Classified Information: Classification/Declassification/Access; Authority To Classify Information (RRR), 45979-45982 [2016-16565]
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Federal Register / Vol. 81, No. 136 / Friday, July 15, 2016 / Rules and Regulations
Alternate I (Aug. 2016).
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[FR Doc. 2016–16768 Filed 7–14–16; 8:45 am]
BILLING CODE 6450–01–P
DEPARTMENT OF TRANSPORTATION
Office of the Secretary
49 CFR Part 8
RIN 2105–AE50
Classified Information: Classification/
Declassification/Access; Authority To
Classify Information (RRR)
Office of the Secretary of
Transportation (OST), U.S. Department
of Transportation (DOT).
ACTION: Final rule.
AGENCY:
This final rule updates the
regulations regarding classified
information to reflect changes in
organizational structure, update the
legal authorities, incorporate new
references, and refer historical
researchers and former Presidential
appointees to Executive Order 13526.
DATES: This final rule is effective July
15, 2016.
FOR FURTHER INFORMATION CONTACT: Joan
Harris, Associate Director, Office of
Security, 202–366–1827, or
electronically at joan.harris@dot.gov.
You may also contact David Meade,
Senior Security Specialist, Office of
Security, 202–366–8891, or
electronically at david.meade@dot.gov.
SUPPLEMENTARY INFORMATION: A 2011
DOT final rule (76 FR 19707)
announced changes regarding the
authority to classify information, but
did not update other parts of the rule.
As a result, the Department’s regulations
at 49 CFR part 8 need to be updated.
This final rule makes the following
corrections: Executive Order 12958,
‘‘Classified National Security
Information,’’ has been replaced by
Executive Order 13526, so references to
the outdated Executive Order have been
removed. The ‘‘Interagency
Classification Review Committee’’ is
now the Interagency Security
Classification Appeals Panel. As a result
of reorganizations after the September
11, 2001, terrorist attacks, the U.S. Coast
Guard is no longer a part of DOT, so
references to that agency as a
departmental component have been
removed, and a representative from the
Federal Highway Administration
replaces the U.S. Coast Guard’s
representative on the Department’s
Personnel Security Review Board. This
final rule also updates the names of
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SUMMARY:
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some departmental offices, which have
changed.
Section 8.19, which contained
detailed instructions for submitting and
processing requests for classification
challenges and mandatory classification
reviews, is also eliminated because of
inconsistencies with the current
regulations at 32 CFR 2001. Sections
8.15 (Mandatory review for
classification) and 8.17 (Classification
challenges) have been rewritten to cite
the appropriate sections of 32 CFR 2001
regarding such requests.
The detailed instructions in Section
8.29, Access by historical researchers
and former Presidential appointees,
have been eliminated because they were
outdated. Instead, the instructions have
been replaced with a reference to
Executive Order 13526, which describes
the conditions that qualify such persons
for access, and Executive Order 12968
which provides general guidelines for
access to classified information.
This final rule is exempt from
Administrative Procedure Act (APA)
notice-and-comment requirements. This
final rule does not affect any substantive
changes to the regulations or alter any
existing compliance obligations. This
final rule would only make technical
corrections to part 8 by correcting
outdated references without affecting
the substance of the underlying
rulemaking document. For the reasons
stated above, notice and comment
procedures are unnecessary within the
meaning of the APA. See 5 U.S.C.
553(b)(3)(B).
The Department finds good cause for
this final rule to become effective
immediately under 5 U.S.C. 553(d)(1).
This final rule is only removing
outdated, obsolete, and inconsistent
language in the regulations without
altering any existing compliance
obligations contained in the current
regulations. Since this final rule is
nonsubstantive and will not affect any
regulated entity’s compliance with the
current regulations, the Department
finds good cause for it to become
effective immediately.
Regulatory Analyses and Notices
A. Executive Order 12866 and DOT
Regulatory Policies and Procedures
The DOT has determined that this
action is not a significant regulatory
action within the meaning of Executive
Order 12866, and within the meaning of
DOT’s regulatory policies and
procedures. Since this rulemaking
merely removes obsolete and
inconsistent language and makes
editorial corrections and does not have
any substantive impact on the regulated
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45979
community, DOT anticipates that this
rulemaking will have no economic
impact.
Additionally, this action fulfills the
principles of Executive Order 13563,
specifically those relating to
retrospective analyses of existing rules.
This rule is being issued as a result of
the reviews of existing regulations that
the Department periodically conducts.
In addition, these changes will not
interfere with any action taken or
planned by another agency and would
not materially alter the budgetary
impact of any entitlements, grants, user
fees, or loan programs. Consequently, a
full regulatory evaluation is not
necessary.
B. Executive Order 13132
Executive Order 13132 requires
agencies to ensure meaningful and
timely input by State and local officials
in the development of regulatory
policies that may have a substantial,
direct effect 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. This action has
been analyzed in accordance with the
principles and criteria contained in
Executive Order 13132, dated August 4,
1999, and the DOT has determined that
this action would not have a substantial
direct effect or sufficient federalism
implications on the States. The DOT has
also determined that this action would
not preempt any State law or regulation
or affect the States’ ability to discharge
traditional State governmental
functions. Therefore, consultation with
the States is not necessary.
C. Executive Order 13175
The DOT has analyzed this action
under Executive Order 13175, dated
November 6, 2000, and believes that the
action would not have substantial direct
effects on one or more Indian tribes,
would not impose substantial direct
compliance costs on Indian tribal
governments, and would not preempt
tribal laws. This final rule merely
updates outdated terminology, and
removes inconsistent language relating
to compliance with the Department’s
classified information regulations. It
does not impose any new requirements
on Indian tribal governments. Therefore,
a tribal summary impact statement is
not required.
