[House Report 110-776]
[From the U.S. Government Publishing Office]






110th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     110-776

======================================================================



 
                REDUCING OVER-CLASSIFICATION ACT OF 2008

                                _______
                                

 July 24, 2008.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Thompson of Mississippi, from the Committee on Homeland Security, 
                        submitted the following

                              R E P O R T

                        [To accompany H.R. 4806]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security, to whom was referred 
the bill (H.R. 4806) 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, having considered 
the same, report favorably thereon with an amendment and 
recommend that the bill as amended do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     4
Background and Need for Legislation..............................     5
Hearings.........................................................     6
Committee Consideration..........................................     6
Committee Votes..................................................     7
Committee Oversight Findings.....................................     7
New Budget Authority, Entitlement Authority, and Tax Expenditures     7
Congressional Budget Office Estimate.............................     7
Statement of General Performance Goals and Objectives............     9
Congressional Earmarks, Limited Tax Benefits, and Limited Tariff 
  Benefits.......................................................     9
Federal Mandates Statement.......................................    10
Advisory Committee Statement.....................................    10
Constitutional Authority Statement...............................    10
Applicability to Legislative Branch..............................    10
Section-by-Section Analysis of the Legislation...................    10
Changes in Existing Law Made by the Bill, as Reported............    12
Committee Correspondence.........................................    17

  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Reducing Over-Classification Act of 
2008''.

SEC. 2. FINDINGS.

  Congress finds the following:
          (1) A key conclusion in the Final Report of the National 
        Commission on Terrorist Attacks Upon the United States 
        (commonly known as the ``9/11 Commission'') was the need to 
        prevent over-classification by the Federal Government.
          (2) The 9/11 Commission and others have observed that the 
        over-classification of homeland security information interferes 
        with accurate, actionable, and timely homeland security 
        information sharing, increases the cost of information 
        security, and needlessly limits public access to information.
          (3) The over-classification problem, which has worsened since 
        the 9/11 attacks, causes considerable confusion about what 
        information can be shared with whom both internally at the 
        Department of Homeland Security and with its external partners. 
        This problem negatively impacts the dissemination of homeland 
        security information to the Department's State, local, tribal, 
        and territorial homeland security and law enforcement partners, 
        private sector customers, and the public.
          (4) Excessive government secrecy stands in the way of a safer 
        and more secure homeland. This trend is antithetical to the 
        creation and operation of the information sharing environment 
        established under section 1016 of the Intelligence Reform and 
        Terrorism Prevention Act of 2004 (6 U.S.C. 485), and must be 
        halted and reversed.
          (5) To do so, the Department should start with the 
        understanding that all departmental information that is not 
        properly classified, or marked as controlled unclassified 
        information and otherwise exempt from disclosure, should be 
        made available to members of the public pursuant to section 552 
        of title 5, United States Code (commonly referred to as the 
        ``Freedom of Information Act'').
          (6) The Department should also develop and administer 
        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 
        United States National Archives and Records Administration 
        policies implementing them.

SEC. 3. OVER-CLASSIFICATION PREVENTION WITHIN THE DEPARTMENT OF 
                    HOMELAND SECURITY.

  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 new section:

``SEC. 210F. OVER-CLASSIFICATION PREVENTION PROGRAM.

