[Federal Register Volume 88, Number 232 (Tuesday, December 5, 2023)]
[Rules and Regulations]
[Pages 84236-84238]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-26392]


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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: Office of the Assistant to the Secretary of Defense for 
Privacy, Civil Liberties, and Transparency (OATSD(PCLT)), Department of 
Defense (DoD).

ACTION: Final rule.

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SUMMARY: The DoD is finalizing amendments to its Freedom of Information 
Act (FOIA) regulation to update organizational names, add additional 
FOIA Requester Service Centers, and adopt the standards in the 
Department of Justice's (DOJ) Template for Agency FOIA Regulations 
noting the decision to participate in FOIA alternative dispute 
resolution (ADR) services is voluntary on the part of the requester and 
DoD.

DATES: This rule is effective on January 4, 2024.

FOR FURTHER INFORMATION CONTACT: Toni Fuentes at 571-372-0462.

SUPPLEMENTARY INFORMATION: 

I. Background

    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.

II. Regulatory History

    On February 6, 2018 (83 FR 5196-5197), the DoD finalized revisions 
to its FOIA regulation to incorporate the provisions of the Openness 
Promotes Effectiveness in our National Government Act of 2007 and the 
FOIA Improvement Act of 2016. On July 2, 2020, the DoD published a 
proposed rule titled DoD Freedom of Information Act (FOIA) Program; 
Amendment (85 FR 39856-39858) to update certain administrative aspects 
of the Department's implementation of the FOIA, including adding an 
additional FOIA Requester Service Center. DoD also proposed 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. One public comment was 
received, which was off-topic and not pertinent to this rule. However, 
in the final coordination of this rule, the Department has elected to 
make other administrative changes which are discussed below.

III. Discussion of Additional Amendments Added by the Final Rule

    DoD has determined that public comment is unnecessary before 
finalizing these amendments as they are administrative and are internal 
to DoD and the management of DoD's FOIA Program. Therefore, DoD did not 
request public comments on this final rule, even though DoD is making 
several additional amendments with this final rule.
    In this final rule, and per Deputy Secretary of Defense Memorandum 
dated September 1, 2021, Disestablishment of the Chief Management 
Officer, Realignment of Functions and Responsibilities, and Related 
Issues \1\), DoD is changing the Directorate for Oversight and 
Compliance to the Office of the Assistant to the Secretary of Defense 
for Privacy, Civil Liberties, and Transparency (OATSD (PCLT)). Also, 
the Defense Security Service is being changed to Defense 
Counterintelligence and Security Agency, and DoD is updating its web 
link for DoD Component FOIA Public Liaison contact information.\2\
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    \1\ https://media.defense.gov/2021/Sep/03/2002847421/-1/-1/0/DISESTABLISHMENT-OF-THE-CMO-REALIGNMENT-OF-FUNCTIONS-AND-RESPONSIBILITIES-AND-RELATED-ISSUES.PDF.
    \2\ [email protected].
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    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. DoD is adding United States Cyber 
Command (USCYBERCOM), United States Southern Command (USSOUTHCOM), and 
United States Space Command (USSPACECOM) as authorized FOIA Requester 
Service Centers. USSOUTHCOM was inadvertently omitted in the proposed 
rule. Since these service centers have 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 (OSD) and Joint Staff FOIA Requester Service Center. DoD is 
also adding the United States Space Force as an authorized DoD FOIA 
Requester Service Center.
    DoD is updating paragraph (b) of Sec.  286.3 to remove the list of 
DoD subcomponents whose FOIA requests are processed by the OSD/Joint 
Staff requester service center. DoD is removing this list of 
subcomponents because it does not provide a list of subcomponents of 
DoD Components whose FOIA requests are processed by other requester 
service centers within the Department.
    This rule also clarifies language concerning DoD's participation in 
FOIA ``Dispute Resolution,'' found in Sec.  286.4 by adopting DOJ's 
Template for Agency FOIA Regulations to clarify the Department 
possesses the discretion to determine whether to participate in FOIA 
alternative dispute resolution when ADR is requested by a FOIA 
requester.
    This rule also amends paragraph (f)(3) in Sec.  286.9 to require a 
statement detailing the application of any foreseeable harm in applying 
FOIA

