Office of the Secretary of Defense and Joint Staff Freedom of Information Act Program, 59579-59582 [E8-23998]
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(3) * * * The summary described in
paragraph (c)(2)(iii)(B)(2) of this section
must advise the participant of the right,
if any, to defer receipt of the
distribution and of the consequences of
failing to defer such receipt, must set
forth a summary of the distribution
options under the plan, must refer the
participant to the most recent version of
the notice (and, in the case of a notice
provided in any document containing
information in addition to the notice,
must identify that document and must
provide a reasonable indication of
where the notice may be found in that
document, such as by index reference or
by section heading), and must advise
the participant that, upon request, a
copy of the notice will be provided
without charge.
*
*
*
*
*
(vi) Consequences of failing to defer—
(A) A notice under this paragraph (c)(2)
that is required to describe the
consequences of failing to defer receipt
of a distribution until it is no longer
immediately distributable must, to the
extent applicable under the plan and in
a manner designed to be easily
understood, provide the participant
with the information set out in
paragraphs (c)(2)(vi)(A)(1) through (5) of
this section and explain why it is
relevant to a decision whether to defer.
(1) A description of the following
federal tax implications of failing to
defer: differences in the timing of
inclusion in taxable income of an
immediately commencing distribution
that is not rolled over (or not eligible to
be rolled over) and a distribution that is
deferred until it is no longer
immediately distributable (including, as
applicable, differences in the taxation of
distributions of designated Roth
contributions within the meaning of
section 402A); application of the 10%
additional tax on certain distributions
before age 591⁄2 under section 72(t); and,
in the case of a defined contribution
plan, loss of the opportunity upon
immediate commencement for future
tax-favored treatment of earnings if the
distribution is not rolled over (or not
eligible to be rolled over) to an eligible
retirement plan described in section
402(c)(8)(B).
(2) In the case of a defined benefit
plan, a statement of the amount payable
to the participant under the normal form
of benefit both upon immediate
commencement and upon
commencement when the benefit is no
longer immediately distributable
(assuming no future benefit accruals).
The statement need not vary based on
the participant’s marital status if the
plan is permitted, pursuant to
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§ 1.417(a)(3)–1(c)(2)(ii), to provide a
QJSA explanation that does not vary
based on the participant’s marital status.
(3) In the case of a defined
contribution plan, a statement that some
currently available investment options
in the plan may not be generally
available on similar terms outside the
plan and contact information for
obtaining additional information on the
general availability outside the plan of
currently available investment options
in the plan.
(4) In the case of a defined
contribution plan, a statement that fees
and expenses (including administrative
or investment-related fees) outside the
plan may be different from fees and
expenses that apply to the participant’s
account and contact information for
obtaining additional information on the
fees and expenses that apply to the
participant’s account.
(5) An explanation of any provisions
of the plan (and provisions of an
accident or health plan maintained by
the employer) that could reasonably be
expected to materially affect a
participant’s decision whether to defer
receipt of the distribution. Such
provisions would include, for example:
plan terms under which a participant
who fails to defer may lose eligibility for
retiree health coverage or eligibility for
early retirement subsidies or social
security supplements; plan terms under
which the benefit of a rehired
participant who failed to defer may be
adversely affected by the decision not to
defer; and, in the case of a defined
contribution plan, plan terms under
which undistributed benefits that
otherwise are nonforfeitable become
forfeitable upon the participant’s death.
(B) Location of information;
incorporation by reference. In general,
the information required to be provided
in a notice under this paragraph
(c)(2)(vi) must appear together (for
example, in a list of consequences of
failing to defer). However, the notice
will not be treated as failing to satisfy
the requirements of this paragraph
(c)(2)(vi) merely because the notice
includes a cross-reference to where the
required information may be found in
notices or other information provided or
made available to the participant, as
long as the notice of consequences of
failing to defer includes a statement of
how the referenced information may be
obtained without charge and explains
why the referenced information is
relevant to a decision whether to defer.
*
*
*
*
*
(h) Consequences of Failing to Defer
Effective/Applicability Date. The
provisions in paragraph (c) of this
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section that describe the requirement to
notify participants of the consequences
of failing to defer are effective for
notices provided on or after the first day
of the first plan year beginning on or
after January 1, 2010.
Linda E. Stiff,
Deputy Commissioner for Services and
Enforcement.
[FR Doc. E8–23918 Filed 10–8–08; 8:45 am]
BILLING CODE 4830–01–P
DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 288
[DoD–2008–OS–0059; RIN 0790–AI29]
Office of the Secretary of Defense and
Joint Staff Freedom of Information Act
Program
Department of Defense.
Proposed rule.
AGENCY:
ACTION:
SUMMARY: This part establishes Office of
the Secretary of Defense (OSD) policy,
assigns responsibilities, and prescribes
procedures for the effective
administration of the Freedom of
Information Act (FOIA) Program in OSD
and the Joint Staff. This part
supplements and implements part 286
of 32 CFR, the DoD Freedom of
Information Act Regulation.
DATES: Comments must be received by
December 8, 2008.
ADDRESSES: You may submit comments,
identified by docket number and/or RIN
number and title, by any of the
following methods:
• Federal Rulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Mail: Federal Docket Management
System Office, 1160 Defense Pentagon,
Washington, DC 20301–1160.
