Federal Register: January 27, 2003 (Volume 68, Number 17)
Rules and Regulations
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DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 7
RIN 1601-AA02
Classified National Security Information
AGENCY: Office of the Secretary, Homeland Security.
ACTION: Interim final rule.
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SUMMARY: This interim final rule implements Executive Order 12958,
entitled "Classified National Security Information," as amended, by
establishing the initial elements of the Department of Homeland
Security's classified national security information regulations.
DATES: This interim final rule is effective January 27, 2003. Written
comments may be submitted by February 26, 2003.
ADDRESSES: Submit written comments (preferably an original and three
copies) to Associate General Counsel (General Law), Department of
Homeland Security, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Ellen McClain, (202) 612-1952, not a
toll free call.
SUPPLEMENTARY INFORMATION:
I. Background
On November 25, 2002, the President signed into law the Homeland
Security Act of 2002 (Pub. L. 107-296), which created the new
Department of Homeland Security (DHS). Pursuant to the provisions of
the Act, the new Department came into existence on January 24, 2003.
In order to establish procedures to facilitate public interaction
with the DHS Office of the Secretary, DHS is issuing an initial series
of proposed and interim final regulations.
II. The Interim Final Rule
This interim final rule establishes initial procedures necessary
for the DHS to fulfill its obligations under Executive Order 12958, as
amended, regarding classified national security information.
Executive Order 12958, as amended, was issued to update and revise
the standards and process for classifying, safeguarding and
declassifying classified national security information. The rule
delegates to the Under Secretary for Information Analysis and
Infrastructure Protection responsibility for developing the vast
majority of information and internal operating instructions on
classified information.
III. Procedural Requirements
Because the DHS came into existence on January 24, 2003, it is
necessary to promptly establish initial procedures to facilitate the
interaction of the public with the Department. Furthermore, this
interim final rule generally parallels the procedures currently used by
other agencies to fulfill their obligations under Executive Order
12958, as amended, regarding classified national security information.
Accordingly, the Department has determined that notice and public
procedure are impracticable, unnecessary and contrary to the public
interest pursuant to 5 U.S.C. 553(b)(B). For the same reasons, the
Department has determined that this interim rule should be issued
without a delayed effective date pursuant to 5 U.S.C. 553(d)(3).
It has been determined that this rulemaking is not a significant
regulatory action for the purposes of Executive Order 12866.
Accordingly, a regulatory impact analysis is not required.
Because no notice of proposed rulemaking is required, the
provisions of the Regulatory Flexibility Act (5 U.S.C. chapter 6) do
not apply.
This rule has been reviewed by the Information Security Oversight
Office of the National Archives and Records Administration, pursuant to
Executive Order 12958.
List of Subjects in 6 CFR Part 7
Classified information, Organization, functions, and authority
delegations.
[[Page 4074]]
Authority and Issuance
For the reasons set forth above, 6 CFR chapter I is amended by
adding part 7 to read as follows:
PART 7--CLASSIFIED NATIONAL SECURITY INFORMATION
Sec.
7.1 Purpose.
7.2 Scope.
7.3 Definitions.
7.11 Authority of the Under Secretary for Information Analysis and
Infrastructure Protection.
7.21 Classification and declassification authority.
7.31 Mandatory review for declassification requests.
Authority: 5 U.S.C. 301; 6 U.S.C. 122; E.O. 12958, 60 FR 19825;
3 CFR, 1995 Comp., p. 333; E.O. 13142, 64 FR 66089, 3 CFR, 1999
Comp., p. 236; 32 CFR part 2001.
Sec. 7.1 Purpose.
The purpose of this part is to ensure that information within the
Department of Homeland Security (Department) relating to the national
security is classified, safeguarded, and declassified pursuant to the
provisions of Executive Order 12958, as amended, and implementing
directives from the Information Security Oversight Office of the
National Archives and Records Administration (ISOO).
Sec. 7.2 Scope.
(a) All employees granted access to classified information by the
Department are governed by this part, and by the standards in Executive
Order 12958, as amended, any other applicable Executive Order, and
directives promulgated under those Executive Orders. If any portion of
this part conflicts with any portion of Executive Order 12958, as
amended, or any other applicable Executive Order, the Executive Order
shall apply. The provisions established by this subpart shall apply to
each component of the Department, including all Department components
that are transferred to the Department, except to the extent that a
Department component has adopted separate guidance with regard to
classified national security information and access.
(b) This part applies to non-contractor personnel, to include state
and local officials, and contractor personnel who are entrusted with
classified national security information originated within or in the
custody of the Department.
(c) This part is independent of and does not affect any
classification procedures or requirements of the Atomic Energy Act of
1954, as amended (42 U.S.C. 2011 et seq.).
(d) This part does not, and is not intended to, create any right to
judicial review, or any other right or benefit or trust responsibility,
substantive or procedural, enforceable by a party against the United
States, its agencies or instrumentalities, its officers or employees,
or any other person.
Sec. 7.3 Definitions.
The terms defined or used in Executive Order 12958, as amended, and
the implementing directives in 32 CFR part 2001, are applicable to this
part.
Sec. 7.11 Authority of the Under Secretary for Information Analysis
and Infrastructure Protection.
The Under Secretary for Information Analysis and Infrastructure
Protection is designated as the senior agency official as required by
section 5.6(c) of Executive Order 12958 and, except as specifically
provided elsewhere in this part, is authorized to administer the
Department's national security information program pursuant to
Executive Order 12958, as amended.
Sec. 7.21 Classification and declassification authority.
(a) Top Secret original classification authority may only be
exercised by the Secretary and by officials to whom such authority is
delegated in writing by the Secretary. As a minimum, the Under
Secretary for Information Analysis and Infrastructure Protection will
be delegated this authority. No official who is delegated Top Secret
classification authority pursuant to this paragraph may redelegate such
authority.
(b) The Under Secretary for Information Analysis and Infrastructure
Protection may delegate original Secret and Confidential classification
authority to other officials determined to have frequent need to
exercise such authority. No official who is delegated original
classification authority pursuant to this paragraph may redelegate such
authority.
(c) Officials authorized to classify information at a specified
level are also authorized to classify information at a lower level. In
the absence of an official authorized to exercise classification
authority pursuant to this section, the person designated to act in
lieu of such official may exercise the official's classification
authority.
Sec. 7.31 Mandatory review for declassification requests.
Any person may request classified information be reviewed for
declassification pursuant to the mandatory declassification review
provisions of section 3.6 of Executive Order 12958. Such requests shall
be sent to the Under Secretary for Information Analysis and
Infrastructure Protection, Department of Homeland Security, 1800 G
Street, NW., Washington, DC.
Dated: January 24, 2003.
Tom Ridge,
Secretary of Homeland Security.
