[Federal Register Volume 61, Number 135 (Friday, July 12, 1996)]
[Proposed Rules]
[Pages 36677-36688]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17310]


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[[Page 36678]]

DEPARTMENT OF JUSTICE

28 CFR Part 17

[A.G. Order No. 2040-96]


Classified National Security Information and Access to Classified 
Information

AGENCY: Department of Justice.

ACTION: Proposed rule.

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SUMMARY: This proposed rule implements Executive Order No. 12958, 
entitled ``Classified National Security Information,'' and Executive 
Order No. 12968, entitled ``Access to Classified Information,'' by 
completely revising and updating the Department of Justice's classified 
national security information and access regulations.

DATES: Written comments must be received on or before September 10, 
1996.

ADDRESSES: Comments should be submitted in triplicate to: D. Jerry 
Rubino, Director, Security and Emergency Planning Staff, Justice 
Management Division, Department of Justice, Washington, DC 20530.

FOR FURTHER INFORMATION CONTACT:
D. Jerry Rubino, Director, Security and Emergency Planning Staff, 
Justice Management Division, Department of Justice, Washington, DC 
20530 (202-514-2094 (This is not a toll-free number).

SUPPLEMENTARY INFORMATION: The President issued Executive Orders No. 
12958 and 12968 to update and revise the standards and process for 
classification and declassification of, and access to, national 
security information. This proposed rule implements these Presidential 
directives and completely revises part 17 in accordance with the 
Administration's priorities for regulatory reform and reinvention of 
government. The revised rule substantially shortens and simplifies the 
material contained in part 17, focusing on those matters that affect 
the general public and that should be published as a formal rule. The 
revised rule delegates to the Assistant Attorney General for 
Administration responsibility for developing the vast majority of 
information and internal operating instructions on classified 
information and access. This rule has been reviewed by the Information 
Security Oversight Office of the National Archives and Records 
Administration, pursuant to Executive Order No. 12958.

Executive Order 12866

    This regulation has been drafted and reviewed in accordance with 
Executive Order No. 12866, section 1(b), Principles of Regulation. The 
Department of Justice has determined that this rule is not a 
``significant regulatory action'' under Executive Order No. 12866, 
section 3(f), Regulatory Planning and Review. Accordingly, this rule 
has not been reviewed by the Office of Management and Budget pursuant 
to Executive Order No. 12866.

Regulatory Flexibility Act

    The Attorney General in accordance with the Regulatory Flexibility 
Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it 
certifies that this regulation will not have a significant economic 
impact on a substantial number of small entities.

List of Subjects in 28 CFR Part 17

    Classified information, Foreign relations.

    Part 17 of title 28 of the Code of Federal Regulations is proposed 
to be revised to read as follows:

[[Page 36679]]

PART 17--CLASSIFIED NATIONAL SECURITY INFORMATION AND ACCESS TO 
CLASSIFIED INFORMATION

Sec.
17.1  Purpose.
17.2  Scope.
17.3  Definitions.

Subpart A--Administration

17.11  Authority of the Assistant Attorney General for 
Administration.
17.12  Component head responsibilities.
17.13  Office of Intelligence Policy and Review responsibilities; 
interpretation of Executive orders.
17.14  Department Review Committee.
17.15  Access Review Committee.
17.16  Violations of classified information requirements.
17.17  Judicial proceedings.
17.18  Prepublication review.

Subpart B--Classified Information

17.21  Classification and declassification authority.
17.22  Classification of information; limitations.
17.23  Emergency classification requests.
17.24  Duration of classification.
17.25  Identification and markings.
17.26  Derivative classification.
17.27  Declassification and downgrading.
17.28  Automatic declassification.
17.29  Documents of permanent historical value.
17.30  Classification challenges.
17.31  Mandatory review for declassification requests.
17.32  Notification of classification changes.

Subpart C--Access to Classified Information

17.41  Access to classified information.
17.42  Positions requiring financial disclosure.
17.43  Reinvestigation requirements.
17.44  Access eligibility.
17.45  Need-to-know.
17.46  Access by persons outside the Executive Branch.
17.47  Denial or revocation of eligibility for access to classified 
information.

    Authority: 28 U.S.C. 501, 509, 510, 515-519; 5 U.S.C. 301; E.O. 
12958, 60 FR 7977, 3 CFR, 1995 Comp., p. 333 19825; E.O. 12968, 60 
FR 40245, 3 CFR, 1995 Comp., p. 391; 32 CFR part 2001.


Sec. 17.1  Purpose.

    The purpose of this part is to ensure that information within the 
Department of Justice (the ``Department'') relating to the national 
security is classified, protected, and declassified pursuant to the 
provisions of Executive Orders 12958 (3 CFR, 1995 Comp., p. 333) and 
12968 (3 CFR, 1995 Comp., p. 391) and implementing directives from the 
Information Security Oversight Office of the National Archives and 
Records Administration (``ISOO''). Executive Orders 12958 and 12968 
made numerous substantive changes in the system of classification, 
declassification, and downgrading of classified National Security 
Information and the criteria for access to this information. 
Accordingly, this part is a revision of the Department's classified 
information security rules.
    (a) Subpart A of this part prescribes the implementation of 
Executive Orders 12958 and 12968 within the Department through the 
Assistant Attorney General for Administration, as the senior 
responsible agency official. Subpart A of this part also provides for 
certain relationships within the Department between the Assistant 
Attorney General for Administration, other component heads, and the 
Office of Intelligence Policy and Review.
    (b) Subpart B of this part prescribes an orderly and progressive 
system for ensuring that every necessary safeguard and procedure is in 
place to assure that information is properly classified and that 
classified information is protected from unauthorized disclosure. 
Subpart B of this part requires original classification authorities to 
make classification decisions based on specific criteria; provides that 
most newly created classified information be considered for 
declassification after 10 years; provides that historically valuable 
information that is more than 25 years old (including information 
classified under prior Executive orders) be automatically declassified, 
with

[[Page 36680]]

appropriate exceptions; and establishes procedures for authorized 
holders of classified information to challenge the classification of 
information.
    (c) Subpart C of this part establishes substantive standards and 
procedures for granting, denying, and revoking, and for appealing 
decisions to deny access to classified information with an emphasis on 
ensuring the consistent, cost-effective, and efficient protection of 
classified information. Subpart C of this part provides a process that 
is fair and equitable to those with whom classified information is 
entrusted and, at the same time, assures the security of the classified 
information.


