[Federal Register Volume 75, Number 2 (Tuesday, January 5, 2010)]
[Presidential Documents]
[Pages 705-731]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-31418]
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Part VII
The President
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Executive Order 13526--Classified National Security Information
Memorandum of December 29, 2009--Implementation of the Executive Order
``Classified National Security Information''
Order of December 29, 2009--Original Classification Authority
Presidential Documents
Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 /
Presidential Documents
___________________________________________________________________
Title 3--
The President
[[Page 707]]
Executive Order 13526 of December 29, 2009
Classified National Security Information
This order prescribes a uniform system for classifying,
safeguarding, and declassifying national security
information, including information relating to defense
against transnational terrorism. Our democratic
principles require that the American people be informed
of the activities of their Government. Also, our
Nation's progress depends on the free flow of
information both within the Government and to the
American people. Nevertheless, throughout our history,
the national defense has required that certain
information be maintained in confidence in order to
protect our citizens, our democratic institutions, our
homeland security, and our interactions with foreign
nations. Protecting information critical to our
Nation's security and demonstrating our commitment to
open Government through accurate and accountable
application of classification standards and routine,
secure, and effective declassification are equally
important priorities.
NOW, THEREFORE, I, BARACK OBAMA, by the authority
vested in me as President by the Constitution and the
laws of the United States of America, it is hereby
ordered as follows:
PART 1--ORIGINAL CLASSIFICATION
Section 1.1. Classification Standards. (a) Information
may be originally classified under the terms of this
order only if all of the following conditions are met:
(1) an original classification authority is classifying the information;
(2) the information is owned by, produced by or for, or is under the
control of the United States Government;
(3) the information falls within one or more of the categories of
information listed in section 1.4 of this order; and
(4) the original classification authority determines that the unauthorized
disclosure of the information reasonably could be expected to result in
damage to the national security, which includes defense against
transnational terrorism, and the original classification authority is able
to identify or describe the damage.
(b) If there is significant doubt about the need to
classify information, it shall not be classified. This
provision does not:
(1) amplify or modify the substantive criteria or procedures for
classification; or
(2) create any substantive or procedural rights subject to judicial review.
(c) Classified information shall not be
declassified automatically as a result of any
unauthorized disclosure of identical or similar
information.
(d) The unauthorized disclosure of foreign
government information is presumed to cause damage to
the national security.
Sec. 1.2. Classification Levels. (a) Information may be
classified at one of the following three levels:
(1) ``Top Secret'' shall be applied to information, the unauthorized
disclosure of which reasonably could be expected to cause exceptionally
grave damage to the national security that the original classification
authority is able to identify or describe.
(2) ``Secret'' shall be applied to information, the unauthorized disclosure
of which reasonably could be expected to cause serious damage to the
[[Page 708]]
national security that the original classification authority is able to
identify or describe.
(3) ``Confidential'' shall be applied to information, the unauthorized
disclosure of which reasonably could be expected to cause damage to the
national security that the original classification authority is able to
identify or describe.
(b) Except as otherwise provided by statute, no
other terms shall be used to identify United States
classified information.
(c) If there is significant doubt about the
appropriate level of classification, it shall be
classified at the lower level.
Sec. 1.3. Classification Authority. (a) The authority
to classify information originally may be exercised
only by:
(1) the President and the Vice President;
(2) agency heads and officials designated by the President; and
(3) United States Government officials delegated this authority pursuant to
paragraph (c) of this section.
(b) Officials authorized to classify information at
a specified level are also authorized to classify
information at a lower level.
(c) Delegation of original classification
authority.
(1) Delegations of original classification authority shall be limited to
the minimum required to administer this order. Agency heads are responsible
for ensuring that designated subordinate officials have a demonstrable and
continuing need to exercise this authority.
(2) ``Top Secret'' original classification authority may be delegated only
by the President, the Vice President, or an agency head or official
designated pursuant to paragraph (a)(2) of this section.
(3) ``Secret'' or ``Confidential'' original classification authority may be
delegated only by the President, the Vice President, an agency head or
official designated pursuant to paragraph (a)(2) of this section, or the
senior agency official designated under section 5.4(d) of this order,
provided that official has been delegated ``Top Secret'' original
classification authority by the agency head.
(4) Each delegation of original classification authority shall be in
writing and the authority shall not be redelegated except as provided in
this order. Each delegation shall identify the official by name or
position.
(5) Delegations of original classification authority shall be reported or
made available by name or position to the Director of the Information
Security Oversight Office.
(d) All original classification authorities must
receive training in proper classification (including
the avoidance of over-classification) and
declassification as provided in this order and its
implementing directives at least once a calendar year.
Such training must include instruction on the proper
safeguarding of classified information and on the
sanctions in section 5.5 of this order that may be
brought against an individual who fails to classify
information properly or protect classified information
from unauthorized disclosure. Original classification
authorities who do not receive such mandatory training
at least once within a calendar year shall have their
classification authority suspended by the agency head
or the senior agency official designated under section
5.4(d) of this order until such training has taken
place. A waiver may be granted by the agency head, the
deputy agency head, or the senior agency official if an
individual is unable to receive such training due to
unavoidable circumstances. Whenever a waiver is
granted, the individual shall receive such training as
soon as practicable.
(e) Exceptional cases. When an employee, government
contractor, licensee, certificate holder, or grantee of
an agency who does not have original classification
authority originates information believed by that
person to require classification, the information shall
be protected in a manner consistent
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with this order and its implementing directives. The
information shall be transmitted promptly as provided
under this order or its implementing directives to the
agency that has appropriate subject matter interest and
classification authority with respect to this
information. That agency shall decide within 30 days
whether to classify this information.
Sec. 1.4. Classification Categories. Information shall
not be considered for classification unless its
unauthorized disclosure could reasonably be expected to
cause identifiable or describable damage to the
national security in accordance with section 1.2 of
this order, and it pertains to one or more of the
following:
(a) military plans, weapons systems, or operations;
(b) foreign government information;
(c) intelligence activities (including covert
action), intelligence sources or methods, or
cryptology;
(d) foreign relations or foreign activities of the
United States, including confidential sources;
(e) scientific, technological, or economic matters
relating to the national security;
(f) United States Government programs for
safeguarding nuclear materials or facilities;
(g) vulnerabilities or capabilities of systems,
installations, infrastructures, projects, plans, or
protection services relating to the national security;
or (h) the development, production, or use of weapons
of mass destruction.
Sec. 1.5. Duration of Classification. (a) At the time
of original classification, the original classification
authority shall establish a specific date or event for
declassification based on the duration of the national
security sensitivity of the information. Upon reaching
the date or event, the information shall be
automatically declassified. Except for information that
should clearly and demonstrably be expected to reveal
the identity of a confidential human source or a human
intelligence source or key design concepts of weapons
of mass destruction, the date or event shall not exceed
the time frame established in paragraph (b) of this
section.
(b) If the original classification authority cannot
determine an earlier specific date or event for
declassification, information shall be marked for
declassification 10 years from the date of the original
decision, unless the original classification authority
otherwise determines that the sensitivity of the
information requires that it be marked for
declassification for up to 25 years from the date of
the original decision.
(c) An original classification authority may extend
the duration of classification up to 25 years from the
date of origin of the document, change the level of
classification, or reclassify specific information only
when the standards and procedures for classifying
information under this order are followed.
(d) No information may remain classified
indefinitely. Information marked for an indefinite
duration of classification under predecessor orders,
for example, marked as ``Originating Agency's
Determination Required,'' or classified information
that contains incomplete declassification instructions
or lacks declassification instructions shall be
declassified in accordance with part 3 of this order.
Sec. 1.6. Identification and Markings. (a) At the time
of original classification, the following shall be
indicated in a manner that is immediately apparent:
(1) one of the three classification levels defined in section 1.2 of this
order;
(2) the identity, by name and position, or by personal identifier, of the
original classification authority;
(3) the agency and office of origin, if not otherwise evident;
(4) declassification instructions, which shall indicate one of the
following:
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(A) the date or event for declassification, as prescribed in section
1.5(a);
(B) the date that is 10 years from the date of original classification,
as prescribed in section 1.5(b);
(C) the date that is up to 25 years from the date of original
classification, as prescribed in section 1.5(b); or
(D) in the case of information that should clearly and demonstrably be
expected to reveal the identity of a confidential human source or a human
intelligence source or key design concepts of weapons of mass destruction,
the marking prescribed in implementing directives issued pursuant to this
order; and
(5) a concise reason for classification that, at a minimum, cites the
applicable classification categories in section 1.4 of this order.