  ``(a) In General.--The Secretary shall develop and administer 
policies, procedures, and programs within the Department to prevent the 
over-classification of homeland security information, terrorism 
information, weapons of mass destruction information, and other 
information within the scope of the information sharing environment 
established under section 1016 of the Intelligence Reform and Terrorism 
Prevention Act of 2004 (6 U.S.C. 485) that must be disseminated to 
prevent and to collectively respond to acts of terrorism. The Secretary 
shall coordinate with the Archivist of the United States and consult 
with representatives of State, local, tribal, and territorial 
government and law enforcement, organizations with expertise in civil 
rights, civil liberties, and government oversight, and the private 
sector, as appropriate, to develop such policies, procedures, and 
programs.
  ``(b) Requirements.--Not later than one year after the date of the 
enactment of the Reducing Over-Classification Act of 2008, the 
Secretary, in administering the policies, procedures, and programs 
required under subsection (a), shall--
          ``(1) create, in consultation with the Archivist of the 
        United States, standard classified and unclassified formats for 
        finished intelligence products created by the Department, 
        consistent with any government-wide standards, practices or 
        procedures for similar products;
          ``(2) require that all finished intelligence products created 
        by the Department be simultaneously prepared in the standard 
        unclassified format, provided that such 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, or the private sector, 
        based on input provided by the Interagency Threat Assessment 
        and Coordination Group Detail established under section 210D;
          ``(3) ensure that such policies, procedures, and programs 
        protect the national security as well as the information 
        privacy rights and legal rights of United States persons 
        pursuant to all applicable law and policy, including the 
        privacy guidelines for the information sharing environment 
        established pursuant to section 1016 of the Intelligence Reform 
        and Terrorism Prevention Act of 2004 (6 U.S.C. 485), as 
        appropriate;
          ``(4) establish an ongoing auditing mechanism administered by 
        the Inspector General of the Department or other appropriate 
        senior Department official that randomly selects, on a periodic 
        basis, classified information from each component of the 
        Department that generates finished intelligence products to--
                  ``(A) assess, on an individualized basis, whether 
                applicable classification policies, procedures, rules, 
                and regulations have been followed;
                  ``(B) describe any problems with the administration 
                of the applicable classification policies, procedures, 
                rules, and regulations, including specific non-
                compliance issues;
                  ``(C) recommend improvements in awareness and 
                training to address them; and
                  ``(D) report at least annually to the Committee on 
                Homeland Security of the House of Representatives, the 
                Committee on Homeland Security and Governmental Affairs 
                of the Senate, and the public, in an appropriate 
                format, on the findings of the Inspector General's 
                audits under this section;
          ``(5) establish a process whereby employees may challenge 
        original classification decisions made by Department employees 
        or contractors and be rewarded with specific incentives for 
        successful challenges resulting in the removal of 
        classification markings or the downgrading of them;
          ``(6) inform employees and contractors that failure to comply 
        with the policies, procedures, and programs established under 
        this section could subject them to a series of penalties; and
          ``(7) institute a series of penalties for employees and 
        contractors 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.
  ``(c) Finished Intelligence Product Defined.--The term `finished 
intelligence product' means a document in which an intelligence analyst 
has evaluated, interpreted, integrated, or placed into context raw 
intelligence or information.''.

SEC. 4. ENFORCEMENT OF OVER-CLASSIFICATION PREVENTION WITHIN THE 
                    DEPARTMENT OF HOMELAND SECURITY.

  Subtitle A of title II of the Homeland Security Act of 2002 (6 U.S.C. 
121 et seq.) is further amended by adding at the end the following new 
section:

``SEC. 210G. ENFORCEMENT OF OVER-CLASSIFICATION PREVENTION PROGRAMS.

  ``(a) Personal Identifiers.--The Secretary shall--
          ``(1) assess the technologies available or in use at the 
        Department by which an electronic personal identification 
        number or other electronic identifying marker can be assigned 
        to each Department employee and contractor with original 
        classification authority in order to--
                  ``(A) track which documents have been classified by a 
                particular employee or contractor;
                  ``(B) determine the circumstances when such documents 
                have been shared;
                  ``(C) identify and address over-classification 
                problems, including the misapplication of 
                classification markings to documents that do not merit 
                such markings; and
                  ``(D) assess the information sharing impact of any 
                such problems or misuse;
          ``(2) develop an implementation plan for a Department 
        standard for such technology with appropriate benchmarks, a 
        timetable for its completion, and cost estimate for the 
        creation and implementation of a system of electronic personal 
        identification numbers or other electronic identifying markers 
        for all relevant Department employees and contractors; and
          ``(3) upon completion of the implementation plan described in 
        paragraph (2), or not later than 180 days after the date of the 
        enactment of the Reducing Over-Classification Act of 2008, 
        whichever is earlier, the Secretary shall provide a copy of the 
        plan to the Committee on Homeland Security of the House of 
        Representatives and the Committee on Homeland Security and 
        Governmental Affairs of the Senate.
  ``(b) Training.--The Secretary, in coordination with the Archivist of 
the United States, shall--
          ``(1) require annual training for each Department employee 
        and contractor with classification authority and who are 
        responsible for analysis, dissemination, preparation, 
        production, receiving, publishing, or otherwise communicating 
        written classified information, including training to--
                  ``(A) educate each employee and contractor about--
                          ``(i) the Department's requirement that all 
                        classified finished intelligence products that 
                        they create be simultaneously prepared in 
                        unclassified form in a standard format 
                        prescribed by the Department, provided that the 
                        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, or the private sector, based on input 
                        provided by the Interagency Threat Assessment 
                        and Coordination Group Detail established under 
                        section 210D;
                          ``(ii) the proper use of classification 
                        markings, including portion markings; and
                          ``(iii) the consequences of over-
                        classification and other improper uses of 
                        classification markings, including the 
                        misapplication of classification markings to 
                        documents that do not merit such markings, and 
                        of failing to comply with the Department's 
                        policies and procedures established under or 
                        pursuant to this section, including the 
                        negative consequences for the individual's 
                        personnel evaluation, homeland security, 
                        information sharing, and the overall success of 
                        the Department's missions;
                  ``(B) serve as a prerequisite, once completed 
                successfully, as evidenced by an appropriate 
                certificate, for--
                          ``(i) obtaining classification authority; and
                          ``(ii) renewing such authority annually; and
                  ``(C) count as a positive factor, once completed 
                successfully, in the Department's employment, 
                evaluation, and promotion decisions; and
          ``(2) ensure that such program is conducted efficiently, in 
        conjunction with any other security, intelligence, or other 
        training programs required by the Department to reduce the 
        costs and administrative burdens associated with the additional 
        training required by this section.
  ``(c) Detailee Program.--The Secretary shall--
          ``(1) implement a Departmental detailee program to detail 
        Departmental personnel to the National Archives and Records 
        Administration for one year, for the purpose of--
                  ``(A) training and educational benefit for the 
                Department personnel assigned so that they may better 
                understand the policies, procedures and laws governing 
                original classification authorities;
                  ``(B) bolstering the ability of the National Archives 
                and Records Administration to conduct its oversight 
                authorities over the Department and other Departments 
                and agencies; and
                  ``(C) ensuring that the policies and procedures 
                established by the Secretary remain consistent with 
                those established by the Archivist of the United 
                States;
          ``(2) ensure that the program established under paragraph (1) 
        includes at least one individual for each Department office 
        with delegated original classification authority; and
          ``(3) in coordination with the Archivist of the United 
        States, report to Congress not later than 90 days after the 
        conclusion of the first year of the program established under 
        paragraph (1), on--
                  ``(A) the advisability of expanding the program on a 
                government-wide basis, whereby other departments and 
                agencies would send detailees to the National Archives 
                and Records Administration; and
                  ``(B) the administrative and monetary costs of full 
                compliance with this section.
  ``(d) Sunset of Detailee Program.--Except as otherwise provided by 
law, subsection (c) shall cease to have effect on December 31, 2012.
  ``(e) Finished Intelligence Product Defined.--The term `finished 
intelligence product' has the meaning given the term in section 
210F(c).''.

