[Federal Register Volume 61, Number 198 (Thursday, October 10, 1996)]
[Proposed Rules]
[Pages 53158-53161]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25830]


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ARMS CONTROL AND DISARMAMENT AGENCY

22 CFR Part 605


National Security Information Regulations

AGENCY: Arms Control and Disarmament Agency.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The United States Arms Control and Disarmament Agency (ACDA) 
proposes to update, revise, and restate in their entirety its National 
Security Information regulations. In addition to containing internal 
policies and procedures, these regulations set forth in Sec. 605.8 what 
members of the public must do to request mandatory declassification 
review and to appeal denials of requests for declassification. ACDA 
invites comments from interested groups and individual members of the 
public on the proposed regulations.

DATES: To be considered, comments must be delivered by mail or in 
person to the address, or faxed to the telephone number, listed below 
by 5 p.m. on Friday, November 15, 1996.

ADDRESSES: Comments should be directed to the Office of the General 
Counsel, United States Arms Control and Disarmament Agency, Room 5635, 
320 21st Street, NW., Washington, DC 20451; FAX (202) 647-0024. 
Comments will be available for inspection between 8:15 a.m. and 5 p.m. 
at the same address.

FOR FURTHER INFORMATION CONTACT: Frederick Smith, Jr., United States 
Arms Control and Disarmament Agency, Room 5635, 320 21st Street, NW., 
Washington, DC 20451, telephone (202) 647-3596.

SUPPLEMENTARY INFORMATION:

Regulatory Flexibility Act Certification

    It is hereby certified that the proposed rule will not have a 
significant economic impact on a substantial number of small entities. 
Accordingly, a regulatory flexibility analysis is not required.

Executive Order 12866 Determination

    ACDA has determined that the proposed rule is not a significant 
regulatory action within the meaning of section 3(f) of that Executive 
Order.

Paperwork Reduction Act Statement

    The proposed rule is not subject to the provisions of the Paperwork 
Reduction Act because it does not contain any information collection 
requirements within the meaning of that Act.

Unfunded Mandates Act Determination

    ACDA has determined that the proposed rule will not result in 
expenditures by state, local, and tribal governments, or by the private 
sector, of more than $100 million in any one year. Accordingly, a 
budgetary impact statement is not required under section 202 of the 
Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532.

[[Page 53159]]

List of Subjects in 22 CFR Part 605

    Administrative practice and procedure, Classified information, 
Freedom of information.

The Proposed Regulations

    ACDA proposes to revise 22 CFR part 605 to read as follows:

PART 605-- NATIONAL SECURITY INFORMATION REGULATIONS

Sec.
605.1  Basis.
605.2  Objective.
605.3  Senior agency official.
605.4  Original classification.
605.5  Classification authority.
605.6  Derivative classification.
605.7  Declassification and downgrading.
605.8  Mandatory declassification review.
605.9  Systematic declassification review.
605.10  Safeguarding.

    Authority: E.O. 12958 (60 FR 19825, April 20, 1995); Information 
Security Oversight Office Directive No. 1, 32 CFR part 2001.


Sec. 605.1   Basis.

    The regulations in this part, taken together with the Information 
Security Oversight Office Directive No. 1 dated October 13, 1995, 
provide the basis for the security classification program of the U.S. 
Arms Control and Disarmament Agency (ACDA) implementing Executive Order 
12958, ``Classified National Security Information'' (the Executive 
Order).


Sec. 605.2  Objective.

    The objective of the ACDA classification program is to ensure that 
national security information is protected from unauthorized 
disclosure, but only to the extent and for such a period as is 
necessary.


Sec. 605.3  Senior agency official.

    The Executive Order requires that each agency that originates or 
handles classified information designate a senior agency official to 
direct and administer its information security program. The ACDA senior 
agency official is the Deputy Director. The Deputy Director is assisted 
in carrying out the provisions of the Executive Order and the ACDA 
information security program by the Director of Security and by the 
Classification Adviser.


Sec. 605.4  Original classification.

