81 FR 45979 - Classified Information: Classification/Declassification/Access; Authority To Classify Information (RRR)

DEPARTMENT OF TRANSPORTATION
Office of the Secretary

Federal Register Volume 81, Issue 136 (July 15, 2016)

This final rule updates the regulations regarding classified information to reflect changes in organizational structure, update the legal authorities, incorporate new references, and refer historical researchers and former Presidential appointees to Executive Order 13526.

[Federal Register Volume 81, Number 136 (Friday, July 15, 2016)]
[Rules and Regulations]
[Pages 45979-45982]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-16565]


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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 8

RIN 2105-AE50


Classified Information: Classification/Declassification/Access; 
Authority To Classify Information (RRR)

AGENCY: Office of the Secretary of Transportation (OST), U.S. 
Department of Transportation (DOT).

ACTION: Final rule.

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SUMMARY: This final rule updates the regulations regarding classified 
information to reflect changes in organizational structure, update the 
legal authorities, incorporate new references, and refer historical 
researchers and former Presidential appointees to Executive Order 
13526.

DATES: This final rule is effective July 15, 2016.

FOR FURTHER INFORMATION CONTACT: Joan Harris, Associate Director, 
Office of Security, 202-366-1827, or electronically at 
[email protected]. You may also contact David Meade, Senior Security 
Specialist, Office of Security, 202-366-8891, or electronically at 
[email protected].

SUPPLEMENTARY INFORMATION: A 2011 DOT final rule (76 FR 19707) 
announced changes regarding the authority to classify information, but 
did not update other parts of the rule. As a result, the Department's 
regulations at 49 CFR part 8 need to be updated. This final rule makes 
the following corrections: Executive Order 12958, ``Classified National 
Security Information,'' has been replaced by Executive Order 13526, so 
references to the outdated Executive Order have been removed. The 
``Interagency Classification Review Committee'' is now the Interagency 
Security Classification Appeals Panel. As a result of reorganizations 
after the September 11, 2001, terrorist attacks, the U.S. Coast Guard 
is no longer a part of DOT, so references to that agency as a 
departmental component have been removed, and a representative from the 
Federal Highway Administration replaces the U.S. Coast Guard's 
representative on the Department's Personnel Security Review Board. 
This final rule also updates the names of some departmental offices, 
which have changed.
    Section 8.19, which contained detailed instructions for submitting 
and processing requests for classification challenges and mandatory 
classification reviews, is also eliminated because of inconsistencies 
with the current regulations at 32 CFR 2001. Sections 8.15 (Mandatory 
review for classification) and 8.17 (Classification challenges) have 
been rewritten to cite the appropriate sections of 32 CFR 2001 
regarding such requests.
    The detailed instructions in Section 8.29, Access by historical 
researchers and former Presidential appointees, have been eliminated 
because they were outdated. Instead, the instructions have been 
replaced with a reference to Executive Order 13526, which describes the 
conditions that qualify such persons for access, and Executive Order 
12968 which provides general guidelines for access to classified 
information.
    This final rule is exempt from Administrative Procedure Act (APA) 
notice-and-comment requirements. This final rule does not affect any 
substantive changes to the regulations or alter any existing compliance 
obligations. This final rule would only make technical corrections to 
part 8 by correcting outdated references without affecting the 
substance of the underlying rulemaking document. For the reasons stated 
above, notice and comment procedures are unnecessary within the meaning 
of the APA. See 5 U.S.C. 553(b)(3)(B).
    The Department finds good cause for this final rule to become 
effective immediately under 5 U.S.C. 553(d)(1). This final rule is only 
removing outdated, obsolete, and inconsistent language in the 
regulations without altering any existing compliance obligations 
contained in the current regulations. Since this final rule is 
nonsubstantive and will not affect any regulated entity's compliance 
with the current regulations, the Department finds good cause for it to 
become effective immediately.

