PART 2003—INTERAGENCY SECURITY CLASSIFICATION APPEALS PANEL (ISCAP) BYLAWS, RULES, AND APPEAL PROCEDURES Authority: E.O. 13526, 75 FR 707, 75 FR 1013, 3 CFR, 2010 Comp., p. 298 Source: 77 FR 40261, July 9, 2012, unless otherwise noted. Subpart A—Bylaws § 2003.1 Purpose (Article I). The Interagency Security Classification Appeals Panel (hereafter “ISCAP” or “the Panel”) advises and assists the President in the discharge of his constitutional and discretionary authority to protect the national security of the United States. § 2003.2 Authority (Article II). ISCAP was established by, and receives its authority from, Executive Order 13526 “Classified National Security Information” (hereafter the “Order”), December 29, 2009, section 5.3(a)(1), and the Order's implementing directives. Section 5.3(c) of the Order directs ISCAP to issue bylaws, rules, and procedures and to publish them in the Federal Register. § 2003.3 Functions (Article III). In carrying out its purpose, the Panel: (a) Decides appeals by people who have filed classification challenges under section 1.8 of the Order; (b) Approves, denies, or amends agency exemptions from automatic declassification under section 3.3 of the Order; (c) Decides appeals by people or entities who have filed requests for mandatory declassification review under section 3.5 of the Order; and (d) Informs senior agency officials and the public, as appropriate, of final Panel decisions on appeals under sections 1.8 and 3.5 of the Order. § 2003.4 Membership (Article IV). (a) Member organizations and members. (2) Additionally, the Director of the Central Intelligence Agency may appoint a temporary representative, who meets the member criteria, to participate as a voting member in all Panel deliberations and associated support activities concerning classified information originated by the Central Intelligence Agency. (b) Alternate member. (c) Selection criteria for member. (2) Panel members must meet security access criteria in order to fulfill the Panel's functions. (d) Member vacancies. (e) Liaisons. (f) Chair. (g) Vice Chair. (1) Chairs meetings that the Chair is unable to attend; and (2) Serves as Acting Chair during a vacancy in the Chair of the ISCAP. (h) Executive Secretary. § 2003.5 Meetings (Article V). (a) Purpose. (b) Frequency. (c) Quorum. (d) Attendance. (e) Agenda. (f) Minutes. § 2003.6 Voting (Article VI). (a) Motions. (b) Eligibility. (c) Voting procedures at meetings. (d) Passing a motion. (e) Votes in a non-meeting context. § 2003.7 Support Staff (Article VII). The staff of the Information Security Oversight Office (ISOO), National Archives and Records Administration, provides program and administrative support for the Panel. The Executive Secretary supervises the staff in this function pursuant to the direction of the Chair and ISCAP. On an as-needed basis, the Panel may seek detailees from agencies to augment the ISOO staff in support of the ISCAP. All staff must meet security access criteria in order to fulfill the Panel's functions. § 2003.8 Records (Article VIII). (a) Integrity of ISCAP Records. (b) Access requests or Freedom of Information Act (FOIA) requests for ISCAP records. (c) Disposition. § 2003.9 Reports to the President (Article IX). ISOO includes pertinent information and data about the activities of the Panel in ISOO's reports to the President of the United States. The Panel also includes such information in any reports it may make to the President. The Chair, in coordination with the other members of the ISCAP and the Executive Secretary, determines what information and data to include in each report. § 2003.10 Approval, amendment, and publication of bylaws, rules, and procedures (Article X). Approval and amendment of Panel bylaws, rules, and procedures requires the affirmative vote of at least four members. The Executive Secretary submits approved bylaws, rules, procedures, and their amendments, for publication in the Federal Register. Subpart B—Appeal Procedures § 2003.11 Appeals of agency decisions regarding classification challenges under section 1.8 of the Order. Authorized holders of information who, in good faith, believe that its classification status is improper may challenge an agency's classification of the information in accordance with agency procedures. After challenging the classification at the agency level, the authorized holder may appeal the agency's decision to the ISCAP. (a) Jurisdiction. (1) The appeal is filed in accordance with these procedures; (2) The appellant has previously challenged the classification action at the agency that originated, or is otherwise responsible for, the information in question. The previous challenge must have followed the agency's established procedures or, if the agency has failed to establish procedures, the appellant must have filed a written challenge directly with the agency head or designated senior agency official, as defined in section 5.4(d) of the Order; (3) The appellant has: (i) Received a final agency decision denying his or her challenge; or (ii) Not received— (A) An initial written response to the classification challenge from the agency within 120 days of its filing, or (B) A written response to an agency level appeal within 90 days of the filing of the appeal; (4) There is no action pending in the federal courts regarding the information in question; (5) The information in question has not been the subject of a FOIA or mandatory