[Congressional Record: July 29, 2008 (House)]
[Page H7214-H7218]
REDUCING INFORMATION CONTROL DESIGNATIONS ACT
Mr. DAVIS of Illinois. Mr. Speaker, I move to suspend the rules and
pass the bill (H.R. 6576) to require the Archivist of the United States
to promulgate regulations regarding the use of information control
designations, and for other purposes, as amended.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 6576
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Reducing Information Control
Designations Act''.
SEC. 2. PURPOSE.
The purpose of this Act is to increase Governmentwide
information sharing and the availability of information to
the public by standardizing and limiting the use of
information control designations.
SEC. 3. REGULATIONS RELATING TO INFORMATION CONTROL
DESIGNATIONS WITHIN THE FEDERAL GOVERNMENT.
(a) Requirement To Reduce and Minimize Information Control
Designations.--Each Federal agency shall reduce and minimize
its use of information control designations on information
that is not classified.
(b) Archivist Responsibilities.--
(1) Regulations.--The Archivist of the United States shall
promulgate regulations regarding the use of information
control designations.
(2) Requirements.--The regulations under this subsection
shall address, at a minimum, the following:
(A) Standards for utilizing the information control
designations in a manner that is narrowly tailored to
maximize public access to information.
[[Page H7215]]
(B) The process by which information control designations
will be removed.
(C) Procedures for identifying, marking, dating, and
tracking information assigned the information control
designations, including the identity of officials making the
designations.
(D) Provisions to ensure that the use of information
control designations is minimized and cannot be used on
information--
(i) to conceal violations of law, inefficiency, or
administrative error;
(ii) to prevent embarrassment to Federal, State, local,
tribal, or territorial governments or any official, agency,
or organization thereof; any agency; or any organization;
(iii) to improperly or unlawfully interfere with
competition in the private sector;
(iv) to prevent or delay the release of information that
does not require such protection;
(v) if it is required to be made available to the public;
or
(vi) if it has already been released to the public under
proper authority.
(E) Provisions to ensure that the presumption shall be that
information control designations are not necessary.
(F) Methods to ensure that compliance with this Act
protects national security and privacy rights.
(G) The establishment of requirements that Federal
agencies, subject to chapter 71 of title 5, United States
Code, implement the following:
(i) A process whereby an individual may challenge without
retribution the application of information control
designations by another individual and be rewarded with
specific incentives for successful challenges resulting in--
(I) the removal of improper information control
designations; or
(II) the correct application of appropriate information
control designations.
(ii) A method for informing individuals that repeated
failure to comply with the policies, procedures, and programs
established under this section could subject them to a series
of penalties.
(iii) Penalties for individuals who repeatedly fail to
comply with the policies, procedures, and programs
established under this section after having received both
notice of their noncompliance and appropriate training or re-
training to address such noncompliance.
(H) Procedures for members of the public to be heard
regarding improper applications of information control
designations.
(I) A procedure to ensure that all agency policies and
standards for utilizing information control designations that
are issued pursuant to subsection (c) be provided to the
Archivist and that such policies and standards are made
publicly available on the website of the National Archives
and Records Administration.
(3) Consultation.--In promulgating the regulations, the
Archivist shall consult with the heads of Federal agencies
and with representatives of State, local, tribal, and
territorial governments; law enforcement entities;
organizations with expertise in civil rights, employee and
labor rights, civil liberties, and government oversight; and
the private sector, as appropriate.
(c) Agency Responsibilities.--The head of each Federal
agency shall implement the regulations promulgated by the
Archivist under subsection (b) in the agency in a manner that
ensures that--
(1) information can be shared within the agency, with other
agencies, and with State, local, tribal, and territorial
governments, the private sector, and the public, as
appropriate;
(2) all policies and standards for utilizing information
control designations are consistent with such regulations;
(3) the number of individuals with authority to apply
information control designations is limited; and
(4) information control designations may be placed only on
the portion of information that requires control and not on
the entire material.
SEC. 4. ENFORCEMENT OF INFORMATION CONTROL DESIGNATION
REGULATIONS WITHIN THE FEDERAL GOVERNMENT.
(a) Inspector General Responsibilities.--The Inspector
General of each Federal agency, in consultation with the
Archivist, shall randomly audit unclassified information with
information control designations. In conducting any such
audit, the Inspector General shall--
(1) assess whether applicable policies, procedures, rules,
and regulations have been followed;
(2) describe any problems with the administration of the
applicable policies, procedures, rules and regulations,
including specific non-compliance issues;
(3) recommend improvements in awareness and training to
address any problems identified under paragraph (2); and
(4) report to the Committee on Oversight and Government
Reform of the House of Representatives, the Committee on
Homeland Security and Governmental Affairs of the Senate, the
Archivist, and the public on the findings of the Inspector
General's audits under this section.
