[Congressional Record Volume 156, Number 131 (Monday, September 27, 2010)]
[Senate]
[Pages S7554-S7556]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    REDUCING OVER-CLASSIFICATION ACT

  Mr. DURBIN. Mr. President, I ask unanimous consent that the Senate 
proceed to Calendar No. 413, H.R. 553.
  The PRESIDING OFFICER. The clerk will report the bill by title.
  The assistant legislative clerk read as follows:

       A bill (H.R. 553) to require the Secretary of Homeland 
     Security to develop a strategy to prevent the over-
     classification of homeland security and other information and 
     to promote the sharing of unclassified homeland security and 
     other information, and for other purposes.

  There being no objection, the Senate proceeded to consider the bill 
which had been reported from the Committee on Homeland Security and 
Governmental Affairs with an amendment to strike all after the enacting 
clause and insert in lieu thereof the following:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Reducing Over-Classification 
     Act''.

     SEC. 2. FINDINGS.

       Congress finds the following:
       (1) The National Commission on Terrorist Attacks Upon the 
     United States (commonly known as the ``9/11 Commission'') 
     concluded that there is a need to prevent over-classification 
     of information by the Federal Government.
       (2) The 9/11 Commission and others have observed that the 
     over-classification of information interferes with accurate, 
     actionable, and timely information sharing, increases the 
     cost of information security, and needlessly limits public 
     access to information.
       (3) Over-classification of information causes considerable 
     confusion about what information may be shared with whom, and 
     negatively affects the dissemination of information within

[[Page S7555]]

     the Federal Government and with State, local, and tribal 
     entities, and the private sector.
       (4) Excessive government secrecy stands in the way of a 
     safer and more secure homeland. Over-classification of 
     information is antithetical to the creation and operation of 
     the information sharing environment established under 1016 of 
     the Intelligence Reform and Terrorism Prevention Act of 2004 
     (6 U.S.C. 485).
       (5) Federal departments or agencies authorized to make 
     original classification decisions or that perform derivative 
     classification of information are responsible for developing, 
     implementing, and administering policies, procedures, and 
     programs that promote compliance with applicable laws, 
     executive orders, and other authorities pertaining to the 
     proper use of classification markings and the policies of the 
     National Archives and Records Administration.

     SEC. 3. CLASSIFIED INFORMATION ADVISORY OFFICER.

       (a) In General.--Subsection (d) of section 201 of the 
     Homeland Security Act of 2002 (6 U.S.C. 121) is amended by 
     adding at the end the following:
       ``(26) To identify and designate, acting through the Under 
     Secretary for Intelligence and Analysis, a Classified 
     Information Advisory Officer to assist State, local, tribal, 
     and private sector entities that have responsibility for the 
     security of critical infrastructure, in matters related to 
     classified materials, as described in section 210F.''.
       (b) Establishment and Responsibilities.--
       (1) In general.--Subtitle A of title II of the Homeland 
     Security Act of 2002 (6 U.S.C. 121 et seq.) is amended by 
     adding at the end the following:

     ``SEC. 210F. CLASSIFIED INFORMATION ADVISORY OFFICER.

       ``(a) Requirement To Establish.--The Secretary, acting 
     through the Under Secretary for Intelligence and Analysis, 
     shall identify and designate within the Department a 
     Classified Information Advisory Officer, as described in this 
     section.
       ``(b) Responsibilities.--The responsibilities of the 
     Classified Information Advisory Officer shall be as follows:
       ``(1) To develop and disseminate educational materials and 
     to develop and administer training programs to assist State, 
     local, tribal, and private sector entities with 
     responsibility related to the security of critical 
     infrastructure--
       ``(A) in developing plans and policies to respond to 
     requests related to classified information without 
     communicating such information to individuals who lack 
     appropriate security clearances;
       ``(B) regarding the appropriate procedures for challenging 
     classification designations of information received by 
     personnel of such entities; and
       ``(C) on the means by which such personnel may apply for 
     security clearances.
       ``(2) To inform the Under Secretary for Intelligence and 
     Analysis on policies and procedures that could facilitate the 
     sharing of classified information with such personnel, as 
     appropriate.''.
       (2) Clerical amendment.--The table of contents in section 
     1(b) of the Homeland Security Act of 2002 (6 U.S.C. 101 et 
     seq.) is amended by inserting after the item relating to 
     section 210E the following:

``Sec. 210F. Classified Information Advisory Officer.''.

