[Federal Register Volume 64, Number 176 (Monday, September 13, 1999)]
[Rules and Regulations]
[Pages 49388-49391]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-23800]
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NATIONAL ARCHIVES AND RECORDS ADMINISTRATION
Information Security Oversight Office
32 CFR Part 2001
[Directive No. 1; Appendix A]
[RIN 3095-AA92]
Classified National Security Information
AGENCY: Information Security Oversight Office (ISOO), National Archives
and Records Administration (NARA).
ACTION: Final rule.
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SUMMARY: This rule establishes a uniform referral standard that Federal
agencies must use for multi-agency declassification issues. The new
provision responds to a need for further guidance to Federal agencies
in implementing section 3.7(b) of Executive Order 12958, Classified
National Security Information. This rule provides standards and
guidelines for identifying equities of other agencies and foreign
governments contained in information requiring referral for review
before declassification and subsequent public disclosure. It includes
guidelines for referring, redacting, and properly marking information
that is subject to the automatic declassification provisions of the
Executive order.
EFFECTIVE DATE: October 13, 1999.
FOR FURTHER INFORMATION CONTACT: Steven Garfinkel, Director, ISOO.
Telephone: 202-219-5250.
SUPPLEMENTARY INFORMATION: This rule is issued pursuant to the
provisions of Sections 3.4 and 3.7 (b) of Executive Order 12958,
published April 20, 1995 (60 Fed. Reg. 19825). Section 3.4 of E.O.
12958 requires that all classified national security information
contained in records that (1) are more than 25 years old, and (2) have
been determined to have permanent historical value under title 44,
United States Code, will be automatically declassified whether or not
the records have been reviewed. Subsequently, all classified
information in such records will be automatically declassified no
longer than 25 years from the date of its original classification,
except for information properly exempted in accordance with the Order.
Section 3.7(b) requires that, when an agency receives any request for
documents in its custody that contain information that was originally
classified by another agency, or comes across such documents in the
process of automatic declassification or systematic review provisions
of this Order, the agency must refer copies of any request and the
pertinent documents to the originating agency for processing, and may,
after consultation with the originating agency, inform any requester of
the referral unless such an association is itself classified under this
Order.
This amendment was developed and approved by more than 25 agencies
that serve on the External Referral Working Group (ERWG) sponsored and
endorsed by the Intelligence Community's Declassification Program
Managers' Council. Forty-two agencies responded to ISOO's May 1998 call
for comment on the amendment. Eight of them provided written comments
or suggestions, all of which were considered and incorporated as
appropriate by February 1999. The amendment is being
[[Page 49389]]
published as a new subsection to Part 2001, the Executive Order's
implementing Directive No. 1, issued by the Director of Office of
Management and Budget (OMB) on October 13, 1995, when ISOO was a
component of OMB. With the enactment of the Treasury, Postal Service
and General Government Appropriations Act for Fiscal Year 1996, ISOO
became a component of the National Archives and Records Administration.
This rule is being issued as a final rule without prior notice of
proposed rulemaking as allowed by the Administrative Procedure Act, 5
U.S.C. 553(b)(3)(A) for rules of agency procedure. This rule is not a
significant regulatory action for the purposes of Executive Order
12866. This rule is not a major rule as defined in 5 U.S.C. Chapter 8,
Congressional Review of Agency Rulemaking. As required by the
Regulatory Flexibility Act, we certify that this rule will not have a
significant impact on small entities because it applies only to Federal
agencies.
List of Subjects in 32 CFR Part 2001
Archives and records, Authority delegations (Government agencies),
Classified information, Executive orders, Freedom of Information,
Information, Intelligence, National defense, National security
information, Presidential documents, Reporting and recordkeeping
requirements, Security information, Security measures.
For the reasons set forth in the preamble, NARA amends part 2001 of
title 32, Code of Federal Regulations, as follows:
PART 2001--CLASSIFIED NATIONAL SECURITY INFORMATION
The authority citation for part 2001 continues to read:
Authority: Section 5.2(a) and (b), and section 5.4 E.O. 12958,
60 FR 19825, April 20, 1995.
2. Add Sec. 2001.55 to subpart E to read:
Sec. 2001.55 Document referral.
