83 FR 5196 - DoD Freedom of Information Act (FOIA) Program
DEPARTMENT OF DEFENSE
Office of the Secretary Federal Register Volume 83, Issue 25 (February 6, 2018)
Office of the Secretary
Federal Register Volume 83, Issue 25 (February 6, 2018)
| Page Range | 5196-5197 | |
| FR Document | 2018-02302 |
[Federal Register Volume 83, Number 25 (Tuesday, February 6, 2018)] [Rules and Regulations] [Pages 5196-5197] From the Federal Register Online [www.thefederalregister.org] [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
![5196 Federal Register / Vol. 83, No. 25 / Tuesday, February 6, 2018 / Rules and Regulations
DEPARTMENT OF DEFENSE ‘‘promulgate regulations . . . providing that there be a ‘‘uniform’’ standard
for expedited processing of requests for across different agencies of the
Office of the Secretary records.’’ government. For this reason, I support
This rule implements changes to this proposal.
32 CFR Part 286 conform to the requirements of the Response: The Department of Defense
[DOD–2007–OS–0086; 0790–AI24] following amendments to the FOIA: The appreciates this commenter’s support
OPEN Government Act of 2007, Public for our regulation.
DoD Freedom of Information Act Law 110–175 and the FOIA
Improvement Act of 2016, Public Law Expected Cost Savings of This Rule
(FOIA) Program
114–185. These changes include the The Department of Defense currently
AGENCY: Department of Defense. roles of the FOIA Public Liaison in has 14 separate FOIA rules. With the
ACTION: Final rule. § 286.4, § 286.5, § 286.8, § 286.9, and finalization of this department-wide
§ 286.12; the roles of the FOIA rule, DoD will revoke all component-
SUMMARY: This rule revises the
Requesters Service Centers in § 286.3, level FOIA rules. This rulemaking will
Department of Defense (DoD) Freedom
§ 286.4, § 286.5, § 286.8, § 286.9, reduce costs to the public by
of Information Act (FOIA) regulation to
§ 286.11, and § 286.12; the processing of consolidating the requirements for
implement the FOIA and incorporate
FOIA requests, § 286.7; the timing of requests for access to DoD information.
the provisions of the OPEN Government
responses to FOIA requests, § 286.8; and FOIA requesters are a diverse
Act of 2007 and the FOIA Improvement
the fees schedules, Subpart E. community, including lawyers, industry
Act of 2016. This part promotes
uniformity in the Department of Defense Comments and Responses professionals, reporters, and members of
(DoD) FOIA Program. It takes On Thursday, January 5, 2017 (82 FR the public. Costs for these requestors
precedence over all DoD Component 1192–1206), the Department of Defense can include the time required to
issuances that supplement and published an interim final rule titled research the current FOIA rule for each
implement the DoD FOIA Program. DoD ‘‘DoD Freedom of Information Act component and the time and
will be removing individual component (FOIA) Program’’ for a 60-day public preparation required to submit a
rulemakings in this area as subsequent comment period. The public comment request/appeal. DoD FOIA subject
actions to this rule. period ended on March 6, 2017. Two matter experts estimate that 40% of
DATES: This rule is effective on March 8, public comments were received. This FOIA requests to DoD may involve
2018. section addresses the public comments. consultation of the Code of Federal
FOR FURTHER INFORMATION CONTACT: Comment: From my reading of Regulations and the department’s
James Hogan at 571–372–0462, or email changes proposed to this regulation, I several FOIA regulations. DoD estimates
osd.mc-alex.odcmo.mbx.dod-foia- fully support this. I support this because the consolidation to one FOIA
policy-office@mail.mil. it is making reporting and process of regulation will save those referring to
FOIA requests the same thought the the CFR for FOIA guidance
SUPPLEMENTARY INFORMATION:
entire Department of Defense. If this approximately 30 minutes of research,
Executive Summary regulation was not passed it would review, and compliance time.
