Federal Register: April 1, 2004 (Volume 69, Number 63)
Rules and Regulations
Page 17052-17055
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NATIONAL ARCHIVES AND RECORDS ADMINISTRATION
Information Security Oversight Office
32 CFR Part 2001
[Directive No. 1: Appendix A]
Publication of Revised Bylaws of the Interagency Security
Classification Appeals Panel
AGENCY: Information Security Oversight Office (ISOO), National Archives
and Records Administration (NARA).
ACTION: Final rule.
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SUMMARY: The Information Security Oversight Office, National Archives
and Records Administration, is publishing a revision of the bylaws of
the Interagency Security Classification Appeals Panel (ISCAP). The
bylaws are revised in accordance with section 5.3(c) of Executive Order
12958, as amended, ``Classified National Security Information.'' Under
the terms of E.O. 12958, as amended, the Director of ISOO serves as
Executive Secretary to the ISCAP.
EFFECTIVE DATE: April 1, 2004.
FOR FURTHER INFORMATION CONTACT: J. William Leonard, Executive
Secretary, Interagency Security Classification Appeals Panel, 202-219-
5250.
SUPPLEMENTARY INFORMATION: The Interagency Security Classification
Appeals Panel (ISCAP) performs several critical functions in
implementing several provisions of E.O. 12958, ``Classified National
Security Information,'' as amended. These include: (a) Deciding appeals
brought by authorized persons who have filed classification challenges
under section 1.8 of the amended Order; (b) approving, denying, or
amending agency exemptions from automatic declassification, as provided
in section 3.3(d) of the amended Order; and (c) deciding on appeals by
parties whose requests for declassification of information under
section 3.5 of the amended Order have been denied.
These bylaws describe the procedures to be followed by individuals
or organizations who wish to bring matters before the ISCAP, and the
procedures that the ISCAP will follow to resolve these matters. The
ISCAP first published its bylaws on March 15, 1996 (61 FR 10854).
The ISCAP has revised its bylaws to reflect the March 25, 2003,
amendment of E.O. 12958. While intelligence sources and methods
information remain subject to the jurisdiction of the ISCAP, section
5.3(f) of the amended Order recognizes the special authority and
responsibility of the Director of Central Intelligence to protect such
information. Of particular note, the revised ISCAP bylaws include a new
article (see No. IX) which addresses section 5.3(f) of the amended
Order.
The appendix was inadvertently removed when we revised part 2001
(see 68 FR 55168, September 22, 2003) and we are publishing an updated
Appendix A.
These bylaws are being issued in final without prior notice of
proposed rulemaking because they are not subject to the Administrative
Procedure Act (APA), 5 U.S.C. 551, et seq, The ISCAP
[[Page 17053]]
is not an ``agency'' subject to the APA. Rather, it was created ``for
the sole purpose of advising and assisting the President in the
discharge of his constitutional and discretionary authority to protect
the national security of the United States.'' E.O. 12958, as amended,
sec. 5.2(e). In Franklin v. Massachusetts, 505 U.S. 788, 800-01 (1992),
the Supreme Court held that the President is not an agency under the
APA, and therefore not subject to APA requirements or judicial review.
List of Subjects in 32 CFR Part 2001
Classified information, Reporting and recordkeeping requirements.
CHAPTER XX--INFORMATION SECURITY OVERSIGHT OFFICE, NATIONAL ARCHIVES
AND RECORDS ADMINISTRATION
0
Title 32 of the Code of Federal Regulations, chapter XX, is amended as
follows:
PART 2001--CLASSIFIED NATIONAL SECURITY INFORMATION
0
1. The authority citation of part 2001 is revised to read as follows:
Authority: Section 5.1 (a) and (b), and section 5.3, E.O. 12958,
60 FR 19825, 3 CFR Comp., p. 333 as amended by E.O. 13292, 68 FR
15315, March 28, 2003.
0
2. Part 2001 is amended by adding Appendix A to read as follows:
Appendix A to Part 2001--Interagency Security Classification Appeals
Panel Bylaws
Article I. Purpose
The purpose of the Interagency Security Classification Appeals
Panel (ISCAP) and these bylaws is to fulfill the functions assigned
to the ISCAP by Executive Order 12958, ``Classified National
Security Information,'' as amended.
Article II. Authority
Executive Order 12958, ``Classified National Security
Information,'' as amended (hereafter the ``Order''), and its
implementing directives.
