[Federal Register Volume 69, Number 63 (Thursday, April 1, 2004)]
[Rules and Regulations]
[Pages 17052-17055]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-7317]


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NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

Information Security Oversight Office

32 CFR Part 2001

[Directive No. 1: Appendix A]


Publication of Revised Bylaws of the Interagency Security 
Classification Appeals Panel

AGENCY: Information Security Oversight Office (ISOO), National Archives 
and Records Administration (NARA).

ACTION: Final rule.

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SUMMARY: The Information Security Oversight Office, National Archives 
and Records Administration, is publishing a revision of the bylaws of 
the Interagency Security Classification Appeals Panel (ISCAP). The 
bylaws are revised in accordance with section 5.3(c) of Executive Order 
12958, as amended, ``Classified National Security Information.'' Under 
the terms of E.O. 12958, as amended, the Director of ISOO serves as 
Executive Secretary to the ISCAP.

EFFECTIVE DATE: April 1, 2004.

FOR FURTHER INFORMATION CONTACT: J. William Leonard, Executive 
Secretary, Interagency Security Classification Appeals Panel, 202-219-
5250.

SUPPLEMENTARY INFORMATION: The Interagency Security Classification 
Appeals Panel (ISCAP) performs several critical functions in 
implementing several provisions of E.O. 12958, ``Classified National 
Security Information,'' as amended. These include: (a) Deciding appeals 
brought by authorized persons who have filed classification challenges 
under section 1.8 of the amended Order; (b) approving, denying, or 
amending agency exemptions from automatic declassification, as provided 
in section 3.3(d) of the amended Order; and (c) deciding on appeals by 
parties whose requests for declassification of information under 
section 3.5 of the amended Order have been denied.
    These bylaws describe the procedures to be followed by individuals 
or organizations who wish to bring matters before the ISCAP, and the 
procedures that the ISCAP will follow to resolve these matters. The 
ISCAP first published its bylaws on March 15, 1996 (61 FR 10854).
    The ISCAP has revised its bylaws to reflect the March 25, 2003, 
amendment of E.O. 12958. While intelligence sources and methods 
information remain subject to the jurisdiction of the ISCAP, section 
5.3(f) of the amended Order recognizes the special authority and 
responsibility of the Director of Central Intelligence to protect such 
information. Of particular note, the revised ISCAP bylaws include a new 
article (see No. IX) which addresses section 5.3(f) of the amended 
Order.
    The appendix was inadvertently removed when we revised part 2001 
(see 68 FR 55168, September 22, 2003) and we are publishing an updated 
Appendix A.
    These bylaws are being issued in final without prior notice of 
proposed rulemaking because they are not subject to the Administrative 
Procedure Act (APA), 5 U.S.C. 551, et seq, The ISCAP

[[Page 17053]]

is not an ``agency'' subject to the APA. Rather, it was created ``for 
the sole purpose of advising and assisting the President in the 
discharge of his constitutional and discretionary authority to protect 
the national security of the United States.'' E.O. 12958, as amended, 
sec. 5.2(e). In Franklin v. Massachusetts, 505 U.S. 788, 800-01 (1992), 
the Supreme Court held that the President is not an agency under the 
APA, and therefore not subject to APA requirements or judicial review.

List of Subjects in 32 CFR Part 2001

    Classified information, Reporting and recordkeeping requirements.

CHAPTER XX--INFORMATION SECURITY OVERSIGHT OFFICE, NATIONAL ARCHIVES 
AND RECORDS ADMINISTRATION

0
Title 32 of the Code of Federal Regulations, chapter XX, is amended as 
follows:

PART 2001--CLASSIFIED NATIONAL SECURITY INFORMATION

0
1. The authority citation of part 2001 is revised to read as follows:

    Authority: Section 5.1 (a) and (b), and section 5.3, E.O. 12958, 
60 FR 19825, 3 CFR Comp., p. 333 as amended by E.O. 13292, 68 FR 
15315, March 28, 2003.


0
2. Part 2001 is amended by adding Appendix A to read as follows:

Appendix A to Part 2001--Interagency Security Classification Appeals 
Panel Bylaws

Article I. Purpose

    The purpose of the Interagency Security Classification Appeals 
Panel (ISCAP) and these bylaws is to fulfill the functions assigned 
to the ISCAP by Executive Order 12958, ``Classified National 
Security Information,'' as amended.

Article II. Authority

    Executive Order 12958, ``Classified National Security 
Information,'' as amended (hereafter the ``Order''), and its 
implementing directives.

