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[Federal Register Volume 76, Number 248 (Tuesday, December 27, 2011)]
[Rules and Regulations]
[Pages 80744-80747]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-33104]

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DEPARTMENT OF DEFENSE

Office of the Secretary

[DOD-2010-OS-0043; RIN 0790-AI62]

32 CFR Part 222

DoD Mandatory Declassification Review (MDR) Program

AGENCY: Department of Defense.

ACTION: Final rule.

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SUMMARY: This part implements policy established in DoD Instruction 
5200.01. It assigns responsibilities and provides procedures for 
members of the public to request a declassification review of 
information classified under the provisions of Executive Order 13526, 
or predecessor orders.

DATES: Effective Date: This rule is effective January 26, 2012.

FOR FURTHER INFORMATION CONTACT: Robert Storer, (571) 372-0483.

SUPPLEMENTARY INFORMATION: The Department of Defense published a 
proposed rule on September 27, 2010 (75 FR 59176-59179). Three sets of 
comments were received and are addressed below.
    Comment 1: As an initial matter, this proposed rule contains no 
paragraph (j), and there appears to be no current paragraph (j) to 
which this could be referring. While it is entirely reasonable for the 
DoD to amend this rule later to cover the issue of fees, it is improper 
for the DoD to include a reference now to a potential later amendment 
that will itself have to go through the notice and comment rulemaking 
procedure. It is far more reasonable to leave this subparagraph out of 
the current iteration and add it when the actual paragraph (j) is added 
to the rule.
    Response 1: Paragraph revised to be consistent with section 
2001.33(e) of 32 CFR (see section 222.10).
    Comment 2: It is entirely proper that a requester shall not be 
given MDR appeal rights for records withheld pursuant to FOIA 
exemptions. However, it is not proper for records to be withheld 
pursuant to FOIA exemptions as part of the MDR process without 
providing the proper appeal rights that accompany all FOIA withholding 
decisions.
    Response 2: The FOIA and MDR process are separate and distinct 
processes. A MDR is not a FOIA Request; a requester does not have the 
right to appeal MDR's denied under FOIA exemptions without having filed 
a FOIA Request. If a requester is denied under the rules of FOIA, the 
requester must submit a FOIA request for those records in order to have 
the exemptions examined. (See par 4 and par 5(c)3(d) of section 222.5.)
    Comment 3: Proposed Section 222.5(a)(vii) reads as follows: ``This 
section shall not apply to any request for a review made to an element 
of the Intelligence Community that is made by a person other than an 
individual as that term is defined by 5 U.S.C. 552a(a)(2), or by a 
foreign government entity or any representative thereof.''
    This language differs meaningfully from the interpretive guidance 
rules in Section 32 CFR 2001.33(i), which say, in part, ``requests for 
mandatory declassification review made to an element of the 
Intelligence Community by anyone other than a citizen of the United 
States or an alien lawfully admitted for permanent residence may be 
denied by the receiving Intelligence Community element.''
    Response 3: Section removed from final rule.
    4: Comments from DoD Internal review of proposed rule:
    a. Change the Executive Order in the last line of Paragraph 1 from 
12958 to 13526.
    b. Appoint an appellate authority and process MDR appeals for 
information originating in the OSD, the Office of the Chairman of the 
Joint Chiefs of Staff and the Joint Staff, and DoD components not 
listed in the Appendix to Enclosure 2.
    c. Insert reference to DoD 5200.1-R so the paragraph reads ``The 
DoD Components shall process MDR requests * * * in accordance with DoD 
5200.1-R and Part 2001 of title 32 * * *''
    d. Replace paragraph 7.b with the following (or similar) statement: 
``The DoD Component shall consult with DOS as necessary to determine 
whether the information is subject to a treaty or international 
agreement that would prevent its declassification. The office to 
consult is * * *'' (U//FOUO) The purpose of the statement is to allow 
DoD intelligence organizations that have existing, authorized 
agreements for coordinating actions on FGI to continue to use those 
arrangements with counterpart organizations of foreign governments for 
the purposes of coordinating Mandatory Declassification actions.
    e. Updated all DoD Component contact information.
    Response to Internal Comments: Internal comments from staffing 
reviews were incorporated as appropriate. Changes were made in the 
following sections: references, paragraph (d), Sec.  222.5 MDR 
processing procedures of the final in response to the comments 
received.