This rule revises 32 CFR part 286 to make getting information much more For purposes of estimating
implement section 552 of title 5, United complicated as some areas in the opportunity costs, DoD subject matter
States Code (U.S.C.) and incorporate the department could deny requests while experts deemed it reasonable to use the
provisions of the OPEN Government Act others could over report. With the average of a lawyer’s/judicial law clerk’s
of 2007 and the FOIA Improvement Act uniformity in this regulation, there mean hourly wage ($66.44/hour), as
of 2016. This part promotes uniformity would be less room for error in the informed by the Bureau of Labor and
in the DoD FOIA Program across the department. Overall this should be Statistics, and the 2016 federal
entire Department. implemented as soon as possible minimum wage ($9/hour) to
The FOIA, 5 U.S.C. 552, requires because the United States can’t afford to approximate an hourly wage for an
agencies to ‘‘promulgate regulations, under or over report our defense average FOIA requester. That rate is
pursuant to notice and receipt of public actions. $37.72/hour.
comment, specifying the schedule of Response: The Department of Defense Through this consolidation, DoD
fees applicable to the processing of appreciates this commenter’s support expects to save the requester community
requests [the FOIA] and establishing for our regulation. at least $384,080 annually, as reflected
procedures and guidelines for Comment: The ‘‘FOIA’’ provides in the chart below using FY 2016 data
determining when such fees should be access to the inner-workings of the (annualized costs over perpetuity at a 7
waived or reduced.’’ Additionally, government. The government, including percent discount rate is ¥$384,080;
according to the FOIA, an agency may, the military represents ‘‘we the people.’’ present value costs is ¥$5,486,857).
in its regulation, designate those It’s important that we not create a The cost savings anticipated by the
components that can receive FOIA different standard for the disclosure of repeal of the DoD Component rules are
requests, provide for the aggregation of information that serves the public accounted for in this rulemaking.
certain requests, and provide for interest. Even though the government Individual repeal actions for the DoD
multitrack processing of requests. can exercise its discretion as to what Component rules will refer back to this
Finally, the FOIA requires agencies to information to release, it’s important rule.
daltland on DSKBBV9HB2PROD with RULES
Number 40% of Hourly Projected
Time per
Rule Component of 2016 FOIA wage of cost savings
request
requests requests requester to public
285 ......... DoD ............................................................... 1,794 × 40% × 30 minutes × $37.72 = ¥$13,533.94
287 ......... DISA .............................................................. 590 × 40% × 30 minutes × 37.72 = ¥4,450.96
290 ......... DCAA ............................................................ 93 × 40% × 30 minutes × 37.72 = ¥701.59
VerDate Sep<11>2014 17:43 Feb 05, 2018 Jkt 244001 PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 E:\FR\FM\06FER1.SGM 06FER1](https://thefederalregister.org/doc/83_FR_5221/page/1.svg)
![Federal Register / Vol. 83, No. 25 / Tuesday, February 6, 2018 / Rules and Regulations 5197
Number 40% of Hourly Projected
Time per
Rule Component of 2016 FOIA wage of cost savings
request
requests requests requester to public
291 ......... DTRA (DNA) ................................................. 78 × 40% × 30 minutes × 37.72 = ¥588.43
292 ......... DIA ................................................................ 902 × 40% × 30 minutes × 37.72 = ¥6,804.69
293 ......... NGA (NIMA) .................................................. 109 × 40% × 30 minutes × 37.72 = ¥822.30
295 ......... DoD IG .......................................................... 772 × 40% × 30 minutes × 37.72 = ¥5,823.97
296 ......... NRO .............................................................. 165 × 40% × 30 minutes × 37.72 = ¥1,244.76
298 ......... DSS (DIS) ..................................................... 310 × 40% × 30 minutes × 37.72 = ¥2,338.64
299 ......... NSA/CSS ....................................................... 1,881 × 40% × 30 minutes × 37.72 = ¥14,190.26
518 ......... Army .............................................................. 25,775 × 40% × 30 minutes × 37.72 = ¥194,446.60
701 ......... Navy .............................................................. 9,605 × 40% × 30 minutes × 37.72 = ¥72,460.12
806 ......... Air Force ........................................................ 4,918 × 40% × 30 minutes × 37.72 = ¥37,101.39
300 ......... DLA ............................................................... 3,920 × 40% × 30 minutes × 37.72 = ¥29,572.48
Total ........................................................................ ................ ................ .................... .................. ¥384,080.13
Regulatory Procedures Department of Defense, which do not DEPARTMENT OF HOMELAND
create such an impact. SECURITY
Executive Order 12866, ‘‘Regulatory
Planning and Review’’ and Executive Public Law 96–511, ‘‘Paperwork Coast Guard
Order 13563, ‘‘Improving Regulation Reduction Act’’ (44 U.S.C. Ch. 35)
and Regulatory Review’’ 33 CFR Part 165
This final rule does not impose
Executive Orders 13563 and 12866
reporting or recordkeeping requirements [Docket Number USCG–2018–0020]
direct agencies to assess all costs and
under the Paperwork Reduction Act of RIN 1625–AA87
benefits of available regulatory
1995.
alternatives and, if regulation is
necessary, to select regulatory Executive Order 13132, ‘‘Federalism’’ Security Zone; Choptank River,
approaches that maximize net benefits Cambridge, MD
(including potential economic, Executive Order 13132 establishes AGENCY: Coast Guard, DHS.
environmental, public health and safety certain requirements that an agency
must meet when it promulgates a rule ACTION: Temporary final rule.
effects, distribute impacts, and equity).