Instructions: All submissions received
must include the agency name and
docket number or Regulatory
Information Number (RIN) for this
Federal Register document. The general
policy for comments and other
submissions from members of the public
is to make these submissions available
for public viewing on the Internet at
https://www.regulations.gov as they are
received without change, including any
personal identifiers or contact
information.
FOR FURTHER INFORMATION CONTACT:
Dave Henshall, 703–696–3243.
SUPPLEMENTARY INFORMATION:
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Federal Register / Vol. 73, No. 197 / Thursday, October 9, 2008 / Proposed Rules
Executive Order 12866, ‘‘Regulatory
Planning and Review’’
It has been certified that 32 CFR part
288 does not:
(1) Have an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy; a section of the economy;
productivity; competition; jobs; the
environment; public health or safety; or
State, local, or tribunal governments or
communities;
(2) Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another Agency;
(3) Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs, or the rights and
obligations of recipients thereof; or
(4) Raise novel legal or policy issues
arising out of legal mandates, the
President’s priorities, or the principles
set forth in this Executive Order 12866,
as amended by Executive Order 13422.
Accordingly, title 32 of the Code of
Federal Regulations, Chapter I,
Subchapter N is proposed to be
amended by adding part 288 as follows:
PART 285—OFFICE OF THE
SECRETARY OF DEFENSE AND JOINT
STAFF FREEDOM OF INFORMATION
ACT (FOIA) PROGRAM
Sec
288.1
288.2
288.3
288.4
288.5
288.6
288.7
Purpose.
Applicability.
Definitions.
Policy.
Responsibilities.
Procedures.
Information requirements.
Appendix to Part 288—DoD Agencies and
Field Activities, And Other Defense
Organizations Served by the Freedom of
Information Division
Authority: 5 U.S.C. 552.
§ 288.1
Purpose.
It has been certified that 32 CFR part
288 does not contain a Federal mandate
that may result in the expenditure by
State, local and tribunal governments, in
aggregate, or by the private sector, of
$100 million or more in any one year.
This part establishes Office of the
Secretary of Defense (OSD) policy,
assigns responsibilities, and prescribes
procedures for the effective
administration of the Freedom of
Information Act (FOIA) Program in OSD
and the Joint Staff (JS). This part
supplements and implements part 286
of 32 CFR, the DoD Freedom of
Information Act Regulation.
Public Law 96–354, ‘‘Regulatory
Flexibility Act’’ (5 U.S.C. 601)
§ 288.2
Sec. 202, Pub. L. 104–4, ‘‘Unfunded
Mandates Reform Act’’
It has been certified that 32 CFR part
288 is not subject to the Regulatory
Flexibility Act (5 U.S.C. 601) because it
would not, if promulgated, have a
significant economic impact on a
substantial number of small entities.
The rule implements the procedures for
processing FOIA requests within the
OSD and JS components.
Public Law 96–511, ‘‘Paperwork
Reduction Act’’ (44 U.S.C. Chapter 35)
It has been certified that 32 CFR part
288 does not impose reporting or
recordkeeping requirements under the
Paperwork Reduction Act of 1995.
jlentini on PROD1PC65 with PROPOSALS
Executive Order 13132, ‘‘Federalism’’
It has been certified that 32 CFR part
288 does not have federalism
implications, as set forth in Executive
Order 13132. This rule does not have
substantial direct effects on:
1. The States;
2. The relationship between the
National Government and the States; or
3. The distribution of power and
responsibilities among the various
levels of Government.
List of Subjects in 32 CFR Part 288
Freedom of information.
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Applicability.
This part applies to OSD, the Office
of the Chairman of the Joint Chiefs of
Staff and the Joint Staff, and the Defense
Agencies and DoD Field Activities listed
in the appendix to this part. They will
hereafter be referred to collectively as
the ‘‘OSD and JS Components.’’
§ 288.3
Definitions.
Appeal. A request by a member of the
general public, made under the FOIA,
asking the appellate authority to reverse
an initial denial authority (IDA)
decision to withhold all or part of a
requester record or to deny a request for
a fee waiver, reduction of fees, or
expedited processing, or any other
adverse determination.
Consultation. The process whereby a
DoD Component transfers a FOIA
responsive document to another
Component, Federal agency, or non-U.S.
government entity to obtain
recommendations on the releasability of
the document. After review, the
document is returned to the original
Component for response to the requester
or further review.
FOIA request. A written request for
records, made by a person, including a
member of the public (U.S. or foreign
citizen), an organization, or a business,
but not including a Federal agency or a
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fugitive from the law, that either
explicitly or implicitly invokes the
FOIA. A request must reasonably
describe the records sought and be
submitted in compliance with this part
286 of 32 CFR.
IDA. An individual granted the
authority to make initial determinations
as to the releasability of records to the
public.
Privacy Act request. A written request
from a U.S. citizen or alien lawfully
admitted for permanent residence
seeking records on himself or herself
that are contained within a Privacy Act
system of records.
