[Federal Register: January 3, 2007 (Volume 72, Number 1)]
[Proposed Rules]               
[Page 59-62]

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DEPARTMENT OF STATE

22 CFR Part 9

[Public Notice 5658]
RIN 1400-AB91

 
National Security Information Regulations

AGENCY: Department of State.

ACTION: Proposed rule with request for comment.

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SUMMARY: The Department of State proposes to revise its regulations 
governing the classification of national security information that is 
under the control of the Department in order to reflect the provisions 
of a new executive order on national security information and 
consequent changes in the Department's procedures since the last 
revision of the Department's regulations on this subject.

COMMENT DATES: The Department will consider any comments from the 
public that are received by April 3, 2007.

ADDRESSES: You may submit comments to Margaret P. Grafeld, Director, 
Office of Information Programs and Services, (202) 261-8300, U.S. 
Department of State, SA-2, 515 22nd St. NW., Washington. DC 20522-6001; 
FAX: 202-261-8590. E-mail [email protected] If submitting comments 
by e-mail, you must include the RIN in the subject line of your 
message. You may view this rule online at http://www.regulations.gov/index.cfm
.


FOR FURTHER INFORMATION, CONTACT: Margaret P. Grafeld, Director, Office 
of Information Programs and Services, (202) 261-8300, U.S. Department 
of State, SA-2, 515 22nd St. NW., Washington. DC 20522-6001; FAX: 202-
261-8590.

SUPPLEMENTARY INFORMATION: Since the last version of Part 9 of 22 CFR 
was published, the executive order governing classification of national 
security information has been superseded by E.O 12958, effective 
October 14, 1995. Since its promulgation, E.O. 12958 has been amended 
several times, most recently and most substantially by Executive Order 
13292 dated March 28, 2003, which effected changes in classification 
categories, provisions regarding the duration of classification, 
provisions regarding reclassification of previously declassified and 
released information, and the disclosure of classified information in 
an emergency. In addition, in contrast to the indefinite classification 
provisions of E.O. 12356, the new executive order provides for 
classification for up to 25 years under certain criteria and, in 
certain circumstances, classification beyond 25 years under more 
stringent criteria.

Regulatory Findings

    Administrative Procedure Act. The Department is publishing this 
rule as a proposed rule. Public comments are invited for a period of 90 
days following this document's publication in the Federal Register.
    Regulatory Flexibility Act. The Department, in accordance with the 
Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this 
proposed rule and, by approving it, certifies that this rule will not 
have significant economic impact on a substantial number of small 
entities.
    Unfunded Mandates Act of 1995. This proposed rule will not result 
in the expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $100 million or more in any 
year, and it will not significantly or uniquely affect small 
governments. Therefore, no actions are deemed necessary under the 
provisions of the Unfounded Mandates Reform Act of 1995.
    Small Business Regulatory Enforcement Fairness Act of 1996. This 
rule is not a major rule as defined by section 804 of the Small 
Business Regulatory Enforcement Act of 1996. This rule will not result 
in an annual effect on the economy of $100 million or more; a major 
increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign 
based companies in domestic and import markets.
    Executive Order 12866. The Department does not consider this rule 
to be a ``significant regulatory action'' under Executive Order (E.O.) 
12866, section 3(f), Regulatory Planning and Review. In addition, the 
Department is exempt from Executive Order 12866 except to the extent 
that it is promulgating regulations in conjunction with a domestic 
agency that are significant regulatory actions. The Department has 
nevertheless reviewed the regulation to ensure its consistency with the 
regulatory philosophy and principles set forth in that Executive Order.
    Executive Order 13132. This regulation will not have substantial 
direct effects on the states, on the relationship between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government. Therefore, in 
accordance with section 6 of Executive Order 13132, it is determined 
that this rule does not have sufficient federalism implications to 
require consultations or warrant the preparation of a federalism 
summary impact statement.
    Paperwork Reduction Act. This rule does not impose any new 
reporting or record-keeping requirements subject to the Paperwork 
Reduction Act, 44 U.S.C. Chapter 35.