(b) Specific information required in paragraph (a)
of this section may be excluded if it would reveal
additional classified information.
(c) With respect to each classified document, the
agency originating the document shall, by marking or
other means, indicate which portions are classified,
with the applicable classification level, and which
portions are unclassified. In accordance with standards
prescribed in directives issued under this order, the
Director of the Information Security Oversight Office
may grant and revoke temporary waivers of this
requirement. The Director shall revoke any waiver upon
a finding of abuse.
(d) Markings or other indicia implementing the
provisions of this order, including abbreviations and
requirements to safeguard classified working papers,
shall conform to the standards prescribed in
implementing directives issued pursuant to this order.
(e) Foreign government information shall retain its
original classification markings or shall be assigned a
U.S. classification that provides a degree of
protection at least equivalent to that required by the
entity that furnished the information. Foreign
government information retaining its original
classification markings need not be assigned a U.S.
classification marking provided that the responsible
agency determines that the foreign government markings
are adequate to meet the purposes served by U.S.
classification markings.
(f) Information assigned a level of classification
under this or predecessor orders shall be considered as
classified at that level of classification despite the
omission of other required markings. Whenever such
information is used in the derivative classification
process or is reviewed for possible declassification,
holders of such information shall coordinate with an
appropriate classification authority for the
application of omitted markings.
(g) The classification authority shall, whenever
practicable, use a classified addendum whenever
classified information constitutes a small portion of
an otherwise unclassified document or prepare a product
to allow for dissemination at the lowest level of
classification possible or in unclassified form.
(h) Prior to public release, all declassified
records shall be appropriately marked to reflect their
declassification.
Sec. 1.7. Classification Prohibitions and Limitations.
(a) In no case shall information be classified,
continue to be maintained as classified, or fail to be
declassified in order to:
(1) conceal violations of law, inefficiency, or administrative error;
(2) prevent embarrassment to a person, organization, or agency;
(3) restrain competition; or
(4) prevent or delay the release of information that does not require
protection in the interest of the national security.
(b) Basic scientific research information not
clearly related to the national security shall not be
classified.
(c) Information may not be reclassified after
declassification and release to the public under proper
authority unless:
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(1) the reclassification is personally approved in writing by the agency
head based on a document-by-document determination by the agency that
reclassification is required to prevent significant and demonstrable damage
to the national security;
(2) the information may be reasonably recovered without bringing undue
attention to the information;
(3) the reclassification action is reported promptly to the Assistant to
the President for National Security Affairs (National Security Advisor) and
the Director of the Information Security Oversight Office; and
(4) for documents in the physical and legal custody of the National
Archives and Records Administration (National Archives) that have been
available for public use, the agency head has, after making the
determinations required by this paragraph, notified the Archivist of the
United States (Archivist), who shall suspend public access pending approval
of the reclassification action by the Director of the Information Security
Oversight Office. Any such decision by the Director may be appealed by the
agency head to the President through the National Security Advisor. Public
access shall remain suspended pending a prompt decision on the appeal.
(d) Information that has not previously been
disclosed to the public under proper authority may be
classified or reclassified after an agency has received
a request for it under the Freedom of Information Act
(5 U.S.C. 552), the Presidential Records Act, 44 U.S.C.
2204(c)(1), the Privacy Act of 1974 (5 U.S.C. 552a), or
the mandatory review provisions of section 3.5 of this
order only if such classification meets the
requirements of this order and is accomplished on a
document-by-document basis with the personal
participation or under the direction of the agency
head, the deputy agency head, or the senior agency
official designated under section 5.4 of this order.
The requirements in this paragraph also apply to those
situations in which information has been declassified
in accordance with a specific date or event determined
by an original classification authority in accordance
with section 1.5 of this order.
(e) Compilations of items of information that are
individually unclassified may be classified if the
compiled information reveals an additional association
or relationship that:
(1) meets the standards for classification under this order; and
(2) is not otherwise revealed in the individual items of information.
Sec. 1.8. Classification Challenges. (a) Authorized
holders of information who, in good faith, believe that
its classification status is improper are encouraged
and expected to challenge the classification status of
the information in accordance with agency procedures
established under paragraph (b) of this section.
(b) In accordance with implementing directives
issued pursuant to this order, an agency head or senior
agency official shall establish procedures under which
authorized holders of information, including authorized
holders outside the classifying agency, are encouraged
and expected to challenge the classification of
information that they believe is improperly classified
or unclassified. These procedures shall ensure that:
(1) individuals are not subject to retribution for bringing such actions;
(2) an opportunity is provided for review by an impartial official or
panel; and
(3) individuals are advised of their right to appeal agency decisions to
the Interagency Security Classification Appeals Panel (Panel) established
by section 5.3 of this order.
(c) Documents required to be submitted for
prepublication review or other administrative process
pursuant to an approved nondisclosure agreement are not
covered by this section.
[[Page 712]]
Sec. 1.9. Fundamental Classification Guidance Review.
(a) Agency heads shall complete on a periodic basis a
comprehensive review of the agency's classification
guidance, particularly classification guides, to ensure
the guidance reflects current circumstances and to
identify classified information that no longer requires
protection and can be declassified. The initial
fundamental classification guidance review shall be
completed within 2 years of the effective date of this
order.
(b) The classification guidance review shall
include an evaluation of classified information to
determine if it meets the standards for classification
under section 1.4 of this order, taking into account an
up-to-date assessment of likely damage as described
under section 1.2 of this order.
(c) The classification guidance review shall
include original classification authorities and agency
subject matter experts to ensure a broad range of
perspectives.
(d) Agency heads shall provide a report summarizing
the results of the classification guidance review to
the Director of the Information Security Oversight
Office and shall release an unclassified version of
this report to the public.
PART 2--DERIVATIVE CLASSIFICATION
Sec. 2.1. Use of Derivative Classification. (a) Persons
who reproduce, extract, or summarize classified
information, or who apply classification markings
derived from source material or as directed by a
classification guide, need not possess original
classification authority.
(b) Persons who apply derivative classification
markings shall:
(1) be identified by name and position, or by personal identifier, in a
manner that is immediately apparent for each derivative classification
action;
(2) observe and respect original classification decisions; and
(3) carry forward to any newly created documents the pertinent
classification markings. For information derivatively classified based on
multiple sources, the derivative classifier shall carry forward:
(A) the date or event for declassification that corresponds to the
longest period of classification among the sources, or the marking
established pursuant to section 1.6(a)(4)(D) of this order; and
(B) a listing of the source materials.
(c) Derivative classifiers shall, whenever
practicable, use a classified addendum whenever
classified information constitutes a small portion of
an otherwise unclassified document or prepare a product
to allow for dissemination at the lowest level of
classification possible or in unclassified form.
(d) Persons who apply derivative classification
markings shall receive training in the proper
application of the derivative classification principles
of the order, with an emphasis on avoiding over-
classification, at least once every 2 years. Derivative
classifiers who do not receive such training at least
once every 2 years shall have their authority to apply
derivative classification markings suspended until they
have received such training. A waiver may be granted by
the agency head, the deputy agency head, or the senior
agency official if an individual is unable to receive
such training due to unavoidable circumstances.
Whenever a waiver is granted, the individual shall
receive such training as soon as practicable.
Sec. 2.2. Classification Guides. (a) Agencies with
original classification authority shall prepare
classification guides to facilitate the proper and
uniform derivative classification of information. These
guides shall conform to standards contained in
directives issued under this order.
(b) Each guide shall be approved personally and in
writing by an official who:
(1) has program or supervisory responsibility over the information or is
the senior agency official; and
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(2) is authorized to classify information originally at the highest level
of classification prescribed in the guide.
(c) Agencies shall establish procedures to ensure
that classification guides are reviewed and updated as
provided in directives issued under this order.
(d) Agencies shall incorporate original
classification decisions into classification guides on
a timely basis and in accordance with directives issued
under this order.