Referral. The process whereby a DoD
Component transfers a request to
another DoD Component or Federal
agency for one of two reasons. 1. The
DoD Component that receives the
request determines that responsive
records are with another DoD
Component or Federal agency, and
therefore transfers that request to the
other DoD Component or agency for
processing and direct response to the
requester. 2. The DoD Component that
receives the request locates documents
that originated with another DoD
Component or Federal agency. In this
case, the request and documents are
transferred to the originating DoD
Component or Federal agency for
response directly to the requester. This
also applies to the situation where a
responsive document is transferred to a
higher-level authority for response to
the requester.
§ 288.4
Policy.
It is OSD policy that OSD and JS
Components shall promote the public
trust by making the maximum amount
of information available to the public on
the operation and activities of the
Department of Defense, consistent with
the Department’s responsibility to
protect national security and other
sensitive DoD information.
§ 288.5
Responsibilities.
(a) The Chief, Freedom of Information
Division (FOID), Executive Services
Directorate, Washington Headquarters
Services (WHS), shall organize, direct,
and manage the Office of Freedom of
Information (OFOI), the Defense
Freedom of Information Policy Office
(DFOIPO), and the OSD/JS Privacy
Office, and ensure their mutually
supported functions are integrated to
promote maximum efficiency.
(b) Additionally, the Chief, FOID,
shall:
(1) Direct and administer the DoD
FOIA Program within the OSD and JS
Components.
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(2) Execute policies and establish
procedures to ensure compliance with
32 CFR parts 285 and 286.
(3) Maintain the OSD/JS FOIA
Requester Service Center (RSC).
(4) Serve as the central point of
contact (POC) within the OSD and JS
Components for the receipt of all FOIA
initial requests for records of the OSD
Components.
(5) Forward FOIA and Privacy Act
requests for records from the public to
the OSD Components having
possession, control, and/or equities in
the requested record.
(6) Respond to FOIA and Privacy Act
requesters concerning OSD/JS records.
(7) Maintain a document management
system of FOIA and Privacy Act
requests.
(8) Conduct educational training for
the OSD Components on the
requirements and implementation of the
FOIA, 5 U.S.C. 552, in accordance with
32 CFR part 286.
(9) Administer the OSD/JS FOIA RSC
Web Site. This includes OSD and JS
compliance with 5 U.S.C. 552(a)(2).
(10) Receive processing fees for
deposit in the U.S. Treasury FOIA.
(11) Serve concurrently as Chief,
DFOIPO, and shall:
(i) Receive, process, and review all
FOIA appeals for the OSD and JS
Components and the Combatant
Commands and make recommendations
to the appellate authority for final
adjudication of these FOIA appeals.
(ii) Provide FOIA litigation support to
the Office of the General Counsel,
Department of Defense.
(c) The General Counsel, WHS, shall
provide assistance and advice to the
Pentagon Force Protection Agency
(PFPA) and WHS components in the
processing of initial denials of requested
PFPA and WHS records.
(d) The General Counsel, Department
of Defense, shall:
(1) Provide assistance and advice to
the OSD Components in the processing
of initial denials of requested records.
(2) Coordinate with the Department of
Justice on all final appeals for requested
records when litigation is likely.
(3) Through the Office of Legislative
Counsel, provide assistance and advice
to OFOI in the processing and final
review of Secretary and Deputy
Secretary-level records.
(e) The Heads of OSD and JS
Components shall:
(1) Process FOIA requests received
from the OFOI in accordance with this
part and 32 CFR part 286.
(2) Serve as the IDA, who is
authorized to make initial
determinations on initial requests for
records under 5 U.S.C. 552. This
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responsibility may be delegated to a
representative authorized to deny
information on their behalf.
(3) Designate an office and an
individual(s) as the POC for FOIA
matters. Provide written notice to OFOI
of delegated IDAs and POCs, including
notice of changes.
(4) Coordinate with legal counsel as
necessary on proposed denials of
records.
(5) Provide OFOI with a brief
statement of the reasons for the denial,
including the identification of any
exemptions applied.
(6) Alert OFOI when the issues raised
by a FOIA request are of unusual
significance, precedent setting, or
otherwise require special guidance from
OFOI.
(7) Forward all FOIA requests that are
received directly from the requester
(known as ‘‘out-of-channels requests’’)
to OFOI for entry into the FOIA case
tracking system.
(8) Establish procedures to mark
record copies and to notify holders of
classified records that have been
downgraded, declassified, or
reclassified as a result of a review under
5 U.S.C. 552.
(9) Provide instructions to employees
who administer FOIA matters under this
part and 32 CFR parts 285 and 286.
(10) Include a ‘‘FOIA’’ link on
Component Web sites to the OSD/JS
FOIA RSC (https://www.dod.mil/pubs/
foi/) to assist requesters in properly
directing their FOIA requests to the
correct office for processing.
§ 288.6
Procedures.
(a) General. A request to the OSD/JS
RSC for access to information under the
provisions of 32 CFR part 286 may be
denied upon the determination that:
(1) The requested information is
exempt under 5 U.S.C. 552.
(2) The requester has failed to comply
with the procedural requirements
imposed by 32 CFR parts 285 and 286.
