This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

61211 

Vol. 70, No. 203 

Friday, October 21, 2005 

OFFICE OF PERSONNEL 

MANAGEMENT 

5 CFR Part 532 

RIN 3206–AK83 

Prevailing Rate Systems; Redefinition 

of the Central North Carolina 

Appropriated Fund Wage Area 

AGENCY: Office of Personnel 

Management. 

ACTION: Final rule. 

SUMMARY: The Office of Personnel 

Management is issuing a final rule to 

redefine the geographic boundaries of 

the Central North Carolina Federal Wage 

System (FWS) appropriated fund wage 

area. The final rule removes Edgecombe 

and Wilson Counties, NC, from the 

survey area and adds Hoke County, NC, 

to the survey area. The redefinition of 

Edgecombe, Hoke, and Wilson Counties 

aligns the geographic definition of the 

Central North Carolina wage area more 

closely with the regulatory criteria used 

to define FWS wage areas. 

DATES: This rule is effective on 

November 21, 2005. 

FOR FURTHER INFORMATION CONTACT: 

Madeline Gonzalez, (202) 606–2838; email pay-performance-policy@opm.gov; 

or FAX: (202) 606–4264. 

SUPPLEMENTARY INFORMATION: On May 

18, 2005, the Office of Personnel 

Management (OPM) issued a proposed 

rule (70 FR 28488) to remove 

Edgecombe and Wilson Counties, NC, 

from the Central North Carolina survey 

area and add Hoke County, NC, to the 

survey area. The proposed rule had a 

30-day comment period, during which 

OPM received no comments. 

Regulatory Flexibility Act 

I certify that these regulations will not 

have a significant economic impact on 

a substantial number of small entities 

because they will affect only Federal 

agencies and employees. 

List of Subjects in 5 CFR Part 532 

Administrative practice and 

procedure, Freedom of information, 

Government employees, Reporting and 

recordkeeping requirements, Wages. 

Office of Personnel Management. 

Linda M. Springer, 

Director. 

■ Accordingly, the Office of Personnel 

Management is amending 5 CFR part 

532 as follows: 

PART 532—PREVAILING RATE 

SYSTEMS 

■ 1. The authority citation for part 532 

continues to read as follows: 

Authority: 5 U.S.C. 5343, 5346; § 532.707 

also issued under 5 U.S.C. 552. 

■ 2. In appendix C to subpart B, the 

wage area listing for the State of North 

Carolina is amended by revising the 

listing for Central North Carolina to read 

as follows: 

Appendix C to Subpart B of Part 532— 

Appropriated Fund Wage and Survey 

Areas 

* * * * * 

North Carolina 

Central North Carolina 

Survey Area 

North Carolina: Cumberland, Durham, 

Harnett, Hoke, Johnston, Orange, Wake, 

Wayne. 

Area of Application. Survey area plus: 

North Carolina: Alamance, Bladen, Caswell, 

Chatham, Davidson, Davie, Edgecombe, 

Franklin, Forsyth, Granville, Guilford, 

Halifax, Lee, Montgomery, Moore, Nash, 

Northampton, Person, Randolph, 

Richmond, Robeson, Rockingham, 

Sampson, Scotland, Stokes, Surry, Vance, 

Warren, Wilson, and Yadkin. 

South Carolina: Dillon, Marion, and 

Marlboro. 

* * * * * 

[FR Doc. 05–21050 Filed 10–20–05; 8:45 am] 

BILLING CODE 6325–39–U 

DEPARTMENT OF HOMELAND 

SECURITY 

Office of the Secretary 

6 CFR Part 7 

RIN 1601–AA02 

Classified National Security 

Information 

AGENCY: Office of the Secretary, DHS. 

ACTION: Final rule. 

SUMMARY: This final rule revises the 

Department of Homeland Security’s 

procedures for managing classified 

national security information. This rule 

implements procedures required under 

Executive Order 12958, ‘‘Classified 

National Security Information,’’ as 

amended by Executive Order 13292, and 

amends the initial procedures 

established when the Department was 

created in January 2003. Further, this 

rule delegates to the Chief Security 

Officer of the Department of Homeland 

Security the responsibility of serving as 

the ‘‘Senior Agency Official’’ pursuant 

to Executive Order 12958, as amended. 

DATES: This final rule is effective 

October 21, 2005. 

FOR FURTHER INFORMATION CONTACT: John 

J. Young, Chief, Administrative Security 

Division, Office of Security, Department 

of Homeland Security, (202) 772–9614 

(not a toll free call). 

SUPPLEMENTARY INFORMATION: 

I. Background 

On November 25, 2002, the President 

signed into law the Homeland Security 

Act of 2002, Public Law 107–296, 116 

Stat. 2135 (6 U.S.C. 101 et seq.) (HSA), 

creating the Department of Homeland 

Security (DHS). DHS is comprised of 22 

Federal agencies brought together for 

the common goals of preventing terrorist 

attacks in the United States, reducing 

the vulnerability of the United States to 

terrorist attacks, and minimizing 

damage and assisting in recovery from 

attacks that occur in the United States. 

