National Security Information Regulations, 59-62 [E6-22487]
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Federal Register / Vol. 72, No. 1 / Wednesday, January 3, 2007 / Proposed Rules
classification for up to 25 years under
certain criteria and, in certain
circumstances, classification beyond 25
years under more stringent criteria.
DEPARTMENT OF STATE
22 CFR Part 9
[Public Notice 5658]
Regulatory Findings
Administrative Procedure Act. The
National Security Information
Department is publishing this rule as a
Regulations
proposed rule. Public comments are
invited for a period of 90 days following
AGENCY: Department of State.
this document’s publication in the
ACTION: Proposed rule with request for
Federal Register.
comment.
Regulatory Flexibility Act. The
Department, in accordance with the
SUMMARY: The Department of State
Regulatory Flexibility Act (5 U.S.C.
proposes to revise its regulations
605(b)), has reviewed this proposed rule
governing the classification of national
and, by approving it, certifies that this
security information that is under the
rule will not have significant economic
control of the Department in order to
impact on a substantial number of small
reflect the provisions of a new executive entities.
order on national security information
Unfunded Mandates Act of 1995. This
and consequent changes in the
proposed rule will not result in the
Department’s procedures since the last
expenditure by State, local, and tribal
revision of the Department’s regulations governments, in the aggregate, or by the
on this subject.
private sector, of $100 million or more
COMMENT DATES: The Department will
in any year, and it will not significantly
consider any comments from the public or uniquely affect small governments.
that are received by April 3, 2007.
Therefore, no actions are deemed
necessary under the provisions of the
ADDRESSES: You may submit comments
Unfounded Mandates Reform Act of
to Margaret P. Grafeld, Director, Office
1995.
of Information Programs and Services,
Small Business Regulatory
(202) 261–8300, U.S. Department of
Enforcement Fairness Act of 1996. This
State, SA–2, 515 22nd St. NW.,
Washington. DC 20522–6001; FAX: 202– rule is not a major rule as defined by
261–8590. E-mail GrafeldMP@state.gov. section 804 of the Small Business
Regulatory Enforcement Act of 1996.
If submitting comments by e-mail, you
must include the RIN in the subject line This rule will not result in an annual
of your message. You may view this rule effect on the economy of $100 million
or more; a major increase in costs or
online at https://www.regulations.gov/
prices; or significant adverse effects on
index.cfm.
competition, employment, investment,
FOR FURTHER INFORMATION, CONTACT:
productivity, innovation, or on the
Margaret P. Grafeld, Director, Office of
ability of United States-based
Information Programs and Services,
companies to compete with foreign
(202) 261–8300, U.S. Department of
based companies in domestic and
State, SA–2, 515 22nd St. NW.,
import markets.
Washington. DC 20522–6001; FAX: 202–
Executive Order 12866. The
261–8590.
Department does not consider this rule
SUPPLEMENTARY INFORMATION: Since the
to be a ‘‘significant regulatory action’’
last version of Part 9 of 22 CFR was
under Executive Order (E.O.) 12866,
published, the executive order
section 3(f), Regulatory Planning and
governing classification of national
Review. In addition, the Department is
security information has been
exempt from Executive Order 12866
superseded by E.O 12958, effective
except to the extent that it is
October 14, 1995. Since its
promulgating regulations in conjunction
promulgation, E.O. 12958 has been
with a domestic agency that are
amended several times, most recently
significant regulatory actions. The
and most substantially by Executive
Department has nevertheless reviewed
Order 13292 dated March 28, 2003,
the regulation to ensure its consistency
which effected changes in classification with the regulatory philosophy and
categories, provisions regarding the
principles set forth in that Executive
duration of classification, provisions
Order.
Executive Order 13132. This
regarding reclassification of previously
regulation will not have substantial
declassified and released information,
direct effects on the states, on the
and the disclosure of classified
relationship between the national
information in an emergency. In
government and the states, or on the
addition, in contrast to the indefinite
distribution of power and
classification provisions of E.O. 12356,
responsibilities among the various
the new executive order provides for
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59
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
9.2
9.3
9.4
9.5
9.6
9.7
9.8
9.9
9.10
9.11
9.12
Basis.
Objective.
Senior agency official.
Original classification.
Original classification authority.
Derivative classification.
Identification and marking.
Classification challenges.
Declassification and downgrading.
Mandatory declassification review.
Systematic declassification review.
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)
§ 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’’).
§ 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.
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§ 9.3
Federal Register / Vol. 72, No. 1 / Wednesday, January 3, 2007 / Proposed Rules
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.
sroberts on PROD1PC70 with PROPOSALS
§ 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,
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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
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automatic declassification of records
older than 25 years.
§ 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.
§ 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.
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§ 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.
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§ 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)
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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.
§ 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
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61
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.
§ 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.
§ 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.
§ 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.
§ 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.
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Federal Register / Vol. 72, No. 1 / Wednesday, January 3, 2007 / Proposed Rules
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]
BILLING CODE 4710–24–P
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
24 CFR Part 570
[Docket No. FR–5013–P–01]
[RIN 2506–AC19]
Community Development Block Grant
Program; Small Cities Program;
Proposed Rule
Office of the Assistant
Secretary for Community Planning and
Development, HUD.
ACTION: Proposed rule.
