any disagreement at any echelon if it appears that prompt resolution is not likely. This will permit the headquarters to consider direct action to hasten resolution.

§ 159.204-2 Final decision.

Disagreements between Department of Defense component headquarters, if not resolved promptly, shall be referred to the Deputy Assistant Secretary of Defense (Security Policy) (DASD(SP)) for resolution. If appropriate, DASD(SP) may refer the question to the DoD Information Security Advisory Board (§ 159.1301-2) for action.

§ 159.204-3 Timing.

Action at each level of consideration on any disagreement on a classification, declassification or regrading problem shall be completed as soon as possible but within thirty (30) days. Failure to reach decision within thirty (30) days shall be cause for referral to the next higher echelon.

OBTAINING CLASSIFICATION EVALUATIONS § 159.205 Tentative classification.

If a person not authorized to classify originates or develops information which he believes should be safeguarded he shall:

(a) Safeguard the information in the manner prescribed for the intended classification.

(b) Mark the information (or cover sheet) with a tentative classification (e.g., "TENTATIVE CONFIDENTIAL”).

(c) Forward the material to an appropriate classifying authority for evaluation and decision. If such authority is not readily identifiable, the material should be forwarded to a headquarters activity of a Department of Defense component, to the headquarters office having overall classification management responsibilities for a Department of Defense component or to the Deputy Assistant Secretary of Defense (Security Policy) (DASD(SP)).

(d) In an emergency requiring immediate communication of the information, after taking the action prescribed by paragraphs (a) and (b) of this section, transmit the information and then proceed in accordance with paragraph (c) of this section.

Upon decision by the classifying authority, the tentative marking shall be removed. If a classification has been as

The Patent Secrecy Act of 1952 (35 U.S.C. 181-188) provides that the Secretary of Defense, among others, may determine that disclosure of an invention by granting of a patent would be detrimental to national security. DoD Directive 5535.2, (§ 159.100 (y)), delegates to the Secretaries of the Army, Navy, and Air Force the authority to make such determinations on behalf of the Secretary of Defense. When such determination is made, the Commissioner of Patents on request of the DoD representative takes specified actions concerning grant of a patent and protection of the information. A patent application on which a secrecy order has been imposed shall be handled as follows within the Department of Defense:

(a) If the patent application contains official information which warrants classification, it shall be assigned a classification and be marked and safeguarded accordingly. In addition, a cover sheet with wording as in § 159.206–1(b), shall be attached.

(b) If the patent application does not contain official information which warrants classification, the following procedures shall be followed:

(1) A cover sheet (or cover letter for transmittal) shall be placed on the application with substantially the following language:

The attached material contains information on which secrecy orders have been issued by the United States Patent Office after determination that disclosure would be detrimental to national security (Patent Secrecy Act of 1952, 35 U.S.C. 181-188). Its transmission or revelation in any manner to an unauthorized person is prohibited by law. Handle as though classified: Confidential (or such other classification as would have been assigned had the patent application been official information).

(2) The information shall be withheld from pubic release; its dissemination within the Department of Defense shall

be controlled; the applicant shall be instructed not to disclose it to any unauthorized person; and the patent application (or other document incorporating the protected information) shall be safeguarded in the manner prescribed for equivalent classified material.

(c) If filing of a patent application with a foreign government is approved under provisions of the Act of 1952 and agreements on interchange of patent information for defense purposes, the copies of the patent application prepared for foreign registration (but only those copies) shall be marked at the bottom of each page as follows:

Withheld under the Patent Secrecy Act of 1952 (35 U.S.C. 181-188). Handle as: Confidential (or such other level as has been determined).

§ 159.206-2 Independent research and development.

(a) The product of independent research and development shall not be classified unless the product incorporates classified information to which the person or the company was given prior

access.

(b) Independent research and development may be government sponsored, or may be a purely private, unsponsored effort. Government sponsored independent research and development may be done by a person who or company which previously was given access to classified information. If no prior access was given, classification is not permissible unless the government first acquires a proprietary interest.

(c) In cases in which no prior access was given but the person or company conducting the independent research or development believes that protection may be warranted in the interest of national security, he should safeguard the information in accordance with § 159.205 and submit it to an appropriate Department of Defense element for evaluation. The Department of Defense element receiving such a request for evaluation shall make or obtain a determination whether a classification would be assigned if the information were official. If the determination is negative, the originator shall be advised that the information is unclassified. If the determination is affirmative, the Department of Defense element shall make or obtain a determination whether an official proprietary interest in the research and development will be acquired. If such an interest is acquired,

the information shall be assigned proper classification. If no such interest is acquired, the originator shall be informed that there is no basis for classification and the tentative classification shall be cancelled.

§ 159.206-3

Other private information.

In any other instance, for example, an unsolicited bid, in which a firm, organization, or individual submits to the government private information for determination of classification, the steps specified in § 159.205 shall be taken. UPGRADING

§ 159.207 Raising to a higher level of classification.