DHS came into existence on January 

24, 2003 under section 4 of the HSA, 

116 Stat. at 2142 (6 U.S.C. 101 note). In 

order to facilitate public interaction 

with DHS’s Office of the Secretary and 

to meet the mandate set forth in 

Executive Order 12958, as amended, 

DHS issued an interim final rule to 

establish an initial set of procedures for 

61212 Federal Register / Vol. 70, No. 203 / Friday, October 21, 2005 / Rules and Regulations 

the classification, safeguarding and 

declassification of classified national 

security information. 68 FR 4703 (Jan. 

27, 2003). Because the procedures 

implemented under the January 27, 

2003 interim final rule were determined 

by DHS to be agency procedural rules, 

the interim rule was exempt from prior 

notice and public comment under the 

Administrative Procedure Act (APA) (5 

U.S.C. 553) and became effective upon 

publication. 

On March 25, 2003, the President 

issued Executive Order 13292, 68 FR 

15315 (March 28, 2003), which further 

amended Executive Order 12958. 

Executive Order 12958, as amended, 

further directed Federal agencies to 

designate a Senior Agency Official to 

direct and administer the program for 

handling classified national security 

information. Among the responsibilities 

of the Senior Agency Official is the 

promulgation of implementing 

regulations that are required to be 

published in the Federal Register to the 

extent such regulations affect the public. 

DHS is promulgating this final rule, 

consistent with the mandates set forth 

under Executive Order 12958, as 

amended, to establish procedures, and 

revise existing DHS procedures for the 

classification, safeguarding and 

declassification of classified national 

security information. This final rule is 

consistent with similar rules of other 

Executive agencies relating to 

procedures for the classification, 

safeguarding and declassification of 

classified national security information. 

II. Analysis of This Final Rule 

This final rule establishes the 

procedures necessary for DHS to fulfill 

its obligations under Executive Order 

12958, as amended, ‘‘Classified National 

Security Information.’’ This final rule is 

not intended to address or satisfy 

obligations mandated to the Department 

under Executive Orders 13311, 

Homeland Security Information 

Sharing, 68 FR 45149 (July 31, 2003) or 

Executive Order 13356, Strengthening 

the Sharing of Terrorism Information to 

Protect Americans, 69 FR 53599 

(September 1, 2004). 

Subpart A—Administration 

Subpart A delegates responsibility for 

administration of the DHS classification 

management program to the Chief 

Security Officer who shall act in the 

capacity of ‘‘Senior Agency Official’’ as 

defined in E.O. 12958, as amended. This 

delegation had been previously assigned 

to the Under Secretary for Information 

Analysis and Infrastructure Protection 

(IAIP) under the predecessor DHS 

Interim Final Rule dated January 27, 

2003. It also mandates responsibility to 

the components for designation of a 

security officer/security liaison to 

implement and oversee the program at 

each component. Subpart A sets forth 

potential sanctions that may be imposed 

pursuant to E.O. 12958, as amended. 

These sanctions are independent of 

criminal penalties under 18 U.S.C. 371, 

792–798, 1001; the Act of September 23, 

1950, ch. 1024, tit. I, section 4, 64 Stat. 

991, as amended (50 U.S.C. 783); and 

the National Security Act of 1947, ch. 

343, tit. VI, section 601, as added by the 

Intelligence Identities Protection Act of 

1982, Public Law 97–200, section 2, 96 

Stat. 122 (June 23, 1982), as amended 

(50 U.S.C. 421), or other laws. Each of 

these provisions of law may impose 

sanctions against persons who commit a 

violation in the handling of classified 

information and it outlines policy for 

the introduction of classified 

information into judicial proceedings. 

Subpart B—Classified Information 

Subpart B provides DHS policy on the 

classification and declassification of 

national security information and 

provisions for the release of classified 

information to uncleared persons in an 

emergency. Subpart B also provides the 

DHS processes for challenging the 

classification of information and, as it 

applies to the public, submitting a 

request for a mandatory review of 

classified information for 

declassification and public release. It 

also establishes the DHS Classification 

Appeals Panel (DHS/CAP) for the 

purpose of reviewing appeals of denial 

for declassification. 

III. Regulatory History 

Administrative Procedure Act 

DHS is implementing this rule 

without notice and the opportunity for 

public comment as this rule involves 

DHS management and organization, and 

DHS internal procedures for the 

classification and handling of classified 

national security information. 

Therefore, this rule is exempt from the 

rulemaking requirements under 5 U.S.C. 

553 pursuant to the exclusions in 

section 553(a). Further, this rule 

generally parallels the procedures 

currently used by other agencies to 

fulfill their obligations under Executive 

Order 12958, as amended, regarding 

classified national security information. 

Implementation of this rule without 

notice and the opportunity for public 

comment is warranted also under the 

‘‘good cause’’ standard found under 5 

U.S.C. 553(b) because it implements 

only national security interests relating 

to classified information and does not 

affect the rights of the general public. 

For the same reasons, the Department 

has determined that this final rule 

should be issued without a delayed 

effective date pursuant to 5 U.S.C. 

553(d)(3). 

Regulatory Flexibility Act 

DHS, in accordance with the 

Regulatory Flexibility Act, 5 U.S.C. 

605(b), has reviewed this final rule and, 

by approving it, certifies that it will not 

have a significant economic impact on 

a substantial number of small entities 

because it pertains to personnel and 

administrative matters affecting the 

Department. Further, a Regulatory 

Flexibility Analysis is not required for 

this final rule because the Department 

was not required to publish a general 

notice of proposed rulemaking for this 

matter. 

