Justice’s Cyber Fraud Initiative. They also include investigations resulting from False Claims Act qui tam lawsuits and other enforcement proceedings. Bob has represented clients in over a dozen FCA qui tam suits.

Bob also regularly counsels clients on government contracting supply chain compliance issues, including those arising under the Buy American Act/Trade Agreements Act and Section 889 of the FY2019 National Defense Authorization Act. In addition, Bob advises government contractors on rules relating to IP, including government patent rights, technical data rights, rights in computer software, and the rules applicable to IP in the acquisition of commercial products, services, and software. He focuses this aspect of his practice on the overlap of these traditional government contracts IP rules with the IP issues associated with the acquisition of AI services and the data needed to train the large learning models on which those services are based. 

Bob writes extensively in the areas of procurement-related AI, cybersecurity, software security, and supply chain regulation. He also teaches a course at Georgetown Law School that focuses on the technology, supply chain, and national security issues associated with energy and climate change.

Photo of Ryan Burnette Ryan Burnette

Ryan Burnette advises defense and civilian contractors on federal contracting compliance and on civil and internal investigations that stem from these obligations. Ryan has particular experience with clients that hold defense and intelligence community contracts and subcontracts, and has recognized expertise in national…

Ryan Burnette advises defense and civilian contractors on federal contracting compliance and on civil and internal investigations that stem from these obligations. Ryan has particular experience with clients that hold defense and intelligence community contracts and subcontracts, and has recognized expertise in national security related matters, including those matters that relate to federal cybersecurity and federal supply chain security. Ryan also advises on government cost accounting, FAR and DFARS compliance, public policy matters, and agency disputes. He speaks and writes regularly on government contracts and cybersecurity topics, drawing significantly on his prior experience in government to provide insight on the practical implications of regulations.