[Federal Register Volume 79, Number 102 (Wednesday, May 28, 2014)]
[Rules and Regulations]
[Pages 30463-30469]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-12099]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 300

Defense Logistics Agency

32 CFR Part 1285

[Docket ID: DOD-2012-OS-0019]
RIN 0790-AI87


Defense Logistics Agency Freedom of Information Act Program

AGENCY: Defense Logistics Agency, DoD.

ACTION: Final rule.

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SUMMARY: The Defense Logistics Agency (DLA) is revising and updating 
its existing rule concerning the DLA Freedom of Information Act (FOIA) 
Program. This rule implements changes to conform to the requirements of 
the Electronic Freedom of Information Act Amendments of 1996, and the 
OPEN Government Act of 2007. In addition, part 1285 will be 
redesignated as part 300.

DATES: Effective Date: This rule is effective June 27, 2014.

FOR FURTHER INFORMATION CONTACT: Ms. Deborah Teer, (703) 767-5247.

SUPPLEMENTARY INFORMATION: This rule supplements 32 CFR part 286 to 
accommodate specific requirements of DLA's FOIA Program.

Executive Summary

I. Purpose of This Regulatory Action
    a. This rule assigns responsibilities and establishes policies 
and procedures for a uniform DLA Freedom of Information Act program 
pursuant to the provisions of the Freedom of Information Act.
    b. Authority: 5 U.S.C. 552
II. Summary of the Major Provisions of This Regulatory Action
    This rule implements changes to conform to the requirements of 
the Electronic Freedom of Information Act Amendments of 1996, Public 
Law 104-231, and the OPEN Government Act of 2007, Public Law 110-
175.
III. Costs and Benefits of This Regulatory Action
    This regulatory action imposes no monetary costs to the Agency 
or public. The benefit to the public is the accurate reflection of 
the Agency's FOIA Program to ensure that policies and procedures are 
known to the public.

REGULATORY PROCEDURES

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

    It has been certified that 32 CFR part 300 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 sector of the economy; 
productivity; competition; jobs; the environment; public health or 
safety; or State, local, or tribal 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.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. Chapter 6)

    It has been determined that 32 CFR part 300 is not subject to the 
Regulatory Flexibility Act because it would not, if promulgated, have 
significant economic

[[Page 30464]]

impact on a substantial number of small entities.

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

    It has been determined that 32 CFR part 300 does not impose 
reporting or recordkeeping requirements under the Paperwork Reduction 
Act of 1995.

Public Law 104-4, Unfunded Mandates Reform Act of 1995

    It has been certified that 32 CFR part 300 does not contain any 
unfunded mandate or significantly or uniquely affect small governments, 
as described in the Unfunded Mandates Reform Act of 1995.

Executive Order 13132, Federalism

    It has been certified that 32 CFR part 300 does not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132.

Executive Order 13045, Protection of Children From Environmental Health 
Risks and Safety Risks

    32 CFR part 300 is not subject to Executive Order 13045.

Public Comments

    The proposed rule was published on October 15, 2012 at 77 FR 62469. 
A discussion of the comments and the changes made to the proposed rule 
as a result of those comments are provided as follows:

1. General Comments

    Comments: Office of Government Information Services (OGIS) and 
Electronic Privacy Information Center (EPIC) commends DLA for the 
emphasis on customer service and electronic databases in the proposed 
rule.
    Response: Although no response is required, DLA appreciates all 
comments.

2. Out-of-Scope Comments

    Comments: Several respondents stated that DLA does not offer any 
changes to existing regulatory exemptions governing the Agency under 
the Freedom of Information Act (FOIA). DLA assumes the continuing 
viability of these exemptions. However, in Milner v. Department of the 
Navy, 131 S.Ct. 1259 (2011), the Supreme Court reversed the lower court 
interpretation of certain of the FOIA statutory exemptions, upon which 
interpretation the exemptions regulations relied. The present Comment 
urges DLA and the Department of Defense (DoD) to revisit these 
regulatory exemptions and to recraft them both to comply with the 
Court's Milner holding and to clarify the proper regulatory 
interpretation of the statutory exemptions.
    EPIC makes a number of comments on the wording of 32 CFR part 286, 
DoD FOIA Program Regulation.
    Response: The purpose of this rule is to implement 32 CFR part 286. 
Issues relating to the scope or coverage of 32 CFR part 286 are outside 
the scope of this final rule.