Article III. Membership
A. Primary Membership. Appointments under section 5.3(a) of the
Order establish the primary membership of the ISCAP.
B. Alternate Membership.
1. Primary members are expected to participate fully in the
activities of the ISCAP. The Executive Secretary shall request that
each entity represented on the ISCAP also designate in writing
addressed to the Chair an alternate or alternates to represent it on
all occasions when the primary member is unable to participate. Such
written designation must be made by the agency or office head
represented on the ISCAP, or by their deputy or senior agency
official for the Order. When serving for a primary member, an
alternate member shall assume all the rights and responsibilities of
that primary member, including voting.
2. When a vacancy in the primary membership occurs, the
designated alternate shall represent the agency or office until the
agency or office head fills the vacancy. The Chair, working through
the Executive Secretary, shall take all appropriate measures to
encourage the agency or office head to fill a vacancy in the primary
membership as quickly as possible.
C. Liaison. The Executive Secretary shall request that each
entity represented on the ISCAP also designate to the Chair in
writing an individual or individuals (hereinafter referred to as
``liaisons'') to serve as a liaison to the Executive Secretary in
support of the primary member and alternate(s). Such written
designation must be made by the agency or office head represented on
the ISCAP, or by their deputy or senior agency official for the
Order. These designated individuals shall meet at the call of the
Executive Secretary.
D. Chair. As provided in section 5.3(a) of the Order, the
President shall select the Chair from among the primary members.
E. Vice Chair. The members may elect from among the primary
members a Vice Chair who shall:
1. Chair meetings that the Chair is unable to attend; and
2. Serve as Acting Chair during a vacancy in the Chair of the
ISCAP.
Article IV. Meetings
A. Purpose. The primary purpose of ISCAP meetings is to discuss
and bring formal resolution to matters before the ISCAP.
B. Frequency. As provided in section 5.3(a) of the Order, the
ISCAP shall meet at the call of the Chair, who shall schedule
meetings as may be necessary for the ISCAP to fulfill its functions
in a timely manner. The Chair shall also convene the ISCAP when
requested by a majority of its primary members.
C. Quorum. Meetings of the ISCAP may be held only when a quorum
is present. For this purpose, a quorum requires the presence of at
least five primary or alternate members.
D. Attendance. As determined by the Chair, attendance at
meetings of the ISCAP shall be limited to those persons necessary
for the ISCAP to fulfill its functions in a complete and timely
manner. The members may arrange briefings by substantive experts
from individual departments or agencies, after consultation with the
Chair.
E. Agenda. The Chair shall establish the agenda for all
meetings. Potential items for the agenda may be submitted to the
Chair by any member or the Executive Secretary. Acting through the
Executive Secretary, the Chair will distribute the agenda and
supporting materials to the members as soon as possible before a
scheduled meeting.
F. Minutes. The Executive Secretary shall be responsible for the
preparation of each meeting's minutes, and the distribution of draft
minutes to each member. The minutes will include a record of the
members present at the meeting and the result of each vote. At the
subsequent meeting of the ISCAP, the Chair will read or reference
the draft minutes of the previous meeting. At that time the minutes
will be corrected, as necessary, and approved by the membership and
certified by the Chair. The approved minutes will be maintained
among the records of the ISCAP.
Article V. Voting
A. Motions. When a decision or recommendation of the ISCAP is
required to resolve a matter before it, the Chair shall request or
accept a motion for a vote. Any member, including the Chair, may
make a motion for a vote. No second shall be required to bring any
motion to a vote. A quorum must be present when a vote is taken.
B. Eligibility. Only the members, including the Chair, may vote
on a motion before the ISCAP, with each agency or office represented
having one vote.
C. Voting Procedures. Votes shall ordinarily be taken and
tabulated by a show of hands.
D. Passing a Motion. In response to a motion, members may vote
affirmatively, negatively, or abstain from voting. Except as
otherwise provided in these bylaws, a motion passes when it receives
a majority of affirmative votes of the members voting. However, in
no instance will the ISCAP reverse an agency's decision without the
affirmative vote of at least a majority of the members present.
E. Votes in a Non-meeting Context. The Chair may call for a vote
of the membership outside the context of a formal ISCAP meeting. An
alternate member may also participate in such a vote if the primary
member cannot. The Executive Secretary shall record and retain such
votes in a documentary form and immediately report the results to
the Chair and other primary and alternate members.
