81_FR_24098 81 FR 24019 - Mandatory Declassification Review Program

81 FR 24019 - Mandatory Declassification Review Program

OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE

Federal Register Volume 81, Issue 79 (April 25, 2016)

Page Range24019-24022
FR Document2016-09252

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.

Federal Register, Volume 81 Issue 79 (Monday, April 25, 2016)
[Federal Register Volume 81, Number 79 (Monday, April 25, 2016)]
[Rules and Regulations]
[Pages 24019-24022]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-09252]


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OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE

32 CFR Part 1704


Mandatory Declassification Review Program

AGENCY: Office of the Director of National Intelligence.

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: The Office of the Director of National Intelligence (ODNI) is 
publishing this direct final rule pursuant to Executive Order 13526, 
relating to classified national security information. It provides 
procedures for members of the public to request from ODNI a Mandatory 
Declassification Review (MDR) of information classified under the 
provisions of Executive Order 13526 or predecessor orders such that the 
agency may retrieve it with reasonable effort. This rule also informs 
requesters where to send requests for an MDR.

DATES: This rule is effective June 24, 2016 without further action, 
unless adverse comment is received by May 25, 2016. If adverse comment 
is received, ODNI will publish a timely withdrawal of the rule in the 
Federal Register.

ADDRESSES: You may submit comments by any of the following methods: By 
mail to the Office of the Director of National Intelligence, Director 
of the Information Management Division, Washington, DC 20511, by 
facsimile at (703) 874-8910, or by email at [email protected].

FOR FURTHER INFORMATION CONTACT: Jennifer L. Hudson, (703) 874-8085.

SUPPLEMENTARY INFORMATION: It is the policy of the ODNI to act in 
matters relating to national security information in accordance with 
Executive Order 13526 and directives issued thereunder by the 
Information Security Oversight Office (ISOO). The purpose of this rule 
is to assist in implementing specific sections of Executive Order 13526 
concerning the Mandatory Declassification Review (MDR). This document 
is being issued as a direct final rule without prior notice of proposed 
rulemaking as allowed by the Administrative Procedure Act, 5 U.S.C. 
553(b)(3)(A) for rules of agency procedure and interpretation.

Regulatory Impact

    This rule is not a significant regulatory action for the purposes 
of Executive Order 12866. This rule is not a major rule as defined in 5 
U.S.C. Chapter 8, Congressional Review of Agency Rulemaking. As 
required by the Regulatory Flexibility Act, we certify that this rule 
will not have a significant impact on a substantial number of small 
entities because it applies only to federal agencies.

List of Subjects in 32 CFR Part 1704

    Declassification, Information, Intelligence, National security 
information.


0
For the reasons set forth in the preamble, ODNI adds 32 CFR part 1704 
to read as follows:

PART 1704--MANDATORY DECLASSIFICATION REVIEW PROGRAM

Sec.
1704.1 Authority and purpose.
1704.2 Definitions.
1704.3 Contact information.
1704.4 MDR program feedback.
1704.5 Guidance.
1704.6 Exceptions.
1704.7 Requirements.
1704.8 Fees.
1704.9 Determination by originator or interested party.
1704.10 Appeals.

    Authority:  50 U.S.C. 3001; E.O. 13526, 75 FR 707, 3 CFR, 2009 
Comp, p. 298.


Sec.  1704.1  Authority and purpose.

    (a) Authority. This part is issued under the authority of 32 CFR 
2001.33; Section 3.5 of Executive Order 13526 (or successor Orders); 
the National Security Act of 1947, as amended (50 U.S.C. 3001 et seq.).
    (b) Purpose. This part prescribes procedures, subject to 
limitations set forth below, for requesters to request a mandatory 
declassification review of information classified under Executive Order 
13526 or predecessor or successor orders. Section 3.5 of Executive 
Order 13526 and these regulations are not intended to and do not create 
any right

[[Page 24020]]

or benefit, substantive or procedural, enforceable at law by a party 
against the United States, its agencies, officers, employees, or 
agents, or any other person.


Sec.  1704.2  Definitions.