(b) Personal Identifiers.--
(1) In general.--For purposes described in paragraph (2),
the Archivist of the United States shall require that, at the
time of designation of information, the following shall
appear on the information:
(A) The name or personal identifier of the individual
applying information control designations to the information.
(B) The agency, office, and position of the individual.
(2) Purposes.--The purposes described in this paragraph are
as follows:
(A) To enable the agency to identify and address misuse of
information control designations, including the
misapplication of information control designations to
information that does not merit such markings.
(B) To assess the information sharing impact of any such
problems or misuse.
(c) Training.--The Archivist, subject to chapter 71 of
title 5, United States Code, and in coordination with the
heads of Federal agencies, shall--
(1) require training as needed for each individual who
applies information control designations, including--
(A) instruction on the prevention of the overuse of
information control designations;
(B) the standards for applying information control
designations;
(C) the proper application of information control
designations, including portion markings;
(D) the consequences of repeated improper application of
information control designations, including the
misapplication of information control designations to
information that does not merit such markings, and of failing
to comply with the policies and procedures established under
or pursuant to this section; and
(E) information relating to lessons learned about improper
application of information control designations, including
lessons learned pursuant to the regulations and Inspector
General audits required under this Act and any internal
agency audits; and
(2) ensure that such program is conducted efficiently, in
conjunction with any other security, intelligence, or other
training programs required by the agency to reduce the costs
and administrative burdens associated with the additional
training required by this section.
(d) Detailee Program.--
(1) Requirement for program.--The Archivist, subject to
chapter 71 of title 5, United States Code, shall implement a
detailee program to detail Federal agency personnel, on a
nonreimbursable basis, to the National Archives and Records
Administration, for the purpose of--
(A) training and educational benefit for agency personnel
assigned so that they may better understand the policies,
procedures, and laws governing information control
designations;
(B) bolstering the ability of the National Archives and
Records Administration to conduct its oversight authorities
over agencies; and
(C) ensuring that the policies and procedures established
by the agencies remain consistent with those established by
the Archivist of the United States.
(2) Sunset of detailee program.--Except as otherwise
provided by law, this subsection shall cease to have effect
on December 31, 2012.
SEC. 5. RELEASING INFORMATION PURSUANT TO THE FREEDOM OF
INFORMATION ACT.
(a) Agency Responsibilities.--The head of each Federal
agency shall ensure that--
(1) information control designations are not a determinant
of public disclosure pursuant to section 552 of title 5,
United States Code (commonly referred to as the ``Freedom of
Information Act''); and
(2) all information in the agency's possession that is
releasable is made available to members of the public
pursuant to an appropriate request under such section 552.
(b) Rule of Construction.--Nothing in this Act shall be
construed to prevent or discourage any Federal agency from
voluntarily releasing to the public any unclassified
information that is not exempt from disclosure under section
552 of title 5, United States Code (commonly referred to as
the ``Freedom of Information Act'').
SEC. 6. DEFINITIONS.
In this Act:
(1) Information control designations.--The term
``information control designations'' means information
dissemination controls, not defined by Federal statute or by
an Executive order relating to the classification of national
security information, that are used to manage, direct, or
route information, or control the accessibility of
information, regardless of its form or format. The term
includes, but is not limited to, the designations of
``controlled unclassified information'', ``sensitive but
unclassified'', and ``for official use only''.
(2) Information.--The term ``information'' means any
communicable knowledge or documentary material, regardless of
its physical form or characteristics, that is owned by, is
produced by or for, or is under the control of the Federal
Government.
(3) Federal agency.--The term ``Federal agency'' means--
(A) any Executive agency, as that term is defined in
section 105 of title 5, United States Code;
(B) any military department, as that term is defined in
section 102 of such title; and
(C) any other entity within the executive branch that comes
into the possession of classified information.
SEC. 7. DEADLINE FOR REGULATIONS AND IMPLEMENTATION.
Regulations shall be promulgated in final form under this
Act, and implementation of
[[Page H7216]]
the requirements of this Act shall begin, not later than 24
months after the date of the enactment of this Act.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Illinois (Mr. Davis) and the gentlewoman from North Carolina (Ms. Foxx)
will each control 20 minutes.
The Chair recognizes the gentleman from Illinois.