[[Page 84237]]

exemptions based on DOJ guidance,\3\ requiring agencies to document 
foreseeable harm or legal bars to disclosure when processing requests, 
and include language that they considered the foreseeable harm standard 
within responses to requesters. DoD has updated this paragraph to 
comply with the DOJ requirement.
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    \3\ https://www.justice.gov/oip/oip-guidance-applying-presumption-openness-and-foreseeable-harm-standard.
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    DoD is adding Armed Services Board of Contract Appeals to paragraph 
(b)(1) and removing it from paragraph (b)(2) in Sec.  286.11. This 
component was inadvertently listed under paragraph (b)(2) but was 
granted appellate authority previously.

IV. Impact of This Rule

Costs

    The Department does not anticipate any costs to the public 
associated with these rule amendments as they are administrative in 
nature and impact DoD internal operations of its FOIA program. Prior to 
establishing their own FOIA Requester Service Center, USCYBERCOM's and 
USSPACECOM's FOIA requests were serviced by the United States Strategic 
Command (USSTRATCOM) FOIA Requester Service Center. Since FOIA requests 
concerning USCYBERCOM and USSPACECOM previously existed, the cost 
associated with processing the request is unchanged and realigned from 
USSTRATCOM to the new FOIA Requester Service Centers.

Benefits

    The benefit of USCYBERCOM and USSPACECOM establishing their own 
FOIA Requester Service Center is that FOIA action officers would have a 
direct and deeper knowledge of USCYBERCOM and USSPACECOM records, 
allowing for requests to be more readily completed within statutory 
timelines.
    This rule also clarifies that DoD possesses the discretion to 
determine whether to participate in FOIA alternative dispute resolution 
when ADR is requested by a FOIA requester. This clarification is 
necessary to ensure that FOIA 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, 
amending this language clarifies that the alternative dispute 
resolution process is governed by the National Archives and Records 
Administration, the Office of Government Information Service as 
mandated by the FOIA.
    Adding the foreseeable harm statement helps requesters understand 
what standards the Department considered when processing their 
requests.

V. Regulatory Compliance Analysis

A. 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. This rule has been designated not significant, under 
section 3(f) of Executive Order 12866.

B. Congressional Review Act (5 U.S.C. 801 et seq.)

    The Congressional Review Act, 5 U.S.C. 801 et seq., generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. DoD will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States. A 
major rule may take effect no earlier than 60 calendar days after 
Congress receives the rule report or the rule is published in the 
Federal Register, whichever is later. This rule is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

C. Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. Chapter 
6)

    The Assistant to the Secretary of Defense for Privacy, Civil 
Liberties, and Transparency certified that this rule is not subject to 
the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities. The rule will implement the procedures for 
processing FOIA requests within the DoD, which do not create such an 
impact. Therefore, the Regulatory Flexibility Act, as amended, does not 
require us to prepare a regulatory flexibility analysis.

D. Sec. 202, Public Law 104-4, ``Unfunded Mandates Reform Act''

    Section 202(a) of the Unfunded Mandates Reform Act of 1995 (UMRA) 
(2 U.S.C. 1532(a)) requires agencies to assess anticipated costs and 
benefits before issuing any rule whose mandates may result in the 
expenditure by State, local, and tribal governments in the aggregate, 
or by the private sector, in any one year of $100 million in 1995 
dollars, updated annually for inflation. This rule will not mandate any 
requirements for State, local, or tribal governments, nor will it 
affect private sector costs.

E. Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 
35)

    This rule does not impose reporting or recordkeeping requirements 
under the Paperwork Reduction Act of 1995.

F. Executive Order 13132, ``Federalism''

    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a rule that imposes substantial 
direct requirement costs on state and local governments, preempts state 
law, or otherwise has federalism implications. This final rule will not 
have a substantial effect on State and local governments, or otherwise 
have federalism implications.