D. Regulatory Flexibility Act
Since notice-and-comment
rulemaking is not necessary for this
rule, the provisions of the Regulatory
Flexibility Act (Pub. L. 96–354, 5 U.S.C.
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601–612) do not apply. However, the
DOT has evaluated the effects of this
action on small entities and has
determined that the action would not
have a significant economic impact on
a substantial number of small entities.
The rule removes obsolete guidance
language and updates outdated
terminology and, therefore, does not add
to or alter any existing obligations.
E. Paperwork Reduction Act
Under the Paperwork Reduction Act
of 1995 (PRA) (44 U.S.C. 3501, et seq.),
Federal agencies must obtain approval
from the Office of Management and
Budget for each collection of
information they conduct, sponsor, or
require through regulations. The DOT
has analyzed this final rule under the
PRA and has determined that this rule
does not contain collection of
information requirements for the
purposes of the PRA.
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F. Unfunded Mandates Reform Act
This final rule would not impose
unfunded mandates, as defined by the
Unfunded Mandates Reform Act of 1995
(Pub. L. 104–4, 109 Stat. 48, March 22,
1995), as it will not result in the
expenditure by State, local, or tribal
governments, in the aggregate, or by the
private sector, of $148.1 million or more
in any one year (2 U.S.C. 1532).
G. National Environmental Policy Act
The agency has analyzed the
environmental impacts of this proposed
action pursuant to the National
Environmental Policy Act of 1969
(NEPA) (42 U.S.C. 4321 et seq.) and has
determined that it is categorically
excluded pursuant to DOT Order
5610.1C, Procedures for Considering
Environmental Impacts (44 FR 56420,
Oct. 1, 1979). Categorical exclusions are
actions identified in an agency’s NEPA
implementing procedures that do not
normally have a significant impact on
the environment and therefore do not
require either an environmental
assessment (EA) or environmental
impact statement (EIS). See 40 CFR
1508.4. In analyzing the applicability of
a categorical exclusion, the agency must
also consider whether extraordinary
circumstances are present that would
warrant the preparation of an EA or EIS.
Id. Paragraph 3.c.5 of DOT Order
5610.1C incorporates by reference the
categorical exclusions for all DOT
Operating Administrations. This action
is covered by the categorical exclusion
listed in the Federal Highway
Administration’s implementing
procedures, ‘‘[p]romulgation of rules,
regulations, and directives.’’ 23 CFR
771.117(c)(20). The purpose of this
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rulemaking is to make editorial
corrections and remove obsolete and
inconsistent language in the
Department’s classified information
regulations. The agency does not
anticipate any environmental impacts,
and there are no extraordinary
circumstances present in connection
with this rulemaking.
List of Subjects in 49 CFR Part 8
Classified Information (Government
agencies), Classification/
Declassification/Access (Government
agencies).
The Final Rule
For the reasons set forth in the
preamble, OST amends 49 CFR part 8 as
follows:
PART 8—[AMENDED]
1. The authority citation for part 8 is
revised to read as follows:
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Authority: E.O. 10450, 18 FR 2489, 3 CFR,
1949–1953 Comp., p. 936, amended by E.O.
10491, 18 FR 6583, 3 CFR, 1949–1953 Comp.,
p. 973, E.O. 10531, 19 FR 3069, 3 CFR, 1949–
1953 Comp., p. 973, E.O. 10548, 19 FR 4871,
3 CFR, 1954–1958 Comp., p. 200, E.O. 10550,
19 FR 4981, 3 CFR, 1954–1958 Comp., p. 200,
E.O. 11605, 20 FR 2747, 3 CFR, 1971–1975
Comp., p. 580, E.O. 11785, 39 FR 20053, 3
CFR, 1971–1975 Comp., p. 874, E.O. 12107,
44 FR 1055, 3 CFR, 1978 Comp., p. 266; E.O.
12829, 58 FR 3479, 3 CFR, 1993 Comp., p.
570, amended by E.O. 12885, 58 FR 65863,
3 CFR, 1993 Comp., p. 684; E.O. 13526, 75
FR 707, 3 CFR, 2010 Comp., p. 298; E.O.
12968, 3 CFR, 1995 Comp., p. 391, amended
by E.O. 13467, 73 FR 38103, 3 CFR, 2009
Comp., p. 196.
2. Part 8 is amended by:
a. Removing ‘‘Director of Security and
Administrative Management’’ and
adding in its place ‘‘Director of
Security’’ wherever it appears; and
■ b. Removing ‘‘Executive Order 12958’’
and adding in its place ‘‘Executive
Order 13526’’ wherever it appears.
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Subpart A—General
3. Section 8.1 is revised to read as
follows:
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§ 8.1
Scope.
This part sets forth procedures for the
classification, declassification, and
availability of information that must be
protected in the interest of national
security, in implementation of
Executive Order 13526 of December 29,
2010, ‘‘Classified National Security
Information;’’ and for the review of
decisions to revoke, or not to issue,
national security information
clearances, or to deny access to
classified information, under Executive
Order 12968 of August 2, 1995, ‘‘Access
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to National Security Information,’’ as
amended by Executive Order 13467 of
June 30, 2008, ‘‘Reforming Processes
Related to Suitability for Government
Employment, Fitness for Contractor
Employees, and Eligibility for Access to
Classified National Security
Information.’’