(b) Processing FOIA Requests Within
The OSD and JS Components. (1) The
OFOI receives two types of FOIA
requests: Direct requests from a member
of the public asking for access to DoD,
OSD, or JS information; and referrals or
consultations from other DoD and nonDoD agencies that contain OSD or JS
documents or other agency documents
with OSD or JS equities. In each case,
OFOI shall forward the FOIA request
(and responsive documents if a referral
or consultation) to the OSD or JS
Component having responsibility for the
requested information. Any FOIA
request received by an OSD or JS
Component out of channels from a
source other than OFOI shall be directed
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59581
to OFOI without delay for formal entry
into the case tracking system. The OSD
or JS Component should commence
work on the request, pending its return
from the OFOI.
(2) FOIA requests shall be sent by
OFOI to the OSD or JS Component
having responsibility for the
information, along with SD Form 466,
‘‘Freedom of Information Action (Cover
Sheet);’’ SD Form 472, ‘‘Request
Information Sheet;’’ and DD Form 2086,
‘‘Record of Freedom of Information
(FOI) Processing Cost.’’ The SD Form
472 and the DD Form 2086 shall be
completed and returned to OFOI when
processing is complete along with the
documents located as a result of the
search. OSD or JS Components shall
forward information denied in total or
in part to OFOI at the initial request
stage. The OSD and JS Components
shall conduct document searches at the
Federal Records Center, Suitland,
Maryland, if the documents have been
retired to that center. Documents that
have been transferred to the National
Archives and Records Administration
(NARA) are considered the property of
NARA and are not subject to OSD and
JS Component searches.
(3) If an OSD or JS Component
believes that a FOIA request is
forwarded to them by OFOI for
processing in error the OSD or JS
Component’s IDA will explain on the
SD Form 472 why the OSD or JS
Component is not the appropriate office
and identify the specific component or
other agency of the Government that is
likely to have responsibility for the
information.
(4) OFOI shall assign a suspense date
to each request tasked to the OSD and
JS Components by which the receiving
component must respond to OFOI.
Requests for extensions shall be made to
OFOI at least 3 working days before the
suspense date. Extensions of time shall
be made by OFOI and granted on a caseby-case basis depending on whether the
reasons provided qualify as ‘‘unusual
circumstances’’ as defined by the FOIA.
(5) When a request requires a search
by an OSD or JS Component and the
requested record is released in full or
denied in its entirety, one copy of the
requested record, a completed SD Form
472, and DD Form 2086 shall be
delivered to OFOI. If the located record
is denied in part, two copies of the
requested record shall be delivered to
OFOI. One copy will indicate the
denied information with red pencil
brackets, and the other copy will be
‘‘clean,’’ with no brackets. Those
Components using electronic redaction
software may indicate denied
information by electronic brackets or
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highlights. OFOI will redact the
document electronically and prepare it
for release to the requester.
(6) If OFOI provides the OSD or JS
Component with a document for review
that was located by another agency, the
Component will return the document
tasked for review back to OFOI with its
release recommendations. The OSD or
JS Component will indicate any exempt
information with red pencil brackets or
electronically.
(7) The FOIA, 5 U.S.C. 552(b) requires
the release of segregable information not
otherwise exempt. At a minimum,
review for segregability shall be at the
paragraph level. If OFOI determines that
the information is not properly
segregated, it will be returned to the
OSD or JS Component for further
review.
(8) Completed copies of the SD Form
472 and DD Form 2086 shall be returned
with the packet. When a denial is based
on a security classification according to
the criteria outlined in DoD 5200.1–R,1
the component’s decision rationale shall
indicate that a current review of the
record supports continued
classification. The explanation shall
also contain the specific rationale from
Executive Order 12958 that supports the
decision for continued classification of
the requested record. All denials of
information require the signature of the
IDA on the SD Form 472.
(9) A classified document containing
unclassified information may not be
denied in total under Exemption 1, 5
U.S.C. 552(b)(1), unless the unclassified
information, when taken in aggregate,
would reveal classified information.
This determination must be made in
accordance with section 1.7 of
Executive Order 12958. Denial of
unclassified information not meeting
that standard may only be accomplished
by exerting one or more of Exemptions
2 through 9 of 5 U.S.C. 552.
(10) All documents, regardless of
classification, that are responsive to a
FOIA request must be provided to OFOI
for processing. This includes
Confidential, Secret, Top Secret, and
Sensitive Compartmented Information
records. OSD and JS Components may
contact the OFOI Security Manager to
verify OFOI’s clearance level for access
to classified information.
(11) When an OSD and JS Component
cannot locate a requested record and a
‘‘no record’’ determination is made, the
explanation on the SD Form 472 shall
so state and be signed by the IDA.
Complete copies of the SD Form 472
1 Available at https://www.dtic.mil/whs/directives/
corres/pdf/520001r.pdf.
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and DD Form 2086 shall be returned
with the packet.
(c) Processing FOIA Appeals Within
the OSD and JS Components. (1) When
an appeal involves documents denied
by an OSD or JS Component IDA,
DFOIPO shall review the entire case file
of the initial action to determine if the
information was properly denied in
accordance with 32 CFR part 286 and 5
U.S.C. 552. If the initial action is
deemed proper, then DFOIPO will
recommend to the appellate authority
that the initial action be upheld. When
DFOIPO determines that the initial
denial should not be upheld on appeal,
it shall make a new release
recommendation to the OSD or JS
Component and return the denied
information to OSD or JS Component for
its reconsideration. Documents will be
processed and returned to OFOI in
accordance with the processing
procedures outlined in paragraph (b) of
this section.