    For purposes of this part:
    Control means the authority of the agency that originates 
information, or its successor in function, to regulate access to the 
information. (32 CFR 2001.92)
    Day means U.S. Federal Government working day, which excludes 
Saturdays, Sundays, and federal holidays. Three (3) days may be added 
to any time limit imposed on a requester by this part if responding by 
U.S. domestic mail; ten (10) days may be added if responding by 
international mail.
    D/IMD means the Director of the Information Management Division and 
the leader of any successor organization, who serves as the ODNI's 
manager of the information review and release program.
    Federal agency means any Executive agency, as defined in 5 U.S.C. 
105; any Military department, as defined in 5 U.S.C. 102; and any other 
entity within the executive branch that comes into the possession of 
classified information.
    Information means any knowledge that can be communicated or 
documentary material, regardless of its physical form, that is owned 
by, produced by or for, or under the control of the U.S. Government; it 
does not include information originated by the incumbent President, 
White House Staff, appointed committees, commissions or boards, or any 
entities within the Executive Office that solely advise and assist the 
incumbent President.
    Interested party means any official in the executive, military, 
congressional, or judicial branches of government, or a U.S. Government 
contractor who, at the sole discretion of the ODNI, has a subject 
matter or other interest in the documents or information at issue.
    NARA means the National Archives and Records Administration.
    ODNI means the Office of the Director of National Intelligence.
    Order means Executive Order 13526, ``Classified National Security 
Information'' (December 29, 2009) or successor Orders.
    Originating element means the element that created the information 
at issue.
    Presidential libraries means the libraries or collection 
authorities established under the Presidential Libraries Act (44 U.S.C. 
2112) and similar institutions or authorities as may be established in 
the future.
    Referral means coordination with or transfer of action to an 
interested party.
    Requester means any person or organization submitting an MDR 
request.


Sec.  1704.3  Contact information.

    For general information on the regulation in this part or to submit 
a request for a MDR, please direct your communication by mail to the 
Office of the Director of National Intelligence, Director of the 
Information Management Division, Washington, DC 20511; by facsimile to 
(703) 874-8910; or by email to [email protected]. For general 
information on the ODNI MDR program or status information on pending 
MDR cases, call (703) 874-8500.


Sec.  1704.4  MDR program feedback.

    The ODNI welcomes suggestions for improving the administration of 
our MDR program in accordance with Executive Order 13526. Suggestions 
should identify the specific purpose and the items for consideration. 
The ODNI will respond to all communications and take such actions as 
determined feasible and appropriate.


Sec.  1704.5  Guidance.

    Address all communications to the point of contact as specified in 
Sec.  1704.3. Clearly describe, list, or label said communication as an 
MDR Request.


Sec.  1704.6  Exceptions.

    MDR requests will not be accepted from a foreign government entity 
or any representative thereof. MDR requests will not be accepted for 
documents required to be submitted for prepublication review or other 
administrative process pursuant to an approved nondisclosure agreement; 
for information that is the subject of pending litigation; nor for any 
document or material containing information from within an operational 
file exempted from search and review, publication, and disclosure under 
the FOIA. If the ODNI has reviewed the requested information for 
declassification within the past two years, the ODNI will not conduct 
another review, but the D/IMD will notify the requester of this fact 
and the prior review decision. Requests will not be accepted from 
requesters who have outstanding fees for MDR or FOIA requests with the 
ODNI or another federal agency.


1704.7  Requirements.

    An MDR request shall describe the document or material containing 
the information with sufficient specificity to enable the ODNI to 
locate it with a reasonable amount of effort.


1704.8  Fees.

    (a) In general. Any search, review, and reproduction fees will be 
charged in accordance with the provisions below relating to schedule, 
limitations, and category of requester. Applicable fees will be due 
even if a subsequent search locates no responsive records.
    (b) Agency discretion to waive fees. Records will be furnished 
without charge or at a reduced rate when ODNI determines that:
    (1) As a matter of administrative discretion, the interest of the 
United States Government would be served, or
    (2) It is in the public interest to provide responsive records 
because the disclosure is likely to contribute significantly to the 
public understanding of the operations or activities of the United 
States Government and is not primarily in the commercial interest of 
the requester.
    (c) Agreement to pay fees. If you request an MDR, it shall be 
considered a firm commitment by you to pay all applicable fees 
chargeable under this regulation, up to and including the amount of 
$25.00. When making a request, you may specify a willingness to pay a 
greater or lesser amount.
    (d) Advance payment. The ODNI may require an advance payment of up 
to 100 percent of the estimated fees when projected fees exceed 
$250.00, not including charges associated with the first 100 pages of 
production and two hours of search (when applicable), or when the 
requester previously failed to pay fees in a timely fashion, for fees 
of any amount. ODNI will hold in abeyance for 45 days those requests 
where advance payment has been requested.
    (e) Schedule of fees--(1) In general. The schedule of fees for 
services performed in responding to requests for records is as follows:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
                       Personnel Search and Review
------------------------------------------------------------------------
Clerical/Technical................  Quarter Hour........          $ 5.00
Professional/Supervisory..........  Quarter Hour........           10.00

[[Page 24021]]

 
Manager/Senior Professional.......  Quarter Hour........           18.00
------------------------------------------------------------------------
                     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



