28 C.F.R. Subpart A—Administration
Title 28 - Judicial Administration
(a) The Assistant Attorney General for Administration is designated as the senior agency official as required by §5.6(c) of Executive Order 12958, and §6.1(a) of Executive Order 12968 and, except as specifically provided elsewhere in this part, is authorized to administer the Department's national security information program pursuant to Executive Order 12958. The Assistant Attorney General for Administration shall appoint a Department Security Officer and may delegate to the Department Security Officer those functions under Executive Orders 12958 and 12968 that may be delegated by the senior agency official. The Department Security Officer may redelegate such functions when necessary to effectively implement this part. (b) The Assistant Attorney General for Administration shall, among other actions: (1) Oversee and administer the Department's program established under Executive Order No. 12958; (2) Establish and maintain Department-wide security education and training programs; (3) Establish and maintain an ongoing self-inspection program including the periodic review and assessment of the Department's classified product; (4) Establish procedures to prevent unnecessary access to classified information, including procedures that: (i) Require that a need for access to classified information is established before initiating administrative procedures to grant access; and (ii) Ensure that the number of persons granted access to classified information is limited to the minimum necessary for operational and security requirements and needs; (5) Develop special contingency plans for the safeguarding of classified information used in or near hostile or potentially hostile areas; (6) Assure that the performance contract or other system used to rate personnel performance includes the management of classified information as a critical element or item to be evaluated in the rating of: (i) Original classification authorities; (ii) Security managers or security specialists; and (iii) All other personnel whose duties significantly involve the creation or handling of classified information; (7) Account for the costs associated with implementing this part and report the cost to the Director of the ISOO; (8) Assign in a prompt manner personnel to respond to any request, appeal, challenge, complaint, or suggestion concerning Executive Order 12958 that pertains to classified information that originated in a component of the Department that no longer exists and for which there is no clear successor in function; (9) Cooperate, under the guidance of the Security Policy Board, with other agencies to achieve practical, consistent, and effective adjudicative training and guidelines; (10) Conduct periodic evaluations of the Department's implementation and administration of Executive Orders 12958 and 12968; (11) Establish a plan for compliance with the automatic declassification provisions of Executive Order 12958 and oversee the implementation of that plan; and (12) Maintain a list of specific files series of records exempted from automatic declassification by the Attorney General pursuant to section 3.4(c) of Executive Order 12958. (c) The Department Security Officer may grant, deny, suspend, or revoke employee access to classified information pursuant to and in accordance with Executive Order 12968. The Department Security Officer may delegate the authority under this paragraph to qualified Security Programs Managers when the operational need justifies the delegation and when the Department Security Officer is assured that such officials will apply all access criteria in a uniform and correct manner in accord with the provisions of Executive Order 12968 and subpart C of this part. The fact that a delegation has been made pursuant to this section does not waive the Department Security Officer's authority to make any determinations that have been delegated. (d) The Department Security Officer shall maintain a current list of all officials authorized pursuant to this part to originally classify or declassify documents. (e) The Department Security Officer shall promulgate criteria and security requirements for the marking and safeguarding of information, transportation and transfer of information, preparation of classification guides, reporting of communications related to national security by persons granted access to classified information, reporting of information that raises doubts as to whether another employee's continued eligibility for access to classified information is clearly consistent with the national security, and other matters necessary to the administration of the Executive Orders, the implementing regulations of the ISOO, and this part. The head of each component shall appoint and oversee a Security Programs Manager to implement this regulation. The Security Programs Managers shall: (a) Observe, enforce, and implement security regulations or procedures pertaining to the classification, declassification, safeguarding, handling, and storage of classified national security information; (b) Report violations of the provisions of this regulation to the Department Security Officer; (c) Ensure that all employees acquire adequate security education and training as required by the provisions of the Department security regulations and procedures for classified information; (d) Continuously review the requirements for personnel access to classified information as a part of the continuous need-to-know evaluation, and initiate action to administratively withdraw or reduce the level of access authorized, as appropriate; and (e) Cooperate fully with any request from the Department Security Officer for assistance in the implementation of this part. (a) The Counsel for Intelligence Policy shall represent the Attorney General at interagency meetings on matters of general interest concerning national