[Federal Register Volume 82, Number 3 (Thursday, January 5, 2017)]
[Rules and Regulations]
[Pages 1192-1206]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31686]


-----------------------------------------------------------------------

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: Interim final rule.

-----------------------------------------------------------------------

SUMMARY: This part 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.

DATES: Effective date: This rule is effective January 5, 2017. Comment 
date: Comments must be received by March 6, 2017.

FOR FURTHER INFORMATION CONTACT: James Hogan, 571-372-0462.

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,

[[Page 1193]]

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.
    This regulatory action imposes monetary costs to the DoD and the 
public. The average cost to the DoD to implement the FOIA for the past 
five years is over $82,000,000. The benefit of this regulatory action 
to the public is that it promotes uniformity in the DoD FOIA Program 
across the entire Department and provides notice of DoD's FOIA policies 
and procedures to the public.
    The revisions to this rule will be reported in future status 
updates as part of DoD's retrospective plan under Executive Order 13563 
completed in August 2011. DoD's full plan can be accessed at: http://www.regulations.gov/#!docketDetail;D=DOD-2011-OS-0036.

Justification for Interim Final Rule

    The DoD is issuing this rule as an interim final rule with a 
request for comments to comply with a statutory deadline in the FOIA 
Improvement Act of 2016. Section 3 of the Act requires agencies to 
review and issue regulations in accordance with the amendments in the 
Act no later than 180 days after the enactment of the Act. The FOIA 
Improvement Act of 2016 was signed by the President on June 30, 2016; 
therefore, agencies need to issue regulations no later than the end of 
December 2016.
    Additionally, this rule implements amendments made in the OPEN 
Government Act of 2007. The DoD's issuance of its revised FOIA 
regulation was previously delayed due to reorganization, process 
changes, and re-coordination requirements based on the inclusion of the 
new legislative amendments and Presidential guidance.

Public Comments on Proposed Rule

    The DoD published a proposed FOIA rule for comment on September 3, 
2014 (79 FR 52500-52524) that was not promulgated as a final rule. Just 
after that time, the Office of Information Policy, Department of 
Justice (DOJ) published its Guidance for Agency FOIA Regulations along 
with a recommended template to be used by agencies in the development 
of their regulations. Accordingly, the DoD made the decision to revise 
its regulation at 32 CFR part 286 so that, to the practical extent 
possible, it aligned with the template recommended by DOJ. The sections 
of the previous proposed rule that are not included in this interim 
rule will be in a separate internal manual, DoD Manual 5400.07. This 
manual contains DoD FOIA processing guidance that is internal to the 
department and is not legally required to be in this rule.
    During the previous public comment period on the proposed rule, the 
DoD received a number of comments that are related to this interim rule 
and our incorporation of the OPEN Government Act of 2007 amendments. 
Those comments, and the Department's adjudication of those comments, 
follow.
    Comment: The previous proposed rule contained the following 
definition of consultation: The ``process whereby a federal agency 
transfers a FOIA responsive document to another federal agency or non-
government entity, in certain situations, to obtain recommendations on 
the releasability of the document.'' One commenter states that this 
definition fails to set parameters for determining when consultation is 
appropriate.
    This commenter ``believes that a `consultation' should occur only 
when another agency, agency component, or non-government entity has a 
`substantial interest' in any of the responsive records or portions 
thereof. While FOIA is silent as to the meaning of the term 
`substantial interest,' the Office of Information Policy (`OIP') 
suggests a `substantial interest' exists when records either 
`originate[] with another agency' or the records contain `information 
that is of interest to another agency or component.' For its part, the 
Department of Justice's FOIA regulations provide that `consultation' 
(or `referral') is appropriate when another agency originated the 
record or, more generally, is `better able to determine whether the 
record is exempt from disclosure.' ''
    This commenter further ``proposes that DoD redefine `consultation' 
accordingly: Consultation. The process whereby a federal agency 
transfers a FOIA responsive record to another federal agency, agency 
component, or non-government entity, when such party has a substantial 
interest in the responsive record, in order to obtain recommendations 
on the releasability of the record. After review, the record is 
returned to the original agency for response to the FOIA requester or 
further review.''
    This commenter also asks the DoD to introduce a definition of 
``substantial interest'' as follows: ``Substantial interest. Another 
agency, agency component, or nongovernment entity possesses a 
`substantial interest' in a FOIA responsive record, such that 
consultation may be appropriate, whenever (1) the responsive record 
originates with that same agency, agency component, or non-government 
entity, or (2) when the agency, agency component, or non-government 
entity is better positioned to judge the proper application of the FOIA 
exemptions, given the circumstances of the request or its familiarity 
with the facts necessary to judge the proper withholding of exempt 
material.''
    Response: Our interim rule adopts the definition of 
``consultation'' from the DOJ FOIA rule template, and we believe this 
is the appropriate definition. It does not contain the phrase 
``substantial interest.'' Furthermore, we are not adding a definition 
of ``substantial interest.'' The proposed definition is too narrow and 
unnecessarily restricts the discretionary decision-making authority of 
DoD officials when determining what other agencies or DoD Components 
should review a requested document prior to release under the FOIA.
    Comment: One commenter appreciates our definition because it tracks 
the new statutory definition codified by the OPEN Government Act of 
2007 and explicitly abandons the outdated ``organized and operated'' 
standard proposed in guidance by the Office of Management and Budget in 
1987. They go on to say that the proposed definition could be improved 
by explaining the manner in which ``alternative media shall be 
considered to be news-media entities.'' Accordingly, they requested we 
amend the definition of ``representative of the news media'' by 
incorporating the entirety of the statutory standard or by adding some 
short indication of the application of the fee category to non-
traditional news media forms and requesters. They believe that the 
proposed definition itself should refer to the important role of 
technology vis-a-vis the news media requester fee category, potentially 
utilizing as a

[[Page 1194]]

starting point the examples provided in the statute.
    Response: We appreciate the comment concerning the definition of 
``representative of the news media''. With our new interim rule, we are 
now adopting the definition as published in the DOJ FOIA regulation 
template. We believe that this definition accurately reflects the Act.
    Comment: Another commenter claims our proposed definition is deeply 
flawed because it states that news is information that is about current 
events or that would be of current interest to the public.
    They go on to say that ``news can and frequently does concern 
historic past events. For example, there are any number of news stories 
that unveil the truth about important events of the past, perhaps 
because they were classified or restricted or secret in some manner. 
There are reporters who focus on important news stories about 
previously unknown aspects of World War II or Korea or Vietnam or the 
Persian Gulf Conflicts. There is important reporting on atomic 
veterans, Agent Orange exposure, chemical weapons testing, and so on. 
Why would important reporting on those past events not be considered 
news?''
    ``Limiting the definition to current events means that the 
government agency would be taking on the role of editor to decide what 
is important, and suggests that any news coverage about past events is 
not newsworthy. This definition is particularly disturbing because many 
of the important news stories involving DoD records concern past events 
and are precisely the type of news reporting that should be recognized 
as news for purposes of the Freedom of Information Act.''
    ``I understand that the definition could be interpreted to stretch 
to cover past events. But unless it is stated explicitly, there are 
components which may misinterpret the definition, and adhere to a 
narrower definition of news.''
    ``Therefore, I propose that the definition be amended to include 
the sentence: `This may include historic past events.' ''
    Response: Because we believe the phrase ``would be of current 
interest to the public'' adequately addresses the commenter's concern, 
we did not accept this recommendation. Furthermore, this section of the 
definition of ``representative of the news media'' mirrors the Act and 
the DOJ FOIA regulation template word for word.
    Comment: One commenter mentions that the list of tasks for the FOIA 
Public Liaison omits two important tasks for the FOIA Public Liaison. 
``First, there is explaining the status of an overdue request. Second, 
the Public Liaison can help to coordinate opportunities for a requester 
to clarify or narrow the scope of a request. This clarification or 
narrowing may require some two way discussion for the requester to 
understand how they may best clarify or narrow the request, including a 
discussion of specific impediments to the processing of the request.''
    Response: We rejected this recommendation because it is our 
intention here to list only the statutory duties of the FOIA Public 
Liaison. We agree this list is not all-inclusive, and accordingly there 
could be a number other duties that FOIA Public Liaisons will perform. 
However, these other duties, to include those that the commenter 
mentions, are included within the scope of the statutory duties of the 
FOIA Public Liaison.
    Comment: One commenter recommends a change to the section 
concerning Confidential Commercial Information. Specifically, the DoD 
mirrors the language of Executive Order 12600, which says that when 
providing the submitter of commercial information the opportunity to 
provide comment on the agency's release of its information under the 
FOIA, DoD Components should provide the submitter with a reasonable 
amount of time to comment. The commenter recommends, instead, that the 
submitter be given ten business days to respond to the notice with 
reasons for withholding disclosure. If the submitter fails to respond 
within the allotted ten days, the Agency must conclude that the 
submitter has no objection to disclosure of the requested information.
    Response: We appreciate this comment, and agree that ten business 
days is a very reasonable time frame. However, because of the wide 
diversity of acquisition environments within the Department of Defense, 
it may be the case a longer period of time would be more reasonable. 
The DoD Components have very different acquisition environments; we 
have contracts concerning, for example, uniforms, office supplies, 
landscaping, complex information technology systems, satellites, 
healthcare, construction, and food. Accordingly, we believe that the 
individual components are best situated to determine the reasonable 
time for submitter response for their unique situations.
    Comment: Once commenter recommends that upon submission of 
confidential information by the submitter to the DoD, the DoD should 
require the submitter to designate with good-faith effort any portions 
of the submission the submitter considers to be exempt under Exemption 
4. A good-faith effort designation can be useful because it allows the 
DoD to work with information submitted beforehand that would help in 
its determination on whether to disclose information submitted by the 
submitter. They further suggest that the submitter's designation expire 
ten years after the date of submission unless the submitter requests, 
and provides justification for, a longer designation period. They state 
that the proposed section should be added as follows: ``Designation of 
confidential business information. In the event a FOIA request is made 
for confidential business information previously submitted to the 
Government by a commercial entity or on behalf of it (referred to as a 
`submitter'), the regulations in this section apply. When submitting 
confidential business information, the submitter must use a good-faith 
effort to designate, by use of appropriate markings, at the time of 
submission or at a reasonable time thereafter (generally, within 30 
days), any portions of the submitter's submission the submitter 
considers to be exempt from disclosure under FOIA Exemption 4, 5 U.S.C. 
552(b)(4). The submitter's designation will expire ten years after the 
date of submission unless the submitter requests, and provides 
justification for, a longer designation period.''
    Response: Some DoD Components have adopted a similar practice, and 
we believe that given the wide variety of DoD contracts (as described 
in the previous response), this procedure is best left with the 
components to determine whether it's appropriate for them. 
Additionally, this is actually an acquisition and not a FOIA policy 
recommendation; therefore, this rule is not the appropriate place for 
the policy. Furthermore, this policy (of proactively determining the 
confidential business information without a FOIA request) suffers from 
a defect. When a FOIA request is received for this type of information, 
the FOIA provides the ``push'' to the Agency to release the 
information, and Executive Order 12600 provides the submitter the 
opportunity to protect it. With the FOIA, the Agency has the legal 
authority to release information over the objections of the submitter, 
and with the Executive Order the submitter can prevent such a release 
under the Administrative Procedures Act. However, in the process 
recommended by this commenter, if the submitter asks the Agency to 
protect information that the Agency clearly