SEC. 5. TECHNICAL AMENDMENT.

  The table of contents in section 1(b) of the Homeland Security Act of 
2002 (6 U.S.C. 101(b)) is amended by adding after the item relating to 
section 210E the following new items:

``Sec. 210F. Over-classification prevention program.
``Sec. 210G. Enforcement of over-classification prevention programs.''.

                          Purpose and Summary

    The purpose of H.R. 4806 is 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.

                  Background and Need for Legislation

    The Final Report of the National Commission on Terrorist 
Attacks Upon the United States, commonly known as the ``9/11 
Commission Report'', found that the Federal Intelligence 
Community's information security policies and practices impeded 
the kinds of robust information sharing required to prevent and 
otherwise prepare for terrorist attacks. Specifically, it found 
that security requirements nurtured over-classification and 
excessive compartmentation of information among agencies in 
several respects: (1) each agency's incentive structure opposed 
sharing, with clear risks but few rewards for sharing 
information; (2) no one had to pay the long term costs of over-
classifying information, though this cost is substantial; (3) 
there were no punishments for not sharing information; and (4) 
agencies upheld a ``need-to-know'' culture of information 
protection rather than promoting a ``need-to-share'' culture of 
integration. While some progress has been made, more work needs 
to be done within Federal agencies to ensure that over-
classification truly becomes a thing of the past.
    Over-classification can be defined as the automatic 
decision to classify government information rather than the 
informed, deliberative process outlined under Executive Order 
12958, as amended by E.O. 13292. Since 1940, classification of 
official secrets has been governed by policies and procedures 
flowing from this Executive Order. In the years since the 
attacks of September 11, 2001, the tension between the need to 
protect certain types of highly sensitive information and the 
need to share such information with people or entities with a 
need to know has grown considerably. Security concerns after 
the attacks prompted some agencies and departments to increase 
the categories and volume of information shielded from public 
view by using Confidential, Secret, or Top Secret security 
classification markings.
    The Information Security Oversight Office (ISOO) within the 
National Archives and Records Administration (NARA) is 
responsible for Executive Branch oversight of security 
classification matters. The 2005 ISOO Report to the President 
noted that there were eight million new classification actions 
in 2001, which jumped to over 14 million new actions in 2005, 
while the quantity of declassified pages dropped from 100 
million in 2001 to 29 million in 2005. The ISOO also identified 
the cost of over-classification as a problem: while $4.5 
billion was spent on classification in 2001, this figure 
increased to $7.1 billion in 2004. Declassification costs, by 
contrast, fell from $232 million in 2001 to $48.3 million in 
2004.
    This continuing trend is an obstacle to accurate, 
actionable, and timely information sharing across the Federal 
Government and with its State, local, and tribal partners--
including with the Department of Homeland Security's partners 
in the law enforcement and wider first responder communities. 
Unless and until the Nation has a robust intelligence and 
information sharing system in place, with a clear and 
understandable system of classification, it will be unable to 
prevent a terrorist attack on the scale of 9/11 or greater. The 
Subcommittee on Intelligence, Information Sharing and Terrorism 
Risk Assessment accordingly focused its efforts during the 
110th Congress on addressing the over-classification problem 
and improving the Department's information sharing with the 
Nation's ``first preventers''--the police and sheriffs' 
officers that bring homeland security to America's hometowns. 
H.R. 4806 is the culmination of that oversight work and 
promises to make the Department the ``gold standard'' within 
the Federal Intelligence Community when it comes to compliance 
with applicable classification law, executive orders, and other 
relevant authorities--promoting more and better information 
sharing in the process.

