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Rules and Regulations Federal Register

Vol. 70, No. 203

Friday, October 21, 2005

This section of the FEDERAL REGISTER List of Subjects in 5 CFR Part 532 DEPARTMENT OF HOMELAND
contains regulatory documents having general SECURITY
applicability and legal effect, most of which Administrative practice and
are keyed to and codified in the Code of procedure, Freedom of information, Office of the Secretary
Federal Regulations, which is published under Government employees, Reporting and
50 titles pursuant to 44 U.S.C. 1510. recordkeeping requirements, Wages. 6 CFR Part 7
The Code of Federal Regulations is sold by Office of Personnel Management. RIN 1601–AA02
the Superintendent of Documents. Prices of Linda M. Springer,
new books are listed in the first FEDERAL Classified National Security
REGISTER issue of each week. Director.
■ Accordingly, the Office of Personnel AGENCY: Office of the Secretary, DHS.
OFFICE OF PERSONNEL Management is amending 5 CFR part ACTION: Final rule.
MANAGEMENT 532 as follows:
SUMMARY: This final rule revises the
5 CFR Part 532 PART 532—PREVAILING RATE Department of Homeland Security’s
SYSTEMS procedures for managing classified
RIN 3206–AK83
national security information. This rule
■ 1. The authority citation for part 532 implements procedures required under
Prevailing Rate Systems; Redefinition
of the Central North Carolina continues to read as follows: Executive Order 12958, ‘‘Classified
Appropriated Fund Wage Area Authority: 5 U.S.C. 5343, 5346; § 532.707 National Security Information,’’ as
also issued under 5 U.S.C. 552. amended by Executive Order 13292, and
AGENCY: Office of Personnel amends the initial procedures
Management. ■ 2. In appendix C to subpart B, the established when the Department was
ACTION: Final rule. wage area listing for the State of North created in January 2003. Further, this
SUMMARY: The Office of Personnel Carolina is amended by revising the rule delegates to the Chief Security
Management is issuing a final rule to listing for Central North Carolina to read Officer of the Department of Homeland
redefine the geographic boundaries of as follows: Security the responsibility of serving as
the Central North Carolina Federal Wage the ‘‘Senior Agency Official’’ pursuant
Appendix C to Subpart B of Part 532— to Executive Order 12958, as amended.
System (FWS) appropriated fund wage Appropriated Fund Wage and Survey
area. The final rule removes Edgecombe DATES: This final rule is effective
Areas October 21, 2005.
and Wilson Counties, NC, from the
survey area and adds Hoke County, NC, * * * * * FOR FURTHER INFORMATION CONTACT: John
to the survey area. The redefinition of J. Young, Chief, Administrative Security
Edgecombe, Hoke, and Wilson Counties North Carolina Division, Office of Security, Department
aligns the geographic definition of the Central North Carolina of Homeland Security, (202) 772–9614
Central North Carolina wage area more (not a toll free call).
Survey Area
closely with the regulatory criteria used SUPPLEMENTARY INFORMATION:
to define FWS wage areas. North Carolina: Cumberland, Durham,
DATES: This rule is effective on
Harnett, Hoke, Johnston, Orange, Wake, I. Background
November 21, 2005. Wayne. On November 25, 2002, the President
FOR FURTHER INFORMATION CONTACT: Area of Application. Survey area plus: signed into law the Homeland Security
Madeline Gonzalez, (202) 606–2838; e- North Carolina: Alamance, Bladen, Caswell, Act of 2002, Public Law 107–296, 116
mail; Chatham, Davidson, Davie, Edgecombe, Stat. 2135 (6 U.S.C. 101 et seq.) (HSA),
or FAX: (202) 606–4264. Franklin, Forsyth, Granville, Guilford, creating the Department of Homeland
SUPPLEMENTARY INFORMATION: On May Halifax, Lee, Montgomery, Moore, Nash, Security (DHS). DHS is comprised of 22
18, 2005, the Office of Personnel Northampton, Person, Randolph, Federal agencies brought together for
Management (OPM) issued a proposed Richmond, Robeson, Rockingham, the common goals of preventing terrorist
rule (70 FR 28488) to remove Sampson, Scotland, Stokes, Surry, Vance, attacks in the United States, reducing
Edgecombe and Wilson Counties, NC, Warren, Wilson, and Yadkin. the vulnerability of the United States to
from the Central North Carolina survey South Carolina: Dillon, Marion, and terrorist attacks, and minimizing
area and add Hoke County, NC, to the Marlboro. damage and assisting in recovery from
survey area. The proposed rule had a * * * * * attacks that occur in the United States.
