Report text available as:

  • TXT
  • PDF   (PDF provides a complete and accurate display of this text.) Tip ?

110th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     110-810

======================================================================



 
             REDUCING INFORMATION CONTROL DESIGNATIONS ACT

                                _______
                                

 July 30, 2008.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

  Mr. Waxman, from the Committee on Oversight and Government Reform, 
                        submitted the following

                              R E P O R T

                        [To accompany H.R. 6576]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Oversight and Government Reform, to whom 
was referred the bill (H.R. 6576) to require the Archivist of 
the United States to promulgate regulations regarding the use 
of information control designations, and for other purposes, 
having considered the same, report favorably thereon without 
amendment and recommend that the bill do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     1
Background and Need for Legislation..............................     2
Legislative History..............................................     3
Section-by-Section...............................................     3
Explanation of Amendments........................................     5
Committee Consideration..........................................     5
Rollcall Votes...................................................     5
Application of Law to the Legislative Branch.....................     6
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................     6
Statement of General Performance Goals and Objectives............     6
Constitutional Authority Statement...............................     6
Federal Advisory Committee Act...................................     6
Unfunded Mandates Statement......................................     6
Earmark Identification...........................................     6
Committee Estimate...............................................     6
Budget Authority and Congressional Budget Office Cost Estimate...     7
Changes in Existing Law Made by the Bill, as Reported............     8

                          PURPOSE AND SUMMARY

    H.R. 6576, the Reducing Information Control Designations 
Act, was introduced by Reps. Henry A. Waxman and Tom Davis on 
July 23, 2008. The purpose of H.R. 6576 is to standardize and 
limit the use of information control designations.
    H.R. 6576 requires the Archivist to promulgate regulations 
regarding the use of information control designations, requires 
federal agencies to implement those regulations in a manner 
that reduces and minimizes the use of information control 
designations, and requires the inspector general of each 
federal agency to randomly audit unclassified information with 
information control designations.

                  BACKGROUND AND NEED FOR LEGISLATION

    In the final report on the attacks of September 11, 2001, 
the 
9/11 Commission observed that the government keeps too many 
secrets. To address this problem, the Commission recommended 
that ``[t]he culture of agencies feeling they own the 
information they gathered at taxpayer expense must be replaced 
by a culture in which the agencies instead feel they have a 
duty . . . to repay the taxpayers' investment by making that 
information available.''\1\
---------------------------------------------------------------------------
    \1\National Commission on Terrorist Attacks upon the United States, 
The 9/11 Commission Report: Final Report of the National Commission on 
Terrorist Attacks upon the United States (July 22, 2004).
---------------------------------------------------------------------------
    In addition, investigations by this Committee have found 
that there has been a proliferation of pseudo-classification 
designations such as ``sensitive but unclassified'' or ``for 
official use only.'' These often vague and undefined markings 
can be used to prevent or delay information sharing with 
interested stakeholders or the public release of that 
information.\2\
---------------------------------------------------------------------------
    \2\Letter from Rep. Henry A. Waxman, Ranking Minority Member, to 
Rep. Christopher Shays, Chairman of the Subcommittee on National 
Security, Emerging Threats, and International Relations (Mar. 1, 2005).
---------------------------------------------------------------------------
    New categories of information control designations are 
continuously being created by agencies yet these designations 
lack a statutory basis, and there is no federal entity 
monitoring their use. The Controlled Unclassified Information 
Office at the National Archives and Records Administration 
(NARA) reports that currently there are 107 known unique 
markings, or information control designations, applied across 
the federal government.
    In May 2008, the White House issued a Memorandum on 
``Designation and Sharing of Controlled Unclassified 
Information (CUI),'' establishing new rules governing the 
designation and sharing of CUI. However, that memorandum 
requires these consistent procedures only for ``terrorism-
related information'' used in the Information Sharing 
Environment (ISE), a framework established in the Intelligence 
Reform and Terrorism Prevention Act of 2004.
    H.R. 6576, the Reducing Information Control Designations 
Act, is written broader in order to address all types of 
information uses across all of the government. H.R. 6576 has 
the goal of reducing the total number of designations used on 
federal government information. H.R. 6576 attempts to resolve 
the growing problem of multiple information control 
designations by authorizing the Archivist to establish 
regulations to minimize and reduce the use of information 
control designations.