Article VI. First Function: Appeals of Agency Decisions Regarding
Classification Challenges
In accordance with section 5.3(b) of the Order, the ISCAP shall
decide on appeals by authorized persons who have filed
classification challenges under section 1.8 of the Order.
A. Jurisdiction. The ISCAP will consider appeals from
classification challenges that otherwise meet the standards of the
Order if:
1. The appeal is filed in accordance with these bylaws;
2. The appellant has previously challenged the classification
action at the agency that originated or is otherwise responsible for
the information in question in accordance with the agency's
procedures or, if the agency has failed to establish procedures for
classification challenges, by filing a written challenge directly
with the agency head or designated senior agency official, as
defined in section 6.1(ii) of the Order;
3. The appellant has (a) Received a final agency decision
denying his or her challenge; or (b) Not received (i) an initial
written response to the classification challenge from the agency
within 120 days of its filing, or (ii) a written response to an
internal agency appeal within 90 days of the filing of the appeal;
4. There is no action pending in the federal courts regarding
the information in question; and
5. The information in question has not been the subject of
review by the federal
[[Page 17054]]
courts or the ISCAP within the past two years.
B. Addressing of Appeals. Appeals should be addressed to:
Executive Secretary, Interagency Security Classification Appeals
Panel, Attn: Classification Challenge Appeals, c/o Information
Security Oversight Office, National Archives and Records
Administration, 7th and Pennsylvania Avenue, NW., Room 500,
Washington, DC 20408. The appeal must contain enough information for
the Executive Secretary to be able to obtain all pertinent documents
about the classification challenge from the affected agency. No
classified information should be included within the initial appeal
document. The Executive Secretary will arrange for the transmittal
of classified information from the agency after receiving the
appeal. If it is impossible for the appellant to file an appeal
without including classified information, prior arrangements must be
made by contacting the Information Security Oversight Office.
C. Timeliness of Appeals. An appeal to the ISCAP must be filed
within 60 days of:
1. The date of the final agency decision; or
2. The agency's failure to meet the time frames established in
paragraph (A)(3)(b) of this Article.
D. Rejection of Appeal. If the Executive Secretary determines
that the appeal does not meet the requirements of the Order or these
bylaws, the Executive Secretary shall notify the appellant in
writing that the appeal will not be considered by the ISCAP. The
notification shall include an explanation of why the appeal is
deficient.
E. Preparation. The Executive Secretary shall notify the Chair,
the designated senior agency official, and the primary member,
alternate, or liaison of the affected agency(ies) when an appeal is
lodged. Under the direction of the ISCAP, the Executive Secretary
shall supervise the preparation of an appeal file, pertinent
portions of which will be presented to the members of the ISCAP for
their review prior to a vote on the appeal. The appeal file will
eventually include all records pertaining to the appeal.
F. Resolution of Appeals. The ISCAP may vote to affirm the
agency's decision, to reverse the agency's decision in whole or in
part, or to remand the matter to the agency for further
consideration. A decision to reverse an agency's decision requires
the affirmative vote of at least a majority of the members present.
G. Notification. The Executive Secretary shall promptly notify
in writing the appellant, the agency head, and designated senior
agency official of the ISCAP's decision.
H. Agency Appeals. Within 60 days of receipt of an ISCAP
decision that reverses a final agency decision, the agency head may
petition the President through the Assistant to the President for
National Security Affairs to overrule the decision of the ISCAP.
I. Protection of Classified Information. All persons involved in
the appeal shall make every effort to minimize the inclusion of
classified information in the appeal file. Any classified
information contained in the appeal file shall be handled and
protected in accordance with the Order and its implementing
directives. Information being challenged for classification shall
remain classified unless and until a final decision is made to
declassify it. In no instance will the ISCAP declassify properly
classified information solely because of an agency's failure to
prescribe or follow appropriate procedures for handling
classification challenges.
J. Maintenance of File. The Executive Secretary shall maintain
the appeal file among the records of the ISCAP.
Article VII. Second Function: Review of Agency Exemptions From
Automatic Declassification
In accordance with section 5.3(b) of the Order, the ISCAP shall
approve, deny or amend agency exemptions from automatic
declassification as provided in section 3.3(d) of the Order.
