[Congressional Record Volume 154, Number 127 (Tuesday, July 29, 2008)]
[House]
[Pages H7214-H7218]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             REDUCING INFORMATION CONTROL DESIGNATIONS ACT

  Mr. DAVIS of Illinois. Mr. Speaker, I move to suspend the rules and 
pass the bill (H.R. 6576) to require the Archivist of the United States 
to promulgate regulations regarding the use of information control 
designations, and for other purposes, as amended.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 6576

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Reducing Information Control 
     Designations Act''.

     SEC. 2. PURPOSE.

       The purpose of this Act is to increase Governmentwide 
     information sharing and the availability of information to 
     the public by standardizing and limiting the use of 
     information control designations.

     SEC. 3. REGULATIONS RELATING TO INFORMATION CONTROL 
                   DESIGNATIONS WITHIN THE FEDERAL GOVERNMENT.

       (a) Requirement To Reduce and Minimize Information Control 
     Designations.--Each Federal agency shall reduce and minimize 
     its use of information control designations on information 
     that is not classified.
       (b) Archivist Responsibilities.--
       (1) Regulations.--The Archivist of the United States shall 
     promulgate regulations regarding the use of information 
     control designations.
       (2) Requirements.--The regulations under this subsection 
     shall address, at a minimum, the following:
       (A) Standards for utilizing the information control 
     designations in a manner that is narrowly tailored to 
     maximize public access to information.

[[Page H7215]]

       (B) The process by which information control designations 
     will be removed.
       (C) Procedures for identifying, marking, dating, and 
     tracking information assigned the information control 
     designations, including the identity of officials making the 
     designations.
       (D) Provisions to ensure that the use of information 
     control designations is minimized and cannot be used on 
     information--
       (i) to conceal violations of law, inefficiency, or 
     administrative error;
       (ii) to prevent embarrassment to Federal, State, local, 
     tribal, or territorial governments or any official, agency, 
     or organization thereof; any agency; or any organization;
       (iii) to improperly or unlawfully interfere with 
     competition in the private sector;
       (iv) to prevent or delay the release of information that 
     does not require such protection;
       (v) if it is required to be made available to the public; 
     or
       (vi) if it has already been released to the public under 
     proper authority.
       (E) Provisions to ensure that the presumption shall be that 
     information control designations are not necessary.
       (F) Methods to ensure that compliance with this Act 
     protects national security and privacy rights.
       (G) The establishment of requirements that Federal 
     agencies, subject to chapter 71 of title 5, United States 
     Code, implement the following:
       (i) A process whereby an individual may challenge without 
     retribution the application of information control 
     designations by another individual and be rewarded with 
     specific incentives for successful challenges resulting in--

       (I) the removal of improper information control 
     designations; or
       (II) the correct application of appropriate information 
     control designations.

       (ii) A method for informing individuals that repeated 
     failure to comply with the policies, procedures, and programs 
     established under this section could subject them to a series 
     of penalties.
       (iii) Penalties for individuals who repeatedly fail to 
     comply with the policies, procedures, and programs 
     established under this section after having received both 
     notice of their noncompliance and appropriate training or re-
     training to address such noncompliance.
       (H) Procedures for members of the public to be heard 
     regarding improper applications of information control 
     designations.
       (I) A procedure to ensure that all agency policies and 
     standards for utilizing information control designations that 
     are issued pursuant to subsection (c) be provided to the 
     Archivist and that such policies and standards are made 
     publicly available on the website of the National Archives 
     and Records Administration.
       (3) Consultation.--In promulgating the regulations, the 
     Archivist shall consult with the heads of Federal agencies 
     and 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, as appropriate.
       (c) Agency Responsibilities.--The head of each Federal 
     agency shall implement the regulations promulgated by the 
     Archivist under subsection (b) in the agency in a manner that 
     ensures that--
       (1) information can be shared within the agency, with other 
     agencies, and with State, local, tribal, and territorial 
     governments, the private sector, and the public, as 
     appropriate;
       (2) all policies and standards for utilizing information 
     control designations are consistent with such regulations;
       (3) the number of individuals with authority to apply 
     information control designations is limited; and
       (4) information control designations may be placed only on 
     the portion of information that requires control and not on 
     the entire material.

     SEC. 4. ENFORCEMENT OF INFORMATION CONTROL DESIGNATION 
                   REGULATIONS WITHIN THE FEDERAL GOVERNMENT.