Regulatory Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    The DOT has determined that this action is not a significant 
regulatory action within the meaning of Executive Order 12866, and 
within the meaning of DOT's regulatory policies and procedures. Since 
this rulemaking merely removes obsolete and inconsistent language and 
makes editorial corrections and does not have any substantive impact on 
the regulated community, DOT anticipates that this rulemaking will have 
no economic impact.
    Additionally, this action fulfills the principles of Executive 
Order 13563, specifically those relating to retrospective analyses of 
existing rules. This rule is being issued as a result of the reviews of 
existing regulations that the Department periodically conducts. In 
addition, these changes will not interfere with any action taken or 
planned by another agency and would not materially alter the budgetary 
impact of any entitlements, grants, user fees, or loan programs. 
Consequently, a full regulatory evaluation is not necessary.

B. Executive Order 13132

    Executive Order 13132 requires agencies to ensure meaningful and 
timely input by State and local officials in the development of 
regulatory policies that may have a substantial, direct effect on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. This action has been analyzed in 
accordance with the principles and criteria contained in Executive 
Order 13132, dated August 4, 1999, and the DOT has determined that this 
action would not have a substantial direct effect or sufficient 
federalism implications on the States. The DOT has also determined that 
this action would not preempt any State law or regulation or affect the 
States' ability to discharge traditional State governmental functions. 
Therefore, consultation with the States is not necessary.

C. Executive Order 13175

    The DOT has analyzed this action under Executive Order 13175, dated 
November 6, 2000, and believes that the action would not have 
substantial direct effects on one or more Indian tribes, would not 
impose substantial direct compliance costs on Indian tribal 
governments, and would not preempt tribal laws. This final rule merely 
updates outdated terminology, and removes inconsistent language 
relating to compliance with the Department's classified information 
regulations. It does not impose any new requirements on Indian tribal 
governments. Therefore, a tribal summary impact statement is not 
required.

D. Regulatory Flexibility Act

    Since notice-and-comment rulemaking is not necessary for this rule, 
the provisions of the Regulatory Flexibility Act (Pub. L. 96-354, 5 
U.S.C.

[[Page 45980]]

601-612) do not apply. However, the DOT has evaluated the effects of 
this action on small entities and has determined that the action would 
not have a significant economic impact on a substantial number of small 
entities. The rule removes obsolete guidance language and updates 
outdated terminology and, therefore, does not add to or alter any 
existing obligations.

E. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et 
seq.), Federal agencies must obtain approval from the Office of 
Management and Budget for each collection of information they conduct, 
sponsor, or require through regulations. The DOT has analyzed this 
final rule under the PRA and has determined that this rule does not 
contain collection of information requirements for the purposes of the 
PRA.

F. Unfunded Mandates Reform Act

    This final rule would not impose unfunded mandates, as defined by 
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48, 
March 22, 1995), as it will not result in the expenditure by State, 
local, or tribal governments, in the aggregate, or by the private 
sector, of $148.1 million or more in any one year (2 U.S.C. 1532).

G. National Environmental Policy Act

    The agency has analyzed the environmental impacts of this proposed 
action pursuant to the National Environmental Policy Act of 1969 (NEPA) 
(42 U.S.C. 4321 et seq.) and has determined that it is categorically 
excluded pursuant to DOT Order 5610.1C, Procedures for Considering 
Environmental Impacts (44 FR 56420, Oct. 1, 1979). Categorical 
exclusions are actions identified in an agency's NEPA implementing 
procedures that do not normally have a significant impact on the 
environment and therefore do not require either an environmental 
assessment (EA) or environmental impact statement (EIS). See 40 CFR 
1508.4. In analyzing the applicability of a categorical exclusion, the 
agency must also consider whether extraordinary circumstances are 
present that would warrant the preparation of an EA or EIS. Id. 
Paragraph 3.c.5 of DOT Order 5610.1C incorporates by reference the 
categorical exclusions for all DOT Operating Administrations. This 
action is covered by the categorical exclusion listed in the Federal 
Highway Administration's implementing procedures, ``[p]romulgation of 
rules, regulations, and directives.'' 23 CFR 771.117(c)(20). The 
purpose of this rulemaking is to make editorial corrections and remove 
obsolete and inconsistent language in the Department's classified 
information regulations. The agency does not anticipate any 
environmental impacts, and there are no extraordinary circumstances 
present in connection with this rulemaking.

