[Federal Register: January 3, 2007 (Volume 72, Number 1)]
[Proposed Rules]
[Page 59-62]
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DEPARTMENT OF STATE
22 CFR Part 9
[Public Notice 5658]
RIN 1400-AB91
National Security Information Regulations
AGENCY: Department of State.
ACTION: Proposed rule with request for comment.
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SUMMARY: The Department of State proposes to revise its regulations
governing the classification of national security information that is
under the control of the Department in order to reflect the provisions
of a new executive order on national security information and
consequent changes in the Department's procedures since the last
revision of the Department's regulations on this subject.
COMMENT DATES: The Department will consider any comments from the
public that are received by April 3, 2007.
ADDRESSES: You may submit comments to Margaret P. Grafeld, Director,
Office of Information Programs and Services, (202) 261-8300, U.S.
Department of State, SA-2, 515 22nd St. NW., Washington. DC 20522-6001;
FAX: 202-261-8590. E-mail [email protected]. If submitting comments
by e-mail, you must include the RIN in the subject line of your
message. You may view this rule online at http://www.regulations.gov/index.cfm
.
FOR FURTHER INFORMATION, CONTACT: Margaret P. Grafeld, Director, Office
of Information Programs and Services, (202) 261-8300, U.S. Department
of State, SA-2, 515 22nd St. NW., Washington. DC 20522-6001; FAX: 202-
261-8590.
SUPPLEMENTARY INFORMATION: Since the last version of Part 9 of 22 CFR
was published, the executive order governing classification of national
security information has been superseded by E.O 12958, effective
October 14, 1995. Since its promulgation, E.O. 12958 has been amended
several times, most recently and most substantially by Executive Order
13292 dated March 28, 2003, which effected changes in classification
categories, provisions regarding the duration of classification,
provisions regarding reclassification of previously declassified and
released information, and the disclosure of classified information in
an emergency. In addition, in contrast to the indefinite classification
provisions of E.O. 12356, the new executive order provides for
classification for up to 25 years under certain criteria and, in
certain circumstances, classification beyond 25 years under more
stringent criteria.
Regulatory Findings
Administrative Procedure Act. The Department is publishing this
rule as a proposed rule. Public comments are invited for a period of 90
days following this document's publication in the Federal Register.
Regulatory Flexibility Act. The Department, in accordance with the
Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this
proposed rule and, by approving it, certifies that this rule will not
have significant economic impact on a substantial number of small
entities.
Unfunded Mandates Act of 1995. This proposed rule will not result
in the expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of $100 million or more in any
year, and it will not significantly or uniquely affect small
governments. Therefore, no actions are deemed necessary under the
provisions of the Unfounded Mandates Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996. This
rule is not a major rule as defined by section 804 of the Small
Business Regulatory Enforcement Act of 1996. This rule will not result
in an annual effect on the economy of $100 million or more; a major
increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign
based companies in domestic and import markets.
Executive Order 12866. The Department does not consider this rule
to be a ``significant regulatory action'' under Executive Order (E.O.)
12866, section 3(f), Regulatory Planning and Review. In addition, the
Department is exempt from Executive Order 12866 except to the extent
that it is promulgating regulations in conjunction with a domestic
agency that are significant regulatory actions. The Department has
nevertheless reviewed the regulation to ensure its consistency with the
regulatory philosophy and principles set forth in that Executive Order.
Executive Order 13132. This regulation will not have substantial
direct effects on the states, on the relationship between the national
government and the states, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with section 6 of Executive Order 13132, it is determined
that this rule does not have sufficient federalism implications to
require consultations or warrant the preparation of a federalism
summary impact statement.
Paperwork Reduction Act. This rule does not impose any new
reporting or record-keeping requirements subject to the Paperwork
Reduction Act, 44 U.S.C. Chapter 35.
List of Subjects in 22 CFR Part 9
Original classification, original classification authorities,
derivative classification, classification challenges, declassification
and downgrading, mandatory declassification review, systematic
declassification review, safeguarding.
