DoD Mandatory Declassification Review (MDR) Program

[Federal Register Volume 76, Number 248 (Tuesday, December 27, 2011)]
[Rules and Regulations]
[Pages 80744-80747]

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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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