    (a) Definition. Original classification is the initial 
determination that certain information requires protection against 
unauthorized disclosure in the interest of national security (i.e., 
national defense or foreign relations of the United States), together 
with a designation of the level of classification.
    (b) Classification designations. (1) Top Secret shall be applied 
only to information, the unauthorized disclosure of which reasonably 
could be expected to cause exceptionally grave damage to the national 
security. Examples of ``exceptionally grave damage'' include, but are 
not limited to, armed hostilities against the United States or its 
allies; the compromise of vital national defense plans or cryptologic 
and communications intelligence systems; the revelation of sensitive 
intelligence operations; and the disclosure of scientific or 
technological developments vital to national security.
    (2) Secret shall be applied to information, the unauthorized 
disclosure of which reasonably could be expected to cause serious 
damage to the national security. Examples of ``serious damage'' 
include, but are not limited to, disruption of foreign relations 
significantly affecting the national security; significant impairment 
of a program or policy directly related to the national security; 
revelation of significant military plans or intelligence operations; 
and compromise of significant scientific or technological developments 
relating to national security.
    (3) Confidential shall be applied to information, the unauthorized 
disclosure of which reasonably could be expected to cause damage to the 
national security.
    (c) Classification restraints. (1) The classification level of any 
form of information is premised on an evaluation of its contents as a 
whole, as well as on its relationship to other information.
    (2) In classifying information, the public's interest in access to 
government information must be balanced against the need to protect 
national security information.
    (3) In case of doubt, the lower level of classification is to be 
used.
    (d) Duration of classification. (1) Information shall be classified 
for as long as is required by national security considerations, subject 
to the limitations set forth in section 1.6 of the Executive Order. 
When it can be determined, a specific date or event for 
declassification shall be set by the original classification authority 
at the time the information is originally classified. If a specific 
date or event for declassification cannot be determined, information 
shall be marked for declassification 10 years from the date of the 
original decision, except that the original classification authority 
may classify for a period greater than 10 years specific information 
that falls within the criteria set forth in section 1.6(d) of the 
Executive Order.
    (2) An original classification authority may extend the duration of 
classification or reclassify specific information for successive 
periods not to exceed 10 years at a time except for records that are 
more than 25 years old.
    (3) Information classified for an indefinite duration under 
predecessor orders, such as ``Originating Agency's Determination 
Required,'' shall be subject to the declassification provisions of Part 
3 of the Executive Order, including the provisions of section 3.4 
regarding automatic declassification of records older than 25 years.


Sec. 605.5  Classification authority.

    (a) General. Classification shall be solely on the basis of 
national security considerations. In no case shall information be 
classified in order to conceal violations of law, inefficiency, or 
administrative error, or to prevent embarrassment to a person, 
organization, or agency.
    (b) Designations. The following ACDA officials shall have original 
classification authority in each of the three designations under which 
they are shown in this paragraph. This authority vests only in the 
officials or positions designated and, except as provided in paragraph 
(c) of this section, may not be redelegated. In the absence of any of 
the authorized classifiers (for TDY outside Washington, annual leave, 
temporary position vacancy, etc.), the officer acting in that person's 
position may exercise the classifier's authority.
    (1) Top Secret. (i) Director,
    (ii) Deputy Director.
    (2) Secret. (i) Officials having Top Secret classification 
authority,
    (ii) Such other officials who have a frequent need to exercise 
Secret authority and are specifically delegated this authority in 
writing by the Director.
    (3) Confidential. (i) Officials having Top Secret and Secret 
classification authority,
    (ii) Other officials who have a frequent need to exercise 
Confidential authority and are specifically delegated this authority in 
writing by the Director.
    (c) Delegation of classification authority. (1) The Executive Order 
restricts delegation of original classification authority to officials 
who have a demonstrable and continuing need to exercise such authority. 
Such delegations shall be held to a minimum.
    (2) If in the judgment of bureau or office heads an officer has a 
demonstrable need for classification authority, a written request over 
the bureau or office head's signature should be forwarded via the 
Director of

[[Page 53160]]