For the reasons set forth in the preamble, Title 22, Part 9 of the
Code of Federal Regulations is proposed to be revised as follows:
PART 9--SECURITY INFORMATION REGULATIONS
Sec.
9.1 Basis.
9.2 Objective.
9.3 Senior agency official.
9.4 Original classification.
9.5 Original classification authority.
9.6 Derivative classification.
9.7 Identification and marking.
9.8 Classification challenges.
9.9 Declassification and downgrading.
9.10 Mandatory declassification review.
9.11 Systematic declassification review.
9.12 Access to classified information by historical researchers and
certain former government personnel.
9.13 Safeguarding.
Authority: E.O. 12958 (60 FR 19825, April 20, 1995) as amended;
Information Security Oversight Office Directive No. 1, 32 CFR 2001
(68 FR 55168, Sept. 22, 2003)
Sec. 9.1 Basis.
These regulations, taken together with the Information Security
Oversight Office Directive No. 1 dated September 22, 2003, and Volume 5
of the Department's Foreign Affairs Manual, provide the basis for the
security classification program of the U.S. Department of State (``the
Department'') implementing Executive Order 12958, ``Classified National
Security Information'', as amended (``the Executive Order'').
Sec. 9.2 Objective.
The objective of the Department's classification program is to
ensure that national security information is protected from
unauthorized disclosure, but only to the extent and for such a period
as is necessary.
[[Page 60]]
Sec. 9.3 Senior agency official.
The Executive Order requires that each agency that originates or
handles classified information designate a senior agency official to
direct and administer its information security program. The
Department's senior agency official is the Under Secretary of State for
Management. The senior agency official is assisted in carrying out the
provisions of the Executive Order and the Department's information
security program by the Assistant Secretary for Diplomatic Security,
the Assistant Secretary for Administration, and the Deputy Assistant
Secretary for Information Sharing Services.
Sec. 9.4 Original classification.
(a) Definition. Original classification is the initial
determination that certain information requires protection against
unauthorized disclosure in the interest of national security (i.e.,
national defense or foreign relations of the United States), together
with a designation of the level of classification.
(b) Classification levels.
(1) Top Secret shall be applied to information the unauthorized
disclosure of which reasonably could be expected to cause exceptionally
grave damage to the national security that the original classification
authority is able to identify or describe.
(2) Secret shall be applied to information the unauthorized
disclosure of which reasonably could be expected to cause serious
damage to the national security that the original classification
authority is able to identify or describe.
(3) Confidential shall be applied to information the unauthorized
disclosure of which reasonably could be expected to cause damage to the
national security that the original classification authority is able to
identify or describe.
(c) Classification requirements and limitations.
(1) Information may not be considered for classification unless it
concerns:
(i) Military plans, weapons systems, or operations;
(ii) Foreign government information;
(iii) Intelligence activities (including special activities),
intelligence sources or methods, or cryptology;
(iv) Foreign relations or foreign activities of the United States,
including confidential sources;
(v) Scientific, technological, or economic matters relating to the
national security; which includes defense against transnational
terrorism;
(vi) United States Government programs for safeguarding nuclear
materials or facilities;
(vii) Vulnerabilities or capabilities of systems, installations,
infrastructures, projects, plans, or protection services relating to
the national security, which includes defense against transnational
terrorism; or
(viii) Weapons of mass destruction.
(2) In classifying information, the public's interest in access to
government information must be balanced against the need to protect
national security information.
(3) In no case shall information be classified in order to conceal
violations of law, inefficiency, or administrative error, or to prevent
embarrassment to a person, organization, or agency, to restrain
competition, or to prevent or delay the release of information that
does not require protection in the interest of the national security.
(4) A reference to classified documents that does not directly or
indirectly disclose classified information may not be classified or
used as a basis for classification.
(5) Only information owned by, produced by or for, or under the
control of the U.S. Government may be classified.
(6) The unauthorized disclosure of foreign government information
is presumed to cause damage to national security.
(d) Duration of classification.
