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9 November 2007
[Federal Register: November 8, 2007 (Volume 72, Number 216)]
[Rules and Regulations]
[Page 63104-63106]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08no07-7]
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DEPARTMENT OF THE TREASURY
31 CFR Part 2
Implementing Procedures for Mandatory Declassification Review and
Access to Classified Information by Historical Researchers, Former
Treasury Presidential and Vice Presidential Appointees, and Former
Presidents and Vice Presidents
AGENCY: Departmental Offices, Treasury.
ACTION: Final rule.
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SUMMARY: Section 5.4 of Executive Order 13292 requires the Department
of the Treasury to promulgate implementing regulations with respect to
classified national security information and to publish such
regulations to the extent that they affect members of the public. These
regulations relate to the processing of mandatory declassification
review requests by the public and providing access to classified
information, consistent with the interest of the national security, to
historical researchers, former Treasury Presidential and Vice
Presidential appointees, and former Presidents and Vice Presidents. The
Department of the Treasury is revising its implementing regulations
relating to classified national security information in 31 CFR part 2
to address only these two matters relating to the public. All other
Treasury regulations pertaining to internal procedures governing
classified national security information under Executive Order 13292
have been transferred to the Treasury Security Manual.
DATES: Effective Date: November 8, 2007.
FOR FURTHER INFORMATION CONTACT: Robert A. McMenamin, Assistant
Director (Information Security), Department of the Treasury, Office of
Security Programs, Room 3180 Annex, 1500 Pennsylvania Avenue, NW.,
Washington, DC 20220, telephone (202) 622-1055 (not a toll-free
number).
SUPPLEMENTARY INFORMATION: These regulations restate in pertinent part
without substantive changes, existing processes for mandatory
declassification review and access to classified information by
historical researchers, former Treasury Presidential and Vice
Presidential appointees, and former Presidents and Vice Presidents;
updates the fee schedule for processing declassification review; and
removes provisions in the current regulations from 31 CFR part 2 that
apply to Treasury personnel and which have been transferred to the
Treasury Security Manual. Accordingly, pursuant to 5 U.S.C. 553(b)(B)
and (d)(3), the Department of the Treasury finds good cause that prior
notice and public procedures with respect to this rule are unnecessary
and contrary to the public interest, and that good cause exists for
making this rule effective upon the date of publication in the Federal
Register.
Pursuant to Executive Order 12866, it has been determined that this
final rule is not a significant regulatory action, and therefore a
regulatory impact analysis is not required. Because no notice of
proposed rulemaking is required, the provisions of the Regulatory
Flexibility Act, 5 U.S.C. Ch 6, do not apply.
List of Subjects in 31 CFR Part 2
Archives and records, Classified information, Security measures.
0
For the reasons stated in the preamble, 31 CFR part 2 is revised to
read as follows:
PART 2--NATIONAL SECURITY INFORMATION
Sec.
2.1 Processing of mandatory declassification review requests.
2.2 Access to classified information by historical researchers,
former Treasury Presidential and Vice Presidential appointees, and
former Presidents and Vice Presidents.
Authority: 31 U.S.C. 321, E.O. 12958, 60 FR 19825, E.O. 13292,
68 FR 15315.
Sec. 2.1 Processing of mandatory declassification review requests.
(a) Except as provided by section 3.4(b) of Executive Order 13292,
Further Amendment to Executive Order 12958, as amended, Classified
National Security Information, all information classified by the
Department of the Treasury under these Orders or any predecessor
Executive Order shall be subject to mandatory declassification review
by the Department, if:
(1) The request for a mandatory declassification review describes
the document or material containing the information with sufficient
specificity to enable Treasury personnel to locate it with a reasonable
amount of effort;
(2) The information is not exempt from search and review under
sections 105C, 105D, or 701 of the National Security Act of 1947 (50
U.S.C. 431, 432 and 432a); and
(3) The information has not been reviewed for declassification
within the past 2 years or the information is not the subject of
pending litigation.
(b) Requests for classified records originated by the Department of
the Treasury shall be directed to the Office of Security Programs,
Attention:
[[Page 63105]]
Assistant Director (Information Security), 1500 Pennsylvania Avenue,
NW., Washington, DC 20220. Upon receipt of each request for mandatory
declassification review, pursuant to section 3.5 of Executive Order
13292, the following procedures will apply:
(1) The Office of Security Programs will acknowledge receipt of the
request.
(2)(i) A mandatory declassification review request need not
identify the requested information by date or title of the responsive
records, but must be of sufficient specificity to allow Treasury
personnel to locate records containing the information sought with a
reasonable amount of effort. Whenever a request does not reasonably
describe the information sought, the requester will be notified by the
Office of Security Programs that unless additional information is
provided or the scope of the request is narrowed, no further action
will be undertaken with respect to the request.
