discussion) unless there is reason to believe in advance that such oral expression may contain Sensitive Compartmented Information or other information that must be submitted for review. This recognition of the problems inherent in oral representations does not, of course, exempt present or former employees from liability for any unauthorized disclosures of Sensitive Compartmented Information or classified information that may occur in the course of even extemporaneous oral expressions.

(1) Written materials that consist solely of personal views, opinions or judgments and do not contain or imply any statement of fact that would fall within the terms of a nondisclosure agreement requiring prepublication review, are not subject to prepublication review requirements. For example, public speeches or publication of articles on such topics as proposed legislation or foreign policy do not require prepublication review as long as the material does not directly or implicitly constitute a factual statement that falls within the purview of a nondiscloagreement requiring

sure

prepublication review. Of course, in some circumstances the expression of "opinion" may in fact disclose information that requires adherence to a prepublication review obligation required under a nondisclosure agreement. Again, consultation is urged to ensure conformity to this obligation.

(m) Obviously, the purposes of prepublication review will be frustrated where the material in question already has been disseminated to unauthorized persons. In such cases, comparison of the material before and after the review would reveal to the unauthorized persons which items of information were considered to be classified and had been deleted at the Department's request. Consequently, the Department will consider prepublication review obligation to have been breached in any case, whether or not the written material is subsequently submitted to the Department of prepublication review, where it already has been circulated to publishers or reviewers or has otherwise been made available to unauthorized persons. While the Department reserves

a

the right to review such material for purposes of mitigating damage that may result from the disclosure of classified information, such action shall not prevent the U.S. Government and the Department from pursuing all appropriate remedies available under law as a consequence of the failure to submit the materials for prior review and any unauthorized disclosure of Sensitive Compartmented Information or classified information that may have occurred as a result.

submitted

for

(n) Material prepublication review will be reviewed solely for the purpose of identifying and preventing the disclosure of Sensitive Compartmented Information and other classified information. This review will be conducted in an impartial manner without regard to whether the material is critical or favorable to the Department. No effort will be made to delete embarrassing or critical statements that are unclassified. Materials submitted for review will be disseminated to other persons or agencies only to the extent necessary to identify classified information.

(0) The Counsel for Intelligence Policy (or, in the case of FBI employees, the FBI's Office of Congressional and Public Affairs) will respond substantively to prepublication review requests within 30 working days of receipt of the submission. Priority shall be given to reviewing speeches, newspaper articles, and other materials that the author seeks to publish on an expedited basis. The Counsel's decisions may be appealed to the Deputy Attorney General, who will process appeals within 15 working days of receipt of the appeal. (See § 17.144(s)(3) concerning appeal procedures for FBI emplolyees.) The Deputy Attorney General's decision is final and not subject to further administrative appeal. Persons who are dissatisfied with the final administrative decision may obtain judicial review either by filing an action for declaratory relief or by giving the Department notice of their intention to proceed despite the Department's requests for deletions of classified information, and a reasonable opportunity (30 working days) to file a civil action seeking a court order prohibiting disclosure. Of course, until

any civil action is resolved, employees remain under an obligation not to disclose or publish information determined by the Government to be classified.

(p) Nothing in this subpart should be construed to alter or waive the Department's authority to seek any remedy available to it to prohibit or punish the unauthorized disclosure of classified information.

(q) A former Department of Justice employee who subsequently receives a security clearance or Sensitive Compartmented Information access approval from another department or agency is permitted to satisfy any obligation to the Department of Justice regarding prepublication review by making submissions to the department or agency that last granted the individual either a security clearance or Sensitive Compartmented Information access approval.

(r) The obligations of Department of Justice employees as described in this subpart also apply with equal force to contractors who are authorized by the Department to have access to Sensitive Compartmented Information or other classified information.

