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[Federal Register: September 27, 2010 (Volume 75, Number 186)]
[Proposed Rules]               
[Page 59176-59179]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27se10-41]                         

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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 222

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

 
DoD Mandatory Declassification Review (MDR) Program

AGENCY: Department of Defense.

ACTION: Proposed 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: Comments must be received by November 26, 2010.

ADDRESSES: You may submit comments, identified by docket number and/or 
Regulatory Information Number (RIN) number and title, by any of the 
following methods:
     Federal Rulemaking Portal: 
http:[sol][sol]www.regulations.gov. Follow the instructions for 
submitting comments.
     Mail: Federal Docket Management System Office, 1160 
Defense Pentagon, Room 3C843, Washington, DC 20301-1160.
    Instructions: All submissions received must include the agency name 
and docket number and/or RIN number for this Federal Register document. 
The general policy for comments and other submissions from members of 
the public is to make these submissions available for public viewing on 
the Internet at http:[sol][sol]www.regulations.gov as they are received 
without change, including any personal identifiers or contact 
information.

FOR FURTHER INFORMATION CONTACT: Robert Storer, 703-696-2197.

SUPPLEMENTARY INFORMATION:

Executive Order 12866, ``Regulatory Planning and 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 
this Executive Order 12866, as amended by Executive Order 13422.

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.

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.
    Accordingly, 32 CFR part 222 is proposed to be 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 Policy.
222.5 Responsibilities.
222.6 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.\1\ 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.
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    \1\ Available at http:[sol][sol]www.dtic.mil/whs/directives/corres/pdf/520001p.pdf.
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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 
the Department of Defense (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. (1) Information provided to the 
United States Government by a foreign government or governments, an 
international organization of governments, or any element thereof, with 
the expectation that the information, the source of the information, or 
both, are to be held in confidence;
    (2) Information produced by the United States pursuant to or as a 
result of a joint arrangement with a foreign government or governments, 
or an international organization of governments, or any element 
thereof, requiring that the information, the arrangement, or both, are 
to be held in confidence; or
    (3) Information received and treated as ``Foreign Government 
Information'' under the terms of a predecessor order to E.O. 13526.
    Formal tracking system. A system designed to ensure DoD Component 
accountability and compliance. For each MDR request, the system shall 
contain as a minimum a unique tracking number, requester's name and 
organizational affiliation, information requested, date of receipt, and 
date of closure.

[[Page 59177]]

    Formerly Restricted Data. Information removed from the Restricted 
Data category upon a joint determination by the Department of Energy 
(or antecedent Agencies) and the Department of Defense that such 
information relates primarily to the military utilization of atomic 
weapons and that such information can be safeguarded adequately as 
classified defense information. For purposes of foreign dissemination, 
this information is treated in the same manner as Restricted Data.
    MDR. Review classified information for declassification in response 
to a declassification request that meets the requirements under section 
3.5 of Executive Order 13526.
    Restricted Data. All data concerning the following:
    (1) Design, manufacture or utilization of atomic weapons;
    (2) Production of special nuclear material; or
    (3) Use of special nuclear material in the production of energy, 
but shall not include data declassified or removed from the Restricted 
Data category under Section 142 of the Atomic Energy Act of 1954, as 
amended.
    Transclassification of Foreign Nuclear Information (TFNI). 
Classified information moved from the Restricted Data category to 
National Security Information (NSI) after the Department of Energy and 
the Director, National Intelligence jointly determine that it:
    (1) Concerns the atomic energy programs of other nations, and
    (2) It can be adequately safeguarded in a manner similar to NSI, 
and
    (3) It shall not be automatically declassified.

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) 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. (1) The DoD Components shall process MDR requests from 
the public for classified information originating within the DoD 
Component in accordance with title 32, Code of Federal Regulations 
(CFR), part 2001.
    (2) Information not subject to review for public release under the 
MDR includes:
    (i) Unclassified 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 the Freedom of 
Information Act (FOIA), section 552(b) of title 5, United States Code 
(U.S.C.) and 32 CFR part 286.
    (ii) Information 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).
    (iii) Information exempted from search and review by sections 431 
and 432 of title 50, U.S.C.
    (iv) 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.
    (v) Information marked as Restricted Data, Formerly Restricted 
Data, or Transclassification of Foreign Nuclear Information.
    (vi) Information that is the subject of pending litigation.
    (vii) 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.
    (b) MDR Requester Guidelines. Members of the public seeking the 
declassification of DoD documents under the provisions of section 3.5 
of Executive Order 13526 shall:
    (1) Address the written request to the appropriate DoD Component 
listed in the Appendix A to this part.
    (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, and/or 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 (j) 
of this section.
    (c) 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 
tracking number and date of receipt of the request.
    (d) Simultaneous MDR and FOIA Requests. DoD Components should be 
aware of possible requests under both the MDR and the FOIA. In 
accordance with section 2001.33(f) of 32 CFR part 2001, 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, then the DoD Component shall 
process the requested information under the FOIA.
    (e) 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. This line-by-line 
review must take into account the unique sensitivity of foreign 
government information (FGI) as outlined in paragraph (g) of this 
section. In accordance with section 3.6 (b) of Executive Order 13526, 
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