(e) Agencies may incorporate exemptions from
automatic declassification approved pursuant to section
3.3(j) of this order into classification guides,
provided that the Panel is notified of the intent to
take such action for specific information in advance of
approval and the information remains in active use.
(f) The duration of classification of a document
classified by a derivative classifier using a
classification guide shall not exceed 25 years from the
date of the origin of the document, except for:
(1) information that should clearly and demonstrably be expected to reveal
the identity of a confidential human source or a human intelligence source
or key design concepts of weapons of mass destruction; and
(2) specific information incorporated into classification guides in
accordance with section 2.2(e) of this order.
PART 3--DECLASSIFICATION AND DOWNGRADING
Sec. 3.1. Authority for Declassification. (a)
Information shall be declassified as soon as it no
longer meets the standards for classification under
this order.
(b) Information shall be declassified or downgraded
by:
(1) the official who authorized the original classification, if that
official is still serving in the same position and has original
classification authority;
(2) the originator's current successor in function, if that individual has
original classification authority;
(3) a supervisory official of either the originator or his or her successor
in function, if the supervisory official has original classification
authority; or (4) officials delegated declassification authority in writing
by the agency head or the senior agency official of the originating agency.
(c) The Director of National Intelligence (or, if
delegated by the Director of National Intelligence, the
Principal Deputy Director of National Intelligence)
may, with respect to the Intelligence Community, after
consultation with the head of the originating
Intelligence Community element or department,
declassify, downgrade, or direct the declassification
or downgrading of information or intelligence relating
to intelligence sources, methods, or activities.
(d) It is presumed that information that continues
to meet the classification requirements under this
order requires continued protection. In some
exceptional cases, however, the need to protect such
information may be outweighed by the public interest in
disclosure of the information, and in these cases the
information should be declassified. When such questions
arise, they shall be referred to the agency head or the
senior agency official. That official will determine,
as an exercise of discretion, whether the public
interest in disclosure outweighs the damage to the
national security that might reasonably be expected
from disclosure. This provision does not:
(1) amplify or modify the substantive criteria or procedures for
classification; or
(2) create any substantive or procedural rights subject to judicial review.
(e) If the Director of the Information Security
Oversight Office determines that information is
classified in violation of this order, the Director may
require the information to be declassified by the
agency that originated the classification. Any such
decision by the Director may be appealed to the
President through the National Security Advisor. The
information shall remain classified pending a prompt
decision on the appeal.
[[Page 714]]
(f) The provisions of this section shall also apply
to agencies that, under the terms of this order, do not
have original classification authority, but had such
authority under predecessor orders.
(g) No information may be excluded from
declassification under section 3.3 of this order based
solely on the type of document or record in which it is
found. Rather, the classified information must be
considered on the basis of its content.
(h) Classified nonrecord materials, including
artifacts, shall be declassified as soon as they no
longer meet the standards for classification under this
order.
(i) When making decisions under sections 3.3, 3.4,
and 3.5 of this order, agencies shall consider the
final decisions of the Panel.
Sec. 3.2. Transferred Records.
(a) In the case of classified records transferred
in conjunction with a transfer of functions, and not
merely for storage purposes, the receiving agency shall
be deemed to be the originating agency for purposes of
this order.
(b) In the case of classified records that are not
officially transferred as described in paragraph (a) of
this section, but that originated in an agency that has
ceased to exist and for which there is no successor
agency, each agency in possession of such records shall
be deemed to be the originating agency for purposes of
this order. Such records may be declassified or
downgraded by the agency in possession of the records
after consultation with any other agency that has an
interest in the subject matter of the records.
(c) Classified records accessioned into the
National Archives shall be declassified or downgraded
by the Archivist in accordance with this order, the
directives issued pursuant to this order, agency
declassification guides, and any existing procedural
agreement between the Archivist and the relevant agency
head.
(d) The originating agency shall take all
reasonable steps to declassify classified information
contained in records determined to have permanent
historical value before they are accessioned into the
National Archives. However, the Archivist may require
that classified records be accessioned into the
National Archives when necessary to comply with the
provisions of the Federal Records Act. This provision
does not apply to records transferred to the Archivist
pursuant to section 2203 of title 44, United States
Code, or records for which the National Archives serves
as the custodian of the records of an agency or
organization that has gone out of existence.
(e) To the extent practicable, agencies shall adopt
a system of records management that will facilitate the
public release of documents at the time such documents
are declassified pursuant to the provisions for
automatic declassification in section 3.3 of this
order.
Sec. 3.3 Automatic Declassification.
(a) Subject to paragraphs (b)-(d) and (g)-(j) of
this section, all classified records that (1) are more
than 25 years old and (2) have been determined to have
permanent historical value under title 44, United
States Code, shall be automatically declassified
whether or not the records have been reviewed. All
classified records shall be automatically declassified
on December 31 of the year that is 25 years from the
date of origin, except as provided in paragraphs (b)-
(d) and (g)-(j) of this section. If the date of origin
of an individual record cannot be readily determined,
the date of original classification shall be used
instead.
(b) An agency head may exempt from automatic
declassification under paragraph (a) of this section
specific information, the release of which should
clearly and demonstrably be expected to:
(1) reveal the identity of a confidential human source, a human
intelligence source, a relationship with an intelligence or security
service of a foreign
[[Page 715]]
government or international organization, or a nonhuman intelligence
source; or impair the effectiveness of an intelligence method currently in
use, available for use, or under development;
(2) reveal information that would assist in the development, production, or
use of weapons of mass destruction;
(3) reveal information that would impair U.S. cryptologic systems or
activities;
(4) reveal information that would impair the application of state-of-the-
art technology within a U.S. weapon system;
(5) reveal formally named or numbered U.S. military war plans that remain
in effect, or reveal operational or tactical elements of prior plans that
are contained in such active plans;
(6) reveal information, including foreign government information, that
would cause serious harm to relations between the United States and a
foreign government, or to ongoing diplomatic activities of the United
States;
(7) reveal information that would impair the current ability of United
States Government officials to protect the President, Vice President, and
other protectees for whom protection services, in the interest of the
national security, are authorized;
(8) reveal information that would seriously impair current national
security emergency preparedness plans or reveal current vulnerabilities of
systems, installations, or infrastructures relating to the national
security; or
(9) violate a statute, treaty, or international agreement that does not
permit the automatic or unilateral declassification of information at 25
years.
(c)(1) An agency head shall notify the Panel of any
specific file series of records for which a review or
assessment has determined that the information within
that file series almost invariably falls within one or
more of the exemption categories listed in paragraph
(b) of this section and that the agency proposes to
exempt from automatic declassification at 25 years.
(2) The notification shall include:
(A) a description of the file series;
(B) an explanation of why the information within the file series is
almost invariably exempt from automatic declassification and why the
information must remain classified for a longer period of time; and
(C) except when the information within the file series almost invariably
identifies a confidential human source or a human intelligence source or
key design concepts of weapons of mass destruction, a specific date or
event for declassification of the information, not to exceed December 31 of
the year that is 50 years from the date of origin of the records.
(3) The Panel may direct the agency not to exempt a designated file series
or to declassify the information within that series at an earlier date than
recommended. The agency head may appeal such a decision to the President
through the National Security Advisor.
(4) File series exemptions approved by the President prior to December 31,
2008, shall remain valid without any additional agency action pending Panel
review by the later of December 31, 2010, or December 31 of the year that
is 10 years from the date of previous approval.
(d) The following provisions shall apply to the
onset of automatic declassification:
(1) Classified records within an integral file block, as defined in this
order, that are otherwise subject to automatic declassification under this
section shall not be automatically declassified until December 31 of the
year that is 25 years from the date of the most recent record within the
file block.
[[Page 716]]
(2) After consultation with the Director of the National Declassification
Center (the Center) established by section 3.7 of this order and before the
records are subject to automatic declassification, an agency head or senior
agency official may delay automatic declassification for up to five
additional years for classified information contained in media that make a
review for possible declassification exemptions more difficult or costly.