Sec. 17.2  Scope.

    (a) All employees, contractors, grantees, and other's granted 
access to classified information by the Department are governed by this 
part, and by the standards in Executive Order 12958, Executive Order 
12968, and directives promulgated under those Executive Orders. If any 
portion of this part conflicts with any portion of Executive Order 
12958, Executive Order 12968, or any successor Executive order, the 
Executive order shall apply. This part supersedes the former rule and 
any Department internal operating policy or directive that conflicts 
with any portion of this part.
    (b) This part applies to non-contractor personnel outside of the 
Executive Branch and to contractor personnel or employees who are 
entrusted with classified national security information originated 
within or in the custody of the Department. This part does not affect 
the operation of the Department's participation in the National 
Industrial Security Program under Executive Order 12829 (3 CFR, 1993 
Comp., p. 570).
    (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 pursuant to Secs. 17.30, 17.31, and 17.47. This 
part does not, and is not intended to, create any right to judicial 
review of administrative action under Secs. 17.14, 17.15, 17.18, 17.27, 
17.30, 17.31 and 17.50.


Sec. 17.3  Definitions.

    The terms defined or used in Executive Order 12958 and Executive 
Order 12968, and the implementing directives in 32 CFR part 2001, are 
applicable to this part.

Subpart A--Administration


Sec. 17.11  Authority of the Assistant Attorney General for 
Administration.

    (a) The Assistant Attorney General for Administration is designated 
as the senior agency official as required by Sec. 5.6(c) of Executive 
Order 12958, and Sec. 6.1(a) of Executive Order 12968 and, except as 
specifically provided elsewhere in this part, is authorized to 
administer the Department's national security information program 
pursuant to Executive Order 12958. The Assistant Attorney General for 
Administration shall appoint a Department Security Officer and may 
delegate to the Department Security Officer those functions under 
Executive Orders 12958 and 12968 that may be delegated by the senior 
agency official. The Department Security Officer may redelegate such 
functions when necessary to effectively implement this part.
    (b) The Assistant Attorney General for Administration shall, among 
other actions:
    (1) Oversee and administer the Department's program established 
under Executive Order No. 12958;
    (2) Establish and maintain Department-wide security education and 
training programs;
    (3) Establish and maintain an ongoing self-inspection program 
including the periodic review and assessment of the Department's 
classified product;
    (4) 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;
    (5) Develop special contingency plans for the safeguarding of 
classified information used in or near hostile or potentially hostile 
areas;
    (6) Assure 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;
    (7) Account for the costs associated with implementing this part 
and report the cost to the Director of the ISOO;
    (8) Assign in a prompt manner personnel to respond to any request, 
appeal, challenge, complaint, or suggestion concerning Executive Order 
12958 that pertains to classified information that originated in a 
component of the Department that no longer exists and for which there 
is no clear successor in function;
    (9) Cooperate, under the guidance of the Security Policy Board, 
with other agencies to achieve practical, consistent, and effective 
adjudicative training and guidelines;
    (10) Conduct periodic evaluations of the Department's 
implementation and administration of Executive Orders 12958 and 12968;
    (11) Establish a plan for compliance with the automatic 
declassification provisions of Executive Order 12958 and oversee the 
implementation of that plan; and
    (12) Maintain a list of specific files series of records exempted 
from automatic declassification by the Attorney General pursuant to 
section 3.4(c) of Executive Order 12958.
    (c) The Department Security Officer may grant, deny, suspend, or 
revoke employee access to classified information pursuant to and in 
accordance with Executive Order 12968. The Department Security Officer 
may delegate the authority under this paragraph to qualified Security 
Programs Managers when the operational need justifies the delegation 
and when the Department Security Officer is assured that such officials 
will apply all access criteria in a uniform and correct manner in 
accord with the provisions of Executive Order 12968 and subpart C of 
this part. The fact that a delegation has been made pursuant to this 
section does not waive the Department Security Officer's authority to 
make any determinations that have been delegated.
    (d) The Department Security Officer shall maintain a current list 
of all officials authorized pursuant to this part to originally 
classify or declassify documents.
    (e) The Department Security Officer shall promulgate criteria and 
security requirements for the marking and safeguarding of information, 
transportation and transfer of information, preparation of 
classification guides, reporting of communications related to national 
security by persons granted access to

[[Page 36681]]

classified information, reporting of information that raises doubts as 
to whether another employee's continued eligibility for access to 
classified information is clearly consistent with the national 
security, and other matters necessary to the administration of the 
Executive orders, the implementing regulations of the ISOO, and this 
part.


Sec. 17.12  Component head responsibilities.

    The head of each component shall appoint and oversee a Security 
Programs Manager to implement this part. The Security Programs Managers 
shall:
    (a) Observe, enforce, and implement security regulations or 
procedures pertaining to the classification, declassification, 
safeguarding, handling, and storage of classified national security 
information;
    (b) Report violations of the provisions of this regulation to the 
Department Security Officer;
    (c) Ensure that all employees acquire adequate security education 
and training as required by the provisions of the Department security 
regulations and procedures for classified information;
    (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 Department Security 
Officer for assistance in the implementation of this part.


Sec. 17.13  Office of Intelligence Policy and Review responsibilities; 
interpretation of Executive orders.

    (a) The Counsel for Intelligence Policy shall represent the 
Attorney General at interagency meetings on matters of general interest 
concerning national security information.
    (b) The Counsel for Intelligence Policy shall provide advice and 
interpretation on any issues that arise under Executive Orders 12958 
and 12968 and shall refer such questions to the Office of Legal Counsel 
as appropriate.
    (c) Any request for interpretation of Executive Order 12958 or 
Executive Order 12968, pursuant to section 6.1(b) of Executive Order 
12958, and section 7.2(b) of Executive Order 12968, shall be referred 
to the Counsel for Intelligence Policy, who shall refer such questions 
to the Office of Legal Counsel as appropriate.


Sec. 17.14  Department Review Committee.