(s) The obligations of Department of Justice employees described in this subpart apply with equal force to employees of the Federal Bureau of Investigation with the following exceptions and provisos:

(1) Nothing in this subpart shall supersede or alter obligations assumed under the basic FBI employment agreement;

(2) FBI employees required to sign nondisclosure agreements containing a provision for prepublication review pursuant to this subpart shall submit materials for review to the Assistant Director, Office of Congressional and Public Affairs. Such individuals shall also submit questions as to whether specific materials require prepublication review under such agreements to that Office for resolution. Where such questions raise policy questions or concern significant issues of interpretation under such an agreement, the Assistant Director, Office of Congressional and Public Affairs, shall consult with the Counsel for Intel

ligence Policy prior to responding to the inquiry;

(3) Decisions of the Assistant Director, Office of Congressional and Public Affairs, concerning the deletion of classified information, may be appealed to the Director, Federal Bureau of Investigation, who will process appeals within 15 working days of receipt. Persons who are dissatisfied with the Director's decision may, at their option, appeal further to the Deputy Attorney General as provided in paragraph (0) of this section. Judicial review, as set forth in that paragraph, is available following final agency action in the form of a decision by the Director or, if the appeal process in paragraph (o) of this section is pursued, the Deputy Attorney General.

(a) Officers and employees of the Department and its contractors, grantees and consultants are subject to appropriate administrative sanctions if they:

(1) Knowingly, willfully or negligently and without authorization disclose to unauthorized persons information classified under Executive Order 12356 or prior orders or compromise classified information through negligence;

(2) Knowingly and willfully classify or continue the classification of information in violation of Executive Order 12356, its implementing directives or this regulation; or

(3) Knowingly and willfully violate any other provision of Executive Order 12356, any implementing directives or this regulation.

(b) Sanctions include but are not limited to warning notices, reprimands, termination of classification authority, suspension or termination of security clearance, and as permitted by law, suspension without pay, forfeiture of pay, removal or dismissal. Sanctions will be imposed upon any person subject to these regulations and responsible for a violation specified under

this subpart as determined by the appropriate Department official upon recommendation by the Office of Professional Responsibility. In cases involving the compromise of classified information, the Attorney General, upon receiving a recommendation from the Office of Professional Responsibility, shall determine and impose appropriate sanctions.

§17.146 Reporting security violations.

Any person subject to these regulations who suspects or has knowledge of a violation pursuant to §17.145 (including the known or suspected loss or compromise of National Security Information) shall promptly report and confirm in writing the circumstances. If the loss itself is classifiable, secure telecommunications must be used for the initial report. The loss must be confirmed in writing to the Security Programs Manager of the Office, Board, Division or Bureau concerned or to that official's appropriate Security Programs Manager or representative. The Security Programs Manager of the organization under whose cognizance the loss occurred shall take the following action forthwith:

(a) Prompt notification of the violation to the Department Security Officer, to the Office of Professional Responsibility, to the origination office and to any interested department or agency, if appropriate. In the event of disagreement as to which Office, Board Division or Bureau is the cognizant agency, the Department Security Officer will promptly decide and advise the concerned Security Programs Managers by telephone.

(b) The submission of a written report to the Department Security Officer and the Office of Professional Responsibility. Such report shall include the date the violation occurred, if known; the date of the discovery of the violation; the specific identification of the information involved in the violation; the national security classification or any caveats regarding the information involved; the probability of loss or compromise; an assessment of the damage incurred from a national security standpoint; corrective measures taken; the person(s) responsible for the violation; and recommended adminis

trative, disciplinary or legal action which should be taken. The written report should be submitted no later than ten working days after the discovery of the violation.

(c) The Department Security Officer will promptly notify the Director of the Information Security Oversight Office of any violations of § 17.145(a) (1) or (2).

§ 17.147 Corrective action.

The Department Security Officer shall ensure that appropriate and prompt corrective action is taken whenever a violation of § 17.145 occurs. The Office of Professional Responsibility shall be informed by the Department Security Officer when such violations occur.

