39926 Federal Register / Vol. 61, No. 148 / Wednesday, July 31, 1996 / Proposed Rules

(b) The ALJ may affirm, deny,

increase, or reduce the penalties or

assessments proposed by the Inspector

General.

(c) The ALJ will issue the initial

decision to all parties within 60 days

after the time for submission of posthearing briefs or reply briefs, if

permitted, has expired. The decision

will be accompanied by a statement

describing the right of any party to file

a notice of appeal with the DAB and

instructions for now to file such appeal.

If the ALJ cannot issue an initial

decision within the 60 days, the ALJ

will notify the parties of the reason for

the delay and will set a new deadline.

(d) Unless an appeal or request for

extension pursuant to § 498.221(a) is

filed with the DAB, the initial decision

of the ALJ becomes final and binding on

the parties 30 days after the ALJ serves

the parties with a copy of the decision.

If service is by mail, the date of service

will be deemed to be five days from the

date of mailing.

§ 498.221 Appeal to DAB.

(a) Any party may appeal the decision

of the ALJ to the DAB by filing a notice

of appeal with the DAB within 30 days

of the date of service of the initial

decision. The DAB may extend the

initial 30-day period for a period of time

not to exceed 30 days if a party files

with the DAB a request for an extension

within the initial 30-day period and

shows good cause.

(b) If a party files a timely notice of

appeal with the DAB, the ALJ will

forward the record of the proceeding to

the DAB.

(c) A notice of appeal will be

accompanied by a written brief

specifying exceptions to the initial

decision and reasons supporting the

exceptions, and identifying which

finding of fact and conclusions of law

the party is taking exception to. Any

party may file a brief in opposition to

exceptions, which may raise any

relevant issue not addressed in the

exceptions, within 30 days of receiving

the notice of appeal and accompanying

brief. The DAB may permit the parties

to file reply briefs.

(d) There is no right to appear

personally before the DAB, or to appeal

to the DAB any interlocutory ruling by

the ALJ.

(e) No party or person (except

employees of the DAB) will

communicate in any way with members

of the DAB on any matter at issue in a

case, unless on notice and opportunity

for all parties to participate. This

provision does not prohibit a person or

party from inquiring about the status of

a case or asking routine questions

concerning administrative functions or

procedures.

(f) The DAB will not consider any

issue not raised in the parties’ briefs,

nor any issue in the briefs that could

have been, but was not, raised before the

ALJ.

(g) If any party demonstrates to the

satisfaction of the DAB that additional

evidence not presented at such hearing

is relevant and material and that there

were reasonable grounds for the failure

to adduce such evidence at such

hearing, the DAB may remand the

matter to the ALJ for consideration of

such additional evidence.

(h) The DAB may remand a case to an

ALJ for further proceedings, or may

issue a recommended decision to

decline review or affirm, increase,

reduce, or reverse any penalty or

assessment determined by the ALJ.

(i) When the DAB reviews a case, it

will limit its review to whether the

ALJ’s initial decision is supported by

substantial evidence on the whole

record or contained error of law.

(j) Within 60 days after the time for

submission of briefs or, if permitted,

reply briefs has expired, the DAB will

issue to each party to the appeal and to

the Commissioner a copy of the DAB’s

recommended decision and a statement

describing the right of any respondent

who is found liable to seek judicial

review upon a final determination.

§ 498.222 Final decision of the

Commissioner.

(a) Except with respect to any penalty

or assessment remanded to the ALJ, the

DAB’s recommended decision,

including a recommended decision to

decline review of the initial decision,

shall become the final decision of the

Commissioner 60 days after the date on

which the DAB serves the parties to the

appeal and the Commissioner with a

copy of the recommended decision,

unless the Commissioner reverses or

modifies the DAB’s recommended

decision within that 60-day period. If

the Commissioner reverses or modifies

the DAB’s recommended decision, the

Commissioner’s decision is final and

binding on the parties. If service is by

mail, the date of service will be deemed

to be five days from the date of mailing.

(b) There shall be no right to

personally appear before or submit

additional evidence, pleadings or briefs

to the Commissioner.

(c)(1) Any petition for judicial review

must be filed within 60 days after the

parties are served with a copy of the

final decision. If service is by mail, the

date of service will be deemed to be five

days from the date of mailing.

(2) In compliance with 28 U.S.C.

2112(a), a copy of any petition for

judicial review filed in any U.S. Court

of Appeals challenging a final action of

the Commissioner will be sent by

certified mail, return receipt requested,

to the SSA General Counsel. The

petition copy will be time-stamped by

the clerk of the court when the original

is filed with the court.