(a) Purpose. Under E.O. 12958, agencies reviewing records for
declassification must facilitate the review of equities of other
agencies contained in their records. Because agencies have a variety of
processes for review and referral, common language and standards are
needed to ensure clear, concise communication and coordinated action
among all agencies involved in the referral process. Common language
and standards are needed for declassification, exemption from automatic
declassification, and proper marking of information subject to the
automatic declassification provision of the Order. Consistent
declassification of information through standardized procedures should
result in lower cost and greater process efficiency, review accuracy,
and the protection of the equities of all executive branch agencies.
(b) Applicability. These standards are binding on all executive
branch agencies that create or handle classified information and are
applicable to records covered under Section 3.4 of the Order. With
respect to records reviewed prior to the issuance of these standards,
deviations are acceptable as long as prior practice does not completely
obstruct record referral.
(c) Responsibility. The senior agency official is responsible for
the agency's referral program. The senior agency official shall
designate agency personnel to assist in carrying out this
responsibility.
(d) Definitions. For the purpose of this section:
Declassified or Declassification means the authorized change in the
status of information from classified information to unclassified
information.
Exempted means a declassification technique that regards
information at the full document level. Any exemptible portion of a
document may result in exemption (failure) of the entire document.
Documents that contain no exemptible information are passed and
therefore declassified. Declassified documents may be subject to other
FOIA exemptions other than the security classification exemption
((b)(1), and the requirements placed by legal authorities governing
Presidential holdings.
Pass/fail (P/F) means a declassification technique that regards
information at the full document level. Any exemptible portion of a
document may result in exemption (failure) of the entire document.
Documents that contain no exemptible information are passed and
therefore declassified. Declassified documents may be subject to other
FOIA exemptions other than the security exemption ((b)(1)), and the
requirements placed by legal authorities governing Presidential
holdings.
Record means the statutory definition as provided under title 44
U.S.C. 3301 and 44 U.S.C. 2111, 2111 note, and 2201.
Redaction means a sanitization technique that involves removal
(editing out) of exempted information from a document.
Tab means a narrow paper sleeve placed around a document or group
of documents in such a way that it would be readily visible
(e) Approaches to declassification. The exchange of information
between agencies and the final disposition of documents are affected by
differences in the approaches to declassification. Agencies conducting
pass/fail reviews may refer documents to agencies that redact. Actions
taken by the sender and the recipient may differ as noted below:
(1) When referral is from a pass/fail agency to a pass/fail agency,
both agencies conduct pass/fail reviews and annotate the classification
or declassification decisions on the tabs and/or documents in
accordance with NARA guidelines. The receiving agency should also
notify the referring agency that the review has been completed.
(2) When referral is from a pass/fail agency to a redaction agency,
the redaction agency is only required to conduct pass/fail reviews of
documents referred by a pass/fail agency. If the redaction agency
wishes to redact the document, it must do so on a copy of the referred
document, then file the redacted version with the original. The
redaction agency should also notify the pass/fail referring agency that
the review has been completed.
(3) Referrals from redaction agencies to pass/fail agencies will be
in the form of document copies. In the course of review the pass/fail
agency may either pass or fail the document or its equities. Failed
documents will be reviewed and redacted when practicable.
(4) Referrals between redaction agencies may result in redaction of
any exemptible equities.
(f) Referral decisions. When agencies review documents only to the
point at which exemptible information is identified, they must take one
of the following actions to protect any other unidentified equities
that may be in the unreviewed portions of the document:
(1) Complete a review of the document to identify other agency
equities and notify those agencies; or
(2) Exempt the document and assign a Date/Event for automatic
declassification, before which time they must provide timely
notification to any equity agencies. Agencies reviewing previously
exempted documents may apply a different exemption and new Date/Event
for automatic declassification based upon the content of previously
unreviewed equities.
(g) Unmarked or improperly marked documents. Agencies that find
other agency information in unmarked or improperly marked documents
that have been maintained and protected as classified information must
afford those documents appropriate protection and tab or refer the
documents as described in paragraph (h) of this section.
[[Page 49390]]
Agencies must provide other pertinent information, if available,
regarding additional copies or possible public disclosure.
