[Federal Register Volume 70, Number 203 (Friday, October 21, 2005)]
[Rules and Regulations]
[Pages 61211-61217]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-21011]


=======================================================================
-----------------------------------------------------------------------

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

[[Page 61212]]

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

[[Page 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 foreign-based 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.

0
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.


Sec.  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).


Sec.  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.


Sec.  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


Sec.  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

[[Page 61214]]

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.


Sec.  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.


Sec.  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.


Sec.  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


Sec.  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.


Sec.  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;

[[Page 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.


Sec.  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.


Sec.  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.


Sec.  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 Sec.  7.28 of this 
part and Executive Order 12958, as amended.


Sec.  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.


Sec.  7.26  Derivative classification.

    (a) Derivative classification is defined as the incorporating, 
paraphrasing,

[[Page 61216]]

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.


Sec.  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.


Sec.  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.


Sec.  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.


Sec.  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

[[Page 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.


Sec.  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 
non-existence, 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