       (a)  Inspector General Responsibilities.--The Inspector 
     General of each Federal agency, in consultation with the 
     Archivist, shall randomly audit unclassified information with 
     information control designations. In conducting any such 
     audit, the Inspector General shall--
       (1) assess whether applicable policies, procedures, rules, 
     and regulations have been followed;
       (2) describe any problems with the administration of the 
     applicable 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 the Committee on Oversight and Government 
     Reform of the House of Representatives, the Committee on 
     Homeland Security and Governmental Affairs of the Senate, the 
     Archivist, and the public on the findings of the Inspector 
     General's audits under this section.
       (b) Personal Identifiers.--
       (1) In general.--For purposes described in paragraph (2), 
     the Archivist of the United States shall require that, at the 
     time of designation of information, the following shall 
     appear on the information:
       (A) The name or personal identifier of the individual 
     applying information control designations 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 misuse of 
     information control designations, including the 
     misapplication of information control designations to 
     information that does not merit such markings.
       (B) To assess the information sharing impact of any such 
     problems or misuse.
       (c) Training.--The Archivist, subject to chapter 71 of 
     title 5, United States Code, and in coordination with the 
     heads of Federal agencies, shall--
       (1) require training as needed for each individual who 
     applies information control designations, including--
       (A) instruction on the prevention of the overuse of 
     information control designations;
       (B) the standards for applying information control 
     designations;
       (C) the proper application of information control 
     designations, including portion markings;
       (D) the consequences of repeated improper application of 
     information control designations, including the 
     misapplication of information control designations 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; and
       (E) information relating to lessons learned about improper 
     application of information control designations, including 
     lessons learned pursuant to the regulations and Inspector 
     General audits required under this Act and any internal 
     agency audits; 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.
       (d) Detailee Program.--
       (1) Requirement for program.--The Archivist, subject to 
     chapter 71 of title 5, United States Code, 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 agency personnel 
     assigned so that they may better understand the policies, 
     procedures, and laws governing information control 
     designations;
       (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.

     SEC. 5. RELEASING INFORMATION PURSUANT TO THE FREEDOM OF 
                   INFORMATION ACT.

       (a) Agency Responsibilities.--The head of each Federal 
     agency shall ensure that--
       (1) information control designations are not a determinant 
     of public disclosure pursuant to section 552 of title 5, 
     United States Code (commonly referred to as the ``Freedom of 
     Information Act''); and
       (2) all information in the agency's possession that is 
     releasable is made available to members of the public 
     pursuant to an appropriate request under such section 552.
       (b) Rule of Construction.--Nothing in this Act shall be 
     construed to prevent or discourage any Federal agency from 
     voluntarily releasing to the public any unclassified 
     information that is not exempt from disclosure under section 
     552 of title 5, United States Code (commonly referred to as 
     the ``Freedom of Information Act'').

     SEC. 6. DEFINITIONS.

       In this Act:
       (1) Information control designations.--The term 
     ``information control designations'' means information 
     dissemination controls, not defined by Federal statute or by 
     an Executive order relating to the classification of national 
     security information, that are used to manage, direct, or 
     route information, or control the accessibility of 
     information, regardless of its form or format. The term 
     includes, but is not limited to, the designations of 
     ``controlled unclassified information'', ``sensitive but 
     unclassified'', and ``for official use only''.
       (2) 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.
       (3) 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.

     SEC. 7. DEADLINE FOR REGULATIONS AND IMPLEMENTATION.

       Regulations shall be promulgated in final form under this 
     Act, and implementation of

[[Page H7216]]

     the requirements of this Act shall begin, not later than 24 
     months after the date of the enactment of this Act.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Illinois (Mr. Davis) and the gentlewoman from North Carolina (Ms. Foxx) 
will each control 20 minutes.
  The Chair recognizes the gentleman from Illinois.