(3) Other than for records that are properly exempted from automatic
declassification, records containing classified information that originated
with other agencies or the disclosure of which would affect the interests
or activities of other agencies with respect to the classified information
and could reasonably be expected to fall under one or more of the
exemptions in paragraph (b) of this section shall be identified prior to
the onset of automatic declassification for later referral to those
agencies.
(A) The information of concern shall be referred by the Center
established by section 3.7 of this order, or by the centralized facilities
referred to in section 3.7(e) of this order, in a prioritized and scheduled
manner determined by the Center.
(B) If an agency fails to provide a final determination on a referral
made by the Center within 1 year of referral, or by the centralized
facilities referred to in section 3.7(e) of this order within 3 years of
referral, its equities in the referred records shall be automatically
declassified.
(C) If any disagreement arises between affected agencies and the Center
regarding the referral review period, the Director of the Information
Security Oversight Office shall determine the appropriate period of review
of referred records.
(D) Referrals identified prior to the establishment of the Center by
section 3.7 of this order shall be subject to automatic declassification
only in accordance with subparagraphs (d)(3)(A)-(C) of this section.
(4) After consultation with the Director of the Information Security
Oversight Office, an agency head may delay automatic declassification for
up to 3 years from the date of discovery of classified records that were
inadvertently not reviewed prior to the effective date of automatic
declassification.
(e) Information exempted from automatic
declassification under this section shall remain
subject to the mandatory and systematic
declassification review provisions of this order.
(f) The Secretary of State shall determine when the
United States should commence negotiations with the
appropriate officials of a foreign government or
international organization of governments to modify any
treaty or international agreement that requires the
classification of information contained in records
affected by this section for a period longer than 25
years from the date of its creation, unless the treaty
or international agreement pertains to information that
may otherwise remain classified beyond 25 years under
this section.
(g) The Secretary of Energy shall determine when
information concerning foreign nuclear programs that
was removed from the Restricted Data category in order
to carry out provisions of the National Security Act of
1947, as amended, may be declassified. Unless otherwise
determined, such information shall be declassified when
comparable information concerning the United States
nuclear program is declassified.
(h) Not later than 3 years from the effective date
of this order, all records exempted from automatic
declassification under paragraphs (b) and (c) of this
section shall be automatically declassified on December
31 of a year that is no more than 50 years from the
date of origin, subject to the following:
(1) Records that contain information the release of which should clearly
and demonstrably be expected to reveal the following are exempt from
automatic declassification at 50 years:
[[Page 717]]
(A) the identity of a confidential human source or a human intelligence
source; or
(B) key design concepts of weapons of mass destruction.
(2) In extraordinary cases, agency heads may, within 5 years of the onset
of automatic declassification, propose to exempt additional specific
information from declassification at 50 years.
(3) Records exempted from automatic declassification under this paragraph
shall be automatically declassified on December 31 of a year that is no
more than 75 years from the date of origin unless an agency head, within 5
years of that date, proposes to exempt specific information from
declassification at 75 years and the proposal is formally approved by the
Panel.
(i) Specific records exempted from automatic
declassification prior to the establishment of the
Center described in section 3.7 of this order shall be
subject to the provisions of paragraph (h) of this
section in a scheduled and prioritized manner
determined by the Center.
(j) At least 1 year before information is subject
to automatic declassification under this section, an
agency head or senior agency official shall notify the
Director of the Information Security Oversight Office,
serving as Executive Secretary of the Panel, of any
specific information that the agency proposes to exempt
from automatic declassification under paragraphs (b)
and (h) of this section.
(1) The notification shall include:
(A) a detailed description of the information, either by reference to
information in specific records or in the form of a declassification guide;
(B) an explanation of why the information should be exempt from automatic
declassification and must remain classified for a longer period of time;
and
(C) a specific date or a specific and independently verifiable event for
automatic declassification of specific records that contain the information
proposed for exemption.
(2) The Panel may direct the agency not to exempt the information or to
declassify it at an earlier date than recommended. An agency head may
appeal such a decision to the President through the National Security
Advisor. The information will remain classified while such an appeal is
pending.
(k) For information in a file series of records
determined not to have permanent historical value, the
duration of classification beyond 25 years shall be the
same as the disposition (destruction) date of those
records in each Agency Records Control Schedule or
General Records Schedule, although the duration of
classification shall be extended if the record has been
retained for business reasons beyond the scheduled
disposition date.
Sec. 3.4. Systematic Declassification Review.
(a) Each agency that has originated classified
information under this order or its predecessors shall
establish and conduct a program for systematic
declassification review for records of permanent
historical value exempted from automatic
declassification under section 3.3 of this order.
Agencies shall prioritize their review of such records
in accordance with priorities established by the
Center.
(b) The Archivist shall conduct a systematic
declassification review program for classified records:
(1) accessioned into the National Archives; (2) transferred to the
Archivist pursuant to 44 U.S.C. 2203; and (3) for which the National
Archives serves as the custodian for an agency or organization that has
gone out of existence.
Sec. 3.5. Mandatory Declassification Review.
(a) Except as provided in paragraph (b) of this
section, all information classified under this order or
predecessor orders shall be subject to a review for
declassification by the originating agency if:
[[Page 718]]
(1) the request for a review describes the document or material containing
the information with sufficient specificity to enable the agency to locate
it with a reasonable amount of effort;
(2) the document or material containing the information responsive to the
request is not contained within an operational file exempted from search
and review, publication, and disclosure under 5 U.S.C. 552 in accordance
with law; and
(3) the information is not the subject of pending litigation.
(b) Information originated by the incumbent
President or the incumbent Vice President; the
incumbent President's White House Staff or the
incumbent Vice President's Staff; committees,
commissions, or boards appointed by the incumbent
President; or other entities within the Executive
Office of the President that solely advise and assist
the incumbent President is exempted from the provisions
of paragraph (a) of this section. However, the
Archivist shall have the authority to review,
downgrade, and declassify papers or records of former
Presidents and Vice Presidents under the control of the
Archivist pursuant to 44 U.S.C. 2107, 2111, 2111 note,
or 2203. Review procedures developed by the Archivist
shall provide for consultation with agencies having
primary subject matter interest and shall be consistent
with the provisions of applicable laws or lawful
agreements that pertain to the respective Presidential
papers or records. Agencies with primary subject matter
interest shall be notified promptly of the Archivist's
decision. Any final decision by the Archivist may be
appealed by the requester or an agency to the Panel.
The information shall remain classified pending a
prompt decision on the appeal.
(c) Agencies conducting a mandatory review for
declassification shall declassify information that no
longer meets the standards for classification under
this order. They shall release this information unless
withholding is otherwise authorized and warranted under
applicable law.
(d) If an agency has reviewed the requested
information for declassification within the past 2
years, the agency need not conduct another review and
may instead inform the requester of this fact and the
prior review decision and advise the requester of
appeal rights provided under subsection (e) of this
section.
(e) In accordance with directives issued pursuant
to this order, agency heads shall develop procedures to
process requests for the mandatory review of classified
information. These procedures shall apply to
information classified under this or predecessor
orders. They also shall provide a means for
administratively appealing a denial of a mandatory
review request, and for notifying the requester of the
right to appeal a final agency decision to the Panel.
(f) After consultation with affected agencies, the
Secretary of Defense shall develop special procedures
for the review of cryptologic information; the Director
of National Intelligence shall develop special
procedures for the review of information pertaining to
intelligence sources, methods, and activities; and the
Archivist shall develop special procedures for the
review of information accessioned into the National
Archives.
(g) Documents required to be submitted for
prepublication review or other administrative process
pursuant to an approved nondisclosure agreement are not
covered by this section.
(h) This section shall not apply to any request for
a review made to an element of the Intelligence
Community that is made by a person other than an
individual as that term is defined by 5 U.S.C.
552a(a)(2), or by a foreign government entity or any
representative thereof.
Sec. 3.6. Processing Requests and Reviews.
Notwithstanding section 4.1(i) of this order, in
response to a request for information under the Freedom
of Information Act, the Presidential Records Act, the
Privacy Act of 1974, or the mandatory review provisions
of this order:
[[Page 719]]
(a) An agency may refuse to confirm or deny the
existence or nonexistence of requested records whenever
the fact of their existence or nonexistence is itself
classified under this order or its predecessors.
