Mandatory Declassification Review Program, 24019-24022 [2016-09252]
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Federal Register / Vol. 81, No. 79 / Monday, April 25, 2016 / Rules and Regulations
relationship between the loan and Y’s
exempt activities. Accordingly, the loan is a
program-related investment.
Example 18. X is a non-profit corporation
that provides child care services in a lowincome neighborhood, enabling many
residents of the neighborhood to be gainfully
employed. X meets the requirements of
section 501(k) and is recognized as an
organization described in section 501(c)(3).
X’s current child care facility has reached
capacity and has a long waiting list. X has
determined that the demand for its services
warrants the construction of a new child care
facility in the same neighborhood. X is
unable to obtain a loan from conventional
sources of funds including B, a commercial
bank because of X’s credit record. Pursuant
to a deposit agreement, Y, a private
foundation, deposits $h in B, and B lends an
identical amount to X to construct the new
child care facility. The deposit agreement
requires Y to keep $h on deposit with B
during the term of X’s loan and provides that
if X defaults on the loan, B may deduct the
amount of the default from the deposit. To
facilitate B’s access to the funds in the event
of default, the agreement requires that the
funds be invested in instruments that allow
B to access them readily. The deposit
agreement also provides that Y will earn
interest at a rate of t% on the deposit. The
t% rate is substantially less than Y could
otherwise earn on this sum of money, if Y
invested it elsewhere. The loan agreement
between B and X requires X to use the
proceeds from the loan to construct the new
child care facility. Y’s primary purpose in
making the deposit is to further its
educational purposes by enabling X to
provide child care services within the
meaning of section 501(k). No significant
purpose of the deposit involves the
production of income or the appreciation of
property. The deposit significantly furthers
the accomplishment of Y’s exempt activities
and would not have been made but for such
relationship between the deposit and Y’s
exempt activities. Accordingly, the deposit is
a program-related investment.
Example 19. Assume the same facts as
stated in Example 18, except that instead of
making a deposit of $h into B, Y enters into
a guarantee agreement with B. The guarantee
agreement provides that if X defaults on the
loan, Y will repay the balance due on the
loan to B. B was unwilling to make the loan
to X in the absence of Y’s guarantee. X must
use the proceeds from the loan to construct
the new child care facility. At the same time,
X and Y enter into a reimbursement
agreement whereby X agrees to reimburse Y
for any and all amounts paid to B under the
guarantee agreement. The signed guarantee
and reimbursement agreements together
constitute a ‘‘guarantee and reimbursement
arrangement.’’ Y’s primary purpose in
entering into the guarantee and
reimbursement arrangement is to further Y’s
educational purposes. No significant purpose
of the guarantee and reimbursement
arrangement involves the production of
income or the appreciation of property. The
guarantee and reimbursement arrangement
significantly furthers the accomplishment of
Y’s exempt activities and would not have
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been made but for such relationship between
the guarantee and reimbursement
arrangement and Y’s exempt activities.
Accordingly, the guarantee and
reimbursement arrangement is a programrelated investment.
(c) Effective/applicability date.
Paragraphs (a)(2)(ii) and (b), Examples
11 through 19 of this section, apply on
or after April 25, 2016.
John Dalrymple,
Deputy Commissioner for Services and
Enforcement.
Approved: April 5, 2016.
Mark J. Mazur,
Assistant Secretary of the Treasury (Tax
Policy).
[FR Doc. 2016–09396 Filed 4–21–16; 4:15 pm]
BILLING CODE 4830–01–P
OFFICE OF THE DIRECTOR OF
NATIONAL INTELLIGENCE
32 CFR Part 1704
Mandatory Declassification Review
Program
Office of the Director of
National Intelligence.
ACTION: Direct final rule.
AGENCY:
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 dniFOIA@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
SUMMARY:
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24019
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.
■ 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.
§ 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
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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.
jstallworth on DSK7TPTVN1PROD with RULES
§ 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.
§ 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.
§ 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.
§ 1704.5
Guidance.
Address all communications to the
point of contact as specified in § 1704.3.
