DoD Freedom of Information Act (FOIA) Program, 5196-5197 [2018-02302]
Download as PDF
<![CDATA[
5196
Federal Register / Vol. 83, No. 25 / Tuesday, February 6, 2018 / Rules and Regulations
DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 286
[DOD–2007–OS–0086; 0790–AI24]
DoD Freedom of Information Act
(FOIA) Program
Department of Defense.
ACTION: Final rule.
AGENCY:
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
osd.mc-alex.odcmo.mbx.dod-foiapolicy-office@mail.mil.
SUPPLEMENTARY INFORMATION:
SUMMARY:
daltland on DSKBBV9HB2PROD with RULES
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
§ 286.4, § 286.5, § 286.8, § 286.9, and
§ 286.12; the roles of the FOIA
Requesters Service Centers in § 286.3,
§ 286.4, § 286.5, § 286.8, § 286.9,
§ 286.11, and § 286.12; the processing of
FOIA requests, § 286.7; the timing of
responses to FOIA requests, § 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
Number
of 2016
requests
Rule
Component
285 .........
287 .........
290 .........
DoD ...............................................................
DISA ..............................................................
DCAA ............................................................
VerDate Sep<11>2014
17:43 Feb 05, 2018
Jkt 244001
PO 00000
Frm 00022
1,794
590
93
Fmt 4700
40% of
FOIA
requests
×
×
×
40%
40%
40%
Sfmt 4700
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 componentlevel 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.
Hourly
wage of
requester
Time per
request
×
×
×
30 minutes
30 minutes
30 minutes
E:\FR\FM\06FER1.SGM
×
×
×
06FER1
$37.72
37.72
37.72
Projected
cost savings
to public
=
=
=
¥$13,533.94
¥4,450.96
¥701.59
5197
Federal Register / Vol. 83, No. 25 / Tuesday, February 6, 2018 / Rules and Regulations
Rule
291
292
293
295
296
298
299
518
701
806
300
Number
of 2016
requests
Component
.........
.........
.........
.........
.........
.........
.........
.........
.........
.........
.........
DTRA (DNA) .................................................
DIA ................................................................
NGA (NIMA) ..................................................
DoD IG ..........................................................
NRO ..............................................................
DSS (DIS) .....................................................
NSA/CSS .......................................................
Army ..............................................................
Navy ..............................................................
Air Force ........................................................
DLA ...............................................................
78
902
109
772
165
310
1,881
25,775
9,605
4,918
3,920
Total
........................................................................
×
×
×
×
×
×
×
×
×
×
×
................
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
17:43 Feb 05, 2018
Jkt 244001
................
30
30
30
30
30
30
30
30
30
30
30
×
×
×
×
×
×
×
×
×
×
×
minutes
minutes
minutes
minutes
minutes
minutes
minutes
minutes
minutes
minutes
minutes
....................
37.72
37.72
37.72
37.72
37.72
37.72
37.72
37.72
37.72
37.72
37.72
..................
Projected
cost savings
to public
=
=
=
=
=
=
=
=
=
=
=
¥588.43
¥6,804.69
¥822.30
¥5,823.97
¥1,244.76
¥2,338.64
¥14,190.26
¥194,446.60
¥72,460.12
¥37,101.39
¥29,572.48
¥384,080.13
DEPARTMENT OF HOMELAND
SECURITY
Public Law 96–511, ‘‘Paperwork
Reduction Act’’ (44 U.S.C. Ch. 35)
Executive Order 12866, ‘‘Regulatory
Planning and Review’’ and Executive
Order 13563, ‘‘Improving Regulation
and Regulatory Review’’
VerDate Sep<11>2014
×
×
×
×
×
×
×
×
×
×
×
40%
40%
40%
40%
40%
40%
40%
40%
40%
40%
40%
Hourly
wage of
requester
Time per
request
Department of Defense, which do not
create such an impact.
Regulatory Procedures
daltland on DSKBBV9HB2PROD with RULES
40% of
FOIA
requests
Coast Guard
This final rule does not impose
reporting or recordkeeping requirements
under the Paperwork Reduction Act of
1995.
33 CFR Part 165
Executive Order 13132, ‘‘Federalism’’
Security Zone; Choptank River,
Cambridge, MD
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]
1. The authority citation for part 286
continues to read as follows:
■
Authority: 5 U.S.C. 552.
§ 286.7
[Amended]
2. In § 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
PO 00000
Frm 00023
Fmt 4700
Sfmt 4700
[Docket Number USCG–2018–0020]
RIN 1625–AA87
Coast Guard, DHS.
Temporary final rule.
AGENCY:
ACTION:
The Coast Guard is
establishing a temporary security zone
encompassing certain waters of the
Choptank River. This action is necessary
to prevent waterside threats before,
during, and after an event held at the
Hyatt Regency Chesapeake Bay Golf
Resort, Spa and Marina in Cambridge,
MD, during February 7–9, 2018. This
rule prohibits vessels and persons from
entering the security zone and requires
vessels and persons in the security zone
to depart the security zone, unless
specifically exempt under the
provisions in this rule or granted
specific permission from the Coast
Guard Captain of the Port MarylandNational Capital Region or his
designated representative.
DATES: This rule is effective from noon
on February 7, 2018, through 1 p.m. on
February 9, 2018.
ADDRESSES: To view documents
mentioned in this preamble as being
available in the docket, go to https://
www.regulations.gov, type USCG–2018–
0020 in the ‘‘SEARCH’’ box, and click
‘‘SEARCH.’’ Click on Open Docket
Folder on the line associated with this
rule.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this rule, call or
email Mr. Ronald L. Houck, Sector
Maryland-National Capital Region
Waterways Management Division, U.S.
SUMMARY:
E:\FR\FM\06FER1.SGM
06FER1
]]>Agencies
[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]]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of 40% of Hourly wage Projected
Rule Component 2016 FOIA Time per of cost savings
requests requests request requester to public
--------------------------------------------------------------------------------------------------------------------------------------------------------
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
[[Page 5197]]
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
--------------------------------------------------------------------------------------------------------------------------------------------------------
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