3. Specific Comments

Sec.  300.3 Definitions
    Comment: EPIC suggests adding language to make clear that this 
section is intended to supplement 32 CFR part 286.
    Response: The final rule opening paragraph has been revised to 
state that other definitions may be found in 32 CFR part 286, Subpart 
A.
    Comment: OGIS suggests adding terms, including requester category 
and fee waiver, to the glossary. OGIS has found that even experienced 
requesters can still confuse those terms. Additionally, because DLA 
refers to both in Sec.  300.3(l), this will ensure shared 
understanding.
    Response: The final rule has been revised to include the requester 
category. The definition of fee waiver is unnecessary as DLA adopts 
Subpart F of 32 CFR part 286 which defines fee waiver.
    (a) Administrative Appeal.
    Comment: EPIC suggests adding language to state that failure to 
respond within the statutory time limit is appealable.
    Response: The final rule definition has been revised.
    (b) Adverse Determination.
    Comment: EPIC suggests adding language to state that definition 
includes but is not limited to.
    Response: The final rule definition has been revised.
    (d) Consultation.
    Comment: EPIC suggests amending the definition to clarify when 
consultation is necessary.
    Response: The final rule has been revised.
    (e) Defense Freedom of Information Program Office.
    Comment: EPIC suggests changing the word Program to Policy.
    Response: The final rule has been revised.
    (g) DLA Component.
    Comment: EPIC suggests modifying the current definition will result 
in limitless authority to any delegate within DLA to deny FOIA 
requests.
    Response: DLA will not retain the current definition. Due to DLA 
reorganization of Components, including FOIA offices, not all 
components are authorized to receive and act independently on FOIA 
requests. To address EPIC's comment, DLA incorporates language from the 
DoD FOIA Program Regulation directing DLA Components to limit the 
number of IDAs appointed and to balance the goals of centralization of 
authority to promote uniform decisions and decentralization to 
facilitate responding to each request within the time limitations of 
the FOIA. Refer to definition (o) DLA FOIA Requester Service Center.
    Comment: (l) FOIA Public Liaison. OGIS applauds DLA for including 
FOIA Public Liaison in its Definitions section and suggests additional 
language to reflect the position's statutorily enhanced role in the 
2007 FOIA amendments that comes directly from 5 U.S.C. 552(l).
    Response: The final rule has been revised to expand the definition 
of FOIA Public Liaison.
    Comment: (m) FOIA Request. EPIC suggests retaining current DLA 
definition.
    Response: The final rule definition is amended in part. The 
definition does not require advance payment but to state a willingness 
to pay fees should they be assessed. See current regulation at 
1285.5(d). DLA does not deny a request if a willingness to pay fees is 
not indicated but before processing begins the requester is contacted 
to obtain a fee declaration.
Sec.  300.4 Policy
    (a) General.
    Comment: EPIC suggests that the proposed changes provide the agency 
with greater discretion to deny FOIA requests.
    Response: DLA has amended this paragraph, since this regulation 
does not impact disclosures outside of FOIA (refer to DoD Directive 
5230.09, Clearance of DoD Information for Public Release).
    (c) Creating a Record.
    Comment: EPIC suggests the regulations would significantly limit 
the circumstances under which DLA will process a FOIA request.
    Response: DLA partially accommodates EPIC's comment regarding 
agency burden and significant inference with business as usual.
    (d) Consultations and Referrals.
    Comment: OGIS suggests that in addition to the adoption of 32 CFR 
part 286, Subpart A, 286.4(i) and 286.22(e), Policy, that DLA offices 
notify requesters in writing of a referral, and