Upgrading classified information to a higher level than previously determined is permitted only when it is determined by the upgrading authority that:

(a) All holders of the information are authorized access to the higher classification category;

(b) All holders of the information can be promptly notified of the upgrading; and

(c) Any dissemination to holders not authorized access to the higher classification category can be neutralized through retrieval.

§ 159.207-1 Classification of information previously determined to be unclassified.

Unclassified information, once communicated as such, is permitted to be classified only when the classifying authority makes the same determination described for upgrading in § 159.207 and in addition, determines that control of the information has not been lost by such communication and can still be prevented from being lost.

§ 159.207-2 Information released to secondary distribution centers.

No attempt shall be made to classify information previously determined to be unclassified which is contained in documents released to secondary distribution centers, such as the Defense Documentation Center, unless it is determined that no secondary distribution has been made and can still be prevented. The provisions of § 159.207–1 apply to this kind of material. § 159.207-3

Notification.

Notification of upgrading or the classification of information previously determined to be unclassified shall not be

Declassification Schedule cannot be predetermined.

given to holders from whom retrieval is accomplished.

INDUSTRIAL OPERATIONS

§ 159.208 Classification in industrial operations.

Classification in industrial operations shall be based strictly on security classification guidance furnished by the Government. Industrial management does not make original classification determinations but applies the classification decisions of the contracting authority with respect to information and material developed, produced or handled by the contracting facility itself. Industrial management shall designate persons who shall have the responsibility for assuring that Government security classification guidance is applied accurately and uniformly. Numbers of persons authorized to determine the proper classifications to be applied in accordance with the government guidance shall be limited to the minimum consistent with operational requirements.

Subpart-Downgrading and
Declassification

§ 159.300

GENERAL PROVISIONS

Downgrading and declassification determinations.

When a classification determination is made, it is necessary to determine how long the classification shall last in accordance with the policy expressed in § 159.103-1. Classified information and material shall be downgraded and declassified as soon as there are no longer any grounds for continued classification within the classification category definitions set forth in §§ 159.104-159.104-3 and the classification principles, criteria and considerations set forth in SubpartClassification (§§ 159.200-159.200-3). § 159.300-1 Priority consideration of earliest possible date or event.

The individual exercising original classifying authority shall, to the maximum extent practicable, predetermine at the time of origination dates or events on which downgrading and declassification shall occur. These dates or events shall be as early as the national security will permit. The dates of the General Declassification Schedule as set forth in § 159.301 shall not be used unless an Advanced Declassification Schedule for date or event earlier than the General

§ 159.300-2 ward. Downgrading and declassification dates or events predetermined at time of origination under § 159.300-1, § 159.301 or § 159.302 shall be carried forward and applied when the classified information to which they are assigned is incorporated in later documents, security classification guides or material. In order to ensure uniformity in the application of this policy guidance, the following examples are cited:

Dates or events carried for

(a) A 1973 security classification guide identifies items of information which are classified at the Confidential level and assigned to the General Declassification Schedule with a declassification date of December 31, 1979. When the guide is re-issued in 1974 and the same items of information are incorporated without change of classification status, the declassification date of December 31, 1979 is shown for these items in the reissuance.

(b) A document created in January 1974 is classified solely on the basis that the information used therein is the same as that contained in a January 1973 source document classified at the Confidential level. The source document is marked as prescribed for the Advanced Declassification Schedule (ADS) with the declassification date shown as December 31, 1975. The document created in January 1974 would carry the same declassification date as the source document-December 31, 1975.

GENERAL DECLASSIFICATION SCHEDULE § 159.301 Automatic downgrading and declassification.

Classified information and material, unless downgraded or declassified earlier under the provisions of § 159.300-1 or exempted from the General Declassification Schedule under §§ 159.302 and 159.302-1, shall be assigned a date or event on which downgrading and declassification shall occur in accordance with the prescribed limits of the General Declassification Schedule outlined below:

(a) Top Secret. Information or material originally classified Top Secret shall be 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 tenth full calendar year following the year in which it was originated. For example, a document classified Top Secret on 1 June 1972 will automatically be downgraded to Secret on 31 December 1974, downgraded to Confidential on 31 December 1976 and declassified on 31 December 1982.

(b) Secret. Information and material originally classified Secret shall be 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.

(c) Confidential. Information and material originally classified Confidential shall be automatically declassified at the end of the sixth full calendar year following the year in which it was originated.

§ 159.301-1

Retroactive application.

