[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Proposed Rules]
[Pages 39926-39929]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15513]


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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.

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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


Sec. 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.

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    (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.


Sec. 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.


Sec. 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.


Sec. 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

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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.


Sec. 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.


Sec. 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]
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