Executive Order 12866 

This rule has been drafted and 

reviewed in accordance with Executive 

Order 12866, Regulatory Planning and 

Review, section 1(b), Principles of 

Regulation. This rule is not a significant 

regulatory action under section 3(f) of 

Executive Order 12866. 

Executive Order 12988 

This regulation meets the applicable 

standards set forth in sections 3(a) and 

3(b)(2) of Executive Order 12988, Civil 

Justice Reform. 

Executive Order 13132 

This rule will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with Executive Order 13132, 

DHS has determined that this rule does 

not have sufficient federalism 

implications to warrant the preparation 

of a federalism summary impact 

statement. 

Unfunded Mandates Reform Act of 1995 

This rule will not result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any one year, and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions are 

necessary under the provisions of the 

Unfunded Mandates Reform Act of 

1995, 2 U.S.C. 1501 et seq. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

This rule is not a major rule as 

defined by section 251 of the Small 

Federal Register / Vol. 70, No. 203 / Friday, October 21, 2005 / Rules and Regulations 61213 

Business Regulatory Enforcement 

Fairness Act of 1996 (SBREFA), 5 U.S.C. 

804. This rule will not result in an 

annual effect on the economy of $100 

million or more, a major increase in 

costs or prices, or significant adverse 

effects on competition, employment, 

investment, productivity, innovation, or 

the ability of United States-based 

enterprises to compete with foreignbased enterprises in domestic and 

export markets. 

National Environmental Policy Act of 

1969 

DHS has reviewed this action for 

purposes of the National Environmental 

Policy Act of 1969 (NEPA) (42 U.S.C. 

4321–4347) and has determined that 

this action will not have a significant 

effect on the human environment. 

Executive Order 12958, as Amended 

This Final Rule has been reviewed by 

the Information Security Oversight 

Office of the National Archives and 

Records Administration, pursuant to 

Executive Order 12958, as amended. 

List of Subjects in 6 CFR Part 7 

Classified information, Organization, 

functions, and authority delegations. 

■ Accordingly, for the reasons set forth 

above, 6 CFR chapter I, part 7, is revised 

to read as follows: 

PART 7—CLASSIFIED NATIONAL 

SECURITY INFORMATION 

Sec. 

7.1 Purpose. 

7.2 Scope. 

7.3 Definitions. 

Subpart A—Administration 

7.10 Authority of the Chief Security Officer, 

Office of Security. 

7.11 Components’ responsibilities. 

7.12 Violations of classified information 

requirements. 

7.13 Judicial proceedings. 

Subpart B—Classified Information 

7.20 Classification and declassification 

authority. 

7.21 Classification of information, 

limitations. 

7.22 Classification pending review. 

7.23 Emergency release of classified 

information. 

7.24 Duration of classification. 

7.25 Identification and markings. 

7.26 Derivative classification. 

7.27 Declassification and downgrading. 

7.28 Automatic declassification. 

7.29 Documents of permanent historical 

value. 

7.30 Classification challenges. 

7.31 Mandatory review for declassification 

requests. 

Authority: 5 U.S.C. 301; Pub. L. 107–296, 

116 Stat. 2135 (6 U.S.C. 101); E.O. 12958, 60 

FR 19825, 3 CFR, 1995 Comp., p. 333; E.O. 

13142, 64 FR 66089, 3 CFR, 1999 Comp., p. 

236; 32 CFR part 2001. 

§ 7.1 Purpose. 

The purpose of this part is to ensure 

that information within the Department 

of Homeland Security (DHS) relating to 

the national security is classified, 

safeguarded, and declassified pursuant 

to the provisions of Executive Order 

12958, as amended, and implementing 

directives from the Information Security 

Oversight Office (ISOO) of the National 

Archives and Records Administration 

(NARA). 

§ 7.2 Scope. 

(a) This part applies to all employees, 

detailees and non-contractor personnel 

outside the Executive Branch who are 

granted access to classified information 

by the DHS, in accordance with the 

standards in Executive Order 12958, as 

amended, and its implementing 

directives. 

(b) This part does not apply to 

contractors, grantees and other 

categories of personnel falling under the 

purview of Executive Order 12829, 

National Industrial Security Program, 

and its implementing directives. 

(c) This part is independent of and 

does not affect any classification 

procedures or requirements of the 

Atomic Energy Act of 1954, as amended 

(42 U.S.C. 2011 et seq). 

(d) This part does not, and is not 

intended to, create any right to judicial 

review, or any other right or benefit or 

trust responsibility, substantive or 

procedural, enforceable by a party 

against the United States, its agencies or 

instrumentalities, its officers or 

employees, or any other person. This 

part creates limited rights to 

administrative review of decisions. This 

part does not, and is not intended to, 

create any right to judicial review of 

administrative action. 

§ 7.3 Definitions. 

The terms defined or used in 

Executive Order 12958, as amended, 

and the implementing directives in 32 

CFR parts 2001 and 2004, are applicable 

to this part. 

Subpart A—Administration 

§ 7.10 Authority of the Chief Security 

Officer, Office of Security. 

(a) The DHS Chief Security Officer 

(hereafter ‘‘Chief Security Officer’’) is 

designated as the Senior Agency Official 

as required by section 5.4(d) of 

Executive Order 12958, as amended, 

and, except as specifically provided 

elsewhere in this part, is authorized to 

administer the DHS Classified National 

Security Information program pursuant 

to Executive Order 12958, as amended. 