■ 4. In § 8.5, add a definition for
‘‘Authorized holder’’ and revise the
definitions of ‘‘Clearance’’, ‘‘Damage to
the national security’’, ‘‘Mandatory
declassification’’, and ‘‘Original
classification authority’’ to read as
follows:
§ 8.5
Definitions.
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Authorized holder is any individual
who has been granted access to specific
classified information in accordance
with Executive Order 13526 or any
successor order.
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Clearance means that an individual is
eligible, under the standards of
Executive Orders 10450, 12968, 13467,
and appropriate DOT regulations, for
access to classified information.
Damage to the national security
means harm to the national defense or
foreign relations of the United States
from the unauthorized disclosure of
information, taking into consideration
such aspects of the information as the
sensitivity, value, utility, and
provenance of that information.
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Mandatory declassification review
means the review for declassification of
classified information in response to a
request for declassification that meets
the requirements of section 3.5 of
Executive Order 13526.
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Original classification authority
means an individual authorized in
writing, either by the President, the Vice
President, or by agency heads or other
officials designated by the President, to
classify information in the first instance.
5. In § 8.7, paragraph (a) is revised to
read as follows:
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§ 8.7
Spheres of responsibility.
(a) Pursuant to section 5.4(d) of
Executive Order 13526, and to section
6.1 of Executive Order 12968, the
Assistant Secretary for Administration
is hereby designated as the senior
agency official of the Department of
Transportation with assigned
responsibilities to assure effective
compliance with and implementation of
Executive Order 13526, Executive Order
12968, Office of Management and
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Budget Directives, the regulations in
this part, and related issuances.
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Subpart B—Classification/
Declassification of Information
6. In § 8.9, paragraphs (a) introductory
text and (b) are revised to read as
follows:
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§ 8.9 Information Security Review
Committee.
(a) The Department of Transportation
Information Security Review Committee
has the authority to:
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(b) The Information Security Review
Committee will be composed of the
Assistant Secretary for Administration,
who will serve as Chair; the General
Counsel; and the Director of Security.
When matters affecting a particular
Departmental component are at issue,
the Associate Administrator for
Administration for that component (or
for the Federal Aviation Administration,
the Associate Administrator for Security
and Hazardous Materials Safety) will
participate as an ad hoc member,
together with the Chief Counsel of that
component. Any regular member may
designate a representative with full
power to serve in his/her place.
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■ 7. In § 8.11, paragraphs (a), (b)(1) and
(2), and (c) are revised to read as
follows:
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§ 8.11
Authority to classify information.
(a) Presidential Order of December 29,
2009, ‘‘Original Classification
Authority’’ confers upon the Secretary
of Transportation the authority to
originally classify information as
SECRET or CONFIDENTIAL with
further authorization to delegate this
authority.
(b) * * *
(1) Office of the Secretary of
Transportation. The Deputy Secretary;
Assistant Secretary for Administration;
Director of Intelligence, Security and
Emergency Response; Director of
Security.
(2) Federal Aviation Administration.
Administrator; Associate Administrator
for Security and Hazardous Materials
Safety.
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(c) Although the delegations of
authority set out in paragraph (b) of this
section are expressed in terms of
positions, the authority is personal and
is invested only in the individual
occupying the position. The authority
may not be exercised ‘‘by direction of’’
a designated official. The formal
appointment or assignment of an
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individual to one of the identified
positions or a designation in writing to
act in the absence of one of these
officials, however, conveys the authority
to originally classify information as
SECRET or CONFIDENTIAL.
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■ 8. Revise § 8.15 to read as follows:
§ 8.15
Mandatory review for classification.
(a) Mandatory declassification review
requests will be processed in
accordance with 32 CFR 2001.33.
(b) Except as provided in paragraph b
of section 3.5 of Executive Order 13526,
all information classified by the
Department of Transportation under
Executive Order 13526 or predecessor
orders shall be subject to a review for
declassification if:
(1) The request for review describes
the information with sufficient
specificity to enable its location with a
reasonable amount of effort;
(2) The information has not been
reviewed for declassification within the
prior two years. If the information has
been reviewed within the prior two
years, or the information is the subject
of pending litigation, the requestor will
be informed of this fact, and of the
Department’s decision not to declassify
the information and of his/her right to
appeal the Department’s decision not to
declassify the information to the
Interagency Security Classification
Appeals Panel (ISCAP);
(3) The document or material
containing the information responsive
to the request is not contained within an
operational file exempted from search
and review, publication, and disclosure
under 5 U.S.C. 552 in accordance with
law; and
(4) The information is not the subject
of pending litigation.
(c) All information reviewed for
declassification because of a mandatory
review will be declassified if it does not
meet the standards for classification in
Executive Order 13526. The information
will then be released unless
withholding is otherwise authorized
and warranted under applicable law.
(d) Mandatory declassification review
requests for information that has been
classified by the Department of
Transportation may be addressed to the
Director of Security, U.S. Department of
Transportation, 1200 New Jersey
Avenue, Washington, DC 20590. The
Director will forward the request to the
appropriate Departmental Original
Classification Authority for processing.
(e) Denied requests may be appealed
to the DOT Information Security Review
Committee (DISRC) through the Director
of Security within 60 days of receipt of
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45981
the denial. If the DISRC upholds the
denial, it will inform the requestor of
his or her final appeal rights to the
ISCAP.
■ 9. Revise § 8.17 to read as follows:
§ 8.17
Classification challenges.