Clearly describe, list, or label said
communication as an MDR Request.
§ 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 $250.00, not
including charges associated with the
first 100 pages of production and two
hours of search (when applicable), or
when the requester previously failed to
pay fees in a timely fashion, for fees of
any amount. ODNI will hold in
abeyance for 45 days those requests
where advance payment has been
requested.
(e) Schedule of fees—(1) In general.
The schedule of fees for services
performed in responding to requests for
records is as follows:
Personnel Search and Review
Clerical/Technical ............................................................................................
Professional/Supervisory ................................................................................
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Quarter Hour ..........................................................
Quarter Hour ..........................................................
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$ 5.00
10.00
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Manager/Senior Professional .........................................................................
Quarter Hour ..........................................................
24021
18.00
Computer Search and Production
Search (online) ...............................................................................................
Search (offline) ...............................................................................................
Other activity ...................................................................................................
Tapes (mainframe cassette) ...........................................................................
Tapes (mainframe cartridge) ..........................................................................
Tapes (mainframe reel) ..................................................................................
Tapes (PC 9mm) ............................................................................................
Diskette (3.5’’) .................................................................................................
CD (bulk recorded) .........................................................................................
CD (recordable) ..............................................................................................
Telecommunications .......................................................................................
Paper (mainframe printer) ..............................................................................
Paper (PC b&w laser printer) .........................................................................
Paper (PC color printer) .................................................................................
Flat Rate .................................................................
Flat Rate .................................................................
Per minute ..............................................................
Each .......................................................................
Each .......................................................................
Each .......................................................................
Each .......................................................................
Each .......................................................................
Each .......................................................................
Each .......................................................................
Per minute ..............................................................
Per page .................................................................
Per page .................................................................
Per page .................................................................
10.00
30.00
10.00
9.00
9.00
20.00
25.00
4.00
10.00
20.00
.50
.10
.10
1.00
Paper Production
jstallworth on DSK7TPTVN1PROD with RULES
Photocopy (standard or legal) ........................................................................
Preprinted (if available) ...................................................................................
Published (if available) ...................................................................................
(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
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Per page .................................................................
Per 100 pages ........................................................
Per item ..................................................................
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.
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1704.10
.10
5.00
NTIS
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
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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]
BILLING CODE 9500–01–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 117
[Docket No. USCG–2016–0196]
Drawbridge Operation Regulation; Red
River, Alexandria, LA
Coast Guard, DHS.
Notice of deviation from
drawbridge regulations.
AGENCY:
ACTION:
The Coast Guard has issued a
temporary deviation from the operating
schedule that governs the US 165
(Jackson Street) Drawbridge across the
Red River, mile 88.6, at Alexandria,
Louisiana. The deviation is necessary to
allow the bridge owner time to install
new pinion bearings essential to the
continued safe operation of the
drawbridge. This deviation allows the
bridge to remain in the closed-tonavigation position for approximately 6
days spanning a 2-week period.
DATES: This deviation is effective from
May 31, 2016 through June 9, 2016.
ADDRESSES: The docket for this
deviation, (USCG–2016–0196) is
available at https://www.regulations.gov.
Type the docket number in the
‘‘SEARCH’’ box and click ‘‘SEARCH.’’
Click on Open Docket Folder on the line
associated with this deviation.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this temporary
deviation, call or email Eric A.
Washburn, Bridge Administrator,
Western Rivers, Coast Guard; telephone
314–269–2378, email Eric.Washburn@
uscg.mil.
jstallworth on DSK7TPTVN1PROD with RULES
SUMMARY:
The
Louisiana Department of Transportation
and Development requested a temporary
SUPPLEMENTARY INFORMATION:
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deviation for the US 165 (Jackson Street)
Drawbridge, across the Red River, mile
88.6, at Alexandria, Louisiana. This
deviation allows the bridge to remain in
the closed-to-navigation position from 8
a.m. on May 31, 2016 to 8 p.m. on June
2, 2016 and from 8 a.m. on June 7, 2016
to 8 p.m. on June 9, 2016. This deviation
is necessary for the bridge owner to
install new pinion bearings.