G. Executive Order 13175, ``Consultation and Coordination With Indian 
Tribal Governments''

    Executive Order 13175 establishes certain requirements that an 
agency must meet when it promulgates a rule that imposes substantial 
direct compliance costs on one or more Indian tribes, preempts tribal 
law, or affects the distribution of power and responsibilities between 
the Federal Government and Indian tribes. This rule will not have a 
substantial effect on Indian tribal governments.

List of Subjects in 32 CFR Part 286

    Freedom of information.

    For reasons stated in the preamble, 32 CFR part 286 is amended 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.  286.1  [Amended]

0
2. Amend Sec.  286.1 by removing the words ``Directorate for Oversight 
and

[[Page 84238]]

Compliance'' and adding in its place the words ``Office of the 
Assistant to the Secretary of Defense for Privacy, Civil Liberties, and 
Transparency (OATSD(PCLT))''.

0
3. Amend Sec.  286.3 by:
0
a. In paragraph (a):
0
i. Removing the text ``http://www.foia.gov/report-makerequest.html'' 
and adding in its place the text ``https://www.foia.gov.''
0
ii. Removing the words ``Defense Security Service'' and adding in their 
place the words ``Counterintelligence and Security Agency''.
0
iii. Adding the words ``United States Cyber Command,'' after the words 
``United States Central Command,''.
0
iv. Removing the words ``Pacific Command'' and adding in their place 
the words ``Indo-Pacific Command''.
0
v. Adding the words ``United States Southern Command, United States 
Space Command, and United States Space Force,'' before the words 
``United States Special Operations Command''.
0
b. Revising paragraph (b).
0
c. In paragraph (c), removing ``32 CFR part 310'' and adding in its 
place ``32 CFR 310.3(c) through (e)''.
    The revision reads as follows:


Sec.  286.3  General information.

* * * * *
    (b) The OSD/Joint Staff FOIA RSC also processes FOIA requests for 
several DoD agencies and field activities, as well as other DoD 
organizations. A list of these agencies, field activities, and DoD 
organizations is available at https://www.esd.whs.mil/FOID/Submit-Request/.
* * * * *

0
4. Amend Sec.  286.4 by:
0
a. In paragraph (a), removing the text ``http://www.foia.gov/report-makerequest.html'' and adding in its place the text ``https://www.foia.gov.''
0
b. Revising paragraph (b).
    The revision reads as follows:


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

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

0
5. Amend Sec.  286.9 by:
0
a. Revising paragraph (f)(2).
0
b. In paragraph (h)(1), removing the words ``Directorate for Oversight 
and Compliance'' and adding in their place the acronym ``OATSD(PCLT)''.
    The revision reads as follows:


Sec.  286.9  Responses to requests.

* * * * *
    (f) * * *
    (2) A brief statement of the reasons for the denial, including any 
FOIA exemption applied and a statement detailing the application of any 
foreseeable harm in applying FOIA exemptions by the DoD Component in 
denying the request;
* * * * *


Sec.  286.11  [Amended]

0
6. Amend Sec.  286.11 by:
0
a. In paragraph (b)(1):
0
i. Adding the words ``Armed Services Board of Contract Appeals,'' after 
the words ``appellate authority:''.
0
ii. Removing the words ``Defense Security Service'' and adding in their 
place the words ``Defense Counterintelligence and Security Agency''.
0
b. In paragraph (b)(2):
0
i. Removing the words ``Deputy Chief Management Officer (DCMO)'' and 
adding in their place the words ``Assistant to the Secretary of Defense 
for Privacy, Civil Liberties, and Transparency (ATSD(PCLT))''.
0
ii. Removing the words ``Armed Services of Contract Appeals''.
0
iii. Adding the words ``United States Cyber Command,'' after the words 
``United States Central Command,''.
0
iv. Removing the words ``Pacific Command'' and adding in their place 
the words ``Indo-Pacific Command''.
0
v. Adding the words ``United States Southern Command,'' before the 
words ``United States Special Operations Command''.
0
vi. Adding the words ``United States Space Command,'' before the words 
``United States Strategic Command''.
0
vii. Removing the acronym ``DCMO'' and adding in its place the acronym 
``ATSD(PCLT)'' wherever it appears in the last sentence.

    Dated: November 27, 2023.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2023-26392 Filed 12-4-23; 8:45 am]
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