List of Subjects in 49 CFR Part 8

    Classified Information (Government agencies), Classification/
Declassification/Access (Government agencies).

The Final Rule

    For the reasons set forth in the preamble, OST amends 49 CFR part 8 
as follows:

PART 8--[AMENDED]

0
1. The authority citation for part 8 is revised to read as follows:

    Authority: E.O. 10450, 18 FR 2489, 3 CFR, 1949-1953 Comp., p. 
936, amended by E.O. 10491, 18 FR 6583, 3 CFR, 1949-1953 Comp., p. 
973, E.O. 10531, 19 FR 3069, 3 CFR, 1949-1953 Comp., p. 973, E.O. 
10548, 19 FR 4871, 3 CFR, 1954-1958 Comp., p. 200, E.O. 10550, 19 FR 
4981, 3 CFR, 1954-1958 Comp., p. 200, E.O. 11605, 20 FR 2747, 3 CFR, 
1971-1975 Comp., p. 580, E.O. 11785, 39 FR 20053, 3 CFR, 1971-1975 
Comp., p. 874, E.O. 12107, 44 FR 1055, 3 CFR, 1978 Comp., p. 266; 
E.O. 12829, 58 FR 3479, 3 CFR, 1993 Comp., p. 570, amended by E.O. 
12885, 58 FR 65863, 3 CFR, 1993 Comp., p. 684; E.O. 13526, 75 FR 
707, 3 CFR, 2010 Comp., p. 298; E.O. 12968, 3 CFR, 1995 Comp., p. 
391, amended by E.O. 13467, 73 FR 38103, 3 CFR, 2009 Comp., p. 196.


0
2. Part 8 is amended by:
0
a. Removing ``Director of Security and Administrative Management'' and 
adding in its place ``Director of Security'' wherever it appears; and
0
b. Removing ``Executive Order 12958'' and adding in its place 
``Executive Order 13526'' wherever it appears.

Subpart A--General

0
3. Section 8.1 is revised to read as follows:


Sec.  8.1  Scope.

    This part sets forth procedures for the classification, 
declassification, and availability of information that must be 
protected in the interest of national security, in implementation of 
Executive Order 13526 of December 29, 2010, ``Classified National 
Security Information;'' and for the review of decisions to revoke, or 
not to issue, national security information clearances, or to deny 
access to classified information, under Executive Order 12968 of August 
2, 1995, ``Access to National Security Information,'' as amended by 
Executive Order 13467 of June 30, 2008, ``Reforming Processes Related 
to Suitability for Government Employment, Fitness for Contractor 
Employees, and Eligibility for Access to Classified National Security 
Information.''
0
4. In Sec.  8.5, add a definition for ``Authorized holder'' and revise 
the definitions of ``Clearance'', ``Damage to the national security'', 
``Mandatory declassification'', and ``Original classification 
authority'' to read as follows:


Sec.  8.5  Definitions.

* * * * *
    Authorized holder is any individual who has been granted access to 
specific classified information in accordance with Executive Order 
13526 or any successor order.
* * * * *
    Clearance means that an individual is eligible, under the standards 
of Executive Orders 10450, 12968, 13467, and appropriate DOT 
regulations, for access to classified information.
    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.
* * * * *
    Mandatory declassification review means the review for 
declassification of classified information in response to a request for 
declassification that meets the requirements of section 3.5 of 
Executive Order 13526.
* * * * *
    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.

0
5. In Sec.  8.7, paragraph (a) is revised to read as follows:


Sec.  8.7  Spheres of responsibility.