(a) Authorized holders of information
classified by the Department of
Transportation who, in good faith,
believe that its classification status is
improper are encouraged and expected
to challenge the classification status of
the information before the Original
Classification Authority (OCA) having
jurisdiction over the information. A
formal challenge must be in writing, but
need not be any more specific than to
question why information is or is not
classified, or is classified at a certain
level.
(b) Classification challenges to DOT
information must be addressed to the
DOT Original Classification Authority
(OCA) who is responsible for the
information. If unsure of the OCA,
address the challenge to the DOT
Director of Security.
(c) Classification challenges will be
processed according to 32 CFR 2001.14.
§ 8.19
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[Removed and Reserved]
10. Remove and reserve § 8.19.
§ 8.21
[Amended]
11. Amend § 8.21 by removing ‘‘8.13,’’
and the comma following ‘‘8.15’’, and
by removing the word ‘‘agency’’ and
adding ‘‘component’’ in its place.
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§ 8.23
[Amended]
12. Amend § 8.23 as follows:
a. In paragraph (a) by adding an ‘‘s’’
to the word ‘‘function’’;
■ b. In paragraph (b) by removing the
word ‘‘a’’ and adding in its place the
word ‘‘another’’ in the first sentence and
by adding the words ‘‘at a lower level’’
after the word ‘‘resolved’’ in the last
sentence;
■ c. In paragraph (c) by adding ‘‘,
directives issued pursuant to Executive
Order 13526,’’ after the words
‘‘Executive Order 13526’’ in the first
sentence and in the second sentence by
removing the words ‘‘in NARA’’ and
adding in their place ‘‘into the National
Archives’’; and
■ d. In paragraph (d) by removing the
words ‘‘of this part for automatic
declassification’’ at the end of the first
sentence, and adding in their place ‘‘for
automatic declassification in section 3.3
of Executive Order 13526 and its
implementing directives’’.
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Subpart C—Access to Information
13. 13. In § 8.25, revise paragraphs (a)
introductory text and (b)(1) through (4)
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and add paragraph (b)(5) to read as
follows:
§ 8.25
Personnel Security Review Board.
(a) The Department of Transportation
Personnel Security Review Board will,
on behalf of the Secretary of
Transportation (except in any case in
which the Secretary personally makes
the decision), make the administratively
final decision on an appeal arising in
any part of the Department from:
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(b) * * *
(1) Two persons appointed by the
Assistant Secretary for Administration:
One from the Office of Human Resource
Management, and one, familiar with
personnel security adjudication, from
the Office of Security, who will serve as
Chair;
(2) One person appointed by the
General Counsel, who, in addition to
serving as a member of the Board, will
provide to the Board whatever legal
services it may require;
(3) One person appointed by the
Administrator of the Federal Aviation
Administration; and
(4) One person appointed by the
Administrator of the Federal Highway
Administration.
(5) Any member may designate a
representative, meeting the same criteria
as the member, with full power to serve
in his/her place.
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■ 14. Section 8.29 is revised to read as
follows:
§ 8.29 Access by historical researchers
and former Presidential appointees.
Access to classified information may
be granted to historical researchers and
former Presidents and Vice-Presidents
and their appointees as outlined in
Executive Order 13526 or its successor
order. The general guidelines for access
to classified information are contained
in Executive Order 12968.
■ 15. In § 8.31, amend paragraph (b) by
adding the word ‘‘an’’ between ‘‘into
agreement’’ in the first sentence and by
removing the last three sentences and
adding a new sentence in their place.
The addition reads as follows:
§ 8.31
Industrial security.
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(b) * * * Specifically, this regulation
is DOD 5220.22–M, National Industrial
Security Program Operating Manual,
and is effective within the Department
of Transportation. Appropriate security
staff, project personnel, and contracting
officers must assure that actions
required by the regulation are taken.
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Issued in Washington, DC, on July 5, 2016,
under authority delegated in 49 CFR 1.27(c).
Molly J. Moran,
Acting General Counsel.
[FR Doc. 2016–16565 Filed 7–14–16; 8:45 am]
BILLING CODE 4910–9X–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 300
[Docket No. 160205084–6510–02]
RIN 0648–XE719
Western and Central Pacific Fisheries
for Highly Migratory Species; 2016
Bigeye Tuna Longline Fishery Closure
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; fishery closure.
AGENCY:
NMFS is closing the U.S.
pelagic longline fishery for bigeye tuna
in the western and central Pacific Ocean
because the fishery has reached the
2016 catch limit. This action is
necessary to ensure compliance with
NMFS regulations that implement
decisions of the Western and Central
Pacific Fisheries Commission (WCPFC).
DATES: Effective 12:01 a.m. local time
July 22, 2016, through December 31,
2016.
SUMMARY:
NMFS prepared a plain
language guide and frequently asked
questions that explain how to comply
with this rule; both are available at
https://www.regulations.gov/
docket?D=NOAA-NMFS-2016-0091.
FOR FURTHER INFORMATION CONTACT:
Ariel Jacobs, NMFS Pacific Islands
Region, 808–725–5182.
SUPPLEMENTARY INFORMATION: Pelagic
longline fishing in the western and
central Pacific Ocean is managed, in
part, under the Western and Central
Pacific Fisheries Convention
Implementation Act (Act). Regulations
governing fishing by U.S. vessels in
accordance with the Act appear at 50
CFR part 300, subpart O.
