[Federal Register Volume 81, Number 79 (Monday, April 25, 2016)]
[Rules and Regulations]
[Pages 24019-24022]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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 [email protected].

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 [email protected] 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:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
                       Personnel Search and Review
------------------------------------------------------------------------
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
------------------------------------------------------------------------

    (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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