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the part of the request that has been referred and the name of a 
contact at the other agency.
    Response: The final rule implements this section of 32 CFR part 
286, Subpart A, 286.4(i), which incorporates OGIS's suggestion.
    Comment: EPIC suggests DLA not adopt 32 CFR part 286, Subpart A, 
286.4 unless it is revised.
    Response: DLA adheres to DoD policies, to create uniformity across 
DoD which provides greater understanding of the DoD FOIA Program to 
requesters. Paragraph 300.7(d) contains the language recommended by 
EPIC in its comment (B).
Sec.  300.6 General
    (a)(2) Requests from the public.
    Comment: EPIC states that the new language gives DLA unharnessed 
discretion whether to comply with time limits; unnecessarily delay the 
processing of FOIA requests; and contains a broken link.
    Response: Per 32 CFR 310.17(i), DLA is required by law to abide by 
the statutory time limit. DLA has revised this paragraph to re-
emphasize that requirement; and included a link to the homepage of DoD 
Issuances.
Sec.  300.7 FOIA Request Processing Procedures
    (a) Receipt and Control.
    Comment: OGIS suggests including a new subsection that addresses 
acknowledgment of a request. Specifically OGIS suggests that DLA state 
that it will provide an acknowledgment letter confirming receipt of a 
request that includes the unique tracking number as well as a brief 
description of the subject of the request. This would help requesters 
as well as the agency keep track of multiple pending requests.
    Response: Per 5 U.S.C. 552(a)(7)(A), the final rule has been 
revised at Sec.  300.7 (a)(4) to include acknowledgement of a FOIA 
request.
    (a)(2) Receipt and Control.
    Comment: EPIC states that the proposed language increases the 
burden on the requester to produce errorless requests and suggests 
addressing tolling the time limit due to defects. EPIC suggests that 
sentences be struck from this section. EPIC also states the proposed 
language outright bans referrals outside the DoD.
    Response: At the screening phase a request that is not perfected 
cannot be tolled. There is no ban of referrals outside of DoD, to the 
contrary, DLA refers records to the originating agency both inside and 
outside of DoD. The regulation is revised to address tolling and the 
language relating to misdirected requests is removed.
    (b) Multi-track processing.
    Comment: EPIC believes that DLA is supplanting the statute with 
this section as it reduces the ``unusual circumstances'' provision of 
the agency.
    Response: Pursuant to the authority granted by 5 U.S.C. 
552(a)(6)(D), DLA's establishment of multi-track processing complies 
with DoD regulation and assists both DLA and the requester in 
recognizing when the request is complex in nature due to ``unusual 
circumstances,'' and may require an additional ten days for processing. 
DLA's focus on customer service ensures the requester is informed of 
its processes and the use of multi-track assists DLA and requesters in 
achieving better response times.
    (d) Misdirected requests.
    Comment: EPIC recommends retaining the language in the current 
regulation.
    Response: DLA has amended this paragraph based on guidance in both 
the DOJ FOIA Guide and DoD regulation. DLA is not required to forward 
misdirected requests to outside DoD agencies.
Sec.  300.8 Initial Determinations
(a)
    Comment: OGIS suggests including additional information addressing 
the content of the denial letter. Specifically, OGIS suggests providing 
a brief description of the information DLA is withholding if it is 
possible without revealing exempt information. OGIS also recommends 
that DLA specifically address the new requirements in 5 U.S.C. 552(b) 
that agencies shall (1) indicate, if technically feasible, the precise 
amount of information deleted and the exemption under which the 
deletion is made at the place in the record where the deletion is made, 
and (2) indicate the exemption under which a deletion is made on the 
released portion of the record, unless including that indication would 
harm an interest protected by the exemption.
    Response: The final rule has been revised at Sec.  300.8(c) to 
include the elements of an initial determination response letter.
(b)
    Comment: EPIC states that the proposed rule eliminates the mention 
of advising a requester when segregation was not reasonable when a 
release is denied in full.
    Response: The final rule has been revised at Sec.  300.9(c) to 
address EPIC's comment. DLA does not deny records in full on the 
grounds of reasonable segregability. Full denials are based on FOIA 
exemptions and should be appealed on this basis.
Sec.  300.9 Appeals
    Comment: EPIC suggests language adding the right to appeal if the 
requester receives no determination. This subsection changes the window 
of time in which requesters may file an appeal from sixty to thirty 
calendar days.
    Response: DLA has revised the definition of an adverse 
determination (see Sec.  300.3(b)) to include this language. The length 
of time to appeal is set by DoD, therefore, is outside the scope of 
DLA's authority.
Sec.  300.10 Mediation Services
    Comment: OGIS suggests renumbering the current Sec.  300.10 as 
Sec.  300.11 and inserting a new Sec.  300.10 to inform requesters of 
the mediation services provided by OGIS to resolve disputes between 
FOIA requesters and DLA in accordance with FOIA and DoD policy.
    Response: DLA recognized the value of mediation and appreciates its 
role in the FOIA process, however, DoD has not established guidelines 
for using mediation services provided by OGIS to resolve disputes 
between FOIA requesters and the Agency, therefore this comment is not 
adopted.
Sec.  300.11 General
    Comment: OGIS suggests that in addition to the adoption of 32 CFR 
part 286, Subpart F, Fee Schedule that DLA address fee estimates and 
administrative waiver of fees.
    Response: The purpose of this rule is to implement 32 CFR part 286 
and DLA finds it unnecessary to duplicate information published by DoD.

List of Subjects in 32 CFR Parts 300 and 1285

    Freedom of Information Act.

    For the reasons stated in the preamble, DoD amends 32 CFR chapters 
I and XII as follows:

TITLE 32--NATIONAL DEFENSE

CHAPTER I--OFFICE OF THE SECRETARY OF DEFENSE

CHAPTER XII--DEFENSE LOGISTICS AGENCY

PART 1285 [REDESIGNATED AS PART 300 AND TRANSFERRED TO CHAPTER I]

0
1. Part 1285 is redesignated as part 300 and transferred from chapter 
XII, subchapter B, to chapter I, subchapter N.

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0
2. Newly redesignated part 300 is revised to read as follows:

PART 300--DEFENSE LOGISTICS AGENCY FREEDOM OF INFORMATION ACT 
PROGRAM

Subpart A--General Provisions
Sec.
300.1 Purpose.
300.2 DLA FOIA regulatory precedence.
300.3 Definitions.
300.4 Policy.
Subpart B--Exemptions
Sec.
300.5 General.
Subpart C--FOIA Request Processing
Sec.
300.6 General.
300.7 FOIA request processing procedures.
300.8 Initial determinations.
300.9 Appeals.
300.10 Judicial actions.
Subpart D--Fees and Fee Waivers
Sec.
300.11 General.

Appendix A to Part 300--Access to DLA Records

     Authority:  5 U.S.C. 552.

Subpart A--General Provisions


Sec.  300.1  Purpose.

