Classified National Security Information and Access to Classified Information

Federal RegisterJul 10, 1997

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DEPARTMENT OF JUSTICE

28 CFR Part 17

[A.G. Order No. 2091-97]

Classified National Security Information and Access to Classified

Information

AGENCY: Department of Justice.

ACTION: Final rule.

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SUMMARY: This 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.

DATE: This rule will become effective August 11, 1997.

FOR FURTHER INFORMATION CONTACT:

D. Jerry Rubino, Director, Security and Emergency Planning Staff,

Justice Management Division, Department of Justice, Washington, DC

20530. Telephone: 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 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, and the rule was

published as a proposed rule on July 12, 1996 at 61 FR 36678. One

comment was received during the comment period, which ended September

10, 1996.

The one comment received on the proposed rule came from the

Secretary of the Judicial Conference of the United States regarding

Sec. 17.46(c). Section 17.46(c) stated in part, Magistrate Judges'

eligibility for access to classified information will be based on

procedures approved by the Assistant Attorney General for

Administration. The Secretary expressed concern that such procedures

might delay litigation and impair the ability of Magistrate Judges to

perform their statutory responsibilities.

In response to this concern, Sec. 17.46(c) was modified so that

Magistrate Judges' eligibility for access to classified information

will be based on procedures approved by the Assistant Attorney General

for Administration, in consultation with the Juridical Conference of

the United States.

Executive Order 12866

This regulation has been drafted and reviewed in accordance with

Executive Order No. 12866, 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

Sec. 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.

This rule has no federalism implications warranting the preparation

of a Federalism Assessment in accordance with Executive Order No.

12612.

List of Subjects in 28 CFR Part 17

Classified information, Foreign relations.

For the reasons set forth in the preamble, part 17 of title 28 of

the Code of Federal Regulations is revised to read as follows:

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 Delcassification 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

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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 appropriate exceptions; and establishes procedures for authorized

holders of classified information to challenge the classification of

information.

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 others 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).

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 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.

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

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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 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 regulation. 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;

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.

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.

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.

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 (FBI) 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

[[Page 36987]]

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 wilfully 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.

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 regulation.

(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.)

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

any the maintenance of any classified 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 regulation 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 it 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 at an

early stage, or as soon as circumstances indicate these policies must

be considered. Except as provided in paragraph (j) of this section for

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.

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.

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(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 materials 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 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 methods

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 republication 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 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 giving the Department notice of their intention

to proceed despite the Department's request 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

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.

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

the control of the United States Government;

(2) The information falls within one or more of the categories of

information

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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.

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, 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 original classifier, the information shall be sent to the

Department Security Officer to determine the appropriate organization.

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 of 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.

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; ISOO implementing

directives in 32 CFR 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.

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.

information shall be classified and marked in accordance with the

standards set forth in sections 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 Sec. 3.1-3.3 of Executive Order 12958,

implementing ISOO directives at 32 CFR 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, or a

supervisory official of either, or by officials delegated such

authority in writing by the Attorney General or the Assistant Attorney

General for Administration.

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

[[Page 36990]]

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 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 human intelligence source.

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 records

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.

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 response 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 or the Office of Professional Responsibility, as

appropriate.

(g) Requests for review of classified material 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 section 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 (OIP), 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

[[Page 36991]]

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 the DRC in the

case of an appeal, and provide the requester with an acknowledgement of

receipt of the request.

deficient, the component shall solicit as much additional identifying

information as possible from the requestor. 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 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 requests 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 that 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

decisions.

(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 section 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.

Supart 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 the person--

(1) Has been determined to be eligible for access in accordance

with sections 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 indicated 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.

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 section 1.3(a) of Executive Order 12968.

[[Page 36992]]

(b) An employee may not hold a position designated as requiring a

regular need for access to categories of classified information

described in section 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 section

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.

Sec. 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.

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.

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.

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. Federal Magistrate Judges

must be determined eligible for access to classified information by the

Department Security Officer pursuant to procedures approved by the

Assistant Attorney General for Administration in consultation with the

Judicial Conference of the United States. All other Legislative and

Judicial personnel including, but not limited to, congressional staff,

court reporters, typists, secretaries, law clerks, and translators who

require access to classified information must be determined eligible by

the Department Security Officer consistent with standards established

in this regulation.

(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.

[[Page 36993]]

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.

(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.

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

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 of 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's 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: July 1, 1997.

Janet Reno,

Attorney General.

[FR Doc. 97-17925 Filed 7-9-97; 8:45 am]

BILLING CODE 4410-AR-M

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.