Defense Logistics Agency, DoD.
Final rule.
The Defense Logistics Agency (DLA) is revising and updating its existing rule concerning the DLA Freedom of Information Act (FOIA) Program. This rule implements changes to conform to the requirements of the Electronic Freedom of Information Act Amendments of 1996, and the OPEN Government Act of 2007. In addition, part 1285 will be redesignated as part 300.
Ms. Deborah Teer, (703) 767–5247.
This rule supplements 32 CFR part 286 to accommodate specific requirements of DLA's FOIA Program.
It has been certified that 32 CFR part 300 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 sector 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 these Executive orders.
It has been determined that 32 CFR part 300 is not subject to the Regulatory Flexibility Act because it would not, if promulgated, have significant economic
It has been determined that 32 CFR part 300 does not impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995.
It has been certified that 32 CFR part 300 does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995.
It has been certified that 32 CFR part 300 does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132.
32 CFR part 300 is not subject to Executive Order 13045.
The proposed rule was published on October 15, 2012 at 77 FR 62469. A discussion of the comments and the changes made to the proposed rule as a result of those comments are provided as follows:
Comments: Office of Government Information Services (OGIS) and Electronic Privacy Information Center (EPIC) commends DLA for the emphasis on customer service and electronic databases in the proposed rule.
Response: Although no response is required, DLA appreciates all comments.
Comments: Several respondents stated that DLA does not offer any changes to existing regulatory exemptions governing the Agency under the Freedom of Information Act (FOIA). DLA assumes the continuing viability of these exemptions. However, in Milner v. Department of the Navy, 131 S.Ct. 1259 (2011), the Supreme Court reversed the lower court interpretation of certain of the FOIA statutory exemptions, upon which interpretation the exemptions regulations relied. The present Comment urges DLA and the Department of Defense (DoD) to revisit these regulatory exemptions and to recraft them both to comply with the Court's Milner holding and to clarify the proper regulatory interpretation of the statutory exemptions.
EPIC makes a number of comments on the wording of 32 CFR part 286, DoD FOIA Program Regulation.
Response: The purpose of this rule is to implement 32 CFR part 286. Issues relating to the scope or coverage of 32 CFR part 286 are outside the scope of this final rule.
Comment: EPIC suggests adding language to make clear that this section is intended to supplement 32 CFR part 286.
Response: The final rule opening paragraph has been revised to state that other definitions may be found in 32 CFR part 286, Subpart A.
Comment: OGIS suggests adding terms, including requester category and fee waiver, to the glossary. OGIS has found that even experienced requesters can still confuse those terms. Additionally, because DLA refers to both in § 300.3(l), this will ensure shared understanding.
Response: The final rule has been revised to include the requester category. The definition of fee waiver is unnecessary as DLA adopts Subpart F of 32 CFR part 286 which defines fee waiver.
(a) Administrative Appeal.
Comment: EPIC suggests adding language to state that failure to respond within the statutory time limit is appealable.
Response: The final rule definition has been revised.
(b) Adverse Determination.
Comment: EPIC suggests adding language to state that definition includes but is not limited to.
Response: The final rule definition has been revised.
(d) Consultation.
Comment: EPIC suggests amending the definition to clarify when consultation is necessary.
Response: The final rule has been revised.
(e) Defense Freedom of Information Program Office.
Comment: EPIC suggests changing the word Program to Policy.
Response: The final rule has been revised.
(g) DLA Component.
Comment: EPIC suggests modifying the current definition will result in limitless authority to any delegate within DLA to deny FOIA requests.
Response: DLA will not retain the current definition. Due to DLA reorganization of Components, including FOIA offices, not all components are authorized to receive and act independently on FOIA requests. To address EPIC's comment, DLA incorporates language from the DoD FOIA Program Regulation directing DLA Components to limit the number of IDAs appointed and to balance the goals of centralization of authority to promote uniform decisions and decentralization to facilitate responding to each request within the time limitations of the FOIA. Refer to definition (o) DLA FOIA Requester Service Center.
Comment:
Response: The final rule has been revised to expand the definition of FOIA Public Liaison.
Comment: (m) FOIA Request. EPIC suggests retaining current DLA definition.