    This part provides policies and procedures for the Defense 
Logistics Agency (DLA) implementation of the Freedom of Information Act 
(FOIA) (5 U.S.C. 552). This part supplements and implements the 
Department of Defense (DoD) FOIA Program Directive (32 CFR part 285) 
and DoD FOIA Program Regulation (32 CFR part 286). This part applies to 
DLA Components and takes precedence over all DLA regulations that 
supplement the FOIA program.


Sec.  300.2  DLA FOIA regulatory precedence.

    This part is published in accordance with the authority contained 
in 5 U.S.C. 552 and 32 CFR parts 285 and 286. It supplements 32 CFR 
part 286 to accommodate specific requirements of DLA's FOIA Program. 
For all FOIA issues not covered by this part, the rules set forth in 32 
CFR part 286 will govern.


Sec.  300.3  Definitions.

    Definitions not included in this subpart may be found in 32 CFR 
part 286, subpart A. The following terms and meanings apply for the 
purposes of this part:
    (a) Administrative appeal. A written request by a member of the 
public, made under the FOIA, to DLA's Appellate Authority requesting 
reversal of an adverse determination. An appeal may be mailed, emailed 
to hq-foia@dla.mil, or faxed to 703-767-6091. Appeals are to be 
addressed to the Appellate Authority, Defense Logistics Agency, Suite 
1644, 8725 John J. Kingman Road, Fort Belvoir, Virginia 22060-6221.
    (b) Adverse determination. Adverse determinations include, but are 
not limited to decisions that: Withhold all or part of a requested 
record; deny a fee category claim by a requester; deny a request for 
waiver or reduction of fees; deny requesters challenge of fee 
estimates; denies a request for expedited processing; state that no 
records were located; do not provide a response within the statutory 
time limit; or what the requester believes is adverse in nature.
    (c) Appellate authority. The General Counsel, DLA, who upon receipt 
of an administrative appeal, reviews the initial determination and may 
uphold, reverse or amend any adverse determination.
    (d) Consultation. The process whereby a DoD Component receives a 
FOIA request for a record in which another DoD Component or Federal 
agency has a clear and substantial interest in the subject matter, the 
responsive record is sent to another DoD Component or Federal agency to 
obtain recommendations on the releasability of the document and is 
returned to the originator for further action.
    (e) Defense Freedom of Information Policy Office (DFOIPO). The 
office responsible for the formulation and implementation of DoD policy 
guidance for FOIA. For information about DFOIPO refer to http://www.dod.mil/pubs/foi/dfoipo/.
    (f) Direct costs. Expenditures made in searching for, reviewing, 
and duplicating documents in response to a FOIA request. Direct costs 
include, for example, the salary of the employee performing the work 
(the basic rate of pay plus 16 percent of that rate to cover benefits) 
and the costs of operating duplicating machinery. Not included in 
direct costs are overhead expenses such as the cost of space, heating, 
or lighting the facility in which the records are stored.
    (1) Search. This term includes all time spent looking, both 
manually and electronically, for records that are responsive to a FOIA 
request, such as:
    (i) Searching for responsive emails or electronic documents located 
on individually-assigned computers or servers;
    (ii) Time taken by a programmer to create a program to run a 
requested report from a database; or
    (iii) Searching through hardcopy files to include records stored at 
a Federal Records Center. The term ``search'' also includes a page-by-
page and line-by-line identification of a record to determine if it, or 
portions, are responsive to the request.
    (2) Duplication. The process of making a copy of a document in 
response to a FOIA request. Copies can take the form of paper, 
microfiche, audiovisual or machine-readable documentation (e.g., 
magnetic tape or compact disc), among others. Personnel time spent 
performing tasks to enable a computer system to output information in a 
particular digital form or format for a requester is considered search 
time. Search time is calculated according to 32 CFR part 286, subpart 
F.
    (3) Review. The examination of documents located in response to a 
FOIA request to determine if any of the statutory exemptions permit 
withholding. Review also includes the time taken to redact documents, 
preparing them for release and reviewing submitter responses under 
Executive Order 12600. Review does not include the time spent resolving 
general legal or policy issues regarding the application of exemptions.
    (g) DLA component. DLA Components consist of Headquarters 
Organizations, Primary Level Field Activities, Defense Business 
Services, Regional Commands, and other Organizational entities. A 
description of DLA Components can be found at www.dla.mil.
    (h) DLA FOIA Requester Service Center. DLA Office's authorized to 
receive and process FOIA requests and where a FOIA requester can gain 
information concerning DLA's FOIA Program, the status of the person's 
FOIA request, or information about the agency's FOIA response. Refer to 
Appendix A of this part for locations of FOIA Requester Service Centers 
or for additional information refer to DLA's public Web site at 
www.dla.mil/FOIA-Privacy.
    (i) Electronic records. Records (including email) created, stored, 
and retrieved by electronic means.
    (j) Federal agency. This term is defined at 5 U.S.C. 551(1) and 5 
U.S.C. 552(f)(1).
    (k) FOIA officer. DLA employee who is responsible for processing 
FOIA requests and is a point of contact for the FOIA program. The FOIA 
Officer grants or denies requests for fee waivers or expedited 
processing and makes requester category determinations.
    (l) FOIA Public Liaison. The member of DLA's Headquarters FOIA 
staff to whom a FOIA requester can raise concerns about the service the 
requester received from a DLA FOIA Requester Service Center. The FOIA 
Public Liaison is available to assist in reducing delays,