                          LEGISLATIVE HISTORY

    The Committee held two hearings in the 109th Congress on 
the issue of information control designations. See Subcommittee 
on National Security, Emerging Threats, and International 
Relations hearings: Drowning in a Sea of Faux Secrets: Policies 
on Handling of Classified and Sensitive Information (Mar. 14, 
2006) and Emerging Threats: Overclassification and Pseudo-
classification (Mar. 2, 2005).
    In addition, during the 109th Congress, the full Committee 
reported H.R. 5112, the Executive Branch Reform Act, to the 
House, H. Rept. 109-445. H.R. 5112 was ordered reported by a 
vote of 32-0. H.R. 5112 included provisions of H.R. 6576, 
including those requiring the Archivist to issue regulations to 
standardize and limit the use of information control 
designations. In the 110th Congress, on February 14, 2007, H.R. 
984, legislation similar to H.R. 5112, was favorably ordered 
reported by the full Committee on a vote of 29-0.
    H.R. 6576, the Reducing Information Control Designations 
Act, was introduced by Reps. Henry A. Waxman and Tom Davis on 
July 23, 2008, and referred to the Committee on Oversight and 
Government Reform.
    On July 23, 2008, the Committee on Oversight and Government 
Reform held a business meeting to consider H.R. 6576, and 
ordered the bill to be favorably reported by a voice vote.

                           SECTION-BY-SECTION

Section 1. Short title

    This section provides that the short title of the bill is 
the ``Reducing Information Control Designations Act.''

Section 2. Purpose

    This section provides that the purpose of the Act is to 
increase the sharing of information within the government and 
the availability of information to the public by standardizing 
and limiting the use of information control designations.

Section 3. Regulations relating to information control designations 
        within the Federal Government

    Subsection (a) requires that each federal agency reduce and 
minimize its use of information control designations on 
information that is not classified.
    Subsection (b) requires the Archivist to promulgate 
regulations regarding the use of information control 
designations to address: standards for the use of the 
information control designations in a way that maximizes public 
access to information; the duration of the designations and a 
process for their removal; procedures for identifying and 
tracking designated information; provisions to minimize the use 
of information control designations and protect against their 
misuse; and methods to ensure that compliance protects national 
security and privacy rights.
    This subsection also requires that the regulations issued 
by the Archivist require federal agencies to establish a 
process for individuals to challenge the use of information 
control designations and to receive incentives for successful 
challenges, to establish penalties for individuals who 
repeatedly fail to abide by these policies, and to establish 
procedures for the public to be able to challenge the use of 
information control designations.
    These regulations should be established in a manner that 
maximizes public access to information and with the presumption 
that information should not be given these designations. This 
subsection requires the Archivist, in developing the 
regulations, to consult with relevant stakeholders.
    Subsection (c) requires that the head of each federal 
agency implement these new regulations in a way that encourages 
the appropriate sharing of information, limits the number of 
individuals with the authority to place these designations on 
information, and restricts the placement of designations to the 
portion of a document that requires control.

Section 4. Enforcement of information control designation regulations 
        within the Federal Government

    Subsection (a) requires the inspector general of each 
federal agency, in consultation with the Archivist, to randomly 
audit unclassified information with information control 
designations in order to determine whether agencies are 
properly implementing the regulations, to describe any problems 
with implementation, and to recommend improvements in awareness 
and training to address those problems. The inspector generals 
must report to the House Committee on Oversight and Government 
Reform and the Senate Committee on Homeland Security and 
Governmental Affairs, the Archivist, and the public on the 
findings of these audits.
    Under subsection (b), the Archivist must require that when 
marking information with a control designation, an individual 
provide unique identifying information including the 
individual's name or personal identifier and the individual's 
agency, office, and position. The purpose of this requirement 
is for the agency to be able to identify and address problems 
or misuse and assess the impact on information sharing of any 
problems or misuse.
    Subsection (c) requires the Archivist to require federal 
agencies to train, as needed, those who apply information 
control designations. That training shall include the standards 
for using information control designations, the proper use of 
information control designations, and the consequences of 
repeated improper use of these designations and of failing to 
comply with the policies and procedures established under this 
section. This subsection clarifies that this training is to be 
conducted in conjunction with other training programs required 
by the agency to reduce the burden of this new requirement.
    Subsection (d) requires the Archivist to establish a 
program to detail personnel from federal agencies to NARA, on a 
nonreimbursable basis, in order to assist NARA with its 
oversight responsibilities and to provide the detailed 
employees with more extensive training on the use of 
information control designations. This subsection provides that 
the detailee program will continue through the year 2012.

