[Federal Register Volume 83, Number 25 (Tuesday, February 6, 2018)]
[Rules and Regulations]
[Pages 5196-5197]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-02302]



[[Page 5196]]

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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 286

[DOD-2007-OS-0086; 0790-AI24]


DoD Freedom of Information Act (FOIA) Program

AGENCY: Department of Defense.

ACTION: Final rule.

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SUMMARY: This rule revises the Department of Defense (DoD) Freedom of 
Information Act (FOIA) regulation to implement the FOIA and incorporate 
the provisions of the OPEN Government Act of 2007 and the FOIA 
Improvement Act of 2016. This part promotes uniformity in the 
Department of Defense (DoD) FOIA Program. It takes precedence over all 
DoD Component issuances that supplement and implement the DoD FOIA 
Program. DoD will be removing individual component rulemakings in this 
area as subsequent actions to this rule.

DATES: This rule is effective on March 8, 2018.

FOR FURTHER INFORMATION CONTACT: James Hogan at 571-372-0462, or email 
[email protected].

SUPPLEMENTARY INFORMATION:

Executive Summary

    This rule revises 32 CFR part 286 to implement section 552 of title 
5, United States Code (U.S.C.) and incorporate the provisions of the 
OPEN Government Act of 2007 and the FOIA Improvement Act of 2016. This 
part promotes uniformity in the DoD FOIA Program across the entire 
Department.
    The FOIA, 5 U.S.C. 552, requires agencies to ``promulgate 
regulations, pursuant to notice and receipt of public comment, 
specifying the schedule of fees applicable to the processing of 
requests [the FOIA] and establishing procedures and guidelines for 
determining when such fees should be waived or reduced.'' Additionally, 
according to the FOIA, an agency may, in its regulation, designate 
those components that can receive FOIA requests, provide for the 
aggregation of certain requests, and provide for multitrack processing 
of requests. Finally, the FOIA requires agencies to ``promulgate 
regulations . . . providing for expedited processing of requests for 
records.''
    This rule implements changes to conform to the requirements of the 
following amendments to the FOIA: The OPEN Government Act of 2007, 
Public Law 110-175 and the FOIA Improvement Act of 2016, Public Law 
114-185. These changes include the roles of the FOIA Public Liaison in 
Sec.  286.4, Sec.  286.5, Sec.  286.8, Sec.  286.9, and Sec.  286.12; 
the roles of the FOIA Requesters Service Centers in Sec.  286.3, Sec.  
286.4, Sec.  286.5, Sec.  286.8, Sec.  286.9, Sec.  286.11, and Sec.  
286.12; the processing of FOIA requests, Sec.  286.7; the timing of 
responses to FOIA requests, Sec.  286.8; and the fees schedules, 
Subpart E.

Comments and Responses

    On Thursday, January 5, 2017 (82 FR 1192-1206), the Department of 
Defense published an interim final rule titled ``DoD Freedom of 
Information Act (FOIA) Program'' for a 60-day public comment period. 
The public comment period ended on March 6, 2017. Two public comments 
were received. This section addresses the public comments.
    Comment: From my reading of changes proposed to this regulation, I 
fully support this. I support this because it is making reporting and 
process of FOIA requests the same thought the entire Department of 
Defense. If this regulation was not passed it would make getting 
information much more complicated as some areas in the department could 
deny requests while others could over report. With the uniformity in 
this regulation, there would be less room for error in the department. 
Overall this should be implemented as soon as possible because the 
United States can't afford to under or over report our defense actions.
    Response: The Department of Defense appreciates this commenter's 
support for our regulation.
    Comment: The ``FOIA'' provides access to the inner-workings of the 
government. The government, including the military represents ``we the 
people.'' It's important that we not create a different standard for 
the disclosure of information that serves the public interest. Even 
though the government can exercise its discretion as to what 
information to release, it's important that there be a ``uniform'' 
standard across different agencies of the government. For this reason, 
I support this proposal.
    Response: The Department of Defense appreciates this commenter's 
support for our regulation.