[[Page 1195]]

believes is not protectable under Exemption 4, it has no recourse to 
persuade or convince the submitter to made a more reasonable 
determination. The inevitable, yet unintended, consequence would be 
less contract information being released to the public; in effect, less 
transparency.
    Comment: A commenter discussed our proposed rule's reference to the 
FOIA exclusions, 5 U.S.C. 552(c)(1)-(3). They believe that this allows 
the DoD to make a misrepresentation regarding the actual existence of 
records to the requester. Specifically, they objected to the following 
wording: Because of the possibility of the existence of excluded 
records, DoD law enforcement components will respond to all FOIA 
requests when no records are located or when located records fall 
within an exclusion by stating that no records responsive to the FOIA 
were found.
    This commenter believes ``the justification the proposed regulation 
provides for misrepresentation--`the possibility of the existence of 
excluded records'--is insufficient. The FOIA contemplates a need for 
nondisclosure in cases of records the release of which could threaten 
the efficacy of law enforcement, but in no way does it countenance 
lying to requesters. Law enforcement may reasonably demand flexibility 
in the principles of open government that the FOIA seeks to advance, 
but it cannot require complete abdication of those principles. It is 
also unclear from the proposed regulations whether the DoD would 
believe itself authorized to make misrepresentations to Legislatures as 
to the existence of (b)(7) records.''
    This commenter recommends instead that the agency follow the 
approach set out in the Department of Justice's guidelines regarding 
exclusions. The agency should have internal accountability mechanisms 
to ensure that exclusions are not overused. It should also include 
language in all FOIA responses informing the requester of the existence 
of exclusions and should also post information about exclusions on its 
public Web site.
    Response: The procedures that we had in the proposed rule were 
appropriate and in accordance with the Act and DOJ procedural guidance. 
However, we have deleted much of the procedural guidance for exclusions 
and now our section on this topic mirrors the DOJ FOIA regulation 
template.
    Comment: One commenter appreciated the requirement that a FOIA 
Requester Service Center must provide a requester with an estimated 
date of completion for their FOIA request when the requester enquires 
about the status of a request. However, the commenter also indicated 
that there is not a good accountability measure listed to ensure that 
dates given are given in good faith.
    Response: We are not sure what the commenter means by 
``accountability measure,'' or how it would apply to this rule. 
Therefore, we did not adopt their recommendation.
    Comment: One commenter recommend that in the section concerning 
expedited processing, we should provide examples of compelling need, 
imminent loss of due process rights, and humanitarian need.
    Response: We appreciate this comment; however, for the sake of 
brevity, we are not including examples. Furthermore, in this case the 
use of examples risks the possibility of adding confusion to the 
understanding of the issue.
    Comment: One commenter is concerned that we were separating the 
definition of compelling need from the main body of the regulation.
    Response: We appreciate this comment. Our previous proposed rule 
had a definitions section separate from the body of the rule. Now that 
we are publishing our rule according to the DOJ FOIA regulation 
template, the definition is located within the body of the rule.
    Comment: In the fees section of our proposed rule, and in our 
current rule, we have a ``business as usual approach'' concerning the 
costs associated with the processing of electronic records. 
Specifically, the proposed rule said that a ``business as usual 
approach exists when the DoD Component has the capability to process a 
FOIA request for electronic records without a significant expenditure 
of monetary or personnel resources. DoD Components are not required to 
conduct a search that does not meet this business as usual criterion.'' 
A commenter mentions that this has no foundation in law, and obfuscates 
the true reasonableness standard for electronic searches set out in 5 
U.S.C. 552(a)(3)(C). They propose that it should be eliminated.
    Response: We agree with the commenter and have removed the 
``business as usual'' criterion.
    Comment: One commenter is concerned about the absence of 
``substantial interest'' in the discussion of consultations with and 
referrals to other agencies, agency components, or non-government 
entities. They mention the proposed rule contains varying references to 
``substantial interest,'' ``equity interest,'' and ``interest or 
equity.'' This commenter recommends that DoD standardize its language 
by using ``substantial interest'' to avoid confusion. It also should 
provide a clear statement that consultation ought never to occur with 
an entity that does not possess a substantial interest in responsive 
records.
    Response: Because we have adopted the DOJ FOIA regulation template, 
we have standardized the use of the word ``interest,'' it is not 
further modified by ``substantial'' or ``equity''.
    Comment: One commenter recommends that DoD revise the practice of 
not advising FOIA requesters that a consultative process has been 
undertaken ``unless information is withheld by the consulted agency.'' 
This commenter believes that ``transparency and an open government--
hallmarks of FOIA--mandate that agencies provide requesters with this 
information.''
    Response: Because we have adopted the DOJ FOIA regulation template, 
which does not include this practice, the interim final rule also does 
not include guidance to not inform FOIA requesters of consultations.
    Comment: Concerning the procedure of advising FOIA requesters of 
their appeal rights, one commenter states that the time limits on 
submission of administrative appeals should recognize the Justice 
Department's statements on the possibility of lengthy delays on mail 
reaching government agencies due to security screening. They suggest 
that the postmark of the letter can be used to satisfy the appeal 
deadline for an administrative appeal, as is permitted in most legal 
situations.
    Response: With our adoption of the DOJ FOIA regulation template, we 
have now adopted this procedure.
    Comment: One commenter mentions the language in our proposed rule 
which concerns commercial requesters. It indicates that a 
``representative of the news media could make a FOIA request that is 
for commercial use (e.g., a magazine publisher asking for duty 
addresses of DoD personnel to solicit them to buy subscriptions to the 
magazine).'' The commenter notes that while it is theoretically 
possible that if a FOIA request could be submitted to DoD by a member 
of the news media for such a purpose, such a scenario is unlikely and, 
at the very least, uncommon. This commenter further contents that a 
FOIA request is submitted by a member of the news media, there should 
be a strong presumption that the requestor is entitled to 
classification as a ``representative of the news media'' for fee 
purposes.
    Response: We agree, and with our adoption of the DOJ FOIA 
regulation template, this subsection was deleted.
    Comment: One commenter mentions that our proposed subsection on 
fees