General Leave
Mr. DAVIS from Illinois. Mr. Speaker, I ask unanimous consent that
all Members may have 5 legislative days in which to revise and extend
their remarks.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Illinois?
There was no objection.
Mr. DAVIS of Illinois. Mr. Speaker, I would like to yield to the
chairman of the Committee on Oversight and Government Reform, Chairman
Henry Waxman, for whatever time he might consume.
Mr. WAXMAN. I thank the gentleman for yielding to me.
Representative Tom Davis and I introduced H.R. 6576, the Reducing
Information Control Designations Act to address the growing number of
information controlled designations used by the Federal Government. The
Committee on Oversight and Government Reform has held numerous hearings
on this issue. Committee investigations have found that there has been
a proliferation of pseudo-classification designation such as
``sensitive but unclassified'' or ``for official use only.'' These
often vague and undefined markings can be used to prevent or delay
information sharing with interested stakeholders or public release of
information.
The National Archives and Records Administration reports that
currently there are more than 100 information controlled designations
applied across the Federal Government. New categories of information
controlled designations are being created by the agencies, yet these
designations lack a statutory basis, and there is no Federal entity
monitoring their use.
This bill addresses all types of information use across the
government. Its goal is to promote open government by reducing the
number and use of restrictive designations used on government
information.
Specifically, this bill calls on the archivists to promulgate
regulations to reduce and minimize the use of information controlled
designations and to maximize public access to information. The bill
allows individuals to challenge designations, requires that agencies'
inspectors general conduct random audits to determine whether
information controls are being used properly, and requires personal
identifiers to be placed on information with an information designation
control so agencies identify the individual who made the designation.
This bill also clarifies that agencies may not use information
controlled designations in considering whether to release information
under the Freedom of Information Act.
Mr. Speaker, I want to thank Ranking Member Davis for working with us
to improve this bill and to move it quickly to the House floor. The
legislation before us includes changes that have been made since the
bill passed out of full committee. These changes were made to address
concerns raised by the administration and several interested Members of
the Congress.
{time} 1400
These changes include ensuring that the Archivist's training responds
to lessons learned about improper application of control designations
and deleting language requiring the regulations to address the duration
of a control designation.
Secret government is rarely good government. This bill is an
important step in restoring openness to the executive branch.
Mr. Speaker, Representative Tom Davis and I introduced H.R. 6576, the
Reducing Information Control Designations Act, to address the growing
number of information control designations used by the Federal
Government.
The Committee on Oversight and Government Reform has held numerous
hearings on this issue. Committee investigations have found that there
has been a proliferation of pseudoclassification designations such as
``sensitive but unclassified'' or ``for official use only.'' These
often vague and undefined markings can be used to prevent or delay
information sharing with interested stakeholders or public release of
information.
The National Archives and Records Administration reports that
currently there are more than 100 information control designations
applied across the Federal Government.
New categories of information control designations are being created
by agencies yet these designations lack a statutory basis, and there is
no Federal entity monitoring their use.
This bill addresses all types of information uses across the
Government. Its goal is to promote open government by reducing the
number and use of restrictive designations used on Government
information.
Specifically, this bill calls on the Archivist to promulgate
regulations to reduce and minimize the use of information control
designations and to maximize public access to information. The bill
allows individuals to challenge designations, requires that agency
inspectors general conduct random audits to determine whether
information controls are being used properly, and requires personal
identifiers to be placed on information with an information designation
control so agencies can identify the individual who made the
designation. This bill also clarifies that agencies may not use
information control designations in considering whether to release
information under the Freedom of Information Act.
Mr. Speaker, I want to thank Ranking Member Davis for working with me
to move this bill quickly to the House floor. The legislation before us
includes changes that have been made since the bill passed out of full
Committee. These changes were made to address concerns raised by the
Administration and several interested members of Congress. These
changes include: ensuring that the Archivist's training responds to
lessons learned about improper application of control designations and
deleting language requiring the regulations to address the duration of
a control designation.
Secret government is rarely good government. This bill is an
important step in restoring openness to the executive branch.
I am submitting for the Record the cost estimate for H.R. 6576 from
the Congressional Budget Office.
I urge my colleagues to support this bill.
July 29, 2008.
Hon. Henry A. Waxman,
Chairman, Committee on Oversight and Government Reform, House
of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 6576, the
Reducing Information Control Designations Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Peter R. Orszag.
Enclosure.