     SEC. 4. PROMOTION OF APPROPRIATE ACCESS TO INFORMATION.

       Subsection (b) of section 102A of the National Security Act 
     of 1947 (50 U.S.C. 403-1) is amended--
       (1) by inserting ``(1)'' before ``Unless''; and
       (2) by adding at the end the following new paragraph:
       ``(2) The Director of National Intelligence shall--
       ``(A) consistent with paragraph (1), have access to all 
     intelligence information, including intelligence reports, 
     operational data, and other associated information, produced 
     by any element of the intelligence community; and
       ``(B) consistent with the protection of intelligence 
     sources and methods, as determined by the Director--
       ``(i) ensure maximum access to the intelligence information 
     referenced in subparagraph (A) for an employee of a 
     department, agency, or other entity of the Federal Government 
     or of a State, local, or tribal government who has an 
     appropriate security clearance; and
       ``(ii) provide a mechanism within the Office of the 
     Director of National Intelligence for the Director to direct 
     access to the information referenced in subparagraph (A) for 
     an employee referred to in clause (i).''.

     SEC. 5. INTELLIGENCE INFORMATION SHARING.

       (a) Development of Guidance for Intelligence Products.--
     Paragraph (1) of section 102A(g) of the National Security Act 
     of 1947 (50 U.S.C. 403-1(g)) is amended--
       (1) in subparagraph (E), by striking ``and'' at the end;
       (2) in subparagraph (F), by striking the period at the end 
     and inserting a semicolon and ``and''; and
       (3) by adding at the end the following:
       ``(G) in accordance with Executive Order No. 12958, as 
     amended by Executive Order No. 13292 (68 Fed. Reg. 15315; 
     relating to classification of national security information) 
     (or any subsequent corresponding executive order), and parts 
     2001 and 2004 of title 32, Code of Federal Regulations (or 
     any subsequent corresponding regulation), establish--
       ``(i) guidance to standardize, in appropriate cases, the 
     formats for classified and unclassified intelligence products 
     created by elements of the intelligence community for 
     purposes of promoting the sharing of intelligence products; 
     and
       ``(ii) policies and procedures requiring the increased use, 
     in appropriate cases, and including portion markings, of the 
     classification of portions of information within one 
     intelligence product.''.
       (b) Creation of Unclassified Intelligence Products as 
     Appropriate for State, Local, Tribal, and Private Sector 
     Stakeholders.--Subsection (g) of section 102A of the National 
     Security Act of 1947 (50 U.S.C. 403-1) is amended--
       (1) by redesignating paragraphs (3) and (4) as paragraphs 
     (4) and (5), respectively; and
       (2) by inserting after paragraph (2) the following:
       ``(3)(A) If the head of a Federal department or agency 
     determines that an intelligence product which includes 
     homeland security information, as defined in section 892(f) 
     of the Homeland Security Information Sharing Act (6 U.S.C. 
     482(f)), or terrorism information, as defined in section 
     1016(a) of the Intelligence Reform and Terrorism Prevention 
     Act of 2004 (6 U.S.C. 485(a)), could likely benefit a State, 
     local, or tribal government, a law enforcement agency, or a 
     private sector entity with responsibility for the security of 
     critical infrastructure, such head shall share that 
     intelligence product with the Interagency Threat Assessment 
     and Coordination Group established in section 210D(a) of the 
     Homeland Security Act of 2002 (6 U.S.C. 124k(a)).
       ``(B) If the Interagency Threat Assessment and Coordination 
     Group determines that an intelligence product referred to in 
     subparagraph (A), or any other intelligence product that such 
     Group has access to, could likely benefit a State, local, or 
     tribal government, a law enforcement agency, or a private 
     sector entity, the Group shall recommend to the Under 
