[Federal Register Volume 85, Number 128 (Thursday, July 2, 2020)]
[Proposed Rules]
[Pages 39856-39858]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13608]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 286

[Docket ID: DOD-2019-OS-0069]
RIN 0790-AK54


DoD Freedom of Information Act (FOIA) Program; Amendment

AGENCY: Department of Defense.

ACTION: Proposed rule; amendment.

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SUMMARY: The Department of Defense (DoD) is proposing to amend its 
Freedom of Information Act (FOIA) regulation, which last published in 
the Federal Register as a final rule on

[[Page 39857]]

February 6, 2018, to update certain administrative aspects of the 
Department's implementation of the FOIA, including adding an additional 
FOIA Requester Service Center. DoD is also proposing to clarify, by 
adopting the standards set forth in the Department of Justice's (DOJ) 
Template for Agency FOIA Regulations, that the decision to participate 
in FOIA alternative dispute resolution services is voluntary on the 
part of the requestor and DoD.

DATES: Comments must be received by August 31, 2020.

ADDRESSES: You may submit comments, identified by docket number and/or 
Regulatory Information Number (RIN) number and title, by any of the 
following methods:
    Federal Rulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    Mail: DoD cannot receive written comments at this time due to the 
COVID-19 pandemic. Comments should be sent electronically to the docket 
listed above.
    Instructions: All submissions received must include the agency name 
and docket number or RIN for this document. The general policy is for 
submissions to be made available for public viewing at http://www.regulations.gov without change, including any personal identifiers 
or contact information.

FOR FURTHER INFORMATION CONTACT: Melissa Walker at 571-372-0462.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Under the FOIA, 5 U.S.C. 552, agencies are afforded a certain 
amount of discretion in administratively implementing the Act. For 
example, agencies can designate which of their Components are 
authorized to receive FOIA requests. In this proposed amendment, DoD is 
adding the United States Cyber Command (USCYBERCOM) as an authorized 
FOIA Requester Service Center. Since the service center has already 
been implemented, DoD is seeking to align the rule with the action. DoD 
also seeks to update the list of those Components serviced by the 
Office of the Secretary of Defense and Joint Staff FOIA Requester 
Service Center.
    Further, this proposed amendment seeks to clarify language 
concerning DoD's participation in FOIA ``Dispute Resolution,'' found in 
Sec.  286.4. This proposed amendment, which adopts the standard set 
forth in DOJ's Template for Agency FOIA Regulations, clarifies that DoD 
possesses the discretion to determine whether to participate in FOIA 
alternative dispute resolution when it is requested by a requester.
    The amendments become effective once this rule is published as a 
final rule. The Department does not anticipate any cost associated with 
this proposed amendment.

Summary of the Revisions Implemented by This Rule

    DoD is proposing to make amendments to update the listed designated 
FOIA Requester Service Centers and to correct language concerning FOIA 
alternative dispute resolution.

Authority

    According to the FOIA, 5 U.S.C. 552, an agency may, in its 
published administrative rules and regulations, designate those 
components that can receive FOIA requests. Additionally, the FOIA 
requires agencies to establish FOIA Public Liaisons, which are 
responsible for assisting in reducing delays, increasing transparency 
and understanding of the status of requests, and assisting in the 
resolution of disputes.

Regulatory History

    On February 6, 2018 (83 FR 5196-5197), the Department of Defense 
published a final rule that revised Department of Defense (DoD) Freedom 
of Information Act (FOIA) regulation to implement the FOIA and 
incorporate the provisions of the Openness Promotes Effectiveness in 
our National Government Act of 2007 and the FOIA Improvement Act of 
2016.

Regulatory Impact Analysis

    We developed this rule after considering numerous statutes and 
Executive Orders (E.O.s) related to rulemaking. Below we summarize our 
analyses based on these statutes or E.O.s.

Costs

    The Department does not anticipate any costs associated with this 
rule change. Prior to establishing its own FOIA Requester Service 
Center, USCYBERCOM's FOIA requests were serviced by the United States 
Strategic Command FOIA Requester Service Center. Since FOIA requests 
concerning USCYBERCOM previously existed, the cost associated with 
processing the request is unchanged and would be realigned from 
USSTRATCOM to the new FOIA Requester Service Center.

Benefits

    The benefit of USCYBERCOM establishing its own FOIA Requester 
Service Center is that FOIA action officers would have a direct and 
deeper knowledge of USCYBERCOM records, allowing for requests to be 
more readily completed within statutory timelines.
    This amendment also clarifies that DoD possesses the discretion to 
determine whether to participate in FOIA alternative dispute resolution 
when it is requested by a requester. This clarification is necessary to 
ensure that requesters understand FOIA alternative dispute resolution 
is voluntary on the part of both parties and the Agency, as one of the 
parties to the mediation, may choose not to mediate a given FOIA 
dispute on a case-by-case basis. Furthermore, adding this language 
clarifies that the alternative dispute resolution process is governed 
by the National Archives and Records Administration, the Office of 
Government Information Service (OGIS) as mandated by the Freedom of 
Information Act.

Executive Orders

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

    Executive Orders 12866 and 13563 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. It has been determined that this rule is not a significant 
regulatory action.

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

    This rule has been deemed not significant under Executive Order 
(E.O.) 12866, ``Regulatory Planning and Review,'' therefore, the 
requirements of E.O. 13771, ``Reducing Regulation and Controlling 
Regulatory Costs'' do not apply.

Congressional Review Act

    This rule is not a ``major rule'' as defined by 5 U.S.C. 804(2).

[[Page 39858]]

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

    This proposed 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 $100 M 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 proposed 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 
will implement 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 proposed 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 proposed 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.

    Accordingly, 32 CFR part 286 is proposed to be amended to read as 
follows:

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

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

    Authority: 5 U.S.C. 552.


Sec.  286.3  [Amended]

0
2. Amend Sec.  286.3 by:
0
a. In paragraph (a):
0
i. Adding the words ``United States Cyber Command,'' after the words 
``United States Central Command.''
0
ii. Removing the words ``Defense Security Service'' and adding in its 
place the words ``Defense Counterintelligence and Security Agency.''
0
b. In paragraph (b):
0
i. Adding the words ``Defense Digital Service,'' after the words 
``Defense Advanced Research Projects Agency.''
0
ii. Adding the words ``Defense Innovation Unit,'' after the words 
``Defense Equal Opportunity Management Institute.''
0
iii. Adding the words ``Space Development Agency,'' after the words 
``Pentagon Force Protection Agency.''
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iv. Removing the words ``Joint Improvised-Threat Defeat Agency.''
0
3. Amend Sec.  286.4 by revising paragraph (b) to read as follows:


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

* * * * *
    (b) Engaging in dispute resolution services provided by OGIS. These 
dispute resolution processes are voluntary processes. If a DoD 
Component agrees to participate in the dispute resolution services 
provided by the Office of Government Information services (OGIS), it 
will actively engage as a partner to the process in an attempt to 
resolve the dispute.


Sec.  286.11  [Amended]

0
4. Amend Sec.  286.11 by:
0
a. In paragraph (b)(1), removing the words ``Defense Security Service'' 
and adding in its place the words ``Defense Counterintelligence and 
Security Agency.''
0
b. In paragraph (b)(2), adding the words ``United States Cyber 
Command,'' after the words ``United States Central Command.''

    Dated: June 19, 2020.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2020-13608 Filed 7-1-20; 8:45 am]
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