(2) When an appeal involves an initial
‘‘no record’’ response, DFOIPO shall
review the entire case file to determine
if the initial search was adequate. If
DFOIPO determines that the
administrative record cannot support
the adequacy of the initial search, the
OSD or JS Component shall be tasked to
provide more detailed accounting of the
initial search, conduct a new search, or
both. If it is determined that the initial
administrative record shows that the
initial search was adequate, DFOIPO
will advise the appellate authority to
uphold the original determination.
(3) If the appeal concerns an
administrative decision made by
DFOIPO such as denial of expedited
processing, fee waiver, or a fee category
determination, DFOIPO shall review the
original case file, along with additional
documentary evidence presented by the
requester, and make a recommendation
to the appellate authority for final
adjudication.
(4) When the final determination by
DFOIPO involves a full grant, the Chief,
FOID or designee shall notify the
requester of that determination.
§ 288.7
Information requirements.
The DoD Annual FOIA Report is
assigned Report Control Symbol DD–
DA&M(A) 1365 in accordance with the
requirements of DoD 8910.1–M.2
Appendix to Part 288—DoD Agencies
and Field Activities, and Other Defense
Organizations Served by the Freedom
of Information Division
American Forces Information Service
2 Available at https://www.dtic.mil/whs/directives/
corres/pdf/891001m.pdf.
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Armed Forces Radiology Research Institute
Defense Acquisition University
Defense Advanced Research Projects Agency
Defense Business Transformation Agency
Defense Equal Opportunity Management
Institute
Defense Legal Services Agency
Defense Media Activity
Defense Microelectronics Activity
Defense Modeling and Simulation Office
Defense Prisoner of War/Missing Persons
Office
Defense Security Cooperation Agency
Defense Systems Management College
Defense Technology Security Administration
DoD Counterintelligence Field Activity
DoD Human Resources Activity
Joint Professional Military Education
Colleges
Missile Defense Agency
National Defense University
Pentagon Force Protection Agency (PFPA)
Uniformed Services University of the Health
Sciences
Washington Headquarters Services (WHS)
White House Military Office
September 30, 2008.
Patricia L. Toppings,
OSD Federal Register Liaison Officer,
Department of Defense.
[FR Doc. E8–23998 Filed 10–8–08; 8:45 am]
BILLING CODE 5001–06–P
DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 325
[DOD–2008–OS–0067]
RIN 0790–AI30
Defense Contract Management Agency
(DCMA) Privacy Program
Department of Defense.
Proposed rule.
AGENCY:
ACTION:
SUMMARY: This part provides policies
and procedures for the Defense Contract
Management Agency’s (DCMA)
implementation of a Privacy Program
under the Privacy Act of 1974, as
amended.
Comments must be received by
December 8, 2008.
ADDRESSES: You may submit comments,
identified by docket number and/or RIN
number and title, by any of the
following methods:
• Federal Rulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Mail: Federal Docket Management
System Office, 1160 Defense Pentagon,
Washington, DC 20301–1160.
Instructions: All submissions received
must include the agency name and
docket number or Regulatory
Information Number (RIN) for this
DATES:
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[Federal Register Volume 73, Number 197 (Thursday, October 9, 2008)]
[Proposed Rules]
[Pages 59579-59582]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-23998]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 288
[DoD-2008-OS-0059; RIN 0790-AI29]
Office of the Secretary of Defense and Joint Staff Freedom of
Information Act Program
AGENCY: Department of Defense.
ACTION: Proposed rule.
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SUMMARY: This part establishes Office of the Secretary of Defense (OSD)
policy, assigns responsibilities, and prescribes procedures for the
effective administration of the Freedom of Information Act (FOIA)
Program in OSD and the Joint Staff. This part supplements and
implements part 286 of 32 CFR, the DoD Freedom of Information Act
Regulation.
DATES: Comments must be received by December 8, 2008.
ADDRESSES: You may submit comments, identified by docket number and/or
RIN number and title, by any of the following methods:
Federal Rulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Federal Docket Management System Office, 1160
Defense Pentagon, Washington, DC 20301-1160.
Instructions: All submissions received must include the agency name
and docket number or Regulatory Information Number (RIN) for this
Federal Register document. The general policy for comments and other
submissions from members of the public is to make these submissions
available for public viewing on the Internet at https://
www.regulations.gov as they are received without change, including any
personal identifiers or contact information.
FOR FURTHER INFORMATION CONTACT: Dave Henshall, 703-696-3243.
SUPPLEMENTARY INFORMATION:
[[Page 59580]]
Executive Order 12866, ``Regulatory Planning and Review''
It has been certified that 32 CFR part 288 does not:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy; a section of the
economy; productivity; competition; jobs; the environment; public
health or safety; or State, local, or tribunal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another Agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligations of
recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
this Executive Order 12866, as amended by Executive Order 13422.