Section 5. Releasing information pursuant to the Freedom of Information 
        Act

    This section explains that information control designations 
should have no relationship to determinations of public 
disclosure pursuant to the Freedom of Information Act (FOIA).
    Subsection (a) requires the head of each federal agency to 
ensure that information control designations are not a 
determinant of public disclosure pursuant to FOIA. This means 
that the agency must conduct an independent review of 
information to determine whether it is releasable pursuant to 
FOIA and should not consider the existence of an information 
control designation in that independent review. If the agency 
determines in response to a FOIA request that the information 
is releasable, the agency is required under this subsection to 
make that information publicly available.
    Subsection (b) clarifies that nothing in this Act is 
intended to limit or discourage agency officials from 
voluntarily releasing any unclassified information that is not 
exempt under FOIA.

Section 6. Definitions

    The term ``information control designations'' is defined in 
this section as information dissemination controls that are not 
defined by federal statute or by an executive order relating to 
the classification of national security information, that are 
used to manage, direct, or route information, or control the 
accessibility of information, regardless of its form or format. 
The term includes, but is not limited to, the designations of 
``controlled unclassified information,'' ``sensitive but 
unclassified,'' and ``for official use only.''
    The term ``information'' is defined in this section as any 
communicable knowledge or documentary material, regardless of 
its physical form or characteristics, which is owned by, is 
produced by or for, or is under control of the federal 
government.
    The term ``federal agency'' is defined in this section as 
(1) any executive agency, which means an executive department, 
a government corporation, and an independent establishment; (2) 
any military department, which means the Department of the 
Army, the Department of the Navy, or the Department of the Air 
Force; and (3) any other entity within the executive branch 
that comes into the possession of classified information.

Section 7. Deadline for regulations and implementation

    This section provides that the regulations required by the 
bill must be promulgated in final form with implementation to 
begin no later than 18 months after the date of enactment.

                       EXPLANATION OF AMENDMENTS

    No amendments were offered to this legislation.

                        COMMITTEE CONSIDERATION

    On Wednesday, July 23, 2008, the Committee met in open 
session and favorably ordered H.R. 6576 to be reported to the 
House by a voice vote.

                             ROLLCALL VOTES

    No rollcall votes were held.

              APPLICATION OF LAW TO THE LEGISLATIVE BRANCH

    Section 102(b)(3) of P.L. 104-1 requires a description of 
the application of this bill to the legislative branch where 
the bill relates to terms and conditions of employment or 
access to public services and accommodations. H.R. 6576 relates 
to the use of information controls by the executive branch and 
therefore does not apply to the legislative branch.

  STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF THE COMMITTEE

    In compliance with clause 3(c)(1) of rule XIII and clause 
2(b)(1) of rule X of the Rules of the House of Representatives, 
the Committee's oversight findings and recommendations are 
reflected in the descriptive portions of this report, including 
the need to standardize and limit the use of information 
control designations.

         STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the Committee's performance 
goals and objectives are reflected in the descriptive portions 
of this report, including reducing and minimizing the use of 
information control designations.

                   CONSTITUTIONAL AUTHORITY STATEMENT

    Under clause 3(d)(1) of rule XIII of the Rules of the House 
of Representatives, the Committee must include a statement 
citing the specific powers granted to Congress to enact the law 
proposed by H.R. 6576. Article I, Section 8, Clause 18 of the 
Constitution of the United States grants the Congress the power 
to enact this law.

                     FEDERAL ADVISORY COMMITTEE ACT

    The Committee finds that the legislation does not establish 
or authorize the establishment of an advisory committee within 
the definition of 5 U.S.C. App., Section 5(b).