Article III. Membership

    A. Primary Membership. Appointments under section 5.3(a) of the 
Order establish the primary membership of the ISCAP.
    B. Alternate Membership.
    1. Primary members are expected to participate fully in the 
activities of the ISCAP. The Executive Secretary shall request that 
each entity represented on the ISCAP also designate in writing 
addressed to the Chair an alternate or alternates to represent it on 
all occasions when the primary member is unable to participate. Such 
written designation must be made by the agency or office head 
represented on the ISCAP, or by their deputy or senior agency 
official for the Order. When serving for a primary member, an 
alternate member shall assume all the rights and responsibilities of 
that primary member, including voting.
    2. When a vacancy in the primary membership occurs, the 
designated alternate shall represent the agency or office until the 
agency or office head fills the vacancy. The Chair, working through 
the Executive Secretary, shall take all appropriate measures to 
encourage the agency or office head to fill a vacancy in the primary 
membership as quickly as possible.
    C. Liaison. The Executive Secretary shall request that each 
entity represented on the ISCAP also designate to the Chair in 
writing an individual or individuals (hereinafter referred to as 
``liaisons'') to serve as a liaison to the Executive Secretary in 
support of the primary member and alternate(s). Such written 
designation must be made by the agency or office head represented on 
the ISCAP, or by their deputy or senior agency official for the 
Order. These designated individuals shall meet at the call of the 
Executive Secretary.
    D. Chair. As provided in section 5.3(a) of the Order, the 
President shall select the Chair from among the primary members.
    E. Vice Chair. The members may elect from among the primary 
members a Vice Chair who shall:
    1. Chair meetings that the Chair is unable to attend; and
    2. Serve as Acting Chair during a vacancy in the Chair of the 
ISCAP.

Article IV. Meetings

    A. Purpose. The primary purpose of ISCAP meetings is to discuss 
and bring formal resolution to matters before the ISCAP.
    B. Frequency. As provided in section 5.3(a) of the Order, the 
ISCAP shall meet at the call of the Chair, who shall schedule 
meetings as may be necessary for the ISCAP to fulfill its functions 
in a timely manner. The Chair shall also convene the ISCAP when 
requested by a majority of its primary members.
    C. Quorum. Meetings of the ISCAP may be held only when a quorum 
is present. For this purpose, a quorum requires the presence of at 
least five primary or alternate members.
    D. Attendance. As determined by the Chair, attendance at 
meetings of the ISCAP shall be limited to those persons necessary 
for the ISCAP to fulfill its functions in a complete and timely 
manner. The members may arrange briefings by substantive experts 
from individual departments or agencies, after consultation with the 
Chair.
    E. Agenda. The Chair shall establish the agenda for all 
meetings. Potential items for the agenda may be submitted to the 
Chair by any member or the Executive Secretary. Acting through the 
Executive Secretary, the Chair will distribute the agenda and 
supporting materials to the members as soon as possible before a 
scheduled meeting.
    F. Minutes. The Executive Secretary shall be responsible for the 
preparation of each meeting's minutes, and the distribution of draft 
minutes to each member. The minutes will include a record of the 
members present at the meeting and the result of each vote. At the 
subsequent meeting of the ISCAP, the Chair will read or reference 
the draft minutes of the previous meeting. At that time the minutes 
will be corrected, as necessary, and approved by the membership and 
certified by the Chair. The approved minutes will be maintained 
among the records of the ISCAP.

Article V. Voting

    A. Motions. When a decision or recommendation of the ISCAP is 
required to resolve a matter before it, the Chair shall request or 
accept a motion for a vote. Any member, including the Chair, may 
make a motion for a vote. No second shall be required to bring any 
motion to a vote. A quorum must be present when a vote is taken.
    B. Eligibility. Only the members, including the Chair, may vote 
on a motion before the ISCAP, with each agency or office represented 
having one vote.
    C. Voting Procedures. Votes shall ordinarily be taken and 
tabulated by a show of hands.
    D. Passing a Motion. In response to a motion, members may vote 
affirmatively, negatively, or abstain from voting. Except as 
otherwise provided in these bylaws, a motion passes when it receives 
a majority of affirmative votes of the members voting. However, in 
no instance will the ISCAP reverse an agency's decision without the 
affirmative vote of at least a majority of the members present.
    E. Votes in a Non-meeting Context. The Chair may call for a vote 
of the membership outside the context of a formal ISCAP meeting. An 
alternate member may also participate in such a vote if the primary 
member cannot. The Executive Secretary shall record and retain such 
votes in a documentary form and immediately report the results to 
the Chair and other primary and alternate members.