                             General Leave

  Mr. DAVIS from Illinois. Mr. Speaker, I ask unanimous consent that 
all Members may have 5 legislative days in which to revise and extend 
their remarks.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Illinois?
  There was no objection.
  Mr. DAVIS of Illinois. Mr. Speaker, I would like to yield to the 
chairman of the Committee on Oversight and Government Reform, Chairman 
Henry Waxman, for whatever time he might consume.
  Mr. WAXMAN. I thank the gentleman for yielding to me.
  Representative Tom Davis and I introduced H.R. 6576, the Reducing 
Information Control Designations Act to address the growing number of 
information controlled designations used by the Federal Government. The 
Committee on Oversight and Government Reform has held numerous hearings 
on this issue. Committee investigations have found that there has been 
a proliferation of pseudo-classification designation such as 
``sensitive but unclassified'' or ``for official use only.'' These 
often vague and undefined markings can be used to prevent or delay 
information sharing with interested stakeholders or public release of 
information.
  The National Archives and Records Administration reports that 
currently there are more than 100 information controlled designations 
applied across the Federal Government. New categories of information 
controlled designations are being created by the agencies, yet these 
designations lack a statutory basis, and there is no Federal entity 
monitoring their use.
  This bill addresses all types of information use across the 
government. Its goal is to promote open government by reducing the 
number and use of restrictive designations used on government 
information.
  Specifically, this bill calls on the archivists to promulgate 
regulations to reduce and minimize the use of information controlled 
designations and to maximize public access to information. The bill 
allows individuals to challenge designations, requires that agencies' 
inspectors general conduct random audits to determine whether 
information controls are being used properly, and requires personal 
identifiers to be placed on information with an information designation 
control so agencies identify the individual who made the designation.
  This bill also clarifies that agencies may not use information 
controlled designations in considering whether to release information 
under the Freedom of Information Act.
  Mr. Speaker, I want to thank Ranking Member Davis for working with us 
to improve this bill and to move it quickly to the House floor. The 
legislation before us includes changes that have been made since the 
bill passed out of full committee. These changes were made to address 
concerns raised by the administration and several interested Members of 
the Congress.

                              {time}  1400

  These changes include ensuring that the Archivist's training responds 
to lessons learned about improper application of control designations 
and deleting language requiring the regulations to address the duration 
of a control designation.
  Secret government is rarely good government. This bill is an 
important step in restoring openness to the executive branch.
  Mr. Speaker, Representative Tom Davis and I introduced H.R. 6576, the 
Reducing Information Control Designations Act, to address the growing 
number of information control designations used by the Federal 
Government.
  The Committee on Oversight and Government Reform has held numerous 
hearings on this issue. Committee investigations have found that there 
has been a proliferation of pseudoclassification designations such as 
``sensitive but unclassified'' or ``for official use only.'' These 
often vague and undefined markings can be used to prevent or delay 
information sharing with interested stakeholders or public release of 
information.
  The National Archives and Records Administration reports that 
currently there are more than 100 information control designations 
applied across the Federal Government.
  New categories of information control designations are being created 
by agencies yet these designations lack a statutory basis, and there is 
no Federal entity monitoring their use.
  This bill addresses all types of information uses across the 
Government. Its goal is to promote open government by reducing the 
number and use of restrictive designations used on Government 
information.
  Specifically, this bill calls on the Archivist to promulgate 
regulations to reduce and minimize the use of information control 
designations and to maximize public access to information. The bill 
allows individuals to challenge designations, requires that agency 
inspectors general conduct random audits to determine whether 
information controls are being used properly, and requires personal 
identifiers to be placed on information with an information designation 
control so agencies can identify the individual who made the 
designation. This bill also clarifies that agencies may not use 
information control designations in considering whether to release 
information under the Freedom of Information Act.
  Mr. Speaker, I want to thank Ranking Member Davis for working with me 
to move this bill quickly to the House floor. The legislation before us 
includes changes that have been made since the bill passed out of full 
Committee. These changes were made to address concerns raised by the 
Administration and several interested members of Congress. These 
changes include: ensuring that the Archivist's training responds to 
lessons learned about improper application of control designations and 
deleting language requiring the regulations to address the duration of 
a control designation.
  Secret government is rarely good government. This bill is an 
important step in restoring openness to the executive branch.
  I am submitting for the Record the cost estimate for H.R. 6576 from 
the Congressional Budget Office.
  I urge my colleagues to support this bill.