§ 17.148 Administrative discrepancies. Repeated administrative discrepancies in the marking and handling of classified documents and material such as failure to show classification authority, failure to apply internal classification markings and incorrect computation of dates for declassification, or other repeated disregard of requirements of this regulation that are determined not to constitute a violation under §17.145 may be grounds for adverse administrative action including warning, admonition, reprimand or termination of classification authority as determined appropriate by the head of the Office, Board, Division or Bureau concerned, in accordance with applicable policies and procedures.

415, Pub. L. 94-430, Pub. L. 94-503, Pub. L. 95115, Pub. L. 96-157, and Pub. L. 98-473).

Secs. 223(d), 226 and 228(e) of the Juvenile Justice and Delinquency Prevention Act of 1974, 42 U.S.C. 5601, et seq., as amended (Pub. L. 93-415, as amended by Pub. L. 94-503, Pub. L. 95-115, Pub. L. 96-509, and Pub. L. 98-473).

Sec. 1407(F) of the Victims of Crime Act of 1984, 42 U.S.C. 10601, et seq. Pub. L. 98-473, 98 Stat. 2176.

SOURCE: 50 FR 28199, July 11, 1985, unless otherwise noted.

§ 18.1 Purpose.

The purpose of this regulation is to implement the hearing and appeal procedures available to State block or formula grant applicants or recipients and existing categorical grantees under sections 802 through 804 of title I of the Omnibus Crime Control and Safe Streets Act of 1968, as amended (Crime Control Act); sections 223(d), 226 and 228(e) of the Juvenile Justice and Delinquency Prevention Act of 1974, as amended (Juvenile Justice Act); and section 1407(F) of the Victims of Crime Act of 1984 (Victims of Crime Act).

§ 18.2 Application.

(a) These procedures apply to all appeals and hearings of State formula or block grant applicants or recipients and all existing recipients of categorical grants or cooperative agreements requested under section 802 of the Justice Assistance Act; sections 223(d), 226 and 228(e) of the Juvenile Justice Act; section 1407(F) of the Victims of Crime Act; the nondiscrimination provision of section 809 of the Crime Control Act, or the cross-referenced provisions of the Emergency Federal Law Enforcement Assistance Program. The method of notifying recipients of their non-compliance with section 809 (the nondiscrimination provison of the Crime Control Act and 28 CFR 42.208.

(b) These procedures do not apply to hearings requested under the Public Safety Officers' Benefits Act, 42 U.S.C. 3796, et seq. The hearing and appeal procedures available to claimants denied benefits under that Act are set forth in the appendix to 28 CFR part 32.

(c) These procedures do not apply to subgrant applicants or to recipients or third party beneficiaries of block or formula grants awarded to a State.

(d) These procedures do not apply to categorical grant applicants.

(e) These procedures do not apply to private sector/prison industry enhancement certification applicants; Regional Information Sharing Systems grant applicants; surplus Federal property certification applicants; or the State reimbursement program for Incarcerated Mariel-Cubans.

§ 18.3 Definitions.

(a) Block or formula grant applicant or recipient means an applicant for a grant awarded under the provisions of part D of the Crime Control Act; part B, subpart I of the Juvenile Justice Act; and sections 1403 and 1404 of the Victims of Crime Act.

(b) Categorical grant recipient means a public or private agency which has received a research, statistics, discretionary, technical assistance, special emphasis, training, concentration of Federal effort or other direct Federal assistance award of grant funds.

(c) Categorical grant applicant means a public or private agency which has applied for a research, statistics, discretionary, technical assistance, special emphasis, training, concentration of Federal effort or other direct Federal assistance award of grant funds.

(d) Grant includes cooperative agreements and means a direct award of financial assistance from OJP, BJA, NIJ, OJJDP, BJS or OVC.

(e) Crime Control Act means the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. 3701, et seq., as amended.

(f) Juvenile Justice Act means the Juvenile Justice and Delinquency Prevention Act of 1974, 42 U.S.C. 5601, et seq., as amended.

