Administrative Law - CFR - 32 CFR Part 1802: Challenges to Classification of Documents by Authorized Holders Pursuant to Section 1.9 of Executive Order 12958


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32 CFR PART 1802:
CHALLENGES TO CLASSIFICATION OF DOCUMENTS BY AUTHORIZED HOLDERS PURSUANT TO SECTION 1.9 OF EXECUTIVE ORDER 12958

 

32 CFR PART 1802—CHALLENGES TO CLASSIFICATION OF DOCUMENTS BY AUTHORIZED HOLDERS PURSUANT TO SECTION 1.9 OF EXECUTIVE ORDER 12958

  • Subpart A—General
    • 1802.1:  Authority and purpose.
    • 1802.2:  Definitions.
    • 1802.3:  Contact for general information and requests.
    • 1802.4:  Suggestions and complaints.
  • Subpart B—Filing of Challenges
    • 1802.11:  Prerequisites.
    • 1802.12:  Requirements as to form.
    • 1802.13:  Identification of material at issue.
    • 1802.14:  Transmission.
  • Subpart C—Action on Challenges
    • 1802.21:  Receipt, recording, and tasking.
    • 1802.22:  Challenges barred by res judicata.
    • 1802.23:  Determination by originator(s) and/or any interested party.
    • 1802.24:  Designation of authority to hear challenges.
    • 1802.25:  Action on challenge.
    • 1802.26:  Notification of decision and prohibition on adverse action.
  • Subpart D—Right of Appeal
    • 1802.31:  Right of Appeal.

Authority:
Executive Order 12958, 60 FR 19825, 3 CFR 1996 Comp., p. 333-356 (or successor Orders).

Source:
64 FR 49889, Sept. 14, 1999, unless otherwise noted.

 


SUBPART A—General

32 CFR 1802.1:  Authority and purpose.

(a) Authority.

 This part is issued under the authority of and in order to implement § 1.9 of Executive Order (E.O.) 12958 and section 102 of the National Security Act of 1947.

(b) Purpose.

 This part prescribes procedures for authorized holders of information classified under the various provisions of E.O. 12958, or predecessor Orders, to seek a review or otherwise challenge the classified status of information to further the interests of the United States Government. This part and § 1.9 of E.O. 12958 confer no rights upon members of the general public, or authorized holders acting in their personal capacity, both of whom shall continue to request reviews of classification under the mandatory declassification review provisions set forth at § 3.6 of E.O. 12958.

32 CFR 1802.2:  Definitions.

For purposes of this part, the following terms have the meanings as indicated:

 NACIC

 means the United States National Counterintelligence Center acting through the NACIC Information and Privacy Coordinator;

 Authorized holders

 means any member of any United States executive department, military department, the Congress, or the judiciary (Article III) who holds a security clearance from or has been specifically authorized by NACIC to possess and use on official business classified information, or otherwise has Constitutional authority pursuant to their office;

 Days

 means calendar days when NACIC is operating and specifically excludes Saturdays, Sundays, and legal public holidays. Three (3) days may be added to any requirement of this part if responding by U.S. domestic mail; ten (10) days may be added if responding by international mail;

 Challenge

 means a request in the individual's official, not personal, capacity and in furtherance of the interests of the United States;

 Control

 means ownership or the authority of NACIC pursuant to federal statute or privilege to regulate official or public access to records;

 Coordinator

 means the NACIC Information and Privacy Coordinator acting in the capacity of the Director of NACIC;

 Information

 means any knowledge that can be communicated or documentary material, regardless of its physical form, that is:
(1) Owned by, produced by or for, or under the control of the United States Government, and
(2) Lawfully and actually in the possession of an authorized holder and for which ownership and control has not been relinquished by NACIC;

 Interested party

 means any official in the executive, military, congressional, or judicial branches of government, United States or foreign, or U.S. Government contractor who, in the sole discretion of NACIC, has a subject matter or physical interest in the documents or information at issue;

 Originator

 means the NACIC officer who originated the information at issue, or successor in office, or a NACIC officer who has been delegated declassification authority for the information at issue in accordance with the provisions of this Order;

 This Order

 means Executive Order 12958 of April 17, 1995, or successor Orders.

32 CFR 1802.3:  Contact for general information and requests.

For information on this part or to file a challenge under this part, please direct your inquiry to the Director, National Counterintelligence Center, Washington, DC 20505. The commercial (non-secure) telephone is (703) 874-4117; the classified (secure) telephone for voice and facsimile is (703) 874-5829.

32 CFR 1802.4:  Suggestions and complaints.

NACIC welcomes suggestions or complaints with regard to its administration of the Executive Order. Letters of suggestion or complaint should identify the specific purpose and the issues for consideration. NACIC will respond to all substantive communications and take such actions as determined feasible and appropriate.