(b) The Chief Security Officer shall, 

among other actions: 

(1) Oversee and administer the DHS’s 

program established under Executive 

Order 12958, as amended; 

(2) Promulgate implementing 

regulations; 

(3) Establish and maintain 

Department-wide security education 

and training programs; 

(4) Establish and maintain an ongoing 

self-inspection program including the 

periodic review and assessment of the 

DHS’s classified product; 

(5) Establish procedures to prevent 

unnecessary access to classified 

information, including procedures that: 

(i) Require that a need for access to 

classified information is established 

before initiating administrative 

procedures to grant access; and 

(ii) Ensure that the number of persons 

granted access to classified information 

is limited to the minimum necessary for 

operational and security requirements 

and needs; 

(6) Develop special contingency plans 

for the safeguarding of classified 

information used in or near hostile or 

potentially hostile areas; 

(7) Coordinate with the DHS Chief 

Human Capital Officer, as appropriate to 

ensure that the performance contract or 

other system used to rate personnel 

performance includes the management 

of classified information as a critical 

element or item to be evaluated in the 

rating of: 

(i) Original classification authorities; 

(ii) Security managers or security 

specialists; and 

(iii) All other personnel whose duties 

significantly involve the creation or 

handling of classified information; 

(8) Account for the costs associated 

with implementing this part and report 

the cost to the Director of ISOO; 

(9) Assign in a prompt manner 

personnel to respond to any request, 

appeal, challenge, complaint, or 

suggestion concerning Executive Order 

12958, as amended, that pertains to 

classified information that originated in 

a DHS component that no longer exists 

and for which there is no clear 

successor in function; 

(10) Report violations, take corrective 

measures and assess appropriate 

sanctions as warranted, in accordance 

with Executive Order 12958, as 

amended; 

(11) Overseeing DHS participation in 

special access programs authorized 

under Executive Order 12958, as 

amended; 

(12) Direct and administer DHS’s 

personnel security program in 

61214 Federal Register / Vol. 70, No. 203 / Friday, October 21, 2005 / Rules and Regulations 

accordance with Executive Order 12968 

and other applicable law; 

(13) Direct and administer DHS 

implementation and compliance with 

the National Industrial Security Program 

in accordance with Executive Order 

12829 and other applicable guidance; 

and 

(14) Perform any other duties as the 

Secretary may designate. 

(c) The Chief Security Officer shall 

maintain a current list of all officials 

authorized pursuant to this part to 

originally classify or declassify 

documents. 

§ 7.11 Components’ responsibilities. 

Each DHS component shall appoint a 

security officer or security liaison to 

implement this part. the security officer/ 

security liaison shall: 

(a) Implement, observe, and enforce 

security regulations or procedures 

within their component with respect to 

the classification, declassification, 

safeguarding, handling, and storage of 

classified national security information; 

(b) Report violations of the provisions 

of this regulation to the Chief Security 

Officer committed by employees of their 

component, as required; 

(c) Ensure that employees of their 

component acquire adequate security 

education and training, as required by 

the DHS classified information security 

procedures; 

(d) Continuously review the 

requirements for personnel access to 

classified information as a part of the 

continuous need-to-know evaluation, 

and initiate action to administratively 

withdraw or reduce the level of access 

authorized, as appropriate; and 

(e) Cooperate fully with any request 

from the Chief Security Officer for 

assistance in the implementation of this 

part. 

§ 7.12 Violations of classified information 

requirements. 

(a) Any person who suspects or has 

knowledge of a violation of this part, 

including the known or suspected loss 

or compromise of classified information, 

shall promptly report such violations or 

possible violations, pursuant to 

requirements set forth in DHS 

directives. 

(b) DHS employees and detailees may 

be reprimanded, suspended without 

pay, terminated from classification 

authority, suspended from or denied 

access to classified information, or 

subject to other sanctions in accordance 

with applicable law and DHS 

regulations or directives if they: 

(1) Knowingly, willfully, or 

negligently disclose to unauthorized 

persons information properly classified 

under Executive Order 12958, as 

amended, or its predecessor orders; 

(2) Knowingly, willfully, or 

negligently classify or continue the 

classification of information in violation 

of Executive Order 12958, as amended, 

or its implementing directives; or 

(3) Knowingly, willfully, or 

negligently violate any other provision 

of Executive Order 12958, as amended, 

or DHS implementing directives, or; 

(4) Knowingly, willfully, or 

negligently grant eligibility for, or allow 

access to, classified information in 

violation of Executive Order 12958, or 

its implementing directives, this part, or 

DHS implementing directives 

promulgated by the Chief Security 

Officer. 

§ 7.13 Judicial proceedings. 

(a) Any DHS official or organization 

receiving an order or subpoena from a 

Federal or State court, or an 

administrative subpoena from a Federal 

agency, to produce classified 

information (see 6 CFR 5.41 through 

5.49), required to submit classified 

information for official DHS litigative 

purposes, or receiving classified 

information from another organization 

for production of such in litigation, 

shall notify the Office of the General 

Counsel, unless the demand for 

production is made by the Office of the 

General Counsel, and immediately 

determine from the agency originating 

the classified information whether the 

information can be declassified. If 

declassification is not possible, DHS 

representatives will take appropriate 

action to protect such information, 

pursuant to the provisions of this 

section. 