                                                                    Federal Register / Vol. 81, No. 79 / Monday, April 25, 2016 / Rules and Regulations                                            24019

                                                relationship between the loan and Y’s                   been made but for such relationship between           13526 and directives issued thereunder
                                                exempt activities. Accordingly, the loan is a           the guarantee and reimbursement                       by the Information Security Oversight
                                                program-related investment.                             arrangement and Y’s exempt activities.                Office (ISOO). The purpose of this rule
                                                   Example 18. X is a non-profit corporation            Accordingly, the guarantee and
                                                                                                                                                              is to assist in implementing specific
                                                that provides child care services in a low-             reimbursement arrangement is a program-
                                                income neighborhood, enabling many                      related investment.                                   sections of Executive Order 13526
                                                residents of the neighborhood to be gainfully                                                                 concerning the Mandatory
                                                employed. X meets the requirements of                     (c) Effective/applicability date.                   Declassification Review (MDR). This
                                                section 501(k) and is recognized as an                  Paragraphs (a)(2)(ii) and (b), Examples               document is being issued as a direct
                                                organization described in section 501(c)(3).            11 through 19 of this section, apply on               final rule without prior notice of
                                                X’s current child care facility has reached             or after April 25, 2016.                              proposed rulemaking as allowed by the
                                                capacity and has a long waiting list. X has                                                                   Administrative Procedure Act, 5 U.S.C.
                                                determined that the demand for its services             John Dalrymple,
                                                                                                        Deputy Commissioner for Services and                  553(b)(3)(A) for rules of agency
                                                warrants the construction of a new child care
                                                facility in the same neighborhood. X is                 Enforcement.                                          procedure and interpretation.
                                                unable to obtain a loan from conventional                 Approved: April 5, 2016.                            Regulatory Impact
                                                sources of funds including B, a commercial              Mark J. Mazur,
                                                bank because of X’s credit record. Pursuant                                                                     This rule is not a significant
                                                to a deposit agreement, Y, a private                    Assistant Secretary of the Treasury (Tax              regulatory action for the purposes of
                                                                                                        Policy).
                                                foundation, deposits $h in B, and B lends an                                                                  Executive Order 12866. This rule is not
                                                identical amount to X to construct the new              [FR Doc. 2016–09396 Filed 4–21–16; 4:15 pm]           a major rule as defined in 5 U.S.C.
                                                child care facility. The deposit agreement              BILLING CODE 4830–01–P                                Chapter 8, Congressional Review of
                                                requires Y to keep $h on deposit with B                                                                       Agency Rulemaking. As required by the
                                                during the term of X’s loan and provides that
                                                                                                                                                              Regulatory Flexibility Act, we certify
                                                if X defaults on the loan, B may deduct the
                                                                                                        OFFICE OF THE DIRECTOR OF                             that this rule will not have a significant
                                                amount of the default from the deposit. To
                                                facilitate B’s access to the funds in the event         NATIONAL INTELLIGENCE                                 impact on a substantial number of small
                                                of default, the agreement requires that the                                                                   entities because it applies only to
                                                funds be invested in instruments that allow             32 CFR Part 1704                                      federal agencies.
                                                B to access them readily. The deposit
                                                agreement also provides that Y will earn                Mandatory Declassification Review                     List of Subjects in 32 CFR Part 1704
                                                interest at a rate of t% on the deposit. The            Program                                                 Declassification, Information,
                                                t% rate is substantially less than Y could              AGENCY: Office of the Director of                     Intelligence, National security
                                                otherwise earn on this sum of money, if Y                                                                     information.