Executive Order 12866, ``Regulatory Planning and Review'' and Executive 
Order 13563, ``Improving Regulation and Regulatory Review''

    It has been certified that 32 CFR part 222 does not:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy; a section of the 
economy; productivity; competition; jobs; the environment; public 
health or safety; or State, local, or tribunal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another Agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
these Executive Orders.

Sec. 202, Public Law 104-4, ``Unfunded Mandates Reform Act''

    It has been certified that 32 CFR part 222 does not contain a 
Federal mandate that may result in the expenditure by State, local and 
tribunal governments, in aggregate, or by the private sector, of $100 
million or more in any one year.

[[Page 80745]]

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    It has been certified that 32 CFR part 222 is not subject to the 
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities. The rule implements the procedures for the effective 
administration of the DoD MDR Program.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    It has been certified that 32 CFR part 222 does not impose 
reporting or recordkeeping requirements under the Paperwork Reduction 
Act of 1995.

Executive Order 13132, ``Federalism''

    It has been certified that 32 CFR part 222 does not have federalism 
implications, as set forth in Executive Order 13132. This rule does not 
have substantial direct effects on:
    (1) The States;
    (2) The relationship between the National Government and the 
States; or
    (3) The distribution of power and responsibilities among the 
various levels of Government.

List of Subjects in 32 CFR Part 222

    Declassification, Security information.

0
Accordingly, 32 CFR part 222 is added to read as follows:

PART 222--DOD MANDATORY DECLASSIFICATION REVIEW (MDR) PROGRAM

Sec.
222.1 Purpose.
222.2 Applicability.
222.3 Definitions.
222.4 Responsibilities.
222.5 MDR processing procedures.

Appendix A to Part 222--Addressing MDR requests.

    Authority: 5 U.S.C. 552.

Sec.  222.1  Purpose.

    This part implements policy established in DoD Instruction 5200.01. 
It assigns responsibilities and provides procedures for members of the 
public to request a declassification review of information classified 
under the provisions of Executive Order 13526, or predecessor orders.

Sec.  222.2  Applicability.

    This part applies to the Office of the Secretary of Defense, the 
Military Departments, the Office of the Chairman of the Joint Chiefs of 
Staff and the Joint Staff, the Combatant Commands, the Office of the 
Inspector General of the Department of Defense, the Defense Agencies, 
the DoD Field Activities, and all other organizational entities within 
DoD (hereafter referred to collectively as the ``DoD Components'').

Sec.  222.3  Definitions.

    Unless otherwise noted, these terms and their definitions are for 
the purpose of this part.
    Foreign Government Information (FGI). Defined in DoD 5200.1-R 
(available at http://www.dtic.mil/whs/directives/corres/pdf/520001r.pdf).
    Formal Control System. A system designed to ensure DoD Component 
accountability and compliance. For each MDR request, the system shall 
contain, at a minimum, a unique tracking number, requester's name and 
organizational affiliation, information requested, date of receipt, and 
date of closure.
    Formerly Restricted Data. Defined in DoD 5200.1-R.
    MDR. The review of classified information for declassification in 
response to a declassification request that meets the requirements 
under section 3.5 of Executive Order 13526, ``Classified National 
Security Information,'' December 29, 2009.
    Restricted Data. Defined in DoD 5200.1-R.

Sec.  222.4  Responsibilities.

    (a) The Director, Washington Headquarters Services, shall process 
MDR requests for OSD, the Office of the Chairman of the Joint Chiefs of 
Staff and the Joint Staff, and DoD Components not listed in the 
Appendix A to this part.
    (b) Heads of the DoD Components. The Heads of the DoD Components 
listed in the Appendix A to this part shall:
    (1) Establish procedures for the processing of MDR requests and 
appeals for information originating within the Component.
    (2) Appoint an appellate authority to adjudicate MDR appeals for 
the Component.

Sec.  222.5  MDR processing procedures.