30-day comment period, during which [FR Doc. 05–21050 Filed 10–20–05; 8:45 am] DHS came into existence on January
OPM received no comments. 24, 2003 under section 4 of the HSA,
116 Stat. at 2142 (6 U.S.C. 101 note). In
Regulatory Flexibility Act order to facilitate public interaction
I certify that these regulations will not with DHS’s Office of the Secretary and
have a significant economic impact on to meet the mandate set forth in
a substantial number of small entities Executive Order 12958, as amended,
because they will affect only Federal DHS issued an interim final rule to
agencies and employees. establish an initial set of procedures for

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the classification, safeguarding and 2003. It also mandates responsibility to affect the rights of the general public.
declassification of classified national the components for designation of a For the same reasons, the Department
security information. 68 FR 4703 (Jan. security officer/security liaison to has determined that this final rule
27, 2003). Because the procedures implement and oversee the program at should be issued without a delayed
implemented under the January 27, each component. Subpart A sets forth effective date pursuant to 5 U.S.C.
2003 interim final rule were determined potential sanctions that may be imposed 553(d)(3).
by DHS to be agency procedural rules, pursuant to E.O. 12958, as amended.
the interim rule was exempt from prior Regulatory Flexibility Act
These sanctions are independent of
notice and public comment under the criminal penalties under 18 U.S.C. 371, DHS, in accordance with the
Administrative Procedure Act (APA) (5 792–798, 1001; the Act of September 23, Regulatory Flexibility Act, 5 U.S.C.
U.S.C. 553) and became effective upon 1950, ch. 1024, tit. I, section 4, 64 Stat. 605(b), has reviewed this final rule and,
publication. 991, as amended (50 U.S.C. 783); and by approving it, certifies that it will not
On March 25, 2003, the President the National Security Act of 1947, ch. have a significant economic impact on
issued Executive Order 13292, 68 FR 343, tit. VI, section 601, as added by the a substantial number of small entities
15315 (March 28, 2003), which further Intelligence Identities Protection Act of because it pertains to personnel and
amended Executive Order 12958. 1982, Public Law 97–200, section 2, 96 administrative matters affecting the
Executive Order 12958, as amended, Stat. 122 (June 23, 1982), as amended Department. Further, a Regulatory
further directed Federal agencies to (50 U.S.C. 421), or other laws. Each of Flexibility Analysis is not required for
designate a Senior Agency Official to these provisions of law may impose this final rule because the Department
direct and administer the program for sanctions against persons who commit a was not required to publish a general
handling classified national security violation in the handling of classified notice of proposed rulemaking for this
information. Among the responsibilities information and it outlines policy for matter.
of the Senior Agency Official is the the introduction of classified
promulgation of implementing Executive Order 12866
information into judicial proceedings.
regulations that are required to be This rule has been drafted and
published in the Federal Register to the Subpart B—Classified Information reviewed in accordance with Executive
extent such regulations affect the public. Subpart B provides DHS policy on the Order 12866, Regulatory Planning and
DHS is promulgating this final rule, classification and declassification of Review, section 1(b), Principles of
consistent with the mandates set forth national security information and Regulation. This rule is not a significant
under Executive Order 12958, as provisions for the release of classified regulatory action under section 3(f) of
amended, to establish procedures, and information to uncleared persons in an Executive Order 12866.
revise existing DHS procedures for the emergency. Subpart B also provides the
classification, safeguarding and Executive Order 12988
DHS processes for challenging the
declassification of classified national classification of information and, as it This regulation meets the applicable
security information. This final rule is applies to the public, submitting a standards set forth in sections 3(a) and
consistent with similar rules of other request for a mandatory review of 3(b)(2) of Executive Order 12988, Civil
Executive agencies relating to classified information for Justice Reform.
procedures for the classification, declassification and public release. It Executive Order 13132
safeguarding and declassification of also establishes the DHS Classification
classified national security information. Appeals Panel (DHS/CAP) for the This rule will not have substantial
purpose of reviewing appeals of denial direct effects on the States, on the
II. Analysis of This Final Rule relationship between the national
for declassification.
This final rule establishes the government and the States, or on the
procedures necessary for DHS to fulfill III. Regulatory History distribution of power and
its obligations under Executive Order Administrative Procedure Act responsibilities among the various
12958, as amended, ‘‘Classified National levels of government. Therefore, in
Security Information.’’ This final rule is DHS is implementing this rule accordance with Executive Order 13132,
not intended to address or satisfy without notice and the opportunity for DHS has determined that this rule does
obligations mandated to the Department public comment as this rule involves not have sufficient federalism
under Executive Orders 13311, DHS management and organization, and implications to warrant the preparation
Homeland Security Information DHS internal procedures for the of a federalism summary impact
Sharing, 68 FR 45149 (July 31, 2003) or classification and handling of classified statement.