NMFS established a calendar year
2016 limit of 3,554 metric tons (mt) of
bigeye tuna (Thunnus obesus) that may
be caught and retained in the U.S.
pelagic longline fishery in the area of
application of the Convention on the
Conservation and Management of
Highly Migratory Fish Stocks in the
Western and Central Pacific Ocean
(Convention Area) (81 FR 41239, June
ADDRESSES:
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24, 2016). NMFS monitored the retained
catches of bigeye tuna using logbook
data submitted by vessel captains and
other available information, and
determined that the 2016 catch limit
would be reached by July 22, 2016.
In accordance with 50 CFR
300.224(e), this rule serves as advance
notification to fishermen, the fishing
industry, and the general public that the
U.S. longline fishery for bigeye tuna in
the Convention Area will be closed
during the dates provided in the DATES
heading. The fishery is scheduled to
reopen on January 1, 2017. This rule
does not apply to the longline fisheries
of American Samoa, Guam, or the
Commonwealth of the Northern Mariana
Islands, collectively ‘‘the territories,’’ as
described below.
During the closure, a U.S. fishing
vessel may not retain on board,
transship, or land bigeye tuna caught by
longline gear in the Convention Area,
except that any bigeye tuna already on
board a fishing vessel upon the effective
date of the restrictions may be retained
on board, transshipped, and landed,
provided that they are landed within 14
days of the start of the closure, that is,
by August 5, 2016. This 14-day landing
requirement does not apply to a vessel
that has declared to NMFS, pursuant to
50 CFR 665.803(a), that the current trip
type is shallow-setting.
Longline-caught bigeye tuna may be
retained on board, transshipped, and
landed if the fish are caught by a vessel
with a valid American Samoa longline
permit, or landed in the territories. In
either case, the following conditions
must be met:
(1) The fish is not caught in the U.S.
Exclusive Economic Zone (EEZ) around
Hawaii;
(2) Other applicable laws and
regulations are followed; and
(3) The vessel has a valid permit
issued under 50 CFR 660.707 or
665.801.
Bigeye tuna caught by longline gear
during the closure may also be retained
on board, transshipped, and/or landed if
they are caught by a vessel that is
included in a specified fishing
agreement under 50 CFR 665.819(c), in
accordance with 50 CFR
300.224(f)(1)(iv).
During the closure, a U.S. vessel is
also prohibited from transshipping
bigeye tuna caught in the Convention
Area by longline gear to any vessel other
than a U.S. fishing vessel with a valid
permit issued under 50 CFR 660.707 or
665.801.
The catch limit and this closure do
not apply to bigeye tuna caught by
longline gear outside the Convention
Area, such as in the eastern Pacific
E:\FR\FM\15JYR1.SGM
15JYR1
]]>Agencies
[Federal Register Volume 81, Number 136 (Friday, July 15, 2016)]
[Rules and Regulations]
[Pages 45979-45982]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-16565]
=======================================================================
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
49 CFR Part 8
RIN 2105-AE50
Classified Information: Classification/Declassification/Access;
Authority To Classify Information (RRR)
AGENCY: Office of the Secretary of Transportation (OST), U.S.
Department of Transportation (DOT).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule updates the regulations regarding classified
information to reflect changes in organizational structure, update the
legal authorities, incorporate new references, and refer historical
researchers and former Presidential appointees to Executive Order
13526.
DATES: This final rule is effective July 15, 2016.
FOR FURTHER INFORMATION CONTACT: Joan Harris, Associate Director,
Office of Security, 202-366-1827, or electronically at
joan.harris@dot.gov. You may also contact David Meade, Senior Security
Specialist, Office of Security, 202-366-8891, or electronically at
david.meade@dot.gov.
SUPPLEMENTARY INFORMATION: A 2011 DOT final rule (76 FR 19707)
announced changes regarding the authority to classify information, but
did not update other parts of the rule. As a result, the Department's
regulations at 49 CFR part 8 need to be updated. This final rule makes
the following corrections: Executive Order 12958, ``Classified National
Security Information,'' has been replaced by Executive Order 13526, so
references to the outdated Executive Order have been removed. The
``Interagency Classification Review Committee'' is now the Interagency
Security Classification Appeals Panel. As a result of reorganizations
after the September 11, 2001, terrorist attacks, the U.S. Coast Guard
is no longer a part of DOT, so references to that agency as a
departmental component have been removed, and a representative from the
Federal Highway Administration replaces the U.S. Coast Guard's
representative on the Department's Personnel Security Review Board.
This final rule also updates the names of some departmental offices,
which have changed.
Section 8.19, which contained detailed instructions for submitting
and processing requests for classification challenges and mandatory
classification reviews, is also eliminated because of inconsistencies
with the current regulations at 32 CFR 2001. Sections 8.15 (Mandatory
review for classification) and 8.17 (Classification challenges) have
been rewritten to cite the appropriate sections of 32 CFR 2001
regarding such requests.
The detailed instructions in Section 8.29, Access by historical
researchers and former Presidential appointees, have been eliminated
because they were outdated. Instead, the instructions have been
replaced with a reference to Executive Order 13526, which describes the
conditions that qualify such persons for access, and Executive Order
12968 which provides general guidelines for access to classified
information.
This final rule is exempt from Administrative Procedure Act (APA)
notice-and-comment requirements. This final rule does not affect any
substantive changes to the regulations or alter any existing compliance
obligations. This final rule would only make technical corrections to
part 8 by correcting outdated references without affecting the
substance of the underlying rulemaking document. For the reasons stated
above, notice and comment procedures are unnecessary within the meaning
of the APA. See 5 U.S.C. 553(b)(3)(B).