[[Page 30467]]

increasing transparency; increasing understanding of the status of 
requests and assists with resolving disputes.
    (m) FOIA request. A written request for DLA records that reasonably 
describes the record(s) sought, enabling a DLA employee familiar with 
the files to locate the record(s) with a reasonable amount of effort; 
indicates a willingness to pay processing fees or requests a fee 
waiver; and includes a postal mailing address and contact information. 
A willingness to pay fees is not required when, based upon the request, 
fees will not be assessed (e.g. an ``other'' requester requests a 
document that is certain to be less than 100 pages and will take less 
than two hours of search time). Written requests may be received by 
U.S. Postal Service or other commercial delivery means, by facsimile, 
or electronically. A FOIA request meeting these conditions, arriving at 
DLA's FOIA Requester Service Center in possession of the requested 
records, is considered perfected or properly received at which time the 
statutory time limit for response begins. In no case shall the 
statutory time limit for processing a perfected request begin later 
than ten business days after receipt by any of DLA's FOIA Request 
Service Centers.
    (n) Initial denial authority (IDA). By this regulation, the 
Director, DLA, delegates to Heads of DLA Components the authority to 
withhold information requested under the FOIA pursuant to one or more 
of the nine FOIA exemptions and to confirm that no records were located 
in response to a request. The designation of IDA may be further 
delegated by the Heads of DLA Components to their Deputies. DLA 
Components shall limit the number of IDAs appointed. In designating its 
IDAs, a DLA Component shall balance the goals of centralization of 
authority to promote uniform decisions and decentralization to 
facilitate responding to each request within the time limitations of 
the FOIA. IDAs may also deny a fee category claim by a requester, deny 
a request for expedited processing, deny a request for a waiver or 
reduction of fees, or review a fee estimate, although these 
determinations are usually made by the FOIA Officer.
    (o) Referral. The process of transferring records found in response 
to a FOIA request to another DLA or DoD Component, or any Federal 
agency for review and direct response to the requester. This process is 
used when documents located during a search are found to have 
originated or there is a substantial interest in the record with 
another DLA or DoD Component, or Federal agency.
    (p) Requester category. One of three categories that agencies place 
requesters in for the purpose of determining fees for search, review 
and duplication. The three categories are:
    (1) Commercial;
    (2) Non-commercial scientific or educational institutions or news 
media; and
    (3) All others.


Sec.  300.4  Policy.

    DLA adopts and supplements the DoD FOIA Program policy and 
procedures codified at 32 CFR part 286, subpart A, General Provisions 
and subpart B, FOIA Reading Rooms and 32 CFR part 285.
    (a) General. As a matter of policy, DLA shall make discretionary 
disclosures of exempt records or information whenever disclosure would 
not foreseeably harm an interest protected by a FOIA exemption, but 
this policy does not create any right enforceable in court. The public 
has a right to information concerning the activities of its Government. 
DLA policy is to conduct its activities in an open manner and provide 
the public with a maximum amount of accurate and timely information 
concerning its activities, consistent always with the legitimate public 
and private interests of the American people. A DLA record requested by 
a member of the public who follows rules established herein shall be 
withheld only when it is exempt from mandatory public disclosure under 
the FOIA.
    (b) Customer Service. Executive Order 13392, Improving Agency 
disclosure of Information, December 14, 2005, requires agencies to 
emphasize a new citizen-centered approach to the FOIA that is results-
oriented. Because FOIA requesters are seeking a service from the 
Federal Government, all DLA Components shall respond courteously and 
professionally to FOIA requesters. Additionally, the Components shall 
provide the public with information about agency records that are 
already publicly available, as well as information about the status of 
a person's FOIA request and an estimated date on which DLA's Component 
will complete the request. Refer to Appendix A of this part for DLA 
FOIA Requester Service Center contact information.
    (1) To meet the requirements of Executive Order 13392, each FOIA 
Requester Service Center shall have an internet Web site that serves to 
educate the public on the FOIA process. At a minimum, each Web site 
shall have the address, telephone number, facsimile number, and 
electronic mail address to which FOIA requests can be sent; a link to 
DoD's FOIA handbook; the name and contact information of DLA's FOIA 
Officer and Public Liaison; and information on how a requester can 
obtain the status of a request. Additionally, each FOIA Requester 
Service Center Web site will have links to DLA's Headquarters FOIA/
Privacy Web site reading room.
    (2) [Reserved]
    (c) Creating a Record. (1) There is no obligation to create nor 
compile a record to satisfy an FOIA request. A DLA activity, however, 
may compile a new record when doing so would result in a more useful 
response to the requester or be less burdensome to the activity 
provided the requester does not object. The cost of creating or 
compiling such a record may not be charged to the requester unless the 
fee for creating the record is equal to or less than the fee which 
would be charged for providing the existing record. Fee assessments 
shall be in accordance with part 286, subpart F, of this title.
    (2) A record must exist and be in the possession and control of DLA 
at the time the search begins to be considered subject to this part and 
the FOIA.
    (3) When processing FOIA requests for electronic data, if DLA's 
Component has the capability to respond to the request, and the effort 
is reasonable and would be a business as usual approach, then the 
request should be processed. However, the request need not be processed 
where the capability to respond does not exist without a significant 
expenditure of resources, thus not being a normal business as usual 
approach. For example: Processing a request that would cause a 
significant interference with the operation of DLA's Component's 
automated system or require a significant amount of programming effort.
    (d) Consultations and Referrals. The rules published in part 32 CFR 
part 286, subpart A, Sec. Sec.  286.4(i) and 286.22(e), Policy, apply 
to this rule.
    (e) Forms. This part authorizes the use of forms developed by DoD 
and DLA for the express use of the FOIA Program. Refer to www.dla.mil 
for a list of all forms prescribed by this part.