Executive Order 13356, Strengthening national security information.
the Sharing of Terrorism Information to Therefore, this rule is exempt from the Unfunded Mandates Reform Act of 1995
Protect Americans, 69 FR 53599 rulemaking requirements under 5 U.S.C. This rule will not result in the
(September 1, 2004). 553 pursuant to the exclusions in expenditure by State, local, and tribal
section 553(a). Further, this rule governments, in the aggregate, or by the
Subpart A—Administration generally parallels the procedures private sector, of $100 million or more
Subpart A delegates responsibility for currently used by other agencies to in any one year, and it will not
administration of the DHS classification fulfill their obligations under Executive significantly or uniquely affect small
management program to the Chief Order 12958, as amended, regarding governments. Therefore, no actions are
Security Officer who shall act in the classified national security information. necessary under the provisions of the
capacity of ‘‘Senior Agency Official’’ as Implementation of this rule without Unfunded Mandates Reform Act of
defined in E.O. 12958, as amended. This notice and the opportunity for public 1995, 2 U.S.C. 1501 et seq.
delegation had been previously assigned comment is warranted also under the
to the Under Secretary for Information ‘‘good cause’’ standard found under 5 Small Business Regulatory Enforcement
Analysis and Infrastructure Protection U.S.C. 553(b) because it implements Fairness Act of 1996
(IAIP) under the predecessor DHS only national security interests relating This rule is not a major rule as
Interim Final Rule dated January 27, to classified information and does not defined by section 251 of the Small

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

Business Regulatory Enforcement FR 19825, 3 CFR, 1995 Comp., p. 333; E.O. Security Information program pursuant
Fairness Act of 1996 (SBREFA), 5 U.S.C. 13142, 64 FR 66089, 3 CFR, 1999 Comp., p. to Executive Order 12958, as amended.
804. This rule will not result in an 236; 32 CFR part 2001. (b) The Chief Security Officer shall,
annual effect on the economy of $100 § 7.1 Purpose. among other actions:
million or more, a major increase in (1) Oversee and administer the DHS’s
The purpose of this part is to ensure
costs or prices, or significant adverse program established under Executive
that information within the Department
effects on competition, employment, Order 12958, as amended;
of Homeland Security (DHS) relating to (2) Promulgate implementing
investment, productivity, innovation, or the national security is classified,
the ability of United States-based regulations;
safeguarded, and declassified pursuant (3) Establish and maintain
enterprises to compete with foreign- to the provisions of Executive Order
based enterprises in domestic and Department-wide security education
12958, as amended, and implementing and training programs;
export markets. directives from the Information Security (4) Establish and maintain an ongoing
National Environmental Policy Act of Oversight Office (ISOO) of the National self-inspection program including the
1969 Archives and Records Administration periodic review and assessment of the
DHS has reviewed this action for (NARA). DHS’s classified product;
purposes of the National Environmental § 7.2 Scope. (5) Establish procedures to prevent
Policy Act of 1969 (NEPA) (42 U.S.C. unnecessary access to classified
(a) This part applies to all employees,
4321–4347) and has determined that information, including procedures that:
detailees and non-contractor personnel
this action will not have a significant (i) Require that a need for access to
outside the Executive Branch who are
effect on the human environment. classified information is established
granted access to classified information
before initiating administrative
Executive Order 12958, as Amended by the DHS, in accordance with the
procedures to grant access; and
standards in Executive Order 12958, as (ii) Ensure that the number of persons
This Final Rule has been reviewed by amended, and its implementing
the Information Security Oversight granted access to classified information
directives. is limited to the minimum necessary for
Office of the National Archives and (b) This part does not apply to
Records Administration, pursuant to operational and security requirements
contractors, grantees and other
Executive Order 12958, as amended. and needs;
categories of personnel falling under the (6) Develop special contingency plans
List of Subjects in 6 CFR Part 7 purview of Executive Order 12829, for the safeguarding of classified
National Industrial Security Program, information used in or near hostile or
Classified information, Organization,
and its implementing directives. potentially hostile areas;
functions, and authority delegations. (c) This part is independent of and
■ Accordingly, for the reasons set forth (7) Coordinate with the DHS Chief
does not affect any classification
above, 6 CFR chapter I, part 7, is revised Human Capital Officer, as appropriate to
procedures or requirements of the
to read as follows: ensure that the performance contract or
Atomic Energy Act of 1954, as amended
other system used to rate personnel
(42 U.S.C. 2011 et seq).