security information. (b) The Counsel for Intelligence Policy shall provide advice and interpretation on any issues that arise under Executive Orders 12958 and 12968 and shall refer such questions to the Office of Legal Counsel, as appropriate. (c) Any request for interpretation of Executive Order 12958 or Executive Order 12968, pursuant to section 6.1(b) of Executive Order 12958, and section 7.2(b) of Executive Order 12968, shall be referred to the Counsel for Intelligence Policy, who shall refer such questions to the Office of Legal Counsel, as appropriate. (a) The Department Review Committee (DRC) is established to: (1) Resolve all issues, except those related to the compromise of classified information, that concern the implementation and administration of Executive Order 12958, implementing directives from the ISOO, and subpart B of this part, including those issues concerning over-classification, failure to declassify, classification challenges, and delays in declassification not otherwise resolved; (2) Review all appeals from denials of requests for records made under section 3.6 of Executive Order 12958 and the Freedom of Information Act (5 U.S.C. 552), when the proposed denial is based on their continued classification under Executive Order 12958; (3) Recommend to the Attorney General appropriate administrative sanctions to correct the abuse or violation of any provision of Executive Order 12958, the implementing directives or subpart B of this part, except as it relates to the compromise of classified national security information; and (4) Review, on appeal, challenges to classification actions and mandatory review requests. (b)(1) The DRC shall consist of a senior representative designated by the: (i) Deputy Attorney General; (ii) Assistant Attorney General, Office of Legal Counsel; (iii) Assistant Attorney General, Criminal Division; (iv) Assistant Attorney General, Civil Division; (v) Assistant Attorney General for Administration; (vi) Director, Federal Bureau of Investigation; and (vii) Counsel for Intelligence Policy. (2) Each such official shall also designate in writing an alternate to serve in the absence of his or her representative. Four representatives shall constitute a quorum of the DRC. The Attorney General shall designate the Chairman of the DRC from among its members. (c) The Office of Information and Privacy (OIP) shall provide the necessary administrative staff support for the DRC. (a) The Access Review Committee (ARC) is hereby established to review all appeals from denials or revocations of eligibility for access to classified information under Executive Order 12968. Unless the Attorney General requests recommendations from the ARC and personally exercises appeal authority, the ARC's decisions shall be final. (b) The ARC shall consist of the Deputy Attorney General or a designee, the Counsel for Intelligence Policy or a designee, and the Assistant Attorney General for Administration or a designee. Designations must be approved by the Attorney General. (c) The Department Security Officer shall provide the necessary administrative staff support for the ARC. (a) Any person who suspects or has knowledge of a violation of this part, including the known or suspected loss or compromise of national security information, shall promptly report and confirm in writing the circumstances to the Department Security Officer. Any person who makes such a report to the Department Security Officer shall promptly furnish a copy of such report: (1) If the suspected violation involves a Department attorney (including an Assistant United States Attorney or Special Assistant United States Attorney) while engaged in litigation, grand jury proceedings, or giving legal advice, or a law enforcement officer assisting an attorney engaged in such activity, to the Office of Professional Responsibility; (2) If the suspected violation involves an employee of the Federal Bureau of Investigation (FBI) or the Drug Enforcement Administration, other than a law enforcement officer in paragraph (a)(1) of this section, to the Office of Professional Responsibility in that component; or (3) In any other circumstance, to the Office of the Inspector General. (b) Department employees, contractors, grantees, or consultants may be reprimanded, suspended without pay, terminated from classification authority, suspended from or denied access to classified information, or subject to other sanctions in accordance with applicable law and Department regulation if they: (1) Knowingly, willfully, or negligently disclose to unauthorized persons information classified under Executive Order 12958 or predecessor orders; (2) Knowingly, willfully, or negligently classify or continue the classification of information in violation of Executive Order 12958 or its implementing directives; or (3) Knowingly, willfully, or negligently violate any other provision of Executive Order 12958, or knowingly and wilfully grant eligibility for, or allow access to, classified information in violation of Executive Order 12968, or its implementing directives, this part, or security requirements promulgated by the Department Security Officer. (a)(1) Any Department official or organization receiving an order or subpoena from a federal or state court to produce classified information, required to submit classified information for official Department litigative purposes, or receiving classified information from another organization for production of such in litigation, shall immediately determine from the agency originating the classified information whether the information can be declassified. If declassification is not possible, the Department official or organization and the assigned Department attorney in the case shall take all appropriate action to protect such information pursuant to the provisions of this section. (2) If a determination is made to produce classified information in a