    (a) General. The DoD Components shall process MDR requests from the 
public for classified information originating within the DoD Component 
in accordance with DoD 5200.1-R and 32 CFR part 2001.
    (b) Information not subject to review for public release under the 
MDR includes:
    (1) Unclassified information (to include documents) or previously 
classified documents that are declassified prior to the receipt of the 
MDR request. These documents must be requested under the provisions of 
5 U.S.C. 552(b) (also known and hereinafter referred to as the 
``Freedom of Information Act'' (FOIA) and 32 CFR part 286.
    (2) Information (to include documents) reviewed for 
declassification within 2 years preceding the date of receipt of the 
MDR request. If this is the case, the requester shall be provided the 
documents as previously released and advised of the right to appeal to 
the DoD Component within 60 days unless the documents are already under 
appeal to the Interagency Security Classification Appeals Panel 
(ISCAP).
    (3) Information exempted from search and review by statute of 50 
U.S.C. 431, 432, 432a, 432b, and 432d.
    (4) Documents originated by the incumbent President; the incumbent 
President's White House Staff; committees, commissions, or boards 
appointed by the incumbent President; or other entities within the 
Executive Office of the President that solely advise and assist the 
incumbent President.
    (5) Information marked as Restricted Data or Formerly Restricted 
Data.
    (6) Information that is the subject of pending litigation.
    (c) MDR Requester Guidelines. Members of the public seeking the 
declassification of DoD documents under the provisions of section 3.5 
of Executive Order 13526, and 50 U.S.C. 431, 432, 432a, 432b, and 432d 
shall:
    (1) Address the written request to the appropriate DoD Component 
listed in the appendix to this enclosure.
    (2) Identify the requested document or information with sufficient 
specificity to enable the DoD Component to locate it with a reasonable 
amount of effort. Information that would provide the sufficient 
specificity would include a document identifier such as originator, 
date, title, subject, the National Archives and Records Administration 
accession number, or other applicable unique document identifying 
number. Broad or topical MDR requests for records on a particular 
subject, such as ``any and all documents concerning'' a subject do not 
meet this standard.
    (3) Include a correct return mailing address with the request.
    (4) Include a statement that the requester understands that the 
request may incur processing charges in accordance with paragraph (k) 
of this section.
    (d) Receipt and Control. Upon receipt of an MDR request, the DoD 
Component shall send the requester an acknowledgement and open a file 
in a formal control system. The acknowledgement shall include the

[[Page 80746]]