PART 7—CLASSIFIED NATIONAL performance includes the management
(d) This part does not, and is not
SECURITY INFORMATION of classified information as a critical
intended to, create any right to judicial
element or item to be evaluated in the
Sec. review, or any other right or benefit or
rating of:
7.1 Purpose. trust responsibility, substantive or
(i) Original classification authorities;
7.2 Scope. procedural, enforceable by a party (ii) Security managers or security
7.3 Definitions. against the United States, its agencies or specialists; and
Subpart A—Administration instrumentalities, its officers or (iii) All other personnel whose duties
employees, or any other person. This significantly involve the creation or
7.10 Authority of the Chief Security Officer,
Office of Security.
part creates limited rights to handling of classified information;
7.11 Components’ responsibilities. administrative review of decisions. This (8) Account for the costs associated
7.12 Violations of classified information part does not, and is not intended to, with implementing this part and report
requirements. create any right to judicial review of the cost to the Director of ISOO;
7.13 Judicial proceedings. administrative action. (9) Assign in a prompt manner
Subpart B—Classified Information § 7.3 Definitions. personnel to respond to any request,
7.20 Classification and declassification The terms defined or used in appeal, challenge, complaint, or
authority. Executive Order 12958, as amended, suggestion concerning Executive Order
7.21 Classification of information, and the implementing directives in 32 12958, as amended, that pertains to
CFR parts 2001 and 2004, are applicable classified information that originated in
7.22 Classification pending review. a DHS component that no longer exists
7.23 Emergency release of classified to this part.
and for which there is no clear
information. successor in function;
7.24 Duration of classification. Subpart A—Administration
(10) Report violations, take corrective
7.25 Identification and markings. § 7.10 Authority of the Chief Security
7.26 Derivative classification.
measures and assess appropriate
Officer, Office of Security. sanctions as warranted, in accordance
7.27 Declassification and downgrading.
7.28 Automatic declassification. (a) The DHS Chief Security Officer with Executive Order 12958, as
7.29 Documents of permanent historical (hereafter ‘‘Chief Security Officer’’) is amended;
value. designated as the Senior Agency Official (11) Overseeing DHS participation in
7.30 Classification challenges. as required by section 5.4(d) of special access programs authorized
7.31 Mandatory review for declassification Executive Order 12958, as amended, under Executive Order 12958, as
requests. and, except as specifically provided amended;
Authority: 5 U.S.C. 301; Pub. L. 107–296, elsewhere in this part, is authorized to (12) Direct and administer DHS’s
116 Stat. 2135 (6 U.S.C. 101); E.O. 12958, 60 administer the DHS Classified National personnel security program in

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accordance with Executive Order 12968 under Executive Order 12958, as Subpart B—Classified Information
and other applicable law; amended, or its predecessor orders;
(13) Direct and administer DHS § 7.20 Classification and declassification
(2) Knowingly, willfully, or authority.
implementation and compliance with negligently classify or continue the
the National Industrial Security Program (a) Top Secret original classification
classification of information in violation authority may only be exercised by the
in accordance with Executive Order of Executive Order 12958, as amended,
12829 and other applicable guidance; Secretary of Homeland Security and by
or its implementing directives; or officials to whom such authority is
(14) Perform any other duties as the (3) Knowingly, willfully, or delegated in writing by the Secretary.
Secretary may designate. negligently violate any other provision The Chief Security Officer, as the Senior
(c) The Chief Security Officer shall of Executive Order 12958, as amended, Agency Official, is delegated authority
maintain a current list of all officials or DHS implementing directives, or; to originally classify information up to
authorized pursuant to this part to and including Top Secret. No official
(4) Knowingly, willfully, or
originally classify or declassify who is delegated Top Secret original
negligently grant eligibility for, or allow
documents. classification authority by the Secretary
access to, classified information in may further delegate such authority.
§ 7.11 Components’ responsibilities. violation of Executive Order 12958, or (b) The Chief Security Officer may
its implementing directives, this part, or delegate Secret and Confidential
Each DHS component shall appoint a
DHS implementing directives original classification authority to other
security officer or security liaison to
implement this part. the security officer/ promulgated by the Chief Security officials determined to have frequent
security liaison shall: Officer. need to exercise such authority. No
(a) Implement, observe, and enforce official who is delegated original
§ 7.13 Judicial proceedings.
security regulations or procedures classification authority by the Secretary
within their component with respect to (a) Any DHS official or organization or the Chief Security Officer may further
the classification, declassification, receiving an order or subpoena from a delegate such authority.
safeguarding, handling, and storage of Federal or State court, or an (c) Officials authorized to classify
classified national security information; administrative subpoena from a Federal information at a specified level are also
(b) Report violations of the provisions agency, to produce classified authorized to classify information at a
of this regulation to the Chief Security information (see 6 CFR 5.41 through lower level. In the absence of an official
Officer committed by employees of their 5.49), required to submit classified authorized to exercise classification
component, as required; information for official DHS litigative authority, the person designated to act
(c) Ensure that employees of their purposes, or receiving classified in lieu of such official may exercise the
component acquire adequate security information from another organization official’s classification authority.