[[Page 1196]]

discusses examples of news media entities such as publishers of 
periodicals who make their products available for purchase or 
subscription by the general public. This commenter believes that this 
requirement fails to include the large variety and number of online 
news organizations, many of which provide their products free of charge 
to internet readers. Therefore, they propose that the subsection should 
be adjusted to recognize this reality. They ask that we ``remove the 
requirement that a publisher of periodicals must make their products 
available for purchase or subscription, as that requirement 
unnecessarily impedes the qualification of many legitimate news media 
entities at the present time.''
    Response: Because we are adopting the DOJ FOIA regulation template, 
this phrase is no longer in our regulation.
    Comment: Another commenter had a similar issue with this section. 
``[The] FOIA states that examples of news-media entities include 
`publishers of periodicals . . . who make their products available for 
purchase by or subscription by or free distribution to the general 
public.' The Proposed Rule, on the other hand, inexplicably truncates 
the definition to exclude publishers that make their publications 
available for `free distribution to the general public.' There are 
countless media entities that provide their services to the public for 
free or through an advertisement-based model, including the 
overwhelming majority of broadcast and online news outlets. ABC News, 
National Public Radio, CBS News, Slate, NBC News, Politico, Pro 
Publica, and PBS are just a handful of examples of organizations that 
provide news to the public for free. It would be absurd for the DoD not 
to recognize these and other news organizations that provide free or 
advertising-supported journalism as representatives of the news 
media.''
    ``Furthermore, the authority under which the DoD is empowered to 
promulgate regulations regarding its implementation of FOIA, 5 U.S.C. 
552(a)(4)(A)(i), states that [s]uch agency regulations shall provide 
that . . . [e]xamples of news-media entities are . . . publishers of 
periodicals (but only if such entities qualify as disseminators of 
`news') who make their products available for purchase by or 
subscription by or free distribution to the general public.''
    ``While the statute says such examples are `not all-inclusive,' the 
DoD cannot promulgate regulations that are less inclusive than what 
Congress has indicated. As the Supreme Court has held with regard to an 
agency's construction of a statute which it administers, `[i]f the 
intent of Congress is clear, that is the end of the matter; for the 
court, as well as the agency, must give effect to the unambiguously 
expressed intent of Congress.' Therefore, [we urge] the DoD to expand 
its definition of news-media entities to include publishers who make 
their products available for free to the public, in accordance with the 
express direction of Congress in the 2007 OPEN Government Act.''
    Response: Our adoption of the DOJ FOIA regulation template revises 
this subsection to satisfactorily adopt this commenter's 
recommendation.
    Comment: One commenter requests that DoD elaborate on the meaning 
of ``alternative media.'' Specifically, they state: ``While DoD has 
followed FOIA's instruction to consider evolving `methods of news 
delivery' and `alternative media' formats when defining a news media 
entity, the proposed section would benefit from some examples that 
could provide guidance to FOIA officers when considering fee category 
requests. Specifically, [we are] concerned that nascent news media 
organizations, which have yet to demonstrate a large readership or a 
history of reporting and dissemination, could be excluded.''
    ``Ensuring an expanded definition of `alternative media' is 
entirely consistent with judicial precedent. For example, the U.S. 
Court of Appeals for the District of Columbia Circuit has noted that 
FOIA's legislative history demonstrates `it is critical that the phrase 
`representative of the news media' be broadly interpreted if the act is 
to work as expected. . . . In fact, any person or organization which 
regularly publishes or disseminates information to the public . . . 
should qualify . . . as a `representative of the news media.' The U.S. 
District Court for the District of Columbia has similarly construed 
DoD's current fee category regulation, 32 CFR 286.28(e)(7)(i), to 
include, for example, regular publishers of periodicals, even when 
those periodicals are simply disseminated by email or posted on a 
frequently visited Web site.''
    ``The legislative history of FOIA also suggests the need for 
improvement in the treatment of `alternative media.' Senator Patrick 
Leahy, co-sponsor of the OPEN Government Act, stated that the changes 
to the definition of `representative of the news media' would ensur[e] 
that anyone who gathers information to inform the public, including . . 
. bloggers, may seek a fee waiver[.]' He also stated that the new 
definition covered `Internet blogs and other Web-based forms of media . 
. . free newspapers and individuals performing a media function who do 
not necessarily have a prior history of publication.' Co-sponsor 
Senator John Cornyn affirmed Senator Leahy's view that the new 
definition `grants the same privileged FOIA fee status currently 
enjoyed by traditional media outlets to bloggers and others who publish 
reports on the Internet.' ''
    ``Accordingly, [we request] that DoD expand the proposed definition 
of `representative of the news media' by incorporating the entirety of 
the statutory standard and by adding some short indication of the 
application of fee category to non-traditional news media forms and 
requesters.''
    Response: We understand and appreciate this recommendation; 
however, we are not revising this subsection as requested. We do not 
believe that an expanded definition of ``alternative media'' is 
necessary. Any such elaboration or definition risks excluding some 
types of alternative media. Additionally, the DOJ FOIA regulation 
template, which we have adopted, does not contain any such expanded 
definition.
    Comment: This same commenter requests ``that DoD provide further 
explanation of how it will determine whether potential news media 
requesters possess the editorial skill to use responsive records to 
create a `distinct work' and the sufficient intent to `distribute[] 
that work to an audience.' News media requesters often prove this skill 
and intent with varying levels of specificity. DoD should clarify the 
standard of proof it will apply to these requests. Moreover, it should 
clarify the extent to which information about the requester that is not 
contained in the request will be used to determinate the veracity of a 
requester's claims. For example, DoD should explain whether it is 
appropriate to examine the history of an organization, its past 
practices with regard to FOIA records, and the detail of its planned 
use of responsive records, subject to editorial considerations and the 
content of the production. [We recommend] that DoD permit after-the-
fact factual considerations, but that it remind FOIA offices that news 
media requester status is not static, so as to accommodate nascent news 
media persons or entities and others transitioning into news 
reporting.''
    Response: We appreciate this recommendation; however, we do not 
believe that this rule is the appropriate place for a further 
explanation of how we should determine whether a potential news media 
requester meets

[[Page 1197]]

the statutory standard or not. DOJ has not provided guidance in this 
area, and if they do we will pass it to the DoD Components.
    Comment: This commenter also points out that the proposed rule 
states, in part, that ``[f]reelance journalists may be regarded as 
working for a news organization. . . .'' This commenter contends that 
``this language appears to largely mirror the language in the 2007 OPEN 
Government Act, which was codified at 5 U.S.C. 552(a)(4)(A)(iii). 
However, the language of the Proposed Rule changes the imperative 
`shall' of FOIA to a permissive `may.' As stated above, the authority 
under which the DoD is empowered to promulgate regulations regarding 
its implementation of FOIA, 5 U.S.C. 552(a)(4)(A)(i), states that 
`[s]uch agency regulations shall provide that . . . [a] freelance 
journalist shall be regarded as working for a news-media entity. . . .' 
The DOD has no power to modify a clear and essential term contained in 
a statute through the regulatory process. The Proposed Rule must be 
changed such that it properly reflects the will of Congress.''
    Response: The DOJ FOIA regulation template, which we adopted, uses 
the term ``will'' which we believe has the same imperative force as 
``shall''.
    Comment: This commenter also is concerned that a subsection of the 
proposed rule may be interpreted too narrowly by FOIA officers. The 
proposed rule states that ``[a] person or entity that merely 
disseminates documents received pursuant to the FOIA to an audience 
would not qualify as a representative of the news media because, in 
this case, the person or entity is not using editorial skills to turn 
raw materials into a distinct work.'' The commenter contends ``While it 
is true that FOIA defines `a representative of the news media' as a 
person or entity that gathers information and uses its editorial skills 
to turn such information into a distinct work for distribution, the 
Proposed Rule would benefit from clarifying language instructing FOIA 
officers that it should be interpreted liberally in favor of the 
requestor. A person or entity that meets the definition of `a 
representative of the news media' may, in certain circumstances, 
disseminate documents received pursuant to a FOIA request in full, 
oftentimes publishing such documents online alongside or as a 
supplement to a news article or other commentary. This practice is 
beneficial, and should not lead to the denial of media fee status.''
    Response: We believe that this paragraph does not contradict the 
FOIA; it is very clear that the Act requires a representative of the 
news media to use ``editorial skills.'' However, since this sentence is 
not in the DOJ FOIA regulation template, we do not have it in our 
interim rule.

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 interim final rule has been designated a 
``significant regulatory action,'' although not economically 
significant, under section 3(f) of Executive Order 12866. Accordingly, 
the rule has been reviewed by the Office of Management and Budget (OMB) 
under the requirements of these Executive Orders.

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

    This interim 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 interim 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 interim 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 interim 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.

0
Accordingly, 32 CFR part 286 is revised to read as follows:
Subpart A--General Provisions
Sec.
286.1 Purpose.
286.2 Applicability.
Subpart B--FOIA Requests
286.3 General information.
286.4 FOIA Public Liaisons and the Office of Government Information 
Services.
286.5 Description of records sought.
286.6 Preservation of records.
Subpart C--FOIA Request Processing
286.7 General provisions.
286.8 Timing of responses to requests.
286.9 Responses to requests.
286.10 Confidential Commercial Information.
Subpart D--Appeals
286.11 Processing of appeals.
Subpart E--Fees
286.12 Schedule of fees.
286.13 Fees for technical data.

    Authority: 5 U.S.C. 552.

PART 286--DOD FREEDOM OF INFORMATION ACT (FOIA) PROGRAM

Subpart A--General Provisions


Sec.  286.1  Purpose.

    This part contains the rules that the public follows in requesting 
information from the Department of Defense (DoD) in accordance with the 
FOIA, as amended, 5 U.S.C. 552, and how those requests will be 
processed by the DoD. These rules should be read in conjunction with 
the text of the FOIA and the Uniform Freedom of Information Fee 
Schedule and Guidelines published by the Office of Management and 
Budget (``OMB Guidelines''). Requests made by individuals for records 
about themselves under the Privacy Act of 1974, as amended, 5 U.S.C. 
552a, are processed in accordance with 32 Code of Federal Regulations 
(CFR) part 310. Additionally, the Directorate for Oversight and 
Compliance maintains a DoD FOIA Handbook for the public to use in 
obtaining information from the DoD. This handbook contains information 
about specific procedures particular to the DoD with respect to the

[[Page 1198]]

public requesting DoD records. This handbook includes descriptions of 
DoD Components and the types of records maintained by different DoD 
Components. It is available at http://open.defense.gov/Transparency/FOIA/FOIAHandbook.aspx.


Sec.  286.2  Applicability.