A. Agency Notification of Exemptions. The agency head or
designated senior agency official shall notify the Executive
Secretary of agency exemptions in accordance with the requirements
of the Order and its implementing directives. Agencies shall provide
any additional information or justification that the Executive
Secretary believes is necessary or helpful in order for the ISCAP to
review and decide on the exemption. The agency head may seek relief
from the ISCAP from any request for information by the Executive
Secretary to which the agency objects.
B. Preparation. The Executive Secretary shall notify the Chair
of the agency submission. At the direction of the ISCAP, the
Executive Secretary shall supervise the preparation of an exemption
file, pertinent portions of which will be presented to the members
of the ISCAP for their review prior to a vote on the exemptions. The
exemption file will eventually include all records pertaining to the
ISCAP's consideration of the agency's exemptions.
C. Resolution. The ISCAP may vote to approve an agency
exemption, to deny an agency exemption, to amend an agency
exemption, or to remand the matter to the agency for further
consideration. A decision to deny or amend an agency exemption
requires the affirmative vote of a majority of the members present.
D. Notification. The Executive Secretary shall promptly notify
in writing the agency head and designated senior agency official of
the ISCAP's decision.
E. Agency Appeals. Within 60 days of receipt of an ISCAP
decision that denies or amends an agency exemption, the agency head
may petition the President through the Assistant to the President
for National Security Affairs to overrule the decision of the ISCAP.
F. Protection of Classified Information. Any classified
information contained in the exemption file shall be handled and
protected in accordance with the Order and its implementing
directives. Information that the agency maintains is exempt from
declassification shall remain classified unless and until a final
decision is made to declassify it.
G. Maintenance of File. The Executive Secretary shall maintain
the exemption file among the records of the ISCAP.
Article VIII. Third Function: Appeals of Agency Decisions Denying
Declassification Under Mandatory Review Provisions of the Order
In accordance with section 5.3(b) of the Order, the ISCAP shall
decide on appeals by parties whose requests for declassification
under section 3.5 of the Order have been denied.
A. Jurisdiction. The ISCAP will consider appeals from denials of
mandatory review for declassification requests that otherwise meet
the standards of the Order if:
1. The appeal is filed in accordance with these bylaws;
2. The appellant has previously filed a request for mandatory
declassification review at the agency that originated or is
otherwise responsible for the information in question in accordance
with the agency's procedures or, if the agency has failed to
establish procedures for mandatory review, by filing a written
request directly with the agency head or designated senior agency
official;
3. The appellant has (a) Received a final agency decision
denying his or her request; or (b) Not received (i) an initial
decision on the request for mandatory declassification review from
the agency within one year of its filing, or (ii) a final decision
on an internal agency appeal within 180 days of the filing of the
appeal;
4. There is no action pending in the federal courts regarding
the information in question; and
5. The information in question has not been the subject of
review by the federal courts or the ISCAP within the past two years.
B. Addressing of Appeals. Appeals should be addressed to:
Executive Secretary, Interagency Security Classification Appeals
Panel, Attn: Mandatory Review Appeals, c/o Information Security
Oversight Office, National Archives and Records Administration, 7th
and Pennsylvania Avenue, NW., Room 500, Washington, DC 20408. The
appeal must contain enough information for the Executive Secretary
to be able to obtain all pertinent documents about the request for
mandatory declassification review from the affected agency.
C. Timeliness of Appeals. An appeal to the ISCAP must be filed
within 60 days of:
1. The date of the final agency decision; or
2. The agency's failure to meet the time frames established in
paragraph (A)(3)(b) of this Article.
D. Rejection of Appeal. If the Executive Secretary determines
that the appeal does not meet the requirements of the Order or these
bylaws, the Executive Secretary shall notify the appellant in
writing that the appeal will not be considered by the ISCAP. The
notification shall include an explanation of why the appeal is
deficient.
E. Preparation. The Executive Secretary shall notify the Chair
and the primary member, alternate, or liaison of the affected
agency(ies) when an appeal is lodged. Under the direction of the
ISCAP, the Executive Secretary shall supervise the preparation of an
appeal file, pertinent portions of which will be presented to the
members of the ISCAP for their review prior to a vote on the appeal.
The appeal file will eventually include all records pertaining to
the appeal.
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F. Narrowing Appeals. To expedite the resolution of appeals and
minimize backlogs, the Executive Secretary is authorized to consult
with appellants with the objective of narrowing or prioritizing the
information subject to the appeal.
G. Resolution of Appeals. The ISCAP may vote to affirm the
agency's decision, to reverse the agency's decision in whole or in
part, or to remand the matter to the agency for further
consideration. A decision to reverse an agency's decision requires
the affirmative vote of at least a majority of the members present.