                                                    July 29, 2008.
     Hon. Henry A. Waxman,
     Chairman, Committee on Oversight and Government Reform, House 
         of Representatives, Washington, DC.
       Dear Mr. Chairman: The Congressional Budget Office has 
     prepared the enclosed cost estimate for H.R. 6576, the 
     Reducing Information Control Designations Act.
       If you wish further details on this estimate, we will be 
     pleased to provide them. The CBO staff contact is Matthew 
     Pickford.
           Sincerely,
                                                  Peter R. Orszag.
       Enclosure.
     H.R. 6576--Reducing Information Control Designations Act
       Summary: H.R. 6576 would amend federal law concerning the 
     security classification of government documents. The 
     legislation would require the National Archives and Records 
     Administration (NARA), in consultation with the Director of 
     National Intelligence and other affected federal agencies, to 
     develop regulations that minimize and reduce the government's 
     use of information-control designations on information that 
     is not classified. The bill also would require training for 
     employees and contractors on using classifications and random 
     audits by inspectors general on the proper use of 
     information-control designations.
       CBO estimates that implementing H.R. 6576 would have a 
     discretionary cost of $15 million in 2009 and $45 million 
     over the 2009-2013 period to implement the new regulations, 
     provide training, and conduct audits that would be required 
     under the bill. Although the legislation could affect 
     agencies not funded through annual appropriations (such as 
     the Tennessee Valley Authority or the U. S. Postal Service), 
     CBO estimates that any net increase in spending by those 
     agencies would not be significant. As a result, enacting the 
     bill would have no significant impact on direct spending or 
     revenues.
       H.R.6576 contains no intergovernmental or private-sector 
     mandates as defined in the Unfunded Mandates Reform Act 
     (UMRA) and would not affect the budgets of state, local, or 
     tribal governments.
       Estimated cost to the Federal Government: The estimated 
     budgetary impact of H.R. 6576 is shown in the following 
     table. The costs of this legislation fall within most budget 
     functions that contain salaries and expenses.

[[Page H7217]]



 
----------------------------------------------------------------------------------------------------------------
                                                                    By fiscal year in millions of dollars--
                                                              --------------------------------------------------
                                                                2009    2010    2011    2012    2013   2009-2013
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION
 
Estimated Authorization Level................................      15      15       5       5       5        45
Estimated Outlays............................................      15      15       5       5       5        45
----------------------------------------------------------------------------------------------------------------

       Basis of estimate: For this estimate, CBO assumes that the 
     bill will be enacted near the start of fiscal year 2009 I and 
     that spending would follow historical patterns for similar 
     programs.
       Under current law, agencies are required to develop 
     policies for handling terrorism-related and homeland security 
     information. However, the Government Accountability Office 
     (GAO) , has reported that there are no governmentwide 
     policies and procedures for agencies to use to . classify 
     sensitive, but unclassified information.
       Based on the information provided by GAO, NARA, and 
     selected federal agencies. and inspectors general about the 
     current use of information-control designations, CBO 
     estimates that implementing H.R. 6576 would cost $15 million 
     in 2009 and $45 million over the 2009-2013 period, assuming 
     appropriation of the necessary amounts. Initial costs would 
     total about $20 million and would be incurred over the first 
     two years. Ongoing costs would total about $25 million over 
     the 2009-2013 period, mostly for subsequent training and 
     random audits by inspectors general.
       Intergovernmental and private-sector impact: H.R. 6576 
     contains no intergovernmental or private-sector mandates as 
     defined in UMRA and would not affect the budgets of state, 
     local, or tribal governments.
       Estimate prepared by: Federal Costs: Matthew Pickford; 
     Impact on State, Local, and Tribal Governments: Elizabeth 
     Cove; Impact on the Private-Sector: Paige Piper/Bach.
       Estimate approved by: Peter H. Fontaine, Assistant Director 
     for Budget Analysis.