Executive Order 13563 emphasizes the that imposes substantial direct SUMMARY: The Coast Guard is
importance of quantifying both costs requirement costs on state and local establishing a temporary security zone
and benefits, of reducing costs, of governments, preempts state law, or encompassing certain waters of the
harmonizing rules, and of promoting otherwise has federalism implications. Choptank River. This action is necessary
flexibility. This rule is not a significant This final rule will not have a to prevent waterside threats before,
regulatory action under E.O. 12866. substantial effect on state and local during, and after an event held at the
governments, or otherwise have Hyatt Regency Chesapeake Bay Golf
Executive Order 13771, ‘‘Reducing
federalism implications. Resort, Spa and Marina in Cambridge,
Regulation and Controlling Regulatory
Costs’’ MD, during February 7–9, 2018. This
List of Subjects in 32 CFR Part 286
rule prohibits vessels and persons from
This final rule is considered an E.O. Freedom of Information Act. entering the security zone and requires
13771 deregulatory action. Details on vessels and persons in the security zone
the estimated cost savings of this rule Accordingly, the interim rule to depart the security zone, unless
are discussed in the ‘‘expected cost published at 82 FR 1192–1206 on specifically exempt under the
savings’’ section of the rule. January 5, 2017, is adopted as final with provisions in this rule or granted
the following changes: specific permission from the Coast
Public Law 104–4, ‘‘Unfunded Mandates
Reform Act’’ (2 U.S.C. Ch. 25) Guard Captain of the Port Maryland-
PART 286—[AMENDED] National Capital Region or his
This final rule is not subject to the designated representative.
Unfunded Mandates Reform Act ■ 1. The authority citation for part 286 DATES: This rule is effective from noon
because it does not contain a federal continues to read as follows: on February 7, 2018, through 1 p.m. on
mandate that may result in the
Authority: 5 U.S.C. 552. February 9, 2018.
expenditure by state, local, and tribal
governments, in the aggregate, or by the ADDRESSES: To view documents
§ 286.7 [Amended]
private sector, of $100M or more in any mentioned in this preamble as being
one year. ■ 2. In § 286.7, amend paragraph (c) in available in the docket, go to http://
the first sentence by removing the www.regulations.gov, type USCG–2018–
Public Law 96–354, ‘‘Regulatory 0020 in the ‘‘SEARCH’’ box, and click
phrase ‘‘inform this DoD Component’’
Flexibility Act’’ (5 U.S.C. Ch. 6) ‘‘SEARCH.’’ Click on Open Docket
and adding in its place ‘‘inform them’’.
It has been certified that this final rule Folder on the line associated with this
daltland on DSKBBV9HB2PROD with RULES
Dated: February 1, 2018. rule.
is not subject to the Regulatory
Flexibility Act because it does not have Aaron Siegel, FOR FURTHER INFORMATION CONTACT: If
a significant economic impact on a Alternate OSD Federal Register Liaison you have questions on this rule, call or
substantial number of small entities. Officer, Department of Defense. email Mr. Ronald L. Houck, Sector
The rule implements the procedures for [FR Doc. 2018–02302 Filed 2–5–18; 8:45 am] Maryland-National Capital Region
processing FOIA requests within the BILLING CODE 5001–06–P Waterways Management Division, U.S.
VerDate Sep<11>2014 17:43 Feb 05, 2018 Jkt 244001 PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 E:\FR\FM\06FER1.SGM 06FER1](https://thefederalregister.org/doc/83_FR_5221/page/2.svg)
Document Created: 2018-02-06 00:30:36
Document Modified: 2018-02-06 00:30:36
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | This rule is effective on March 8, 2018. | |
| Contact | James Hogan at 571-372-0462, or email [email protected] | |
| FR Citation | 83 FR 5196 |
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