(b) When an agency receives any request for
documents in its custody that contain classified
information that originated with other agencies or the
disclosure of which would affect the interests or
activities of other agencies with respect to the
classified information, or identifies such documents in
the process of implementing sections 3.3 or 3.4 of this
order, it shall refer copies of any request and the
pertinent documents to the originating agency for
processing and may, after consultation with the
originating agency, inform any requester of the
referral unless such association is itself classified
under this order or its predecessors. In cases in which
the originating agency determines in writing that a
response under paragraph (a) of this section is
required, the referring agency shall respond to the
requester in accordance with that paragraph.
(c) Agencies may extend the classification of
information in records determined not to have permanent
historical value or nonrecord materials, including
artifacts, beyond the time frames established in
sections 1.5(b) and 2.2(f) of this order, provided:
(1) the specific information has been approved pursuant to section 3.3(j)
of this order for exemption from automatic declassification; and
(2) the extension does not exceed the date established in section 3.3(j) of
this order.
Sec. 3.7. National Declassification Center. (a) There
is established within the National Archives a National
Declassification Center to streamline declassification
processes, facilitate quality-assurance measures, and
implement standardized training regarding the
declassification of records determined to have
permanent historical value. There shall be a Director
of the Center who shall be appointed or removed by the
Archivist in consultation with the Secretaries of
State, Defense, Energy, and Homeland Security, the
Attorney General, and the Director of National
Intelligence.
(b) Under the administration of the Director, the
Center shall coordinate:
(1) timely and appropriate processing of referrals in accordance with
section 3.3(d)(3) of this order for accessioned Federal records and
transferred presidential records.
(2) general interagency declassification activities necessary to fulfill
the requirements of sections 3.3 and 3.4 of this order;
(3) the exchange among agencies of detailed declassification guidance to
enable the referral of records in accordance with section 3.3(d)(3) of this
order;
(4) the development of effective, transparent, and standard
declassification work processes, training, and quality assurance measures;
(5) the development of solutions to declassification challenges posed by
electronic records, special media, and emerging technologies;
(6) the linkage and effective utilization of existing agency databases and
the use of new technologies to document and make public declassification
review decisions and support declassification activities under the purview
of the Center; and
(7) storage and related services, on a reimbursable basis, for Federal
records containing classified national security information.
(c) Agency heads shall fully cooperate with the
Archivist in the activities of the Center and shall:
(1) provide the Director with adequate and current declassification
guidance to enable the referral of records in accordance with section
3.3(d)(3) of this order; and
(2) upon request of the Archivist, assign agency personnel to the Center
who shall be delegated authority by the agency head to review and exempt
[[Page 720]]
or declassify information originated by their agency contained in records
accessioned into the National Archives, after consultation with subject-
matter experts as necessary.
(d) The Archivist, in consultation with
representatives of the participants in the Center and
after input from the general public, shall develop
priorities for declassification activities under the
purview of the Center that take into account the degree
of researcher interest and the likelihood of
declassification.
(e) Agency heads may establish such centralized
facilities and internal operations to conduct internal
declassification reviews as appropriate to achieve
optimized records management and declassification
business processes. Once established, all referral
processing of accessioned records shall take place at
the Center, and such agency facilities and operations
shall be coordinated with the Center to ensure the
maximum degree of consistency in policies and
procedures that relate to records determined to have
permanent historical value.
(f) Agency heads may exempt from automatic
declassification or continue the classification of
their own originally classified information under
section 3.3(a) of this order except that in the case of
the Director of National Intelligence, the Director
shall also retain such authority with respect to the
Intelligence Community.
(g) The Archivist shall, in consultation with the
Secretaries of State, Defense, Energy, and Homeland
Security, the Attorney General, the Director of
National Intelligence, the Director of the Central
Intelligence Agency, and the Director of the
Information Security Oversight Office, provide the
National Security Advisor with a detailed concept of
operations for the Center and a proposed implementing
directive under section 5.1 of this order that reflects
the coordinated views of the aforementioned agencies.
PART 4--SAFEGUARDING
Sec. 4.1. General Restrictions on Access.
(a) A person may have access to classified
information provided that:
(1) a favorable determination of eligibility for access has been made by an
agency head or the agency head's designee;
(2) the person has signed an approved nondisclosure agreement; and
(3) the person has a need-to-know the information.
(b) Every person who has met the standards for
access to classified information in paragraph (a) of
this section shall receive contemporaneous training on
the proper safeguarding of classified information and
on the criminal, civil, and administrative sanctions
that may be imposed on an individual who fails to
protect classified information from unauthorized
disclosure.
(c) An official or employee leaving agency service
may not remove classified information from the agency's
control or direct that information be declassified in
order to remove it from agency control.
(d) Classified information may not be removed from
official premises without proper authorization.
(e) Persons authorized to disseminate classified
information outside the executive branch shall ensure
the protection of the information in a manner
equivalent to that provided within the executive
branch.
(f) Consistent with law, executive orders,
directives, and regulations, an agency head or senior
agency official or, with respect to the Intelligence
Community, the Director of National Intelligence, shall
establish uniform procedures to ensure that automated
information systems, including networks and
telecommunications systems, that collect, create,
communicate, compute, disseminate, process, or store
classified information:
(1) prevent access by unauthorized persons;
(2) ensure the integrity of the information; and
[[Page 721]]
(3) to the maximum extent practicable, use:
(A) common information technology standards, protocols, and interfaces
that maximize the availability of, and access to, the information in a form
and manner that facilitates its authorized use; and
(B) standardized electronic formats to maximize the accessibility of
information to persons who meet the criteria set forth in section 4.1(a) of
this order.
(g) Consistent with law, executive orders,
directives, and regulations, each agency head or senior
agency official, or with respect to the Intelligence
Community, the Director of National Intelligence, shall
establish controls to ensure that classified
information is used, processed, stored, reproduced,
transmitted, and destroyed under conditions that
provide adequate protection and prevent access by
unauthorized persons.
(h) Consistent with directives issued pursuant to
this order, an agency shall safeguard foreign
government information under standards that provide a
degree of protection at least equivalent to that
required by the government or international
organization of governments that furnished the
information. When adequate to achieve equivalency,
these standards may be less restrictive than the
safeguarding standards that ordinarily apply to U.S.
``Confidential'' information, including modified
handling and transmission and allowing access to
individuals with a need-to-know who have not otherwise
been cleared for access to classified information or
executed an approved nondisclosure agreement.
(i)(1) Classified information originating in one
agency may be disseminated to another agency or U.S.
entity by any agency to which it has been made
available without the consent of the originating
agency, as long as the criteria for access under
section 4.1(a) of this order are met, unless the
originating agency has determined that prior
authorization is required for such dissemination and
has marked or indicated such requirement on the medium
containing the classified information in accordance
with implementing directives issued pursuant to this
order.
(2) Classified information originating in one agency may be disseminated by
any other agency to which it has been made available to a foreign
government in accordance with statute, this order, directives implementing
this order, direction of the President, or with the consent of the
originating agency. For the purposes of this section, ``foreign
government'' includes any element of a foreign government, or an
international organization of governments, or any element thereof.
(3) Documents created prior to the effective date of this order shall not
be disseminated outside any other agency to which they have been made
available without the consent of the originating agency. An agency head or
senior agency official may waive this requirement for specific information
that originated within that agency.
(4) For purposes of this section, the Department of Defense shall be
considered one agency, except that any dissemination of information
regarding intelligence sources, methods, or activities shall be consistent
with directives issued pursuant tosection 6.2(b) of this order.
(5) Prior consent of the originating agency is not required when referring
records for declassification review that contain information originating in
more than one agency.
Sec. 4.2 Distribution Controls.
(a) The head of each agency shall establish
procedures in accordance with applicable law and
consistent with directives issued pursuant to this
order to ensure that classified information is
accessible to the maximum extent possible by
individuals who meet the criteria set forth in section
4.1(a) of this order.
(b) In an emergency, when necessary to respond to
an imminent threat to life or in defense of the
homeland, the agency head or any designee
[[Page 722]]
may authorize the disclosure of classified information
(including information marked pursuant to section
4.1(i)(1) of this order) to an individual or
individuals who are otherwise not eligible for access.