education and training, as required by for production of such in litigation, § 7.21 Classification of information,
the DHS classified information security shall notify the Office of the General limitations.
procedures; Counsel, unless the demand for (a) Information may be originally
(d) Continuously review the production is made by the Office of the classified only if all of the following
requirements for personnel access to General Counsel, and immediately standards are met:
classified information as a part of the determine from the agency originating (1) An original classification authority
continuous need-to-know evaluation, the classified information whether the is classifying the information;
and initiate action to administratively information can be declassified. If (2) The information is owned by,
withdraw or reduce the level of access declassification is not possible, DHS produced by or for, or is under the
authorized, as appropriate; and representatives will take appropriate control of the United States
(e) Cooperate fully with any request action to protect such information, Government;
from the Chief Security Officer for pursuant to the provisions of this (3) The information falls within one
assistance in the implementation of this section. or more of the categories of information
part. (b) If a determination is made to specified in section 1.4 of Executive
produce classified information in a Order 12958, as amended; and
§ 7.12 Violations of classified information (4) The original classification
requirements. judicial proceeding in any manner, the
authority determines that the
(a) Any person who suspects or has DHS General Counsel attorney, in
unauthorized disclosure of the
knowledge of a violation of this part, conjunction with the Department of
information reasonably could be
including the known or suspected loss Justice, shall take appropriate steps to
expected to result in damage to the
or compromise of classified information, protect classified information in judicial
national security and such official is
shall promptly report such violations or proceedings and retrieve the
able to identify or describe the damage.
possible violations, pursuant to information when the information is no (b) Information shall be classified as
requirements set forth in DHS longer required in such judicial Top Secret, Secret, or Confidential in
directives. proceedings, in accordance with the accordance with and in compliance
(b) DHS employees and detailees may Department of Justice procedures, and with the standards and criteria in
be reprimanded, suspended without in Federal criminal cases, pursuant to Executive Order 12958, as amended. No
pay, terminated from classification the requirements of Classified other terms shall be used to identify
authority, suspended from or denied Information Procedures Act (CIPA), United States classified information
access to classified information, or Public Law 96–456, 94 Stat. 2025, (18 except as otherwise provided by statute.
subject to other sanctions in accordance U.S.C. App.), and the ‘‘Security (c) Information shall not be classified
with applicable law and DHS Procedures Established Pursuant to in order to:
regulations or directives if they: Public Law 96–456, 94 Stat. 2025, by the (1) Conceal inefficiency, violations of
(1) Knowingly, willfully, or Chief Justice of the United States for the law, or administrative error;
negligently disclose to unauthorized Protection of Classified Information,’’ (2) Prevent embarrassment to a
persons information properly classified and other applicable authorities. person, organization, or agency;

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(3) Restrain competition; within 30 days whether to classify the authorities shall apply a date or event in
(4) Prevent or delay release of information. which the information will be
information that does not require automatically declassified.
protection in the interest of national § 7.23 Emergency release of classified (b) The original classification
security. authority shall attempt to establish a
(d) Information may be reclassified (a) The Secretary of Homeland specific date or event not more than 10
after it has been declassified and Security has delegated to certain DHS years after the date of origination in
released to the public under proper employees the authority to disclose which the information will be
authority only in accordance with the classified information to an individual automatically declassified. If the
following conditions: or individuals not otherwise routinely original classification authority cannot
(1) The reclassification action is taken eligible for access in emergency determine an earlier specific date or
under the personal authority and with situations when there is an imminent event it shall be marked for automatic
the written approval of the Secretary or threat to life or in defense of the declassification 10 years from the date
Deputy Secretary of Homeland Security, homeland. of origination.
based on the determination that the (b) In exercising this authority, the
(c) If the original classification
reclassification of the information is delegees shall adhere to the following
authority determines that the sensitivity
necessary in the interest of the national of the information requires classification
(1) Limit the amount of classified
security; beyond 10 years, it may be marked for
information disclosed to a minimum to
(2) The reclassification of the automatic declassification for up to 25
achieve the intended purpose;
information meets the standards and (2) Limit the number of individuals years from the date of original
criteria for classification pursuant to who receive it to only those persons classification decision.