    This part applies to the Office of the Secretary of Defense (OSD), 
the Military Departments, the Office of the Chairman of the Joint 
Chiefs of Staff and the Joint Staff, the Combatant Commands, the Office 
of the Inspector General of the Department of Defense, the Defense 
Agencies, the DoD Field Activities, and all other organizational 
entities within the DoD (referred to collectively in this part as the 
``DoD Components'').

Subpart B--FOIA Requests


Sec.  286.3  General information.

    (a) The DoD has a decentralized system for responding to FOIA 
requests, with each DoD Component designating at least one FOIA 
Requester Service Center (RSC) to process records from that component. 
All DoD RSCs have the capability to receive requests electronically 
either through email or a web portal. To make a request for records, a 
requester should write directly to the DoD Component that maintains the 
records being sought. A request will receive the quickest possible 
response if it is addressed to the RSC of the DoD Component that 
maintains the records sought. Addresses and contact information for the 
RSCs are available at http://www.foia.gov/report-makerequest.html. This 
Web site has the contact information for the following DoD Components: 
The OSD and the Office of the Chairman of the Joint Chiefs of Staff and 
the Joint Staff, Department of the Army, Department of the Navy, 
Department of the Air Force, Armed Services Board of Contract Appeals, 
Defense Commissary Agency, Defense Contract Audit Agency, Defense 
Contract Management Agency, Defense Finance and Accounting Service, 
Defense Health Agency, Defense Information Systems Agency, Defense 
Intelligence Agency, Defense Logistics Agency, Defense Security 
Service, Defense Technical Information Center, Defense Threat Reduction 
Agency, Joint Personnel Recovery Agency, DoD Education Activity, 
National Geospatial-Intelligence Agency, National Guard Bureau, 
National Reconnaissance Office, National Security Agency/Central 
Security Service, Office of the Inspector General of the Department of 
Defense, United States Africa Command, United States Central Command, 
United States European Command, United States Northern Command, United 
States Pacific Command, United States Special Operations Command, 
United States Strategic Command, and United States Transportation 
Command.
    (b) The OSD/Joint Staff FOIA RSC also processes FOIA requests for 
the Criminal Investigation Task Force, Defense Acquisition University, 
Defense Advanced Research Projects Agency, Defense Equal Opportunity 
Management Institute, Defense Legal Services Agency, Defense 
Microelectronics Activity, Defense Media Activity, Defense POW/MIA 
Accounting Agency, Defense Security Cooperation Agency, Defense 
Technology Security Administration, Defense Travel Management Office, 
DoD Human Resources Activity, DoD Test Resource Management Center, 
Joint Improvised-Threat Defeat Agency, Missile Defense Agency, National 
Defense University, Office of Economic Adjustment, Pentagon Force 
Protection Agency, Uniform Services University of the Health Sciences, 
Washington Headquarters Services and White House Military Office.
    (c) A requester who is making a request for records about himself 
or herself, regardless of whether the records are in a Privacy Act 
system of records, must comply with the verification of identity 
requirements as determined by the DoD Component in accordance with 32 
CFR part 310.


Sec.  286.4  FOIA Public Liaisons and the Office of Government 
Information Services.

    (a) Each DoD Component has at least one FOIA Public Liaison. FOIA 
Public Liaisons are responsible for working with requesters that have 
any concerns about the service received from a FOIA RSC, reducing 
delays in the processing of FOIA requests, increasing transparency and 
understanding of the status of requests, and assisting in the 
resolution of disputes. Contact information for DoD Component FOIA 
Public Liaisons is available at http://www.foia.gov/report-makerequest.html.
    (b) Engaging in dispute resolution services provided by OGIS. 
Mediation is a voluntary process. If a requester seeks dispute 
resolution services from the Office of Government Information services 
(OGIS), the DoD will actively engage as a partner to the process in an 
attempt to resolve the dispute.


Sec.  286.5  Description of records sought.

    (a) Requesters must reasonably describe the records sought and 
provide sufficient detail to enable personnel to locate those records 
with a reasonable amount of effort. To the extent possible, requesters 
should include specific information that may assist personnel in 
identifying the requested records, such as the date, title or name, 
author, recipient, subject matter of the record, case number, file 
designation, or reference number. Before submitting their requests, 
requesters may contact the DoD Component's FOIA RSC or FOIA Public 
Liaison to discuss the records they are seeking and to receive 
assistance in describing the records. If after receiving a request the 
DoD Component determines that it does not reasonably describe the 
records sought, the DoD Component shall inform the requester what 
additional information is needed or why the request is otherwise 
insufficient. Requesters who are attempting to reformulate or modify 
such a request may discuss their request with the DoD Component's FOIA 
contact or FOIA Public Liaison. Requesters are encouraged to make every 
effort to reasonably describe the requested records in order to avoid 
any delays in the processing of their requests.
    (b) Requesters may specify the preferred form or format (including 
electronic formats) for the requested records. DoD Components will 
accommodate the request if the record is readily reproducible in that 
form or format.
    (c) Requesters must provide contact information, such as a 
telephone number, email address, and/or mailing address, to assist the 
DoD Component in communicating and providing released records.


Sec.  286.6  Preservation of records.

    Each DoD Component shall preserve all correspondence pertaining to 
the requests that it receives under this part, as well as copies of all 
requested records, until disposition or destruction is authorized 
pursuant to title 44 of the United States Code or the General Records 
Schedule 4.2 of the National Archives and Records Administration 
(NARA). Records shall not be disposed of or destroyed while they are 
the subject of a pending request, appeal, or lawsuit under the FOIA.

Subpart C--FOIA Request Processing


Sec.  286.7  General provisions.

    (a) Responsibilities. The DoD Component receiving a FOIA request 
for a record that it maintains is responsible for making a 
determination on the request and responding to the FOIA requester. In 
determining which records are responsive to a request, a DoD Component 
ordinarily will include only records in its possession as of the date

[[Page 1199]]

that it begins its search. If any other date is used, the DoD Component 
shall inform the requester of that date. A record that is excluded from 
the requirements of the FOIA pursuant to 5 U.S.C. 552(c), is not 
considered responsive to a request.
    (b) Authority to deny requests. DoD Components will designate one 
or more Initial Denial Authorities (IDA) with the authority to deny any 
requests for records that are maintained by that agency.
    (c) Re-routing of misdirected requests. DoD Components receiving a 
misdirected FOIA request for records clearly originating with another 
DoD Component (e.g. the Air Force receives a FOIA request for a Navy 
contract) will route the FOIA request to the appropriate DoD Component 
and inform this DoD Component of the date the FOIA request was 
initially received. Additionally, it will advise the FOIA requester of 
the routing of the request. This routing requirement only applies to 
those FOIA requests directed to a DoD Component that seek documents for 
which the DoD is responsible. If it is known that responsibility for 
the requested records rests with a non-DoD Federal agency (e.g., 
Department of State), then the DoD Component need only advise the FOIA 
requester to submit the FOIA request to the proper Federal agency. DoD 
Components will not route misdirected FOIA requests to a Defense 
Criminal Investigation Organization or Intelligence Community component 
without first contacting the other component or agency for guidance.
    (d) Consultation, referral, and coordination. When reviewing 
records located in response to a request, the DoD Component may 
determine that another DoD Component or Federal agency also should 
determine whether the record is exempt from disclosure under the FOIA. 
As to any such record, the DoD Component shall proceed in one of the 
following ways:
    (1) Consultation. When records originating with a DoD Component 
that is initially processing a request contain information of interest 
to another DoD Component or other Federal agency, the DoD Component 
initially processing the request should typically consult with all 
interested DoD Components or other Federal agencies prior to making a 
release determination. The DoD Component initially processing the 
request, under these circumstances, will ultimately respond to the 
requester and release any responsive material. The consulted DoD 
Component will notify the sending DoD Component or other Federal agency 
when the consultation is received and the consultation tracking number.
    (2) Referral. (i) When the DoD Component initially processing the 
request believes that a different DoD Component or other Federal agency 
is best able to determine whether to disclose the record, the DoD 
Component typically should refer the responsibility for responding to 
the request regarding that record to that agency. Ordinarily, the 
agency that originated the record will be presumed to be best able to 
make the disclosure determination. Under these circumstances, the DoD 
Component or other Federal agency receiving the referral will 
ultimately make a release determination on the records and respond to 
the requester.
    (ii) Whenever a DoD Component refers a record to another DoD 
Component or Federal agency, it will document the referral, refer a 
copy of the referred record, and notify the requester of the referral, 
informing the requester of the name and FOIA address of the DoD 
Component or Federal agency to which the record was referred.
    (3) Coordination. The standard referral procedure is not 
appropriate where disclosure of the identity of the DoD Component or 
agency to which the referral would be made could harm an interest 
protected by an applicable exemption, such as the exemptions that 
protect personal privacy or national security interests. Under these 
circumstances, the consultation process is the appropriate means for 
coordination. See Sec.  286.7(d)(1). For example, if a non-law 
enforcement agency responding to a request for records on a living 
third party locates within its files records originating with a law 
enforcement agency, and if the existence of that law enforcement 
interest in the third party was not publicly known, then to disclose 
that law enforcement interest could cause an unwarranted invasion of 
the personal privacy of the third party. Similarly, if a DoD Component 
locates within its files material originating with an Intelligence 
Community agency, and the involvement of that agency in the matter is 
classified and not publicly acknowledged, then to disclose or give 
attribution to the involvement of that Intelligence Community agency 
could cause national security harms. In such instances, in order to 
avoid harm to an interest protected by an applicable exemption, the DoD 
Component that received the request should coordinate with the 
originating DoD Component or agency to seek its views the disclosure of 
the record. The release determination for the record should then be 
conveyed to the requester by the DoD Component that originally received 
the request.
    (4) Timing of responses to consultations and referrals. All 
consultations and referrals received by the DoD Component will be 
processed according to the date that the FOIA request was initially 
received by a Federal agency.
    (5) Agreements regarding consultations and referrals. DoD 
Components may establish written agreements with other DoD Components 
or other Federal agencies to eliminate the need for consultations or 
referrals with respect to particular types of records, providing these 
agreements do not conflict with this rule, or another law, rule, or 
regulation.