    (a) The Department Review Committee (DRC) is established to:
    (1) Resolve all issues, except those related to the compromise of 
classified information, that concern the implementation and 
administration of Executive Order 12958, implementing directives from 
the ISOO, and subpart B of this part, including those issues concerning 
over classification, failure to declassify, classification challenges, 
and delays in declassification not otherwise resolved;
    (2) Review all appeals from denials of requests for records made 
under section 3.6 of Executive Order 12958 and the Freedom of 
Information Act (5 U.S.C. 552), when the proposed denial is based on 
their continued classification under Executive Order 12958;
    (3) Recommend to the Attorney General appropriate administrative 
sanctions to correct the abuse or violation of any provision of 
Executive Order 12958, the implementing directives or subpart B of this 
part, except as it relates to the compromise of classified national 
security information; and
    (4) Review, on appeal, challenges to classification actions and 
mandatory review requests.
    (b) (1) The DRC shall consist of a senior representative designated 
by the:
    (i) Deputy Attorney General;
    (ii) Assistant Attorney General, Office of Legal Counsel;
    (iii) Assistant Attorney General, Criminal Division;
    (iv) Assistant Attorney General, Civil Division;
    (v) Assistant Attorney General for Administration;
    (vi) Director, Federal Bureau of Investigation; and
    (vii) Counsel for Intelligence Policy.
    (2) Each such official shall also designate in writing an alternate 
to serve in the absence of his or her representative. Four 
representatives shall constitute a quorum of the DRC. The Attorney 
General shall designate the Chairman of the DRC from among its members.
    (c) The Office of Information and Privacy (OIP) shall provide the 
necessary administrative staff support for the DRC.


Sec. 17.15  Access Review Committee.

    (a) The Access Review Committee (ARC) is hereby established to 
review all appeals from denials or revocations of eligibility for 
access to classified information under Executive Order 12968. Unless 
the Attorney General requests recommendations from the ARC and 
personally exercises appeal authority, the ARC's decisions shall be 
final.
    (b) The ARC shall consist of the Deputy Attorney General or a 
designee, the Counsel for Intelligence Policy or a designee, and the 
Assistant Attorney General for Administration or a designee. 
Designations must be approved by the Attorney General.
    (c) The Department Security Officer shall provide the necessary 
administrative staff support for the ARC.


Sec. 17.16  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 national 
security information, shall promptly report and confirm in writing the 
circumstances to the Department Security Officer.
    Any person who makes such a report to the Department Security 
Officer shall promptly furnish a copy of such report:
    (1) If the suspected violation involves a Department attorney 
(including an Assistant United States Attorney or Special Assistant 
United States Attorney) while engaged in litigation, grand jury 
proceedings, or giving legal advice, or a law enforcement officer 
assisting an attorney engaged in such activity, to the Office of 
Professional Responsibility;
    (2) If the suspected violation involves an employee of the Federal 
Bureau of Investigation or the Drug Enforcement Administration, other 
than a law enforcement officer in paragraph (a)(1) of this section, to 
the Office of Professional Responsibility in that component; or
    (3) In any other circumstance, to the Office of the Inspector 
General.
    (b) Department employees, contractors, grantees, or consultants 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 
Department regulation if they:
    (1) Knowingly, willfully, or negligently disclose to unauthorized 
persons information classified under Executive Order 12958 or 
predecessor orders;
    (2) Knowingly, willfully, or negligently classify or continue the 
classification of information in violation of Executive Order 12958 or 
its implementing directives; or
    (3) Knowingly, willfully, or negligently violate any other 
provision of Executive Order 12958, or knowingly and willfully grant 
eligibility for, or allow access to, classified information in 
violation of Executive Order 12968, or its implementing directives, 
this part, or security requirements promulgated by the Department 
Security Officer.

[[Page 36682]]

Sec. 17.17  Judicial proceedings.

    (a) (1) Any Department official or organization receiving an order 
or subpoena from a federal or state court to produce classified 
information, required to submit classified information for official 
Department litigative purposes, or receiving classified information 
from another organization for production of such in litigation, shall 
immediately determine from the agency originating the classified 
information whether the information can be declassified. If 
declassification is not possible, the Department official or 
organization and the assigned Department attorney in the case shall 
take all appropriate action to protect such information pursuant to the 
provisions of this section.
    (2) If a determination is made to produce classified information in 
a judicial proceeding in any manner, the assigned Department attorney 
shall take all steps necessary to ensure the cooperation of the court 
and, where appropriate, opposing counsel in safeguarding and retrieving 
the information pursuant to the provisions of this part.
    (b) The Classified Information Procedures Act (CIPA), Pub. L. 96-
456, 94 Stat. 2025, 18 U.S.C. App., and the ``Security Procedures 
Established Pursuant to Pub. L. 96-456, 94 Stat. 2025, by the Chief 
Justice of the United States for the Protection of Classified 
Information'' may be used in Federal criminal cases involving 
classified information. (Available from the Security and Emergency 
Planning Staff, Justice Management Division, Department of Justice, 
Washington, DC 20530.)
    (c) In judicial proceedings other than Federal criminal cases where 
CIPA is used, the Department, through its attorneys, shall seek 
appropriate security safeguards to protect classified information from 
unauthorized disclosure, including, but not limited to, consideration 
of the following:
    (1) A determination by the court of the relevance and materiality 
of the classified information in question;
    (2) An order that classified information shall not be disclosed or 
introduced into evidence at a proceeding without the prior approval of 
either the originating agency, the Attorney General, or the President;
    (3) A limitation on attendance at any proceeding where classified 
information is to be disclosed to those persons with appropriate 
authorization to access classified information whose duties require 
knowledge or possession of the classified information to be disclosed;
    (4) A court facility that provides appropriate safeguarding for the 
classified information as determined by the Department Security 
Officer;
    (5) Dissemination and accountability controls for all classified 
information offered for identification or introduced into evidence at 
such proceedings;
    (6) Appropriate marking to indicate classified portions of any and 
the maintenance of any classified transcript under seal;
    (7) Handling and storage of all classified information including 
classified portions of any transcript in a manner consistent with the 
provisions of this part and Department implementing directives;
    (8) Return at the conclusion of the proceeding of all classified 
information to the Department or the originating agency, or placing the 
classified information under court seal;
    (9) Retrieval by Department employees of appropriate notes, drafts, 
or any other documents generated during the course of the proceedings 
that contain classified information and immediate transfer to the 
Department for safeguarding and destruction as appropriate; and
    (10) Full and complete advice to all persons to whom classified 
information is disclosed during such proceedings as to the 
classification level of such information, all pertinent safeguarding 
and storage requirements, and their liability in the event of 
unauthorized disclosure.
    (d) Access to classified information by individuals involved in 
judicial proceedings other than employees of the Department is governed 
by Sec. 17.46(c).