                      UNFUNDED MANDATES STATEMENT

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandates Reform Act, P.L. 104-4) requires a statement on 
whether the provisions of the report include unfunded mandates. 
In compliance with this requirement the Committee has received 
a letter from the Congressional Budget Office included herein.

                         EARMARK IDENTIFICATION

    H.R. 6576 does not include any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9(d), 9(e), or 9(f) of rule XXI.

                           COMMITTEE ESTIMATE

    Clause 3(d)(2) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison by the 
Committee of the costs that would be incurred in carrying out 
H.R. 6576. However, clause 3(d)(3)(B) of that rule provides 
that this requirement does not apply when the Committee has 
included in its report a timely submitted cost estimate of the 
bill prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act.

     BUDGET AUTHORITY AND CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of clause 3(c)(3) of rule XIII of the Rules of 
the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the Committee has received 
the following cost estimate for H.R. 6576 from the Director of 
the Congressional Budget Office:

                                                   =6July 29, 2008.
Hon. Henry A. Waxman,
Chairman, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 6576, the Reducing 
Information Control Designations Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                                   Peter R. Orszag.
    Enclosure.

H.R. 6576--Reducing Information Control Designations Act

    Summary: H.R. 6576 would amend federal law concerning the 
security classification of government documents. The 
legislation would require the National Archives and Records 
Administration (NARA), in consultation with the Director of 
National Intelligence and other affected federal agencies, to 
develop regulations that minimize and reduce the government's 
use of information-control designations on information that is 
not classified. The bill also would require training for 
employees and contractors on using classifications and random 
audits by inspectors general on the proper use of information-
control designations.
    CBO estimates that implementing H.R. 6576 would have a 
discretionary cost of $15 million in 2009 and $45 million over 
the 2009-2013 period to implement the new regulations, provide 
training, and conduct audits that would be required under the 
bill. Although the legislation could affect agencies not funded 
through annual appropriations (such as the Tennessee Valley 
Authority or the U.S. Postal Service), CBO estimates that any 
net increase in spending by those agencies would not be 
significant. As a result, enacting the bill would have no 
significant impact on direct spending or revenues.
    H.R. 6576 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would not affect the budgets of state, local, or tribal 
governments.
    Estimated cost to the Federal Government: The estimated 
budgetary impact of H.R. 6576 is shown in the following table. 
The costs of this legislation fall within most budget functions 
that contain salaries and expenses.

----------------------------------------------------------------------------------------------------------------
                                                                 By fiscal year, in millions of dollars--
                                                         -------------------------------------------------------
                                                            2009     2010     2011     2012     2013   2009-2013
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated Authorization Level...........................       15       15        5        5        5        45
Estimated Outlays.......................................       15       15        5        5        5        45
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: For this estimate, CBO assumes that the 
bill will be enacted near the start of fiscal year 2009 and 
that spending would follow historical patterns for similar 
programs.
    Under current law, agencies are required to develop 
policies for handling terrorism-related and homeland security 
information. However, the Government Accountability Office 
(GAO) has reported that there are no governmentwide policies 
and procedures for agencies to use to classify sensitive, but 
unclassified information.
    Based on the information provided by GAO, NARA, and 
selected federal agencies and inspectors general about the 
current use of information-control designations, CBO estimates 
that implementing H.R. 6576 would cost $15 million in 2009 and 
$45 million over the 2009-2013 period, assuming appropriation 
of the necessary amounts. Initial costs would total about $20 
million and would be incurred over the first two years. Ongoing 
costs would total about $25 million over the 2009-2013 period, 
mostly for subsequent training and random audits by inspectors 
general.
    Intergovernmental and private-sector impact: H.R. 6576 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would not affect the budgets of state, 
local, or tribal governments.
    Estimate prepared by: Federal Costs: Matthew Pickford; 
Impact on State, Local, and Tribal Governments: Elizabeth Cove; 
Impact on the Private-Sector: Paige Piper/Bach.
    Estimate approved by: Peter H. Fontaine, Assistant Director 
for Budget Analysis.

         CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

    No changes to existing law are made by H.R. 6576, as 
reported.