(h) Means of Referral. The reviewing agency must communicate
referrals to equity agencies. They may use either of the methods below:
(1) Full text referral. Agencies will make referrals on media and
in a format mutually agreed to by the referring and receiving agencies.
Each referral request will clearly identify the referring agency and
may identify the sections or areas of the document containing the
receiving agency's equities and the requested action.
(2) Tab and notify.
(i) Agencies will use NARA-approved tabs and will clearly indicate
on them the agency or agencies having equity in the document(s) held
within the tabs. Successive documents with identical equity(ies) may be
grouped within a single tab. Documents with differing equities, or non-
successive documents, must be tabbed individually. In general, document
order may not be changed to facilitate tabbing. In cases where there
are so many tabbed documents in a box that tabbing documents
individually would seriously overfill the box, the reviewer may group
documents under a single tab for each agency equity at the back of each
file folder, or back of the box if there are no file folders.
(ii) Agency notification must include, at a minimum, the following
information: the approximate volume of equity, the highest
classification of documents, the exact location (to box level) of the
documents so marked, and instructions related to access to the boxes
containing the documents.
(iii) Agencies will acknowledge receipt of referral notifications.
They should notify the agency that placed the tabs that the review is
complete. Any additional equities noted in the review must be annotated
on the tab and brought to the attention of the agency that tabbed the
document so the tabbing agency can notify those newly identified
agencies.
(i) [Reserved].
(j) Reviewed document marking. Consistency in marking is essential
in the referral of significant numbers of documents under the Executive
Order. Decisions made during review must be communicated clearly to all
subsequent reviewers.
(1) Redactions must never be indicated on original documents, only
on copies. Redaction agencies need a means of tracking the results of
review (at the document level) by all reviewing agencies and a reason
for each redaction.
(2) If only one exemption from declassification applies to all
redacted portions of a document, the applicable exemption may be
indicated on the front page of the redacted copy. If more than one
exemption applies to a document, each redacted portion for which an
exemption is asserted must be marked on the redacted copy.
(3) Redacted portions must be marked to indicate the agency and the
number of the applicable exemption, for example, DIA25X1.
(4) Agencies reviewing a referred document must indicate on the
tab, folder, or box the result of the review (i.e., exemption or
declassification). The original document should be marked with the
final action only by the agency responsible for the final
declassification decision. Options include marking a copy of the
document, marking the tab, notification as part of a transmittal, or
marking the box or folder according to NARA guidelines. Automated
agencies may forgo marking documents, provided the required information
is maintained in an agency database and is accessible to other
agencies. Exempt documents may be marked.
(i) Sample Exempted Document Stamp. Exempt documents may be stamped
as shown in the following example:
[GRAPHIC] [TIFF OMITTED] TR13SE99.016
(A) Normally, only one stamp should be placed on the document with
any subsequent reviewing agencies adding their information to the stamp
on the document, if possible. The stamp should not cover any writing on
the document.
(B) Specific fields in the stamp must be completed as follows:
(1) Exemption Code: Agency(ies) ID and 25X plus exemption code(s).
(2) Date/Event: A specific date or event for declassification.
(3) Other Agency Equity: This line is used to track other agency
equities and their review. The declassification authority enters
``NONE'' if no other agency equities are present, the identifiers of
agencies with equity, or ``TBD'' (To be determined) if equities are
unknown. Agency identifiers are crossed off as the reviews are
completed and names may be added if additional equities are found.
(4) Reviewed by: Optional. If used, enter name or other personal
identifier.
(5) Date: Enter date the action was taken.
(ii) Sample Stamp for Document Declassification. (A) When agencies
mark declassified documents, the stamp must, at a minimum, include the
information shown in the following example:
[[Page 49391]]
[GRAPHIC] [TIFF OMITTED] TR13SE99.017
(B) Specific fields in the stamp must be completed as follows:
(1) Agency: Name of the agency.
(2) By: Name or personal identifier of the reviewer. (Optional)
(3) Date: Date the action was taken.
Dated: September 7, 1999
John W. Carlin,
Archivist of the United States.
[FR Doc. 99-23800 Filed 9-10-99; 8:45 am]
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