                                Hearings

    No hearings were held on H.R. 4806, however, the Committee 
held oversight hearings on over-classification.
    On March 22, 2007, the Subcommittee on Intelligence, 
Information Sharing, and Terrorism Risk Assessment held a 
hearing entitled ``Over-classification and Pseudo-
classification: The Impact on Information Sharing.'' The 
Subcommittee received testimony from Mr. J. William Leonard, 
Director, Information Security Oversight Office, National 
Archives and Records Administration, Mr. Scott Armstrong, 
Founder, Information Trust, Ms. Meredith Fuchs, General 
Counsel, The National Security Archive, George Washington 
University, Chief Cathy L. Lanier, Metropolitan Police 
Department, Washington, D.C., and Mr. Michael P. Downing, 
Assistant Commanding Officer, Counter-Terrorism/Criminal 
Intelligence Bureau, Los Angeles Police Department.
    On April 26, 2007, the Subcommittee on Intelligence, 
Information Sharing, and Terrorism Risk Assessment held a 
hearing entitled ``The Over-Classification and Pseudo-
Classification of Government Information: The Response of the 
Program Manager of the Information Sharing Environment.'' The 
Subcommittee received testimony from Ambassador Thomas E. 
McNamara, Program Manager, Information Sharing Environment, 
Office of the Director of National Intelligence; Carter Morris, 
Ph.D., Director, Informational Sharing and Knowledge 
Management, Office of Intelligence and Analysis, Department of 
Homeland Security; Mr. Wayne M. Murphy, Assistant Director, 
Directorate of Intelligence, Federal Bureau of Investigation, 
Department of Justice, Colonel Bart R. Johnson, New York State 
Police; and Mr. Mark Zadra, Assistant Commissioner, Florida 
Department of Law Enforcement.
    On June 28, 2007, the Subcommittee on Intelligence, 
Information Sharing, and Terrorism Risk Assessment held a 
hearing entitled ``Over-Classification and Pseudo-
Classification: Making DHS the Gold Standard for Designating 
Classified and Sensitive Homeland Security Information.'' The 
Subcommittee received testimony from Mr. J. William Leonard, 
Director, Information Security Oversight Office, National 
Archives and Record Administration; Mr. Scott Armstrong, 
Founder, Information Trust; Ms. Suzanne E. Spaulding, 
Principal, Bingham Consulting Group, LLC; and Mr. Mark Agrast, 
Senior Fellow, Center for American Progress.

                        Committee Consideration

    H.R. 4806 was introduced in the House on December 18, 2007, 
by Ms. Harman and 13 original co-sponsors and referred solely 
to the Committee on Homeland Security. Within the Committee, 
H.R. 4806 was referred to the Subcommittee on Intelligence, 
Information Sharing, and Terrorism Risk Assessment.
    The Subcommittee on Intelligence, Information Sharing, and 
Terrorism Risk Assessment considered H.R. 4806 on June 11, 
2008, and ordered the measure favorably forwarded to the Full 
Committee for consideration, amended, by unanimous consent.
    The Subcommittee adopted the bill, as amended, by unanimous 
consent.
    The following amendment was offered:
          An Amendment in the Nature of a Substitute offered by 
        Ms. Harman (#1), was AGREED TO by unanimous consent.
    The Committee considered H.R. 4806 on June 26, 2008 and 
ordered the measure to be reported to the House favorably, as 
amended, by voice vote.
    The Committee adopted the measure, as amended, by unanimous 
consent.
    The following amendment was offered:
          An Amendment in the Nature of a Substitute offered by 
        Ms. Harman (#1); was AGREED TO by unanimous consent.

                            Committee Votes

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee to list the recorded 
votes on the motion to report legislation and amendments 
thereto.
    No recorded votes were requested during Committee 
consideration.

