[Federal Register Volume 81, Number 79 (Monday, April 25, 2016)]
[Rules and Regulations]
[Pages 24019-24022]
[FR Doc No: 2016-09252]
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OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE
32 CFR Part 1704
Mandatory Declassification Review Program
AGENCY: Office of the Director of National Intelligence.
ACTION: Direct final rule.
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SUMMARY: The Office of the Director of National Intelligence (ODNI) is
publishing this direct final rule pursuant to Executive Order 13526,
relating to classified national security information. It provides
procedures for members of the public to request from ODNI a Mandatory
Declassification Review (MDR) of information classified under the
provisions of Executive Order 13526 or predecessor orders such that the
agency may retrieve it with reasonable effort. This rule also informs
requesters where to send requests for an MDR.
DATES: This rule is effective June 24, 2016 without further action,
unless adverse comment is received by May 25, 2016. If adverse comment
is received, ODNI will publish a timely withdrawal of the rule in the
Federal Register.
ADDRESSES: You may submit comments by any of the following methods: By
mail to the Office of the Director of National Intelligence, Director
of the Information Management Division, Washington, DC 20511, by
facsimile at (703) 874-8910, or by email at dni-FOIA@dni.gov.
FOR FURTHER INFORMATION CONTACT: Jennifer L. Hudson, (703) 874-8085.
SUPPLEMENTARY INFORMATION: It is the policy of the ODNI to act in
matters relating to national security information in accordance with
Executive Order 13526 and directives issued thereunder by the
Information Security Oversight Office (ISOO). The purpose of this rule
is to assist in implementing specific sections of Executive Order 13526
concerning the Mandatory Declassification Review (MDR). This document
is being issued as a direct final rule without prior notice of proposed
rulemaking as allowed by the Administrative Procedure Act, 5 U.S.C.
553(b)(3)(A) for rules of agency procedure and interpretation.
Regulatory Impact
This rule is not a significant regulatory action for the purposes
of Executive Order 12866. This rule is not a major rule as defined in 5
U.S.C. Chapter 8, Congressional Review of Agency Rulemaking. As
required by the Regulatory Flexibility Act, we certify that this rule
will not have a significant impact on a substantial number of small
entities because it applies only to federal agencies.
List of Subjects in 32 CFR Part 1704
Declassification, Information, Intelligence, National security
information.
0
For the reasons set forth in the preamble, ODNI adds 32 CFR part 1704
to read as follows:
PART 1704--MANDATORY DECLASSIFICATION REVIEW PROGRAM
Sec.
1704.1 Authority and purpose.
1704.2 Definitions.
1704.3 Contact information.
1704.4 MDR program feedback.
1704.5 Guidance.
1704.6 Exceptions.
1704.7 Requirements.
1704.8 Fees.
1704.9 Determination by originator or interested party.
1704.10 Appeals.
Authority: 50 U.S.C. 3001; E.O. 13526, 75 FR 707, 3 CFR, 2009
Comp, p. 298.
Sec. 1704.1 Authority and purpose.
(a) Authority. This part is issued under the authority of 32 CFR
2001.33; Section 3.5 of Executive Order 13526 (or successor Orders);
the National Security Act of 1947, as amended (50 U.S.C. 3001 et seq.).
(b) Purpose. This part prescribes procedures, subject to
limitations set forth below, for requesters to request a mandatory
declassification review of information classified under Executive Order
13526 or predecessor or successor orders. Section 3.5 of Executive
Order 13526 and these regulations are not intended to and do not create
any right
[[Page 24020]]
or benefit, substantive or procedural, enforceable at law by a party
against the United States, its agencies, officers, employees, or
agents, or any other person.
Sec. 1704.2 Definitions.
For purposes of this part:
Control means the authority of the agency that originates
information, or its successor in function, to regulate access to the
information. (32 CFR 2001.92)
Day means U.S. Federal Government working day, which excludes
Saturdays, Sundays, and federal holidays. Three (3) days may be added
to any time limit imposed on a requester by this part if responding by
U.S. domestic mail; ten (10) days may be added if responding by
international mail.
D/IMD means the Director of the Information Management Division and
the leader of any successor organization, who serves as the ODNI's
manager of the information review and release program.
Federal agency means any Executive agency, as defined in 5 U.S.C.
105; any Military department, as defined in 5 U.S.C. 102; and any other
entity within the executive branch that comes into the possession of
classified information.
Information means any knowledge that can be communicated or
documentary material, regardless of its physical form, that is owned
by, produced by or for, or under the control of the U.S. Government; it
does not include information originated by the incumbent President,
White House Staff, appointed committees, commissions or boards, or any
entities within the Executive Office that solely advise and assist the
incumbent President.