AGENCY:
SUMMARY: This proposed rule would
amend HUD’s regulations governing the
Community Development Block Grant
(CDBG) program for non-entitlement
areas in the state of Hawaii. Pursuant to
statutory authority, the state of Hawaii
has elected not to administer funds to
units of general local governments
located in non-entitlement areas within
the state. The statute provides that if
Hawaii opts to not assume
responsibility for the program, then the
Secretary of HUD will make grants to
the units of general local government
located in Hawaii’s non-entitlement
areas, employing the same distribution
formula as was used under prior
regulations. This proposed rule would
modify HUD’s regulations to clarify how
the CDBG program will be implemented
in the non-entitlement areas of Hawaii.
HUD has also taken the opportunity
afforded by this proposed rule to update
and streamline the subpart F
regulations, particularly with regard to
the HUD-administered Small Cities
program in New York, which awarded
its last competitive grant in Fiscal Year
(FY) 1999.
DATES: Comments Due Date: March 5,
2007.
Interested persons are
invited to submit comments regarding
this proposed rule to the Office of the
General Counsel, Rules Docket Clerk,
Department of Housing and Urban
Development, 451 Seventh Street, SW.,
Room 10276, Washington, DC 20410–
0001. Communications should refer to
the above docket number and title and
should contain the information
specified in the ‘‘Request for
Comments’’ section.
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ADDRESSES:
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Electronic Submission of Comments.
Interested persons may submit
comments electronically through the
Federal eRulemaking Portal at https://
www.regulations.gov. HUD strongly
encourages commenters to submit
comments electronically. Electronic
submission of comments allows the
commenter maximum time to prepare
and submit a comment, ensures timely
receipt by HUD, and enables HUD to
make comments immediately available
to the public. Comments submitted
electronically through the https://
www.regulations.gov Web site can be
viewed by other commenters and by
members of the public. Commenters
should follow the instructions provided
on that site to submit comments
electronically.
No Facsimile Comments. Facsimile
(FAX) comments are not acceptable. In
all cases, communications must refer to
the docket number and title.
Public Inspection of Public
Comments. All comments and
communications submitted to HUD will
be available, without charge, for public
inspection and copying between 8 a.m.
and 5 p.m. weekdays at the above
address. Due to security measures at the
HUD Headquarters building, an advance
appointment to review the public
comments must be scheduled by calling
the Regulations Division at (202) 708–
3055 (this is not a toll-free number).
Individuals with hearing or speech
impairments may access this telephone
number via TTY by calling the Federal
Information Relay Service at (800) 877–
8339. Copies of all comments submitted
are available for inspection and
downloading at https://
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Stephen Rhodeside, Senior Program
Officer, State and Small Cities Division,
Office of Block Grant Assistance, Office
of Community Planning and
Development, Department of Housing
and Urban Development, 451 Seventh
Street, SW., Room 7184, Washington,
DC 20410–7000; telephone (202) 708–
1322 (this is not a toll-free number).
Individuals with speech or hearing
impairments may access this telephone
number via TTY by calling the toll-free
Federal Information Relay Service at
(800) 877–8339.
SUPPLEMENTARY INFORMATION:
I. Background
The CDBG program is authorized
under the Housing and Community
Development Act of 1974 (42 U.S.C.
5301 et seq.) (HCD Act). Under the
CDBG program, HUD allocates funds by
formula among eligible state and local
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governments for activities that
principally benefit low- and moderateincome persons, aid in the elimination
of slums or blighting conditions, or meet
other community development needs
having a particular urgency.
Section 106 of Title I of the HCD Act
permits states to elect to assume
administrative responsibility for the
CDBG program for non-entitlement
areas within their jurisdiction. The HCD
Act defines a non-entitlement area as an
area that is not a metropolitan city or
part of an urban county and does not
include federally or state-recognized
Indian tribes. In the event that a state
elects not to administer the CDBG
program, Section 106 provides that HUD
will administer the CDBG program for
non-entitlement areas within the state.
HUD’s regulations at 24 CFR part 570,
subpart F describe the policies and
procedures for HUD’s administration of
the CDBG program in non-entitlement
areas.
Section 218 of the Consolidated
Appropriations Act, 2004, (Pub. L. 108–
199, approved January 23, 2003)
required that, by July 31, 2004, the state
of Hawaii had to elect if it would
distribute funds under section 106(d)(2)
of the HCD Act to units of general local
government located in its nonentitlement areas. On August 5, 2004,
the Governor of Hawaii notified HUD
that the state had elected not to take
over the CDBG program in the nonentitlement areas within its jurisdiction.
In accordance with the Consolidated
Appropriations Act, 2004, the Secretary
of HUD permanently assumed
administrative responsibility for making
grants to the units of general local
government located in Hawaii’s nonentitlement areas (Hawaii, Kauai, and
Maui counties) for all future fiscal years,
beginning in 2005.
Section 218 of the Consolidated
Appropriations Act, 2004, requires the
Secretary of HUD to allocate CDBG
funds to the units of local government
located in Hawaii’s non-entitlement
areas based upon the same distribution
formula currently used to compute their
grant funds. The formula takes into
consideration population, poverty, and
housing overcrowding in these areas.
HUD uses the factors to compute a
weighted ratio (the extent of poverty is
accorded twice as much significance as
the population and housing
overcrowding factors), which then
determines the allocation of funds.
II. This Proposed Rule
This proposed rule would implement
section 218 of the Consolidated
Appropriations Act, 2004, by amending
HUD’s regulations at 24 CFR part 570 to
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[Federal Register Volume 72, Number 1 (Wednesday, January 3, 2007)]
[Proposed Rules]
[Pages 59-62]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-22487]
[[Page 59]]
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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.
-----------------------------------------------------------------------
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 GrafeldMP@state.gov. 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 https://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]
BILLING CODE 4710-24-P