Security to the Deputy Director for action. The request should set 
forth the officer's name and title, the justification for having the 
authority, and the level of classification authority sought.
    (3) The Director of Security shall maintain a complete current list 
by classification designation of individuals to whom and positions to 
which original classification authority has been delegated.
    (4) Periodic reviews of delegations of classification authority 
will be made by the Director of Security to ensure that officials so 
designated have a continuing need to exercise such authority. 
Recommendations by the Director of Security for discontinuance of 
delegations will be forwarded to the Deputy Director for action.
    (5) Original classification authority shall not be delegated to 
persons who only reproduce, extract, or summarize classified 
information, or who only apply classifications markings derived from 
source material or as directed by a classification guide.
    (d) Classification responsibilities. Each ACDA officer who signs, 
authenticates, or otherwise produces a document is responsible for 
determining that it is properly classified and marked. This 
responsibility includes determining whether the document contains any 
originally classified material (in which case the classification must 
be authorized by an appropriate ACDA classifying official) or contains 
information already classified (in which case the proper derivative 
markings must be applied). Any significant doubt about the level of 
classification shall be resolved in favor of the lower level.
    (e) Classification challenges. Holders of information who believe 
that its classification status is improper are expected and encouraged 
to challenge the need for classification, the classification level, the 
duration of classification, the lack of classification or other aspect 
believed to be improper. Classification challenges shall be directed to 
and decided by the Deputy Director. If the information was not 
originated within or classified by ACDA, it will be referred to the 
Classification Adviser for coordination with the responsible agency or 
department if declassification, downgrading, classification or other 
change in its status appears to be warranted. Individuals making 
challenges to the classification status of information shall not be 
subject to retribution for such action, and they shall be advised of 
their right to appeal the Deputy Director's decision on the challenge 
to the Interagency Security Classification Appeals Panel established by 
section 5.4 of the Executive Order.
    (f) Contractor classification authority. (1) Each ACDA contract 
calling for classified work shall be processed under the National 
Industrial Security Program.
    (2) Each contract processed under the National Industrial Security 
Program requires the preparation of a contract security classification 
specification (DD 254) which serves as the contractor's guidance and 
authority to apply classification markings.
    (3) Each contract processed under the Department of Energy (DOE) 
Security Requirements (i.e., involving restricted data or formerly 
restricted data) shall include a provision for naming a classification 
coordinator in the contractor organization. This individual shall 
coordinate the derived classification of all documents prepared under 
the contract in accordance with guidance received from ACDA via the 
ACDA Contracting Officer's Technical Representative for the contract, 
or by direct consultation on classification problems with the ACDA 
Classification Adviser or the Director of Security.
    (4) Only designated officials of the U.S. Government may originally 
classify information. Contractor personnel, as potential developers of 
classified information, must follow the guidelines outlined in 
paragraph (d) of this section entitled ``Classification 
responsibilities.'' When there is a question involving the original 
classification of information, the contractor is obligated to safeguard 
it in accordance with the classification designation deemed appropriate 
and submit recommendations to ACDA for classification determination.
    (5) In general, the classification of the information provided by 
ACDA for use or reference in the completion of the contract will be the 
source of the classification of documents prepared under the contract.


Sec. 605.6  Derivative classification.

    (a) Definition. Derivative classification is the incorporating, 
paraphrasing, restating or generating in new form information that is 
already classified and the marking of the new material consistent with 
the classification of the source material. Duplication or reproduction 
of existing classified information is not derivative classification.
    (b) Responsibility. Derivative application of classification 
markings is the responsibility of those who prepare material using 
information that is already classified and of those who apply markings 
in accordance with instructions from an authorized classifier or in 
accordance with an authorized classification guide.
    (c) Classification guides. (1) Classification guides used to direct 
derivative classification and issued by ACDA shall specifically 
identify the information to be protected, using categorization to the 
extent necessary to ensure that the information involved can be 
identified readily and uniformly.
    (2) Each classification guide issued by ACDA shall be approved by 
the Senior Agency Official.
    (3) Each classification guide issued by ACDA shall be kept current 
and shall be reviewed as required by directives issued under the 
Executive Order. The Director of Security shall maintain a list of all 
classification guides.


Sec. 605.7  Declassification and downgrading.

    (a) Declassification processes. Declassification of classified 
information may occur:
    (1) After review of material in response to a Freedom of 
Information Act (FOIA), mandatory declassification review, discovery, 
subpoena, or other information access or declassification request;
    (2) After review as part of ACDA's systematic declassification 
review program;
    (3) As a result of the elapse of the time or the occurrence of the 
event specified at the time of classification;
    (4) By operation of the automatic declassification provisions of 
section 3.4 of the Executive Order with respect to material more than 
25 years old.
    (b) Downgrading. When material classified at the Top Secret level 
is reviewed for declassification and it is determined that 
classification continues to be warranted, a determination shall be made 
whether downgrading to a lower level of classification is appropriate. 
If downgrading is determined to be warranted, the classification level 
of the material shall be changed to the appropriate lower level.
    (c) Authority to downgrade and declassify. (1) Classified 
information may be downgraded or declassified by the official who 
originally classified the information if that official is still serving 
in the same position, by a successor in that capacity, by a supervisory 
official of either, by the Classification Adviser, or by any other 
official specifically designated by the Deputy Director. Contractor 
personnel do not have authority to downgrade or declassify.
    (2) The Director of Security shall maintain a record of ACDA 
officials specifically designated by the Deputy Director as 
declassification authorities.

