[Title 40 CFR 11]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 40 - PROTECTION OF ENVIRONMENT]
[Chapter I - ENVIRONMENTAL PROTECTION AGENCY]
[Subchapter A - GENERAL]
[Part 11 - SECURITY CLASSIFICATION REGULATIONS PURSUANT TO EXECUTIVE ORDER 11652]
[From the U.S. Government Printing Office]


40PROTECTION OF ENVIRONMENT12002-07-012002-07-01false11PART 11PROTECTION OF ENVIRONMENTENVIRONMENTAL PROTECTION AGENCYGENERAL
PART 11--SECURITY CLASSIFICATION REGULATIONS PURSUANT TO EXECUTIVE ORDER 11652--Table of Contents




Sec.
11.1  Purpose.
11.2  Background.
11.3  Responsibilities.
11.4  Definitions.
11.5  Procedures.
11.6  Access by historical researchers and former Government officials.

    Authority: Executive Order 11652 (37 FR 5209, March 10, 1972) and 
the National Security Directive of May 17, 1972 (37 FR 10053, May 19, 
1972).

    Source: 37 FR 23541, Nov. 4, 1972, unless otherwise noted.

[[Page 174]]



Sec. 11.1  Purpose.

    These regulations establish policy and procedures governing the 
classification and declassification of national security information. 
They apply also to information or material designated under the Atomic 
Energy Act of 1954, as amended, as ``Restricted Data,'' or ``Formerly 
Restricted Data'' which, additionally, is subject to the provisions of 
the Act and regulations of the Atomic Energy Commission.



Sec. 11.2  Background.

    While the Environmental Protection Agency does not have the 
authority to originally classify information or material in the interest 
of the national security, it may under certain circumstances downgrade 
or declassify previously classified material or generate documents 
incorporating classified information properly originated by other 
agencies of the Federal Government which must be safeguarded. Agency 
policy and procedures must conform to applicable provisions of Executive 
Order 11652, and the National Security Council Directive of May 17, 
1972, governing the safeguarding of national security information.



Sec. 11.3  Responsibilities.

    (a) Classification and Declassification Committee: This committee, 
appointed by the Administrator, has the authority to act on all 
suggestions and complaints with respect to EPA's administration of this 
order. It shall establish procedures to review and act within 30 days 
upon all applications and appeals regarding requests for 
declassification. The Administrator, acting through the committee, shall 
be authorized to overrule previous determinations in whole or in part 
when, in its judgment, continued protection is no longer required. If 
the committee determines that continued classification is required under 
section 5(B) of Executive Order 11652, it shall promptly so notify the 
requester and advise him that he may appeal the denial to the 
Interagency Classification Review Committee.
    (b) Director, Security and Inspection Division, Office of 
Administration: The Director, Security and Inspection Division, is 
responsible for the overall management and direction of a program 
designed to assure the proper handling and protection of classified 
information, and that classified information in the Agency's possession 
bears the appropriate classification markings. He also will assure that 
the program operates in accordance with the policy established herein, 
and will serve as Secretary of the Classification and Declassification 
Committee.
    (c) Assistant Administrators, Regional Administrators, Heads of 
Staff Offices, Directors of National Environmental Research Centers are 
responsible for designating an official within their respective areas 
who shall be responsible for:
    (1) Serving as that area's liaison with the Director, Security and 
Inspection Division, for questions or suggestions concerning security 
classification matters.
    (2) Reviewing and approving, as the representative of the 
contracting offices, the DD Form 254, Contract Security Classification 
Specification, issued to contractors.
    (d) Employees; (1) Those employees generating documents 
incorporating classified information properly originated by other 
agencies of the Federal Government are responsible for assuring that the 
documents are marked in a manner consistent with security classification 
assignments.
    (2) Those employees preparing information for public release are 
responsible for assuring that such information is reviewed to eliminate 
classified information.
    (3) All employees are responsible for bringing to the attention of 
the Director, Security and Inspection Division, any security 
classification problems needing resolution.



Sec. 11.4  Definitions.

    (a) Classified information. Official information which has been 
assigned a security classification category in the interest of the 
national defense or foreign relations of the United States.
    (b) Classified material. Any document, apparatus, model, film, 
recording, or any other physical object from which classified 
information can be derived by study, analysis, observation, or use of 
the material involved.