(b) If a determination is made to 

produce classified information in a 

judicial proceeding in any manner, the 

DHS General Counsel attorney, in 

conjunction with the Department of 

Justice, shall take appropriate steps to 

protect classified information in judicial 

proceedings and retrieve the 

information when the information is no 

longer required in such judicial 

proceedings, in accordance with the 

Department of Justice procedures, and 

in Federal criminal cases, pursuant to 

the requirements of Classified 

Information Procedures Act (CIPA), 

Public Law 96–456, 94 Stat. 2025, (18 

U.S.C. App.), and the ‘‘Security 

Procedures Established Pursuant to 

Public Law 96–456, 94 Stat. 2025, by the 

Chief Justice of the United States for the 

Protection of Classified Information,’’

and other applicable authorities. 

Subpart B—Classified Information 

§ 7.20 Classification and declassification 

authority. 

(a) Top Secret original classification 

authority may only be exercised by the 

Secretary of Homeland Security and by 

officials to whom such authority is 

delegated in writing by the Secretary. 

The Chief Security Officer, as the Senior 

Agency Official, is delegated authority 

to originally classify information up to 

and including Top Secret. No official 

who is delegated Top Secret original 

classification authority by the Secretary 

may further delegate such authority. 

(b) The Chief Security Officer may 

delegate Secret and Confidential 

original classification authority to other 

officials determined to have frequent 

need to exercise such authority. No 

official who is delegated original 

classification authority by the Secretary 

or the Chief Security Officer may further 

delegate such authority. 

(c) Officials authorized to classify 

information at a specified level are also 

authorized to classify information at a 

lower level. In the absence of an official 

authorized to exercise classification 

authority, the person designated to act 

in lieu of such official may exercise the 

official’s classification authority. 

§ 7.21 Classification of information, 

limitations. 

(a) Information may be originally 

classified only if all of the following 

standards are met: 

(1) An original classification authority 

is classifying the information; 

(2) The information is owned by, 

produced by or for, or is under the 

control of the United States 

Government; 

(3) The information falls within one 

or more of the categories of information 

specified in section 1.4 of Executive 

Order 12958, as amended; and 

(4) The original classification 

authority determines that the 

unauthorized disclosure of the 

information reasonably could be 

expected to result in damage to the 

national security and such official is 

able to identify or describe the damage. 

(b) Information shall be classified as 

Top Secret, Secret, or Confidential in 

accordance with and in compliance 

with the standards and criteria in 

Executive Order 12958, as amended. No 

other terms shall be used to identify 

United States classified information 

except as otherwise provided by statute. 

(c) Information shall not be classified 

in order to: 

(1) Conceal inefficiency, violations of 

law, or administrative error; 

(2) Prevent embarrassment to a 

person, organization, or agency; 

Federal Register / Vol. 70, No. 203 / Friday, October 21, 2005 / Rules and Regulations 61215 

(3) Restrain competition; 

(4) Prevent or delay release of 

information that does not require 

protection in the interest of national 

security. 

(d) Information may be reclassified 

after it has been declassified and 

released to the public under proper 

authority only in accordance with the 

following conditions: 

(1) The reclassification action is taken 

under the personal authority and with 

the written approval of the Secretary or 

Deputy Secretary of Homeland Security, 

based on the determination that the 

reclassification of the information is 

necessary in the interest of the national 

security; 

(2) The reclassification of the 

information meets the standards and 

criteria for classification pursuant to 

Executive Order 12958, as amended; 

(3) The information may be 

reasonably recovered; and 

(4) The reclassification action is 

reported promptly to the Director of 

ISOO. 

(e) Information that has not 

previously been disclosed to the public 

under proper authority may be 

classified or reclassified after DHS has 

received a request for it under the 

Freedom of Information Act (5 U.S.C. 

552), the Privacy Act of 1974 (5 U.S.C. 

552a), or the mandatory review 

provisions of Executive Order 12958, as 

amended, section 3.5. When it is 

necessary to classify or reclassify such 

information, it shall be forwarded to the 

Chief Security Officer and classified or 

reclassified only at the direction of the 

Secretary or Deputy Secretary of 

Homeland Security. 

§ 7.22 Classification pending review. 

(a) Whenever persons who do not 

have original classification authority 

originate or develop information that 

they believe requires immediate 

classification and safeguarding, and no 

authorized classifier is available, that 

person shall: 

(1) Safeguard the information in a 

manner appropriate for the 

classification level they believe it to be; 

(2) Apply the appropriate overall 

classification markings; and 

(3) Within five working days, securely 

transmit the information to the 

organization that has appropriate 

subject matter interest and classification 

authority. 

(b) When it is not clear which 

component would be the appropriate 

original classifier, the information shall 

be sent to the Chief Security Officer to 

determine the appropriate organization. 

(c) The organization with 

classification authority shall decide 

within 30 days whether to classify the 

information. 

§ 7.23 Emergency release of classified 

information. 

(a) The Secretary of Homeland 

Security has delegated to certain DHS 

employees the authority to disclose 

classified information to an individual 

or individuals not otherwise routinely 

eligible for access in emergency 

situations when there is an imminent 

threat to life or in defense of the 

homeland. 