(ii) If Treasury has reviewed the information within the past 2
years and determined that all or part thereof remains classified, or
the information is the subject of pending litigation, the requester
shall be so informed and advised of the requester's appeal rights.
(3) The Office of Security Programs will determine the appropriate
Treasury offices or bureaus to conduct the mandatory declassification
review. The Office of Security Programs will also advise Treasury and/
or bureau reviewing officials concerning the mandatory declassification
review process. Classified information relating to intelligence
activities (including special activities), intelligence sources or
methods, or cryptology will also be coordinated with the Office of the
Assistant Secretary (Intelligence and Analysis). As appropriate, the
Office of Security Programs will refer requests to other Federal
departments and agencies having a direct interest in the requested
documents.
(4)(i) Treasury personnel undertaking a mandatory declassification
review shall make reasonable efforts to determine if particular
information may be declassified. Reviewing officials may rely on
applicable exemption criteria under the Freedom of Information Act, the
Privacy Act, and any other applicable law that authorizes the
withholding of information. Reviewing officials shall also identify the
amount of search and review time required to process each request.
Barring extenuating circumstances, mandatory declassification reviews
for reasonably small volumes of records should be completed in a timely
fashion. A final determination regarding large volumes of records
should ordinarily be made within one year of Treasury's receipt of any
mandatory declassification review request.
(ii) If the Director, Office of Security Programs determines that a
Treasury office or bureau responsible for conducting a mandatory
declassification review is not making reasonable efforts to review
classified information subject to a mandatory declassification request,
the Director may authorize Treasury-and/or bureau-originated
information to be declassified in consultation with the Department's
Senior Agency Official.
(iii) If information cannot be declassified in its entirety,
reasonable efforts, consistent with applicable law, will be made to
release those declassified portions of the requested information that
constitute a coherent segment. Upon the denial or partial denial of a
declassification request, the requester will be so informed by the
Office of Security Programs and advised of the requester's appeal
rights.
(5)(i) If Treasury receives a mandatory declassification review
request for information in its possession that were originated by
another Federal department or agency, the Office of Security Programs
will forward the request to that department or agency for a
declassification determination, together with a copy of the requested
records, a recommendation concerning a declassification determination,
and a request to be advised of that department's or agency's
declassification determination. The Office of Security Programs may,
after consultation with the originating department or agency, inform
any requester of the referral unless such association is itself
classified under Executive Order 13292 or prior orders.
(ii) Mandatory declassification review requests concerning
classified information originated by a Treasury office or bureau that
has been transferred to another Federal department or agency will be
forwarded to the appropriate successor department or agency for a
declassification determination.
(6) If another Federal department or agency forwards a mandatory
declassification review request to Treasury for information in its
custody that was classified by Treasury, the Office of Security
Programs will:
(i) Advise the referring department or agency as to whether it may
notify the requester of the referral; and
(ii) Respond to the Federal department, agency, or requester, as
applicable, in accordance with the requirements of this section.
(7)(i) Upon the denial, in whole or in part, of a request for the
mandatory declassification review of information, the Office of
Security Programs will so notify the requester in writing and will
inform the requester of the right to appeal the classification
determination within 60 calendar days of the receipt of the
classification determination. The notice will also advise the requester
of the name and address of the Treasury official who will be
responsible for deciding an appeal (the Deciding Official). The Office
of Security Programs will coordinate appeals with the appropriate
Treasury offices and bureaus.
(ii) The Deciding Official should make a determination on an appeal
within 30 working days following the receipt of the appeal, or within
60 working days following receipt if the Deciding Official determines
that additional time is required to make a determination and so
notifies the requester. The Deciding Official should notify the
requester in writing of Treasury's determination on appeal and, if
applicable, the reasons for any whole or partial denial of the appeal.
The Office of Security Programs will also notify the requester of their
right of a final appeal to the Interagency Security Classification
Appeals Panel, as appropriate, under 32 CFR 2001.33.
(8)(i) Treasury may charge fees for search, review, and duplicating
costs in connection with a mandatory declassification review request.
(A) The fee for services of Treasury personnel involved in locating
and/or reviewing records will be charged at the rate of a GS-11, Step 1
employee, in the Washington-Baltimore Federal pay area, in effect when
the mandatory declassification review request is received by the Office
of Security Programs for searches that take more than two hours or for
review times that are greater than two hours. Fees may be waived, in
writing, by a bureau head or the equivalent Treasury official at the
Assistant Secretary level.