Executive Order 12958, as amended; with a specific need-to-know; (d) Original classification authorities
(3) The information may be (3) Transmit the classified do not have the authority to classify or
reasonably recovered; and information through approved retain the classification of information
(4) The reclassification action is communication channels by the most beyond 25 years from the date of
reported promptly to the Director of secure and expeditious method origination. The only exception to this
ISOO. possible, or by other means deemed rule is when disclosure of the
(e) Information that has not necessary in exigent circumstances; information could be expected to reveal
previously been disclosed to the public (4) Provide instructions about what the identity of a confidential human
under proper authority may be specific information is classified and source or human intelligence source. In
classified or reclassified after DHS has how it should be safeguarded. Physical this instance, the information may be
received a request for it under the custody of classified information must marked for declassification as ‘‘25X1–
Freedom of Information Act (5 U.S.C. remain with an authorized Federal Human,’’ indicating that the information
552), the Privacy Act of 1974 (5 U.S.C. Government entity, in all but the most is exempt from the ‘‘25 Year Rule’’ for
552a), or the mandatory review extraordinary circumstances as automatic declassification. This marking
provisions of Executive Order 12958, as determined by the delegated official; is not authorized for use when the
amended, section 3.5. When it is (5) Provide appropriate briefings to information pertains to non-human
necessary to classify or reclassify such the recipients on their responsibilities intelligence sources or intelligence
information, it shall be forwarded to the not to disclose the information and methods. In all other instances,
Chief Security Officer and classified or obtain from the recipients a signed DHS classification beyond 25 years shall only
reclassified only at the direction of the Emergency Release of Classified be authorized in accordance with § 7.28
Secretary or Deputy Secretary of Information Non-disclosure Form. In of this part and Executive Order 12958,
Homeland Security. emergency situations requiring as amended.
immediate verbal release of information,
§ 7.22 Classification pending review. § 7.25 Identification and markings.
the signed nondisclosure agreement
(a) Whenever persons who do not memorializing the briefing may be (a) Classified information must be
have original classification authority received after the emergency abates; marked pursuant to the standards set
originate or develop information that (6) Within 72 hours of the disclosure forth in section 1.6 of Executive Order
they believe requires immediate of classified information, or the earliest 12958, as amended; 32 CFR part 2001,
classification and safeguarding, and no opportunity that the emergency permits, subpart B; and internal DHS guidance
authorized classifier is available, that but no later than 7 days after the release, provided by the Chief Security Officer.
person shall: the disclosing authority must notify the (b) Foreign government information
(1) Safeguard the information in a DHS Chief Security Officer and the shall retain its original classification
manner appropriate for the originating agency of the information markings or be assigned a U.S.
classification level they believe it to be; disclosed. A copy of the signed classification that provides a degree of
(2) Apply the appropriate overall nondisclosure agreements should be protection at least equivalent to that
classification markings; and forwarded with the notification under required by the entity that furnished the
(3) Within five working days, securely this paragraph (b)(6), or as soon information.
transmit the information to the thereafter as practical. (c) Information assigned a level of
organization that has appropriate (7) Release of information pursuant to classification under predecessor
subject matter interest and classification this authority does not constitute Executive Orders shall remain classified
authority. declassification of the information. at that level of classification, except as
(b) When it is not clear which (8) Authority to disclose classified otherwise provided herein, i.e., the
component would be the appropriate information may not be further information is reclassified or
original classifier, the information shall delegated. declassified.
be sent to the Chief Security Officer to
determine the appropriate organization. § 7.24 Duration of classification. § 7.26 Derivative classification.
(c) The organization with (a) At the time of original (a) Derivative classification is defined
classification authority shall decide classification, original classification as the incorporating, paraphrasing,

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restating, or generating in a new form recommendation to the Secretary on this section, and be approved pursuant
information that is already classified, whether the public interest in disclosure to paragraph (c) of this section.
and marking the newly developed outweighs the damage to national
material consistent with the security that might reasonably be § 7.29 Documents of permanent historical
classification markings that apply to the expected from disclosure. The Secretary
source information. Information is also shall decide whether to declassify the The original classification authority,
derivatively classified when information. The decision of the to the greatest extent possible, shall
classification is based on instructions Secretary shall be final. This provision declassify classified information
provided in a security classification does not amplify or modify the contained in records determined to have
guide. substantive criteria or procedures for permanent historical value under 44
(b) Persons need not possess original classification or create any substantive U.S.C. 2107 before they are accessioned
classification authority to derivatively or procedural rights subject to judicial into the National Archives.
classify information based on source review. § 7.30 Classification challenges.
documents or classification guides. (d) Each component shall develop
(c) Persons who apply derivative (a) Authorized holders of information
schedules for declassification of records
classification markings shall observe classified by DHS who, in good faith,
in the National Archives.