H. Notification. The Executive Secretary shall promptly notify
in writing the appellant, the agency head, and designated senior
agency official of the ISCAP's decision.
I. Agency Appeals. Within 60 days of receipt of an ISCAP
decision that reverses a final agency decision, the agency head may
petition the President through the Assistant to the President for
National Security Affairs to overrule the decision of the ISCAP.
J. Protection of Classified Information. Any classified
information contained in the appeal file shall be handled and
protected in accordance with the Order and its implementing
directives. Information that is subject to an appeal from an agency
decision denying declassification under the mandatory review
provisions of the Order shall remain classified unless and until a
final decision is made to declassify it. In no instance will the
ISCAP declassify properly classified information solely because of
an agency's failure to prescribe or follow appropriate procedures
for handling mandatory review for declassification requests and
appeals.
K. Maintenance of File. The Executive Secretary shall maintain
the appeal file among the records of the ISCAP. All information
declassified as a result of ISCAP action shall be available for
inclusion within the databases delineated in section 3.7 of the
Order.
Article IX. Information Owned or Controlled by the Director of Central
Intelligence (DCI)
Notwithstanding any conclusion reached by the ISCAP that
information owned or controlled by the DCI should be declassified,
if the DCI disagrees because he or she has made a determination as
set forth in section 5.3(f) of the Order, and he or she so notifies
the Panel, the information shall remain classified. The Panel
expects notification to normally be made in writing within 60 days
of receipt of the Panel's written notification of such a conclusion.
In the event that the DCI requires additional time to provide
notification to the Panel, the DCI, his or her deputy, or the DCI's
primary or alternate Panel member, shall notify the Panel, in
writing, of the need for additional time, not to exceed an
additional 30 days. Following receipt of the DCI's determination,
the Panel, by majority vote, or an agency head represented on the
Panel, may petition the President, through the Assistant to the
President for National Security Affairs, to reverse the DCI's
determination. Such petitions must be made within 60 days of receipt
of the DCI's determination. If the Panel has not been notified of
the DCI's determination within 60 days (or if additional time is
requested as outlined above, within 90 days) of the date that the
DCI has been notified of the Panel's conclusion, the information
shall be declassified, pending resolution of any appeals filed
pursuant to section I of Article VIII of these bylaws.
Article X. AddItional Functions
In its consideration of the matters before it, the ISCAP shall
perform such additional advisory functions as are consistent with
and supportive of the successful implementation of the Order.
Article XI. Support Staff
As provided in section 5.3(a) of the Order, the Director of the
Information Security Oversight Office will serve as Executive
Secretary to the ISCAP, and the staff of the Information Security
Oversight Office will provide program and administrative support for
the ISCAP. The Executive Secretary will supervise the staff in this
function pursuant to the direction of the Chair and ISCAP. On an as
needed basis, the ISCAP may seek detailees from its member agencies
to augment the staff of the Information Security Oversight Office in
support of the ISCAP.
Article XII. Records
A. Integrity of ISCAP Records. The Executive Secretary shall
maintain separately documentary materials, regardless of their
physical form or characteristics, that are produced by or presented
to the ISCAP or its staff in the performance of the ISCAP's
functions, consistent with applicable federal law.
B. Referrals. Any Freedom of Information Act request or other
access request for a document that originated within an agency other
than the ISCAP shall be referred to that agency for processing.
Article XIII. Annual Reports to the President
The ISCAP has been established for the sole purpose of advising
and assisting the President in the discharge of his constitutional
and discretionary authority to protect the national security of the
United States (section 5.3(e) of the Order). As provided in section
5.3(a) of the Order, pertinent information and data about the
activities of the ISCAP shall be included in the Reports to the
President issued by the Information Security Oversight Office. The
Chair, in coordination with the other members of the ISCAP and the
Executive Secretary, shall determine what information and data to
include in each Report.
Article XIV. Approval, Amendment, and Publication of Bylaws
The approval and amendment of these bylaws shall require the
affirmative vote of at least four of the ISCAP's members. In
accordance with the Order, the Executive Secretary shall submit the
approved bylaws and their amendments for publication in the Federal
Register.
Dated: March 26, 2004.
J. William Leonard,
Director, Information Security Oversight Office.
[FR Doc. 04-7317 Filed 3-31-04; 8:45 am]
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