Sec. 17.18  Prepublication review.

    (a) All individuals with authorized access to Sensitive 
Compartmented Information shall be required to sign nondisclosure 
agreements containing a provision for prepublication review to assure 
deletion of Sensitive Compartmented Information and other classified 
information. Sensitive Compartmented Information is information that 
not only is classified for national security reasons as Top Secret, 
Secret, or Confidential, but also is subject to special access and 
handling requirements because it involves or derives from particularly 
sensitive intelligence sources and methods. The prepublication review 
provision will require Department of Justice employees and other 
individuals who are authorized to have access to Sensitive 
Compartmented Information to submit certain material, described further 
in the agreement, to the Department prior to its publication to provide 
an opportunity for determining whether an unauthorized disclosure of 
Sensitive Compartmented Information or other classified information 
would occur as a consequence of its publication.
    (b) Persons subject to these requirements are invited to discuss 
their plans for public disclosures of information that may be subject 
to these obligations with authorized Department representatives to an 
early stage, or as soon as circumstances indicate these policies must 
be considered. Except as provided in paragraph (j) of this section for 
Federal Bureau of Investigation (FBI) personnel, all questions 
concerning these obligations should be addressed to the Counsel for 
Intelligence Policy, Department of Justice, 10th & Constitution Avenue, 
NW., Washington, DC 20530. The official views of the Department on 
whether specific materials require prepublication review may be 
expressed only by the Counsel for Intelligence Policy and persons 
should not act in reliance upon the views of other Department 
personnel.
    (c) Prepublication review is required only as expressly provided 
for in a nondisclosure agreement. However, all persons who have had 
access to classified information have an obligation to avoid 
unauthorized disclosures of such information. Therefore, persons who 
have such access but are not otherwise required to submit to 
prepublication review under the terms of an employment or other 
nondisclosure agreement are encouraged to submit material for 
prepublication review voluntarily if they believe that such material 
may contain classified information.
    (d) The nature and extent of the material that is required to be 
submitted for prepublication review under nondisclosure agreements is 
expressly provided for in those agreements. It should be clear, 
however, that such requirements do not extend to any materials that 
exclusively contain information lawfully obtained at a time when the 
author has no employment, contract, or other relationship with the 
United States Government or that contain information exclusively 
acquired outside the scope of employment.
    (e) A person's obligation to submit material for prepublication 
review remains identical whether such person prepares the material or 
causes or assists another person (such as a ghost writer, spouse, 
friend, or editor) in preparing the material. Material covered by a 
nondisclosure agreement requiring prepublication review must be 
submitted prior to discussing it with or showing it to a publisher, co-
author, or any other person who is not authorized to have access to it. 
In this regard, it

[[Page 36683]]

should be noted that a failure to submit such material for 
prepublication review constitutes a breach of the obligation and 
exposes the author to remedial action even in cases where the published 
material does not actually contain Sensitive Compartmented Information 
or classified information. See Snepp v. United States, 444 U.S. 507 
(1980).
    (f) The requirement to submit material for prepublication review is 
not limited to any particular type of material or disclosure or method 
of production. Written materials include not only book manuscripts but 
all other forms of written materials intended for public disclosure, 
such as (but not limited to) newspaper columns, magazine articles, 
letters to the editor, book reviews, pamphlets, scholarly papers, and 
fictional material.
    (g) Oral statements are also within the scope of a prepublication 
review requirement when based upon written materials, such as an 
outline of the statements to be made. There is no requirement to 
prepare written materials for review, however, unless there is reason 
to believe in advance that oral statements may contain Sensitive 
Compartmented Information or other information required to be submitted 
for review under the terms of the nondisclosure agreement. Thus, a 
person may participate in an oral presentation where there is no 
opportunity for prior preparation (e.g., news interview, panel 
discussion) without violating the provisions of this paragraph.
    (h) Material submitted for prepublication review will be reviewed 
solely for the purpose of identifying and preventing the disclosure of 
Sensitive Compartmented Information and other classified information. 
This review will be conducted in an impartial manner without regard to 
whether the material is critical of or favorable to the Department. No 
effort will be made to delete embarrassing or critical statements that 
are unclassified. Materials submitted for review will be disseminated 
to other persons or agencies only to the extent necessary to identify 
classified information.
    (i) The Counsel for Intelligence Policy (or, in the case of FBI 
employees, the FBI's Office of Congressional and Public Affairs) will 
respond substantively to prepublication review requests within 30 
working days of receipt of the submission. Priority shall be given to 
reviewing speeches, newspaper articles, and other materials that the 
author seeks to publish on an expedited basis. The Counsel's decisions 
may be appealed to the Deputy Attorney General, who will process 
appeals within 15 working days of receipt of the appeal. The Deputy 
Attorney General's decision is final and not subject to further 
administrative appeal. Persons who are dissatisfied with the final 
administrative decision may obtain judicial review either by filing an 
action for declaratory relief or by giving the Department notice of 
their intention to proceed despite the Department's requests for 
deletions of classified information, and a reasonable opportunity (30 
working days) to file a civil action seeking a court order prohibiting 
disclosure. Employees and other affected individuals remain obligated 
not to disclose or publish information determined by the Government to 
be classified until any civil action is resolved.
    (j) The obligations of Department of Justice employees described in 
this subpart apply with equal force to employees of the FBI with the 
following exceptions and provisos:
    (1) Nothing in this subpart shall supersede or alter obligations 
assumed under the basic FBI employment agreement.
    (2) FBI employees required to sign nondisclosure agreements 
containing a provision for prepublication review pursuant to this 
subpart shall submit materials for review to the Assistant Director, 
Office of Congressional and Public Affairs. Such individuals shall also 
submit questions as to whether specific materials require 
prepublication review under such agreements to that Office for 
resolution. Where such questions raise policy questions or concern 
significant issues of interpretation under such an agreement, the 
Assistant Director, Office of Congressional and Public Affairs, shall 
consult with the Counsel for Intelligence Policy prior to responding to 
the inquiry.
    (3) Decisions of the Assistant Director, Office of Congressional 
and Public Affairs, concerning the deletion of classified information, 
may be appealed to the Director, FBI, who will process appeals within 
15 working days of receipt. Persons who are dissatisfied with the 
Director's decision may, at their option, appeal further to the Deputy 
Attorney General as provided in paragraph (i) of this section. Judicial 
review, as set forth in that paragraph, is available following final 
agency action in the form of a decision by the Director or, if the 
appeal process in paragraph (i) of this section is pursued, the Deputy 
Attorney General.