Sec.  286.8  Timing of responses to requests.

    (a) In general. DoD Components ordinarily will respond to requests 
on a first-in/first-out basis according to their order of receipt. In 
instances involving misdirected requests that are re-routed pursuant to 
Sec.  286.7(c), the response time will commence on the date that the 
request is received by the appropriate DoD Component's FOIA RSC, but in 
any event not later than 10 working days after the request is first 
received by any DoD Component's FOIA RSC that is designated to receive 
requests.
    (b) Multitrack processing. All DoD Components must designate a 
specific track for requests that are granted expedited processing in 
accordance with the standards set forth in the FOIA and paragraph (e) 
of this section. DoD Components may also designate additional 
processing tracks that distinguish between simple and more complex 
requests based on the estimated amount of work or time needed to 
process the request. Among the factors a DoD Component may consider are 
the number of records requested, the number of pages involved in 
processing the request and the need for consultations or referrals. DoD 
Components should advise requesters of the track into which their 
request falls and, when appropriate, shall offer the requesters an 
opportunity to narrow or modify their request so that it can be placed 
in a different processing track.
    (c) Unusual circumstances. Whenever the statutory time limit for 
processing a request cannot be met because of ``unusual 
circumstances,'' as defined in the FOIA, and the DoD Component extends 
the time limit on that basis, the DoD Component must, before expiration 
of the 20-day period to respond, notify the requester in writing of the 
unusual circumstances involved and of the date by which processing of 
the request can be expected to be completed. See 5

[[Page 1200]]

U.S.C. 552(a)(6)(B). Where the extension exceeds 10 working days, the 
DoD Component shall, in accordance with the FOIA, provide the requester 
with an opportunity to modify the request or arrange an alternative 
time period for processing the original or modified request. 
Furthermore, the requester will be advised that the DoD Component FOIA 
Public Liaison is available for this purpose and of their right to seek 
dispute resolution services from OGIS.
    (d) Aggregating requests. For the purposes of satisfying unusual 
circumstances under the FOIA, DoD Components may aggregate requests in 
cases where it reasonably appears that multiple requests, submitted 
either by a requester or by a group of requesters acting in concert, 
constitute a single request that would otherwise involve unusual 
circumstances. DoD Components will not aggregate multiple requests that 
involve unrelated matters.
    (e) Expedited processing. (1) The FOIA establishes two reasons for 
expediting the processing of initial FOIA requests: Compelling need and 
other cases determined by the agency. See 5 U.S.C. 552(a)(6)(E). 
Administrative appeals may be expedited for the same reasons. The DoD 
Components must make expedited processing determinations within 10 
calendar days after receipt of a request that meets the criterion of 
reasonably describing the requested records in Sec.  286.5(a). Once the 
DoD Component decides to grant expedited processing, the request is 
processed as soon as practicable. Adverse actions by DoD Components on 
requests for expedited processing, or a failure to respond to those 
requests in a timely manner, are subject to judicial review.
    (i) Compelling need. Expedited processing is granted to a requester 
upon a specific request for such and when the requester demonstrates a 
compelling need for the information. A compelling need exists when:
    (A) The failure to obtain requested records on an expedited basis 
could reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual, or
    (B) The information is urgently needed by an individual primarily 
engaged in disseminating information in order to inform the public 
concerning actual or alleged government activity.
    (ii) DoD additional expedited processing circumstances. If the DoD 
Component decides to expedite the request for either of the following 
reasons, the request will be processed in the expedited track behind 
those requests qualifying for expedited processing as a compelling 
need.
    (A) Imminent loss of due process rights. Expedited processing is 
granted to a requester if loss of substantial due process rights is 
imminent.
    (B) Humanitarian need. Expedited processing is granted when the 
failure to obtain the requested information on an expedited basis could 
reasonably be expected to harm substantial humanitarian interests.
    (2) A request for expedited processing may be made at any time. 
Requests for expedited processing must be submitted to the DoD 
Component that maintains the records. When making a request for 
expedited processing of an administrative appeal, the request should be 
submitted to the DoD Component's appellate authority.
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct, explaining in detail the 
basis for making the request for expedited processing. For requesters 
seeking expedited processing under paragraph (e)(1)(i)(B) of this 
section, a requester who is not a full-time member of the news media 
must establish that the requester is a person whose primary 
professional activity or occupation is information dissemination, and 
not an incidental or secondary activity, though it need not be the 
requester's sole occupation. Such a requester also must establish a 
particular urgency to inform the public about the government activity 
involved in the request--one that extends beyond the public's right to 
know about government activity generally. The existence of numerous 
articles published on a given subject can be helpful in establishing 
the requirement that there be an ``urgency to inform'' the public on 
the topic. Requests for expedited processing under paragraph 
(e)(1)(ii)(A) of this section must include a description of the due 
process rights that would be lost. This statement must be with the 
request for expedited processing for it to be considered and responded 
to within the 10 calendar days required for decisions on expedited 
access.
    (4) A DoD Component shall notify the requester within 10 calendar 
days of the receipt of a request for expedited processing of its 
decision whether to grant or deny expedited processing. If expedited 
processing is granted, the request shall be placed in the processing 
track for expedited requests, and processed as soon as practicable. If 
a request for expedited processing is denied, any appeal of that 
decision shall be acted upon expeditiously.


Sec.  286.9  Responses to requests.

    (a) In general. DoD FOIA RSCs will, to the extent practicable, 
communicate with requesters having access to the Internet using 
electronic means, such as email or web portal.
    (b) Acknowledgments of requests. DoD Components will acknowledge 
requests in writing and assign individualized tracking numbers. DoD 
Components will include these tracking numbers and any tracking numbers 
used by FOIA requesters in all correspondence.
    (c) Estimated dates of completion and interim responses. Upon 
request, the DoD Component will provide an estimated date by which the 
DoD Component expects to provide a response to the requester. If a 
request involves a voluminous amount of material or searches in 
multiple locations, the DoD Component may provide interim responses, 
releasing the records on a rolling basis.
    (d) Grants of requests. Once a DoD Component makes a determination 
to grant a request in full or in part, it shall notify the requester in 
writing. The DoD Component also shall inform the requester:
    (1) Of any fees charged under Sec.  286.12; and
    (2) That they may contact the DoD Component FOIA Public Liaison for 
further assistance.
    (e) Adverse determinations of requests. A DoD Component making an 
adverse determination denying a request in any respect will notify the 
requester of that determination in writing. Adverse determinations, or 
denials of requests, include decisions that the requested record is 
exempt, in whole or in part; the request does not reasonably describe 
the records sought; the information requested is not a record subject 
to the FOIA; the requested record does not exist, cannot be located, or 
has been destroyed; or the requested record is not readily reproducible 
in the form or format sought by the requester. Adverse determinations 
also include denials involving fees or fee waiver matters or denials of 
requests for expedited processing.
    (f) Content of denial. The denial will include:
    (1) The name and title or position of the IDA;
    (2) A brief statement of the reasons for the denial, including any 
FOIA exemption applied by the DoD Component in denying the request;
    (3) An estimate of the volume of any records or information 
withheld, such as the number of pages or some other reasonable form of 
estimation, although such an estimate is not required if the

[[Page 1201]]

volume is otherwise indicated by deletions marked on records that are 
disclosed in part or if providing an estimate would harm an interest 
protected by an applicable exemption;
    (4) For any information denied under Exemption 1, the applicable 
section or sections of the appropriate Executive order on 
classification that establishing continued classification of the 
information;
    (5) For any information denied under Exemption 3, the specific 
statute relied upon to deny the information along with a short 
description of the statute;
    (6) A statement that the requester must appeal no later than 90 
days after the date of the denial and along with instructions on how to 
appeal to the DoD Component appellate authority. The instructions will 
include the appellate authority's duty title, the mailing address for 
the appeal, and instructions on how the requester can appeal 
electronically; and
    (7) A statement advising the requester of their right to seek 
dispute resolution services from the DoD Component FOIA Public Liaison 
or OGIS.
    (g) Markings on released documents. Records disclosed in part will 
be marked clearly to show the amount of information deleted and the 
exemption under which the deletion was made unless doing so would harm 
an interest protected by an applicable exemption. The location of the 
information deleted also will be indicated on the record, if 
technically feasible.
    (h) Use of record exclusions. (1) In the event that a DoD Component 
identifies records that may be subject to exclusion from the 
requirements of the FOIA pursuant to 5 U.S.C. 552(c), the DoD Component 
should confer with the Directorate for Oversight and Compliance, which 
will confer with the Department of Justice, Office of Information 
Policy (OIP), to obtain approval to apply the exclusion.
    (2) A DoD Component invoking an exclusion shall maintain an 
administrative record of the process of invocation and approval of the 
exclusion by OIP.