                                                invested it elsewhere. The loan agreement
                                                                                                        National Intelligence.
                                                between B and X requires X to use the                   ACTION: Direct final rule.                            ■ For the reasons set forth in the
                                                proceeds from the loan to construct the new                                                                   preamble, ODNI adds 32 CFR part 1704
                                                child care facility. Y’s primary purpose in             SUMMARY:   The Office of the Director of              to read as follows:
                                                making the deposit is to further its                    National Intelligence (ODNI) is
                                                educational purposes by enabling X to                   publishing this direct final rule                     PART 1704—MANDATORY
                                                provide child care services within the                  pursuant to Executive Order 13526,                    DECLASSIFICATION REVIEW
                                                meaning of section 501(k). No significant               relating to classified national security              PROGRAM
                                                purpose of the deposit involves the                     information. It provides procedures for
                                                production of income or the appreciation of             members of the public to request from                 Sec.
                                                property. The deposit significantly furthers            ODNI a Mandatory Declassification                     1704.1 Authority and purpose.
                                                the accomplishment of Y’s exempt activities                                                                   1704.2 Definitions.
                                                                                                        Review (MDR) of information classified
                                                and would not have been made but for such                                                                     1704.3 Contact information.
                                                relationship between the deposit and Y’s                under the provisions of Executive Order               1704.4 MDR program feedback.
                                                exempt activities. Accordingly, the deposit is          13526 or predecessor orders such that                 1704.5 Guidance.
                                                a program-related investment.                           the agency may retrieve it with                       1704.6 Exceptions.
                                                   Example 19. Assume the same facts as                 reasonable effort. This rule also informs             1704.7 Requirements.
                                                stated in Example 18, except that instead of            requesters where to send requests for an              1704.8 Fees.
                                                making a deposit of $h into B, Y enters into            MDR.                                                  1704.9 Determination by originator or
                                                a guarantee agreement with B. The guarantee             DATES: This rule is effective June 24,                     interested party.
                                                agreement provides that if X defaults on the                                                                  1704.10 Appeals.
                                                loan, Y will repay the balance due on the
                                                                                                        2016 without further action, unless
                                                                                                        adverse comment is received by May 25,                  Authority: 50 U.S.C. 3001; E.O. 13526, 75
                                                loan to B. B was unwilling to make the loan
                                                                                                        2016. If adverse comment is received,                 FR 707, 3 CFR, 2009 Comp, p. 298.
                                                to X in the absence of Y’s guarantee. X must
                                                use the proceeds from the loan to construct             ODNI will publish a timely withdrawal                 § 1704.1    Authority and purpose.
                                                the new child care facility. At the same time,          of the rule in the Federal Register.
                                                X and Y enter into a reimbursement
                                                                                                                                                                 (a) Authority. This part is issued
                                                                                                        ADDRESSES: You may submit comments                    under the authority of 32 CFR 2001.33;
                                                agreement whereby X agrees to reimburse Y               by any of the following methods: By
                                                for any and all amounts paid to B under the                                                                   Section 3.5 of Executive Order 13526 (or
                                                                                                        mail to the Office of the Director of                 successor Orders); the National Security
                                                guarantee agreement. The signed guarantee
                                                and reimbursement agreements together                   National Intelligence, Director of the                Act of 1947, as amended (50 U.S.C. 3001
                                                constitute a ‘‘guarantee and reimbursement              Information Management Division,                      et seq.).
                                                arrangement.’’ Y’s primary purpose in                   Washington, DC 20511, by facsimile at                    (b) Purpose. This part prescribes
                                                entering into the guarantee and                         (703) 874–8910, or by email at dni-                   procedures, subject to limitations set
jstallworth on DSK7TPTVN1PROD with RULES




