I 111th CONGRESS 1st Session H. R. 854 IN THE HOUSE OF REPRESENTATIVES February 4, 2009 Mr. Clay (for himself and Mr. Towns) introduced the following bill; which was referred to the Committee on Oversight and Government Reform A BILL To require the Archivist of the United States to promulgate regulations to prevent the over-classification of information, and for other purposes.

1.

Short title

This Act may be cited as the Over-Classification Reduction Act.

2.

Purpose

The purpose of this Act is to increase Government-wide information sharing and the availability of information to the public by applying standards and practices to reduce improper classification.

3.

Over-classification prevention within the Federal Government

(a)

Archivist responsibilities

(1)

Regulations

The Archivist of the United States, in consultation with the heads of affected Federal agencies, shall promulgate regulations to prevent the over-classification of information. (2)

Requirements

The regulations under this subsection shall— (A)identify specific requirements to prevent the over-classification of information, including for determining— (i)when classified products should be prepared in a similar format Government-wide; and (ii)when classified products should also be prepared in an unclassified format; taking into consideration whether an unclassified product would reasonably be expected to be of any benefit to a State, local, tribal or territorial government, law enforcement agency, or other emergency response provider, the private sector, or the public; (B)ensure that compliance with this Act protects national security and privacy rights; and (C)establish requirements for Federal agencies to implement, subject to chapter 71 of title 5, United States Code, including the following: (i)The process whereby an individual may challenge without retribution classification decisions by another individual and be rewarded with specific incentives for successful challenges resulting in— (I)the removal of improper classification markings; or (II)the correct application of appropriate classification markings. (ii)A method for informing individuals that repeated failure to comply with the regulations promulgated under this section could subject them to a series of penalties. (iii)Penalties for individuals who repeatedly fail to comply with the regulations promulgated under this section after having received both notice of their noncompliance and appropriate training or re-training to address such noncompliance. (3)

Consultation

The regulations shall be promulgated in consultation, as appropriate, with representatives of State, local, tribal, and territorial governments; law enforcement entities; organizations with expertise in civil rights, employee and labor rights, civil liberties, and Government oversight; and the private sector. (4)

Deadline

The regulations under this subsection shall be promulgated in final form not later than one year after the date of the enactment of this Act. (b)

Inspector general responsibilities

Consistent with the Inspector General Act of 1978 (5 U.S.C. App.) and section 17 of the Central Intelligence Agency Act of 1949 (50 U.S.C. 403q), the Inspector General of each affected Federal agency, in consultation with the Archivist, shall randomly audit classified information from each component of the agency with employees that have classification authority. In conducting any such audit, the Inspector General shall— (1)assess whether applicable classification policies, procedures, rules, and regulations have been followed; (2)describe any problems with the administration of the applicable classification policies, procedures, rules, and regulations, including specific non-compliance issues; (3)recommend improvements in awareness and training to address any problems identified under paragraph (2); and (4)report to Congress, the Archivist, and the public, in an appropriate format, on the findings of the Inspector General’s audits under this section.

4.

Enforcement of over-classification prevention within the Federal Government

(a)

Personal identifiers

(1)

In general

For purposes described in paragraph (2), the Archivist of the United States shall require that, at the time of classification of information, the following shall appear on the information: (A)The name, personal identifier, or unique agency identifier of the individual applying classification markings to the information. (B)The agency, office, and position of the individual. (2)

Purposes

The purposes described in this paragraph are as follows: (A)To enable the agency to identify and address over-classification problems, including the classification of information that should not be classified. (B)To assess the information sharing impact of any such problems. (b)

Training

When implementing the security education and training program pursuant to Executive Order 12958, Executive Order 12829, and successor appropriate Executive Orders, the Archivist, subject to chapter 71 of title 5, United States Code, shall, in consultation with heads of affected Federal agencies— (1)integrate training to educate about— (A)the prevention of over-classification of information; (B)the proper use of classification markings, including portion markings; (C)the consequences of over-classification and other repeated improper uses of classification markings, including the misapplication of classification markings to information that does not merit such markings, and of failing to comply with the policies and procedures established under or pursuant to this section, including the negative consequences for the individual’s personnel evaluation, information sharing, and the overall success of the agency’s missions; and (D)information relating to lessons learned from implementation of the regulations including affected Federal agency internal audits and Inspector General audits, as provided under this Act; and (2)ensure that such program is conducted efficiently, in conjunction with any other security, intelligence, or other training programs required by the agency to reduce the costs and administrative burdens associated with the additional training required by this section. (c)

Detailee program

(1)

Requirement for program

The Archivist, subject to chapter 71 of title 5, United States Code, in consultation with heads of affected Federal agencies, shall implement a detailee program to detail Federal agency personnel, on a nonreimbursable basis, to the National Archives and Records Administration for the purpose of— (A)training and educational benefit for the agency personnel assigned so that they may better understand the policies, procedures and laws governing classification authorities; (B)bolstering the ability of the National Archives and Records Administration to conduct its oversight authorities over agencies; and (C)ensuring that the policies and procedures established by the agencies remain consistent with those established by the Archivist of the United States. (2)

Sunset of detailee program

Except as otherwise provided by law, this subsection shall cease to have effect on December 31, 2012.

5.

Definitions

In this Act: (1)

Information

The term information means any communicable knowledge or documentary material, regardless of its physical form or characteristics, that is owned by, is produced by or for, or is under the control of the Federal Government. (2)

Federal agency

The term Federal agency means— (A)any Executive agency, as that term is defined in section 105 of title 5, United States Code; (B)any military department, as that term is defined in section 102 of such title; and (C)any other entity within the executive branch that comes into the possession of classified information. (3)

Affected Federal agency

The term affected Federal agency means any Federal agency that employs an individual with original or derivative classification authority.