[Federal Register Volume 61, Number 234 (Wednesday, December 4, 1996)]
[Rules and Regulations]
[Pages 64286-64289]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-30884]
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ARMS CONTROL AND DISARMAMENT AGENCY
22 CFR Part 605
National Security Information Regulations
AGENCY: Arms Control and Disarmament Agency.
ACTION: Final rule.
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SUMMARY: The United States Arms Control and Disarmament Agency (ACDA)
is updating, revising, and restating in their entirety its National
Security Information regulations. In addition to containing internal
policies and procedures, these regulations set forth in Sec. 605.8 what
members of the public must do to request mandatory declassification
review and to appeal denials of requests for declassification.
EFFECTIVE DATE: December 4, 1996.
FOR FURTHER INFORMATION CONTACT: Frederick Smith, Jr., United States
Arms Control and Disarmament Agency, Room 5635, 320 21st Street, NW.,
Washington, DC 20451, telephone (202) 647-3596.
SUPPLEMENTARY INFORMATION: On October 10, 1996, ACDA published a notice
of proposed rulemaking (61 FR 53158-53161) with a 36-day comment
period. No comments were received during the comment period.
Accordingly, the rule is adopted as proposed.
List of Subjects in 22 CFR Part 605
Administrative practice and procedure, Classified information,
Freedom of information.
Chapter VI of Title 22 of the Code of Federal Regulations is
amended by revising part 605 to read as follows:
PART 605--NATIONAL SECURITY INFORMATION REGULATIONS
Sec.
605.1 Basis.
605.2 Objective.
605.3 Senior agency official.
605.4 Original classification.
605.5 Classification authority.
605.6 Derivative classification.
605.7 Declassification and downgrading.
605.8 Mandatory declassification review.
605.9 Systematic declassification review.
605.10 Safeguarding.
Authority: E.O. 12958 (60 FR 19825, April 20, 1995); Information
Security Oversight Office Directive No. 1, 32 CFR 2001.
Sec. 605.1 Basis.
These regulations, taken together with the Information Security
Oversight Office Directive No. 1 dated October 13, 1995, provide the
basis for the security classification program of the U.S. Arms Control
and Disarmament Agency (ACDA) implementing Executive Order 12958,
``Classified National Security Information'' (the Executive Order).
Sec. 605.2 Objective.
The objective of the ACDA 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.
Sec. 605.3 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 ACDA senior
agency official is the Deputy Director. The Deputy Director is assisted
in carrying out the provisions of the Executive Order and the ACDA
information security program by the Director of Security and by the
Classification Adviser.
Sec. 605.4 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 designations--(1) Top Secret shall be applied
only to information, the unauthorized disclosure of which reasonably
could be expected to cause exceptionally grave damage to the national
security. Examples of ``exceptionally grave damage'' include, but are
not limited to, armed hostilities against the United States or its
allies; the compromise of vital national defense plans or cryptologic
and communications intelligence systems; the revelation of sensitive
intelligence operations; and the disclosure of scientific or
technological developments vital to national security.
(2) Secret shall be applied to information, the unauthorized
disclosure of which reasonably could be
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expected to cause serious damage to the national security. Examples of
``serious damage'' include, but are not limited to, disruption of
foreign relations significantly affecting the national security;
significant impairment of a program or policy directly related to the
national security; revelation of significant military plans or
intelligence operations; and compromise of significant scientific or
technological developments relating to national security.
(3) Confidential shall be applied to information, the unauthorized
disclosure of which reasonably could be expected to cause damage to the
national security.
(c) Classification restraints. (1) The classification level of any
form of information is premised on an evaluation of its contents as a
whole, as well as on its relationship to other information.
(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 case of doubt, the lower level of classification is to be
used.
(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 1.6 of the Executive Order.
When it can be determined, a specific date or event for
declassification 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, except that the original classification authority
may classify for a period greater than 10 years specific information
that falls within the criteria set forth in section 1.6(d) of the
Executive Order.
(2) An original classification authority may extend the duration of
classification or reclassify specific information for successive
periods not to exceed 10 years at a time except for records that are
more than 25 years old.
(3) Information classified for an indefinite duration under
predecessor orders, such as ``Originating Agency's Determination
Required,'' shall be subject to the declassification provisions of Part
3 of the Executive Order, including the provisions of section 3.4
regarding automatic declassification of records older than 25 years.
Sec. 605.5 Classification authority.
(a) General. Classification shall be solely on the basis of
national security considerations. 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.