Sec.  286.10  Confidential Commercial Information.

    (a) Definitions.
    (1) Confidential commercial information means commercial or 
financial information obtained by the DoD Component from a submitter 
that may be protected from disclosure under Exemption 4 of the FOIA, 5 
U.S.C. 552(b)(4).
    (2) Submitter means any person or entity, including a corporation, 
State, or foreign government, but not including another Federal 
Government entity, that provides confidential commercial information, 
either directly or indirectly to the Federal Government.
    (b) Designation of confidential commercial information. A submitter 
of confidential commercial information must use good faith efforts to 
designate by appropriate markings, at the time of submission, any 
portion of its submission that it considers to be protected from 
disclosure under Exemption 4. These designations shall expire 10 years 
after the date of submission unless the submitter requests and provides 
justification for a longer designation period.
    (c) When notice to submitters is required. (1) The DoD Component 
shall promptly provide written notice to the submitter of confidential 
commercial information whenever records containing such information are 
requested under the FOIA if the DoD Component determines that it may be 
required to disclose the records, provided:
    (i) The requested information has been designated in good faith by 
the submitter as information considered protected from disclosure under 
Exemption 4; or
    (ii) The DoD Component has a reason to believe that the requested 
information may be protected from disclosure under Exemption 4, but has 
not yet determined whether the information is protected from 
disclosure.
    (2) The notice shall include a copy of the requested records or 
portions of records containing the information. In cases involving a 
voluminous number of submitters, the DoD Component may post or publish 
a notice in a place or manner reasonably likely to inform the 
submitters of the proposed disclosure, instead of sending individual 
notifications.
    (d) Exceptions to submitter notice requirements. The notice 
requirements of this section shall not apply if:
    (1) The DoD Component determines that the information is exempt 
under the FOIA, and therefore will not be disclosed;
    (2) The information has been lawfully published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by a statute other 
than the FOIA or by a regulation issued in accordance with the 
requirements of Executive Order 12600 of June 23, 1987; or
    (4) The designation made by the submitter under paragraph (b) of 
this section appears obviously frivolous. In such case, the agency 
shall give the submitter written notice of any final decision to 
disclose the information within a reasonable number of days prior to a 
specified disclosure date.
    (e) Opportunity to object to disclosure. (1) The DoD Component 
shall specify a reasonable time period within which the submitter must 
respond to the notice referenced in paragraph (c) of this section.
    (2) If a submitter has any objections to disclosure, it should 
provide the DoD Component a detailed written statement that specifies 
all grounds for withholding the particular information under any 
exemption of the FOIA. In order to rely on Exemption 4 as basis for 
nondisclosure, the submitter must explain why the information 
constitutes a trade secret or commercial or financial information that 
is confidential.
    (3) A submitter who fails to respond within the time period 
specified in the notice shall be considered to have no objection to 
disclosure of the information. The DoD Component is not required to 
consider any information received after the date of any disclosure 
decision. Any information provided by a submitter under this section 
may itself be subject to disclosure under the FOIA.
    (f) Analysis of objections. The DoD Component shall consider a 
submitter's objections and specific grounds for nondisclosure in 
deciding whether to disclose the requested information.
    (g) Notice of intent to disclose. Whenever the DoD Component 
decides to disclose information over the objection of a submitter, the 
DoD Component shall provide the submitter written notice, which shall 
include:
    (1) A statement of the reasons why each of the submitter's 
disclosure objections was not sustained;
    (2) A description of the information to be disclosed or copies of 
the records as the DoD Component intends to release them; and
    (3) A specified disclosure date, which shall be a reasonable time 
after the notice.
    (h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of confidential commercial 
information, the DoD Component shall promptly notify the submitter.
    (i) Requester notification. The DoD Component shall notify a 
requester whenever it provides the submitter with notice and an 
opportunity to object to disclosure; whenever it notifies the submitter 
of its intent to disclose the requested information over the 
submitter's objections; and whenever a submitter files a lawsuit to 
prevent the disclosure of the information.

[[Page 1202]]

Subpart D--Appeals


Sec.  286.11  Processing of appeals.

    (a) Requirements for making an appeal. A requester may appeal any 
adverse determinations to the DoD Component's appellate authority. 
Examples of adverse determinations are provided in Sec.  286.9(e). 
Appeals can be submitted by mail or online in accordance with the 
requirements provided in the DoD Component's final response. Requesters 
that are not provided with appeal requirements should contact the FOIA 
RSC processing their request to obtain the requirements. The requester 
must make the appeal in writing and to be considered timely it must be 
postmarked, or in the case of electronic submissions, transmitted, 
within 90 calendar days after the date of the response. The appeal 
should clearly identify the determination that is being appealed and 
the assigned request number. To facilitate handling, the requester 
should mark both the appeal letter and envelope, or subject line of the 
electronic transmission, ``Freedom of Information Act Appeal.''
    (b) Adjudication of appeals. (1) The Heads of the following DoD 
Components will serve as, or appoint an appropriate official to serve 
as, the component's appellate authority: Department of the Army, 
Department of the Navy, Department of the Air Force, Defense Commissary 
Agency, Defense Contract Audit Agency, Defense Contract Management 
Agency, Defense Finance and Accounting Service, Defense Health Agency, 
Defense Information Systems Agency, Defense Intelligence Agency, 
Defense Logistics Agency, Defense Security Service, Defense Threat 
Reduction Agency, National Geospatial-Intelligence Agency, National 
Reconnaissance Office, National Security Agency/Central Security 
Service, and the Office of the Inspector General of the Department of 
Defense.
    (2) The Deputy Chief Management Officer (DCMO) will serve as the 
appellate authority for the OSD and the Office of the Chairman of the 
Joint Chiefs of Staff and the Joint Staff, Armed Services of Contract 
Appeals, Defense Technical Information Center, Joint Personnel Recovery 
Agency, DoD Education Activity, National Guard Bureau, United States 
Africa Command, United States Central Command, United States European 
Command, United States Northern Command, United States Pacific Command, 
United States Special Operations Command, United States Strategic 
Command, and United States Transportation Command. The DCMO may 
delegate this authority to an appropriate official of the DCMO staff.
    (3) An appeal will normally not be adjudicated if the request 
becomes a matter of FOIA litigation. This decision should be made after 
consultation with the Department of Justice attorney responsible for 
the litigation.
    (c) Decisions on appeals. A decision on an appeal must be made in 
writing and signed by the appellate authority. A decision that upholds 
a DoD Component's determination in whole or in part will contain a 
statement that identifies the reasons for the affirmance, including any 
FOIA exemptions applied. The decision will provide the requester with 
notification of the statutory right to file a lawsuit. If a decision is 
remanded or modified on appeal, the requester will be notified of that 
determination in writing. The DoD Component will thereafter further 
process the request in accordance with that appeal determination and 
respond directly to the requester.
    (d) When an appeal is required. A requester generally must first 
submit a timely administrative appeal before seeking review by a court 
of a DoD Component's adverse determination.

Subpart E--Fees


Sec.  286.12  Schedule of fees.

    (a) In general. DoD Components shall charge for processing requests 
under the FOIA in accordance with the provisions of this section and 
with the OMB Guidelines. For purposes of assessing fees, the FOIA 
establishes three categories of requesters: Commercial; non-commercial 
scientific or educational institutions or news media; and all other 
requesters. Different fees are assessed depending on the category. 
Requesters may seek a fee waiver. DoD Components shall consider such 
requests in accordance with the requirements in paragraph (m) of this 
section. In order to resolve any fee issues that arise under this 
section, a DoD Component may contact a requester for additional 
information. DoD Components shall ensure that searches, review, and 
duplication are conducted in the most efficient and least expensive 
manner. Requesters must pay fees by check or money order made payable 
to the Treasury of the United States.
    (b) Definitions. For purposes of this section:
    (1) Commercial use request is a request that asks for information 
for a use or purpose that furthers a commercial, trade, or profit 
interest, which can include furthering those interests through 
litigation. A DoD Component's decision to place a requester in the 
commercial use category will be made on a case-by-case basis based on 
the requester's intended use of the information. DoD Components will 
notify requesters of their placement in this category.
    (2) Direct costs are those expenses that a DoD Component incurs in 
searching for and, in the case of commercial use requests, reviewing 
records in order to respond to a FOIA request. DoD direct costs for 
human activity are at Table 1.

