PART 9—SECURITY INFORMATION REGULATIONS Authority: E.O. 13526 (75 FR 707, January 5, 2010); Information Security Oversight Office Directive 32 CFR part 2001 (75 FR 37254, June 28, 2010). Source: 79 FR 35936, June 25, 2014, unless otherwise noted. § 9.1 Basis. The regulations in this part, taken together with 32 CFR part 2001 and Volume 5 of the Department's Foreign Affairs Manual, provide the basis for the security classification program of the U.S. Department of State (“the Department”) implementing Executive Order 13526 on Classified National Security Information (“the Executive Order” or “the Order”). § 9.2 Objective. The objective of the Department's classification program is to ensure that national security information is protected from unauthorized disclosure, but that it remains classified only to the extent and for such a period as is necessary. § 9.3 Senior agency official. The Executive Order requires that each agency that originates or handles classified information designate a Senior Agency Official to direct and administer its information security program. The Department's senior agency official is the Under Secretary of State for Management. The Senior Agency Official is assisted in carrying out the provisions of the Executive Order and the Department's information security program by the Assistant Secretary for Diplomatic Security, the Assistant Secretary for Administration, and the Deputy Assistant Secretary for Global Information Services. § 9.4 Original classification. (a) Definition. i.e. (b) Classification levels. (2) Secret shall be applied to information the unauthorized disclosure of which reasonably could be expected to cause serious damage to the 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. (c) Classification requirements and considerations. (i) Military plans, weapons systems, or operations; (ii) Foreign government information; (iii) Intelligence activities (including covert action), intelligence sources or methods, or cryptology; (iv) Foreign relations or foreign activities of the United States, including confidential sources; (v) Scientific, technological, or economic matters relating to the national security; (vi) United States Government programs for safeguarding nuclear materials or facilities; (vii) Vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security; or (viii) The development, production, or use of weapons of mass destruction. (2) In classifying information, the public's interest in access to government information must be balanced against the need to protect national security information. (3) The unauthorized disclosure of foreign government information is presumed to cause damage to national security. (d) Classification limitations and prohibitions. (2) A reference to classified documents that does not directly or indirectly disclose classified information may not be classified or used as a basis for classification. (3) Only information owned by, produced by or for, or under the control of the U.S. Government may be originally classified. (e) Duration of classification. (i) Information that would reveal the identity of a confidential human source or a human intelligence source, or key design concepts of weapons of mass destruction, in which case the duration of classification shall be up to 75 years and shall be designated with the markings “50X1-HUM” and “50X2-WMD,” respectively; and (ii) Specific information incorporated into the classification guide under section 2.2(e) of the Executive Order relating to exemptions from automatic declassification. (2) 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 the Executive Order are met. (3) No information may remain classified indefinitely. Information marked for an indefinite duration of classification under predecessor orders, such as “Originating Agency's Determination Required” (OADR) or classified information that contains incomplete declassification instructions or lacks declassification instructions, shall be declassified in accordance with Part 3 of the Order. § 9.5 Original classification authority. (a) Authority for original classification of information as Top Secret may be exercised by the Secretary and those officials delegated this authority in writing by the Secretary. Such authority has been delegated to the Deputy Secretaries, the Under Secretaries, the Counselor, Assistant Secretaries and equivalents; Chiefs of Mission and U.S. representatives to international organizations; and certain other officers within the Department and at posts abroad. (b) Authority for original classification of information as Secret or Confidential may be exercised only by the Secretary, the Senior Agency Official, and those officials delegated this authority in writing by the Secretary or the Senior Agency Official. Such authority has been delegated to Deputy Assistant Secretaries, Principal Officers at consulates general and consulates abroad, and certain other officers within the Department and at posts abroad. In the absence of the Secret or Confidential classification authority, the person designated to act for that official may exercise that authority. § 9.6 Derivative classification. (a) Definition. (b) Responsibility. (1) Information that would reveal the identity of a confidential human source or a human intelligence source (50X1-HUM) or key design concepts of weapons of mass destruction (50X2-WMD), and (2) Specific information incorporated into the classification guide under section 2.2(e) of the Executive Order relating to exemptions from automatic declassification. (c) Department of State Classification Guide. § 9.7 Identification and marking. (a) Classified information shall be marked pursuant to the standards set forth in section 1.6 of the Executive Order, 32 CFR part 2001, subpart C, and internal Department guidance in 5 Foreign Affairs Manual. (b) Foreign government information shall retain its original classification markings or be marked and classified at a U.S. classification level 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 the responsible agency determines that the foreign government markings are adequate to meet the purposes served by U.S. classification markings. (c) Information assigned a level of classification under predecessor executive orders shall be considered as classified at that level of classification despite the omission of other required markings. (d) Prior to public release, all declassified records shall be appropriately marked to reflect their declassification. § 9.8 Classification challenges. (a) Challenges. (b) Appeal procedures and time limits. (c) Pre-publication review materials. § 9.9 Declassification and downgrading. (a) Declassification processes. (1) After review of material in response to a Freedom of Information Act (FOIA) request, mandatory declassification review request, discovery request, subpoena, classification challenge, or other information access or declassification request; (2) After review as part of the Department's systematic declassification review program; (3) As a result of the elapse of the time or the occurrence of the event specified at the time of classification; (4) By operation of the automatic declassification provisions of