Article VI. First Function: Appeals of Agency Decisions Regarding 
Classification Challenges

    In accordance with section 5.3(b) of the Order, the ISCAP shall 
decide on appeals by authorized persons who have filed 
classification challenges under section 1.8 of the Order.
    A. Jurisdiction. The ISCAP will consider appeals from 
classification challenges that otherwise meet the standards of the 
Order if:
    1. The appeal is filed in accordance with these bylaws;
    2. The appellant has previously challenged the classification 
action at the agency that originated or is otherwise responsible for 
the information in question in accordance with the agency's 
procedures or, if the agency has failed to establish procedures for 
classification challenges, by filing a written challenge directly 
with the agency head or designated senior agency official, as 
defined in section 6.1(ii) of the Order;
    3. The appellant has (a) Received a final agency decision 
denying his or her challenge; or (b) Not received (i) an initial 
written response to the classification challenge from the agency 
within 120 days of its filing, or (ii) a written response to an 
internal agency appeal within 90 days of the filing of the appeal;
    4. There is no action pending in the federal courts regarding 
the information in question; and
    5. The information in question has not been the subject of 
review by the federal

[[Page 17054]]

courts or the ISCAP within the past two years.
    B. Addressing of Appeals. Appeals should be addressed to: 
Executive Secretary, Interagency Security Classification Appeals 
Panel, Attn: Classification Challenge Appeals, c/o Information 
Security Oversight Office, National Archives and Records 
Administration, 7th and Pennsylvania Avenue, NW., Room 500, 
Washington, DC 20408. The appeal must contain enough information for 
the Executive Secretary to be able to obtain all pertinent documents 
about the classification challenge from the affected agency. No 
classified information should be included within the initial appeal 
document. The Executive Secretary will arrange for the transmittal 
of classified information from the agency after receiving the 
appeal. If it is impossible for the appellant to file an appeal 
without including classified information, prior arrangements must be 
made by contacting the Information Security Oversight Office.
    C. Timeliness of Appeals. An appeal to the ISCAP must be filed 
within 60 days of:
    1. The date of the final agency decision; or
    2. The agency's failure to meet the time frames established in 
paragraph (A)(3)(b) of this Article.
    D. Rejection of Appeal. If the Executive Secretary determines 
that the appeal does not meet the requirements of the Order or these 
bylaws, the Executive Secretary shall notify the appellant in 
writing that the appeal will not be considered by the ISCAP. The 
notification shall include an explanation of why the appeal is 
deficient.
    E. Preparation. The Executive Secretary shall notify the Chair, 
the designated senior agency official, and the primary member, 
alternate, or liaison of the affected agency(ies) when an appeal is 
lodged. Under the direction of the ISCAP, the Executive Secretary 
shall supervise the preparation of an appeal file, pertinent 
portions of which will be presented to the members of the ISCAP for 
their review prior to a vote on the appeal. The appeal file will 
eventually include all records pertaining to the appeal.
    F. Resolution of Appeals. The ISCAP may vote to affirm the 
agency's decision, to reverse the agency's decision in whole or in 
part, or to remand the matter to the agency for further 
consideration. A decision to reverse an agency's decision requires 
the affirmative vote of at least a majority of the members present.
    G. Notification. The Executive Secretary shall promptly notify 
in writing the appellant, the agency head, and designated senior 
agency official of the ISCAP's decision.
    H. Agency Appeals. Within 60 days of receipt of an ISCAP 
decision that reverses a final agency decision, the agency head may 
petition the President through the Assistant to the President for 
National Security Affairs to overrule the decision of the ISCAP.
    I. Protection of Classified Information. All persons involved in 
the appeal shall make every effort to minimize the inclusion of 
classified information in the appeal file. Any classified 
information contained in the appeal file shall be handled and 
protected in accordance with the Order and its implementing 
directives. Information being challenged for classification shall 
remain classified unless and until a final decision is made to 
declassify it. In no instance will the ISCAP declassify properly 
classified information solely because of an agency's failure to 
prescribe or follow appropriate procedures for handling 
classification challenges.
    J. Maintenance of File. The Executive Secretary shall maintain 
the appeal file among the records of the ISCAP.