judicial proceeding in any manner, the assigned Department attorney shall take all steps necessary to ensure the cooperation of the court and, where appropriate, opposing counsel in safeguarding and retrieving the information pursuant to the provisions of this regulation. (b) The Classified Information Procedures Act (CIPA), Pub. L. 96–456, 94 Stat. 2025, 18 U.S.C. App., and the “Security Procedures Established Pursuant to Pub. L. 96–456, 94 Stat. 2025, by the Chief Justice of the United States for the Protection of Classified Information” may be used in Federal criminal cases involving classified information. (Available from the Security and Emergency Planning Staff, Justice Management Division, Department of Justice, Washington, DC 20530.) (c) In judicial proceedings other than Federal criminal cases where CIPA is used, the Department, through its attorneys, shall seek appropriate security safeguards to protect classified information from unauthorized disclosure, including, but not limited to, consideration of the following: (1) A determination by the court of the relevance and materiality of the classified information in question; (2) An order that classified information shall not be disclosed or introduced into evidence at a proceeding without the prior approval of either the originating agency, the Attorney General, or the President; (3) A limitation on attendance at any proceeding where classified information is to be disclosed to those persons with appropriate authorization to access classified information whose duties require knowledge or possession of the classified information to be disclosed; (4) A court facility that provides appropriate safeguarding for the classified information as determined by the Department Security Officer; (5) Dissemination and accountability controls for all classified information offered for identification or introduced into evidence at such proceedings; (6) Appropriate marking to indicate classified portions of any and any the maintenance of any classified under seal; (7) Handling and storage of all classified information including classified portions of any transcript in a manner consistent with the provisions of this regulation and Department implementing directives; (8) Return at the conclusion of the proceeding of all classified information to the Department or the originating agency, or placing the classified information under court seal; (9) Retrieval by Department employees of appropriate notes, drafts, or any other documents generated during the course of the proceedings that contain classified information and immediate transfer to the Department for safeguarding and destruction as appropriate; and (10) Full and complete advice to all persons to whom classified information is disclosed during such proceedings as to the classification level of such information, all pertinent safeguarding and storage requirements, and their liability in the event of unauthorized disclosure. (d) Access to classified information by individuals involved in judicial proceedings other than employees of the Department is governed by §17.46(c). (a) All individuals with authorized access to Sensitive Compartmented Information shall be required to sign nondisclosure agreements containing a provision for prepublication review to assure deletion of Sensitive Compartmented Information and other classified information. Sensitive Compartmented Information is information that not only is classified for national security reasons as Top Secret, Secret, or Confidential, but also is subject to special access and handling requirements because it involves or derives from particularly sensitive intelligence sources and methods. The prepublication review provision will require Department of Justice employees and other individuals who are authorized to have access to Sensitive Compartmented Information to submit certain material, described further in the agreement, to the Department prior to its publication to provide an opportunity for determining whether an unauthorized disclosure of Sensitive Compartmented Information or other classified information would occur as a consequence of it publication. (b) Persons subject to these requirements are invited to discuss their plans for public disclosures of information that may be subject to these obligations with authorized Department representatives at an early stage, or as soon as circumstances indicate these policies must be considered. Except as provided in paragraph (j) of this section for FBI personnel, all questions concerning these obligations should be addressed to the Counsel for Intelligence Policy, Department of Justice, 10th & Constitution Avenue, NW., Washington, DC 20530. The official views of the Department on whether specific materials require prepublication review may be expressed only by the Counsel for Intelligence Policy and persons should not act in reliance upon the views of other Department personnel. (c) Prepublication review is required only as expressly provided for in a nondisclosure agreement. However, all persons who have had access to classified information have an obligation to avoid unauthorized disclosures of such information. Therefore, persons who have such access but are not otherwise required to submit to prepublication review under the terms of an employment or other nondisclosure agreement are encouraged to submit material for prepublication review voluntarily if they believe that such material may contain classified information. (d) The nature and extent of the material that is required to be submitted for prepublication review under nondisclosure agreements is expressly provided for in those agreements. It should be clear, however, that such requirements do not extend to any materials that exclusively contain information lawfully obtained at a time when the author has no employment, contract, or other relationship with the United States Government