Subpart B--Classified Information


Sec. 17.21  Classification and declassification authority.

    (a) Top Secret original classification authority may only be 
exercised by the Attorney General, the Assistant Attorney General for 
Administration, and officials to whom such authority is delegated in 
writing by the Attorney General. No official who is delegated Top 
Secret classification authority pursuant to this paragraph may 
redelegate such authority.
    (b) The Assistant Attorney General for Administration may delegate 
original Secret and Confidential classification authority to 
subordinate officials determined to have frequent need to exercise such 
authority. No official who is delegated original classification 
authority pursuant to this paragraph may redelegate 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 pursuant to this section, the person designated to act in 
lieu of such official may exercise the official's classification 
authority.


Sec. 17.22  Classification of information; limitations.

    (a) Information may be originally classified only if all of the 
following standards are met:
    (1) The information is owned by, produced by or for, or is under 
control of the United States Government;
    (2) The information falls within one or more of the categories of 
information specified in section 1.5 of Executive Order 12958; and
    (3) The classifying official 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 may be classified as Top Secret, Secret, or 
Confidential according to the standards established in section 1.3 of 
Executive Order 12958. No other terms shall be used to identify United 
States classified national security information except as otherwise 
provided by statute.
    (c) Information shall not be classified if there is significant 
doubt about the need to classify the information. If there is 
significant doubt about the appropriate level of classification with 
respect to information that is being classified, it shall be classified 
at the lower classification of the levels considered.
    (d) Information shall not be classified in order to conceal 
inefficiency,

[[Page 36684]]

violations of law, or administrative error; to prevent embarrassment to 
a person, organization, or agency; to restrain competition; or to 
prevent or delay release of information that does not require 
protection in the interest of national security. Information that has 
been declassified and released to the public under proper authority may 
not be reclassified.
    (e) Information that has not previously been disclosed to the 
public under proper authority may be classified or reclassified after 
the Department 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 Sec. 17.31. When it is 
necessary to classify or reclassify such information, it shall be 
forwarded to the Department Security Officer and classified or 
reclassified only at the direction of the Attorney General, the Deputy 
Attorney General or the Assistant Attorney General for Administration.
    (f) Compilations of items of information that are individually 
unclassified may be classified if the compiled information reveals an 
additional association or relationship that meets the standards for 
classification under Executive Order 12958 and that is not otherwise 
revealed in the individual items of information.


Sec. 17.23  Emergency classification requests.

    (a) Whenever any employee, contractor, licensee, certificate 
holder, or grantee of the Department who does not have original 
classification authority originates or develops information that 
requires immediate classification and safeguarding, and no authorized 
classifier is available, that person shall:
    (1) Safeguard the information in a manner appropriate for its 
classification level;
    (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 Department organization would be the 
appropriate orignal classifier, the information shall be sent to the 
Department Security Officer to determine the appropriate organization.
    (c) The organization with classification authority shall decide 
within 30 days whether to classify information.


Sec. 17.24  Duration of classification.

    (a) At the time of original classification, original classification 
authorities shall attempt to establish a specific date or event for 
declassification not more than 10 years from the date of the original 
decision based on the duration of the national security sensitivity of 
the information. If the original classification authority cannot 
determine an earlier specific date or event for declassification, the 
information shall be marked for declassification 10 years from the date 
of the original decision.
    (b) At the time original classification, an original classification 
authority may exempt specific information from declassification within 
10 years in accordance with section 1.6(d) of Executive Order 12958.
    (c) An original classification authority may extend the duration of 
classification or reclassify specific information for successive 
periods not to exceed 10 years at a time if such action is consistent 
with the standards and procedures established under, and subject to the 
limitations of, Executive Order 12958.


Sec. 17.25  Identification and markings.

    (a) Classified information must be marked pursuant to the standards 
set forth in section 1.7 of Executive Order 12958; IS00 implementing 
directives in 32 CFR part 2001, subpart B; and internal Department of 
Justice direction provided by the Department Security Officer.
    (b) Foreign government information shall be marked or classified at 
a level equivalent to that level of classification assigned by the 
originating foreign government.
    (c) Information assigned a level of classification under 
predecessor Executive orders shall be considered as classified at that 
level of classification.


Sec. 17.26  Derivative classification.

    (a) Persons need not possess original classification authority to 
derivatively classify information based on source documents or 
classification guides.
    (b) Persons who apply derivative classification markings shall 
observe original classification decisions and carry forward to any 
newly created documents the pertinent classification markings.
    (c) Information classified derivatively from other classified 
information shall be classified and marked in accordance with the 
standards set forth in section 2.1-2.3 of Executive Order 12958, the 
ISOO implementing directives in 32 CFR 2001.22, and internal Department 
directions provided by the Department Security Officer.


Sec. 17.27  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 sections 3.1-3.3 of Executive Order 12958, 
implementing ISOO directives at 32 CFR part 2001, subpart E, and 
applicable internal Department of Justice direction provided by the 
Department 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; a supervisory 
official of either; or officials delegated such authority in writing by 
the Attorney General or the Assistant Attorney General for 
Administration.
    (c) It is presumed that information that continues to meet the 
classification requirements under Executive Order 12958 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 case with a recommendation for decision to the DRC. The 
DRC shall review the case and make a recommendation to the Attorney 
General on whether the public interest in disclosure outweighs the 
damage to national security that might reasonably be expected from 
disclosure. The Attorney General shall decide whether to declassify the 
information. The decision of the Attorney General 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. The Department shall cooperate with 
the National Archives and Records Administration and the Presidential 
Libraries to ensure that declassification is accomplished in a timely 
manner.