Information or material classified before June 1, 1972 shall be treated as follows:

(a) When marked as Group 4 under Executive Order 10501, as amended, it shall be subject to the General Declassification Schedule (§ 159.301) effective December 31, 1972. The starting date for the General Declassification Schedule will be the date of origin of the information or material. The fact that Group 4 information or material is being declassified earlier than originally scheduled dates shall not prevent it being redesignated as falling within an exemption category as provided for in §§ 159.302 and 159.302-1. Exemption of Group 4 material may be made only if action is taken in time for notification thereof to be received by all holders of the document prior to the date established under the General Declassification Schedule for automatic declassification

(b) Information or material marked as Group 1, 2 or 3 under Executive Order 10501, as amended, or other information or material not group-marked under Executive Order 10501, shall, except as provided in § 159.401-1 (c) be excluded from (not "exempted" from) the General Declassification Schedule. With respect solely to information or material marked Group 3 and which is under the exclusive or final classification jurisdic

tion of the Department of Defense, it shall continue to be downgraded automatically at twelve year intervals from date of origin until the classification level of Confidential is reached but not automatically declassified.

(c) Information or material described in paragraph (b) of this section shall be subject to the same conditions and criteria that apply to classified information and material created on or after June 1, 1972 as set forth in §§ 159.303 through 159.304-3.

§ 159.301-2 Redesignating material as exempted.

If an original classifier at any time determines that information or material falls within one of the four exempt categories described in §§ 159.302 and 159.302-1, the fact that such information or material was previously placed under the General Declassification Schedule § 159.301, or marked for earlier declassification (§§ 159.300-1 and 159.301-1), shall not prevent it being redesignated as falling within an exempt category. This determination shall be based on a finding either that the original downgrading and declassification determination was in error, or that the material or information, due to a change in circumstances, falls within one of the four exempt categories. Upon such redesignation, notice shall be promptly given to all holders of such information. Such redesignation may be made only when all recipients of the information can be notified prior to the scheduled date for declassification. Redesignation shall preserve the level of classification in effect at the time of redesignation, subject, however to §§ 159.300 and 159.303 through 159.304-3.

58-112-76- -16

falls within one of the categories described below. In each case, the original Top Secret classification authority shall specify in writing on the material or by means of written policy direction issued in advance, the exemption category being claimed and, unless impossible, shall specify a date or event for automatic declassification of the information involved. The head of each component shall establish procedures to assure that original Top Secret classification authorities limit the use of this exemption authority to the absolute minimum consistent with national security requirements. When a document or other material is being prepared and an exemption determination is based upon a classification guide or on a source document, the classifier's (see § 159.201) retained records shall be maintained in such manner as to enable the identification of the source(s) of the exemption (s) used. (See also §§ 159.200 and 159.304-2) § 159.302-1 Exemption categories.

Exemptions from the General Declassification Schedule are strictly limited to information or material in the following categories (numbered according to section 5 (B), Executive Order 11652):

(a) Furnished by foreign governments or international organizations and held by the United States on the understanding that it be kept in confidence.

(b) Specifically covered by statute, or pertaining to cryptography, or disclosing intelligence sources or methods.

(c) Disclosing a system, plan, installation, project or specific foreign relations matter the continuing protection of which is essential to the national security. (See § 159.304-2)

(d) Disclosure would place a person in immediate jeopardy. MANDATORY REVIEW OF MATERIAL OVER 10 YEARS OLD

§ 159.303 Material covered.

All classified information and material originated on or after June 1, 1972 which is exempted under §§ 159.302 and 159.302-1 from the General Declassification Schedule, and all classified information and material which is "excluded" from the General Declassification Schedule under § 159.301-1(b), shall upon request, be subject to mandatory classification review by the originating DoD components at any time after the

expiration of ten years from date of origin.

§ 159.303-1

Processing requirements.

Requests for review of the classification of information or material exempted from the General Declassification Schedule §§ 159.302 and 159.302-1 shall be processed promptly, subject to the following:

(a) A U.S. Government Department or Agency or a member of the public has requested revew.

(b) The request is in writing and describes the record with sufficient particularity to enable the component to identify it. Whenever a request is deficient in the description of the record sought, the requester should be asked to provide additional identifying information.

(c) The record can be obtained with only a reasonable amount of effort. What is "reasonable" depends on the amount of records sought, their location, and accessibility, and the time, effort and related costs required to identify and compile them. Before denying a request on the grounds that it is unduly burdensome, the requester should be asked to limit his request to records that are reasonably obtainable.

(d) If, after taking the alternative action prescribed by paragraph (b) or (c) of this section, the request does not describe the records sought with sufficient particularity, or the record cannot be obtained with a reasonable amount of effort, the requester shall be notified of the reasons why his request cannot be granted.

§ 159.303-2 Submission of requests for review.

Requests described in § 159.303 shall be submitted in accordance with the following:

(a) Requests originating within DoD shall in all cases be submitted directly to the DoD element which originated the material. Such cases are not referred to the Departmental Classification Review Committee (§§ 159.1301-1 and

159.1302-1).

(b) For most expeditious action, requests from other agencies of the Executive Branch or from outside the Executive Branch should be submitted directly to the DoD element which originated the material. If the originating element is not known or cannot be lo