                      Committee Oversight Findings

    Pursuant to clause 3(c)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee has held oversight 
hearings and made findings that are reflected in this report.

   New Budget Authority, Entitlement Authority, and Tax Expenditures

     In compliance with clause 3(c)(2) of rule XIII of the 
Rules of the House of Representatives, the Committee finds that 
H.R. 4806, the Reducing Over-Classification Act of 2007, would 
result in no new or increased budget authority, entitlement 
authority, or tax expenditures or revenues.

                  Congressional Budget Office Estimate

     The Committee adopts as its own the cost estimate prepared 
by the Director of the Congressional Budget Office pursuant to 
section 402 of the Congressional Budget Act of 1974.

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 10, 2008.
Hon. Bennie G. Thompson,
Chairman, Committee on Homeland Security,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 4806, the Reducing 
Over-Classification Act of 2008.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Jason 
Wheelock.
            Sincerely,
                                         Robert A. Sunshine
                                   (For Peter R. Orszag, Director).
    Enclosure.

H.R. 4806--Reducing Over-Classification Act of 2008

    H.R. 4806 would make several amendments to the Homeland 
Security Act of 2002 designed to expand the amount of homeland 
security and intelligence information that the Department of 
Homeland Security (DHS) shares with state and local 
governments, law enforcement agencies, emergency response 
providers, and private-sector organizations. This information 
sharing would be accomplished by minimizing the number of 
documents DHS determines to be classified, and providing 
classified intelligence products in an unclassified format when 
such intelligence products would benefit those entities. The 
bill also would require periodic auditing of classified 
information to assess compliance with classification policies 
and training for DHS employees on those new requirements.
    H.R. 4806 also would require DHS to assess technologies 
that would allow the department to track the classification and 
sharing of classified documents, and develop a plan for 
implementing such technologies. Since the bill would not 
require DHS to deploy such technologies, this estimate does not 
include implementation costs. However, based on information 
from DHS and the Office of the Director of National 
Intelligence, CBO anticipates that such costs could be 
significant.
    DHS would incur small incremental costs related to the 
periodic auditing of classified documents and the additional 
training that would be required by the bill. Since DHS already 
conducts compliance reviews to determine whether documents are 
properly classified and has an annual training program for its 
employees, CBO anticipates that the cost of implementing H.R. 
4806 would be less than $500,000 a year, assuming the 
availability of appropriated funds. Enacting the legislation 
would not affect direct spending or revenues.
    H.R. 4806 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Jason Wheelock. 
This estimate was approved by Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

         Statement of General Performance Goals and Objectives

    Pursuant to clause 3(c)(4) of rule XIII of the Rules of the 
House of Representatives, H.R. 4806, contains the following 
general performance goals, and objectives, including outcome 
related goals and objectives authorized.
    The only way to ensure that accurate, actionable, and 
timely classified homeland security information is shared 
between the Federal Government and its State, local, tribal, 
and private sector partners is to create a classification 
system that is enforceable, understandable, and applicable to 
everyone. Almost seven years after the attacks of September 11, 
2001, the Nation should be treating far less information as 
classified and instead should be making fixing the problem of 
over-classification a top priority. A recurrent theme 
throughout the Final Report of the National Commission on 
Terrorist Attacks Upon the United States (9/11 Commission 
Report) was the need to address the persistent problem of over-
classification in order to remove a major stumbling block to 
preventing, preparing for, and responding to terrorist attacks. 
While a Government-wide solution would be beneficial, the 
Department of Homeland Security is an excellent place to start 
making changes. Through the policies, procedures, and programs 
established in H.R. 4806, the Department will become a ``best 
practices'' center for fixing the problems of the past and a 
test bed for the rest of the Federal Government.
    The goals of this measure are to ensure that Department 
employees and contractors apply the existing classification 
regime in strict accordance with applicable law, executive 
orders, and other authorities. This approach will help prevent 
over-classification and maximize the disclosure of homeland 
security and other information within the scope of the 
Information Sharing Environment that must be disseminated to 
prevent and to collectively respond to acts of terrorism. To 
facilitate this change, this measure will accomplish several 
key objectives: (1) promote a common understanding among 
Department employees and contractors that classified markings 
are not to be used to protect political turf or to hide 
embarrassing facts from public view; (2) develop best practices 
that ensure that Department classification practice adheres to 
applicable laws, executive orders, and other relevant 
authorities; (3) promote a variety of accountability measures 
that identifies over-classification problems and their sources 
and recommend and implement strategies to address them; and (4) 
bolster public confidence in the Department's information 
sharing mission through these and other measures that promote 
accountability, integrity, and transparency across the 
Department.