Interested party means any official in the executive, military,
congressional, or judicial branches of government, or a U.S. Government
contractor who, at the sole discretion of the ODNI, has a subject
matter or other interest in the documents or information at issue.
NARA means the National Archives and Records Administration.
ODNI means the Office of the Director of National Intelligence.
Order means Executive Order 13526, ``Classified National Security
Information'' (December 29, 2009) or successor Orders.
Originating element means the element that created the information
at issue.
Presidential libraries means the libraries or collection
authorities established under the Presidential Libraries Act (44 U.S.C.
2112) and similar institutions or authorities as may be established in
the future.
Referral means coordination with or transfer of action to an
interested party.
Requester means any person or organization submitting an MDR
request.
Sec. 1704.3 Contact information.
For general information on the regulation in this part or to submit
a request for a MDR, please direct your communication by mail to the
Office of the Director of National Intelligence, Director of the
Information Management Division, Washington, DC 20511; by facsimile to
(703) 874-8910; or by email to DNI-FOIA@dni.gov. For general
information on the ODNI MDR program or status information on pending
MDR cases, call (703) 874-8500.
Sec. 1704.4 MDR program feedback.
The ODNI welcomes suggestions for improving the administration of
our MDR program in accordance with Executive Order 13526. Suggestions
should identify the specific purpose and the items for consideration.
The ODNI will respond to all communications and take such actions as
determined feasible and appropriate.
Sec. 1704.5 Guidance.
Address all communications to the point of contact as specified in
Sec. 1704.3. Clearly describe, list, or label said communication as an
MDR Request.
Sec. 1704.6 Exceptions.
MDR requests will not be accepted from a foreign government entity
or any representative thereof. MDR requests will not be accepted for
documents required to be submitted for prepublication review or other
administrative process pursuant to an approved nondisclosure agreement;
for information that is the subject of pending litigation; nor for any
document or material containing information from within an operational
file exempted from search and review, publication, and disclosure under
the FOIA. If the ODNI has reviewed the requested information for
declassification within the past two years, the ODNI will not conduct
another review, but the D/IMD will notify the requester of this fact
and the prior review decision. Requests will not be accepted from
requesters who have outstanding fees for MDR or FOIA requests with the
ODNI or another federal agency.
1704.7 Requirements.
An MDR request shall describe the document or material containing
the information with sufficient specificity to enable the ODNI to
locate it with a reasonable amount of effort.
1704.8 Fees.
(a) In general. Any search, review, and reproduction fees will be
charged in accordance with the provisions below relating to schedule,
limitations, and category of requester. Applicable fees will be due
even if a subsequent search locates no responsive records.
(b) Agency discretion to waive fees. Records will be furnished
without charge or at a reduced rate when ODNI determines that:
(1) As a matter of administrative discretion, the interest of the
United States Government would be served, or
(2) It is in the public interest to provide responsive records
because the disclosure is likely to contribute significantly to the
public understanding of the operations or activities of the United
States Government and is not primarily in the commercial interest of
the requester.
(c) Agreement to pay fees. If you request an MDR, it shall be
considered a firm commitment by you to pay all applicable fees
chargeable under this regulation, up to and including the amount of
$25.00. When making a request, you may specify a willingness to pay a
greater or lesser amount.
(d) Advance payment. The ODNI may require an advance payment of up
to 100 percent of the estimated fees when projected fees exceed
$250.00, not including charges associated with the first 100 pages of
production and two hours of search (when applicable), or when the
requester previously failed to pay fees in a timely fashion, for fees
of any amount. ODNI will hold in abeyance for 45 days those requests
where advance payment has been requested.
(e) Schedule of fees--(1) In general. The schedule of fees for
services performed in responding to requests for records is as follows:
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Personnel Search and Review
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Clerical/Technical................ Quarter Hour........ $ 5.00
Professional/Supervisory.......... Quarter Hour........ 10.00
[[Page 24021]]
Manager/Senior Professional....... Quarter Hour........ 18.00
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Computer Search and Production
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Search (online)................... Flat Rate........... 10.00
Search (offline).................. Flat Rate........... 30.00
Other activity.................... Per minute.......... 10.00
Tapes (mainframe cassette)........ Each................ 9.00
Tapes (mainframe cartridge)....... Each................ 9.00
Tapes (mainframe reel)............ Each................ 20.00
Tapes (PC 9mm).................... Each................ 25.00
Diskette (3.5'').................. Each................ 4.00
CD (bulk recorded)................ Each................ 10.00
CD (recordable)................... Each................ 20.00
Telecommunications................ Per minute.......... .50
Paper (mainframe printer)......... Per page............ .10
Paper (PC b&w laser printer)...... Per page............ .10
Paper (PC color printer).......... Per page............ 1.00
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Paper Production
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Photocopy (standard or legal)..... Per page............ .10
Preprinted (if available)......... Per 100 pages....... 5.00
Published (if available).......... Per item............ NTIS
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(2) Application of schedule. Personnel search time includes time
expended in manual paper records searches, indices searches, review of
computer search results for relevance, and personal computer system
searches. In any event in which the actual cost to ODNI of a particular
item is less than the above schedule (e.g., a large production run of a
document resulting in a cost less than $5.00 per hundred pages), then
the actual lesser cost will be charged.