tracking number and date of receipt of the request.
    (e) Simultaneous MDR and FOIA Requests. DoD Components should be 
aware of possible requests under both the MDR and the FOIA. In 
accordance with 32 CFR part 286, if a requester asks for the same 
information under the FOIA and the MDR, the DoD Component shall ask the 
requester to select only one process. If the requester does not select 
a process, the DoD Component shall process the requested information 
under the FOIA.
    (f) MDR Document Review Process. (1) Requests normally will be 
processed on a first in first out basis by date of receipt.
    (2) Every effort shall be made to ensure that a response to an MDR 
request is provided to the requester within 1 year from the date of 
receipt.
    (3) The DoD Components shall conduct line-by-line reviews of 
documents responsive to an MDR request to determine if the information 
contained within the documents continues to adhere to the standards for 
classification according to Executive Order 13526 Classified National 
Security Information. This line-by-line review must take into account 
the unique sensitivity of FGI as outlined in paragraph (h) of this 
section. In accordance with section 3.6(b) of Executive Order 13526 
Classified National Security Information, classified information 
originating with another U.S. Government agency contained in records of 
the DoD Components will be referred to the originating agency for a 
declassification and release determination. Likewise, classified 
information in a DoD Component's records originating with another DoD 
Component will be referred to the originating Component. It is the 
responsibility of the DoD Component originally receiving the MDR 
request to manage these referrals and to incorporate the other agency's 
or DoD Component's determinations when preparing the final decision on 
the request. The review of each document will determine if the 
document:
    (i) No longer meets the standards for classification as established 
by Executive Order 13526 ``Classified National Security Information'', 
and is therefore declassified in full.
    (ii) Contains portions still meeting the standards for 
classification and is therefore declassified in part and denied in 
part.
    (iii) Still meets the standards for classification in its entirety 
and is therefore denied in full.
    (4) For documents meeting the criteria of paragraphs (f)(3)(i) and 
(f)(3)(ii) of this section, the DoD Components shall not release any 
unclassified information exempt from public release pursuant to 
Exemptions 2 through 9 of the FOIA. DoD 5400.7-R, ``DoD Freedom of 
Information Act Program'' provides a more detailed explanation of the 
FOIA exemptions.
    (5) When this process is complete, the DoD Components shall redact 
all information, both classified and unclassified, determined to be 
exempt from release as warranted under applicable law and authority. 
All of the remaining information within the documents, which is 
determined to be publicly releasable information, shall be provided 
promptly to the requester.
    (g) Public Access. In the interest of transparency, the DoD 
Components should make efforts to post documents released under the MDR 
program on DoD Component Web sites.
    (h) FGI. Every effort must be made to ensure that FGI is not 
subject to declassification without the prior consent of the 
originating government. Therefore, if a requested document originated 
with a foreign government or organization and was classified by that 
government or organization, the DoD Component shall conduct MDR of the 
document in accordance with DoD 5200.1-R and 32 CFR part 2001.
    (i) Denial of Information. (1) When classified information is 
denied, the DoD Component shall advise the requester, in writing:
    (i) That information currently and properly classified has been 
denied (whether a document in its entirety or partially) in accordance 
with the appropriate sections of Executive Order 13526 Classified 
National Security Information.
    (ii) Of the right to appeal the denial to the DoD Component within 
60 days of receipt of the denial.
    (iii) Of the mailing address for the appellate authority.
    (2) When unclassified information is withheld because it is 
determined to be exempt from release pursuant to Exemptions 2 through 9 
of the FOIA (whether or not classified information was also withheld 
within the same document), the DoD Component shall advise the requester 
that:
    (i) Section 3.5(c) of Executive Order 13526 Classified National 
Security Information allows for the denial of information when 
withholding it is authorized and warranted under applicable law.
    (ii) Unclassified information exempt from public release pursuant 
to one or more exemptions of the FOIA has been withheld.
    (3) For the denial of unclassified information, the requester shall 
not be given MDR appeal rights because the MDR applies only to the 
denial of classified information and because the request was not 
processed under the FOIA.
    (4) The DoD Component is not required to confirm or deny the 
existence or nonexistence of requested information whenever the fact of 
its existence or nonexistence is itself classified pursuant to 
Executive Order 13526 Classified National Security Information.
    (f) MDR Appeals. MDR appeals are for the denial of classified 
information only. DoD Components shall make an appellate decision 
within 60 working days of receipt of an MDR appeal. If additional time 
is required to make a determination, the appellate authority shall 
notify the requester of the additional time needed and provide the 
requester with the reason for the extension. When the appellate review 
is complete, the appellate authority shall notify the requester in 
writing of the final determination and of the reasons for any denial. 
If the appellate authority determines that some information remains 
classified under the provisions of Executive Order 13526 Classified 
National Security Information, the requester will be advised of the 
right to appeal the final decision to the ISCAP within 60 days of the 
final Component decision, in accordance with section 5.3 of Executive 
Order 13526 Classified National Security Information.
    (k) FEES. In responding to MDR requests, the DoD Components may 
charge fees as permitted by 32 CFR Part 2001. Fees for search, review, 
and reproduction shall be in accordance with the fee schedule in 
Appendix 2 of Chapter 4 of Volume 11A of DoD 7000.14-R (available at 
http://comptroller.defense.gov/fmr/11a/11a_04.pdf).

Appendix A to Part 222--Addressing MDR Requests

    (a) General. The Department of Defense does not have a central 
repository for DoD records. MDR requests therefore should be 
addressed to the DoD Component that has custody of the requested 
record. If a requester is not sure which DoD Component has custody 
or if the DoD Component is not listed below, the MDR request should 
be directed to the Washington Headquarters Services in paragraph 
(b)(1) of this appendix.
    (b) DoD Component MDR Addresses:
    (1) OSD and the Office of the Chairman of the Joint Chiefs of 
Staff and the Joint Staff. Department of Defense, Washington 
Headquarters Services, Records and Declassification Division, Suite 
02F09-02, 4800 Mark Center Drive, Alexandria, VA

[[Page 80747]]