Expected Cost Savings of This Rule

    The Department of Defense currently has 14 separate FOIA rules. 
With the finalization of this department-wide rule, DoD will revoke all 
component-level FOIA rules. This rulemaking will reduce costs to the 
public by consolidating the requirements for requests for access to DoD 
information.
    FOIA requesters are a diverse community, including lawyers, 
industry professionals, reporters, and members of the public. Costs for 
these requestors can include the time required to research the current 
FOIA rule for each component and the time and preparation required to 
submit a request/appeal. DoD FOIA subject matter experts estimate that 
40% of FOIA requests to DoD may involve consultation of the Code of 
Federal Regulations and the department's several FOIA regulations. DoD 
estimates the consolidation to one FOIA regulation will save those 
referring to the CFR for FOIA guidance approximately 30 minutes of 
research, review, and compliance time.
    For purposes of estimating opportunity costs, DoD subject matter 
experts deemed it reasonable to use the average of a lawyer's/judicial 
law clerk's mean hourly wage ($66.44/hour), as informed by the Bureau 
of Labor and Statistics, and the 2016 federal minimum wage ($9/hour) to 
approximate an hourly wage for an average FOIA requester. That rate is 
$37.72/hour.
    Through this consolidation, DoD expects to save the requester 
community at least $384,080 annually, as reflected in the chart below 
using FY 2016 data (annualized costs over perpetuity at a 7 percent 
discount rate is -$384,080; present value costs is -$5,486,857). The 
cost savings anticipated by the repeal of the DoD Component rules are 
accounted for in this rulemaking. Individual repeal actions for the DoD 
Component rules will refer back to this rule.

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                                                                      Number of         40% of                            Hourly wage         Projected
              Rule                             Component                 2016            FOIA            Time per              of           cost savings
                                                                       requests        requests           request          requester          to public
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285.............................  DoD...............................      1,794   x         40%    x    30 minutes    x       $37.72    =    -$13,533.94
287.............................  DISA..............................        590   x         40%    x    30 minutes    x        37.72    =      -4,450.96
290.............................  DCAA..............................         93   x         40%    x    30 minutes    x        37.72    =        -701.59

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291.............................  DTRA (DNA)........................         78   x         40%    x    30 minutes    x        37.72    =        -588.43
292.............................  DIA...............................        902   x         40%    x    30 minutes    x        37.72    =      -6,804.69
293.............................  NGA (NIMA)........................        109   x         40%    x    30 minutes    x        37.72    =        -822.30
295.............................  DoD IG............................        772   x         40%    x    30 minutes    x        37.72    =      -5,823.97
296.............................  NRO...............................        165   x         40%    x    30 minutes    x        37.72    =      -1,244.76
298.............................  DSS (DIS).........................        310   x         40%    x    30 minutes    x        37.72    =      -2,338.64
299.............................  NSA/CSS...........................      1,881   x         40%    x    30 minutes    x        37.72    =     -14,190.26
518.............................  Army..............................     25,775   x         40%    x    30 minutes    x        37.72    =    -194,446.60
701.............................  Navy..............................      9,605   x         40%    x    30 minutes    x        37.72    =     -72,460.12
806.............................  Air Force.........................      4,918   x         40%    x    30 minutes    x        37.72    =     -37,101.39
300.............................  DLA...............................      3,920   x         40%    x    30 minutes    x        37.72    =     -29,572.48
                                                                                                                                           -------------
    Total.......................  ..................................  .........       ..........       ............       ...........        -384,080.13
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Regulatory Procedures

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

    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distribute impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule is not a significant regulatory action under 
E.O. 12866.

Executive Order 13771, ``Reducing Regulation and Controlling Regulatory 
Costs''

    This final rule is considered an E.O. 13771 deregulatory action. 
Details on the estimated cost savings of this rule are discussed in the 
``expected cost savings'' section of the rule.

Public Law 104-4, ``Unfunded Mandates Reform Act'' (2 U.S.C. Ch. 25)

    This final rule is not subject to the Unfunded Mandates Reform Act 
because it does not contain a federal mandate that may result in the 
expenditure by state, local, and tribal governments, in the aggregate, 
or by the private sector, of $100M or more in any one year.

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

    It has been certified that this final rule is not subject to the 
Regulatory Flexibility Act because it does not have a significant 
economic impact on a substantial number of small entities. The rule 
implements the procedures for processing FOIA requests within the 
Department of Defense, which do not create such an impact.

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

    This final rule does not impose reporting or recordkeeping 
requirements under the Paperwork Reduction Act of 1995.

Executive Order 13132, ``Federalism''

    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a rule that imposes substantial 
direct requirement costs on state and local governments, preempts state 
law, or otherwise has federalism implications. This final rule will not 
have a substantial effect on state and local governments, or otherwise 
have federalism implications.

List of Subjects in 32 CFR Part 286

    Freedom of Information Act.

    Accordingly, the interim rule published at 82 FR 1192-1206 on 
January 5, 2017, is adopted as final with the following changes:

PART 286--[AMENDED]

0
1. The authority citation for part 286 continues to read as follows:

    Authority:  5 U.S.C. 552.


Sec.  286.7   [Amended]

0
2. In Sec.  286.7, amend paragraph (c) in the first sentence by 
removing the phrase ``inform this DoD Component'' and adding in its 
place ``inform them''.

    Dated: February 1, 2018.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2018-02302 Filed 2-5-18; 8:45 am]
 BILLING CODE 5001-06-P