[[Page 175]]

    (c) Marking. The act of physically indicating the classification 
assignment on classified material.
    (d) National security information. As used in this order this term 
is synonymous with ``classified information.'' It is any information 
which must be protected against unauthorized disclosure in the interest 
of the national defense or foreign relations of the United States.
    (e) Security classification assignment. The prescription of a 
specific security classification for a particular area or item of 
information. The information involved constitutes the sole basis for 
determining the degree of classification assigned.
    (f) Security classification category. The specific degree of 
classification (Top Secret, Secret or Confidential) assigned to 
classified information to indicate the degree of protection required.
    (1) Top Secret. Top Secret refers to national security information 
or material which requires the highest degree of protection. The test 
for assigning Top Secret classification shall be whether its 
unauthorized disclosure could reasonably be expected to cause 
exceptionally grave damage to the national security. Examples of 
``exceptionally grave damage'' include armed hostilities against the 
United States or its allies; disruption of foreign relations vitally 
affecting the national security; the compromise of vital national 
defense plans or complex cryptologic and communications intelligence 
systems; the revelation of sensitive intelligence operations; and the 
disclosure of scientific or technological developments vital to national 
security. This classification shall be used with the utmost restraint.
    (2) Secret. Secret refers to that national security information or 
material which requires a substantial degree of protection. The test for 
assigning Secret classification shall be whether its unauthorized 
disclosure could reasonably be expected to cause serious damage to the 
national security. Examples of ``serious damage'' include disruption of 
foreign relations significantly affecting the national security; 
significant impairment of a program or policy directly related to the 
national security; revelation of significant military plans or 
intelligence operations; and compromise of scientific or technological 
developments relating to national security. The classification Secret 
shall be sparingly used.
    (3) Confidential. Confidential refers to that national security 
information or material which requires protection. The test for 
assigning Confidential classification shall be whether its unauthorized 
disclosure could reasonably be expected to cause damage to the national 
security.



Sec. 11.5  Procedures.

    (a) General. Agency instructions on access, marking, safekeeping, 
accountability, transmission, disposition, and destruction of 
classification information and material will be found in the EPA 
Security Manual for Safeguarding Classified Material. These instructions 
shall conform with the National Security Council Directive of May 17, 
1972, governing the classification, downgrading, declassification, and 
safeguarding of National Security Information.
    (b) Classification. (1) When information or material is originated 
within EPA and it is believed to require classification, the person or 
persons responsible for its origination shall protect it in the manner 
prescribed for protection of classified information. The information 
will then be transmitted under appropriate safeguards to the Director, 
Security and Inspection Division, who will forward it to the department 
having primary interest in it with a request that a classification 
determination be made.
    (2) A holder of information or material which incorporates 
classified information properly originated by other agencies of the 
Federal Government shall observe and respect the classification assigned 
by the originator.
    (3) If a holder believes there is unnecessary classification, that 
the assigned classification is improper, or that the document is subject 
to declassification, he shall so advise the Director, Security and 
Inspection Division, who will be responsible for obtaining a resolution.

[[Page 176]]