(b) Designations. The following ACDA officials shall have original
classification authority in each of the three designations under which
they are shown below. This authority vests only in the officials or
positions designated and, except as provided in paragraph (c) of this
section, may not be redelegated. In the absence of any of the
authorized classifiers (for TDY outside Washington, annual leave,
temporary position vacancy, etc.), the officer acting in that person's
position may exercise the classifier's authority.
(1) Top Secret. (i) Director,
(ii) Deputy Director.
(2) Secret. (i) Officials having Top Secret classification
authority,
(ii) such other officials who have a frequent need to exercise
Secret authority and are specifically delegated this authority in
writing by the Director.
(3) Confidential. (i) Officials having Top Secret and Secret
classification authority,
(ii) Other officials who have a frequent need to exercise
Confidential authority and are specifically delegated this authority in
writing by the Director.
(c) Delegation of classification authority. (1) The Executive Order
restricts delegation of original classification authority to officials
who have a demonstrable and continuing need to exercise such authority.
Such delegations shall be held to a minimum.
(2) If in the judgment of bureau or office heads an officer has a
demonstrable need for classification authority, a written request over
the bureau or office head's signature should be forwarded via the
Director of Security to the Deputy Director for action. The request
should set forth the officer's name and title, the justification for
having the authority, and the level of classification authority sought.
(3) The Director of Security shall maintain a complete current list
by classification designation of individuals to whom and positions to
which original classification authority has been delegated.
(4) Periodic reviews of delegations of classification authority
will be made by the Director of Security to ensure that officials so
designated have a continuing need to exercise such authority.
Recommendations by the Director of Security for discontinuance of
delegations will be forwarded to the Deputy Director for action.
(5) Original classification authority shall not be delegated to
persons who only reproduce, extract, or summarize classified
information, or who only apply classifications markings derived from
source material or as directed by a classification guide.
(d) Classification responsibilities. Each ACDA officer who signs,
authenticates, or otherwise produces a document is responsible for
determining that it is properly classified and marked. This
responsibility includes determining whether the document contains any
originally classified material (in which case the classification must
be authorized by an appropriate ACDA classifying official) or contains
information already classified (in which case the proper derivative
markings must be applied). Any significant doubt about the level of
classification shall be resolved in favor of the lower level.
(e) Classification challenges. Holders of information who believe
that its classification status is improper are expected and encouraged
to challenge the need for classification, the classification level, the
duration of classification, the lack of classification or other aspect
believed to be improper. Classification challenges shall be directed to
and decided by the Deputy Director. If the information was not
originated within or classified by ACDA, it will be referred to the
Classification Adviser for coordination with the responsible agency or
department if declassification, downgrading, classification or other
change in its status appears to be warranted. Individuals making
challenges to the classification status of information shall not be
subject to retribution for such action, and they shall be advised of
their right to appeal the Deputy Director's decision on the challenge
to the Interagency Security Classification Appeals Panel established by
section 5.4 of the Executive Order.
(f) Contractor classification authority. (1) Each ACDA contract
calling for classified work shall be processed under the National
Industrial Security Program.
(2) Each contract processed under the National Industrial Security
Program requires the preparation of a contract security classification
specification (DD 254) which serves as the contractor's guidance and
authority to apply classification markings.
(3) Each contract processed under the Department of Energy (DOE)
Security Requirements (i.e., involving restricted data or formerly
restricted data) shall
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include a provision for naming a classification coordinator in the
contractor organization. This individual shall coordinate the derived
classification of all documents prepared under the contract in
accordance with guidance received from ACDA via the ACDA Contracting
Officer's Technical Representative for the contract, or by direct
consultation on classification problems with the ACDA Classification
Adviser or the Director of Security.
(4) Only designated officials of the U.S. Government may originally
classify information. Contractor personnel, as potential developers of
classified information, must follow the guidelines outlined in
paragraph (d) of this section entitled ``Classification
Responsibilities.'' When there is a question involving the original
classification of information, the contractor is obligated to safeguard
it in accordance with the classification designation deemed appropriate
and submit recommendations to ACDA for classification determination.
(5) In general, the classification of the information provided by
ACDA for use or reference in the completion of the contract will be the
source of the classification of documents prepared under the contract.
Sec. 605.6 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. Derivative application of classification
markings is the responsibility of those who prepare material using
information that is already classified and of those who apply markings
in accordance with instructions from an authorized classifier or in
accordance with an authorized classification guide.
(c) Classification guides. (1) Classification guides used to direct
derivative classification and issued by ACDA shall specifically
identify the information to be protected, using categorization to the
extent necessary to ensure that the information involved can be
identified readily and uniformly.
(2) Each classification guide issued by ACDA shall be approved by
the Senior Agency Official.