     Secretary for Intelligence and Analysis of the Department of 
     Homeland Security that the Under Secretary produce an 
     intelligence product that is unclassified or that is 
     classified at the lowest possible level--
       ``(i) based on the intelligence product referred to in 
     subparagraph (A), in a manner consistent with the guidance 
     established under paragraph (1)(G)(i); and
       ``(ii) provide such product to the appropriate entity or 
     agency.
       ``(C)(i) The Secretary of Homeland Security shall submit to 
     the congressional intelligence committees, the Committee on 
     Homeland Security and Governmental Affairs of the Senate, and 
     the Committee on Homeland Security of the House of 
     Representatives an annual report on activities carried out 
     under this paragraph. Each such report shall include a 
     description of--
       ``(I) each recommendation made to the Under Secretary for 
     Intelligence and Analysis under subparagraph (B);
       ``(II) each such recommendation that was carried out by the 
     Under Secretary; and
       ``(III) each such recommendation that was not carried out 
     by the Under Secretary.
       ``(ii) The initial report required under clause (i) shall 
     be submitted not later than 270 days after the date of the 
     enactment of the Reducing Over-Classification Act and no 
     reports shall be required under clause (i) after December 31, 
     2014.''.
       (c) Interagency Threat Assessment and Coordination Group 
     Annual Report Modification.--Subsection (c) of section 210D 
     of the Homeland Security Act of 2002 (6 U.S.C. 124k) is 
     amended--
       (1) in paragraph (1), by striking ``and'' at the end;
       (2) in paragraph (2), by striking the period at the end and 
     inserting a semicolon and ``and''; and
       (3) by adding at the end the following:
       ``(3) in each report required by paragraph (2) submitted 
     after the date of the enactment of the Reducing Over-
     Classification Act, include a description of the progress 
     made by the head of each Federal department and agency to 
     share information with the ITACG pursuant to section 
     102A(g)(3)(A) of the National Security Act of 1947 (50 U.S.C. 
     403-1(g)(3)(A)).''.

     SEC. 6. PROMOTION OF ACCURATE CLASSIFICATION OF INFORMATION.

       (a) Derivative Classification and Original Classification 
     Defined.--In this section, the terms ``derivative 
     classification'' and ``original classification'' have the 
     meaning given those terms in Executive Order No. 12958, as 
     amended by Executive Order No. 13292 (68 Fed. Reg. 15315; 
     relating to classification of national security information) 
     (or any subsequent corresponding executive order).
       (b) Incentives for Accurate Classifications.--The head of 
     each department or agency of the United States with an 
     officer or employee who is authorized to make original 
     classification decisions or derivative classification 
     decisions shall consider such officer's or employee's 
     consistent and proper classification of information in 
     determining whether to award any personnel incentive to the 
     officer or employee.
       (c) Inspector General Evaluations.--
       (1) Requirement for evaluations.--Not less frequently than 
     once each year until December 31, 2014, the inspector general 
     of each department or agency of the United States with an 
     officer or employee who is authorized to make original 
     classifications shall carry out an evaluation of that 
     department or agency or a component of the department or 
     agency--
       (A) to assess whether applicable classification policies, 
     procedures, rules, and regulations have been adopted, 
     followed, and effectively administered within such 
     department, agency, or component; and
       (B) to identify policies, procedures, rules, regulations, 
     or management practices that may be contributing to 
     persistent misclassification of material within such 
     department, agency or component.
       (2) Reports.--
       (A) Requirement.--Each inspector general who is required to 
     carry out an evaluation