22350-3100. EXCEPTION: DoD Inspector General. DoD Office of 
Inspector General, 400 Army Navy Drive, Arlington, VA 22202-4704.
    (2) Department of the Army. U.S. Army Declassification Activity, 
Attention: AHRC-RDD, 8850 Richmond Highway, Suite 300, Alexandria, 
VA 22309.
    (3) Department of the Navy.
    (i) Department of the Navy, Chief of Naval Operations, CNO 
N09N2, 2000 Navy Pentagon, Washington, DC 20350-2000. (Collateral 
MDR).
    (ii) Department of the Navy, Chief of Naval Operations, CNO N2/
N6, 2000 Navy Pentagon, Washington, DC 20350-2000. (Sensitive 
Compartmented Information MDR).
    (4) Department of the Air Force. Department of the Air Force, 
HAF/IMIO (MDR), 1000 Air Force Pentagon, Washington, DC 20330-1000.
    (5) United States Marine Corps. Commandant of the Marine Corps, 
HQMC Code PP&O, Security Division (PS), 3000 Marine Corps Pentagon, 
Room 4A324, Washington, DC 20350-3000
    (6) Defense Advanced Research Projects Agency. Defense Advanced 
Research Projects Agency, 3701 N. Fairfax Drive, Arlington, VA 
22203-1714.
    (7) Defense Contract Audit Agency. Director, Defense Contract 
Audit Agency, Attention: CPS, 8725 John J. Kingman Road, Suite 2135, 
Fort Belvoir, VA 22060-6219.
    (8) Defense Information Systems Agency. Defense Information 
Systems Agency, Attention: Security Division, MPS 6, 5111 Leesburg 
Pike, Suite 100, Falls Church, VA 22041.
    (9) Defense Intelligence Agency. Defense Intelligence Agency, 
Attention: DAN-1A (FOIA), Washington, DC 20340-5100.
    (10) Defense Logistics Agency. Defense Logistics Agency, 
Attention: DLA/DSS-S, 8725 John J. Kingman Road, Suite 2533, Fort 
Belvoir, VA 22060-6221.
    (11) Defense Security Service. Defense Security Service, Office 
of FOIA & Privacy, 1340 Braddock Place, Alexandria, VA 22314-1651.
    (12) Defense Threat Reduction Agency. Defense Threat Reduction 
Agency, Attention: SCR 8725 John J. Kingman Road, Fort Belvoir, VA 
22060-6201.
    (13) Missile Defense Agency. Missile Defense Agency, Attention: 
MDA/DS, 7100 Defense Pentagon, Washington, DC 20301-7100.
    (14) National Geospatial-Intelligence Agency. National 
Geospatial-Intelligence Agency, Mail Stop D-10, 4600 Sangamore Road, 
Bethesda, MD 20816-5003.
    (15) National Reconnaissance Office. National Reconnaissance 
Office, NRO-MSO-ASG-IMSC-IART', 14675 Lee Road, Chantilly, VA 20151-
1715.
    (16) National Security Agency/Central Security Service. National 
Security Agency, Declassification Office, DJP5, 9800 Savage Road, 
Suite 6884, Fort George G. Meade, MD 20755-6884.
    (17) North American Aerospace Defense Command. HQ NORAD/CSO, 250 
Vandenberg St. Ste B016, Peterson AFB, CO 80914.
    (18) U.S. Africa Command. US Africa Command, Unit 29951, ATTN: 
COS-FOIA, APO AE 09751.
    (19) U.S. Central Command. U.S. Central Command, Attention: 
CCJ6-RDD, 7115 South Boundary Blvd., MacDill AFB, FL 33621-5101.
    (20) U.S. European Command. U.S. European Command, Attention: 
ECJ1-AX, Unit 30400, APO AE 09131.
    (21) U.S. Joint Forces Command. U.S. Joint Forces Command, Code 
J02SM, 1562 Mitscher Ave., Suite 200, Norfolk, VA 23511-2488.
    (22) U.S. Northern Command. U.S. Northern Command, HQ 
USNORTHCOM/CSO, 250 Vandenberg Street, Suite B016, Peterson AFB, CO 
80914-3804.
    (23) U.S. Pacific Command. U.S. Pacific Command, Attention: J151 
FOIA, Box 64017, Camp Smith, HI 96861-4017.
    (24) U.S. Southern Command. U.S. Southern Command, Attention: 
SCJ2-SM-CFO (FOIA)''.3511 NW 91st Avenue, Miami, FL 33172-1217.
    (25) U.S. Special Operations Command. U.S. Special Operations 
Command, Attention: SOCS-SJS-SI (FOIA), 7701 Tampa Point Blvd., 
MacDill AFB, FL 33621-5323.
    (26) U.S. Strategic Command. U.S. Strategic Command, Attention: 
CS50, 901 SAC Blvd., STE 1C17, Offutt AFB, NE 68113-6000.
    (27) U.S. Transportation Command. U.S. Transportation Command, 
Chief, Command Information Management, ATTN: TCCSIM, 508 Scott 
Drive, Scott AFB IL 62225-5357.
    (28) Interagency Security Classification Appeals Panel http://www.archives.gov/isoo/oversight-groups/iscap/index.html.
    (29) Principal Mandatory Declassification Review (MDR) Contacts 
at Federal Agencies http://www.archives.gov/isoo/contact/mdr-contact.html.

    Dated: December 21, 2011.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2011-33104 Filed 12-23-11; 8:45 am]
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