Subpart B--Exemptions


Sec.  300.5  General.

    Refer to the DoD FOIA Program regulations codified at 32 CFR part 
286, subpart C, Exemptions.

Subpart C--FOIA Request Processing


Sec.  300.6  General.

    DLA adopts and supplements the DoD FOIA Program regulations 
codified at 32

[[Page 30468]]

CFR part 286, subpart E, Release and Processing Procedures.
    (a) Requests from the public. (1) Individuals seeking DLA 
information should address their FOIA requests to one of the FOIA 
Requester Service Center addresses listed in Appendix A of this part.
    (2) When personally identifying information in a record is 
requested by the subject of the record or the subject's representative, 
and the information is contained within a Privacy Act system of 
records, the request will be processed under both the FOIA and the 
Privacy Act. Due to the dual nature of the processing, the FOIA time 
limits will be used. DLA Components must comply with the provisions of 
32 CFR 310.17(c) to confirm the identity of the requester.
    (b) [Reserved]


Sec.  300.7  FOIA request processing procedures.

    (a) Receipt and Control. Requests received after 5:00 p.m. EST will 
be considered received the following business day. Upon receipt of a 
request for records, the FOIA Officer must:
    (1) Open a file in DLA's specified control system designed to 
ensure accountability and compliance with the FOIA. The control system 
will include the data elements needed to compile the statistics 
required in the annual Department of Justice FOIA report or other 
reports required by another authority. Each request shall automatically 
be assigned a unique tracking number.
    (2) Screen the request for defects in the description, the 
requester category, the fee declaration, and full postal address. The 
FOIA Officer will notify the requester of any such defects and provide 
assistance to help remedy the defects. The FOIA Officer will place the 
request on-hold until the request is perfected. When a DLA FOIA 
Requester Service Center receives a request for records that clearly 
belong to an agency outside of DoD, the requester shall be told these 
are not agency records and, if possible, provide the name of the agency 
that may hold the records. No referral of the request is made outside 
of DoD.
    (3) Once a request is perfected, DLA may make one request for 
additional information unrelated to fees and toll the 20 working-day 
period while awaiting the information. Tolling the 20 working-day 
period is not limited for fee related issues.
    (4) DLA will provide the requester with the FOIA tracking number 
and the track in which the FOIA was placed (see Sec.  300.7(b)). Each 
DLA FOIA Requester Service Center has a telephone line to inform the 
requester of the status of their request (see Appendix A of this part).
    (5) DLA uses the date-of-search cut-off (this cut-off is the day 
before the search begins) to ensure that as many records as possible 
will be captured by the agency's search. A FOIA request may not be on-
going or open-ended in nature. DLA Components are responsible for 
providing records in possession and control of DLA at the time the 
search for records begins. DLA Components are not required to expend 
DLA funds to establish data links that provide real-time or near-real-
time data to a FOIA requester.
    (b) Multi-track Processing. DLA components shall process requests 
with all due diligence according to their order of receipt. A DLA 
component uses three processing tracks by distinguishing between 
simple, complex, and expedited requests based on the need to search and 
collect from multiple directorates/locations; the need to search for, 
collect and appropriately examine a voluminous amount of records; and/
or the need to consult with other DLA or DoD Components having a 
substantial interest in the releasability of the record. Requesters are 
notified in the acknowledgement letter of the track the request is 
placed in. Requests placed in the simple track will typically be 
completed within the statutory time limit for responding to requests. 
Requests placed in the complex track may be narrowed or modified in 
order to qualify for faster processing within the specified limits of 
DLA's simple track. Expedited processing must be requested and a 
requester who seeks expedited processing must submit a statement, 
certified to be true and correct to the best of that person's knowledge 
and belief, explaining in detail the basis for requesting expedited 
processing. Within ten calendar days of its receipt of a request for 
expedited processing, the proper component shall decide whether to 
grant expedited processing and shall notify the requester of the 
decision. If a request for expedited processing is granted, the request 
shall be given priority and processed as soon as practicable. If a 
request for expedited processing is denied, any appeal of that decision 
shall be acted on expeditiously. Refer to the DoD FOIA Handbook for 
information on multi-track processing (http://www.dod.mil/pubs/foi/dfoipo/foiaHandbook.html#long).
    (c) Payments in Arrears. Where a requester has previously failed to 
pay a fee charged within 30 calendar days, DLA may require the 
requester to pay the full amount owed, plus any applicable interest, 
before beginning to process a new or pending request from the requester 
(see OMB Fee Guidelines (http://www.dod.gov/pubs/foi/dfoipo/docs/OMBGuidelines_FOIAFees.pdf)). Interest will be at the rate prescribed 
in 31 U.S.C. 3717, and confirmed with the servicing Financial 
Operations Office.
    (d) Misdirected Requests. A misdirected request is a request 
received by DLA's FOIA Office for records maintained by another DLA or 
DoD Component. Misdirected requests shall be forwarded promptly, but in 
any event not later than ten days after the request is first received 
by any component of the agency that is designated in this regulation to 
receive requests (see Appendix A of this part). The receiving FOIA 
Office shall route the request to the proper DLA or DoD FOIA Office and 
the response time will commence on the date that the request is 
received by the proper FOIA Office, but not later than ten working days 
after the request is first received by any DLA or DoD FOIA Office. 
Misdirected FOIA requests are not forwarded outside of DoD.