 

SUBPART B—Filing Of Challenges

32 CFR 1802.11:  Prerequisites.

Prior to reliance on this part, authorized holders are required to first exhaust such established administrative procedures for the review of classified information. Further information on these procedures is available from the point of contact, § 1802.3.

32 CFR 1802.12:  Requirements as to form.

The challenge shall include identification of the challenger by full name and title of position, verification of security clearance or other basis of authority, and an identification of the documents or portions of documents or information at issue. The challenge shall also, in detailed and factual terms, identify and describe the reasons why it is believed that the information is not protected by one or more of the § 1.5 provisions, that the release of the information would not cause damage to the national security, or that the information should be declassified due to the passage of time. The challenge must be properly classified; in this regard, until the challenge is decided, the authorized holder must treat the challenge, the information being challenged, and any related or explanatory information as classified at the same level as the current classification of the information in dispute.

32 CFR 1802.13:  Identification of material at issue.

Authorized holders shall append the documents at issue and clearly mark those portions subject to the challenge. If information not in documentary form is in issue, the challenge shall state so clearly and present or otherwise refer with specificity to that information in the body of the challenge.

32 CFR 1802.14:  Transmission.

Authorized holders must direct challenge requests to NACIC as specified in § 1802.3. The classified nature of the challenge, as well as the appended documents, require that the holder transmit same in full accordance with established security procedures. In general, registered U.S. mail is approved for SECRET, non-compartmented material; higher classifications require use of approved Top Secret facsimile machines or NACIC-approved couriers. Further information is available from NACIC as well as corporate or other federal agency security departments.


 

SUBPART C—Action On Challenges

32 CFR 1802.21:  Receipt, recording, and tasking.

The Coordinator shall within ten (10) days record each challenge received under this part, acknowledge receipt to the authorized holder, and task the originator and other interested parties. Additional taskings, as required during the review process, shall be accomplished within five (5) days of notification.

32 CFR 1802.22:  Challenges barred by res judicata.

The Coordinator shall respond on behalf of the Director, NACIC and deny any challenge where the information in question has been the subject of a classification review within the previous two (2) years or is the subject of pending litigation in the federal courts.

32 CFR 1802.23:  Response by originator(s) and/or any interested party.

(a) In general.

 The originator of the classified information (document) is a required party to any challenge; other interested parties may become involved through the request of the Director, NACIC or the originator when it is determined that some or all of the information is also within their official cognizance.

(b) Determination.

 These parties shall respond in writing to the Director, NACIC with a mandatory unclassified finding, to the greatest extent possible, and an optional classified addendum. This finding shall agree to a declassification or, in specific and factual terms, explain the basis for continued classification including identification of the category of information, the harm to national security which could be expected to result from disclosure, and, if older than ten (10) years, the basis for the extension of classification time under §§ 1.6 and 3.4 of this Order. These parties shall also provide a statement as to whether or not there is any other statutory, common law, or Constitutional basis for withholding as required by § 6.1(c) of this Order.

(c) Time.

 The determination(s) shall be provided on a first in, first out basis with respect to all challenges pending under this section and shall be accomplished expeditiously taking into account the requirements of the authorized holder as well as the business requirements of the originator including their responsibilities under the Freedom of Information Act, the Privacy Act, or the mandatory declassification review provisions of this Order.

32 CFR 1802.24:  Designation of authority to hear challenges.

The Director, NACIC is the NACIC authority to hear and decide challenges under this part.

32 CFR 1802.25:  Action on challenge.

Action by Coordinator. The Coordinator shall provide a summation memorandum for consideration of the Director, NACIC; the complete package consisting of the challenge, the information at issue, and the findings of the originator and interested parties shall also be provided. The Director, NACIC shall personally decide each case; no personal appearances shall be permitted without the express permission of the Director, NACIC.

32 CFR 1802.26:  Notification of decision and prohibition on adverse action.

The Coordinator shall communicate the decision of NACIC to the authorized holder, the originator, and other interested parties within ten (10) days of the decision by the Coordinator. That correspondence shall include a notice that no adverse action or retribution can be taken in regard to the challenge and that an appeal of the decision may be made to the Interagency Security Classification Appeals Panel (ISCAP) established pursuant to § 5.4 of this Order.

 


SUBPART D—Right of Appeal

32 CFR 1802.31:  Right of appeal.

A right of appeal is available to the ISCAP established pursuant to § 5.4 of this Order. Action by that body will be the subject of rules to be promulgated by the Information Security Oversight Office (ISOO).