   Congressional Earmarks, Limited Tax Benefits, and Limited Tariff 
                                Benefits

     In compliance with rule XXI of the Rules of the House of 
Representatives, this bill, as reported, contains no 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(d), 9(e), or 9(f) of the rule 
XXI.

                       Federal Mandates Statement

    The Committee adopts as its own the estimate of Federal 
mandates prepared by the Director of the Congressional Budget 
Office pursuant to section 423 of the Unfunded Mandates Reform 
Act.

                      Advisory Committee Statement

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act were created by this 
legislation.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds that the 
Constitutional authority for this legislation is provided in 
Article I, section 8, clause 1, which grants Congress the power 
to provide for the common Defense of the United States.

                  Applicability to Legislative Branch

     The Committee finds that the legislation does not relate 
to the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act.

             Section-by-Section Analysis of the Legislation


Section 1. Short title

    This section states that that this measure may be cited as 
the ``Reducing Over-Classification Act of 2008''.

Section 2. Findings

    This section outlines a series of Congressional findings, 
including: (1) over-classification of homeland security 
information interferes with information sharing; increases the 
cost of information security; and needlessly limits public 
access to information; (2) this trend stands in the way of a 
safer homeland and must be halted and reversed; (3) 
accordingly, the Department of Homeland Security should start 
with the understanding that information that is not properly 
classified--or otherwise exempt from disclosure--should be made 
publicly available pursuant to an appropriate Freedom of 
Information Act (FOIA) request; and (4) the Department should 
develop and administer policies, procedures and programs that 
promote compliance with applicable laws, executive orders, and 
other authorities pertaining to the proper use of 
classification markings.

Section 3. Over-classification prevention within the Department of 
        Homeland Security

    This section modifies title II of the Homeland Security Act 
of 2002 (P.L. 107-296) to require the Secretary of Homeland 
Security to develop and administer policies, procedures and 
programs to prevent the over-classification of homeland 
security information and other information that must be 
disseminated to prevent and to collectively respond to acts of 
terrorism. This section requires the Secretary to coordinate 
this work with the Archivist of the United States and to 
consult with organizations with expertise in civil rights, 
civil liberties, and governmental oversight.
    This section further modifies title II of the Homeland 
Security Act of 2002 to require the Secretary, in administering 
the policies, procedures, and programs required under this 
section, to (1) create standard classified and unclassified 
formats for Finished Intelligence Products; (2) require the use 
of the standard unclassified format when an unclassified 
version of classified information would be helpful to America's 
first preventers; (3) ensure that not only the national 
security but also the privacy and other legal rights of United 
States persons are protected as part of the enforcement of the 
aforementioned policies, procedures, and programs; (4) 
establish, within one year of enactment, an ongoing auditing 
mechanism administered by the Department of Homeland Security's 
Inspector General to ensure that, among other things, over-
classification prevention policies, procedures, rules and 
regulations are being followed by all Department employees and 
contractors; and (5) report to the Committee on Homeland 
Security of the House of Representatives, the Committee on 
Homeland Security and Governmental Affairs of the Senate, and 
the public, in an appropriate format, on the findings of the 
Department's Inspector General about whether these policies, 
procedures, rules, and regulations are being followed, 
identifying any problems in this regard, and recommending 
improvements to address any such problems.
    This section further modifies title II of the Homeland 
Security Act of 2002 to require the Secretary to establish a 
process to reward Department personnel for successful 
challenges to classification decisions resulting in the removal 
of classification markings or the downgrading of them. This 
section requires the Secretary to institute a series of 
penalties for Department personnel who repeatedly fail to 
comply with applicable over-classification prevention policies, 
procedures, rules, and regulations after having received notice 
of their non-compliance and appropriate training or re-training 
to address such noncompliance.

Section 4. Enforcement of over-classification prevention within the 
        Department of Homeland Security

    This section modifies title II of the Homeland Security Act 
of 2002 (P.L. 107-296) to require the Secretary of Homeland 
Security to assess technologies available or already in use at 
the Department of Homeland Security by which an electronic 
personal identification number or other electronic identifying 
marker can be assigned to each Department employee or 
contractor with classification authority in order to track 
which documents have been classified by a particular employee; 
identify and address over-classification problems; and assess 
the information sharing impact of any such problems or misuse. 
This section requires the Secretary to develop an 
implementation plan for such technology at the Department and 
to establish a deadline for it.
    This section further modifies title II of the Homeland 
Security Act of 2002 to require the Secretary to (1) develop a 
training program for the proper use of classification markings 
for all employees and contractors who have classification 
authority and who are responsible for analysis, dissemination, 
preparation, producing, receiving, publishing, or otherwise 
communicating written classified information; and (2) 
coordinate with the Archivist of the United States in 
developing this training program. This section clarifies that 
such training (1) must address the proper formats for finished 
intelligence products and the consequences of over-
classification and other improper uses of classification 
markings; and (2) serves as a prerequisite for obtaining 
classification authority and renewing such authority annually.
    This section further modifies title II of the Homeland 
Security Act of 2002 to require the Secretary to establish a 
detailee program with the United States National Archives and 
Records Administration (NARA) that will, among other things, 
train Department personnel about the policies, procedures, and 
laws governing original classification authorities; bolster 
NARA's ability to conduct oversight over the Department; and 
ensure that Department policies are consistent with those 
established by the Archivist of the United States.