Sec. 17.28  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

[[Page 36685]]

be declassified automatically on April 17, 2000. 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 3.4(b) and (d) of 
Executive Order 12958.
    (b) At least 220 days before information is declassified 
automatically under this section, the respective component head shall 
notify the Assistant Attorney General for Administration through the 
Department Security Officer of any specific information they propose 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 a human intelligence source.
    (c) Proposed exemptions under this section shall be forwarded to 
the DRC, which shall recommend a disposition of the exemption request 
to the Assistant Attorney General for Administration. When the 
Assistant Attorney General for Administration determines the exemption 
request is consistent with this section, he or she will submit it to 
the Executive Secretary of the Interagency Security Classification 
Appeals Panel.
    (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. 17.29  Documents of permanent historical value.

    The original classification authority, to the greatest extent 
possible, shall declassify classified information contained in record 
determined to have permanent historical value under title 44 of the 
United States Code before they are accessioned into the National 
Archives. The Department shall cooperate with the National Archives and 
Records Administration in carrying out an automatic declassification 
program involving accessioned Department records, presidential papers, 
and historical materials under the control of the Archivist of the 
United States.


Sec. 17.30  Classification challenges.

    (a) Authorized holders of information classified by the Department 
who, in good faith, believe that specific information is improperly 
classified or unclassified are encouraged and expected to challenge the 
classification status of that information pursuant to section 1.9 of 
Executive Order 12958. Authorized holders may submit classification 
challenges in writing to the DRC, through the Office of Information and 
Privacy, United States Department of Justice, Washington, DC 20530. 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) The DRC shall redact the identity of an individual challenging 
a classification under paragraph (a) of this section and forward the 
classification challenge to the original classification authority for 
review and response.
    (c) The original classification authority shall promptly, and in no 
case later than 30 days, provide a written response to the DRC. The 
original classification authority may classify or declassify the 
information subject to challenge or state specific reasons why the 
original classification determination was proper. If the original 
classification authority is not able to respond within 30 days, the DRC 
shall inform the individual who filed the challenge in writing of that 
fact, and the anticipated determination date.
    (d) The DRC shall inform the individual challenging the 
classification of the determination made by the original classification 
authority and that individual may appeal this determination to the DRC. 
Upon appeal, the DRC may declassify, or direct the classification of, 
the information. If the DRC is not able to act on any appeal within 45 
days of receipt, the DRC shall inform the individual who filed the 
challenge in writing of that fact, and the anticipated determination 
date.
    (e) The DRC shall provide the individual who appeals a 
classification challenge determination with a written explanation of 
the basis for the DRC decision and a statement of his or her right to 
appeal that determination to the Interagency Security Classification 
Appeals Panel (ISCAP) pursuant to section 5.4 of Executive Order 12958 
and the rules issued by the ISCAP pursuant to section 5.4 of Executive 
Order 12958.
    (f) Any individual who challenges a classification and believes 
that any action has been taken against him or her in retribution 
because of that challenge shall report the facts to the Office of the 
Inspector General of the Office of Professional Responsibility, as 
appropriate.
    (g) Requests for review of classified materials for 
declassification by persons other than authorized holders are governed 
by Sec. 17.31.


Sec. 17.31  Mandatory review for declassification requests.

    (a) Any person may request classified information be reviewed for 
declassification pursuant to the mandatory declassification review 
provisions of Sec. 3.6 of Executive Order 12958. After such a review, 
the information or any reasonably segregable portion thereof that no 
longer requires protection under this part shall be declassified and 
released to the requester unless withholding is otherwise warranted 
under applicable law. If the information, although declassified, is 
withheld, the requester shall be given a brief statement as to the 
reasons for denial and a notice of the right to appeal the 
determination to the Director, Office of Information and Privacy, 
United States Department of Justice, Washington, DC 20530. If the 
mandatory review for declassification request relates to the 
classification of information that has been reviewed for 
declassification within the past two years or that is the subject of 
pending litigation, the requester shall be informed of that fact and 
the administrative appeal rights.
    (b) Request for mandatory review for declassification and any 
subsequent appeal to the DRC shall be submitted to the Director, Office 
of Information and Privacy, United States Department of Justice, 
Washington, DC 20530, describing the document or material containing 
the information with sufficient specificity to enable the Department to 
locate that information with a reasonable amount of effort. The OIP 
shall promptly forward the request to the component that originally 
classified the information, or to the DRC in the case of an appeal, and 
provide the requester with an acknowledgment of receipt of the request.
    (c) When the description of the information in a request is 
deficient, the component shall solicit as much additional identifying 
information as possible from the requester. Before denying a request on 
the basis that the information or material is not obtainable with a 
reasonable amount of effort, the component shall ask the requestor to 
limit the request to information or material that is reasonably 
obtainable. If the information or material requested

[[Page 36686]]

cannot be described in sufficient particularity, or if it cannot be 
obtained with a reasonable amount of effort, the component shall 
provide the requestor with written notification of the reasons why no 
action will be taken and the right to appeal the decision to the DRC.
    (d) The component that originally classified the information shall 
provide a written response to request for mandatory review within 60 
days whenever possible, or shall inform the requester in writing why 
additional time is needed. Unless there are unusual circumstances, the 
additional time needed by the component originally classifying the 
information shall not extend beyond 180 days from the receipt of the 
request. If no determination has been made at the end of the 180 day 
period, the requester may apply to the DRC for a determination.
    (e) If the component that originally classified the information 
determines that continued classification is warranted, it shall notify 
the requester in writing of the decision and the right to appeal the 
decision to the DRC no later than 60 days after receipt of the 
notification of the decision.
    (f) The DRC shall determine the appeals of the components' 
mandatory declassification review decisions within 60 days after 
receipt of the appeal, or notify the requester why additional time is 
needed. In making its determinations concerning requests for 
declassification of classified information, the DRC, for administrative 
purposes, shall impose the burden of proof on the originating component 
to show that continued classification is warranted. The DRC shall 
provide the requester with a written statement of reasons for its 
decision.
    (g) If the individual requesting review of a classification is not 
satisfied with the DRC's decision, he or she may appeal to the ISCAP 
pursuant to Sec. 5.4 of Executive Order 12958 and rules issued by the 
ISCAP pursuant to that section.


Sec. 17.32  Notification of classification changes.