    (a) Pursuant to section 5.4(d) of Executive Order 13526, and to 
section 6.1 of Executive Order 12968, the Assistant Secretary for 
Administration is hereby designated as the senior agency official of 
the Department of Transportation with assigned responsibilities to 
assure effective compliance with and implementation of Executive Order 
13526, Executive Order 12968, Office of Management and

[[Page 45981]]

Budget Directives, the regulations in this part, and related issuances.
* * * * *

Subpart B--Classification/Declassification of Information

0
6. In Sec.  8.9, paragraphs (a) introductory text and (b) are revised 
to read as follows:


Sec.  8.9  Information Security Review Committee.

    (a) The Department of Transportation Information Security Review 
Committee has the authority to:
* * * * *
    (b) The Information Security Review Committee will be composed of 
the Assistant Secretary for Administration, who will serve as Chair; 
the General Counsel; and the Director of Security. When matters 
affecting a particular Departmental component are at issue, the 
Associate Administrator for Administration for that component (or for 
the Federal Aviation Administration, the Associate Administrator for 
Security and Hazardous Materials Safety) will participate as an ad hoc 
member, together with the Chief Counsel of that component. Any regular 
member may designate a representative with full power to serve in his/
her place.
* * * * *

0
7. In Sec.  8.11, paragraphs (a), (b)(1) and (2), and (c) are revised 
to read as follows:


Sec.  8.11  Authority to classify information.

    (a) Presidential Order of December 29, 2009, ``Original 
Classification Authority'' confers upon the Secretary of Transportation 
the authority to originally classify information as SECRET or 
CONFIDENTIAL with further authorization to delegate this authority.
    (b) * * *
    (1) Office of the Secretary of Transportation. The Deputy 
Secretary; Assistant Secretary for Administration; Director of 
Intelligence, Security and Emergency Response; Director of Security.
    (2) Federal Aviation Administration. Administrator; Associate 
Administrator for Security and Hazardous Materials Safety.
* * * * *
    (c) Although the delegations of authority set out in paragraph (b) 
of this section are expressed in terms of positions, the authority is 
personal and is invested only in the individual occupying the position. 
The authority may not be exercised ``by direction of'' a designated 
official. The formal appointment or assignment of an individual to one 
of the identified positions or a designation in writing to act in the 
absence of one of these officials, however, conveys the authority to 
originally classify information as SECRET or CONFIDENTIAL.
* * * * *

0
8. Revise Sec.  8.15 to read as follows:


Sec.  8.15  Mandatory review for classification.

    (a) Mandatory declassification review requests will be processed in 
accordance with 32 CFR 2001.33.
    (b) Except as provided in paragraph b of section 3.5 of Executive 
Order 13526, all information classified by the Department of 
Transportation under Executive Order 13526 or predecessor orders shall 
be subject to a review for declassification if:
    (1) The request for review describes the information with 
sufficient specificity to enable its location with a reasonable amount 
of effort;
    (2) The information has not been reviewed for declassification 
within the prior two years. If the information has been reviewed within 
the prior two years, or the information is the subject of pending 
litigation, the requestor will be informed of this fact, and of the 
Department's decision not to declassify the information and of his/her 
right to appeal the Department's decision not to declassify the 
information to the Interagency Security Classification Appeals Panel 
(ISCAP);
    (3) 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
    (4) The information is not the subject of pending litigation.
    (c) All information reviewed for declassification because of a 
mandatory review will be declassified if it does not meet the standards 
for classification in Executive Order 13526. The information will then 
be released unless withholding is otherwise authorized and warranted 
under applicable law.
    (d) Mandatory declassification review requests for information that 
has been classified by the Department of Transportation may be 
addressed to the Director of Security, U.S. Department of 
Transportation, 1200 New Jersey Avenue, Washington, DC 20590. The 
Director will forward the request to the appropriate Departmental 
Original Classification Authority for processing.
    (e) Denied requests may be appealed to the DOT Information Security 
Review Committee (DISRC) through the Director of Security within 60 
days of receipt of the denial. If the DISRC upholds the denial, it will 
inform the requestor of his or her final appeal rights to the ISCAP.

0
9. Revise Sec.  8.17 to read as follows:


Sec.  8.17  Classification challenges.