                  Table 1--FOIA Hourly Processing Fees
------------------------------------------------------------------------
              Type                        Grade             Hourly rate
------------------------------------------------------------------------
Administrative.................  E-9/GS-8 and below.....             $24
Professional...................  Contractor/O-1 to O-6/W-             48
                                  1 to W-5/GS-9 to GS-15.
Executive......................  O-7 and above and                   110
                                  Senior Executive
                                  Service.
------------------------------------------------------------------------

    (3) Duplication is reproducing a copy of a record, or of the 
information contained in it, necessary to respond to a FOIA request.
    (4) Educational institution is any school that operates a program 
of scholarly research. A requester in this fee category must show that 
the request is made in connection with his or her role at the 
educational institution. DoD Components may seek verification from the 
requester that the request is in furtherance of scholarly research and 
will advise requesters of their placement in this category.
    (5) Noncommercial scientific institution is an institution that is 
not operated on a ``commercial'' basis, as defined in paragraph (b)(1) 
of this section and that is operated solely for the purpose of 
conducting scientific research the results of which are not intended to 
promote any particular

[[Page 1203]]

product or industry. A requester in this category must show that the 
request is authorized by and is made under the auspices of a qualifying 
institution and that the records are sought to further scientific 
research and are not for a commercial use. DoD Components will advise 
requesters of their placement in this category.
    (6) Representative of the news media is any person or entity that 
gathers information of potential interest to a segment of the public, 
uses its editorial skills to turn raw materials into a distinct work, 
and distributes that work to an audience. The term ``news'' means 
information that is about current events or that would be of current 
interest to the public. Examples of news media entities include 
television or radio stations that broadcast ``news'' to the public at 
large and publishers of periodicals that disseminate ``news'' and make 
their products available through a variety of means to the general 
public, including news organizations that disseminate solely on the 
Internet. A request for records supporting the news-dissemination 
function of the requester shall not be considered to be for a 
commercial use. ``Freelance'' journalists who demonstrate a solid basis 
for expecting publication through a news media entity shall be 
considered as a representative of the news media. A publishing contract 
would provide the clearest evidence that publication is expected; 
however, DoD Components shall also consider a requester's past 
publication record in making this determination. DoD Components will 
advise requesters of their placement in this category.
    (7) Review is the examination of a record located in response to a 
request in order to determine whether any portion of it is exempt from 
disclosure. Review time includes processing any record for disclosure, 
such as doing all that is necessary to prepare the record for 
disclosure, including the process of redacting the record and marking 
the appropriate exemptions. Review costs are properly charged even if a 
record ultimately is not disclosed. Review time also includes time 
spent both obtaining and considering any formal objection to disclosure 
made by a confidential commercial information submitter under Sec.  
286.11, but it does not include time spent resolving general legal or 
policy issues regarding the application of exemptions.
    (8) Search is the process of looking for and retrieving records or 
information responsive to a request. Search time includes page-by-page 
or line-by-line identification of information within records and the 
reasonable efforts expended to locate and retrieve information from 
electronic records.
    (c) Fee category. Fees are assessed based on the category 
determined to be appropriate for the requester's category. The fee 
category of a requester that is an attorney or any other agent 
representing a client is determined by the fee category of the 
attorney's client. If the fee category of the client is not clear, then 
the DoD Components should ask the requester for clarification. If an 
attorney does not provide enough information to determine the fee 
category of the client, then the DoD Component may assign commercial 
fee category to the requester.
    (d) Charging fees. In responding to FOIA requests, DoD Components 
will charge the following fees unless a waiver or reduction of fees has 
been granted under paragraph (m) of this section. Because the fee 
amounts provided below already account for the direct costs associated 
with a given fee type, DoD Components should not add any additional 
costs to charges calculated under this section.
    (1) Search. (i) Requests made by educational institutions, 
noncommercial scientific institutions, or representatives of the news 
media are not subject to search fees. Search fees shall be charged for 
all other requesters, subject to the restrictions of paragraph (e) of 
this section. DoD Components may properly charge for time spent 
searching even if they do not locate any responsive records or if they 
determine that the records are entirely exempt from disclosure.
    (ii) For each quarter hour spent by personnel searching for 
requested records, including electronic searches that do not require 
new programming, the fees shall be charged as listed at Table 1.
    (iii) Requesters will be charged the direct costs associated with 
conducting any search that requires the creation of a new computer 
program to locate the requested records. These costs will not include 
the time it takes to run the program and extract data. Requesters will 
be notified of the costs associated with creating such a program and 
must agree to pay the associated costs before the costs may be 
incurred.
    (iv) For requests that require the retrieval of records stored by a 
DoD Component at a Federal records center operated by NARA, additional 
costs will be charged in accordance with the Transactional Billing Rate 
Schedule established by NARA.
    (2) Duplication. Duplication fees will be charged to all 
requesters, subject to the restrictions of paragraph (e) of this 
section. DoD Components will honor a requester's preference for 
receiving a record in a particular form or format where it is readily 
reproducible by the DoD Component in the form or format requested. 
Where photocopies are supplied, DoD Components will provide one copy 
per request at $.15 per page. For copies of records produced on tapes, 
disks, or other media, or other forms of duplication, DoD Components 
will charge the direct costs of producing the copy, including operator 
time in accordance with Table 1. DoD Components will charge record 
reproduction fees at the hourly rates in Table 1 if the creation of the 
electronic copies requires unique security procedures incurring 
considerable operator time, costing more than printing paper copies.
    (3) Review. Review fees will be charged to requesters who make 
commercial use requests. Review fees shall be assessed in connection 
with the initial review of the record, i.e., the review conducted by a 
DoD Component to determine whether an exemption applies to a particular 
record or portion of a record. No charge will be made for review at the 
administrative appeal stage of exemptions applied at the initial review 
stage. However, if a particular exemption is deemed to no longer apply, 
any costs associated with a DoD Component's re-review of the records in 
order to consider the use of other exemptions may be assessed as review 
fees. Review fees will be charged at the same rates as those charged 
for a search under paragraph (d)(1)(ii) of this section.
    (e) Restrictions on charging fees. (1) When a DoD Component 
determines that a requester is an educational institution, non-
commercial scientific institution, or representative of the news media, 
and the records are not sought for commercial use, no search fees will 
be charged.
    (2) If a DoD Component fails to comply with the time limits in 
which to respond to a request it may not charge search fees, or, in the 
instances of requests from requesters described in paragraph (e)(1) of 
this section, may not charge duplication fees except as described in 
(e)(2)(i) through (iii).
    (i) When a DoD Component determines that unusual circumstances, as 
those terms are defined by the FOIA, apply to the processing of the 
request, and provides timely written notice to the requester, then the 
DoD Component is granted an additional ten days until the fee 
restriction in paragraph (e)(2) of this section applies.
    (ii) When a DoD Component determines that unusual circumstances 
apply and more than 5,000 pages are

[[Page 1204]]

necessary to respond to the request, provides timely written notice to 
the requester, and has discussed with the requester (or made three good 
faith attempts to do so) on how the requester can effectively limit the 
scope of the request, the fee restriction in paragraph (e)(2) of this 
section does not apply.
    (iii) If a court has determined that exceptional circumstances 
exist, as defined by the FOIA, a failure to comply with the time limits 
shall be excused for the length of time provided by the court order.
    (3) No search or review fees will be charged for a quarter-hour 
period unless more than half of that period is required for search or 
review.
    (4) Except for requesters seeking records for a commercial use, DoD 
Components shall provide without charge:
    (i) The first 100 pages of duplication (or the cost equivalent for 
other media); and
    (ii) The first two hours of search.
    (5) No fee will be charged when the total fee, after deducting the 
100 free pages (or its cost equivalent) and the first two hours of 
search, is equal to or less than $25.
    (f) Notice of anticipated fees in excess of $25.00. (1) When a DoD 
Component determines or estimates that the fees to be assessed in 
accordance with this section will exceed $25.00, the DoD Component 
shall notify the requester of the actual or estimated amount of the 
fees, including a breakdown of the fees for search, review or 
duplication, unless the requester has indicated a willingness to pay 
fees as high as those anticipated. If only a portion of the fee can be 
estimated readily, the DoD Component will advise the requester 
accordingly. If the requester is a noncommercial use requester, the 
notice shall specify that the requester is entitled to the statutory 
entitlements of 100 pages of duplication at no charge and, if the 
requester is charged search fees, two hours of search time at no 
charge, and will advise the requester whether those entitlements have 
been provided.
    (2) When a requester is notified that the actual or estimated fees 
are in excess of $25.00, the request will not be considered received 
and further work will not be completed until the requester commits in 
writing to pay the actual or estimated total fee, or designates some 
amount of fees the requester is willing to pay, or in the case of a 
noncommercial use requester who has not yet been provided with the 
requester's statutory entitlements, designates that the requester seeks 
only that which can be provided by the statutory entitlements. The 
requester must provide the commitment or designation in writing, and 
must, when applicable, designate an exact dollar amount the requester 
is willing to pay. DoD Components are not required to accept payments 
in installments.
    (3) If the requester has indicated a willingness to pay some 
designated amount of fees, but the DoD Component estimates that the 
total fee will exceed that amount, the DoD Component will toll the 
processing of the request when it notifies the requester of the 
estimated fees in excess of the amount the requester has indicated a 
willingness to pay. The DoD Component will inquire whether the 
requester wishes to revise the amount of fees the requester is willing 
to pay or modify the request. Once the requester responds, the time to 
respond will resume from where it was at the date of the notification.
    (4) DoD Components will make available their FOIA Public Liaison or 
other FOIA professional to assist any requester in reformulating a 
request to meet the requester's needs at a lower cost.
    (g) Charges for other services. Although not required to provide 
special services, if a DoD Component chooses to do so as a matter of 
administrative discretion, the direct costs of providing the service 
shall be charged. Examples of such services include certifying that 
records are true copies, providing multiple copies of the same 
document, or sending records by means other than first class mail.
    (h) Charging interest. DoD Components may charge interest on any 
unpaid bill starting on the 31st day following the date of billing the 
requester. Interest charges shall be assessed at the rate provided in 
31 U.S.C. 3717 and will accrue from the billing date until payment is 
received by the DoD Component. DoD Components shall follow the 
provisions of the Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 
1749), as amended, and its administrative procedures, including the use 
of consumer reporting agencies, collection agencies, and offset.
    (i) Aggregating requests. When a DoD Component reasonably believes 
that a requester or a group of requesters acting in concert is 
attempting to divide a single request into a series of requests for the 
purpose of avoiding fees, the DoD Component may aggregate those 
requests and charge accordingly. DoD Components may presume that 
multiple requests of this type made within a 30-day period have been 
made in order to avoid fees. For requests separated by a longer period, 
DoD Components will aggregate them only where there is a reasonable 
basis for determining that aggregation is warranted in view of all the 
circumstances involved. Multiple requests involving unrelated matters 
shall not be aggregated.
    (j) Advance payments. (1) For requests other than those described 
in paragraphs (k)(2) or (3) of this section, a DoD Component shall not 
require the requester to make an advance payment before work is 
commenced or continued on a request.
    (2) When a DoD Component determines or estimates that a total fee 
to be charged under this section will exceed $250.00, it may require 
that the requester make an advance payment up to the amount of the 
entire anticipated fee before beginning to process the request. A DoD 
Component may elect to process the request prior to collecting fees 
when it receives a satisfactory assurance of full payment from a 
requester with a history of prompt payment.
    (3) Where a requester has previously failed to pay a properly 
charged FOIA fee to any agency within 30 calendar days of the billing 
date, a DoD Component may require that the requester pay the full 
amount due, plus any applicable interest on that prior request, and the 
DoD Component may require that the requester make an advance payment of 
the full amount of any anticipated fee before the DoD Component begins 
to process a new request or continues to process a pending request or 
any pending appeal. Where a DoD Component has a reasonable basis to 
believe that a requester has misrepresented the requester's identity in 
order to avoid paying outstanding fees, it may require that the 
requester provide proof of identity.
    (4) In cases in which a DoD Component requires advance payment, the 
request shall not be considered received and further work will not be 
completed until the required payment is received. If the requester does 
not pay the advance payment within 30 calendar days after the date of 
the DoD Component's fee determination, the request will be closed.
    (k) Other statutes specifically providing for fees. The fee 
schedule of this section does not apply to fees charged under any 
statute that specifically requires an agency to set and collect fees 
for particular types of records. In instances where records responsive 
to a request are subject to a statutorily-based fee schedule program, 
the DoD Component shall inform the requester of the contact information 
for that program.