    All known holders of information affected by unscheduled 
classification changes actions shall be notified promptly of such 
changes by the original classifier or the authority making the change 
in classification.

Subpart C--Access to Classified Information


Sec. 17.41  Access to classified information.

    (a) No person may be given access to classified information or 
material originated by, in the custody, or under the control of the 
Department, unless that person--
    (1) Has been determined to be eligible for access in accordance 
with Secs. 3.1-3.3 of Executive Order 12968;
    (2) Has a demonstrated need-to-know; and
    (3) Has signed an approved nondisclosure agreement.
    (b) Eligibility for access to classified information is limited to 
United States citizens for whom an appropriate investigation of their 
personal and professional history affirmatively indicates loyalty to 
the United States, strength of character, trustworthiness, honesty, 
reliability, discretion, and sound judgment, as well as freedom from 
conflicting allegiances and potential for coercion, and willingness and 
ability to abide by regulations governing the use, handling, and 
protection of classified information. A determination of eligibility 
for access to classified information is a discretionary security 
decision based on judgments by appropriately trained adjudicative 
personnel. Eligibility shall be granted only where facts and 
circumstances indicate access to classified information is clearly 
consistent with the national security interests of the United States 
and any doubt shall be resolved in favor of the national security. 
Sections 2.6 and 3.3 of Executive Order 12968 provide only limited 
exceptions to these requirements.
    (c) The Department of Justice does not discriminate on the basis of 
race, color, religion, sex, national origin, disability, or sexual 
orientation in granting access to classified information. However, the 
Department may investigate and consider any matter that relates to the 
determination of whether access is clearly consistent with the 
interests of national security. No negative inferences concerning the 
standards for access may be raised solely on the basis of the sexual 
orientation of the employee or mental health counseling.
    (d) An employee granted access to classified information may be 
investigated at any time to ascertain whether he or she continues to 
meet the requirements for access.
    (e) An employee granted access to classified information shall 
provide to the Department written consent permitting access by an 
authorized investigative agency, for such time as access to classified 
information is maintained and for a period of three years thereafter, 
to:
    (1) Financial records maintained by a financial institution as 
defined in 31 U.S.C. 5312(a) or by a holding company as defined in 12 
U.S.C. 3401;
    (2) Consumer reports under the Fair Credit Reporting Act (15 U.S.C. 
1681 et seq.); and
    (3) Records maintained by commercial entities within the United 
States pertaining to any travel by the employee outside the United 
States.
    (f) Information may be requested pursuant to the employee consent 
obtained under paragraph (e) of this section only where:
    (1) There are reasonable grounds to believe, based on credible 
information, that the employee or former employee is, or may be, 
disclosing classified information in an unauthorized manner to a 
foreign power or agent of a foreign power;
    (2) Information the Department deems credible indicates the 
employee or former employee has incurred excessive indebtedness or has 
acquired a level of affluence that cannot be explained by other 
information; or
    (3) Circumstances indicate that the employee or former employee had 
the capability and opportunity to disclose classified information that 
is known to have been lost or compromised to a foreign power or an 
agent of a foreign power.


Sec. 17.42  Positions requiring financial disclosure.

    (a) The Assistant Attorney General for Administration, in 
consultation with the Counsel for Intelligence Policy, shall designate 
each employee, by position or category where possible, who has a 
regular need for access to any of the categories of classified 
information described in Sec. 1.3(a) of Executive Order 12968.
    (b) An employee may not hold a position designated as requiring a 
regular need for access to categories of classified information 
described in Sec. 1.3(a) of Executive Order 12968 unless, as a 
condition of access to such information, the employee files with the 
Department Security Officer:
    (1) A financial disclosure form developed pursuant to Sec. 1.3(c) 
of Executive Order 12968 as part of all background investigations or 
reinvestigations;
    (2) The same financial disclosure form, if selected by the 
Department Security Officer on a random basis; and
    (3) Relevant information concerning foreign travel, as determined 
by the Department Security Officer.


17.43  Reinvestigation requirements.

    Employees who are eligible for access to classified information 
shall be subject to periodic reinvestigations and may also be 
reinvestigated if, at any time, there is reason to believe that they 
may no longer meet the standards for access.

[[Page 36687]]

Sec. 17.44  Access eligibility.

    (a) Determinations of eligibility for access to classified 
information are separate from suitability determinations with respect 
to the hiring or retention of persons for employment by the Department 
or any other personnel actions.
    (b) The number of employees eligible for access to classified 
information shall be kept to the minimum required for the conduct of 
Department functions.
    (c) Eligibility for access to classified information shall be 
limited to classification levels for which there is a need for access. 
No person shall be granted eligibility higher than his or her need.


Sec. 17.45  Need-to-know.

    No person shall be granted access to specific classified 
information unless that person has an actual need-to-know that 
classified information, pursuant to section 2.5 of Executive Order 
12968.


Sec. 17.46  Access by persons outside the Executive Branch.