    (a) Authorized holders of information classified by the Department 
of Transportation who, in good faith, believe that its classification 
status is improper are encouraged and expected to challenge the 
classification status of the information before the Original 
Classification Authority (OCA) having jurisdiction over the 
information. A formal challenge must be in writing, but need not be any 
more specific than to question why information is or is not classified, 
or is classified at a certain level.
    (b) Classification challenges to DOT information must be addressed 
to the DOT Original Classification Authority (OCA) who is responsible 
for the information. If unsure of the OCA, address the challenge to the 
DOT Director of Security.
    (c) Classification challenges will be processed according to 32 CFR 
2001.14.


Sec.  8.19  [Removed and Reserved]

0
10. Remove and reserve Sec.  8.19.


Sec.  8.21  [Amended]

0
11. Amend Sec.  8.21 by removing ``8.13,'' and the comma following 
``8.15'', and by removing the word ``agency'' and adding ``component'' 
in its place.


Sec.  8.23  [Amended]

0
12. Amend Sec.  8.23 as follows:
0
a. In paragraph (a) by adding an ``s'' to the word ``function'';
0
b. In paragraph (b) by removing the word ``a'' and adding in its place 
the word ``another'' in the first sentence and by adding the words ``at 
a lower level'' after the word ``resolved'' in the last sentence;
0
c. In paragraph (c) by adding ``, directives issued pursuant to 
Executive Order 13526,'' after the words ``Executive Order 13526'' in 
the first sentence and in the second sentence by removing the words 
``in NARA'' and adding in their place ``into the National Archives''; 
and
0
d. In paragraph (d) by removing the words ``of this part for automatic 
declassification'' at the end of the first sentence, and adding in 
their place ``for automatic declassification in section 3.3 of 
Executive Order 13526 and its implementing directives''.

Subpart C--Access to Information

0
13. 13. In Sec.  8.25, revise paragraphs (a) introductory text and 
(b)(1) through (4)

[[Page 45982]]

and add paragraph (b)(5) to read as follows:


Sec.  8.25  Personnel Security Review Board.

    (a) The Department of Transportation Personnel Security Review 
Board will, on behalf of the Secretary of Transportation (except in any 
case in which the Secretary personally makes the decision), make the 
administratively final decision on an appeal arising in any part of the 
Department from:
* * * * *
    (b) * * *
    (1) Two persons appointed by the Assistant Secretary for 
Administration: One from the Office of Human Resource Management, and 
one, familiar with personnel security adjudication, from the Office of 
Security, who will serve as Chair;
    (2) One person appointed by the General Counsel, who, in addition 
to serving as a member of the Board, will provide to the Board whatever 
legal services it may require;
    (3) One person appointed by the Administrator of the Federal 
Aviation Administration; and
    (4) One person appointed by the Administrator of the Federal 
Highway Administration.
    (5) Any member may designate a representative, meeting the same 
criteria as the member, with full power to serve in his/her place.
* * * * *

0
14. Section 8.29 is revised to read as follows:


Sec.  8.29  Access by historical researchers and former Presidential 
appointees.

    Access to classified information may be granted to historical 
researchers and former Presidents and Vice-Presidents and their 
appointees as outlined in Executive Order 13526 or its successor order. 
The general guidelines for access to classified information are 
contained in Executive Order 12968.

0
15. In Sec.  8.31, amend paragraph (b) by adding the word ``an'' 
between ``into agreement'' in the first sentence and by removing the 
last three sentences and adding a new sentence in their place.
    The addition reads as follows:


Sec.  8.31  Industrial security.

* * * * *
    (b) * * * Specifically, this regulation is DOD 5220.22-M, National 
Industrial Security Program Operating Manual, and is effective within 
the Department of Transportation. Appropriate security staff, project 
personnel, and contracting officers must assure that actions required 
by the regulation are taken.

    Issued in Washington, DC, on July 5, 2016, under authority 
delegated in 49 CFR 1.27(c).
Molly J. Moran,
Acting General Counsel.
[FR Doc. 2016-16565 Filed 7-14-16; 8:45 am]
 BILLING CODE 4910-9X-P