(3) If the SSA General Counsel

receives two or more petitions within 10

days after the DAB issues its decision,

the General Counsel will notify the U.S.

Judicial Panel on Multidistrict Litigation

of any petitions that were received

within the 10-day period.

§ 498.223 Stay of initial decision.

(a) The filing of a respondent’s request

for review by the DAB will

automatically stay the effective date of

the ALJ’s decision.

(b)(1) After issuance of the final

decision, the respondent may file a

request for stay of the effective date of

any penalty or assessment with the ALJ.

The request must be accompanied by a

copy of the notice of appeal filed with

the Federal court. The filing of such a

request will automatically act to stay the

effective date of the penalty or

assessment until such time as the ALJ

rules upon the request.

(2) The ALJ may not grant a

respondent’s request for stay of any

penalty or assessment unless the

respondent posts a bond or provides

other adequate security.

(3) The ALJ will rule upon a

respondent’s request for stay within 10

days of receipt.

§ 498.224 Harmless error.

No error in either the admission or the

exclusion of evidence, and no error or

defect in any ruling or order or in any

act done or omitted by the ALJ or by any

of the parties is ground for vacating,

modifying or otherwise disturbing an

otherwise appropriate ruling or order or

act, unless refusal to take such action

appears to the ALJ or the DAB to be

inconsistent with substantial justice.

The ALJ and the DAB at every stage of

the proceeding will disregard any error

or defect in the proceeding that does not

affect the substantial rights of the

parties.

[FR Doc. 96–19425 Filed 7–30–96; 8:45 am]

BILLING CODE 4190–29–P
Federal Register / Vol. 61, No. 148 / Wednesday, July 31, 1996 / Proposed Rules 39927

DEPARTMENT OF STATE

Office of Freedom of Information,

Privacy and Classification Review

22 CFR Part 171

[Public Notice 2405]

Access to Information—Executive

Order 12958, ‘‘Classified National

Security Information,’’ Provisions

AGENCY: Office of Freedom of

Information, Privacy and Classification

Review, Department of State.

ACTION: Proposed rule.

SUMMARY: The Department of State

proposes to amend its regulations on

classified national security information.

The rule describes how members of the

public, government employees or

agencies may obtain access to

information in Department of State

classified records and how such

requests are processed. The rule also

explains the appeals process available to

requestors in the event a request for the

declassification of information in

Department of State classified records is

denied.

DATES: Comments must be submitted on

or before September 30, 1996.

ADDRESSES: Written comments may be

mailed or delivered to Margaret P.

Grafeld, Chief, Privacy, Plans and

Appeals Divisions, Office of Freedom of

Information, Privacy and Classification

Review, Room 1239, Department of

State, 2201 C Street, NW, Washington,

DC 20520–1239.

FOR FURTHER INFORMATION CONTACT:

Questions regarding mandatory

declassification review or other aspects

of Executive Order 12958 may be

addressed to Margaret P. Grafeld, Chief,

Privacy, Plans and Appeals Division,

Office of Freedom of Information,

Privacy and Classification Review,

Room 1239, Department of State, 2201

C Street, NW., Washington, DC 20520–

1239. Telephone: 202/627–6620; FAX:

202/647–5159.

SUPPLEMENTARY INFORMATION: Executive

Order 12958 of April 17, 1995,

prescribes a uniform system for

classifying, safeguarding, and

declassifying national security

information. Section 5.6(c)(2) of

Executive Order 12958 requires agencies

that originate or handle classified

information to publish in the Federal

Register implementing regulations that

affect members of the public.

Accordingly, the Department of State

has revised 22 CFR, Parts 171.20

through 171.26 (Subpart C) to bring

these rules into conformity with

Executive Order 12958. Covered under

this revision are definitions, access to

records, processing requests, and

appeals. The rule is not expected to

have a significant impact on a

substantial number of small entities

under the criteria of the Regulatory

Flexibility Act. In addition, the rule

does not impose information collection

requirements under the provisions of

the Paperwork Reduction Act of 1980.

The rule is exempt from review under

E.O. 12866, but has been reviewed

internally by the Department to ensure

consistency with the objectives thereof.

List of Subjects in 22 CFR Part 171

Administrative practice and

procedure, Appeals procedures,

Classified information, Conflict of

interests, Confidential business

information, Freedom of information

Privacy.

PART 171—AVAILABILITY OF

INFORMATION AND RECORDS TO

THE PUBLIC

For the reasons set forth in the

preamble, 22 CFR Part 171 is amended

as follows.