Sec. 202, Pub. L. 104-4, ``Unfunded Mandates Reform Act''
It has been certified that 32 CFR part 288 does not contain a
Federal mandate that may result in the expenditure by State, local and
tribunal governments, in aggregate, or by the private sector, of $100
million or more in any one year.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
It has been certified that 32 CFR part 288 is not subject to the
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if
promulgated, have a significant economic impact on a substantial number
of small entities. The rule implements the procedures for processing
FOIA requests within the OSD and JS components.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)
It has been certified that 32 CFR part 288 does not impose
reporting or recordkeeping requirements under the Paperwork Reduction
Act of 1995.
Executive Order 13132, ``Federalism''
It has been certified that 32 CFR part 288 does not have federalism
implications, as set forth in Executive Order 13132. This rule does not
have substantial direct effects on:
1. The States;
2. The relationship between the National Government and the States;
or
3. The distribution of power and responsibilities among the various
levels of Government.
List of Subjects in 32 CFR Part 288
Freedom of information.
Accordingly, title 32 of the Code of Federal Regulations, Chapter
I, Subchapter N is proposed to be amended by adding part 288 as
follows:
PART 285--OFFICE OF THE SECRETARY OF DEFENSE AND JOINT STAFF
FREEDOM OF INFORMATION ACT (FOIA) PROGRAM
Sec
288.1 Purpose.
288.2 Applicability.
288.3 Definitions.
288.4 Policy.
288.5 Responsibilities.
288.6 Procedures.
288.7 Information requirements.
Appendix to Part 288--DoD Agencies and Field Activities, And Other
Defense Organizations Served by the Freedom of Information Division
Authority: 5 U.S.C. 552.
Sec. 288.1 Purpose.
This part establishes Office of the Secretary of Defense (OSD)
policy, assigns responsibilities, and prescribes procedures for the
effective administration of the Freedom of Information Act (FOIA)
Program in OSD and the Joint Staff (JS). This part supplements and
implements part 286 of 32 CFR, the DoD Freedom of Information Act
Regulation.
Sec. 288.2 Applicability.
This part applies to OSD, the Office of the Chairman of the Joint
Chiefs of Staff and the Joint Staff, and the Defense Agencies and DoD
Field Activities listed in the appendix to this part. They will
hereafter be referred to collectively as the ``OSD and JS Components.''
Sec. 288.3 Definitions.
Appeal. A request by a member of the general public, made under the
FOIA, asking the appellate authority to reverse an initial denial
authority (IDA) decision to withhold all or part of a requester record
or to deny a request for a fee waiver, reduction of fees, or expedited
processing, or any other adverse determination.
Consultation. The process whereby a DoD Component transfers a FOIA
responsive document to another Component, Federal agency, or non-U.S.
government entity to obtain recommendations on the releasability of the
document. After review, the document is returned to the original
Component for response to the requester or further review.
FOIA request. A written request for records, made by a person,
including a member of the public (U.S. or foreign citizen), an
organization, or a business, but not including a Federal agency or a
fugitive from the law, that either explicitly or implicitly invokes the
FOIA. A request must reasonably describe the records sought and be
submitted in compliance with this part 286 of 32 CFR.
IDA. An individual granted the authority to make initial
determinations as to the releasability of records to the public.
Privacy Act request. A written request from a U.S. citizen or alien
lawfully admitted for permanent residence seeking records on himself or
herself that are contained within a Privacy Act system of records.
Referral. The process whereby a DoD Component transfers a request
to another DoD Component or Federal agency for one of two reasons. 1.
The DoD Component that receives the request determines that responsive
records are with another DoD Component or Federal agency, and therefore
transfers that request to the other DoD Component or agency for
processing and direct response to the requester. 2. The DoD Component
that receives the request locates documents that originated with
another DoD Component or Federal agency. In this case, the request and
documents are transferred to the originating DoD Component or Federal
agency for response directly to the requester. This also applies to the
situation where a responsive document is transferred to a higher-level
authority for response to the requester.
Sec. 288.4 Policy.
It is OSD policy that OSD and JS Components shall promote the
public trust by making the maximum amount of information available to
the public on the operation and activities of the Department of
Defense, consistent with the Department's responsibility to protect
national security and other sensitive DoD information.
Sec. 288.5 Responsibilities.
(a) The Chief, Freedom of Information Division (FOID), Executive
Services Directorate, Washington Headquarters Services (WHS), shall
organize, direct, and manage the Office of Freedom of Information
(OFOI), the Defense Freedom of Information Policy Office (DFOIPO), and
the OSD/JS Privacy Office, and ensure their mutually supported
functions are integrated to promote maximum efficiency.
(b) Additionally, the Chief, FOID, shall:
(1) Direct and administer the DoD FOIA Program within the OSD and
JS Components.
[[Page 59581]]
(2) Execute policies and establish procedures to ensure compliance
with 32 CFR parts 285 and 286.
(3) Maintain the OSD/JS FOIA Requester Service Center (RSC).
(4) Serve as the central point of contact (POC) within the OSD and
JS Components for the receipt of all FOIA initial requests for records
of the OSD Components.
(5) Forward FOIA and Privacy Act requests for records from the
public to the OSD Components having possession, control, and/or
equities in the requested record.
(6) Respond to FOIA and Privacy Act requesters concerning OSD/JS
records.
(7) Maintain a document management system of FOIA and Privacy Act
requests.
(8) Conduct educational training for the OSD Components on the
requirements and implementation of the FOIA, 5 U.S.C. 552, in
accordance with 32 CFR part 286.