Article VII. Second Function: Review of Agency Exemptions From 
Automatic Declassification

    In accordance with section 5.3(b) of the Order, the ISCAP shall 
approve, deny or amend agency exemptions from automatic 
declassification as provided in section 3.3(d) of the Order.
    A. Agency Notification of Exemptions. The agency head or 
designated senior agency official shall notify the Executive 
Secretary of agency exemptions in accordance with the requirements 
of the Order and its implementing directives. Agencies shall provide 
any additional information or justification that the Executive 
Secretary believes is necessary or helpful in order for the ISCAP to 
review and decide on the exemption. The agency head may seek relief 
from the ISCAP from any request for information by the Executive 
Secretary to which the agency objects.
    B. Preparation. The Executive Secretary shall notify the Chair 
of the agency submission. At the direction of the ISCAP, the 
Executive Secretary shall supervise the preparation of an exemption 
file, pertinent portions of which will be presented to the members 
of the ISCAP for their review prior to a vote on the exemptions. The 
exemption file will eventually include all records pertaining to the 
ISCAP's consideration of the agency's exemptions.
    C. Resolution. The ISCAP may vote to approve an agency 
exemption, to deny an agency exemption, to amend an agency 
exemption, or to remand the matter to the agency for further 
consideration. A decision to deny or amend an agency exemption 
requires the affirmative vote of a majority of the members present.
    D. Notification. The Executive Secretary shall promptly notify 
in writing the agency head and designated senior agency official of 
the ISCAP's decision.
    E. Agency Appeals. Within 60 days of receipt of an ISCAP 
decision that denies or amends an agency exemption, the agency head 
may petition the President through the Assistant to the President 
for National Security Affairs to overrule the decision of the ISCAP.
    F. Protection of Classified Information. Any classified 
information contained in the exemption file shall be handled and 
protected in accordance with the Order and its implementing 
directives. Information that the agency maintains is exempt from 
declassification shall remain classified unless and until a final 
decision is made to declassify it.
    G. Maintenance of File. The Executive Secretary shall maintain 
the exemption file among the records of the ISCAP.

Article VIII. Third Function: Appeals of Agency Decisions Denying 
Declassification Under Mandatory Review Provisions of the Order

    In accordance with section 5.3(b) of the Order, the ISCAP shall 
decide on appeals by parties whose requests for declassification 
under section 3.5 of the Order have been denied.
    A. Jurisdiction. The ISCAP will consider appeals from denials of 
mandatory review for declassification requests that otherwise meet 
the standards of the Order if:
    1. The appeal is filed in accordance with these bylaws;
    2. The appellant has previously filed a request for mandatory 
declassification review at the agency that originated or is 
otherwise responsible for the information in question in accordance 
with the agency's procedures or, if the agency has failed to 
establish procedures for mandatory review, by filing a written 
request directly with the agency head or designated senior agency 
official;
    3. The appellant has (a) Received a final agency decision 
denying his or her request; or (b) Not received (i) an initial 
decision on the request for mandatory declassification review from 
the agency within one year of its filing, or (ii) a final decision 
on an internal agency appeal within 180 days of the filing of the 
appeal;
    4. There is no action pending in the federal courts regarding 
the information in question; and
    5. The information in question has not been the subject of 
review by the federal courts or the ISCAP within the past two years.
    B. Addressing of Appeals. Appeals should be addressed to: 
Executive Secretary, Interagency Security Classification Appeals 
Panel, Attn: Mandatory Review Appeals, c/o Information Security 
Oversight Office, National Archives and Records Administration, 7th 
and Pennsylvania Avenue, NW., Room 500, Washington, DC 20408. The 
appeal must contain enough information for the Executive Secretary 
to be able to obtain all pertinent documents about the request for 
mandatory declassification review from the affected agency.
    C. Timeliness of Appeals. An appeal to the ISCAP must be filed 
within 60 days of:
    1. The date of the final agency decision; or
    2. The agency's failure to meet the time frames established in 
paragraph (A)(3)(b) of this Article.
    D. Rejection of Appeal. If the Executive Secretary determines 
that the appeal does not meet the requirements of the Order or these 
bylaws, the Executive Secretary shall notify the appellant in 
writing that the appeal will not be considered by the ISCAP. The 
notification shall include an explanation of why the appeal is 
deficient.
    E. Preparation. The Executive Secretary shall notify the Chair 
and the primary member, alternate, or liaison of the affected 
agency(ies) when an appeal is lodged. Under the direction of the 
ISCAP, the Executive Secretary shall supervise the preparation of an 
appeal file, pertinent portions of which will be presented to the 
members of the ISCAP for their review prior to a vote on the appeal. 
The appeal file will eventually include all records pertaining to 
the appeal.