  Ms. FOXX. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, in recent years, we've seen an exponential growth in the 
number and types of non-classified information control designations. 
These designations carry little, if any, statutory authority, and no 
Federal entity is monitoring their use. So there is a need for some 
legislative control over the creation and use of those vague 
designations. H.R. 6576 attempts to achieve that goal.
  This legislation makes it clear Congress intends agencies to limit 
the use of information control designations, so that government-wide 
information-sharing is increased and information is more available to 
the public.
  One important component to this legislation is it creates a 
government-wide solution to this problem, as opposed to allowing each 
agency to create its own rules for how these designations are handled.
  For too long, Federal departments have insisted on treating 
information they develop as their information. To protect their 
information, agencies have imposed a variety of sanctions on employees. 
The net effect of this hyper-protectiveness has been to create an 
environment where everyone knew something, but no one knew everything.
  In May of this year, the President issued a memo establishing new 
procedures designating the National Archives as responsible for 
overseeing and managing the implementation of the controlled 
unclassified information framework.
  Our intent with this legislation, for the most part, is to codify the 
processes laid out in that memo so future administrations cannot roll 
back these modernizing procedures. The proliferation of ``sensitive but 
unclassified'' and ``for official use only'' designations is clogging 
the arteries meant to take critical information to Federal, State and 
local agencies, and the public.
  This legislation instructs the Archivist to establish regulations 
regarding the use of information control designations, with an emphasis 
on minimizing agency use, and establishes a process allowing the public 
to review these documents at the appropriate time.
  One section which deviates from the President's plan is a section 
which would provide an incentive for employees to challenge control 
designations and be rewarded for succeeding in these challenges.
  Upon reflection, I'm concerned this creates the wrong incentive. Are 
we putting employee personal gain at odds with agency security?
  And, how would this system actually work? Who will make awards 
decisions? When is such a challenge eligible for an award? I expect we 
will need to clarify this system before the bill becomes law.
  On the whole, I am satisfied this legislation will go a long way 
toward clarifying what types of control designations may be used and 
when they are not appropriate.
  Mr. Speaker, as the security needs of our country change, we need to 
adjust with them. Our future safety depends on moving from a need-to-
know culture to a need-to-share culture.
  This legislation will help us reach that goal, and I urge my 
colleagues to support it.
  Mr. Speaker, I reserve the balance of my time.
  Mr. DAVIS of Illinois. Mr. Speaker, I yield myself such time as I 
might consume.
  Mr. Speaker, H.R. 6576, the Reducing Information Control Designations 
Act, limits the Federal Government's use of information control 
designations.
  Investigations by the Committee on Oversight and Government Reform 
have found that Federal agencies have increasingly placed restrictions 
on unclassified information by using information control designations 
such as ``sensitive but unclassified.'' These designations are 
dangerous because they impede information-sharing with State and local 
governments and the public.
  There is no statutory authority for agency use of information control 
designations. Thus, these designations are not used consistently and 
are often overused and confusing. In May, the White House issued a 
memorandum to address this issue. That memo did not go far enough. 
While it addressed the number of designations, it did not try to limit 
their use.
  This bill further seeks to limit the use of these designations to 
improve information-sharing within the government and with the public.
  I support this bill and urge my colleagues to do the same.
  I would reserve the balance of my time.
  Ms. FOXX. Mr. Speaker, this is an important bill and it should pass. 
However, we should be dealing with what is most on the minds of 
Americans today, the high cost of gasoline brought on since the 
Democrats gained control of the Congress.
  Poll after poll underscores the American people's strong support for 
increased American energy production to help bring down gas prices. And 
an increasing number of rank-and-file Democrats in Congress are 
listening to them and calling for a vote on more environmentally safe 
oil and gas drilling here at home.
  We know that at least two House Democrats have spoken up about this 
issue and are asking the Democratic leadership to call for more 
drilling to help lower gas prices, and I want to quote from two of 
them. It's in Congressional Quarterly, 7/28/08, by Subcommittee 
Chairman Peter Visclosky: ``We ought to have a vote in the House of 
Representatives about it,'' meaning lower gas prices.
  Representative Tim Holden from Pennsylvania has said: ``Drill 
everywhere . . . I'm for off-shore (oil) drilling. It needs to be part 
of a multi-pronged approach.'' This appeared in the Pottsville 
Republican Herald, 7/28/08.
  So how does Speaker Pelosi respond to these ever-intensifying calls 
for more American energy? She calls it a hoax, and I want to quote from 
a press release from the Leader's office. In an appearance this morning 
on NBC's Today show, Speaker Pelosi coldly dismissed the views held by 
a solid majority of the American people, not to mention a bipartisan 
majority in Congress, saying, ``It's really a hoax. It's really a hoax 
on the American people.''
  This is just the latest illustration of how out of touch the Speaker 
and her colleagues in the Democratic leadership are with American 
families and

[[Page H7218]]

small businesses who are being pummeled day in and day out by soaring 
energy prices.
  So, Mr. Speaker, I support the passage of this bill, but I call on 
the Speaker and the Democratic leadership to bring for a vote bills, 
among them the American Energy Act introduced last week by the House 
Republicans, to explore for more oil and to lower the cost of energy in 
this country.
  Mr. Speaker, I yield back.
  Mr. DAVIS of Illinois. Mr. Speaker, to get us back to H.R. 6576, the 
Reducing Information Control Designations Act, I urge its passage.
  I yield back the balance of our time.
  The SPEAKER pro tempore (Mr. Sires). The question is on the motion 
offered by the gentleman from Illinois (Mr. Davis) that the House 
suspend the rules and pass the bill, H.R. 6576, as amended.
  The question was taken.
  The SPEAKER pro tempore. In the opinion of the Chair, two-thirds 
being in the affirmative, the ayes have it.
  Ms. FOXX. Mr. Speaker, I object to the vote on the ground that a 
quorum is not present and make the point of order that a quorum is not 
present.
  The SPEAKER pro tempore. Pursuant to clause 8 of rule XX and the 
Chair's prior announcement, further proceedings on this motion will be 
postponed.
  The point of no quorum is considered withdrawn.

                          ____________________