Sec.  300.8  Initial determinations.

    (a) The initial determination is whether to make a record available 
in response to a FOIA request. A full release may be made by an 
official knowledgeable of the record, with authority to determine that 
no harm would come from release. Adverse determinations (refer to Sec.  
300.3(b)) must be made by the designated Initial Denial Authority (IDA) 
except for determinations made regarding the requester category and 
requests for fee waivers or expedited processing. By this regulation, 
the Director, DLA, delegates to Heads of DLA Components (see Sec.  
300.3(h)) the designation of IDA. The designation of IDA may be further 
delegated by the Heads of DLA Components to their Deputies. The IDA 
shall review all recommendations for withholding information and 
whether the criteria for withholding under one or more FOIA exemptions 
are met. DLA has IDAs throughout the agency; and each IDA will make the 
determination for records within their area of functional 
responsibility. If a request involves records from more than one 
functional area, consultation will be done with all responsible IDAs 
but will be signed by the IDA assigned the primary responsibility for 
processing the request.
    (b) The FOIA requires that any reasonably segregable portion of a 
record must be released after appropriate application of the Act's nine 
exemptions. Segregation is not reasonable when it would produce an

[[Page 30469]]

essentially meaningless set of words and phrases, or even sentences 
which taken separately or together have minimal or no information 
content.
    (c) If information is withheld in whole or part, DLA will provide 
in a response letter the exemption under which the withholding is made, 
a description of the type of information redacted, the name and title 
or position of the IDA and the administrative appeal rights. When 
information is withheld in full, DLA will provide an estimate of the 
volume withheld. This estimate should be in number of pages or in some 
other reasonable form of estimation. When information is withheld in 
part, DLA will show the redacted amount of information and the 
exemption under which the redaction is made on the released portion of 
the record, unless including that indication would harm an interest 
protected by the exemption under which the redaction is made.


Sec.  300.9  Appeals.

    When an IDA makes an adverse determination (see Sec.  300.3(b)) the 
requester may appeal that decision in writing to the designated 
appellate authority (see Sec.  300.3(a)). An appeal must be made in 
writing to DLA's Appellate Authority and must be postmarked within the 
appeal time limits of the DoD FOIA Program Regulation at 32 CFR 286.24. 
The appeal should be accompanied by copies of the initial request and 
the denial letter.


Sec.  300.10  Judicial actions.

    DLA adopts the DoD FOIA Program regulations codified at 32 CFR part 
286, subpart E, Release and Processing Procedures.

Subpart D--Fees and Fee Waivers


Sec.  300.11  General.

    DLA adopts the rules and rates published in 32 CFR part 286, 
subpart F, Fee Schedule. In addition, DLA considers fees charged by a 
Federal Records Center to retrieve and re-file records a part of the 
direct costs charged to requesters.