(b) In exercising this authority, the 

delegees shall adhere to the following 

conditions: 

(1) Limit the amount of classified 

information disclosed to a minimum to 

achieve the intended purpose; 

(2) Limit the number of individuals 

who receive it to only those persons 

with a specific need-to-know; 

(3) Transmit the classified 

information through approved 

communication channels by the most 

secure and expeditious method 

possible, or by other means deemed 

necessary in exigent circumstances; 

(4) Provide instructions about what 

specific information is classified and 

how it should be safeguarded. Physical 

custody of classified information must 

remain with an authorized Federal 

Government entity, in all but the most 

extraordinary circumstances as 

determined by the delegated official; 

(5) Provide appropriate briefings to 

the recipients on their responsibilities 

not to disclose the information and 

obtain from the recipients a signed DHS 

Emergency Release of Classified 

Information Non-disclosure Form. In 

emergency situations requiring 

immediate verbal release of information, 

the signed nondisclosure agreement 

memorializing the briefing may be 

received after the emergency abates; 

(6) Within 72 hours of the disclosure 

of classified information, or the earliest 

opportunity that the emergency permits, 

but no later than 7 days after the release, 

the disclosing authority must notify the 

DHS Chief Security Officer and the 

originating agency of the information 

disclosed. A copy of the signed 

nondisclosure agreements should be 

forwarded with the notification under 

this paragraph (b)(6), or as soon 

thereafter as practical. 

(7) Release of information pursuant to 

this authority does not constitute 

declassification of the information. 

(8) Authority to disclose classified 

information may not be further 

delegated. 

§ 7.24 Duration of classification. 

(a) At the time of original 

classification, original classification 

authorities shall apply a date or event in 

which the information will be 

automatically declassified. 

(b) The original classification 

authority shall attempt to establish a 

specific date or event not more than 10 

years after the date of origination in 

which the information will be 

automatically declassified. If the 

original classification authority cannot 

determine an earlier specific date or 

event it shall be marked for automatic 

declassification 10 years from the date 

of origination. 

(c) If the original classification 

authority determines that the sensitivity 

of the information requires classification 

beyond 10 years, it may be marked for 

automatic declassification for up to 25 

years from the date of original 

classification decision. 

(d) Original classification authorities 

do not have the authority to classify or 

retain the classification of information 

beyond 25 years from the date of 

origination. The only exception to this 

rule is when disclosure of the 

information could be expected to reveal 

the identity of a confidential human 

source or human intelligence source. In 

this instance, the information may be 

marked for declassification as ‘‘25X1–

Human,’’ indicating that the information 

is exempt from the ‘‘25 Year Rule’’ for 

automatic declassification. This marking 

is not authorized for use when the 

information pertains to non-human 

intelligence sources or intelligence 

methods. In all other instances, 

classification beyond 25 years shall only 

be authorized in accordance with § 7.28 

of this part and Executive Order 12958, 

as amended. 

§ 7.25 Identification and markings. 

(a) Classified information must be 

marked pursuant to the standards set 

forth in section 1.6 of Executive Order 

12958, as amended; 32 CFR part 2001, 

subpart B; and internal DHS guidance 

provided by the Chief Security Officer. 

(b) Foreign government information 

shall retain its original classification 

markings or be assigned a U.S. 

classification that provides a degree of 

protection at least equivalent to that 

required by the entity that furnished the 

information. 

(c) Information assigned a level of 

classification under predecessor 

Executive Orders shall remain classified 

at that level of classification, except as 

otherwise provided herein, i.e., the 

information is reclassified or 

declassified. 

§ 7.26 Derivative classification. 

(a) Derivative classification is defined 

as the incorporating, paraphrasing, 

61216 Federal Register / Vol. 70, No. 203 / Friday, October 21, 2005 / Rules and Regulations 

restating, or generating in a new form 

information that is already classified, 

and marking the newly developed 

material consistent with the 

classification markings that apply to the 

source information. Information is also 

derivatively classified when 

classification is based on instructions 

provided in a security classification 

guide. 

(b) Persons need not possess original 

classification authority to derivatively 

classify information based on source 

documents or classification guides. 

(c) Persons who apply derivative 

classification markings shall observe 

original classification decisions and 

carry forward to any newly created 

documents the pertinent classification 

markings. 

(d) Information classified derivatively 

from other classified information shall 

be classified and marked in accordance 

with the standards set forth in sections 

2.1 and 2.2 of Executive Order 12958, as 

amended, 32 CFR 2001.22, and internal 

DHS guidance provided by the Chief 

Security Officer. 

§ 7.27 Declassification and downgrading. 

(a) Classified information shall be 

declassified as soon as it no longer 

meets the standards for classification. 

Declassification and downgrading is 

governed by Part 3 of Executive Order 

12958, as amended, implementing ISOO 

directives at 32 CFR part 2001, subpart 

C, and applicable internal DHS 

direction provided by the Chief Security 

Officer. 

(b) Information shall be declassified 

or downgraded by the official who 

authorized the original classification if 

that official is still serving in the same 

position, the originator’s successor, or a 

supervisory official of either, or by 

officials delegated such authority in 

writing by the Secretary of Homeland 

Security or the Chief Security Officer. 