1. The authority citation for Part 171

is revised to read as follows:

Authority: 5 U.S.C. 551 et seq., 552, 552a,

and App. 201; Executive Order 12958, 3 CFR,

1995 Comp., p. 333; and Executive Order

12600, 3 CFR, 1987 Comp., p. 235.

2. Subpart C is revised to read as

follow:

Subpart C—Executive Order 12958

Provisions

171.20 Definitions.

171.21 Access to records.

171.22 Determination in disputed cases.

171.23 Challenges to classification.

171.24 Access by historical researchers and

former Presidential appointees.

171.25 Exemptions.

Subpart C—Executive Order 12958

Provisions

§ 171.20 Definitions.

(a) National security means the

national defense or foreign relations of

the United States.

(b) Information means any knowledge

that can be communicated or

documentary material, regardless of its

physical form or characteristics, that is

owned by, produced by or for, or is

under the control of the United States

Government.

(c) Control means the authority of the

agency that originated the information,

or its successor in function, to regulate

access to the information.

(d) Classified national security

information (hereafter classified

information means information that has

been determined pursuant to this

Executive Order 12958 or any

predecessor Order to require protection

against unauthorized disclosure and is

marked to indicate its classified status

when in documentary form.

(e) Foreign government information

means:

(1) Information provided to the

United States Government by a foreign

government or governments, an

international organization of

governments, or any element thereof,

with the expectation that the

information, the source of the

information, or both, are to be held in

confidence;

(2) Information produced by the

United States pursuant to or as a result

of a joint arrangement with a foreign

government or governments, or an

international organization of

governments, or any element thereof,

requiring that the information, the

arrangement, or both, are to be held in

confidence; or

(3) Information received and treated

as ‘‘foreign government information’’

under the terms of a predecessor Order.

(f) Classification means the act or

process by which information is

determined to be classified information.

(g) Original classification means an

initial determination that information

requires, in the interest of national

security, protection against

unauthorized disclosure.

(h) Original classification authority

means an individual authorized in

writing, either by the President, or by

agency heads or other officials

designated by the President, to classify

information in the first instance.

(i) Unauthorized disclosure means a

communication or physical transfer of

classified information to an

unauthorized recipient.

(j) Agency means any ‘‘executive

agency’’ as defined in 5 U.S.C. 105, and

any other entity within the executive

branch that comes into the possession of

classified information.

(k) Senior agency official means the

official designated by the agency head

under Section 5.6(c) of this Executive

Order 12958 to direct and administer

the agency’s program under which

information is classified, safeguarded,

and declassified.

(l) Confidential source means any

individual or organization that has

provided, or that may reasonably be

expected to provide information to the

United States on matters pertaining to

the national security with the

expectation that the information or

relationship, or both, are to be held in

confidence.
39928 Federal Register / Vol. 61, No. 148 / Wednesday, July 31, 1996 / Proposed Rules

(m) Damage to the national security

means harm to the national defense or

foreign relations of the United States

from the unauthorized disclosure of

information, to include the sensitivity,

value and utility of that information.

(n) Presidential appointees includes

former officials of the Department of

State or other U.S. Government agencies

who held policy positions and were

appointed by the President, by and with

the advice and consent of the Senate, at

the level of Ambassador, Assistant

Secretary of State or above. It does not

include Foreign Service Officers as a

class or persons who merely received

assignment commissions as Foreign

Service Officers, Foreign Service

Reserve Officers, Foreign Service Staff

Officers and employees.

§ 171.21 Access to records.

(a) Request for mandatory

classification review. For a request for

classified records to be processed under

Section 3.6 of E.O. 12958, it must

describe the record(s) with sufficient

specificity to enable the agency to locate

the record(s) with a reasonable amount

of effort. Whenever a request does not

reasonably describe the record(s), the

Department shall notify the requester

that no further action will be taken

unless additional information is

provided, or the scope of the request is

narrowed.

(b) Mandatory review. A request for

declassification under the Executive

Order 12958 is termed a mandatory

review; it is separate from and different

than a request made under the Freedom

of Information Act (FOIA). When a

requester submits a request under both

mandatory review and FOIA, the

Department shall require the requester

to elect one or the other. If the requester

fails to elect one or the other, the

request will be treated as a FOIA request

unless the materials requested are

subject only to mandatory review.