List of Subjects in 22 CFR Part 9

    Original classification, original classification authorities, 
derivative classification, classification challenges, declassification 
and downgrading, mandatory declassification review, systematic 
declassification review, safeguarding.
    For the reasons set forth in the preamble, Title 22, Part 9 of the 
Code of Federal Regulations is proposed to be revised as follows:

PART 9--SECURITY INFORMATION REGULATIONS

Sec.
9.1 Basis.
9.2 Objective.
9.3 Senior agency official.
9.4 Original classification.
9.5 Original classification authority.
9.6 Derivative classification.
9.7 Identification and marking.
9.8 Classification challenges.
9.9 Declassification and downgrading.
9.10 Mandatory declassification review.
9.11 Systematic declassification review.
9.12 Access to classified information by historical researchers and 
certain former government personnel.
9.13 Safeguarding.

    Authority: E.O. 12958 (60 FR 19825, April 20, 1995) as amended; 
Information Security Oversight Office Directive No. 1, 32 CFR 2001 
(68 FR 55168, Sept. 22, 2003)


Sec.  9.1  Basis.

    These regulations, taken together with the Information Security 
Oversight Office Directive No. 1 dated September 22, 2003, and Volume 5 
of the Department's Foreign Affairs Manual, provide the basis for the 
security classification program of the U.S. Department of State (``the 
Department'') implementing Executive Order 12958, ``Classified National 
Security Information'', as amended (``the Executive Order'').


Sec.  9.2  Objective.

    The objective of the Department's classification program is to 
ensure that national security information is protected from 
unauthorized disclosure, but only to the extent and for such a period 
as is necessary.

[[Page 60]]

Sec.  9.3  Senior agency official.

    The Executive Order requires that each agency that originates or 
handles classified information designate a senior agency official to 
direct and administer its information security program. The 
Department's senior agency official is the Under Secretary of State for 
Management. The senior agency official is assisted in carrying out the 
provisions of the Executive Order and the Department's information 
security program by the Assistant Secretary for Diplomatic Security, 
the Assistant Secretary for Administration, and the Deputy Assistant 
Secretary for Information Sharing Services.


Sec.  9.4  Original classification.

    (a) Definition. Original classification is the initial 
determination that certain information requires protection against 
unauthorized disclosure in the interest of national security (i.e., 
national defense or foreign relations of the United States), together 
with a designation of the level of classification.
    (b) Classification levels.
    (1) Top Secret shall be applied to information the unauthorized 
disclosure of which reasonably could be expected to cause exceptionally 
grave damage to the national security that the original classification 
authority is able to identify or describe.
    (2) Secret shall be applied to information the unauthorized 
disclosure of which reasonably could be expected to cause serious 
damage to the national security that the original classification 
authority is able to identify or describe.
    (3) Confidential shall be applied to information the unauthorized 
disclosure of which reasonably could be expected to cause damage to the 
national security that the original classification authority is able to 
identify or describe.
    (c) Classification requirements and limitations.
    (1) Information may not be considered for classification unless it 
concerns:
    (i) Military plans, weapons systems, or operations;
    (ii) Foreign government information;
    (iii) Intelligence activities (including special activities), 
intelligence sources or methods, or cryptology;
    (iv) Foreign relations or foreign activities of the United States, 
including confidential sources;
    (v) Scientific, technological, or economic matters relating to the 
national security; which includes defense against transnational 
terrorism;
    (vi) United States Government programs for safeguarding nuclear 
materials or facilities;
    (vii) Vulnerabilities or capabilities of systems, installations, 
infrastructures, projects, plans, or protection services relating to 
the national security, which includes defense against transnational 
terrorism; or
    (viii) Weapons of mass destruction.
    (2) In classifying information, the public's interest in access to 
government information must be balanced against the need to protect 
national security information.
    (3) In no case shall information be classified in order to conceal 
violations of law, inefficiency, or administrative error, or to prevent 
embarrassment to a person, organization, or agency, to restrain 
competition, or to prevent or delay the release of information that 
does not require protection in the interest of the national security.
    (4) A reference to classified documents that does not directly or 
indirectly disclose classified information may not be classified or 
used as a basis for classification.
    (5) Only information owned by, produced by or for, or under the 
control of the U.S. Government may be classified.
    (6) The unauthorized disclosure of foreign government information 
is presumed to cause damage to national security.
    (d) Duration of classification.
    (1) Information shall be classified for as long as is required by 
national security considerations, subject to the limitations set forth 
in section 1.5 of the Executive Order. When it can be determined, a 
specific date or event for declassification in less than 10 years shall 
be set by the original classification authority at the time the 
information is originally classified. If a specific date or event for 
declassification cannot be determined, information shall be marked for 
declassification 10 years from the date of the original decision, 
unless the original classification authority determines that the 
sensitivity of the information requires that it shall be marked for 
declassification for up to 25 years.
    (2) An original classification authority may extend the duration of 
classification, change the level of classification, or reclassify 
specific information only when the standards and procedures for 
classifying information under the Executive Order are met.
    (3) Information marked for an indefinite duration of classification 
under predecessor orders, such as ``Originating Agency's Determination 
Required '' (OADR) or containing no declassification instructions shall 
be subject to the declassification provisions of Part 3 of the Order, 
including the provisions of section 3.3 regarding automatic 
declassification of records older than 25 years.