The Department finds good cause for this final rule to become
effective immediately under 5 U.S.C. 553(d)(1). This final rule is only
removing outdated, obsolete, and inconsistent language in the
regulations without altering any existing compliance obligations
contained in the current regulations. Since this final rule is
nonsubstantive and will not affect any regulated entity's compliance
with the current regulations, the Department finds good cause for it to
become effective immediately.
Regulatory Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
The DOT has determined that this action is not a significant
regulatory action within the meaning of Executive Order 12866, and
within the meaning of DOT's regulatory policies and procedures. Since
this rulemaking merely removes obsolete and inconsistent language and
makes editorial corrections and does not have any substantive impact on
the regulated community, DOT anticipates that this rulemaking will have
no economic impact.
Additionally, this action fulfills the principles of Executive
Order 13563, specifically those relating to retrospective analyses of
existing rules. This rule is being issued as a result of the reviews of
existing regulations that the Department periodically conducts. In
addition, these changes will not interfere with any action taken or
planned by another agency and would not materially alter the budgetary
impact of any entitlements, grants, user fees, or loan programs.
Consequently, a full regulatory evaluation is not necessary.
B. Executive Order 13132
Executive Order 13132 requires agencies to ensure meaningful and
timely input by State and local officials in the development of
regulatory policies that may have a substantial, direct effect 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. This action has been analyzed in
accordance with the principles and criteria contained in Executive
Order 13132, dated August 4, 1999, and the DOT has determined that this
action would not have a substantial direct effect or sufficient
federalism implications on the States. The DOT has also determined that
this action would not preempt any State law or regulation or affect the
States' ability to discharge traditional State governmental functions.
Therefore, consultation with the States is not necessary.
C. Executive Order 13175
The DOT has analyzed this action under Executive Order 13175, dated
November 6, 2000, and believes that the action would not have
substantial direct effects on one or more Indian tribes, would not
impose substantial direct compliance costs on Indian tribal
governments, and would not preempt tribal laws. This final rule merely
updates outdated terminology, and removes inconsistent language
relating to compliance with the Department's classified information
regulations. It does not impose any new requirements on Indian tribal
governments. Therefore, a tribal summary impact statement is not
required.
D. Regulatory Flexibility Act
Since notice-and-comment rulemaking is not necessary for this rule,
the provisions of the Regulatory Flexibility Act (Pub. L. 96-354, 5
U.S.C.
[[Page 45980]]
601-612) do not apply. However, the DOT has evaluated the effects of
this action on small entities and has determined that the action would
not have a significant economic impact on a substantial number of small
entities. The rule removes obsolete guidance language and updates
outdated terminology and, therefore, does not add to or alter any
existing obligations.
E. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et
seq.), Federal agencies must obtain approval from the Office of
Management and Budget for each collection of information they conduct,
sponsor, or require through regulations. The DOT has analyzed this
final rule under the PRA and has determined that this rule does not
contain collection of information requirements for the purposes of the
PRA.
F. Unfunded Mandates Reform Act
This final rule would not impose unfunded mandates, as defined by
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48,
March 22, 1995), as it will not result in the expenditure by State,
local, or tribal governments, in the aggregate, or by the private
sector, of $148.1 million or more in any one year (2 U.S.C. 1532).
G. National Environmental Policy Act
The agency has analyzed the environmental impacts of this proposed
action pursuant to the National Environmental Policy Act of 1969 (NEPA)
(42 U.S.C. 4321 et seq.) and has determined that it is categorically
excluded pursuant to DOT Order 5610.1C, Procedures for Considering
Environmental Impacts (44 FR 56420, Oct. 1, 1979). Categorical
exclusions are actions identified in an agency's NEPA implementing
procedures that do not normally have a significant impact on the
environment and therefore do not require either an environmental
assessment (EA) or environmental impact statement (EIS). See 40 CFR
1508.4. In analyzing the applicability of a categorical exclusion, the
agency must also consider whether extraordinary circumstances are
present that would warrant the preparation of an EA or EIS. Id.
Paragraph 3.c.5 of DOT Order 5610.1C incorporates by reference the
categorical exclusions for all DOT Operating Administrations. This
action is covered by the categorical exclusion listed in the Federal
Highway Administration's implementing procedures, ``[p]romulgation of
rules, regulations, and directives.'' 23 CFR 771.117(c)(20). The
purpose of this rulemaking is to make editorial corrections and remove
obsolete and inconsistent language in the Department's classified
information regulations. The agency does not anticipate any
environmental impacts, and there are no extraordinary circumstances
present in connection with this rulemaking.
List of Subjects in 49 CFR Part 8
Classified Information (Government agencies), Classification/
Declassification/Access (Government agencies).
The Final Rule
For the reasons set forth in the preamble, OST amends 49 CFR part 8
as follows:
PART 8--[AMENDED]
0
1. The authority citation for part 8 is revised to read as follows:
Authority: E.O. 10450, 18 FR 2489, 3 CFR, 1949-1953 Comp., p.
936, amended by E.O. 10491, 18 FR 6583, 3 CFR, 1949-1953 Comp., p.
973, E.O. 10531, 19 FR 3069, 3 CFR, 1949-1953 Comp., p. 973, E.O.