section 3.3 of the Executive Order with respect to material more than 25 years old. (b) Downgrading. (c) Authority to downgrade and declassify. (i) The official who originally classified the information if that official is still serving in the same position and has original classification authority; (ii) A successor in that capacity if that individual has original classification authority; (iii) A supervisory official of either if the supervisory official has original classification authority; (iv) Other Department officials specifically delegated declassification authority in writing by the Secretary or the Senior Agency Official; or (v) The Director of the Information Security Oversight Office pursuant to Sec. 3.1(a) of E.O. 13526. (2) The Department shall maintain a record of Department officials specifically designated as declassification and downgrading authorities. (d) Declassification in the public interest. (e) Public disclosure of declassified information. § 9.10 Mandatory declassification review (a) Scope. (1) 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; other entities within the Executive Office of the President that solely advise and assist the incumbent President; (2) Information that is the subject of pending litigation; and (3) Information that has been reviewed for declassification within the past two years which need not be reviewed again, but the requester shall be given appeal rights. (b) Requests. (c) Description of information. (d) Refusal to confirm or deny existence of information. (e) Processing. (f) Other agency information. (g) Foreign government information. (h) Documents or material containing RD or Transclassified Foreign Nuclear Information (TFNI). (i) Appeals. § 9.11 Systematic declassification review. The Director of the Office of Information Programs and Services shall be responsible for conducting a program for systematic declassification review of historically valuable records that: were exempted from the automatic declassification provisions of section 3.3 of the Executive Order; or will soon become subject to the automatic declassification provisions of section 3.3 of the Order. The Director shall prioritize such review in accordance with priorities established by the National Declassification Center. § 9.12 Sharing other-agency classified information. The long-standing third-agency rule has required prior originating agency approval before a receiving agency could further disseminate classified information. Under the Executive Order, unless the originating agency indicates on the material that prior approval is required and provided that the criteria for access under section 4.1(a) of the Order are met, a receiving agency may further disseminate classified information in documents created subsequent to the effective date of the Order to another agency or U.S. entity without consultation with the originating agency. “U.S. entity” includes cleared state, local, tribal, and private sector entities. Similarly, under certain circumstances, receiving agencies may pass such classified information to foreign governments. § 9.13 Access to classified information by historical researchers and certain former government personnel. (a) The restriction in E.O. 13526 and predecessor orders on limiting access to classified information to individuals who have a need-to-know the information may be waived, under the conditions set forth below, for persons who: are engaged in historical research projects; have served as President or Vice President; have occupied senior policy-making positions in the Department of State or other U.S. government agencies to which they were appointed or designated by the President or the Vice President. It does not include former Foreign Service Officers as a class or persons who merely received assignment commissions as Foreign Service Officers, Foreign Service Reserve Officers, Foreign Service Staff Officers, and employees. (b) Requests by such persons must be submitted in writing to the Office of Information Programs and Services at the address set forth above and must include a general description of the records sought, the time period covered by the records that are the subject of the request, and an explanation why access is sought. Requests for access by such requesters may be granted if: (1) The Secretary or the Senior Agency Official determines in writing that access is consistent with the interests of national security; (2) The requester agrees in writing to safeguard the information from unauthorized disclosure or compromise; (3) The requester submits a statement in writing authorizing the Department to review any notes and manuscripts created as a result of access; (4) The requester submits a statement in writing that any information obtained from review of the records will not be disseminated without the express written permission of the Department; (c) If a requester uses a research assistant, the requester and the research assistant must both submit a statement in writing acknowledging that the same access conditions set forth in paragraphs (b)(2) through (b)(4) of this section apply to the research assistant. Such a research assistant must be working for the applicant and not gathering information for publication on his or her own behalf. (d) Access granted under this section shall be limited to items the official originated, reviewed, signed, or received while serving as a Presidential or Vice Presidential appointee or designee or as President or Vice President. (e) Such requesters may seek declassification and release of material to which they have been granted access under this section through either the FOIA or the mandatory declassification review provisions of E.O. 13526. Such requests shall be processed in the order received, along with other FOIA and mandatory declassification review requests, and shall be subject to the fees applicable to FOIA requests. § 9.14 Pre-publication review of writings by former Department personnel. The Department provides pre-publication review of writings on foreign relations topics by former Department personnel, including contractors and detailees, who had security clearances to try to ensure that former personnel do not violate their agreements on non-disclosure of classified national security information in such writings. Manuscripts (including articles, speeches, books, etc.) should be sent to the Director, Office of Information Programs and Services, 515 22nd St. NW., Washington, DC 20522-8100. Questions about pre-publication clearance may be sent to [email protected]. § 9.15 Assistance to the Historian's Office. All elements of the Department shall assist the Historian's Office in its preparation of the Foreign Relations of the United States (FRUS) series such as by providing prompt access to and, when possible, declassification of information deemed appropriate for inclusion in the FRUS. § 9.16 Safeguarding. Specific controls on the use, processing, storage, reproduction, and transmittal of classified information within the Department to provide protection for such information and to prevent access by unauthorized persons are contained in Volume 12 of the Department's Foreign Affairs Manual.