Such actions shall be taken only in accordance with
directives implementing this order and any procedure
issued by agencies governing the classified
information, which shall be designed to minimize the
classified information that is disclosed under these
circumstances and the number of individuals who receive
it. Information disclosed under this provision or
implementing directives and procedures shall not be
deemed declassified as a result of such disclosure or
subsequent use by a recipient. Such disclosures shall
be reported promptly to the originator of the
classified information. For purposes of this section,
the Director of National Intelligence may issue an
implementing directive governing the emergency
disclosure of classified intelligence information.
(c) Each agency shall update, at least annually,
the automatic, routine, or recurring distribution
mechanism for classified information that it
distributes. Recipients shall cooperate fully with
distributors who are updating distribution lists and
shall notify distributors whenever a relevant change in
status occurs.
Sec. 4.3. Special Access Programs. (a) Establishment of
special access programs. Unless otherwise authorized by
the President, only the Secretaries of State, Defense,
Energy, and Homeland Security, the Attorney General,
and the Director of National Intelligence, or the
principal deputy of each, may create a special access
program. For special access programs pertaining to
intelligence sources, methods, and activities (but not
including military operational, strategic, and tactical
programs), this function shall be exercised by the
Director of National Intelligence. These officials
shall keep the number of these programs at an absolute
minimum, and shall establish them only when the program
is required by statute or upon a specific finding that:
(1) the vulnerability of, or threat to, specific information is
exceptional; and
(2) the normal criteria for determining eligibility for access applicable
to information classified at the same level are not deemed sufficient to
protect the information from unauthorized disclosure.
(b) Requirements and limitations.
(1) Special access programs shall be limited to programs in which the
number of persons who ordinarily will have access will be reasonably small
and commensurate with the objective of providing enhanced protection for
the information involved.
(2) Each agency head shall establish and maintain a system of accounting
for special access programs consistent with directives issued pursuant to
this order.
(3) Special access programs shall be subject to the oversight program
established under section 5.4(d) of this order. In addition, the Director
of the Information Security Oversight Office shall be afforded access to
these programs, in accordance with the security requirements of each
program, in order to perform the functions assigned to the Information
Security Oversight Office under this order. An agency head may limit access
to a special access program to the Director of the Information Security
Oversight Office and no more than one other employee of the Information
Security Oversight Office or, for special access programs that are
extraordinarily sensitive and vulnerable, to the Director only.
(4) The agency head or principal deputy shall review annually each special
access program to determine whether it continues to meet the requirements
of this order.
(5) Upon request, an agency head shall brief the National Security Advisor,
or a designee, on any or all of the agency's special access programs.
(6) For the purposes of this section, the term ``agency head'' refers only
to the Secretaries of State, Defense, Energy, and Homeland Security, the
[[Page 723]]
Attorney General, and the Director of National Intelligence, or the
principal deputy of each.
(c) Nothing in this order shall supersede any
requirement made by or under 10 U.S.C. 119.
Sec. 4.4. Access by Historical Researchers and Certain
Former Government Personnel.
(a) The requirement in section 4.1(a)(3) of this
order that access to classified information may be
granted only to individuals who have a need-to-know the
information may be waived for persons who:
(1) are engaged in historical research projects;
(2) previously have occupied senior policy-making positions to which they
were appointed or designated by the President or the Vice President; or
(3) served as President or Vice President.
(b) Waivers under this section may be granted only
if the agency head or senior agency official of the
originating agency:
(1) determines in writing that access is consistent with the interest of
the national security;
(2) takes appropriate steps to protect classified information from
unauthorized disclosure or compromise, and ensures that the information is
safeguarded in a manner consistent with this order; and
(3) limits the access granted to former Presidential appointees or
designees and Vice Presidential appointees or designees to items that the
person originated, reviewed, signed, or received while serving as a
Presidential or Vice Presidential appointee or designee.
PART 5--IMPLEMENTATION AND REVIEW
Sec. 5.1. Program Direction. (a) The Director of the
Information Security Oversight Office, under the
direction of the Archivist and in consultation with the
National Security Advisor, shall issue such directives
as are necessary to implement this order. These
directives shall be binding on the agencies. Directives
issued by the Director of the Information Security
Oversight Office shall establish standards for:
(1) classification, declassification, and marking
principles;
(2) safeguarding classified information, which shall pertain to the
handling, storage, distribution, transmittal, and destruction of and
accounting for classified information;
(3) agency security education and training programs;
(4) agency self-inspection programs; and
(5) classification and declassification guides.
(b) The Archivist shall delegate the implementation
and monitoring functions of this program to the
Director of the Information Security Oversight Office.
(c) The Director of National Intelligence, after
consultation with the heads of affected agencies and
the Director of the Information Security Oversight
Office, may issue directives to implement this order
with respect to the protection of intelligence sources,
methods, and activities. Such directives shall be
consistent with this order and directives issued under
paragraph (a) of this section.
Sec. 5.2. Information Security Oversight Office. (a)
There is established within the National Archives an
Information Security Oversight Office. The Archivist
shall appoint the Director of the Information Security
Oversight Office, subject to the approval of the
President.
(b) Under the direction of the Archivist, acting in
consultation with the National Security Advisor, the
Director of the Information Security Oversight Office
shall:
(1) develop directives for the implementation of this order;
[[Page 724]]
(2) oversee agency actions to ensure compliance with this order and its
implementing directives;
(3) review and approve agency implementing regulations prior to their
issuance to ensure their consistency with this order and directives issued
under section 5.1(a) of this order;
(4) have the authority to conduct on-site reviews of each agency's program
established under this order, and to require of each agency those reports
and information and other cooperation that may be necessary to fulfill its
responsibilities. If granting access to specific categories of classified
information would pose an exceptional national security risk, the affected
agency head or the senior agency official shall submit a written
justification recommending the denial of access to the President through
the National Security Advisor within 60 days of the request for access.
Access shall be denied pending the response;
(5) review requests for original classification authority from agencies or
officials not granted original classification authority and, if deemed
appropriate, recommend Presidential approval through the National Security
Advisor;
(6) consider and take action on complaints and suggestions from persons
within or outside the Government with respect to the administration of the
program established under this order;
(7) have the authority to prescribe, after consultation with affected
agencies, standardization of forms or procedures that will promote the
implementation of the program established under this order;
(8) report at least annually to the President on the implementation of this
order; and
(9) convene and chair interagency meetings to discuss matters pertaining to
the program established by this order.
Sec. 5.3. Interagency Security Classification Appeals
Panel.
(a) Establishment and administration.
(1) There is established an Interagency Security Classification Appeals
Panel. The Departments of State, Defense, and Justice, the National
Archives, the Office of the Director of National Intelligence, and the
National Security Advisor shall each be represented by a senior-level
representative who is a full-time or permanent part-time Federal officer or
employee designated to serve as a member of the Panel by the respective
agency head. The President shall designate a Chair from among the members
of the Panel.
(2) Additionally, the Director of the Central Intelligence Agency may
appoint a temporary representative who meets the criteria in paragraph
(a)(1) of this section to participate as a voting member in all Panel
deliberations and associated support activities concerning classified
information originated by the Central Intelligence Agency.
(3) A vacancy on the Panel shall be filled as quickly as possible as
provided in paragraph (a)(1) of this section.
(4) The Director of the Information Security Oversight Office shall serve
as the Executive Secretary of the Panel. The staff of the Information
Security Oversight Office shall provide program and administrative support
for the Panel.
(5) The members and staff of the Panel shall be required to meet
eligibility for access standards in order to fulfill the Panel's functions.
(6) The Panel shall meet at the call of the Chair. The Chair shall schedule
meetings as may be necessary for the Panel to fulfill its functions in a
timely manner.
(7) The Information Security Oversight Office shall include in its reports
to the President a summary of the Panel's activities.
[[Page 725]]
(b) Functions. The Panel shall:
(1) decide on appeals by persons who have filed classification challenges
under section 1.8 of this order;
(2) approve, deny, or amend agency exemptions from automatic
declassification as provided in section 3.3 of this order;
(3) decide on appeals by persons or entities who have filed requests for
mandatory declassification review under section 3.5 of this order; and
(4) appropriately inform senior agency officials and the public of final
Panel decisions on appeals under sections 1.8 and 3.5 of this order.