Section 5. Definitions

    This section defines terms used in this measure.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

                     HOMELAND SECURITY ACT OF 2002

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

  (a) * * *
  (b) Table of Contents.--The table of contents for this Act is 
as follows:
     * * * * * * *

      TITLE II--INFORMATION ANALYSIS AND INFRASTRUCTURE PROTECTION

  Subtitle A--Information and Analysis and Infrastructure Protection; 
                          Access to Information

     * * * * * * *
Sec. 210F. Over-classification prevention program.
Sec. 210G. Enforcement of over-classification prevention programs.

           *       *       *       *       *       *       *


      TITLE II--INFORMATION ANALYSIS AND INFRASTRUCTURE PROTECTION

  Subtitle A--Information and Analysis and Infrastructure Protection; 
Access to Information

           *       *       *       *       *       *       *


SEC. 210F. OVER-CLASSIFICATION PREVENTION PROGRAM.

  (a) In General.--The Secretary shall develop and administer 
policies, procedures, and programs within the Department to 
prevent the over-classification of homeland security 
information, terrorism information, weapons of mass destruction 
information, and other information within the scope of the 
information sharing environment established under section 1016 
of the Intelligence Reform and Terrorism Prevention Act of 2004 
(6 U.S.C. 485) that must be disseminated to prevent and to 
collectively respond to acts of terrorism. The Secretary shall 
coordinate with the Archivist of the United States and consult 
with representatives of State, local, tribal, and territorial 
government and law enforcement, organizations with expertise in 
civil rights, civil liberties, and government oversight, and 
the private sector, as appropriate, to develop such policies, 
procedures, and programs.
  (b) Requirements.--Not later than one year after the date of 
the enactment of the Reducing Over-Classification Act of 2008, 
the Secretary, in administering the policies, procedures, and 
programs required under subsection (a), shall--
          (1) create, in consultation with the Archivist of the 
        United States, standard classified and unclassified 
        formats for finished intelligence products created by 
        the Department, consistent with any government-wide 
        standards, practices or procedures for similar 
        products;
          (2) require that all finished intelligence products 
        created by the Department be simultaneously prepared in 
        the standard unclassified format, provided that such 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, or the private sector, based on 
        input provided by the Interagency Threat Assessment and 
        Coordination Group Detail established under section 
        210D;
          (3) ensure that such policies, procedures, and 
        programs protect the national security as well as the 
        information privacy rights and legal rights of United 
        States persons pursuant to all applicable law and 
        policy, including the privacy guidelines for the 
        information sharing environment established pursuant to 
        section 1016 of the Intelligence Reform and Terrorism 
        Prevention Act of 2004 (6 U.S.C. 485), as appropriate;
          (4) establish an ongoing auditing mechanism 
        administered by the Inspector General of the Department 
        or other appropriate senior Department official that 
        randomly selects, on a periodic basis, classified 
        information from each component of the Department that 
        generates finished intelligence products to--
                  (A) assess, on an individualized basis, 
                whether applicable classification policies, 
                procedures, rules, and regulations have been 
                followed;
                  (B) describe any problems with the 
                administration of the applicable classification 
                policies, procedures, rules, and regulations, 
                including specific non-compliance issues;
                  (C) recommend improvements in awareness and 
                training to address them; and
                  (D) report at least annually to the Committee 
                on Homeland Security of the House of 
                Representatives, the Committee on Homeland 
                Security and Governmental Affairs of the 
                Senate, and the public, in an appropriate 
                format, on the findings of the Inspector 
                General's audits under this section;
          (5) establish a process whereby employees may 
        challenge original classification decisions made by 
        Department employees or contractors and be rewarded 
        with specific incentives for successful challenges 
        resulting in the removal of classification markings or 
        the downgrading of them;
          (6) inform employees and contractors that failure to 
        comply with the policies, procedures, and programs 
        established under this section could subject them to a 
        series of penalties; and
          (7) institute a series of penalties for employees and 
        contractors 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.
  (c) Finished Intelligence Product Defined.--The term 
``finished intelligence product'' means a document in which an 
intelligence analyst has evaluated, interpreted, integrated, or 
placed into context raw intelligence or information.