(3) Other services. For all other types of output, production, or
reproduction (e.g., photographs, maps, or published reports), ODNI will
charge actual cost or amounts authorized by statute. Determinations of
actual cost shall include the commercial cost of the media, the
personnel time expended in making the item to be released, and an
allocated cost of the equipment used in making the item, or, if the
production is effected by a commercial service, then that charge shall
be deemed the actual cost for purposes of this regulation.
(f) Limitations on collection of fees--(1) In general. No fees will
be charged if the cost of collecting the fee is equal to or greater
than the fee itself. That cost includes the administrative costs to
ODNI of billing, receiving, recording, and processing the fee for
deposit to the Treasury Department and, as of the date of these
regulations, is deemed to be $10.00.
(g) Associated requests. If it appears that a requester or a group
of requesters acting in concert have requested portions of an
apparently unitary request for the purpose of avoiding the assessment
of fees, ODNI may aggregate any such requests and charge accordingly.
Requests from multiple requesters will not be aggregated without clear
evidence. ODNI will not aggregate multiple unrelated requests.
1704.9 Determination by originator or interested party.
(a) In general. The originating element(s) of the classified
information (document) is always an interested party to any mandatory
declassification review. Other interested parties may become involved
through a referral by the D/IMD when it is determined that some or all
of the information is also within their official cognizance.
(b) Required determinations: These parties shall respond in writing
to the D/IMD with a finding as to the classified status of the
information, including the category of protected information as set
forth in section 1.4 of the Order, and if older than ten years, the
basis for the extension of classification time under sections 1.5 and
3.3 of the Order. These parties shall also indicate whether withholding
is otherwise authorized and warranted in accordance with sections
3.5(c) and 6.2(d) of the Order.
(c) Time. Responses to the requester shall be provided on a first-
in/first-out basis, taking into account the business requirements of
the originating element(s) and other interested parties, and, in
accordance with Executive Order 13526, ODNI will respond to requesters
within one year of the receipt of requests.
(d) Deciding official. The IMD FOIA Branch Chief, in consultation
with the D/IMD and the Classification Management Branch Chief, will
ordinarily be the deciding official on initial reviews of MDR requests
to the ODNI.
1704.10 Appeals.
(a) Administrative. Appeals of initial decisions must be received
in writing by the D/IMD within 60 days of the date of mailing of the
ODNI's decision. The appeal must identify with specificity the
documents or information to be considered on appeal and it may, but
need not, provide a factual or legal basis for the appeal.
(1) Exceptions. No appeal shall be accepted from a foreign
government entity or any representative thereof. Appeals will not be
accepted for documents required to be submitted for prepublication
review or other administrative process pursuant to an approved
nondisclosure agreement; for information that is the subject of pending
litigation; nor for any document or material containing information
from within an operational file exempted from search and review,
publication, and disclosure under the FOIA. No appeals shall be
accepted if the requester has outstanding fees for information services
at ODNI or another federal agency. In addition, no appeal shall be
accepted if the information in question has been the subject of a
declassification review within the previous two years.
(2) Receipt, recording, and tasking. The D/IMD will record each
appeal received under this part and acknowledge receipt to the
requester.
(3) Appellate authority. The ODNI Chief Management Officer (CMO),
after consultation with all interested parties or ODNI component
organizations, as well as the Office of General Counsel, will make a
final determination on the appeal within 60 days.
(b) Final appeal. The D/IMD will prepare and communicate the ODNI
[[Page 24022]]
administrative appeal decision to the requester, NARA, Presidential
library, and referring agency, as appropriate. Correspondence will
include a notice, if applicable, that a further appeal of ODNI's final
decision may be made to the Interagency Security Classification Appeals
Panel (ISCAP) established pursuant to section 5.3 of Executive Order
13526. Action by that Panel will be the subject of rules to be
promulgated by the Information Security Oversight Office.
Dated: April 12, 2016.
Mark W. Ewing,
Chief Management Officer.
[FR Doc. 2016-09252 Filed 4-22-16; 8:45 am]
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