(9) Administer the OSD/JS FOIA RSC Web Site. This includes OSD and
JS compliance with 5 U.S.C. 552(a)(2).
(10) Receive processing fees for deposit in the U.S. Treasury FOIA.
(11) Serve concurrently as Chief, DFOIPO, and shall:
(i) Receive, process, and review all FOIA appeals for the OSD and
JS Components and the Combatant Commands and make recommendations to
the appellate authority for final adjudication of these FOIA appeals.
(ii) Provide FOIA litigation support to the Office of the General
Counsel, Department of Defense.
(c) The General Counsel, WHS, shall provide assistance and advice
to the Pentagon Force Protection Agency (PFPA) and WHS components in
the processing of initial denials of requested PFPA and WHS records.
(d) The General Counsel, Department of Defense, shall:
(1) Provide assistance and advice to the OSD Components in the
processing of initial denials of requested records.
(2) Coordinate with the Department of Justice on all final appeals
for requested records when litigation is likely.
(3) Through the Office of Legislative Counsel, provide assistance
and advice to OFOI in the processing and final review of Secretary and
Deputy Secretary-level records.
(e) The Heads of OSD and JS Components shall:
(1) Process FOIA requests received from the OFOI in accordance with
this part and 32 CFR part 286.
(2) Serve as the IDA, who is authorized to make initial
determinations on initial requests for records under 5 U.S.C. 552. This
responsibility may be delegated to a representative authorized to deny
information on their behalf.
(3) Designate an office and an individual(s) as the POC for FOIA
matters. Provide written notice to OFOI of delegated IDAs and POCs,
including notice of changes.
(4) Coordinate with legal counsel as necessary on proposed denials
of records.
(5) Provide OFOI with a brief statement of the reasons for the
denial, including the identification of any exemptions applied.
(6) Alert OFOI when the issues raised by a FOIA request are of
unusual significance, precedent setting, or otherwise require special
guidance from OFOI.
(7) Forward all FOIA requests that are received directly from the
requester (known as ``out-of-channels requests'') to OFOI for entry
into the FOIA case tracking system.
(8) Establish procedures to mark record copies and to notify
holders of classified records that have been downgraded, declassified,
or reclassified as a result of a review under 5 U.S.C. 552.
(9) Provide instructions to employees who administer FOIA matters
under this part and 32 CFR parts 285 and 286.
(10) Include a ``FOIA'' link on Component Web sites to the OSD/JS
FOIA RSC (https://www.dod.mil/pubs/foi/) to assist requesters in
properly directing their FOIA requests to the correct office for
processing.
Sec. 288.6 Procedures.
(a) General. A request to the OSD/JS RSC for access to information
under the provisions of 32 CFR part 286 may be denied upon the
determination that:
(1) The requested information is exempt under 5 U.S.C. 552.
(2) The requester has failed to comply with the procedural
requirements imposed by 32 CFR parts 285 and 286.
(b) Processing FOIA Requests Within The OSD and JS Components. (1)
The OFOI receives two types of FOIA requests: Direct requests from a
member of the public asking for access to DoD, OSD, or JS information;
and referrals or consultations from other DoD and non-DoD agencies that
contain OSD or JS documents or other agency documents with OSD or JS
equities. In each case, OFOI shall forward the FOIA request (and
responsive documents if a referral or consultation) to the OSD or JS
Component having responsibility for the requested information. Any FOIA
request received by an OSD or JS Component out of channels from a
source other than OFOI shall be directed to OFOI without delay for
formal entry into the case tracking system. The OSD or JS Component
should commence work on the request, pending its return from the OFOI.
(2) FOIA requests shall be sent by OFOI to the OSD or JS Component
having responsibility for the information, along with SD Form 466,
``Freedom of Information Action (Cover Sheet);'' SD Form 472, ``Request
Information Sheet;'' and DD Form 2086, ``Record of Freedom of
Information (FOI) Processing Cost.'' The SD Form 472 and the DD Form
2086 shall be completed and returned to OFOI when processing is
complete along with the documents located as a result of the search.
OSD or JS Components shall forward information denied in total or in
part to OFOI at the initial request stage. The OSD and JS Components
shall conduct document searches at the Federal Records Center,
Suitland, Maryland, if the documents have been retired to that center.
Documents that have been transferred to the National Archives and
Records Administration (NARA) are considered the property of NARA and
are not subject to OSD and JS Component searches.
(3) If an OSD or JS Component believes that a FOIA request is
forwarded to them by OFOI for processing in error the OSD or JS
Component's IDA will explain on the SD Form 472 why the OSD or JS
Component is not the appropriate office and identify the specific
component or other agency of the Government that is likely to have
responsibility for the information.
(4) OFOI shall assign a suspense date to each request tasked to the
OSD and JS Components by which the receiving component must respond to
OFOI. Requests for extensions shall be made to OFOI at least 3 working
days before the suspense date. Extensions of time shall be made by OFOI
and granted on a case-by-case basis depending on whether the reasons
provided qualify as ``unusual circumstances'' as defined by the FOIA.