10548, 19 FR 4871, 3 CFR, 1954-1958 Comp., p. 200, E.O. 10550, 19 FR
4981, 3 CFR, 1954-1958 Comp., p. 200, E.O. 11605, 20 FR 2747, 3 CFR,
1971-1975 Comp., p. 580, E.O. 11785, 39 FR 20053, 3 CFR, 1971-1975
Comp., p. 874, E.O. 12107, 44 FR 1055, 3 CFR, 1978 Comp., p. 266;
E.O. 12829, 58 FR 3479, 3 CFR, 1993 Comp., p. 570, amended by E.O.
12885, 58 FR 65863, 3 CFR, 1993 Comp., p. 684; E.O. 13526, 75 FR
707, 3 CFR, 2010 Comp., p. 298; E.O. 12968, 3 CFR, 1995 Comp., p.
391, amended by E.O. 13467, 73 FR 38103, 3 CFR, 2009 Comp., p. 196.
0
2. Part 8 is amended by:
0
a. Removing ``Director of Security and Administrative Management'' and
adding in its place ``Director of Security'' wherever it appears; and
0
b. Removing ``Executive Order 12958'' and adding in its place
``Executive Order 13526'' wherever it appears.
Subpart A--General
0
3. Section 8.1 is revised to read as follows:
Sec. 8.1 Scope.
This part sets forth procedures for the classification,
declassification, and availability of information that must be
protected in the interest of national security, in implementation of
Executive Order 13526 of December 29, 2010, ``Classified National
Security Information;'' and for the review of decisions to revoke, or
not to issue, national security information clearances, or to deny
access to classified information, under Executive Order 12968 of August
2, 1995, ``Access to National Security Information,'' as amended by
Executive Order 13467 of June 30, 2008, ``Reforming Processes Related
to Suitability for Government Employment, Fitness for Contractor
Employees, and Eligibility for Access to Classified National Security
Information.''
0
4. In Sec. 8.5, add a definition for ``Authorized holder'' and revise
the definitions of ``Clearance'', ``Damage to the national security'',
``Mandatory declassification'', and ``Original classification
authority'' to read as follows:
Sec. 8.5 Definitions.
* * * * *
Authorized holder is any individual who has been granted access to
specific classified information in accordance with Executive Order
13526 or any successor order.
* * * * *
Clearance means that an individual is eligible, under the standards
of Executive Orders 10450, 12968, 13467, and appropriate DOT
regulations, for access to classified information.
Damage to the national security means harm to the national defense
or foreign relations of the United States from the unauthorized
disclosure of information, taking into consideration such aspects of
the information as the sensitivity, value, utility, and provenance of
that information.
* * * * *
Mandatory declassification review means the review for
declassification of classified information in response to a request for
declassification that meets the requirements of section 3.5 of
Executive Order 13526.
* * * * *
Original classification authority means an individual authorized in
writing, either by the President, the Vice President, or by agency
heads or other officials designated by the President, to classify
information in the first instance.
0
5. In Sec. 8.7, paragraph (a) is revised to read as follows:
Sec. 8.7 Spheres of responsibility.
(a) Pursuant to section 5.4(d) of Executive Order 13526, and to
section 6.1 of Executive Order 12968, the Assistant Secretary for
Administration is hereby designated as the senior agency official of
the Department of Transportation with assigned responsibilities to
assure effective compliance with and implementation of Executive Order
13526, Executive Order 12968, Office of Management and
[[Page 45981]]
Budget Directives, the regulations in this part, and related issuances.
* * * * *
Subpart B--Classification/Declassification of Information
0
6. In Sec. 8.9, paragraphs (a) introductory text and (b) are revised
to read as follows:
Sec. 8.9 Information Security Review Committee.
(a) The Department of Transportation Information Security Review
Committee has the authority to:
* * * * *
(b) The Information Security Review Committee will be composed of
the Assistant Secretary for Administration, who will serve as Chair;
the General Counsel; and the Director of Security. When matters
affecting a particular Departmental component are at issue, the
Associate Administrator for Administration for that component (or for
the Federal Aviation Administration, the Associate Administrator for
Security and Hazardous Materials Safety) will participate as an ad hoc
member, together with the Chief Counsel of that component. Any regular
member may designate a representative with full power to serve in his/
her place.
* * * * *
0
7. In Sec. 8.11, paragraphs (a), (b)(1) and (2), and (c) are revised
to read as follows:
Sec. 8.11 Authority to classify information.
(a) Presidential Order of December 29, 2009, ``Original
Classification Authority'' confers upon the Secretary of Transportation
the authority to originally classify information as SECRET or
CONFIDENTIAL with further authorization to delegate this authority.
(b) * * *
(1) Office of the Secretary of Transportation. The Deputy
Secretary; Assistant Secretary for Administration; Director of
Intelligence, Security and Emergency Response; Director of Security.
(2) Federal Aviation Administration. Administrator; Associate
Administrator for Security and Hazardous Materials Safety.
* * * * *
(c) Although the delegations of authority set out in paragraph (b)
of this section are expressed in terms of positions, the authority is
personal and is invested only in the individual occupying the position.
The authority may not be exercised ``by direction of'' a designated
official. The formal appointment or assignment of an individual to one
of the identified positions or a designation in writing to act in the
absence of one of these officials, however, conveys the authority to
originally classify information as SECRET or CONFIDENTIAL.
* * * * *
0
8. Revise Sec. 8.15 to read as follows:
Sec. 8.15 Mandatory review for classification.
(a) Mandatory declassification review requests will be processed in
accordance with 32 CFR 2001.33.