(1) Information shall be classified for as long as is required by
national security considerations, subject to the limitations set forth
in section 1.5 of the Executive Order. When it can be determined, a
specific date or event for declassification in less than 10 years shall
be set by the original classification authority at the time the
information is originally classified. If a specific date or event for
declassification cannot be determined, information shall be marked for
declassification 10 years from the date of the original decision,
unless the original classification authority determines that the
sensitivity of the information requires that it shall be marked for
declassification for up to 25 years.
(2) An original classification authority may extend the duration of
classification, change the level of classification, or reclassify
specific information only when the standards and procedures for
classifying information under the Executive Order are met.
(3) Information marked for an indefinite duration of classification
under predecessor orders, such as ``Originating Agency's Determination
Required '' (OADR) or containing no declassification instructions shall
be subject to the declassification provisions of Part 3 of the Order,
including the provisions of section 3.3 regarding automatic
declassification of records older than 25 years.
Sec. 9.5 Original classification authority.
(a) Authority for original classification of information as Top
Secret may be exercised by the Secretary and those officials delegated
this authority in writing by the Secretary. Such authority has been
delegated to the Deputy Secretary, the Under Secretaries, Assistant
Secretaries and other Executive Level IV officials and their deputies;
Chiefs of Mission, Charge d'Affaires, and Principal Officers at
autonomous posts abroad; and to other officers within the Department as
set forth in Department Notice dated May 26, 2000.
(b) Authority for original classification of information as Secret
or Confidential may be exercised only by the Secretary, the Senior
Agency Official, and those officials delegated this authority in
writing by the Secretary or the Senior Agency Official. Such authority
has been delegated to Office Directors and Division Chiefs in the
Department, Section Heads in Embassies and Consulates abroad, and other
officers within the Department as set forth in Department Notice dated
May 26, 2000. In the absence of the Secret or Confidential
classification authority, the person designated to act for that
official may exercise that authority.
Sec. 9.6 Derivative classification.
(a) Definition. Derivative classification is the incorporating,
paraphrasing, restating or generating in new form information that is
already classified and the marking of the new material consistent with
the classification of the source material. Duplication or reproduction
of existing classified information is not derivative classification.
(b) Responsibility. Information classified derivatively from other
classified information shall be classified and marked in accordance
with instructions from an authorized classifier or in accordance with
an authorized classification guide and shall comply with the standards
set forth in sections 2.1-2.2 of the Executive Order and the ISOO
implementing directives in 32 CFR 2001.22.
(c) Department of State Classification Guide. The Department of
State Classification Guide (DSCG) is the primary authority for the
classification of information in documents created by Department of
State personnel. The Guide is classified ``Confidential'' and is found
on the Department of State's classified Web site.
[[Page 61]]
Sec. 9.7 Identification and marking.
(a) Classified information shall be marked pursuant to the
standards set forth in section 1.6 of the Executive Order; ISOO
implementing directives in 32 CFR 2001, Subpart B; and internal
Department guidance in 12 Foreign Affairs Manual (FAM).
(b) Foreign government information shall retain its original
classification markings or be marked and classified at a U.S.
classification level that provides a degree of protection at least
equivalent to that required by the entity that furnished the
information. Foreign government information retaining its original
classification markings need not be assigned a U.S. classification
marking provided the responsible agency determines that the foreign
government markings are adequate to meet the purposes served by U.S.
classification markings.
(c) Information assigned a level of classification under
predecessor executive orders shall be considered as classified at that
level of classification.
Sec. 9.8 Classification challenges.
(a) Challenges. Holders of information pertaining to the Department
of State who believe that its classification status is improper are
expected and encouraged to challenge the classification status of the
information. Holders of information making challenges to the
classification status of information shall not be subject to
retribution for such action. Informal, usually oral, challenges are
encouraged. Formal challenges to classification actions shall be in
writing to an original classification authority (OCA) with jurisdiction
over the information and a copy of the challenge shall be sent to the
Office of Information Programs and Services (IPS) of the Department of
State, SA-2, 515 22nd St. NW., Washington, DC 20522-6001. The
Department (either the OCA or IPS) shall provide an initial response in
writing within 60 days.