(c) Rules and procedures. The Panel shall issue
bylaws, which shall be published in the Federal
Register. The bylaws shall establish the rules and
procedures that the Panel will follow in accepting,
considering, and issuing decisions on appeals. The
rules and procedures of the Panel shall provide that
the Panel will consider appeals only on actions in
which:
(1) the appellant has exhausted his or her administrative remedies within
the responsible agency;
(2) there is no current action pending on the issue within the Federal
courts; and
(3) the information has not been the subject of review by the Federal
courts or the Panel within the past 2 years.
(d) Agency heads shall cooperate fully with the
Panel so that it can fulfill its functions in a timely
and fully informed manner. The Panel shall report to
the President through the National Security Advisor any
instance in which it believes that an agency head is
not cooperating fully with the Panel.
(e) The Panel is established for the sole purpose
of advising and assisting the President in the
discharge of his constitutional and discretionary
authority to protect the national security of the
United States. Panel decisions are committed to the
discretion of the Panel, unless changed by the
President.
(f) An agency head may appeal a decision of the
Panel to the President through the National Security
Advisor. The information shall remain classified
pending a decision on the appeal.
Sec. 5.4. General Responsibilities. Heads of agencies
that originate or handle classified information shall:
(a) demonstrate personal commitment and commit
senior management to the successful implementation of
the program established under this order;
(b) commit necessary resources to the effective
implementation of the program established under this
order;
(c) ensure that agency records systems are designed
and maintained to optimize the appropriate sharing and
safeguarding of classified information, and to
facilitate its declassification under the terms of this
order when it no longer meets the standards for
continued classification; and
(d) designate a senior agency official to direct
and administer the program, whose responsibilities
shall include:
(1) overseeing the agency's program established under this order, provided
an agency head may designate a separate official to oversee special access
programs authorized under this order. This official shall provide a full
accounting of the agency's special access programs at least annually;
(2) promulgating implementing regulations, which shall be published in the
Federal Register to the extent that they affect members of the public;
(3) establishing and maintaining security education and training programs;
(4) establishing and maintaining an ongoing self-inspection program, which
shall include the regular reviews of representative samples of the agency's
[[Page 726]]
original and derivative classification actions, and shall authorize
appropriate agency officials to correct misclassification actions not
covered by sections 1.7(c) and 1.7(d) of this order; and reporting annually
to the Director of the Information Security Oversight Office on the
agency's self-inspection program;
(5) establishing procedures consistent with directives issued pursuant to
this order to prevent unnecessary access to classified information,
including procedures that:
(A) require that a need for access to classified information be
established before initiating administrative clearance procedures; and
(B) ensure that the number of persons granted access to classified
information meets the mission needs of the agency while also satisfying
operational and security requirements and needs;
(6) developing special contingency plans for the safeguarding of classified
information used in or near hostile or potentially hostile areas;
(7) ensuring that the performance contract or other system used to rate
civilian or military personnel performance includes the designation and
management of classified information as a critical element or item to be
evaluated in the rating of:
(A) original classification authorities;
(B) security managers or security specialists; and
(C) all other personnel whose duties significantly involve the creation
or handling of classified information, including personnel who regularly
apply derivative classification markings;
(8) accounting for the costs associated with the implementation of this
order, which shall be reported to the Director of the Information Security
Oversight Office for publication;
(9) assigning in a prompt manner agency personnel to respond to any
request, appeal, challenge, complaint, or suggestion arising out of this
order that pertains to classified information that originated in a
component of the agency that no longer exists and for which there is no
clear successor in function; and
(10) establishing a secure capability to receive information, allegations,
or complaints regarding over-classification or incorrect classification
within the agency and to provide guidance to personnel on proper
classification as needed.
Sec. 5.5. Sanctions. (a) If the Director of the
Information Security Oversight Office finds that a
violation of this order or its implementing directives
has occurred, the Director shall make a report to the
head of the agency or to the senior agency official so
that corrective steps, if appropriate, may be taken.
(b) Officers and employees of the United States
Government, and its contractors, licensees, certificate
holders, and grantees shall be subject to appropriate
sanctions if they knowingly, willfully, or negligently:
(1) disclose to unauthorized persons information properly classified under
this order or predecessor orders;
(2) classify or continue the classification of information in violation of
this order or any implementing directive;
(3) create or continue a special access program contrary to the
requirements of this order; or
(4) contravene any other provision of this order or its implementing
directives.
(c) Sanctions may include reprimand, suspension
without pay, removal, termination of classification
authority, loss or denial of access to classified
information, or other sanctions in accordance with
applicable law and agency regulation.
[[Page 727]]
(d) The agency head, senior agency official, or
other supervisory official shall, at a minimum,
promptly remove the classification authority of any
individual who demonstrates reckless disregard or a
pattern of error in applying the classification
standards of this order.
(e) The agency head or senior agency official
shall:
(1) take appropriate and prompt corrective action when a violation or
infraction under paragraph (b) of this section occurs; and
(2) notify the Director of the Information Security Oversight Office when a
violation under paragraph (b)(1), (2), or (3) of this section occurs.
PART 6--GENERAL PROVISIONS
Sec. 6.1. Definitions. For purposes of this order:
(a) ``Access'' means the ability or opportunity to
gain knowledge of classified information.
(b) ``Agency'' means any ``Executive agency,'' as
defined in 5 U.S.C. 105; any ``Military department'' as
defined in 5 U.S.C. 102; and any other entity within
the executive branch that comes into the possession of
classified information.
(c) ``Authorized holder'' of classified information
means anyone who satisfies the conditions for access
stated in section 4.1(a) of this order.
(d) ``Automated information system'' means an
assembly of computer hardware, software, or firmware
configured to collect, create, communicate, compute,
disseminate, process, store, or control data or
information.
(e) ``Automatic declassification'' means the
declassification of information based solely upon:
(1) the occurrence of a specific date or event as determined by the
original classification authority; or
(2) the expiration of a maximum time frame for duration of classification
established under this order.
(f) ``Classification'' means the act or process by
which information is determined to be classified
information.
(g) ``Classification guidance'' means any
instruction or source that prescribes the
classification of specific information.
(h) ``Classification guide'' means a documentary
form of classification guidance issued by an original
classification authority that identifies the elements
of information regarding a specific subject that must
be classified and establishes the level and duration of
classification for each such element.
(i) ``Classified national security information'' or
``classified information'' means information that has
been determined pursuant to this order or any
predecessor order to require protection against
unauthorized disclosure and is marked to indicate its
classified status when in documentary form.
(j) ``Compilation'' means an aggregation of
preexisting unclassified items of information.
(k) ``Confidential source'' means any individual or
organization that has provided, or that may reasonably
be expected to provide, information to the United
States on matters pertaining to the national security
with the expectation that the information or
relationship, or both, are to be held in confidence.
(l) ``Damage to the national security'' means harm
to the national defense or foreign relations of the
United States from the unauthorized disclosure of
information, taking into consideration such aspects of
the information as the sensitivity, value, utility, and
provenance of that information.
(m) ``Declassification'' means the authorized
change in the status of information from classified
information to unclassified information.
(n) ``Declassification guide'' means written
instructions issued by a declassification authority
that describes the elements of information regarding
[[Page 728]]
a specific subject that may be declassified and the
elements that must remain classified.
(o) ``Derivative classification'' means the
incorporating, paraphrasing, restating, or generating
in new form information that is already classified, and
marking the newly developed material consistent with
the classification markings that apply to the source
information. Derivative classification includes the
classification of information based on classification
guidance. The duplication or reproduction of existing
classified information is not derivative
classification.
(p) ``Document'' means any recorded information,
regardless of the nature of the medium or the method or
circumstances of recording.
(q) ``Downgrading'' means a determination by a
declassification authority that information classified
and safeguarded at a specified level shall be
classified and safeguarded at a lower level.
(r) ``File series'' means file units or documents
arranged according to a filing system or kept together
because they relate to a particular subject or
function, result from the same activity, document a
specific kind of transaction, take a particular
physical form, or have some other relationship arising
out of their creation, receipt, or use, such as
restrictions on access or use.