    (a) Classified information shall not be disseminated outside the 
Executive Branch except under conditions that ensure that the 
information will be given protection equivalent to that afforded within 
the Executive Branch.
    (b) Classified information originated by or in the custody of the 
Department may be made available to individuals or agencies outside the 
Executive Branch provided that such information is necessary for 
performance of a function from which the Federal Government will derive 
a benefit or advantage and that the release is not prohibited by the 
originating department or agency (or foreign government in the case of 
Foreign Government Information). Before such a release is made, the 
head of the Office, Board, Division, or Bureau making the release shall 
determine the propriety of such action, in the interest of the national 
security, and must approve the release. Prior to the release, the 
Department Security Officer must confirm that the recipient is eligible 
for access to the classified information involved and agrees to 
safeguard the information in accordance with the provisions of this 
part.
    (c) Members of Congress, Justices of the United States Supreme 
Court, and Judges of the United States Courts of Appeal and District 
Courts do not require a determination of their eligibility for access 
to classified information by the Department. All other Legislative and 
Judicial personnel including, but not limited to, Bankruptcy and 
Magistrate Judges, congressional committee staffers, congressional 
staffers, court reporters, typists, secretaries, law clerks, and 
translators who require access to classified information must be 
determined eligible by the Department Security Officer pursuant to 
procedures approved by the Assistant Attorney General for 
Administration.
    (d) When other persons outside the Executive Branch who are not 
subject to the National Industrial Security Program require access to 
classified information originated by or in the custody of the 
Department, but do not otherwise possess a proper access authorization, 
an appropriate background investigation must be completed to allow the 
Department Security Officer to determine their eligibility for access 
to classified information. The length of time it generally takes to 
complete an expedited background investigation is 90 days. Therefore, 
all persons requiring access to classified information to participate 
in congressional or judicial proceedings should be identified and the 
background investigation initiated far enough in advance to ensure a 
minimum impact on such proceedings.
    (e) Personnel who are subject to a Department contract or grant or 
who are rendering consultant services to the Department and require 
access to classified information originated by or in the custody of the 
Department shall be processed for such access pursuant to procedures 
approved by the Assistant Attorney General for Administration.
    (f)(1) The requirement that access to classified information may be 
granted only as is necessary for the performance of official duties may 
be waived, pursuant to section 4.5(a) of Executive Order 12958, for 
persons who:
    (i) Are engaged in historical research projects; or
    (ii) Have previously occupied policymaking positions to which they 
were appointed by the President.
    (2) All persons receiving access pursuant to this paragraph (f) 
must have been determined to be trustworthy by the Department Security 
Officer as a precondition before receiving access. Such determinations 
shall be based on such investigation as the Department Security Officer 
deems appropriate. Historical researchers and former presidential 
appointees shall not have access to Foreign Government Information 
without the written permission from an appropriate authority of the 
foreign government concerned.
    (3) Waivers of the ``need-to-know'' requirement under this 
paragraph (f) may be granted by the Department Security Officer 
provided that the Security Programs Manager of the Office, Board, 
Division, or Bureau with classification jurisdiction over the 
information being sought:
    (i) Makes a written determination that such access is consistent 
with the interest of national security;
    (ii) Limits such access to specific categories of information over 
which the Department has classification jurisdiction;
    (iii) Maintains custody of the classified information at a 
Department facility;
    (iv) Obtains the recipient's written and signed agreement to 
safeguard the information in accordance with the provisions of this 
regulation and to authorize a review of any notes and manuscript for 
determination that no classified information is contained therein; and
    (v) In the case of former presidential appointees, limits their 
access to items that such former appointees originated, reviewed, 
signed, or received while serving as a presidential appointee and 
ensures that such appointee does not remove or cause to be removed any 
classified information reviewed.
    (4) If access requested by historical researchers and former 
presidential appointees requires the rendering of services for which 
fair and equitable fees may be charged pursuant to 31 U.S.C. 9701, the 
requester shall be so notified and fees may be imposed.


Sec. 17.47  Denial or revocation of eligibility for access to 
classified information.

    (a) Applicants and employees who are determined to not meet the 
standards for access to classified information established in section 
3.1 of Executive Order 12968 shall be:
    (1) Provided with a comprehensive and detailed written explanation 
of the basis for that decision as the national security interests of 
the United States and other applicable law permit and informed of their 
right to be represented by counsel or other representative at their own 
expense;
    (2) Permitted 30 days from the date of the written explanation to 
request any documents, records, or reports including the entire 
investigative file upon which a denial or revocation is based; and
    (3) Provided copies of documents requested pursuant to this 
paragraph (a) within 30 days of the request to the extent such 
documents would be provided if requested under the Freedom of 
Information Act (5 U.S.C. 552) or the Privacy Act of 1974 (5 U.S.C. 
552a), and as the national security interests and other applicable law 
permit.

[[Page 36688]]

    (b) An applicant or employee may file a written reply and request 
for review of the determination within 30 days after written 
notification of the determination or receipt of the copies of the 
documents requested pursuant to this subpart, whichever is later.
    (c) An applicant or employee shall be provided with a written 
notice of and reasons for the results of the review, the identity of 
the deciding authority, and written notice of the right to appeal.
    (d) Within 30 days of receipt of a determination under paragraph 
(c) of this section, the applicant or employee may appeal that 
determination in writing to the ARC, established under Sec. 17.15. The 
applicant or employee may request an opportunity to appear personally 
before the ARC and to present relevant documents, materials, and 
information.
    (e) An applicant or employee may be represented in any such appeal 
by an attorney or other representative of his or her choice, at his or 
her expense. Nothing in this section shall be construed as requiring 
the Department to grant such attorney or other representative 
eligibility for access to classified information, or to disclose to 
such attorney or representative, or permit the applicant or employee to 
disclose to such attorney or representative, classified information.
    (f) A determination of eligibility for access to classified 
information by the ARC is a discretionary security decision. Decisions 
of the ARC shall be in writing and shall be made as expeditiously as 
possible. Access shall be granted only where facts and circumstances 
indicate that access to classified information is clearly consistent 
with the national security interest of the United States, and any doubt 
shall be resolved in favor the national security.
    (g) The Department Security Officer shall have an opportunity to 
present relevant information in writing or, if the applicant or 
employee appears personally, in person. Any such written submissions 
shall be made part of the applicant or employee's security record and, 
as the national security interests of the United States and other 
applicable law permit, shall also be provided to the applicant or 
employee. Any personal presentations shall be, to the extent consistent 
with the national security and other applicable law, in the presence of 
the applicant or employee.
    (h) When the Attorney General or Deputy Attorney General personally 
certifies that a procedure set forth in this section cannot be made 
available in a particular case without damaging the national security 
interests of the United States by revealing classified information, the 
particular procedure shall not be made available. This is a 
discretionary and final decision not subject to further review.
    (i) This section does not limit the authority of the Attorney 
General pursuant to any other law or Executive order to deny or 
terminate access to classified information if the national security so 
requires and the Attorney General determines that the appeal procedures 
set forth in this section cannot be invoked in a manner that is 
consistent with the national security. Nothing in this section requires 
that the Department provide any procedures under this section to an 
applicant where a conditional offer of employment is withdrawn for 
reasons of suitability or any reason other than denial of eligibility 
for access to classified information. Suitability determinations shall 
not be used for the purpose of denying an applicant or employee the 
review proceedings of this section where there has been a denial or 
revocation of eligibility for access to classified information.

    Dated: June 28, 1996.
Janet Reno,
Attorney General.
[FR Doc. 96-17310 Filed 7-11-96; 8:45 am]
BILLING CODE 4410-01-M