Sec.  9.5  Original classification authority.

    (a) Authority for original classification of information as Top 
Secret may be exercised by the Secretary and those officials delegated 
this authority in writing by the Secretary. Such authority has been 
delegated to the Deputy Secretary, the Under Secretaries, Assistant 
Secretaries and other Executive Level IV officials and their deputies; 
Chiefs of Mission, Charge d'Affaires, and Principal Officers at 
autonomous posts abroad; and to other officers within the Department as 
set forth in Department Notice dated May 26, 2000.
    (b) Authority for original classification of information as Secret 
or Confidential may be exercised only by the Secretary, the Senior 
Agency Official, and those officials delegated this authority in 
writing by the Secretary or the Senior Agency Official. Such authority 
has been delegated to Office Directors and Division Chiefs in the 
Department, Section Heads in Embassies and Consulates abroad, and other 
officers within the Department as set forth in Department Notice dated 
May 26, 2000. In the absence of the Secret or Confidential 
classification authority, the person designated to act for that 
official may exercise that authority.


Sec.  9.6  Derivative classification.

    (a) Definition. Derivative classification is the incorporating, 
paraphrasing, restating or generating in new form information that is 
already classified and the marking of the new material consistent with 
the classification of the source material. Duplication or reproduction 
of existing classified information is not derivative classification.
    (b) Responsibility. Information classified derivatively from other 
classified information shall be classified and marked in accordance 
with instructions from an authorized classifier or in accordance with 
an authorized classification guide and shall comply with the standards 
set forth in sections 2.1-2.2 of the Executive Order and the ISOO 
implementing directives in 32 CFR 2001.22.
    (c) Department of State Classification Guide. The Department of 
State Classification Guide (DSCG) is the primary authority for the 
classification of information in documents created by Department of 
State personnel. The Guide is classified ``Confidential'' and is found 
on the Department of State's classified Web site.

[[Page 61]]

Sec.  9.7  Identification and marking.

    (a) Classified information shall be marked pursuant to the 
standards set forth in section 1.6 of the Executive Order; ISOO 
implementing directives in 32 CFR 2001, Subpart B; and internal 
Department guidance in 12 Foreign Affairs Manual (FAM).
    (b) Foreign government information shall retain its original 
classification markings or be marked and classified at a U.S. 
classification level that provides a degree of protection at least 
equivalent to that required by the entity that furnished the 
information. Foreign government information retaining its original 
classification markings need not be assigned a U.S. classification 
marking provided the responsible agency determines that the foreign 
government markings are adequate to meet the purposes served by U.S. 
classification markings.
    (c) Information assigned a level of classification under 
predecessor executive orders shall be considered as classified at that 
level of classification.


Sec.  9.8  Classification challenges.