H.R. 6576--Reducing Information Control Designations Act
Summary: H.R. 6576 would amend federal law concerning the
security classification of government documents. The
legislation would require the National Archives and Records
Administration (NARA), in consultation with the Director of
National Intelligence and other affected federal agencies, to
develop regulations that minimize and reduce the government's
use of information-control designations on information that
is not classified. The bill also would require training for
employees and contractors on using classifications and random
audits by inspectors general on the proper use of
information-control designations.
CBO estimates that implementing H.R. 6576 would have a
discretionary cost of $15 million in 2009 and $45 million
over the 2009-2013 period to implement the new regulations,
provide training, and conduct audits that would be required
under the bill. Although the legislation could affect
agencies not funded through annual appropriations (such as
the Tennessee Valley Authority or the U. S. Postal Service),
CBO estimates that any net increase in spending by those
agencies would not be significant. As a result, enacting the
bill would have no significant impact on direct spending or
revenues.
H.R.6576 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act
(UMRA) and would not affect the budgets of state, local, or
tribal governments.
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 6576 is shown in the following
table. The costs of this legislation fall within most budget
functions that contain salaries and expenses.
[[Page H7217]]
----------------------------------------------------------------------------------------------------------------
By fiscal year in millions of dollars--
--------------------------------------------------
2009 2010 2011 2012 2013 2009-2013
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level................................ 15 15 5 5 5 45
Estimated Outlays............................................ 15 15 5 5 5 45
----------------------------------------------------------------------------------------------------------------
Basis of estimate: For this estimate, CBO assumes that the
bill will be enacted near the start of fiscal year 2009 I and
that spending would follow historical patterns for similar
programs.
Under current law, agencies are required to develop
policies for handling terrorism-related and homeland security
information. However, the Government Accountability Office
(GAO) , has reported that there are no governmentwide
policies and procedures for agencies to use to . classify
sensitive, but unclassified information.
Based on the information provided by GAO, NARA, and
selected federal agencies. and inspectors general about the
current use of information-control designations, CBO
estimates that implementing H.R. 6576 would cost $15 million
in 2009 and $45 million over the 2009-2013 period, assuming
appropriation of the necessary amounts. Initial costs would
total about $20 million and would be incurred over the first
two years. Ongoing costs would total about $25 million over
the 2009-2013 period, mostly for subsequent training and
random audits by inspectors general.
Intergovernmental and private-sector impact: H.R. 6576
contains no intergovernmental or private-sector mandates as
defined in UMRA and would not affect the budgets of state,
local, or tribal governments.
Estimate prepared by: Federal Costs: Matthew Pickford;
Impact on State, Local, and Tribal Governments: Elizabeth
Cove; Impact on the Private-Sector: Paige Piper/Bach.
Estimate approved by: Peter H. Fontaine, Assistant Director
for Budget Analysis.
Ms. FOXX. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, in recent years, we've seen an exponential growth in the
number and types of non-classified information control designations.
These designations carry little, if any, statutory authority, and no
Federal entity is monitoring their use. So there is a need for some
legislative control over the creation and use of those vague
designations. H.R. 6576 attempts to achieve that goal.
This legislation makes it clear Congress intends agencies to limit
the use of information control designations, so that government-wide
information-sharing is increased and information is more available to
the public.
One important component to this legislation is it creates a
government-wide solution to this problem, as opposed to allowing each
agency to create its own rules for how these designations are handled.
For too long, Federal departments have insisted on treating
information they develop as their information. To protect their
information, agencies have imposed a variety of sanctions on employees.
The net effect of this hyper-protectiveness has been to create an
environment where everyone knew something, but no one knew everything.
In May of this year, the President issued a memo establishing new
procedures designating the National Archives as responsible for
overseeing and managing the implementation of the controlled
unclassified information framework.
Our intent with this legislation, for the most part, is to codify the
processes laid out in that memo so future administrations cannot roll
back these modernizing procedures. The proliferation of ``sensitive but
unclassified'' and ``for official use only'' designations is clogging
the arteries meant to take critical information to Federal, State and
local agencies, and the public.
This legislation instructs the Archivist to establish regulations
regarding the use of information control designations, with an emphasis
on minimizing agency use, and establishes a process allowing the public
to review these documents at the appropriate time.
One section which deviates from the President's plan is a section
which would provide an incentive for employees to challenge control
designations and be rewarded for succeeding in these challenges.
Upon reflection, I'm concerned this creates the wrong incentive. Are
we putting employee personal gain at odds with agency security?
And, how would this system actually work? Who will make awards
decisions? When is such a challenge eligible for an award? I expect we
will need to clarify this system before the bill becomes law.
