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Proposed Rule

DoD Freedom of Information Act (FOIA) Program

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Department of Defense.


Proposed rule.


The Department of Defense is proposing to update current policies and procedures to reflect the DoD FOIA Program as prescribed by Executive Order 13392. The changes will ensure appropriate agency disclosure of information and offer consistency with the goals of section 552 of title 5, United States Code.


Submit comments on or before November 29, 2010.


You may submit comments, identified by docket number and or RIN number and title, by any of the following methods:

  • Federal Rulemaking Portal: Follow the instructions for submitting comments.
  • Mail: Federal Docket Management System Office, 1160 Defense Pentagon, Room 3C843, Washington, DC 20301-1160.

Instructions: All submissions received must include the agency name and docket number or Regulatory Information Number (RIN) for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at as they are received without change, including any personal identifiers or contact information.

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Mr. James Hogan, (703) 696-468 fax number: (703) 696-4506.

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Executive Order 12866, “Regulatory Planning and Review”

It has been certified that 32 CFR part 285 does not:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a section of the economy; productivity; competition; jobs; the environment; public health or safety; or state, local, or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.

Sec. 202, Pub. L. 104-4, “Unfunded Mandates Reform Act”

It has been certified that 32 CFR part 285 does not contain a Federal mandate that may result in the expenditure by state, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year.

Public Law 96-354, “Regulatory Flexibility Act” (5 U.S.C. 601)

It has been certified that 32 CFR part 285 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.

Public Law 96-511, “Paperwork Reduction Act” (44 U.S.C. Chapter 35)

It has been certified that 32 CFR part 285 does not impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995.

Executive Order 13132, “Federalism”

It has been certified that this rule does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on:

(1) The States;

(2) The relationship between the National Government and the States; or

(3) The distribution of power and responsibilities among the various levels of government.

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List of Subjects in 32 CFR Part 285

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Accordingly, 32 CFR part 285 is proposed to be amended as follows.

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1. The authority citation for part 285 continues to read as follows:

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Authority: 5 U.S.C. 552.

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2. Section 285.1 is amended by revising paragraph (c) to read as follows:

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(c) Implements E.O. 13392, Presidential Memorandum, “Freedom of Information Act,” January 21, 2009 (available at​the_​press_​office/​Freedom_​of_​Information_​Act/​), and Attorney General Memorandum, “The Freedom of Information Act (FOIA),” March 19, 2009 (available at​ag/​foia-memo-march2009.pdf) within the Department of Defense.

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3. Section 285.2 is amended by revising paragraph (a) to read as follows:

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(a) The Office of the Secretary of Defense (OSD), the Military Start Printed Page 60398Departments, 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 in the Department of Defense (hereafter referred to collectively as the “DoD Components”).

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4. Section 285.3 is amended by revising paragraph (a) to read as follows:

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(a) Promote transparency and accountability by adopting a presumption in favor of disclosure in all decisions involving the FOIA and responding promptly to requests in a spirit of cooperation.

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5. Section 285.4 is amended by:

a. Revising paragraph (a)(1), the first sentence of paragraph (a)(3), paragraph (a)(4), and paragraph (e)(7).

b. Adding a sentence to the end of paragraph (e)(5).

The revisions and amendments read as follows:


(a) * * *

(1) Serve as the DoD Chief FOIA Officer in accordance with Section 552 of title 5, United States Code.

* * * * *

(3) Designate the FOIA Public Liaisons for the Department of Defense in accordance with Section 552 of title 5, United States Code. * * *

(4) Prepare and submit to the Attorney General the DoD Annual Freedom of Information Act Report as required by 5 U.S.C., and other reports as required by E.O. 13392 and Attorney General Memorandum, “The Freedom of Information Act (FOIA),” March 19, 2009.

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(e) * * *

(5) * * * Additionally, DoD Component FOIA offices will provide DFOIPO with information copies of significant FOIA requests and responses.

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(7) Submit to the DA&M, through DFOIPO, DoD Component inputs to the DoD FOIA Annual Report prescribed in 32 CFR part 286 and E.O. 13392 and other reports or data requested by the DA&M. All such submissions will be made by the FOIA Public Liaisons.

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Dated: September 24, 2010.

Patricia L. Toppings,

OSD Federal Register Liaison Officer, Department of Defense.

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[FR Doc. 2010-24537 Filed 9-29-10; 8:45 am]