(g) Responsible agency means the organizational unit whose action is being appealed. This will be OJP, NIJ, BJS, OJJDP, BJA or OVC as appropriate. In hearings requested under the nondiscrimination provisions of the Crime Control Act, the responsible agency is OJP. In hearings requested to contest block or formula grant denials or terminations or categorical grant terminations, the responsible agency is the organizational unit that took the action at issue: OJP, BJA, OJJDP, NIJ, BJS or OVC.

(h) Responsible agency official means the Assistant Attorney General, Office of Justice Programs (OJP); the Director, Bureau of Justice Assistance (BJA); the Director, National Institute of Justice (NIJ); the Director, Bureau of Justice Statistics (BJS); the Director, Office for Victims of Crime (OVC); or the Administrator, Office of Juvenile Justice and Delinquency Prevention (OJJDP), as appropriate.

(i) Sub-grant applicant or recipient means the State agency, unit of local government or private non-profit organization which applies for, or receives, a grant from a State agency which administers a block or formula grant.

(j) Victims of Crime Act means the Victims of Crime Act of 1984, 42 U.S.C. 10601, et seq.

§ 18.4 Preliminary hearings.

non

(a) A grantee determined to be in noncompliance with the discrimination provisions of the Crime Control Act, the Juvenile Justice Act or the Victims of Crime Act may request a preliminary hearing within 90 days after receipt of the notification of noncompliance.

(b) The preliminary hearing shall be initiated within 30 days of the request.

(c) The sole issue to be adjudicated by the hearing officer is whether the grantee is likely to prevail on the merits of the issue at a full hearing requested under 28 CFR 42.215. The grantee shall have the burden of persuading the hearing officer that the grantee is likely to prevail on the merits.

(d) The hearing officer may permit the parties to argue the issue by briefs, oral argument, or the presentation of testimony and exhibits. The hearing officer shall accept as evidence documents and other exhibits which can reasonably be authenticated and subjected to cross-examination at a full hearing.

(e) The hearing officer shall make the final decision on the issue within 15 days after the conclusion of the preliminary hearing.

§ 18.5 Hearings.

(a) Whenever the responsible agency official finds that there has been a substantial failure to comply with:

(1) The provisions of the Crime Control Act, the Juvenile Justice Act, or the Victims of Crime Act;

(2) Regulations promulgated by the responsible agency pursuant to appropriate statutory authority; or

(3) A plan or application submitted in accordance with the provisions of the Crime Control Act; the Juvenile Justice Act, the Victims of Crime Act, or the provisions of any other applicable Federal act, regulation or guideline;

the responsible agency shall notify the grantee or applicant State that all or part of its grant or subgrant will be terminated or suspended until the responsible agency is satisfied that there is no longer such failure.

(b) The notice shall contain:

(1) A statement of facts sufficient to inform the party of the reasons for the agency's proposed action;

(2) A statement of the nature of the action proposed to be taken; and

(3) A reference of the available appeal rights.

(c) If a block or formula grant applicant or recipient or a categorical grant recipient wishes to appeal any action covered by § 18.5(a) it may request a review of the issues in controversy within 30 days after notice of termination, noncompliance or denial by writing to: Office of General Counsel, office of Justice Programs, U.S. Department of Justice, 633 Indiana Avenue NW., Room 1268, Washington, DC 20531.

(d) The request for a review shall contain:

(1) A factual statement sufficient to inform the responsible agency of the nature of the issues involved;

(2) A recital of the relief requested; and

(3) A request for an oral hearing, or in the alternative, an opportunity to submit only written information or argument to a hearing officer.

(e) If the responsible agency official determines that basis for the appeal in § 18.5(c) would not, if substantiated, establish a basis for grant award or continuation, the official may take final agency action on the appeal.

(f) The responsible agency or its representative may attempt to informally resolve a controversy arising under