On the whole, I am satisfied this legislation will go a long way
toward clarifying what types of control designations may be used and
when they are not appropriate.
Mr. Speaker, as the security needs of our country change, we need to
adjust with them. Our future safety depends on moving from a need-to-
know culture to a need-to-share culture.
This legislation will help us reach that goal, and I urge my
colleagues to support it.
Mr. Speaker, I reserve the balance of my time.
Mr. DAVIS of Illinois. Mr. Speaker, I yield myself such time as I
might consume.
Mr. Speaker, H.R. 6576, the Reducing Information Control Designations
Act, limits the Federal Government's use of information control
designations.
Investigations by the Committee on Oversight and Government Reform
have found that Federal agencies have increasingly placed restrictions
on unclassified information by using information control designations
such as ``sensitive but unclassified.'' These designations are
dangerous because they impede information-sharing with State and local
governments and the public.
There is no statutory authority for agency use of information control
designations. Thus, these designations are not used consistently and
are often overused and confusing. In May, the White House issued a
memorandum to address this issue. That memo did not go far enough.
While it addressed the number of designations, it did not try to limit
their use.
This bill further seeks to limit the use of these designations to
improve information-sharing within the government and with the public.
I support this bill and urge my colleagues to do the same.
I would reserve the balance of my time.
Ms. FOXX. Mr. Speaker, this is an important bill and it should pass.
However, we should be dealing with what is most on the minds of
Americans today, the high cost of gasoline brought on since the
Democrats gained control of the Congress.
Poll after poll underscores the American people's strong support for
increased American energy production to help bring down gas prices. And
an increasing number of rank-and-file Democrats in Congress are
listening to them and calling for a vote on more environmentally safe
oil and gas drilling here at home.
We know that at least two House Democrats have spoken up about this
issue and are asking the Democratic leadership to call for more
drilling to help lower gas prices, and I want to quote from two of
them. It's in Congressional Quarterly, 7/28/08, by Subcommittee
Chairman Peter Visclosky: ``We ought to have a vote in the House of
Representatives about it,'' meaning lower gas prices.
Representative Tim Holden from Pennsylvania has said: ``Drill
everywhere . . . I'm for off-shore (oil) drilling. It needs to be part
of a multi-pronged approach.'' This appeared in the Pottsville
Republican Herald, 7/28/08.
So how does Speaker Pelosi respond to these ever-intensifying calls
for more American energy? She calls it a hoax, and I want to quote from
a press release from the Leader's office. In an appearance this morning
on NBC's Today show, Speaker Pelosi coldly dismissed the views held by
a solid majority of the American people, not to mention a bipartisan
majority in Congress, saying, ``It's really a hoax. It's really a hoax
on the American people.''
This is just the latest illustration of how out of touch the Speaker
and her colleagues in the Democratic leadership are with American
families and
[[Page H7218]]
small businesses who are being pummeled day in and day out by soaring
energy prices.
So, Mr. Speaker, I support the passage of this bill, but I call on
the Speaker and the Democratic leadership to bring for a vote bills,
among them the American Energy Act introduced last week by the House
Republicans, to explore for more oil and to lower the cost of energy in
this country.
Mr. Speaker, I yield back.
Mr. DAVIS of Illinois. Mr. Speaker, to get us back to H.R. 6576, the
Reducing Information Control Designations Act, I urge its passage.
I yield back the balance of our time.
The SPEAKER pro tempore (Mr. Sires). The question is on the motion
offered by the gentleman from Illinois (Mr. Davis) that the House
suspend the rules and pass the bill, H.R. 6576, as amended.
The question was taken.
The SPEAKER pro tempore. In the opinion of the Chair, two-thirds
being in the affirmative, the ayes have it.
Ms. FOXX. Mr. Speaker, I object to the vote on the ground that a
quorum is not present and make the point of order that a quorum is not
present.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX and the
Chair's prior announcement, further proceedings on this motion will be
postponed.
The point of no quorum is considered withdrawn.
____________________
[Congressional Record: July 30, 2008 (House)]
[Page H7596]
REDUCING INFORMATION CONTROL DESIGNATIONS ACT
The SPEAKER pro tempore. The unfinished business is the question on
suspending the rules and passing the bill, H.R. 6576, as amended.
The Clerk read the title of the bill.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Illinois (Mr. Davis) that the House suspend the rules
and pass the bill, H.R. 6576, as amended.
The question was taken; and (two-thirds being in the affirmative) the
rules were suspended and the bill, as amended, was passed.
A motion to reconsider was laid on the table.
____________________