[[Page 17055]]

    F. Narrowing Appeals. To expedite the resolution of appeals and 
minimize backlogs, the Executive Secretary is authorized to consult 
with appellants with the objective of narrowing or prioritizing the 
information subject to the appeal.
    G. Resolution of Appeals. The ISCAP may vote to affirm the 
agency's decision, to reverse the agency's decision in whole or in 
part, or to remand the matter to the agency for further 
consideration. A decision to reverse an agency's decision requires 
the affirmative vote of at least a majority of the members present.
    H. Notification. The Executive Secretary shall promptly notify 
in writing the appellant, the agency head, and designated senior 
agency official of the ISCAP's decision.
    I. Agency Appeals. Within 60 days of receipt of an ISCAP 
decision that reverses a final agency decision, the agency head may 
petition the President through the Assistant to the President for 
National Security Affairs to overrule the decision of the ISCAP.
    J. Protection of Classified Information. Any classified 
information contained in the appeal file shall be handled and 
protected in accordance with the Order and its implementing 
directives. Information that is subject to an appeal from an agency 
decision denying declassification under the mandatory review 
provisions of the Order shall remain classified unless and until a 
final decision is made to declassify it. In no instance will the 
ISCAP declassify properly classified information solely because of 
an agency's failure to prescribe or follow appropriate procedures 
for handling mandatory review for declassification requests and 
appeals.
    K. Maintenance of File. The Executive Secretary shall maintain 
the appeal file among the records of the ISCAP. All information 
declassified as a result of ISCAP action shall be available for 
inclusion within the databases delineated in section 3.7 of the 
Order.

Article IX. Information Owned or Controlled by the Director of Central 
Intelligence (DCI)

    Notwithstanding any conclusion reached by the ISCAP that 
information owned or controlled by the DCI should be declassified, 
if the DCI disagrees because he or she has made a determination as 
set forth in section 5.3(f) of the Order, and he or she so notifies 
the Panel, the information shall remain classified. The Panel 
expects notification to normally be made in writing within 60 days 
of receipt of the Panel's written notification of such a conclusion. 
In the event that the DCI requires additional time to provide 
notification to the Panel, the DCI, his or her deputy, or the DCI's 
primary or alternate Panel member, shall notify the Panel, in 
writing, of the need for additional time, not to exceed an 
additional 30 days. Following receipt of the DCI's determination, 
the Panel, by majority vote, or an agency head represented on the 
Panel, may petition the President, through the Assistant to the 
President for National Security Affairs, to reverse the DCI's 
determination. Such petitions must be made within 60 days of receipt 
of the DCI's determination. If the Panel has not been notified of 
the DCI's determination within 60 days (or if additional time is 
requested as outlined above, within 90 days) of the date that the 
DCI has been notified of the Panel's conclusion, the information 
shall be declassified, pending resolution of any appeals filed 
pursuant to section I of Article VIII of these bylaws.

Article X. AddItional Functions

    In its consideration of the matters before it, the ISCAP shall 
perform such additional advisory functions as are consistent with 
and supportive of the successful implementation of the Order.

Article XI. Support Staff

    As provided in section 5.3(a) of the Order, the Director of the 
Information Security Oversight Office will serve as Executive 
Secretary to the ISCAP, and the staff of the Information Security 
Oversight Office will provide program and administrative support for 
the ISCAP. The Executive Secretary will supervise the staff in this 
function pursuant to the direction of the Chair and ISCAP. On an as 
needed basis, the ISCAP may seek detailees from its member agencies 
to augment the staff of the Information Security Oversight Office in 
support of the ISCAP.

Article XII. Records

    A. Integrity of ISCAP Records. The Executive Secretary shall 
maintain separately documentary materials, regardless of their 
physical form or characteristics, that are produced by or presented 
to the ISCAP or its staff in the performance of the ISCAP's 
functions, consistent with applicable federal law.
    B. Referrals. Any Freedom of Information Act request or other 
access request for a document that originated within an agency other 
than the ISCAP shall be referred to that agency for processing.

Article XIII. Annual Reports to the President

    The ISCAP has been established for the sole purpose of advising 
and assisting the President in the discharge of his constitutional 
and discretionary authority to protect the national security of the 
United States (section 5.3(e) of the Order). As provided in section 
5.3(a) of the Order, pertinent information and data about the 
activities of the ISCAP shall be included in the Reports to the 
President issued by the Information Security Oversight Office. The 
Chair, in coordination with the other members of the ISCAP and the 
Executive Secretary, shall determine what information and data to 
include in each Report.

Article XIV. Approval, Amendment, and Publication of Bylaws

    The approval and amendment of these bylaws shall require the 
affirmative vote of at least four of the ISCAP's members. In 
accordance with the Order, the Executive Secretary shall submit the 
approved bylaws and their amendments for publication in the Federal 
Register.

    Dated: March 26, 2004.
J. William Leonard,
Director, Information Security Oversight Office.
[FR Doc. 04-7317 Filed 3-31-04; 8:45 am]
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