03-1995. Classified National Security Information

AGENCY:

Office of the Secretary, Homeland Security.

ACTION:

Interim final rule.

SUMMARY:

This interim final rule implements Executive Order 12958, entitled “Classified National Security Information,” as amended, by establishing the initial elements of the Department of Homeland Security's classified national security information regulations.

DATES:

This interim final rule is effective January 27, 2003. Written comments may be submitted by February 26, 2003.

ADDRESSES:

Submit written comments (preferably an original and three copies) to Associate General Counsel (General Law), Department of Homeland Security, Washington, DC.

FOR FURTHER INFORMATION CONTACT:

Ellen McClain, [phone], not a toll free call.

SUPPLEMENTARY INFORMATION:

I. Background

On November 25, 2002, the President signed into law the Homeland Security Act of 2002 (Pub. L. 107-296), which created the new Department of Homeland Security (DHS). Pursuant to the provisions of the Act, the new Department came into existence on January 24, 2003.

In order to establish procedures to facilitate public interaction with the DHS Office of the Secretary, DHS is issuing an initial series of proposed and interim final regulations.

II. The Interim Final Rule

This interim final rule establishes initial procedures necessary for the DHS to fulfill its obligations under Executive Order 12958, as amended, regarding classified national security information.

Executive Order 12958, as amended, was issued to update and revise the standards and process for classifying, safeguarding and declassifying classified national security information. The rule delegates to the Under Secretary for Information Analysis and Infrastructure Protection responsibility for developing the vast majority of information and internal operating instructions on classified information.

III. Procedural Requirements

Because the DHS came into existence on January 24, 2003, it is necessary to promptly establish initial procedures to facilitate the interaction of the public with the Department. Furthermore, this interim final rule generally parallels the procedures currently used by other agencies to fulfill their obligations under Executive Order 12958, as amended, regarding classified national security information.

Accordingly, the Department has determined that notice and public procedure are impracticable, unnecessary and contrary to the public interest pursuant to 5 U.S.C. 553(b)(B). For the same reasons, the Department has determined that this interim rule should be issued without a delayed effective date pursuant to 5 U.S.C. 553(d)(3).

It has been determined that this rulemaking is not a significant regulatory action for the purposes of Executive Order 12866. Accordingly, a regulatory impact analysis is not required.

Because no notice of proposed rulemaking is required, the provisions of the Regulatory Flexibility Act (5 U.S.C. chapter 6) do not apply.

This rule has been reviewed by the Information Security Oversight Office of the National Archives and Records Administration, pursuant to Executive Order 12958.

List of Subjects in 6 CFR Part 7

• Classified information
• Organization, functions, and authority delegations

Authority and Issuance

For the reasons set forth above, 6 CFR chapter I is amended by adding part 7 to read as follows:

PART 7—CLASSIFIED NATIONAL SECURITY INFORMATION

7.1

Purpose.

7.2

Scope.

7.3

Definitions.

7.11

Authority of the Under Secretary for Information Analysis and Infrastructure Protection.

7.21

Classification and declassification authority.

7.31

Mandatory review for declassification requests.

Authority: 5 U.S.C. 301; 6 U.S.C. 122; E.O. 12958, 60 FR 19825; 3 CFR, 1995 Comp., p. 333; E.O. 13142, 64 FR 66089, 3 CFR, 1999 Comp., p. 236; 32 CFR part 2001.

§ 7.1

Purpose.

The purpose of this part is to ensure that information within the Department of Homeland Security (Department) relating to the national security is classified, safeguarded, and declassified pursuant to the provisions of Executive Order 12958, as amended, and implementing directives from the Information Security Oversight Office of the National Archives and Records Administration (ISOO).

§ 7.2

Scope.

(a) All employees granted access to classified information by the Department are governed by this part, and by the standards in Executive Order 12958, as amended, any other applicable Executive Order, and directives promulgated under those Executive Orders. If any portion of this part conflicts with any portion of Executive Order 12958, as amended, or any other applicable Executive Order, the Executive Order shall apply. The provisions established by this subpart shall apply to each component of the Department, including all Department components that are transferred to the Department, except to the extent that a Department component has adopted separate guidance with regard to classified national security information and access.

(b) This part applies to non-contractor personnel, to include state and local officials, and contractor personnel who are entrusted with classified national security information originated within or in the custody of the Department.

(c) This part is independent of and does not affect any classification procedures or requirements of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2011 et seq.).

(d) This part does not, and is not intended to, create any right to judicial review, or any other right or benefit or trust responsibility, substantive or procedural, enforceable by a party against the United States, its agencies or instrumentalities, its officers or employees, or any other person.

§ 7.3

Definitions.

The terms defined or used in Executive Order 12958, as amended, and the implementing directives in 32 CFR part 2001, are applicable to this part.

§ 7.11

Authority of the Under Secretary for Information Analysis and Infrastructure Protection.

The Under Secretary for Information Analysis and Infrastructure Protection is designated as the senior agency official as required by section 5.6(c) of Executive Order 12958 and, except as specifically provided elsewhere in this part, is authorized to administer the Department's national security information program pursuant to Executive Order 12958, as amended.

§ 7.21

Classification and declassification authority.

(a) Top Secret original classification authority may only be exercised by the Secretary and by officials to whom such authority is delegated in writing by the Secretary. As a minimum, the Under Secretary for Information Analysis and Infrastructure Protection will be delegated this authority. No official who is delegated Top Secret classification authority pursuant to this paragraph may redelegate such authority.

(b) The Under Secretary for Information Analysis and Infrastructure Protection may delegate original Secret and Confidential classification authority to other officials determined to have frequent need to exercise such authority. No official who is delegated original classification authority pursuant to this paragraph may redelegate such authority.

(c) Officials authorized to classify information at a specified level are also authorized to classify information at a lower level. In the absence of an official authorized to exercise classification authority pursuant to this section, the person designated to act in lieu of such official may exercise the official's classification authority.

§ 7.31

Mandatory review for declassification requests.

Any person may request classified information be reviewed for declassification pursuant to the mandatory declassification review provisions of section 3.6 of Executive Order 12958. Such requests shall be sent to the Under Secretary for Information Analysis and Infrastructure Protection, Department of Homeland Security, 1800 G Street, NW., Washington, DC.

Dated: January 24, 2003.

Tom Ridge,

Secretary of Homeland Security.