    (a) Challenges. Holders of information pertaining to the Department 
of State who believe that its classification status is improper are 
expected and encouraged to challenge the classification status of the 
information. Holders of information making challenges to the 
classification status of information shall not be subject to 
retribution for such action. Informal, usually oral, challenges are 
encouraged. Formal challenges to classification actions shall be in 
writing to an original classification authority (OCA) with jurisdiction 
over the information and a copy of the challenge shall be sent to the 
Office of Information Programs and Services (IPS) of the Department of 
State, SA-2, 515 22nd St. NW., Washington, DC 20522-6001. The 
Department (either the OCA or IPS) shall provide an initial response in 
writing within 60 days.
    (b) Appeal procedures and time limits. A negative response may be 
appealed to the Department's Appeals Review Panel (ARP) and should be 
sent to: Chairman, Appeals Review Panel, c/o Information and Privacy 
Coordinator/Appeals Officer, at the IPS address given above. The appeal 
shall include a copy of the original challenge, the response, and any 
additional information the appellant believes would assist the ARP in 
reaching its decision. The ARP shall respond within 90 days of receipt 
of the appeal. A negative decision by the ARP may be appealed to the 
Interagency Security Classification Appeals Panel (ISCAP) referenced in 
section 5.3 of Executive Order 12958. If the Department fails to 
respond to a formal challenge within 120 days or if the ARP fails to 
respond to an appeal within 90 days, the challenge may be sent to the 
ISCAP.


Sec.  9.9  Declassification and downgrading.

    (a) Declassification processes. Declassification of classified 
information may occur:
    (1) After review of material in response to a Freedom of 
Information Act (FOIA)request, mandatory declassification review 
request, discovery request, subpoena, classification challenge, or 
other information access or declassification request;
    (2) After review as part of the Department's systematic 
declassification review program;
    (3) As a result of the elapse of the time or the occurrence of the 
event specified at the time of classification;
    (4) By operation of the automatic declassification provisions of 
section 3.3 of the Executive Order with respect to material more than 
25 years old.
    (b) Downgrading. When material classified at the Top Secret level 
is reviewed for declassification and it is determined that 
classification continues to be warranted, a determination shall be made 
whether downgrading to a lower level of classification is appropriate. 
If downgrading is determined to be warranted, the classification level 
of the material shall be changed to the appropriate lower level.
    (c) Authority to downgrade and declassify.
    (1) Classified information may be downgraded or declassified by the 
official who originally classified the information if that official is 
still serving in the same position, by a successor in that capacity, by 
a supervisory official of either, or by any other official specifically 
designated by the Secretary or the senior agency official.
    (2) The Department shall maintain a record of Department officials 
specifically designated as declassification and downgrading 
authorities.
    (d) Declassification in the public interest. Although information 
that continues to meet the classification criteria of the Executive 
Order or a predecessor order normally requires continued protection, in 
some exceptional cases the need to protect information may be 
outweighed by the public interest in disclosure of the information. 
When such a question arises, it shall be referred to the Secretary or 
the Senior Agency Official for decision on whether, as an exercise of 
discretion, the information should be declassified and disclosed. This 
provision does not amplify or modify the substantive criteria or 
procedures for classification or create any substantive or procedural 
right subject to judicial review.
    (e) Public dissemination of declassified information. 
Declassification of information is not authorization for its public 
disclosure. Previously classified information that is declassified may 
be subject to withholding from public disclosure under the FOIA, the 
Privacy Act, and various statutory confidentiality provisions.


Sec.  9.10  Mandatory declassification review.

    All requests to the Department by a member of the public, a 
government employee, or an agency to declassify and release information 
shall result in a prompt declassification review of the information in 
accordance with procedures set forth in 22 CFR 171.20-25. Mandatory 
declassification review requests should be directed to the Information 
and Privacy Coordinator, U.S. Department of State, SA-2, 515 22nd St., 
NW., Washington, DC 20522-6001.


Sec.  9.11  Systematic declassification review.

    The Information and Privacy Coordinator shall be responsible for 
conducting a program for systematic declassification review of 
historically valuable records that were exempted from the automatic 
declassification provisions of section 3.3 of the Executive Order. The 
Information and Privacy Coordinator shall prioritize such review on the 
basis of researcher interest and the likelihood of declassification 
upon review.


Sec.  9.12  Access to classified information by historical researchers 
and certain former government personnel.

    For Department procedures regarding the access to classified 
information by historical researchers and certain former government 
personnel, see Sec. 171.24 of this Title.


Sec.  9.13  Safeguarding.

    Specific controls on the use, processing, storage, reproduction, 
and transmittal of classified information within the Department to 
provide protection for such information and to prevent access by 
unauthorized persons are contained in Volume 12 of the Department's 
Foreign Affairs Manual.


[[Page 62]]


    Dated: December 27, 2006.
Lee Lohman,
Deputy Assistant Secretary for Administration, Department of State.
 [FR Doc. E6-22487 Filed 12-29-06; 8:45 am]

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