                                                reimbursement arrangement is to further Y’s             FOIA@dni.gov.                                         forth below, for requesters to request a
                                                educational purposes. No significant purpose            FOR FURTHER INFORMATION CONTACT:                      mandatory declassification review of
                                                of the guarantee and reimbursement                      Jennifer L. Hudson, (703) 874–8085.
                                                arrangement involves the production of                                                                        information classified under Executive
                                                income or the appreciation of property. The             SUPPLEMENTARY INFORMATION: It is the                  Order 13526 or predecessor or successor
                                                guarantee and reimbursement arrangement                 policy of the ODNI to act in matters                  orders. Section 3.5 of Executive Order
                                                significantly furthers the accomplishment of            relating to national security information             13526 and these regulations are not
                                                Y’s exempt activities and would not have                in accordance with Executive Order                    intended to and do not create any right


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                                                24020                     Federal Register / Vol. 81, No. 79 / Monday, April 25, 2016 / Rules and Regulations

                                                or benefit, substantive or procedural,                                     Presidential libraries means the                                    notify the requester of this fact and the
                                                enforceable at law by a party against the                               libraries or collection authorities                                    prior review decision. Requests will not
                                                United States, its agencies, officers,                                  established under the Presidential                                     be accepted from requesters who have
                                                employees, or agents, or any other                                      Libraries Act (44 U.S.C. 2112) and                                     outstanding fees for MDR or FOIA
                                                person.                                                                 similar institutions or authorities as may                             requests with the ODNI or another
                                                                                                                        be established in the future.                                          federal agency.
                                                § 1704.2       Definitions.                                                Referral means coordination with or
                                                   For purposes of this part:                                           transfer of action to an interested party.                             1704.7       Requirements.
                                                   Control means the authority of the                                      Requester means any person or                                         An MDR request shall describe the
                                                agency that originates information, or its                              organization submitting an MDR                                         document or material containing the
                                                successor in function, to regulate access                               request.                                                               information with sufficient specificity to
                                                to the information. (32 CFR 2001.92)                                                                                                           enable the ODNI to locate it with a
                                                   Day means U.S. Federal Government                                    § 1704.3        Contact information.                                   reasonable amount of effort.
                                                working day, which excludes Saturdays,                                    For general information on the
                                                Sundays, and federal holidays. Three (3)                                regulation in this part or to submit a                                 1704.8       Fees.
                                                days may be added to any time limit                                     request for a MDR, please direct your                                     (a) In general. Any search, review,
                                                imposed on a requester by this part if                                  communication by mail to the Office of                                 and reproduction fees will be charged in
                                                responding by U.S. domestic mail; ten                                   the Director of National Intelligence,                                 accordance with the provisions below
                                                (10) days may be added if responding by                                 Director of the Information Management                                 relating to schedule, limitations, and
                                                international mail.                                                     Division, Washington, DC 20511; by                                     category of requester. Applicable fees
                                                   D/IMD means the Director of the                                      facsimile to (703) 874–8910; or by email                               will be due even if a subsequent search
                                                Information Management Division and                                     to DNI–FOIA@dni.gov. For general                                       locates no responsive records.
                                                the leader of any successor organization,                               information on the ODNI MDR program                                       (b) Agency discretion to waive fees.
                                                who serves as the ODNI’s manager of                                     or status information on pending MDR                                   Records will be furnished without
                                                the information review and release                                      cases, call (703) 874–8500.                                            charge or at a reduced rate when ODNI
                                                program.                                                                                                                                       determines that:
                                                   Federal agency means any Executive                                   § 1704.4        MDR program feedback.
                                                                                                                                                                                                  (1) As a matter of administrative
                                                agency, as defined in 5 U.S.C. 105; any                                   The ODNI welcomes suggestions for                                    discretion, the interest of the United
                                                Military department, as defined in 5                                    improving the administration of our                                    States Government would be served, or
                                                U.S.C. 102; and any other entity within                                 MDR program in accordance with                                            (2) It is in the public interest to
                                                the executive branch that comes into the                                Executive Order 13526. Suggestions                                     provide responsive records because the
                                                possession of classified information.                                   should identify the specific purpose and                               disclosure is likely to contribute
                                                   Information means any knowledge                                      the items for consideration. The ODNI                                  significantly to the public
                                                that can be communicated or                                             will respond to all communications and                                 understanding of the operations or
                                                documentary material, regardless of its                                 take such actions as determined feasible                               activities of the United States
                                                physical form, that is owned by,                                        and appropriate.                                                       Government and is not primarily in the
                                                produced by or for, or under the control
                                                                                                                        § 1704.5        Guidance.                                              commercial interest of the requester.
                                                of the U.S. Government; it does not
                                                include information originated by the                                     Address all communications to the                                       (c) Agreement to pay fees. If you
                                                incumbent President, White House                                        point of contact as specified in § 1704.3.                             request an MDR, it shall be considered
                                                Staff, appointed committees,                                            Clearly describe, list, or label said                                  a firm commitment by you to pay all
                                                commissions or boards, or any entities                                  communication as an MDR Request.                                       applicable fees chargeable under this
                                                within the Executive Office that solely                                                                                                        regulation, up to and including the
                                                advise and assist the incumbent
                                                                                                                        § 1704.6        Exceptions.                                            amount of $25.00. When making a
                                                President.                                                                 MDR requests will not be accepted                                   request, you may specify a willingness
                                                   Interested party means any official in                               from a foreign government entity or any                                to pay a greater or lesser amount.
                                                the executive, military, congressional, or                              representative thereof. MDR requests                                      (d) Advance payment. The ODNI may
                                                judicial branches of government, or a                                   will not be accepted for documents                                     require an advance payment of up to
                                                U.S. Government contractor who, at the                                  required to be submitted for                                           100 percent of the estimated fees when
                                                sole discretion of the ODNI, has a                                      prepublication review or other                                         projected fees exceed $250.00, not
                                                subject matter or other interest in the                                 administrative process pursuant to an                                  including charges associated with the
                                                documents or information at issue.                                      approved nondisclosure agreement; for                                  first 100 pages of production and two
                                                   NARA means the National Archives                                     information that is the subject of                                     hours of search (when applicable), or
                                                and Records Administration.                                             pending litigation; nor for any                                        when the requester previously failed to
                                                   ODNI means the Office of the Director                                document or material containing                                        pay fees in a timely fashion, for fees of
                                                of National Intelligence.                                               information from within an operational                                 any amount. ODNI will hold in
                                                   Order means Executive Order 13526,                                   file exempted from search and review,                                  abeyance for 45 days those requests
                                                ‘‘Classified National Security                                          publication, and disclosure under the                                  where advance payment has been
                                                Information’’ (December 29, 2009) or                                    FOIA. If the ODNI has reviewed the                                     requested.
                                                successor Orders.                                                       requested information for                                                 (e) Schedule of fees—(1) In general.
                                                   Originating element means the                                        declassification within the past two                                   The schedule of fees for services
                                                element that created the information at                                 years, the ODNI will not conduct                                       performed in responding to requests for
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                                                issue.                                                                  another review, but the D/IMD will                                     records is as follows:

                                                                                                                                   Personnel Search and Review

                                                Clerical/Technical ............................................................................................   Quarter Hour ..........................................................   $ 5.00
                                                Professional/Supervisory ................................................................................         Quarter Hour ..........................................................    10.00




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                                                                           Federal Register / Vol. 81, No. 79 / Monday, April 25, 2016 / Rules and Regulations                                                                                      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                                 without clear evidence. ODNI will not                                     1704.10        Appeals.
                                                search time includes time expended in                                     aggregate multiple unrelated requests.                                       (a) Administrative. Appeals of initial
                                                manual paper records searches, indices                                                                                                              decisions must be received in writing by
                                                searches, review of computer search                                       1704.9 Determination by originator or                                     the D/IMD within 60 days of the date of
                                                results for relevance, and personal                                       interested party.                                                         mailing of the ODNI’s decision. The
                                                computer system searches. In any event                                      (a) In general. The originating                                         appeal must identify with specificity the
                                                in which the actual cost to ODNI of a                                     element(s) of the classified information                                  documents or information to be
                                                particular item is less than the above                                    (document) is always an interested party                                  considered on appeal and it may, but
                                                schedule (e.g., a large production run of                                 to any mandatory declassification                                         need not, provide a factual or legal basis
                                                a document resulting in a cost less than                                  review. Other interested parties may                                      for the appeal.
                                                $5.00 per hundred pages), then the                                        become involved through a referral by                                        (1) Exceptions. No appeal shall be
                                                actual lesser cost will be charged.                                       the D/IMD when it is determined that                                      accepted from a foreign government
                                                   (3) Other services. For all other types                                                                                                          entity or any representative thereof.
                                                                                                                          some or all of the information is also
                                                of output, production, or reproduction                                                                                                              Appeals will not be accepted for
                                                                                                                          within their official cognizance.
                                                (e.g., photographs, maps, or published                                                                                                              documents required to be submitted for
                                                reports), ODNI will charge actual cost or                                   (b) Required determinations: These                                      prepublication review or other
                                                amounts authorized by statute.                                            parties shall respond in writing to the                                   administrative process pursuant to an
                                                Determinations of actual cost shall                                       D/IMD with a finding as to the classified                                 approved nondisclosure agreement; for
                                                include the commercial cost of the                                        status of the information, including the                                  information that is the subject of
                                                media, the personnel time expended in                                     category of protected information as set                                  pending litigation; nor for any
                                                making the item to be released, and an                                    forth in section 1.4 of the Order, and if                                 document or material containing
                                                allocated cost of the equipment used in                                   older than ten years, the basis for the                                   information from within an operational
                                                making the item, or, if the production is                                 extension of classification time under                                    file exempted from search and review,
                                                effected by a commercial service, then                                    sections 1.5 and 3.3 of the Order. These                                  publication, and disclosure under the
                                                that charge shall be deemed the actual                                    parties shall also indicate whether                                       FOIA. No appeals shall be accepted if
                                                cost for purposes of this regulation.                                     withholding is otherwise authorized                                       the requester has outstanding fees for
                                                   (f) Limitations on collection of fees—                                 and warranted in accordance with                                          information services at ODNI or another
                                                (1) In general. No fees will be charged                                   sections 3.5(c) and 6.2(d) of the Order.                                  federal agency. In addition, no appeal
                                                if the cost of collecting the fee is equal                                                                                                          shall be accepted if the information in
                                                                                                                            (c) Time. Responses to the requester
                                                to or greater than the fee itself. That cost                                                                                                        question has been the subject of a
                                                                                                                          shall be provided on a first-in/first-out
                                                includes the administrative costs to                                                                                                                declassification review within the
                                                                                                                          basis, taking into account the business
                                                ODNI of billing, receiving, recording,                                                                                                              previous two years.
                                                                                                                          requirements of the originating
                                                and processing the fee for deposit to the                                                                                                              (2) Receipt, recording, and tasking.
                                                                                                                          element(s) and other interested parties,
                                                Treasury Department and, as of the date                                                                                                             The D/IMD will record each appeal
                                                                                                                          and, in accordance with Executive
                                                of these regulations, is deemed to be                                                                                                               received under this part and
                                                                                                                          Order 13526, ODNI will respond to
                                                $10.00.                                                                                                                                             acknowledge receipt to the requester.
                                                   (g) Associated requests. If it appears                                 requesters within one year of the receipt
                                                                                                                                                                                                       (3) Appellate authority. The ODNI
                                                that a requester or a group of requesters                                 of requests.
                                                                                                                                                                                                    Chief Management Officer (CMO), after
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                                                acting in concert have requested                                            (d) Deciding official. The IMD FOIA                                     consultation with all interested parties
                                                portions of an apparently unitary                                         Branch Chief, in consultation with the                                    or ODNI component organizations, as
                                                request for the purpose of avoiding the                                   D/IMD and the Classification                                              well as the Office of General Counsel,
                                                assessment of fees, ODNI may aggregate                                    Management Branch Chief, will                                             will make a final determination on the
                                                any such requests and charge                                              ordinarily be the deciding official on                                    appeal within 60 days.
                                                accordingly. Requests from multiple                                       initial reviews of MDR requests to the                                       (b) Final appeal. The D/IMD will
                                                requesters will not be aggregated                                         ODNI.                                                                     prepare and communicate the ODNI