The US 165 (Jackson Street)
Drawbridge currently operates in
accordance with 33 CFR 117.491(b).
The US 165 (Jackson Street)
Drawbridge provides a vertical
clearance of 40.0 feet above normal pool
in the closed-to-navigation position.
Navigation on the waterway consists
primarily of commercial tows and
recreational watercraft and will not be
significantly impacted. This temporary
deviation has been coordinated with
waterway users. No objections were
received.
The bridge will not be able to open for
emergencies and there are no alternate
routes for vessels transiting this section
of the Red River. The Coast Guard will
also inform the users of the waterways
through our Local and Broadcast
Notices to Mariners of the change in
operating schedule for the bridge so the
vessel operators can arrange their
transits to minimize any impact caused
by the temporary deviation.
In accordance with 33 CFR 117.35(e),
the drawbridge must return to its regular
operating schedule immediately at the
end of the effective period of this
temporary deviation. This deviation
from the operating regulations is
authorized under 33 CFR 117.35.
Dated: April 20, 2016.
Eric A. Washburn,
Bridge Administrator, Western Rivers.
[FR Doc. 2016–09524 Filed 4–22–16; 8:45 am]
BILLING CODE 9110–04–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG–2016–0272]
RIN 1625–AA00
Safety Zone; Pacific Ocean, North
Shore Oahu, HI—Recovery Operations
Coast Guard, DHS.
Temporary final rule.
AGENCY:
ACTION:
The Coast Guard is
establishing a temporary safety zone for
the navigable waters of the North Shore
of Oahu approximately 2.5NM North
SUMMARY:
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West of Hale’iwa small boat harbor. The
safety zone will encompass all waters
extending one nautical mile in all
directions around the location of
ongoing salvage operations, as described
below. The safety zone is needed to
protect personnel, vessels, and the
marine environment from potential
hazards associated with ongoing
operations to salvage the remains of two
downed helicopters in this area. A
temporary safety zone was previously
enforced in the same area from March
4, 2016 through April 01, 2016 to
protect personnel, vessels, and the
marine environment from the potential
hazards associated with these salvage
operations. A new temporary safety
zone in the area is necessary to
complete recovery of the debris from the
helicopters. Entry of vessels or persons
into this zone is prohibited unless
specifically authorized by the Captain of
the Port (COTP) Honolulu or his
designated representative.
DATES: This rule is effective without
actual notice from April 25, 2016
through 3:00 p.m. (HST) on April 29,
2016. For the purposes of enforcement,
actual notice will be used from 3:00
p.m. (HST) on April 1, 2016 until April
25, 2016.
ADDRESSES: To view documents
mentioned in this preamble as being
available in the docket, go to https://
www.regulations.gov, type USCG–2016–
0272 in the ‘‘SEARCH’’ box and click
‘‘SEARCH.’’ Click on Open Docket
Folder on the line associated with this
rule.
FOR FURTHER INFORMATION CONTACT: If
you have questions concerning this rule,
call or email Lieutenant Commander
Nicolas Jarboe, Waterways Management
Division, U.S. Coast Guard Sector
Honolulu at (808) 541–4359 or
nicolas.a.jarboe@uscg.mil, respectively.
SUPPLEMENTARY INFORMATION:
I. Table of Abbreviations
CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
§ Section
U.S.C. United States Code
COTP Captain of the Port
II. Background Information and
Regulatory History
On January 15, 2016, the Coast Guard
was informed of a helicopter crash off
the North Shore of Oahu between
Ka’Ena Point and Kahuku Point. The
COTP Honolulu determined that
potential hazards associated with the
salvage efforts constitute a safety
concern for anyone within the
designated safety zone. This rule is
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[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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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:
------------------------------------------------------------------------
------------------------------------------------------------------------
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
------------------------------------------------------------------------
Computer Search and Production
------------------------------------------------------------------------
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
------------------------------------------------------------------------
Paper Production
------------------------------------------------------------------------
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]
BILLING CODE 9500-01-P