or that contain information exclusively acquired outside the scope of employment. (e) A person's obligation to submit material for prepublication review remains identical whether such person prepares the materials or causes or assists another person (such as a ghost writer, spouse, friend, or editor) in preparing the material. Material covered by a nondisclosure agreement requiring prepublication review must be submitted prior to discussing it with or showing it to a publisher, co-author, or any other person who is not authorized to have access to it. In this regard, it should be noted that a failure to submit such material for prepublication review constitutes a breach of the obligation and exposes the author to remedial action even in cases where the published material does not actually contain Sensitive Compartmented Information or classified information. See Snepp v. United States, 444 U.S. 507 (1980). (f) The requirement to submit material for prepublication review is not limited to any particular type of material or disclosure or methods of production. Written materials include not only book manuscripts but all other forms of written materials intended for public disclosure, such as (but not limited to) newspaper columns, magazine articles, letters to the editor, book reviews, pamphlets, scholarly papers, and fictional material. (g) Oral statements are also within the scope of a prepublication review requirement when based upon written materials, such as an outline of the statements to be made. There is no requirement to prepare written materials for review, however, unless there is reason to believe in advance that oral statements may contain Sensitive Compartmented Information or other information required to be submitted for review under the terms of the nondisclosure agreement. Thus, a person may participate in an oral presentation where there is no opportunity for prior preparation (e.g., news interview, panel discussion) without violating the provisions of this paragraph. (h) Material submitted for republication review will be reviewed solely for the purpose of identifying and preventing the disclosure of Sensitive Compartmented Information and other classified information. This review will be conducted in an impartial manner without regard to whether the material is critical of or favorable to the Department. No effort will be made to delete embarrassing or critical statements that are unclassified. Materials submitted for review will be disseminated to other persons or agencies only to the extent necessary to identify classified information. (i) The Counsel for Intelligence Policy (or, in the case of FBI employees, the FBI's Office of Congressional and Public Affairs) will respond substantively to prepublication review requests within 30 working days of receipt of the submission. Priority shall be given to reviewing speeches, newspaper articles, and other materials that the author seeks to publish on an expedited basis. The Counsel's decisions may be appealed to the Deputy Attorney General, who will process appeals within 15 days of receipt of the appeal. The Deputy Attorney General's decision is final and not subject to further administrative appeal. Persons who are dissatisfied with the final administrative decision may obtain judicial review either by filing an action for declaratory relief or giving the Department notice of their intention to proceed despite the Department's request for deletions of classified information, and a reasonable opportunity (30 working days) to file a civil action seeking a court order prohibiting disclosure. Employees and other affected individuals remain obligated not to disclose or publish information determined by the Government to be classified until any civil action is resolved. (j) The obligations of Department of Justice employees described in this subpart apply with equal force to employees of the FBI with following exceptions and provisos: (1) Nothing in this subpart shall supersede or alter obligations assumed under the basic FBI employment agreement. (2) FBI employees required to sign nondisclosure agreements containing a provision for prepublication review pursuant to this subpart shall submit materials for review to the Assistant Director, Office of Congressional and Public Affairs. Such individuals shall also submit questions as to whether specific materials require prepublication review under such agreements to that Office for resolution. Where such questions raise policy questions or concern significant issues of interpretation under such an agreement, the Assistant Director, Office of Congressional and Public Affairs, shall consult with the Counsel for Intelligence Policy prior to responding to the inquiry. (3) Decisions of the Assistant Director, Office of Congressional and Public Affairs, concerning the deletion of classified information, may be appealed to the Director, FBI, who will process appeals within 15 working days of receipt. Persons who are dissatisfied with the Director's decision may, at their option, appeal further to the Deputy Attorney General as provided in paragraph (i) of this section. Judicial review, as set forth in that paragraph, is available following final agency action in the form of a decision by the Director or, if the appeal process in paragraph (i) of this section is pursued, the Deputy Attorney General.
Title 28: Judicial Administration
PART 17—CLASSIFIED NATIONAL SECURITY INFORMATION AND ACCESS TO CLASSIFIED INFORMATION
Subpart A—Administration
§ 17.11 Authority of the Assistant Attorney General for Administration.
§ 17.12 Component head responsibilities.
§ 17.13 Office of Intelligence Policy and Review responsibilities; interpretation of Executive Orders.
§ 17.14 Department Review Committee.
§ 17.15 Access Review Committee.
§ 17.16 Violations of classified information requirements.
§ 17.17 Judicial proceedings.
§ 17.18 Prepublication review.