(5) When a request requires a search by an OSD or JS Component and
the requested record is released in full or denied in its entirety, one
copy of the requested record, a completed SD Form 472, and DD Form 2086
shall be delivered to OFOI. If the located record is denied in part,
two copies of the requested record shall be delivered to OFOI. One copy
will indicate the denied information with red pencil brackets, and the
other copy will be ``clean,'' with no brackets. Those Components using
electronic redaction software may indicate denied information by
electronic brackets or
[[Page 59582]]
highlights. OFOI will redact the document electronically and prepare it
for release to the requester.
(6) If OFOI provides the OSD or JS Component with a document for
review that was located by another agency, the Component will return
the document tasked for review back to OFOI with its release
recommendations. The OSD or JS Component will indicate any exempt
information with red pencil brackets or electronically.
(7) The FOIA, 5 U.S.C. 552(b) requires the release of segregable
information not otherwise exempt. At a minimum, review for
segregability shall be at the paragraph level. If OFOI determines that
the information is not properly segregated, it will be returned to the
OSD or JS Component for further review.
(8) Completed copies of the SD Form 472 and DD Form 2086 shall be
returned with the packet. When a denial is based on a security
classification according to the criteria outlined in DoD 5200.1-R,\1\
the component's decision rationale shall indicate that a current review
of the record supports continued classification. The explanation shall
also contain the specific rationale from Executive Order 12958 that
supports the decision for continued classification of the requested
record. All denials of information require the signature of the IDA on
the SD Form 472.
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\1\ Available at https://www.dtic.mil/whs/directives/corres/pdf/
520001r.pdf.
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(9) A classified document containing unclassified information may
not be denied in total under Exemption 1, 5 U.S.C. 552(b)(1), unless
the unclassified information, when taken in aggregate, would reveal
classified information. This determination must be made in accordance
with section 1.7 of Executive Order 12958. Denial of unclassified
information not meeting that standard may only be accomplished by
exerting one or more of Exemptions 2 through 9 of 5 U.S.C. 552.
(10) All documents, regardless of classification, that are
responsive to a FOIA request must be provided to OFOI for processing.
This includes Confidential, Secret, Top Secret, and Sensitive
Compartmented Information records. OSD and JS Components may contact
the OFOI Security Manager to verify OFOI's clearance level for access
to classified information.
(11) When an OSD and JS Component cannot locate a requested record
and a ``no record'' determination is made, the explanation on the SD
Form 472 shall so state and be signed by the IDA. Complete copies of
the SD Form 472 and DD Form 2086 shall be returned with the packet.
(c) Processing FOIA Appeals Within the OSD and JS Components. (1)
When an appeal involves documents denied by an OSD or JS Component IDA,
DFOIPO shall review the entire case file of the initial action to
determine if the information was properly denied in accordance with 32
CFR part 286 and 5 U.S.C. 552. If the initial action is deemed proper,
then DFOIPO will recommend to the appellate authority that the initial
action be upheld. When DFOIPO determines that the initial denial should
not be upheld on appeal, it shall make a new release recommendation to
the OSD or JS Component and return the denied information to OSD or JS
Component for its reconsideration. Documents will be processed and
returned to OFOI in accordance with the processing procedures outlined
in paragraph (b) of this section.
(2) When an appeal involves an initial ``no record'' response,
DFOIPO shall review the entire case file to determine if the initial
search was adequate. If DFOIPO determines that the administrative
record cannot support the adequacy of the initial search, the OSD or JS
Component shall be tasked to provide more detailed accounting of the
initial search, conduct a new search, or both. If it is determined that
the initial administrative record shows that the initial search was
adequate, DFOIPO will advise the appellate authority to uphold the
original determination.
(3) If the appeal concerns an administrative decision made by
DFOIPO such as denial of expedited processing, fee waiver, or a fee
category determination, DFOIPO shall review the original case file,
along with additional documentary evidence presented by the requester,
and make a recommendation to the appellate authority for final
adjudication.
(4) When the final determination by DFOIPO involves a full grant,
the Chief, FOID or designee shall notify the requester of that
determination.
Sec. 288.7 Information requirements.
The DoD Annual FOIA Report is assigned Report Control Symbol DD-
DA&M(A) 1365 in accordance with the requirements of DoD 8910.1-M.\2\
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\2\ Available at https://www.dtic.mil/whs/directives/corres/pdf/
891001m.pdf.
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Appendix to Part 288--DoD Agencies and Field Activities, and Other
Defense Organizations Served by the Freedom of Information Division
American Forces Information Service
Armed Forces Radiology Research Institute
Defense Acquisition University
Defense Advanced Research Projects Agency
Defense Business Transformation Agency
Defense Equal Opportunity Management Institute
Defense Legal Services Agency
Defense Media Activity
Defense Microelectronics Activity
Defense Modeling and Simulation Office
Defense Prisoner of War/Missing Persons Office
Defense Security Cooperation Agency
Defense Systems Management College
Defense Technology Security Administration
DoD Counterintelligence Field Activity
DoD Human Resources Activity
Joint Professional Military Education Colleges
Missile Defense Agency
National Defense University
Pentagon Force Protection Agency (PFPA)
Uniformed Services University of the Health Sciences
Washington Headquarters Services (WHS)
White House Military Office
September 30, 2008.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. E8-23998 Filed 10-8-08; 8:45 am]
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