(s) ``Foreign government information'' means:
(1) information provided to the United States Government by a foreign
government or governments, an international organization of governments, or
any element thereof, with the expectation that the information, the source
of the information, or both, are to be held in confidence;
(2) information produced by the United States Government pursuant to or as
a result of a joint arrangement with a foreign government or governments,
or an international organization of governments, or any element thereof,
requiring that the information, the arrangement, or both, are to be held in
confidence; or
(3) information received and treated as ``foreign government information''
under the terms of a predecessor order.
(t) ``Information'' means any knowledge that can be
communicated or documentary material, regardless of its
physical form or characteristics, that is owned by, is
produced by or for, or is under the control of the
United States Government.
(u) ``Infraction'' means any knowing, willful, or
negligent action contrary to the requirements of this
order or its implementing directives that does not
constitute a ``violation,'' as defined below.
(v) ``Integral file block'' means a distinct
component of a file series, as defined in this section,
that should be maintained as a separate unit in order
to ensure the integrity of the records. An integral
file block may consist of a set of records covering
either a specific topic or a range of time, such as a
Presidential administration or a 5-year retirement
schedule within a specific file series that is retired
from active use as a group. For purposes of automatic
declassification, integral file blocks shall contain
only records dated within 10 years of the oldest record
in the file block.
(w) ``Integrity'' means the state that exists when
information is unchanged from its source and has not
been accidentally or intentionally modified, altered,
or destroyed.
(x) ``Intelligence'' includes foreign intelligence
and counterintelligence as defined by Executive Order
12333 of December 4, 1981, as amended, or by a
successor order.
(y) ``Intelligence activities'' means all
activities that elements of the Intelligence Community
are authorized to conduct pursuant to law or Executive
Order 12333, as amended, or a successor order.
[[Page 729]]
(z) ``Intelligence Community'' means an element or
agency of the U.S. Government identified in or
designated pursuant to section 3(4) of the National
Security Act of 1947, as amended, or section 3.5(h) of
Executive Order 12333, as amended.
(aa) ``Mandatory declassification review'' means
the review for declassification of classified
information in response to a request for
declassification that meets the requirements under
section 3.5 of this order.
(bb) ``Multiple sources'' means two or more source
documents, classification guides, or a combination of
both.
(cc) ``National security'' means the national
defense or foreign relations of the United States.
(dd) ``Need-to-know'' means a determination within
the executive branch in accordance with directives
issued pursuant to this order that a prospective
recipient requires access to specific classified
information in order to perform or assist in a lawful
and authorized governmental function.
(ee) ``Network'' means a system of two or more
computers that can exchange data or information.
(ff) ``Original classification'' means an initial
determination that information requires, in the
interest of the national security, protection against
unauthorized disclosure.
(gg) ``Original classification authority'' means an
individual authorized in writing, either by the
President, the Vice President, or by agency heads or
other officials designated by the President, to
classify information in the first instance.
(hh) ``Records'' means the records of an agency and
Presidential papers or Presidential records, as those
terms are defined in title 44, United States Code,
including those created or maintained by a government
contractor, licensee, certificate holder, or grantee
that are subject to the sponsoring agency's control
under the terms of the contract, license, certificate,
or grant.
(ii) ``Records having permanent historical value''
means Presidential papers or Presidential records and
the records of an agency that the Archivist has
determined should be maintained permanently in
accordance with title 44, United States Code.
(jj) ``Records management'' means the planning,
controlling, directing, organizing, training,
promoting, and other managerial activities involved
with respect to records creation, records maintenance
and use, and records disposition in order to achieve
adequate and proper documentation of the policies and
transactions of the Federal Government and effective
and economical management of agency operations.
(kk) ``Safeguarding'' means measures and controls
that are prescribed to protect classified information.
(ll) ``Self-inspection'' means the internal review
and evaluation of individual agency activities and the
agency as a whole with respect to the implementation of
the program established under this order and its
implementing directives.
(mm) ``Senior agency official'' means the official
designated by the agency head under section 5.4(d) of
this order to direct and administer the agency's
program under which information is classified,
safeguarded, and declassified.
(nn) ``Source document'' means an existing document
that contains classified information that is
incorporated, paraphrased, restated, or generated in
new form into a new document.
(oo) ``Special access program'' means a program
established for a specific class of classified
information that imposes safeguarding and access
requirements that exceed those normally required for
information at the same classification level.
[[Page 730]]
(pp) ``Systematic declassification review'' means
the review for declassification of classified
information contained in records that have been
determined by the Archivist to have permanent
historical value in accordance with title 44, United
States Code.
(qq) ``Telecommunications'' means the preparation,
transmission, or communication of information by
electronic means.
(rr) ``Unauthorized disclosure'' means a
communication or physical transfer of classified
information to an unauthorized recipient.
(ss) ``U.S. entity'' includes:
(1) State, local, or tribal governments;
(2) State, local, and tribal law enforcement and firefighting entities;
(3) public health and medical entities;
(4) regional, state, local, and tribal emergency management entities,
including State Adjutants General and other appropriate public safety
entities; or
(5) private sector entities serving as part of the nation's Critical
Infrastructure/Key Resources.
(tt) ``Violation'' means:
(1) any knowing, willful, or negligent action that could reasonably be
expected to result in an unauthorized disclosure of classified information;
(2) any knowing, willful, or negligent action to classify or continue the
classification of information contrary to the requirements of this order or
its implementing directives; or
(3) any knowing, willful, or negligent action to create or continue a
special access program contrary to the requirements of this order.
(uu) ``Weapons of mass destruction'' means any
weapon of mass destruction as defined in 50 U.S.C.
1801(p).
Sec. 6.2. General Provisions. (a) Nothing in this order
shall supersede any requirement made by or under the
Atomic Energy Act of 1954, as amended, or the National
Security Act of 1947, as amended. ``Restricted Data''
and ``Formerly Restricted Data'' shall be handled,
protected, classified, downgraded, and declassified in
conformity with the provisions of the Atomic Energy Act
of 1954, as amended, and regulations issued under that
Act.
(b) The Director of National Intelligence may, with
respect to the Intelligence Community and after
consultation with the heads of affected departments and
agencies, issue such policy directives and guidelines
as the Director of National Intelligence deems
necessary to implement this order with respect to the
classification and declassification of all intelligence
and intelligence-related information, and for access to
and dissemination of all intelligence and intelligence-
related information, both in its final form and in the
form when initially gathered. Procedures or other
guidance issued by Intelligence Community element heads
shall be in accordance with such policy directives or
guidelines issued by the Director of National
Intelligence. Any such policy directives or guidelines
issued by the Director of National Intelligence shall
be in accordance with directives issued by the Director
of the Information Security Oversight Office under
section 5.1(a) of this order.
(c) The Attorney General, upon request by the head
of an agency or the Director of the Information
Security Oversight Office, shall render an
interpretation of this order with respect to any
question arising in the course of its administration.
(d) Nothing in this order limits the protection
afforded any information by other provisions of law,
including the Constitution, Freedom of Information Act
exemptions, the Privacy Act of 1974, and the National
Security Act of 1947, as amended. This order is not
intended to and does not create any right or benefit,
substantive or procedural, enforceable at law
[[Page 731]]
by a party against the United States, its departments,
agencies, or entities, its officers, employees, or
agents, or any other person. The foregoing is in
addition to the specific provisos set forth in sections
1.1(b), 3.1(c) and 5.3(e) of this order.
(e) Nothing in this order shall be construed to
obligate action or otherwise affect functions by the
Director of the Office of Management and Budget
relating to budgetary, administrative, or legislative
proposals.
(f) This order shall be implemented subject to the
availability of appropriations.
(g) Executive Order 12958 of April 17, 1995, and
amendments thereto, including Executive Order 13292 of
March 25, 2003, are hereby revoked as of the effective
date of this order.
Sec. 6.3. Effective Date. This order is effective 180
days from the date of this order, except for sections
1.7, 3.3, and 3.7, which are effective immediately.
Sec. 6.4. Publication. The Archivist of the United
States shall publish this Executive Order in the
Federal Register.
(Presidential Sig.)
THE WHITE HOUSE,
December 29, 2010.
[FR Doc. E9-31418
Filed 1-4-10; 11:15 am]
Billing code 7515-01-P
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