APPENDIX A TO PART 300--GAINING ACCESS TO DLA RECORDS

    (a) General. (1) The Defense Logistics Agency, established 
pursuant to authority vested in the Secretary of Defense, is an 
agency of DoD under the direction, authority, and control of the 
Assistant Secretary of Defense for Logistics and Materiel Readiness, 
and is subject to DoD policies, directives, and instructions.
    (2) DLA is comprised of several Components and each DLA 
Component is responsible for maintaining its own records; therefore, 
FOIA requests should be addressed to the FOIA Requester Service 
Center that has custody of the record sought. (See paragraph (c) of 
this appendix.) DLA FOIA Officers will assist requesters in 
determining the correct DLA Requester Service Center to address 
requests. (See paragraph (c) of this appendix and DLA's public Web 
site at www.dla.mil.)
    (3) On DLA's public Web site is an index to assist in locating 
DLA records by category, organization, keyword search, or by 
contract prefix. The index is titled ``Index of Information at DLA 
FOIA Service Centers'' at www.dla.mil/FOIA-Privacy/servindex/pages/category.aspx.
    (b) Requester Requirements. (1) Requesters are responsible for 
submitting a perfected request as defined in Sec.  300.3(m), FOIA 
Request.
    (2) Addressing Requests. Address requests to DLA's FOIA 
Requester Service Center most likely to hold the records (see 
paragraph (c) of this appendix for the contact information of DLA 
FOIA Requester Service Centers designated to receive FOIA requests). 
If DLA's FOIA Requester Service Center is undeterminable, address 
requests to DLA Headquarters FOIA Requester Service Center for 
proper routing.
    (3) Availability of DLA Publications. Many unrestricted DLA 
regulations, manuals, and handbooks are available online. Visit 
DLA's FOIA/Privacy Web site for more information at http://www.dla.mil/foia-privacy/.
    (c) Locations of DLA FOIA Requester Service Centers. Refer to 
the FOIA/Privacy Web page at http://www.dla.mil/FOIA-Privacy/pages/foiapocs.aspx for current points of contact at each of the DLA's 
FOIA Requester Service Centers.
    (1) Defense Logistics Agency Headquarters, ATTN: DGA, 8725 John 
J. Kingman Rd., Ste 1644, Fort Belvoir, VA 22060-6221, Fax: 703-767-
6091, Email: hq-foia@dla.mil--Responsible for broad functional 
areas, such as Office of the Director, General Counsel, Small 
Business Programs, DLA Office of Inspector General, Legislative 
Affairs, Equal Employment Opportunity Office, Installation Support, 
Human Resources, Logistics Operations, Information Operations, 
Acquisition, and Financial Operations. This FOIA Requester Service 
Center also processes FOIA requests for the following locations:
    (i) DLA Transaction Service, Wright-Patterson AFB, Ohio--
Editing/routing of logistics transactions, network interoperability 
and eBusiness services.
    (ii) DLA Strategic Materials, Fort Belvoir, Va.--Manages the 
strategic and critical raw material stockpile that supports national 
defense needs.
    (iii) DLA Europe & Africa, Kaiserslautern, Germany--Focal point 
for U.S. European Command's and U.S. Africa Command's theater of 
operations.
    (iv) DLA Pacific, Camp Smith, Hawaii--Focal point for U.S. 
Pacific Command's theater of operations.
    (v) DLA Central, MacDill AFB, Fla.--Focal point for U.S. Central 
Command's theater of operations.
    (2) DLA Energy, 8725 John J. Kingman Rd., Ste 3729, Fort 
Belvoir, VA 22060-6222, Fax: 703-767-5022, Email: 
dlaenergy.efoia@dla.mil--Fuel, energy support and services, and bulk 
petroleum.
    (3) DLA Land and Maritime, ATTN: GC, 3990 E. Broad Street, 
Columbus, OH 43218-3990, Fax: 614-692-4385, Email: 
dscc.efoia@dla.mil--Maritime and land weapons system supply chains.
    (4) DLA Aviation, 8000 Jefferson Davis Highway, Richmond, VA 
23297-5000, Fax: 804-279-4137, Email: foia.dscr@dla.mil--Aviation 
supply chain.
    (5) DLA Troop Support, 700 Robbins Avenue, Bldg 36, 
Philadelphia, PA 19111-5096, Fax: 215-737-2151, Email: 
DLATroopSupportFOIAerequest@dla.mil--Subsistence, clothing, and 
textiles, medical, and construction and equipment supply chains.
    (6) DLA Distribution, ATTN: DDC-GC, Mission Drive, Bldg 81, New 
Cumberland, PA 17070-5000, Fax: 717-770-5685, Email: ddc-efoia@dla.mil--Worldwide network of 25 distribution depots and nine 
map support offices.
    (7) DLA Disposition Services and DLA Logistics Information 
Service, 74 Washington Avenue North, Battle Creek, MI 49017-3084, 
Fax: 269-961-4534, Email: drmsefoia@dla.mil.
    (i) Disposition Services: Reutilization, transfer, 
demilitarization, and environmental disposal and reuse.
    (ii) Logistics Information Service: Manages a wide range of 
logistics information and identification systems.
    (8) DLA Document Services, 5450 Carlisle Pike, Bldg 9, P.O. Box 
2020, Mechanicsburg, PA 17055-0788, Fax: 717-605-3999, Email: 
foia.docsvcs@dla.mil--Automated document production, printing 
services, digital conversion and document storage.

    Dated: May 21, 2014.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2014-12099 Filed 5-27-14; 8:45 am]
BILLING CODE 5001-06-P