[[Page S7556]]

     under paragraph (1) shall submit to the appropriate entities 
     a report on each such evaluation.
       (B) Content.--Each report submitted under subparagraph (A) 
     shall include a description of--
       (i) the policies, procedures, rules, regulations, or 
     management practices, if any, identified by the inspector 
     general under paragraph (1)(B); and
       (ii) the recommendations, if any, of the inspector general 
     to address any such identified policies, procedures, rules, 
     regulations, or management practices.
       (C) Coordination.--The inspectors general who are required 
     to carry out evaluations under paragraph (1) shall coordinate 
     with each other to ensure that evaluations follow a 
     consistent methodology, as appropriate, that allows for 
     cross-agency comparisons.
       (3) Appropriate entities defined.--In this paragraph, the 
     term ``appropriate entities'' means--
       (A) the Committee on Homeland Security and Governmental 
     Affairs and the Select Committee on Intelligence of the 
     Senate;
       (B) the Committee on Homeland Security, the Committee on 
     Oversight and Government Reform, and the Permanent Select 
     Committee on Intelligence of the House of Representatives;
       (C) any other committee of Congress with jurisdiction over 
     a department or agency referred to in paragraph (1);
       (D) the head of a department or agency referred to in 
     paragraph (1); and
       (E) the Director of the Information Security Oversight 
     Office.

     SEC. 7. CLASSIFICATION TRAINING PROGRAM.

       (a) Intelligence Community Defined.--In this section, the 
     term ``intelligence community'' has the meaning given that 
     term in section 3(4) of the National Security Act of 1947 (50 
     U.S.C. 401a(4)).
       (b) Requirement for Program.--
       (1) In general.--The Director of National Intelligence, in 
     accordance with Executive Order No. 12958, as amended by 
     Executive Order No. 13292 (68 Fed. Reg. 15315; relating to 
     classification of national security information) (or any 
     subsequent corresponding executive order), shall require 
     annual training for each employee of an element of the 
     intelligence community and appropriate personnel of each 
     contractor to an element of the intelligence community who 
     has original classification authority, performs derivative 
     classification, or is responsible for analysis, 
     dissemination, preparation, production, receiving, 
     publishing, or otherwise communicating written classified 
     information that includes training--
       (A) to educate the employee and contractor personnel 
     regarding--
       (i) the guidance established under subparagraph (G)(i) of 
     section 102A(g)(1) of the National Security Act of 1947 (50 
     U.S.C. 403-1(g)(1)), as added by section 5(a)(3), regarding 
     the formatting of finished intelligence products;
       (ii) the proper use of classification markings, including 
     portion markings that indicate the classification of portions 
     of information within one intelligence product; and
       (iii) any incentives and penalties related to the proper 
     classification of intelligence information; and
       (B) that is one of the prerequisites, once completed 
     successfully, as evidenced by an appropriate certificate or 
     other record, for--
       (i) obtaining original classification authority or 
     derivatively classifying information; and
       (ii) maintaining such authority.
       (2) Relationship to other programs.--The Director of 
     National Intelligence shall ensure that the training required 
     by paragraph (1) is conducted efficiently and in conjunction 
     with any other security, intelligence, or other training 
     programs required by elements of the intelligence community 
     to reduce the costs and administrative burdens associated 
     with carrying out the training required by paragraph (1).

  Mr. DURBIN. I ask unanimous consent that the committee-reported 
substitute be considered; a Lieberman amendment, which is at the desk, 
be agreed to; the committee-reported substitute amendment, as amended, 
be agreed to; the bill, as amended, be read a third time and passed; 
the motions to reconsider be laid upon the table without intervening 
action or debate; and any statements relating to the bill be printed in 
the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment (No. 4661) was agreed to.
  (The amendment is printed in today's Record under ``Text of 
Amendments.'')
  The committee amendment in the nature of a substitute, as amended, 
was agreed to.
  The amendment was ordered to be engrossed and the bill to be read a 
third time.
  The bill (H.R. 553), as amended, was read the third time and passed.

                          ____________________