(b) Appeal procedures and time limits. A negative response may be
appealed to the Department's Appeals Review Panel (ARP) and should be
sent to: Chairman, Appeals Review Panel, c/o Information and Privacy
Coordinator/Appeals Officer, at the IPS address given above. The appeal
shall include a copy of the original challenge, the response, and any
additional information the appellant believes would assist the ARP in
reaching its decision. The ARP shall respond within 90 days of receipt
of the appeal. A negative decision by the ARP may be appealed to the
Interagency Security Classification Appeals Panel (ISCAP) referenced in
section 5.3 of Executive Order 12958. If the Department fails to
respond to a formal challenge within 120 days or if the ARP fails to
respond to an appeal within 90 days, the challenge may be sent to the
ISCAP.
Sec. 9.9 Declassification and downgrading.
(a) Declassification processes. Declassification of classified
information may occur:
(1) After review of material in response to a Freedom of
Information Act (FOIA)request, mandatory declassification review
request, discovery request, subpoena, classification challenge, or
other information access or declassification request;
(2) After review as part of the Department's systematic
declassification review program;
(3) As a result of the elapse of the time or the occurrence of the
event specified at the time of classification;
(4) By operation of the automatic declassification provisions of
section 3.3 of the Executive Order with respect to material more than
25 years old.
(b) Downgrading. When material classified at the Top Secret level
is reviewed for declassification and it is determined that
classification continues to be warranted, a determination shall be made
whether downgrading to a lower level of classification is appropriate.
If downgrading is determined to be warranted, the classification level
of the material shall be changed to the appropriate lower level.
(c) Authority to downgrade and declassify.
(1) Classified information may be downgraded or declassified by the
official who originally classified the information if that official is
still serving in the same position, by a successor in that capacity, by
a supervisory official of either, or by any other official specifically
designated by the Secretary or the senior agency official.
(2) The Department shall maintain a record of Department officials
specifically designated as declassification and downgrading
authorities.
(d) Declassification in the public interest. Although information
that continues to meet the classification criteria of the Executive
Order or a predecessor order normally requires continued protection, in
some exceptional cases the need to protect information may be
outweighed by the public interest in disclosure of the information.
When such a question arises, it shall be referred to the Secretary or
the Senior Agency Official for decision on whether, as an exercise of
discretion, the information should be declassified and disclosed. This
provision does not amplify or modify the substantive criteria or
procedures for classification or create any substantive or procedural
right subject to judicial review.
(e) Public dissemination of declassified information.
Declassification of information is not authorization for its public
disclosure. Previously classified information that is declassified may
be subject to withholding from public disclosure under the FOIA, the
Privacy Act, and various statutory confidentiality provisions.
Sec. 9.10 Mandatory declassification review.
All requests to the Department by a member of the public, a
government employee, or an agency to declassify and release information
shall result in a prompt declassification review of the information in
accordance with procedures set forth in 22 CFR 171.20-25. Mandatory
declassification review requests should be directed to the Information
and Privacy Coordinator, U.S. Department of State, SA-2, 515 22nd St.,
NW., Washington, DC 20522-6001.
Sec. 9.11 Systematic declassification review.
The Information and Privacy Coordinator shall be responsible for
conducting a program for systematic declassification review of
historically valuable records that were exempted from the automatic
declassification provisions of section 3.3 of the Executive Order. The
Information and Privacy Coordinator shall prioritize such review on the
basis of researcher interest and the likelihood of declassification
upon review.
Sec. 9.12 Access to classified information by historical researchers
and certain former government personnel.
For Department procedures regarding the access to classified
information by historical researchers and certain former government
personnel, see Sec. 171.24 of this Title.
Sec. 9.13 Safeguarding.
Specific controls on the use, processing, storage, reproduction,
and transmittal of classified information within the Department to
provide protection for such information and to prevent access by
unauthorized persons are contained in Volume 12 of the Department's
Foreign Affairs Manual.
[[Page 62]]
Dated: December 27, 2006.
Lee Lohman,
Deputy Assistant Secretary for Administration, Department of State.
[FR Doc. E6-22487 Filed 12-29-06; 8:45 am]
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