(c) It is presumed that information 

that continues to meet the classification 

requirements under Executive Order 

12958, as amended, requires continued 

protection. In some exceptional cases 

during declassification reviews, the 

need to protect classified information 

may be outweighed by the public 

interest in disclosure of the information, 

and in these cases the information 

should be declassified. If it appears that 

the public interest in disclosure of the 

information may outweigh the need to 

protect the information, the 

declassification reviewing official shall 

refer the information with a 

recommendation for decision to the 

Chief Security Officer. The Chief 

Security Officer shall review the 

information and make a 

recommendation to the Secretary on 

whether the public interest in disclosure 

outweighs the damage to national 

security that might reasonably be 

expected from disclosure. The Secretary 

shall decide whether to declassify the 

information. The decision of the 

Secretary shall be final. This provision 

does not amplify or modify the 

substantive criteria or procedures for 

classification or create any substantive 

or procedural rights subject to judicial 

review. 

(d) Each component shall develop 

schedules for declassification of records 

in the National Archives. 

§ 7.28 Automatic declassification. 

(a) Subject to paragraph (b) of this 

section, all classified information 

contained in records that are more than 

25 years old that have been determined 

to have permanent historical value shall 

be declassified automatically on 

December 31, 2006. Subsequently, all 

classified information in such records 

shall be automatically declassified not 

later than 25 years after the date of its 

original classification with the 

exception of specific information 

exempt from automatic declassification 

pursuant to section 3.3 (b) through (d) 

of Executive Order 12958, as amended. 

(b) At least 180 days before 

information is declassified 

automatically under this section, the 

Chief Security Officer shall notify the 

ISOO of any specific information that 

DHS proposes to exempt from automatic 

declassification. The notification shall 

include: 

(1) A description of the information; 

(2) An explanation of why the 

information is exempt from automatic 

declassification and must remain 

classified for a longer period of time; 

and 

(3) A specific date or event for 

declassification of the information 

whenever the information exempted 

does not identify a confidential human 

source or human intelligence source. 

(c) Proposed exemptions under this 

section shall be forwarded to the Chief 

Security Officer. When the Chief 

Security Officer determines the 

exemption request is consistent with 

this section, he or she will submit the 

exemption request to the Executive 

Secretary of the Interagency Security 

Classification Appeals Panel (ISCAP) for 

approval. 

(d) Declassification guides that 

narrowly and precisely define exempted 

information may be used to exempt 

information from automatic 

declassification. Declassification guides 

must include the exemption notification 

information detailed in paragraph (b) of 

this section, and be approved pursuant 

to paragraph (c) of this section. 

§ 7.29 Documents of permanent historical 

value. 

The original classification authority, 

to the greatest extent possible, shall 

declassify classified information 

contained in records determined to have 

permanent historical value under 44 

U.S.C. 2107 before they are accessioned 

into the National Archives. 

§ 7.30 Classification challenges. 

(a) Authorized holders of information 

classified by DHS who, in good faith, 

believe that specific information is 

improperly or unnecessarily classified 

are encouraged and expected to 

challenge the classification status of that 

information pursuant to section 1.8 of 

Executive Order 12958, as amended. 

Authorized holders may submit 

classification challenges in writing to 

the original classification authority with 

jurisdiction over the information in 

question. If an original classification 

authority cannot be determined, the 

challenge shall be submitted to the 

Chief Security Officer. The challenge 

need not be more specific than a 

question as to why the information is or 

is not classified, or is classified at a 

certain level. 

(b) If anonymity of the challenger is 

requested, the challenger may submit 

the challenge to the Office of Security. 

The Office of Security will act as an 

agent for the challenger and the identity 

of the challenger will be redacted. 

(c) The original classification 

authority shall promptly, and in no case 

later than 60 days, provide a written 

response to the submitter. The original 

classification authority may classify or 

declassify the information subject to the 

challenge and, if applicable, state 

specific reasons why the original 

classification determination was proper. 

If the original classification authority is 

not able to respond within 60 days, he 

or she shall inform the individual who 

filed the challenge in writing of that 

fact, and the anticipated determination 

date. 

(d) The individual challenging the 

classification will be notified of the 

determination made by the original 

classification authority and that the 

individual may appeal this 

determination to the Chief Security 

Officer. Upon receipt of such appeals, 

the Chief Security Officer shall convene 

a DHS Classification Appeals Panel 

(DHS/CAP). The DHS/CAP shall, at a 

minimum, consist of representatives 

from the Office of Security, the Office of 

General Counsel, and a representative 

from the component having jurisdiction 

Federal Register / Vol. 70, No. 203 / Friday, October 21, 2005 / Rules and Regulations 61217 

over the information. Additional 

members may be added as determined 

by the DHS Chief Security Officer. The 

DHS/CAP shall be chaired by the Chief 

Security Officer. 

(e) If the requester files an appeal 

through the DHS/CAP, and the appeal is 

denied, the requester shall be notified of 

the right to appeal the denial to the 

Interagency Security Classification 

Appeals Panel (ISCAP) pursuant to 

section 5.3 of Executive Order 12958, as 

amended, and the rules issued by the 

ISCAP pursuant to section 5.3 of 

Executive Order 12958, as amended. 

(f) Any individual who challenges a 

classification and believes that any 

action has been taken against him or her 

in retaliation or retribution because of 

that challenge shall report the facts to 

the Office of the Inspector General or 

other appropriate office. 