    (c) Downgrading and declassification. Classified information and 
material officially transferred to the Agency during its establishment, 
pursuant to Reorganization Plan No. 3 of 1970, shall be declassified in 
accordance with procedures set forth below. Also, the same procedures 
will apply to the declassification of any information in the Agency's 
possession which originated in departments or agencies which no longer 
exist, except that no declassification will occur in such cases until 
other departments having an interest in the subject matter have been 
consulted. Other classified information in the Agency's possession may 
be downgraded or declassified by the official authorizing its 
classification, by a successor in capacity, or by a supervisory official 
of either.
    (1) General Declassification Schedule--(i) Top Secret. Information 
or material originally classified Top Secret shall become automatically 
downgraded to Secret at the end of the second full calendar year 
following the year in which it was originated, downgraded to 
Confidential at the end of the fourth full calendar year following the 
year in which it was originated, and declassified at the end of the 10th 
full calendar year following the year in which it was originated.
    (ii) Secret. Information and material originally classified Secret 
shall become automatically downgraded to Confidential at the end of the 
second full calendar year following the year in which it was originated, 
and declassified at the end of the eighth full calendar year following 
the year in which it was originated.
    (iii) Confidential. Information and material originally classified 
Confidential shall become automatically declassified at the end of the 
sixth full calendar year following the year in which it was originated.
    (2) Exemption from the General Declassification Schedule. 
Information or material classified before June 1, 1972, assigned to 
Group 4 under Executive Order No. 10501, as amended, shall be subject to 
the General Declassification Schedule. All other information or material 
classified before June 1, 1972, whether or not assigned to Groups 1, 2, 
or 3, of Executive Order No. 10501, as amended, shall be excluded from 
the General Declassification Schedule. However, at any time after the 
expiration of 10 years after the date of origin it shall be subject to a 
mandatory classification review and disposition in accordance with the 
following criteria and conditions:
    (i) It shall be declassified unless it falls within one of the 
following criteria:
    (a) Classified information or material furnished by foreign 
governments or international organizations and held by the United States 
on the understanding that it be kept in confidence.
    (b) Classified information or material specifically covered by 
statute, or pertaining to cryptography, or disclosing intelligence 
sources or methods.
    (c) Classified information or material disclosing a system, plan, 
installation, project, or specific foreign relations matter, the 
continuing protection of which is essential to the national security.
    (d) Classified information or material the disclosure of which would 
place a person in immediate jeopardy.
    (ii) Mandatory review of exempted material. All classified 
information and material originated after June 1, 1972, which is 
exempted under any of the above criteria shall be subject to a 
classification review by the originating department at any time after 
the expiration of 10 years from the date of origin provided:
    (a) A department or member of the public requests a review;
    (b) The request describes the document or record with sufficient 
particularity to enable the department to identify it; and
    (c) The record can be obtained with a reasonable amount of effort.
    (d) Information or material which no longer qualifies for exemption 
under any of the above criteria shall be declassified. Information or 
material which continues to qualify under any of the above criteria 
shall be so marked, and, unless impossible, a date for automatic 
declassification shall be set.
    (iii) All requests for ``mandatory review'' shall be directed to:


[[Page 177]]


Director, Security and Inspection Division, Environmental Protection 
Agency, Washington, DC 20460.


The Director, Security and Inspection Division shall promptly notify the 
action office of the request, and the action office shall immediately 
acknowledge receipt of the request in writing.
    (iv) Burden of proof for administrative determinations. The burden 
of proof is on the originating Agency to show that continued 
classification is warranted within the terms of this paragraph (c)(2).
    (v) Availability of declassified material. Upon a determination 
under paragraph (ii) of this paragraph (c)(2), that the requested 
material no longer warrants classification, it shall be declassified and 
made promptly available to the requester, if not otherwise exempt from 
disclosure under section 552(b) of Title 5 U.S.C. (Freedom of 
Information Act) or other provision of law.
    (vi) Classification review requests. As required by paragraph (ii) 
of this paragraph (c)(2) of this order, a request for classification 
review must describe the document with sufficient particularity to 
enable the Department or Agency to identify it and obtain it with a 
reasonable amount of effort. Whenever a request is deficient in its 
description of the record sought, the requester should be asked to 
provide additional identifying information whenever possible. Before 
denying a request on the ground that it is unduly burdensome, the 
requester should be asked to limit his request to records that are 
reasonably obtainable. If nonetheless the requester does not describe 
the records sought with sufficient particularity, or the record 
requested cannot be obtained with a reasonable amount of effort, the 
requester shall be notified of the reasons why no action will be taken 
and of his right to appeal such decision.



Sec. 11.6  Access by historical researchers and former Government officials.

    (a) Access to classified information or material may be granted to 
historical researchers or to persons who formerly occupied policymaking 
positions to which they were appointed by the President: Provided, 
however, That in each case the head of the originating Department shall:
    (1) Determine that access is clearly consistent with the interests 
of the national security; and
    (2) Take appropriate steps to assure that classified information or 
material is not published or otherwise compromised.
    (b) Access granted a person by reason of his having previously 
occupied a policymaking position shall be limited to those papers which 
the former official originated, reviewed, signed, or received while in 
public office, except as related to the ``Declassification of 
Presidential Papers,'' which shall be treated as follows:
    (1) Declassification of Presidential Papers. The Archivist of the 
United States shall have authority to review and declassify information 
and material which has been classified by a President, his White House 
Staff or special committee or commission appointed by him and which the 
Archivist has in his custody at any archival depository, including a 
Presidential library. Such declassification shall only be undertaken in 
accord with:
    (i) The terms of the donor's deed of gift;
    (ii) Consultations with the Departments having a primary subject-
matter interest; and
    (iii) The provisions of Sec. 11.5(c).
    (2) [Reserved]