[[Page 1205]]

    (l) Requirements for waiver or reduction of fees. (1) Requesters 
may seek a waiver of fees by submitting a written application 
specifically demonstrating how disclosure of the requested information 
is in the public interest because it is likely to contribute 
significantly to public understanding of the operations or activities 
of the government and is not primarily in the commercial interest of 
the requester.
    (2) A DoD Component will furnish records responsive to a request 
without charge or at a reduced rate when it determines, based on all 
available information, that the following three factors are satisfied:
    (i) Disclosure of the requested information would shed light on the 
operations or activities of the government. The subject of the request 
must concern identifiable operations or activities of the Federal 
Government with a connection that is direct and clear, not remote or 
attenuated.
    (ii) Disclosure of the requested information would be likely to 
contribute significantly to public understanding of those operations or 
activities. This factor is satisfied when the following criteria are 
met:
    (A) Disclosure of the requested records must be meaningfully 
informative about government operations or activities. The disclosure 
of information that already is in the public domain, in either the same 
or a substantially identical form, would not be meaningfully 
informative if nothing new would be added to the public's 
understanding.
    (B) The disclosure must contribute to the understanding of a 
reasonably broad audience of persons interested in the subject, as 
opposed to the individual understanding of the requester. A requester's 
expertise in the subject area as well as the requester's ability and 
intention to effectively convey information to the public shall be 
considered. DoD Components will presume that a representative of the 
news media satisfies this criterion.
    (iii) The disclosure must not be primarily in the commercial 
interest of the requester. To determine whether disclosure of the 
requested information is primarily in the commercial interest of the 
requester, DoD Components shall consider the following criteria:
    (A) DoD Components will identify whether the requester has any 
commercial interest that would be furthered by the requested 
disclosure. A commercial interest includes any commercial, trade, or 
profit interest. Requesters will be given an opportunity to provide 
explanatory information regarding this consideration.
    (B) If there is an identified commercial interest, the DoD 
Component will determine whether that is the primary interest furthered 
by the request. A waiver or reduction of fees is justified when the 
requirements of paragraphs (m)(2)(i) and (ii) of this section are 
satisfied and any commercial interest is not the primary interest 
furthered by the request. DoD Components ordinarily will presume that 
when a news media requester has satisfied the factors in paragraphs 
(m)(2)(i) and (ii) of this section, the request is not primarily in the 
commercial interest of the requester. Disclosure to data brokers or 
others who merely compile and market government information for direct 
economic return shall not be presumed to primarily serve the public 
interest.
    (3) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a waiver shall be granted for those 
records.
    (4) Requests for a waiver or reduction of fees should be made when 
the request is first submitted to the DoD Component and should address 
the criteria referenced in paragraphs (l)(1) and (2) of this section. A 
requester may submit a fee waiver request at a later time so long as 
the underlying record request is pending or on administrative appeal. 
When a requester who has committed to pay fees subsequently asks for a 
waiver of those fees and that waiver is denied, the requester is 
required to pay any costs incurred up to the date the fee waiver 
request was received.
    (m) Tracking of costs. DoD Components will track processing costs 
for each FOIA request on DD Form 2086, ``Record of Freedom of 
Information (FOI) Processing Cost,'' or by using DD Form 2086-2, 
``Freedom of Information (FOI) Consultation and Request Summary''.


Sec.  286.13  Fees for technical data.

    (a) Technical data shall be released to a requester after all 
reasonable costs of search, review, and duplication are paid by the 
requester as authorized by 10 U.S.C. 2328.
    (b) Technical data means information (regardless of the form or 
method of the recording) of a scientific or technical nature (including 
computer software documentation) relating to the supplies procured by 
the DoD. This includes information in the form of blueprints, drawings, 
photographs, plans, instructions or documentation. This term does not 
include computer software or financial, administrative, cost or 
pricing, or management data or other information incidental to contract 
administration. Examples of technical data include research and 
engineering data, engineering drawings, and associated lists, 
specifications, standards, process sheets, manuals, technical reports, 
catalog item identification, and computer software documentation.
    (1) All reasonable costs as used in this sense are the full costs 
to the Federal Government of rendering the service, or fair market 
value of the service, whichever is higher. Fair market value shall be 
determined in accordance with commercial rates in the local 
geographical area. In the absence of a known market value, charges 
shall be based on recovery of full costs to the Federal Government. The 
full costs shall include all direct and indirect costs to conduct the 
search and to duplicate the records responsive to the request. Costs 
will be tracked on DD Form 2086-1, ``Record of Freedom of Information 
(FOI) Processing Cost for Technical Data'' (available at http://www.dtic.mil/whs/directives/infomgt/forms/eforms/dd2086-1.pdf).
    (2) The DoD Components will retain the fees received by the release 
of technical data under the FOIA, and will merge it with and make it 
available for the same purpose and the same time period as the 
appropriation from which the costs were incurred in complying with the 
FOIA request.
    (3) Table 2 will be used to determine document production fees.

         Table 2--FOIA Document Production Fees--Technical Data
------------------------------------------------------------------------
                          Type                                 Cost
------------------------------------------------------------------------
Aerial Photographs, Specifications, Permits, Charts,               $2.50
 Diagrams, Technical Drawings, Blueprints, and Other
 Technical Documents (per page or copy).................
Engineering Data:
    Aperture Cards, per card............................            3.00
        Silver Duplicate Negative.......................            3.50
        When Keypunched and Verified....................            1.00
        Diazo Duplicate Negative........................            3.50
        When Keypunched and Verified....................            3.00
    35 mm Roll Film, per frame..........................            1.00
    16 mm Roll Film, per frame..........................            0.65
    Paper Prints (engineering drawings), each (per                  0.30
     square foot).......................................
    Paper Reprints of Microfilm Images, each............            0.10
Other Technical Data Records:

[[Page 1206]]

 
    Paper Copy (standard size paper up to 8\1/2\ x 14,              0.15
     photocopier or printer)............................
    CD/DVD..............................................            5.00
    Microfiche Produced, each...........................            3.50
    Certification and Validation with Seal, each                   50.00
     document...........................................
------------------------------------------------------------------------

    (c) The DoD Components will waive the payment of costs required in 
paragraph (a) of this section that are greater than the costs that 
would be required for release of this same information under Sec.  
286.12 if:
    (1) The FOIA request is made by a U.S. citizen or a U.S. 
corporation, and such citizen or corporation certifies that the 
technical data requested is required to enable it to submit an offer, 
or to determine whether it is capable of submitting an offer, to 
provide the product to which the technical data relates to the United 
States or a U.S. contractor. However, the DoD Components may require 
the citizen or corporation to pay a deposit in an amount equal to but 
not more than the cost of complying with the FOIA request, which will 
be refunded upon submission of an offer by the citizen or corporation;
    (2) The release of technical data is requested in order to comply 
with the terms of an international agreement; or
    (3) The DoD Component determines, in accordance with paragraph (m) 
of Sec.  286.12, that such a waiver is in the interest of the United 
States.

    Dated: December 23, 2016.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2016-31686 Filed 1-4-17; 8:45 am]
 BILLING CODE 5001-06-P