(g) Nothing in this section shall 

prohibit a person from informally 

challenging the classified status of 

information directly to the original 

classification authority. 

(h) Requests for review of classified 

material for declassification by persons 

other than authorized holders are 

governed by 6 CFR 7.31. 

§ 7.31 Mandatory review for 

declassification requests. 

(a) Any person may request that 

classified information be reviewed for 

declassification pursuant to the 

mandatory declassification review 

provisions of section 3.6 of Executive 

Order 12958, as amended. Such requests 

shall be sent to the Departmental 

Disclosure Officer, Privacy Office, 245 

Murray Lane, SW., Building 410, 

Washington, DC 20528. 

(b) The request must sufficiently 

describe the document or material with 

enough specificity to allow it to be 

located by the component with a 

reasonable amount of effort. When the 

description of the information in the 

request is deficient, the component shall 

solicit as much additional identifying 

information as possible from the 

requester. If the information or material 

requested cannot be obtained with a 

reasonable amount of effort, the 

component shall provide the requester, 

through the DHS Disclosure Officer, 

with written notification of the reasons 

why no action will be taken and of the 

requester’s right to appeal. 

(c) Requests for review of information 

that has been subjected to a 

declassification review request within 

the preceding two years shall not be 

processed. The DHS Disclosure Officer 

will notify the requester of such denial. 

(d) Requests for information exempted 

from search or review under sections 

701, 702, or 703 of the National Security 

Act of 1947, as added and amended (50 

U.S.C. 431 through 433), or other 

provisions of law, shall not be 

processed. The DHS Disclosure Officer 

will notify the requester of such denial. 

(e) If documents or material being 

reviewed for declassification under this 

section contain information that has 

been originally classified by another 

government agency, the reviewing 

authority shall notify the DHS 

Disclosure Officer. Unless the 

association of that organization with the 

requested information is itself classified, 

the DHS Disclosure Officer will then 

notify the requester of the referral. 

(f) A DHS component may refuse to 

confirm or deny the existence, or nonexistence, of requested information 

when its existence or non-existence, is 

properly classified. 

(g) DHS components shall make a 

final determination on the request as 

soon as practicable but within one year 

from receipt. When information cannot 

be declassified in its entirety, 

components shall make reasonable 

efforts to redact those portions that still 

meet the standards for classification and 

release those declassified portions of the 

requested information that constitute a 

coherent segment. 

(h) DHS components shall notify the 

DHS Disclosure Officer of the 

determination made in the processing of 

a mandatory review request. Such 

notification shall include the number of 

pages declassified in full; the number of 

pages declassified in part; and the 

number of pages where declassification 

was denied. 

(i) The DHS Disclosure Officer shall 

maintain a record of all mandatory 

review actions for reporting in 

accordance with applicable Federal 

requirements. 

(j) The mandatory declassification 

review system shall provide for 

administrative appeal in cases where 

the review results in the information 

remaining classified. The requester shall 

be notified of the results of the review 

and of the right to appeal the denial of 

declassification. To address such 

appeals, the DHS Disclosure Office shall 

convene a DHS Classification Appeals 

Panel (DHS/CAP). The DHS/CAP shall, 

at a minimum, consist of representatives 

from the Disclosure Office, the Office of 

Security, the Office of General Counsel, 

and a representative from the 

component having jurisdiction over the 

information. Additional members may 

be added as determined by the DHS 

Disclosure Officer. The DHS/CAP shall 

be chaired by the DHS Disclosure 

Officer. 

(k) If the requester files an appeal 

through the DHS/CAP, and the appeal is 

denied, the requester shall be notified of 

the right to appeal the denial to the 

ISCAP pursuant to section 5.3 of 

Executive Order 12958, as amended, 

and the rules issued by the ISCAP 

pursuant to section 5.3 of Executive 

Order 12958, as amended. 

Dated: October 8, 2005. 

Michael Chertoff, 

Secretary. 

[FR Doc. 05–21011 Filed 10–20–05; 8:45 am] 

BILLING CODE 4410–10–U 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 205 

[Docket Number TM–05–02] 

National Organic Program (NOP); 

Amendment to the National List of 

Allowed and Prohibited Substances 

(Livestock) 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This final rule amends the 

U.S. Department of Agriculture’s 

(USDA) National List of Allowed and 

Prohibited Substances (National List) to 

reflect one recommendation submitted 

to the Secretary by the National Organic 

Standards Board (NOSB) on March 3, 

2005. Consistent with the 

recommendation from the NOSB, this 

final rule revises the annotation of one 

substance on the National List, 

methionine, to extend its use in organic 

poultry production until October 21, 

2008. 

EFFECTIVE DATE: This rule becomes 

effective October 22, 2005. 

FOR FURTHER INFORMATION CONTACT: 

Arthur Neal, Director of Program 

Administration, Telephone: (202) 720–

3252; Fax: (202) 205–7808. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On December 21, 2000, the Secretary 

established, within the NOP regulations 

[7 CFR part 205], the National List 

(§§ 205.600 through 205.607). The 

National List identifies synthetic 

substances that are allowed and 

nonsynthetic substances that are 

prohibited in organic crop and livestock 

production. The National List also 

identifies nonsynthetic and synthetic 

substances that are allowed for use in 

certified handling operations. Under the