declassification review within the past two years; and (6) The information in question has not been the subject of a prepublication review or other administrative process pursuant to an approved nondisclosure agreement. (b) Submission of appeals. [email protected] (1) The appeal must contain enough information for the Executive Secretary to be able to obtain all pertinent documents about the classification challenge from the affected agency. (2) No classified information should be included within the initial appeal correspondence. The Executive Secretary will arrange for the transmittal of classified information from the agency after receiving the appeal. If it is impossible for the appellant to file an appeal without including classified information, prior arrangements must be made by contacting the Panel in one of the two methods listed above. (c) Timeliness of appeals. (1) The date of the final agency decision; or (2) The agency's failure to meet the time frames established in paragraph (a)(3)(i) and (ii) of this section. (d) Rejection of appeals. (e) Preparation of appeals and creation of appeals files. (f) Resolution of appeals. (g) Notification. (h) Agency appeals. (i) Protection of classified information. (j) Maintenance and disposition of file. § 2003.12 Review of agency exemptions from automatic declassification under section 3.3 of the Order. All classified records that are more than 25 years old and have been determined to have permanent historical value under title 44, United States Code, are automatically declassified whether or not the records have been reviewed. However, agency heads may exempt information that would otherwise fall into this category on specific bases set out in section 3.3 of the Order. The ISCAP reviews and approves, denies, or amends agency proposals to exempt such information from automatic declassification. (a) Agency notification of exemptions. (b) Preparation of the exemptions files. (c) Resolution. (d) Notification. (e) Agency appeals. (f) Protection of classified information. (g) Maintenance and disposition of file. § 2003.13 Appeals of agency decisions denying declassification under mandatory review provisions in section 3.5 of the Order. Section 3.5 of the Order requires agencies to conduct a mandatory declassification review, upon request, of classified information that meets the requirements set out in the Order. An agency may deny such a review for specific reasons set out in section 5.3(a) of the Order. If an agency denies a request for such review, a person may appeal the denial through the agency's appeal process. After that process, a person may further appeal to the ISCAP. (a) Jurisdiction. (1) The appeal is filed in accordance with these procedures; (2) The appellant has previously filed a request for mandatory declassification review at the agency that originated, or is otherwise responsible for, the information in question, and filed an appeal at the agency level. The request and appeal must have followed the agency's established procedures or, if the agency has failed to establish procedures, the appellant must have filed a written request directly with the agency head or designated senior agency official; (3) The appellant has: (i) Received a final agency decision denying his or her request; or (ii) Not received— (A) An initial decision on the request for mandatory declassification review from the agency within one year of its filing, or (B) A final decision on an agency level appeal within 180 days of the filing of the appeal; (4) There is no action pending in the federal courts regarding the information in question; (5) The information in question has not been the subject of an access review by the Federal courts or the ISCAP within the past two years; and (6) The information in question is not the subject of a prepublication review or other administrative process pursuant to an approved nondisclosure agreement. (b) Submission of appeals. [email protected] (1) The appeal must contain enough information for the Executive Secretary to be able to obtain all pertinent documents about the mandatory declassification review appeal from the affected agency. (2) No classified information should be included within the initial appeal correspondence. The Executive Secretary will arrange for the transmittal of classified information from the agency after receiving the appeal. If it is impossible for the appellant to file an appeal without including classified information, prior arrangements must be made by contacting the Panel in one of the two methods listed above. (c) Timeliness of appeals. (1) The date of the final agency decision; or (2) The agency's failure to meet the time frames established in paragraph (a)(3)(i) and (ii) of this section. (d) Rejection of appeals. (e) Preparation of appeals and creation of appeals files. (f) Narrowing appeals. (g) Resolution of appeals. (h) Notification. (i) Agency appeals. (j) Protection of classified information. (k) Maintenance and disposition of file. § 2003.14 Dissemination of ISCAP decisions. The Executive Secretary informs senior agency officials and the public of final ISCAP decisions on appeals under sections 1.8 and 3.5 of the Order. § 2003.15 Additional functions. As directed by the President through the National Security Advisor, the ISCAP performs such additional advisory functions as are consistent with, and supportive of, the successful implementation of the Order.