[[Page 59178]]

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 and current statutes, 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 (e)(3)(i) and 
(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. 32 CFR part 286 provides a more 
detailed explanation of the FOIA exemptions.
    (5) When this process is complete, the DoD Components shall redact 
all information determined 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.
    (f) Public Access. In the interest of transparency, the DoD 
Components should take efforts to post documents released under the MDR 
program on DoD Component Web sites.
    (g) FGI If a requested document originated with a foreign 
government or organization and was classified by that government or 
organization, the DoD Component shall:
    (1) Conduct an MDR review of the document in accordance with DoD 
5200.1-R.\2\
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    \2\ Available at http://www.dtic.mil/whs/directives/corres/pdf/520001r.pdf.
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    (2) Process mandatory declassification review requests for 
classified records containing foreign government information in 
accordance with this section. The declassifying agency is the agency 
that initially received or classified the information. When foreign 
government information is being considered for declassification, the 
declassifying agency shall determine whether the information is subject 
to a treaty or international agreement that does not permit automatic 
or unilateral declassification. The declassifying agency or the 
Department of State may consult with the foreign government(s) prior to 
declassification.
    (h) 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.
    (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 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 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.
    (i) 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 provision of Executive Order 13526, 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 
Appendix A of 32 CFR part 2001.

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 paragraph (b) of this 
Appendix, the MDR request should be directed to the Washington 
Headquarters Services address 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, 1155 Defense Pentagon, Washington, DC 
20301-1155. 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. Department of the Navy, Chief of 
Naval Operations, DNS-34, 2000 Navy Pentagon, Washington, DC 20350-
2000.
    (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 ARS, 2 Navy Annex, Room 1006, Washington, DC 20830-1775.
    (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-DDA-MSO-ASG-IMSC-IART, 14675 Lee Road, Chantilly, VA 
20151-1715.
    (16) National Security Agency/Central Security Service. National 
Security Agency,

[[Page 59179]]

Declassification Office, DJP5, 9800 Savage Road, Suite 6884, Fort 
George G. Meade, MD 20755-6884.
    (17) U.S. Africa Command. U.S. Africa Command, Unit 29951, APO 
AE 09751-9951.
    (18) U.S. Central Command. U.S. Central Command, Attention: 
CCJ6-RDD, 7115 South Boundary Blvd., MacDill AFB, FL 33621-5101.
    (19) U.S. European Command. U.S. European Command, Attention: 
ECJ1-AX, Unit 30400, APO AE 09131.
    (20) U.S. Joint Forces Command. U.S. Joint Forces Command, Code 
J024, 1562 Mitscher Ave., Suite 200, Norfolk, VA 23511-2488.
    (21) U.S. Northern Command. U.S. Northern Command, HQ 
USNORTHCOM/CSM, 250 Vandenberg Street, Suite B016, Peterson AFB, CO 
80914-3804.
    (22) U.S. Pacific Command. U.S. Pacific Command, Attention: J151 
FOIA, Box 64017, Camp Smith, HI 96861-4017.
    (23) U.S. Southern Command. U.S. Southern Command, Attention: 
SCJ1-A (FOIA), 3511 NW 91st Avenue, Miami, FL 33172-1217.
    (24) U.S. Special Operations Command. U.S. Special Operations 
Command, Attention: SOCS-SJS-SI (FOIA), 7701 Tampa Point Blvd., 
MacDill AFB, FL 33621-5323.
    (25) U.S. Strategic Command. U.S. Strategic Command, Attention: 
CS50, 901 SAC Blvd., STE 1C17, Offutt AFB, NE 68113-6000.
    (26) U.S. Transportation Command. U.S. Transportation Command, 
Chief, Resources Information, Communications, and Records 
Management, Attention: TCJ6-RII, 508 Scott Drive, Bldg. 1961, Scott 
AFB, IL 62225-5357.

    Dated: September 20, 2010.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.

[FR Doc. 2010-24094 Filed 9-24-10; 8:45 am]
BILLING CODE 5001-06-P
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