original classification decisions and believe that specific information is
carry forward to any newly created § 7.28 Automatic declassification. improperly or unnecessarily classified
documents the pertinent classification (a) Subject to paragraph (b) of this are encouraged and expected to
markings. section, all classified information challenge the classification status of that
(d) Information classified derivatively contained in records that are more than information pursuant to section 1.8 of
from other classified information shall 25 years old that have been determined Executive Order 12958, as amended.
be classified and marked in accordance to have permanent historical value shall Authorized holders may submit
with the standards set forth in sections be declassified automatically on classification challenges in writing to
2.1 and 2.2 of Executive Order 12958, as December 31, 2006. Subsequently, all the original classification authority with
amended, 32 CFR 2001.22, and internal classified information in such records jurisdiction over the information in
DHS guidance provided by the Chief shall be automatically declassified not question. If an original classification
Security Officer. later than 25 years after the date of its authority cannot be determined, the
original classification with the challenge shall be submitted to the
§ 7.27 Declassification and downgrading. exception of specific information Chief Security Officer. The challenge
(a) Classified information shall be exempt from automatic declassification need not be more specific than a
declassified as soon as it no longer pursuant to section 3.3 (b) through (d) question as to why the information is or
meets the standards for classification. of Executive Order 12958, as amended. is not classified, or is classified at a
Declassification and downgrading is (b) At least 180 days before certain level.
governed by Part 3 of Executive Order information is declassified (b) If anonymity of the challenger is
12958, as amended, implementing ISOO automatically under this section, the requested, the challenger may submit
directives at 32 CFR part 2001, subpart Chief Security Officer shall notify the the challenge to the Office of Security.
C, and applicable internal DHS ISOO of any specific information that The Office of Security will act as an
direction provided by the Chief Security DHS proposes to exempt from automatic agent for the challenger and the identity
Officer. declassification. The notification shall of the challenger will be redacted.
(b) Information shall be declassified include: (c) The original classification
or downgraded by the official who (1) A description of the information; authority shall promptly, and in no case
authorized the original classification if (2) An explanation of why the later than 60 days, provide a written
that official is still serving in the same information is exempt from automatic response to the submitter. The original
position, the originator’s successor, or a declassification and must remain classification authority may classify or
supervisory official of either, or by classified for a longer period of time; declassify the information subject to the
officials delegated such authority in and challenge and, if applicable, state
writing by the Secretary of Homeland (3) A specific date or event for specific reasons why the original
Security or the Chief Security Officer. declassification of the information classification determination was proper.
(c) It is presumed that information whenever the information exempted If the original classification authority is
that continues to meet the classification does not identify a confidential human not able to respond within 60 days, he
requirements under Executive Order source or human intelligence source. or she shall inform the individual who
12958, as amended, requires continued (c) Proposed exemptions under this filed the challenge in writing of that
protection. In some exceptional cases section shall be forwarded to the Chief fact, and the anticipated determination
during declassification reviews, the Security Officer. When the Chief date.
need to protect classified information Security Officer determines the (d) The individual challenging the
may be outweighed by the public exemption request is consistent with classification will be notified of the
interest in disclosure of the information, this section, he or she will submit the determination made by the original
and in these cases the information exemption request to the Executive classification authority and that the
should be declassified. If it appears that Secretary of the Interagency Security individual may appeal this
the public interest in disclosure of the Classification Appeals Panel (ISCAP) for determination to the Chief Security
information may outweigh the need to approval. Officer. Upon receipt of such appeals,
protect the information, the (d) Declassification guides that the Chief Security Officer shall convene
declassification reviewing official shall narrowly and precisely define exempted a DHS Classification Appeals Panel
refer the information with a information may be used to exempt (DHS/CAP). The DHS/CAP shall, at a
recommendation for decision to the information from automatic minimum, consist of representatives
Chief Security Officer. The Chief declassification. Declassification guides from the Office of Security, the Office of
Security Officer shall review the must include the exemption notification General Counsel, and a representative
information and make a information detailed in paragraph (b) of from the component having jurisdiction

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

over the information. Additional 701, 702, or 703 of the National Security (k) If the requester files an appeal
members may be added as determined Act of 1947, as added and amended (50 through the DHS/CAP, and the appeal is
by the DHS Chief Security Officer. The U.S.C. 431 through 433), or other denied, the requester shall be notified of
DHS/CAP shall be chaired by the Chief provisions of law, shall not be the right to appeal the denial to the
Security Officer. processed. The DHS Disclosure Officer ISCAP pursuant to section 5.3 of
(e) If the requester files an appeal will notify the requester of such denial. Executive Order 12958, as amended,
through the DHS/CAP, and the appeal is (e) If documents or material being and the rules issued by the ISCAP
denied, the requester shall be notified of reviewed for declassification under this pursuant to section 5.3 of Executive
the right to appeal the denial to the section contain information that has Order 12958, as amended.