SEC. 210G. ENFORCEMENT OF OVER-CLASSIFICATION PREVENTION PROGRAMS.

  (a) Personal Identifiers.--The Secretary shall--
          (1) assess the technologies available or in use at 
        the Department by which an electronic personal 
        identification number or other electronic identifying 
        marker can be assigned to each Department employee and 
        contractor with original classification authority in 
        order to--
                  (A) track which documents have been 
                classified by a particular employee or 
                contractor;
                  (B) determine the circumstances when such 
                documents have been shared;
                  (C) identify and address over-classification 
                problems, including the misapplication of 
                classification markings to documents that do 
                not merit such markings; and
                  (D) assess the information sharing impact of 
                any such problems or misuse;
          (2) develop an implementation plan for a Department 
        standard for such technology with appropriate 
        benchmarks, a timetable for its completion, and cost 
        estimate for the creation and implementation of a 
        system of electronic personal identification numbers or 
        other electronic identifying markers for all relevant 
        Department employees and contractors; and
          (3) upon completion of the implementation plan 
        described in paragraph (2), or not later than 180 days 
        after the date of the enactment of the Reducing Over-
        Classification Act of 2008, whichever is earlier, the 
        Secretary shall provide a copy of the plan to the 
        Committee on Homeland Security of the House of 
        Representatives and the Committee on Homeland Security 
        and Governmental Affairs of the Senate.
  (b) Training.--The Secretary, in coordination with the 
Archivist of the United States, shall--
          (1) require annual training for each Department 
        employee and contractor with classification authority 
        and who are responsible for analysis, dissemination, 
        preparation, production, receiving, publishing, or 
        otherwise communicating written classified information, 
        including training to--
                  (A) educate each employee and contractor 
                about--
                          (i) the Department's requirement that 
                        all classified finished intelligence 
                        products that they create be 
                        simultaneously prepared in unclassified 
                        form in a standard format prescribed by 
                        the Department, provided that the 
                        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, or 
                        the private sector, based on input 
                        provided by the Interagency Threat 
                        Assessment and Coordination Group 
                        Detail established under section 210D;
                          (ii) the proper use of classification 
                        markings, including portion markings; 
                        and
                          (iii) the consequences of over-
                        classification and other improper uses 
                        of classification markings, including 
                        the misapplication of classification 
                        markings to documents that do not merit 
                        such markings, and of failing to comply 
                        with the Department's policies and 
                        procedures established under or 
                        pursuant to this section, including the 
                        negative consequences for the 
                        individual's personnel evaluation, 
                        homeland security, information sharing, 
                        and the overall success of the 
                        Department's missions;
                  (B) serve as a prerequisite, once completed 
                successfully, as evidenced by an appropriate 
                certificate, for--
                          (i) obtaining classification 
                        authority; and
                          (ii) renewing such authority 
                        annually; and
                  (C) count as a positive factor, once 
                completed successfully, in the Department's 
                employment, evaluation, and promotion 
                decisions; and
          (2) ensure that such program is conducted 
        efficiently, in conjunction with any other security, 
        intelligence, or other training programs required by 
        the Department to reduce the costs and administrative 
        burdens associated with the additional training 
        required by this section.
  (c) Detailee Program.--The Secretary shall--
          (1) implement a Departmental detailee program to 
        detail Departmental personnel to the National Archives 
        and Records Administration for one year, for the 
        purpose of--
                  (A) training and educational benefit for the 
                Department personnel assigned so that they may 
                better understand the policies, procedures and 
                laws governing original classification 
                authorities;
                  (B) bolstering the ability of the National 
                Archives and Records Administration to conduct 
                its oversight authorities over the Department 
                and other Departments and agencies; and
                  (C) ensuring that the policies and procedures 
                established by the Secretary remain consistent 
                with those established by the Archivist of the 
                United States;
          (2) ensure that the program established under 
        paragraph (1) includes at least one individual for each 
        Department office with delegated original 
        classification authority; and
          (3) in coordination with the Archivist of the United 
        States, report to Congress not later than 90 days after 
        the conclusion of the first year of the program 
        established under paragraph (1), on--
                  (A) the advisability of expanding the program 
                on a government-wide basis, whereby other 
                departments and agencies would send detailees 
                to the National Archives and Records 
                Administration; and
                  (B) the administrative and monetary costs of 
                full compliance with this section.
  (d) Sunset of Detailee Program.--Except as otherwise provided 
by law, subsection (c) shall cease to have effect on December 
31, 2012.
  (e) Finished Intelligence Product Defined.--The term 
``finished intelligence product'' has the meaning given the 
term in section 210F(c).

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