(b) Except as provided in paragraph b of section 3.5 of Executive
Order 13526, all information classified by the Department of
Transportation under Executive Order 13526 or predecessor orders shall
be subject to a review for declassification if:
(1) The request for review describes the information with
sufficient specificity to enable its location with a reasonable amount
of effort;
(2) The information has not been reviewed for declassification
within the prior two years. If the information has been reviewed within
the prior two years, or the information is the subject of pending
litigation, the requestor will be informed of this fact, and of the
Department's decision not to declassify the information and of his/her
right to appeal the Department's decision not to declassify the
information to the Interagency Security Classification Appeals Panel
(ISCAP);
(3) The document or material containing the information responsive
to the request is not contained within an operational file exempted
from search and review, publication, and disclosure under 5 U.S.C. 552
in accordance with law; and
(4) The information is not the subject of pending litigation.
(c) All information reviewed for declassification because of a
mandatory review will be declassified if it does not meet the standards
for classification in Executive Order 13526. The information will then
be released unless withholding is otherwise authorized and warranted
under applicable law.
(d) Mandatory declassification review requests for information that
has been classified by the Department of Transportation may be
addressed to the Director of Security, U.S. Department of
Transportation, 1200 New Jersey Avenue, Washington, DC 20590. The
Director will forward the request to the appropriate Departmental
Original Classification Authority for processing.
(e) Denied requests may be appealed to the DOT Information Security
Review Committee (DISRC) through the Director of Security within 60
days of receipt of the denial. If the DISRC upholds the denial, it will
inform the requestor of his or her final appeal rights to the ISCAP.
0
9. Revise Sec. 8.17 to read as follows:
Sec. 8.17 Classification challenges.
(a) Authorized holders of information classified by the Department
of Transportation who, in good faith, believe that its classification
status is improper are encouraged and expected to challenge the
classification status of the information before the Original
Classification Authority (OCA) having jurisdiction over the
information. A formal challenge must be in writing, but need not be any
more specific than to question why information is or is not classified,
or is classified at a certain level.
(b) Classification challenges to DOT information must be addressed
to the DOT Original Classification Authority (OCA) who is responsible
for the information. If unsure of the OCA, address the challenge to the
DOT Director of Security.
(c) Classification challenges will be processed according to 32 CFR
2001.14.
Sec. 8.19 [Removed and Reserved]
0
10. Remove and reserve Sec. 8.19.
Sec. 8.21 [Amended]
0
11. Amend Sec. 8.21 by removing ``8.13,'' and the comma following
``8.15'', and by removing the word ``agency'' and adding ``component''
in its place.
Sec. 8.23 [Amended]
0
12. Amend Sec. 8.23 as follows:
0
a. In paragraph (a) by adding an ``s'' to the word ``function'';
0
b. In paragraph (b) by removing the word ``a'' and adding in its place
the word ``another'' in the first sentence and by adding the words ``at
a lower level'' after the word ``resolved'' in the last sentence;
0
c. In paragraph (c) by adding ``, directives issued pursuant to
Executive Order 13526,'' after the words ``Executive Order 13526'' in
the first sentence and in the second sentence by removing the words
``in NARA'' and adding in their place ``into the National Archives'';
and
0
d. In paragraph (d) by removing the words ``of this part for automatic
declassification'' at the end of the first sentence, and adding in
their place ``for automatic declassification in section 3.3 of
Executive Order 13526 and its implementing directives''.
Subpart C--Access to Information
0
13. 13. In Sec. 8.25, revise paragraphs (a) introductory text and
(b)(1) through (4)
[[Page 45982]]
and add paragraph (b)(5) to read as follows:
Sec. 8.25 Personnel Security Review Board.
(a) The Department of Transportation Personnel Security Review
Board will, on behalf of the Secretary of Transportation (except in any
case in which the Secretary personally makes the decision), make the
administratively final decision on an appeal arising in any part of the
Department from:
* * * * *
(b) * * *
(1) Two persons appointed by the Assistant Secretary for
Administration: One from the Office of Human Resource Management, and
one, familiar with personnel security adjudication, from the Office of
Security, who will serve as Chair;
(2) One person appointed by the General Counsel, who, in addition
to serving as a member of the Board, will provide to the Board whatever
legal services it may require;
(3) One person appointed by the Administrator of the Federal
Aviation Administration; and
(4) One person appointed by the Administrator of the Federal
Highway Administration.
(5) Any member may designate a representative, meeting the same
criteria as the member, with full power to serve in his/her place.
* * * * *
0
14. Section 8.29 is revised to read as follows:
Sec. 8.29 Access by historical researchers and former Presidential
appointees.
Access to classified information may be granted to historical
researchers and former Presidents and Vice-Presidents and their
appointees as outlined in Executive Order 13526 or its successor order.
The general guidelines for access to classified information are
contained in Executive Order 12968.
0
15. In Sec. 8.31, amend paragraph (b) by adding the word ``an''
between ``into agreement'' in the first sentence and by removing the
last three sentences and adding a new sentence in their place.
The addition reads as follows:
Sec. 8.31 Industrial security.
* * * * *
(b) * * * Specifically, this regulation is DOD 5220.22-M, National
Industrial Security Program Operating Manual, and is effective within
the Department of Transportation. Appropriate security staff, project
personnel, and contracting officers must assure that actions required
by the regulation are taken.
Issued in Washington, DC, on July 5, 2016, under authority
delegated in 49 CFR 1.27(c).
Molly J. Moran,
Acting General Counsel.
[FR Doc. 2016-16565 Filed 7-14-16; 8:45 am]
BILLING CODE 4910-9X-P