(B) There is no fee for duplicating the first 100 pages of fully or
partially releasable documents. The cost of additional pages is 20
cents per page. No charges shall be levied for search and/or review
time requiring less than 2 hours.
(ii) If it is estimated that the fees associated with a mandatory
declassification review will exceed $100, the Office of Security
Programs will notify the requester in writing of the estimated costs
and shall obtain satisfactory written assurance of full payment or
require the requester to make an advance payment of the entire
estimated fee before proceeding to
[[Page 63106]]
process the request. Treasury may request pre-payment where the fee is
likely to exceed $500. After 60 calendar days without receiving the
requester's written assurance of full payment or agreement to make pre-
payment of estimated fees (or to amend the mandatory declassification
review request in a manner as to result in fees acceptable to the
requester), Treasury may administratively terminate the mandatory
declassification review request. Failure of a requester to pay fees
after billing will result in future requests not being honored. Nothing
in this paragraph will preclude Treasury from taking any other lawful
action to recover payment for costs incurred in processing a mandatory
declassification review request.
(iii) Payment of fees shall be made by check or money order to the
Treasurer of the United States. Fees charged by Treasury for mandatory
declassification review are separate and distinct from any other fees
that may be imposed by a Presidential Library, the National Archives
and Records Administration, or another Federal department or agency.
Sec. 2.2 Access to classified information by historical researchers
and former Treasury Presidential and Vice Presidential appointees,
former Presidents and Vice Presidents.
(a) Access to classified information may be granted only to
individuals who have a need-to-know the information. This requirement
may be waived, however, for individuals who:
(1) Are engaged in historical research projects;
(2) Previously occupied a position in the Treasury to which they
were appointed by the President under 3 U.S.C. 105(a)(2)(A), or the
Vice President under 3 U.S.C. 106(a)(1)(A); or
(3) Served as President or Vice President.
(b) Access to classified information may be granted to individuals
described in paragraph (a) of this section upon:
(1) A written determination by Treasury's Senior Agency Official,
under Section 5.4(d) of Executive Order 13292, that access is
consistent with the interest of the national security; and
(2) Receipt of the individual's written agreement to safeguard
classified information, including taking all appropriate steps to
protect classified information from unauthorized disclosure or
compromise. This written agreement must also include the individual's
consent to have any and all notes (including those prepared or stored
in electronic media, whether written or oral) reviewed by authorized
Treasury personnel to ensure that no classified information is
contained therein and, if so, that the classified information is not
published.
(c)(i)(A) A historical researcher is not authorized to have access
to foreign government information or information classified by another
Federal department or agency.
(B) A former Treasury Presidential or Vice Presidential appointee
is only authorized access to classified information that the former
official originated, reviewed, signed or received while serving as such
an appointee.
(C) A former President or Vice President is only authorized access
to classified information that was prepared by Treasury while that
individual was serving as President or Vice President.
(ii) Granting access to classified information pursuant to this
section does not constitute the granting of a security clearance for
access to classified information.
(d) Treasury personnel will coordinate access to classified
information by individuals described in paragraph (a) of this section
with the Director, Office of Security Programs, who will ensure that
the written agreement described in paragraph (b)(2) of this section is
signed as a condition of being granted access to classified
information.
(e) Any review of classified information by an individual described
in paragraph (a) of this section shall take place in a location
designated by the Director, Office of Security Programs. Such persons
must be accompanied at all times by appropriately authorized Treasury
personnel authorized to have access to the classified information being
reviewed. All notes (including those prepared or stored in electronic
media, whether written or oral) made by an individual described in
paragraph (a) of this section shall remain in the custody of the Office
of Security Programs pending a determination by appropriately cleared
subject matter experts that no classified information is contained
therein.
(f) An individual described in paragraph (a) of this section is
subject to search, as are all packages or carrying cases prior to
entering or leaving Treasury. Access to Treasury-originated classified
information at another Federal department or agency, as may be
authorized by the Director, Office of Security Programs shall be
governed by security protocols in effect at the other Federal
department or agency.
(g) Treasury personnel must perform a physical verification and an
accounting of all classified information each time such information is
viewed by an individual described in paragraph (a) of this section.
Physical verification and an accounting of all classified information
shall be made both prior to and after viewing. Any discrepancy must be
immediately reported to the Director, Office of Security Programs.
(h) An individual described in paragraph (a) of this section may be
charged reasonable fees for services rendered by Treasury in connection
with the review of classified information under this section. To the
extent such services involve searching, reviewing, and copying
material, the provisions of Sec. 2.1(b)(8) shall apply.
Dated: October 30, 2007.
Wade C. Straw,
Director, Office of Security Programs.
[FR Doc. E7-21951 Filed 11-7-07; 8:45 am]
BILLING CODE 4811-42-P