(c) Scope. All information classified

under this or predecessor orders shall be

subject to declassification review upon

request by a member of the public, a

government employee or agency, with

the following exceptions:

(1) Information exempted from search

and review under the Central

Intelligence Information Act;

(2) Information which is the subject of

pending litigation;

(3) Information which has been

reviewed and withheld within the past

two years;

(4) Information originated by the

incumbent President; the incumbent

President’s White House staff;

committees, commissions or boards

appointed by the incumbent President;

or other entities within the Executive

Office of the President that solely advise

and assist the incumbent President. If

the information requested is the subject

of pending litigation, or has been

reviewed for declassification and

withheld within the past two years, the

Department will inform the requester of

these facts and of the requester’s appeal

rights. The Archivist of the United

States shall establish procedures for the

declassification of Presidential or White

House materials accessioned into the

National Archives or maintained in the

Presidential libraries.

(d) The Department may refuse to

confirm or deny the existence or

nonexistence of requested information

whenever the fact of its existence or

nonexistence is itself classified.

(e) Processing. In responding to

mandatory review requests, the

Department shall either make a prompt

declassification determination and

notify the requester accordingly, or

inform the requester of the additional

time needed to process the request. The

Department shall ordinarily make a final

determination within 180 days from the

date of receipt. When information

cannot be declassified in its entirety, the

Department will make reasonable efforts

to release those declassified portions of

the requested information that

constitute a coherent segment.

(f) Other agency records. When the

Department receives a request for

records in its possession that were

originated by another agency, it shall

refer the request and the pertinent

records to the originating agency unless

that agency has agreed that the

Department may review the records in

accordance with declassification guides

or guidelines provided by the

originating agency. The originating

agency shall communicate its

declassification determination to the

Department.

(g) Foreign government information.

When foreign government information

is being considered for declassification,

the declassifying agency is the agency

that originally received or classified the

information. The declassifying agency

shall:

(1) Determine whether the

information is subject to a treaty or

international agreement that would

prevent its declassification;

(2) Determine whether the

information is subject to Section 1.6(d)

(5), (6) or (8) of the Executive Order

12958;

(3) Consult with any other concerned

agencies;

(4) Consult with the Department and/

or the foreign government, as

appropriate.

(h) Cryptologic and intelligence

information. Mandatory declassification

review requests for cryptologic

information and information concerning

intelligence activities or intelligence

sources or methods shall be processed

solely in accordance with special

procedures established by the Secretary

of Defense and the Director of Central

Intelligence, respectively.

(i) Appeals. Upon denial of an initial

request in whole or in part, the

Department shall notify the requester of

the right of an administrative appeal,

which must be filed within 60 days of

receipt of the denial. The Department

shall normally make a determination

within 60 days following receipt of an

appeal. If additional time is needed to

make a determination, the Department

shall notify the requester of the

additional time needed and provide the

requester with a reason for extension.

The Department shall notify the

requester in writing of the final

determination and of the reasons for any

denial.

(j) Appeals to the Interagency Security

Classification Appeals Panel. The

Interagency Security Classification

Appeals Panel shall publish in the

Federal Register the rules and

procedures for bringing mandatory

declassification appeals before it.

§ 171.22 Determination in disputed cases.

(a) It is presumed that information

that continues to meet the classification

requirements under this Executive

Order 12958 requires continued

protection. In some exceptional cases,

however, the need to protect such

information may be outweighed by the

public interest in disclosure of the

information, and in these cases the

information should be declassified.

When such questions arise, they shall be

referred to the Secretary of State or the

Department’s senior agency official.

That official will determine, as an

exercise of discretion, whether the

public interest in disclosure outweighs

the damage to national security that

might reasonably be expected from

disclosure.

(b) This provision does not:

(1) Amplify or modify the substantive

criteria or procedures for classification;

or

(2) Create any substantive or

procedural rights subject to judicial

review.

§ 171.23 Challenges to classification.

(a) Authorized holders of information

who, in good faith, believe that its

classification status is improper are

encouraged and expected to challenge

the classification status of the
Federal Register / Vol. 61, No. 148 / Wednesday, July 31, 1996 / Proposed Rules 39929

information. An authorized holder is

any individual, including an individual

external to the Department, who has

been granted access to specific classified

information in accordance with section

4.2(g) of the Executive Order 12958.

(b) Challenges shall be presented to an

original classification authority with

jurisdiction over the information. A

formal challenge under Section 1.9 of

the Executive Order 12958 must be in

writing, but need not be any more

specific than to question why

information is or is not classified, or is

classified at a certain level. The

classification challenge provision is not

intended to prevent an authorized

holder form informally questioning the

classification status of particular

information. Such informal inquiries are

encouraged in order to limit the number

of formal challenges.

(c) Whenever the Department receives

a classification challenge to information

that has been the subject of a challenge

within the past two years, or that is the

subject of pending litigation, it is not

required to process the challenge

beyond informing the challenger of this

fact an of the challenger’s appeal rights,

if any.

(d) Challenges, responses and appeals

shall, if possible, be unclassified.