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                                                24022               Federal Register / Vol. 81, No. 79 / Monday, April 25, 2016 / Rules and Regulations

                                                administrative appeal decision to the                   deviation for the US 165 (Jackson Street)             West of Hale’iwa small boat harbor. The
                                                requester, NARA, Presidential library,                  Drawbridge, across the Red River, mile                safety zone will encompass all waters
                                                and referring agency, as appropriate.                   88.6, at Alexandria, Louisiana. This                  extending one nautical mile in all
                                                Correspondence will include a notice, if                deviation allows the bridge to remain in              directions around the location of
                                                applicable, that a further appeal of                    the closed-to-navigation position from 8              ongoing salvage operations, as described
                                                ODNI’s final decision may be made to                    a.m. on May 31, 2016 to 8 p.m. on June                below. The safety zone is needed to
                                                the Interagency Security Classification                 2, 2016 and from 8 a.m. on June 7, 2016               protect personnel, vessels, and the
                                                Appeals Panel (ISCAP) established                       to 8 p.m. on June 9, 2016. This deviation             marine environment from potential
                                                pursuant to section 5.3 of Executive                    is necessary for the bridge owner to                  hazards associated with ongoing
                                                Order 13526. Action by that Panel will                  install new pinion bearings.                          operations to salvage the remains of two
                                                be the subject of rules to be promulgated                  The US 165 (Jackson Street)                        downed helicopters in this area. A
                                                by the Information Security Oversight                   Drawbridge currently operates in                      temporary safety zone was previously
                                                Office.                                                 accordance with 33 CFR 117.491(b).                    enforced in the same area from March
                                                  Dated: April 12, 2016.
                                                                                                           The US 165 (Jackson Street)                        4, 2016 through April 01, 2016 to
                                                                                                        Drawbridge provides a vertical                        protect personnel, vessels, and the
                                                Mark W. Ewing,
                                                                                                        clearance of 40.0 feet above normal pool              marine environment from the potential
                                                Chief Management Officer.                               in the closed-to-navigation position.                 hazards associated with these salvage
                                                [FR Doc. 2016–09252 Filed 4–22–16; 8:45 am]             Navigation on the waterway consists                   operations. A new temporary safety
                                                BILLING CODE 9500–01–P                                  primarily of commercial tows and                      zone in the area is necessary to
                                                                                                        recreational watercraft and will not be               complete recovery of the debris from the
                                                                                                        significantly impacted. This temporary                helicopters. Entry of vessels or persons
                                                DEPARTMENT OF HOMELAND                                  deviation has been coordinated with                   into this zone is prohibited unless
                                                SECURITY                                                waterway users. No objections were                    specifically authorized by the Captain of
                                                                                                        received.                                             the Port (COTP) Honolulu or his
                                                Coast Guard                                                The bridge will not be able to open for            designated representative.
                                                                                                        emergencies and there are no alternate                DATES: This rule is effective without
                                                33 CFR Part 117                                         routes for vessels transiting this section            actual notice from April 25, 2016
                                                [Docket No. USCG–2016–0196]                             of the Red River. The Coast Guard will                through 3:00 p.m. (HST) on April 29,
                                                                                                        also inform the users of the waterways                2016. For the purposes of enforcement,
                                                Drawbridge Operation Regulation; Red                    through our Local and Broadcast                       actual notice will be used from 3:00
                                                River, Alexandria, LA                                   Notices to Mariners of the change in                  p.m. (HST) on April 1, 2016 until April
                                                                                                        operating schedule for the bridge so the              25, 2016.
                                                AGENCY: Coast Guard, DHS.                               vessel operators can arrange their                    ADDRESSES: To view documents
                                                ACTION:Notice of deviation from                         transits to minimize any impact caused                mentioned in this preamble as being
                                                drawbridge regulations.                                 by the temporary deviation.                           available in the docket, go to http://
                                                                                                           In accordance with 33 CFR 117.35(e),               www.regulations.gov, type USCG–2016–
                                                SUMMARY:   The Coast Guard has issued a
                                                                                                        the drawbridge must return to its regular             0272 in the ‘‘SEARCH’’ box and click