(3) Each classification guide issued by ACDA shall be kept current
and shall be reviewed as required by directives issued under the
Executive Order. The Director of Security shall maintain a list of all
classification guides.
Sec. 605.7 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), mandatory declassification review, discovery,
subpoena, or other information access or declassification request;
(2) after review as part of ACDA'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 3.4 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, by the Classification Adviser, or by any other
official specifically designated by the Deputy Director. Contractor
personnel do not have authority to downgrade or declassify.
(2) The Director of Security shall maintain a record of ACDA
officials specifically designated by the Deputy Director as
declassification authorities.
(d) Declassification after balancing public interest. It is
presumed that information that continues to meet classification
requirements requires continued protection. In exceptional cases,
however, the need to protect such information may be outweighed by the
public interest in disclosure of the information, and in these cases
the information should be declassified. When such questions arise, they
shall be referred to the ACDA official with Top Secret authority having
primary jurisdiction over the information in question. That official,
after consultation with the Public Affairs Adviser and the
Classification Adviser, will determine whether the public interest in
disclosure outweighs the damage to national security that reasonably
could be expected from disclosure. If the determination is made that
the information should be declassified and disclosed, that official
will make such a recommendation to the Director or the Deputy Director
who shall make the decision on declassification and disclosure.
(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. 605.8 Mandatory declassification review.
(a) Action on requests. (1) All requests to ACDA 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, provided the request describes the document or material
containing the information with sufficient specificity to enable ACDA
to locate it with a reasonable amount of effort.
(2) If a request does not reasonably describe the information
sought, the Classification Adviser will notify the requester that
unless additional information is provided or the scope of the request
is narrowed, no further action will be taken.
(3) Mandatory declassification review requests should be directed
to the Classification Adviser, U.S. Arms Control and Disarmament
Agency, 320 21st St., NW., Washington, DC 20451.
(4) If the request requires the rendering of services for which
reasonable fees should be charged pursuant to the FOIA and ACDA
regulations thereunder (22 CFR part 602), such fees shall be imposed at
the FOIA schedule rates and the requester shall be so notified.
(5) The Classification Adviser, in consultation with appropriate
ACDA bureaus and offices, will determine whether, under the Executive
Order, the requested information may be declassified, in whole or in
part, and will promptly make any declassified information available to
the requester, unless the information is exempt from disclosure under
some other provision of law.
(b) Appeals from denials. (1) If it is determined that
declassification of the information requested is not warranted, in
whole or in part, the requester shall be given a brief statement as to
the
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reasons for the decision, a notice of the right to appeal to the Deputy
Director, and a notice that any such appeal must be filed with ACDA
within 60 days. Appeals shall be addressed to: Deputy Director, U.S.
Arms Control and Disarmament Agency, 320 21st St., NW., Washington, DC
20451.
(2) The Deputy Director shall act within 30 days of receipt on all
appeals of denials of requests for declassification. The Deputy
Director shall determine whether continued classification is required
in whole or in part. If the Deputy Director determines that continued
classification is required under the Executive Order, the requester
shall be so notified and informed of the reasons therefor. The
requester shall also be advised of the right to appeal any denial to
the Interagency Security Classification Appeals Panel in accordance
with section 5.4 of the Executive Order.
(c) Information classified by another agency. When ACDA receives a
request for information in its custody that was classified by another
agency, the Classification Adviser shall forward the request together
with a copy of the document containing the information requested to the
classifying agency for review and direct response to the requester.
Unless the agency that classified the information objects on the ground
that its association with the information requires protection, the
Classification Adviser shall also notify the requester of the referral.
(d) Confirmation of existence or nonexistence of document. In
responding to a request for mandatory declassification review, the
Classification Adviser may refuse to confirm or deny the existence or
nonexistence of a document if the fact of its existence or nonexistence
would itself be classifiable under the Executive Order.
Sec. 605.9 Systematic declassification review.
The Classification Adviser 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 3.4 of the Executive Order. The FOIA officer
shall prioritize such review on the basis of the recommendations of the
Information Security Policy Advisory Council established under section
5.5 of the Executive Order and on the degree of researcher interest and
likelihood of declassification upon review.
Sec. 605.10 Safeguarding.
Specific controls on the use, processing, storage, reproduction and
transmittal of classified information within ACDA that provide adequate
protection and prevent access by unauthorized persons are contained in
Part 1 of the ACDA Security Classification Handbook, an internal
guidance manual, and shall be followed by ACDA personnel and, when
appropriate, by contractors.
Dated: November 22, 1996.
Mary Elizabeth Hoinkes,
General Counsel.
[FR Doc. 96-30884 Filed 12-3-96; 8:45 am]
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