[[Page 53161]]

    (d) Declassification after balancing public interest. It is 
presumed that information that continues to meet classification 
requirements requires continued protection. In exceptional cases, 
however, the need to protect such information may be outweighed by the 
public interest in disclosure of the information, and in these cases 
the information should be declassified. When such questions arise, they 
shall be referred to the ACDA official with Top Secret authority having 
primary jurisdiction over the information in question. That official, 
after consultation with the Public Affairs Adviser and the 
Classification Adviser, will determine whether the public interest in 
disclosure outweighs the damage to national security that reasonably 
could be expected from disclosure. If the determination is made that 
the information should be declassified and disclosed, that official 
will make such a recommendation to the Director or the Deputy Director 
who shall make the decision on declassification and disclosure.
    (e) Public dissemination of declassified information. 
Declassification of information is not authorization for its public 
disclosure. Previously classified information that is declassified may 
be subject to withholding from public disclosure under the FOIA, the 
Privacy Act, and various statutory confidentiality provisions.


Sec. 605.8  Mandatory declassification review.

    (a) Action on requests. (1) All requests to ACDA by a member of the 
public, a government employee, or an agency to declassify and release 
information shall result in a prompt declassification review of the 
information, provided the request describes the document or material 
containing the information with sufficient specificity to enable ACDA 
to locate it with a reasonable amount of effort.
    (2) If a request does not reasonably describe the information 
sought, the Classification Adviser will notify the requester that 
unless additional information is provided or the scope of the request 
is narrowed, no further action will be taken.
    (3) Mandatory declassification review requests should be directed 
to the Classification Adviser, U.S. Arms Control and Disarmament 
Agency, 320 21st St., NW., Washington, DC 20451.
    (4) If the request requires the rendering of services for which 
reasonable fees should be charged pursuant to the FOIA and ACDA 
regulations thereunder (22 CFR part 602), such fees shall be imposed at 
the FOIA schedule rates and the requester shall be so notified.
    (5) The Classification Adviser, in consultation with appropriate 
ACDA bureaus and offices, will determine whether, under the Executive 
Order, the requested information may be declassified, in whole or in 
part, and will promptly make any declassified information available to 
the requester, unless the information is exempt from disclosure under 
some other provision of law.
    (b) Appeals from denials. (1) If it is determined that 
declassification of the information requested is not warranted, in 
whole or in part, the requester shall be given a brief statement as to 
the reasons for the decision, a notice of the right to appeal to the 
Deputy Director, and a notice that any such appeal must be filed with 
ACDA within 60 days. Appeals shall be addressed to: Deputy Director, 
U.S. Arms Control and Disarmament Agency, 320 21st St., NW., 
Washington, DC 20451.
    (2) The Deputy Director shall act within 30 days of receipt on all 
appeals of denials of requests for declassification. The Deputy 
Director shall determine whether continued classification is required 
in whole or in part. If the Deputy Director determines that continued 
classification is required under the Executive Order, the requester 
shall be so notified and informed of the reasons therefor. The 
requester shall also be advised of the right to appeal any denial to 
the Interagency Security Classification Appeals Panel in accordance 
with section 5.4 of the Executive Order.
    (c) Information classified by another agency. When ACDA receives a 
request for information in its custody that was classified by another 
agency, the Classification Adviser shall forward the request together 
with a copy of the document containing the information requested to the 
classifying agency for review and direct response to the requester. 
Unless the agency that classified the information objects on the ground 
that its association with the information requires protection, the 
Classification Adviser shall also notify the requester of the referral.
    (d) Confirmation of existence or nonexistence of document. In 
responding to a request for mandatory declassification review, the 
Classification Adviser may refuse to confirm or deny the existence or 
nonexistence of a document if the fact of its existence or nonexistence 
would itself be classifiable under the Executive Order.


Sec. 605.9  Systematic declassification review.

    The Classification Adviser shall be responsible for conducting a 
program for systematic declassification review of historically valuable 
records that were exempted from the automatic declassification 
provisions of section 3.4 of the Executive Order. The FOIA officer 
shall prioritize such review on the basis of the recommendations of the 
Information Security Policy Advisory Council established under section 
5.5 of the Executive Order and on the degree of researcher interest and 
likelihood of declassification upon review.


Sec. 605.10  Safeguarding.

    Specific controls on the use, processing, storage, reproduction and 
transmittal of classified information within ACDA that provide adequate 
protection and prevent access by unauthorized persons are contained in 
Part 1 of the ACDA Security Classification Handbook, an internal 
guidance manual, and shall be followed by ACDA personnel and, when 
appropriate, by contractors.

    Dated: September 24, 1996.
Mary Elizabeth Hoinkes,
General Counsel.
[FR Doc. 96-25830 Filed 10-9-96; 8:45 am]
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