                                                temporary deviation from the operating
                                                                                                        operating schedule immediately at the                 ‘‘SEARCH.’’ Click on Open Docket
                                                schedule that governs the US 165
                                                                                                        end of the effective period of this                   Folder on the line associated with this
                                                (Jackson Street) Drawbridge across the
                                                                                                        temporary deviation. This deviation                   rule.
                                                Red River, mile 88.6, at Alexandria,
                                                                                                        from the operating regulations is                     FOR FURTHER INFORMATION CONTACT: If
                                                Louisiana. The deviation is necessary to
                                                                                                        authorized under 33 CFR 117.35.                       you have questions concerning this rule,
                                                allow the bridge owner time to install
                                                new pinion bearings essential to the                      Dated: April 20, 2016.                              call or email Lieutenant Commander
                                                continued safe operation of the                         Eric A. Washburn,                                     Nicolas Jarboe, Waterways Management
                                                drawbridge. This deviation allows the                   Bridge Administrator, Western Rivers.                 Division, U.S. Coast Guard Sector
                                                bridge to remain in the closed-to-                      [FR Doc. 2016–09524 Filed 4–22–16; 8:45 am]           Honolulu at (808) 541–4359 or
                                                navigation position for approximately 6                 BILLING CODE 9110–04–P
                                                                                                                                                              nicolas.a.jarboe@uscg.mil, respectively.
                                                days spanning a 2-week period.                                                                                SUPPLEMENTARY INFORMATION:
                                                DATES: This deviation is effective from                                                                       I. Table of Abbreviations
                                                May 31, 2016 through June 9, 2016.                      DEPARTMENT OF HOMELAND
                                                                                                        SECURITY                                              CFR Code of Federal Regulations
                                                ADDRESSES: The docket for this                                                                                DHS Department of Homeland Security
                                                deviation, (USCG–2016–0196) is                                                                                FR Federal Register
                                                                                                        Coast Guard
                                                available at http://www.regulations.gov.                                                                      NPRM Notice of proposed rulemaking
                                                Type the docket number in the                                                                                 § Section
                                                                                                        33 CFR Part 165                                       U.S.C. United States Code
                                                ‘‘SEARCH’’ box and click ‘‘SEARCH.’’
                                                Click on Open Docket Folder on the line                 [Docket Number USCG–2016–0272]                        COTP Captain of the Port
                                                associated with this deviation.                         RIN 1625–AA00                                         II. Background Information and
                                                FOR FURTHER INFORMATION CONTACT: If                                                                           Regulatory History
                                                you have questions on this temporary                    Safety Zone; Pacific Ocean, North                        On January 15, 2016, the Coast Guard
                                                deviation, call or email Eric A.                        Shore Oahu, HI—Recovery Operations                    was informed of a helicopter crash off
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                                                Washburn, Bridge Administrator,                                                                               the North Shore of Oahu between
                                                                                                        AGENCY:    Coast Guard, DHS.
                                                Western Rivers, Coast Guard; telephone                                                                        Ka’Ena Point and Kahuku Point. The
                                                314–269–2378, email Eric.Washburn@                      ACTION:   Temporary final rule.
                                                                                                                                                              COTP Honolulu determined that
                                                uscg.mil.                                               SUMMARY:   The Coast Guard is                         potential hazards associated with the
                                                SUPPLEMENTARY INFORMATION:  The                         establishing a temporary safety zone for              salvage efforts constitute a safety
                                                Louisiana Department of Transportation                  the navigable waters of the North Shore               concern for anyone within the
                                                and Development requested a temporary                   of Oahu approximately 2.5NM North                     designated safety zone. This rule is


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Document Created: 2016-04-23 01:39:07
Document Modified: 2016-04-23 01:39:07
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionDirect final rule.
DatesThis 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.
ContactJennifer L. Hudson, (703) 874-8085.
FR Citation81 FR 24019 
CFR AssociatedDeclassification; Information; Intelligence and National Security Information

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