Interagency Security Classification been originally classified by another Dated: October 8, 2005.
Appeals Panel (ISCAP) pursuant to government agency, the reviewing Michael Chertoff,
section 5.3 of Executive Order 12958, as authority shall notify the DHS
amended, and the rules issued by the Disclosure Officer. Unless the
ISCAP pursuant to section 5.3 of [FR Doc. 05–21011 Filed 10–20–05; 8:45 am]
association of that organization with the
Executive Order 12958, as amended. requested information is itself classified, BILLING CODE 4410–10–U
(f) Any individual who challenges a the DHS Disclosure Officer will then
classification and believes that any notify the requester of the referral.
action has been taken against him or her (f) A DHS component may refuse to DEPARTMENT OF AGRICULTURE
in retaliation or retribution because of confirm or deny the existence, or non-
that challenge shall report the facts to existence, of requested information Agricultural Marketing Service
the Office of the Inspector General or when its existence or non-existence, is
other appropriate office. properly classified. 7 CFR Part 205
(g) Nothing in this section shall (g) DHS components shall make a [Docket Number TM–05–02]
prohibit a person from informally final determination on the request as
challenging the classified status of soon as practicable but within one year National Organic Program (NOP);
information directly to the original from receipt. When information cannot Amendment to the National List of
classification authority. be declassified in its entirety, Allowed and Prohibited Substances
(h) Requests for review of classified components shall make reasonable (Livestock)
material for declassification by persons efforts to redact those portions that still
other than authorized holders are AGENCY: Agricultural Marketing Service,
meet the standards for classification and
governed by 6 CFR 7.31. USDA.
release those declassified portions of the
requested information that constitute a ACTION: Final rule.
§ 7.31 Mandatory review for
declassification requests. coherent segment. SUMMARY: This final rule amends the
(a) Any person may request that (h) DHS components shall notify the U.S. Department of Agriculture’s
classified information be reviewed for DHS Disclosure Officer of the (USDA) National List of Allowed and
declassification pursuant to the determination made in the processing of Prohibited Substances (National List) to
mandatory declassification review a mandatory review request. Such reflect one recommendation submitted
provisions of section 3.6 of Executive notification shall include the number of to the Secretary by the National Organic
Order 12958, as amended. Such requests pages declassified in full; the number of Standards Board (NOSB) on March 3,
shall be sent to the Departmental pages declassified in part; and the 2005. Consistent with the
Disclosure Officer, Privacy Office, 245 number of pages where declassification recommendation from the NOSB, this
Murray Lane, SW., Building 410, was denied. final rule revises the annotation of one
Washington, DC 20528. (i) The DHS Disclosure Officer shall substance on the National List,
(b) The request must sufficiently maintain a record of all mandatory methionine, to extend its use in organic
describe the document or material with review actions for reporting in poultry production until October 21,
enough specificity to allow it to be accordance with applicable Federal 2008.
located by the component with a requirements.
(j) The mandatory declassification EFFECTIVE DATE: This rule becomes
reasonable amount of effort. When the
description of the information in the review system shall provide for effective October 22, 2005.
request is deficient, the component shall administrative appeal in cases where FOR FURTHER INFORMATION CONTACT:
solicit as much additional identifying the review results in the information Arthur Neal, Director of Program
information as possible from the remaining classified. The requester shall Administration, Telephone: (202) 720–
requester. If the information or material be notified of the results of the review 3252; Fax: (202) 205–7808.
requested cannot be obtained with a and of the right to appeal the denial of SUPPLEMENTARY INFORMATION:
reasonable amount of effort, the declassification. To address such
appeals, the DHS Disclosure Office shall I. Background
component shall provide the requester,
through the DHS Disclosure Officer, convene a DHS Classification Appeals On December 21, 2000, the Secretary
with written notification of the reasons Panel (DHS/CAP). The DHS/CAP shall, established, within the NOP regulations
why no action will be taken and of the at a minimum, consist of representatives [7 CFR part 205], the National List
requester’s right to appeal. from the Disclosure Office, the Office of (§§ 205.600 through 205.607). The
(c) Requests for review of information Security, the Office of General Counsel, National List identifies synthetic
that has been subjected to a and a representative from the substances that are allowed and
declassification review request within component having jurisdiction over the nonsynthetic substances that are
the preceding two years shall not be information. Additional members may prohibited in organic crop and livestock
processed. The DHS Disclosure Officer be added as determined by the DHS production. The National List also
will notify the requester of such denial. Disclosure Officer. The DHS/CAP shall identifies nonsynthetic and synthetic
(d) Requests for information exempted be chaired by the DHS Disclosure substances that are allowed for use in
from search or review under sections Officer. certified handling operations. Under the

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