However, classified information

contained in a challenge, a response

from the department or an appeal shall

be handled and protected in accordance

with this Executive Order 12958 and its

implementing directives.

(e) Information being challenged for

classification shall remain classified

unless and until a decision is made to

declassify it.

(f) The Secretary of State or the senior

agency official of the Department shall

establish procedures under which

authorized holders of classified

information may make such challenges.

These procedures shall assure that:

(1) No retribution is taken against an

authorized holder bringing a challenge

in good faith;

(2) An opportunity is provided for

review by an impartial official or panel;

and

(3) Classification challenges shall be

considered separately from FOIA or

other access requests.

(g) Processing an initial written

response to a challenge shall be

provided within 60 days. If the

Department is unable to respond to the

challenge within 60 days, it must

acknowledge the challenge in writing

and provide a date by which it will

respond. The Department’s

acknowledgement must state that if no

response is received within 120 days,

the challenger has the right to forward

the challenge to the Interagency

Security Classification Appeals Panel.

The challenger may also forward the

challenge to the Interagency Security

Classification Appeals Panel if the

Department has not responded to an

internal appeal within 90 days after

receiving the appeal. Responses to

challenges denied by the Department

shall also include the challenger’s

appeal rights to the Interagency Security

Classification Appeals Panel.

§ 171.24 Access by historical researchers

and former Presidential appointees.

(a) Section 4.2(a)(3) of this Executive

Order 12958 restricts access to classified

information to individuals who have a

need-to-know the information. This may

be waived for persons who are engaged

in historical research projects; or

previously occupied policy-making

positions to which they were appointed

by the President. Access requests made

under this provision must be submitted

in writing and must include a general

description of the records and the time

period covered by the request.

(b) Access may be granted only if the

Secretary of State or the senior agency

official of the Department:

(1) Determines in writing that access

is consistent with the interest of

national security;

(2) Takes appropriate steps to protect

classified information from

unauthorized disclosure or compromise;

and

(3) Ensures that the information is

safeguarded in a manner consistent with

the Executive Order 12958.

(c) Access granted to former

Presidential appointees shall be limited

to items the individual originated,

reviewed, signed or received while

serving as a Presidential appointee.

§ 171.25 Exemptions.

The Freedom of Information and

Privacy Acts exemptions and any other

exemptions under applicable law may

be invoked by the Department to deny

material on grounds other than

classification.

Patrick F. Kennedy,

Assistant Secretary for the Bureau of

Administration.

[FR Doc. 96–15513 Filed 7–30–96; 8:45 am]

BILLING CODE 4710–24–M

DEPARTMENT OF THE TREASURY

Bureau of Alcohol, Tobacco and

Firearms

27 CFR Parts 19 and 21

[Notice No. 832; 95R–029P]

RIN 1512–AB60

Formulas for Denatured Alcohol and

Rum

AGENCY: Bureau of Alcohol, Tobacco

and Firearms (ATF), Treasury.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Bureau of Alcohol,

Tobacco and Firearms (ATF) is

proposing in this document to update

the information provided for in parts 19

and 21 relating to the formulation of

completely denatured alcohol (CDA),

specially denatured alcohol (SDA), and

specially denatured rum (SDR); the

denaturants authorized for use in the

manufacturing of these formulations;

and the specifications for these

denaturants. The updates being

proposed include replacing the

previously named ‘‘Scientific Services

Division’’ and ‘‘Chemical Branch’’ with

their new names, removing the only

proprietory name listed with the

denaturant denatonium benzoate,

incorporating an ATF ruling that

approves the use of two substitute

denaturants, and making other

amendments to provide clarity. ATF

believes that the proposed updates will

ensure that the information provided in

this part is current.

As part of the President’s regulatory

reform initiative that calls for a

complete review and revision of all

Federal government regulations, ATF is

proposing in this document to eliminate

regulatory requirements that may pose

an undue burden on industry members.

DATES: Written comments must be

received on or before September 30,

1996.

ADDRESSES: Submit written comments

to: Chief, Wine, Beer, and Spirits

Regulations Branch; Bureau of Alcohol,

Tobacco and Firearms; PO Box 50221;

Washington, DC 20091–0221. Attn:

Notice No. 832.

FOR FURTHER INFORMATION CONTACT:

Mary A. Wood, Wine, Beer, and Spirits

Regulations Branch, Bureau of Alcohol,

Tobacco and Firearms, 650

Massachusetts Avenue, NW.,

Washington, DC 20226; (202) 927–8210.

SUPPLEMENTARY INFORMATION:

Background

27 CFR part 21 contains listings of

information relating to the formulation