Response: The final rule definition is amended in part. The definition does not require advance payment but to state a willingness to pay fees should they be assessed. See current regulation at 1285.5(d). DLA does not deny a request if a willingness to pay fees is not indicated but before processing begins the requester is contacted to obtain a fee declaration.
(a) General.
Comment: EPIC suggests that the proposed changes provide the agency with greater discretion to deny FOIA requests.
Response: DLA has amended this paragraph, since this regulation does not impact disclosures outside of FOIA (refer to DoD Directive 5230.09, Clearance of DoD Information for Public Release).
Comment: EPIC suggests the regulations would significantly limit the circumstances under which DLA will process a FOIA request.
Response: DLA partially accommodates EPIC's comment regarding agency burden and significant inference with business as usual.
Comment: OGIS suggests that in addition to the adoption of 32 CFR part 286, Subpart A, 286.4(i) and 286.22(e), Policy, that DLA offices notify requesters in writing of a referral, and
Response: The final rule implements this section of 32 CFR part 286, Subpart A, 286.4(i), which incorporates OGIS's suggestion.
Comment: EPIC suggests DLA not adopt 32 CFR part 286, Subpart A, 286.4 unless it is revised.
Response: DLA adheres to DoD policies, to create uniformity across DoD which provides greater understanding of the DoD FOIA Program to requesters. Paragraph 300.7(d) contains the language recommended by EPIC in its comment (B).
(a)(2) Requests from the public.
Comment: EPIC states that the new language gives DLA unharnessed discretion whether to comply with time limits; unnecessarily delay the processing of FOIA requests; and contains a broken link.
Response: Per 32 CFR 310.17(i), DLA is required by law to abide by the statutory time limit. DLA has revised this paragraph to re-emphasize that requirement; and included a link to the homepage of DoD Issuances.
(a) Receipt and Control.
Comment: OGIS suggests including a new subsection that addresses acknowledgment of a request. Specifically OGIS suggests that DLA state that it will provide an acknowledgment letter confirming receipt of a request that includes the unique tracking number as well as a brief description of the subject of the request. This would help requesters as well as the agency keep track of multiple pending requests.
Response: Per 5 U.S.C. 552(a)(7)(A), the final rule has been revised at § 300.7 (a)(4) to include acknowledgement of a FOIA request.
(a)(2) Receipt and Control.
Comment: EPIC states that the proposed language increases the burden on the requester to produce errorless requests and suggests addressing tolling the time limit due to defects. EPIC suggests that sentences be struck from this section. EPIC also states the proposed language outright bans referrals outside the DoD.
Response: At the screening phase a request that is not perfected cannot be tolled. There is no ban of referrals outside of DoD, to the contrary, DLA refers records to the originating agency both inside and outside of DoD. The regulation is revised to address tolling and the language relating to misdirected requests is removed.
(b) Multi-track processing.
Comment: EPIC believes that DLA is supplanting the statute with this section as it reduces the “unusual circumstances” provision of the agency.
Response: Pursuant to the authority granted by 5 U.S.C. 552(a)(6)(D), DLA's establishment of multi-track processing complies with DoD regulation and assists both DLA and the requester in recognizing when the request is complex in nature due to “unusual circumstances,” and may require an additional ten days for processing. DLA's focus on customer service ensures the requester is informed of its processes and the use of multi-track assists DLA and requesters in achieving better response times.
(d) Misdirected requests.
Comment: EPIC recommends retaining the language in the current regulation.
Response: DLA has amended this paragraph based on guidance in both the DOJ FOIA Guide and DoD regulation. DLA is not required to forward misdirected requests to outside DoD agencies.
Comment: OGIS suggests including additional information addressing the content of the denial letter. Specifically, OGIS suggests providing a brief description of the information DLA is withholding if it is possible without revealing exempt information. OGIS also recommends that DLA specifically address the new requirements in 5 U.S.C. 552(b) that agencies shall (1) indicate, if technically feasible, the precise amount of information deleted and the exemption under which the deletion is made at the place in the record where the deletion is made, and (2) indicate the exemption under which a deletion is made on the released portion of the record, unless including that indication would harm an interest protected by the exemption.
Response: The final rule has been revised at § 300.8(c) to include the elements of an initial determination response letter.
Comment: EPIC states that the proposed rule eliminates the mention of advising a requester when segregation was not reasonable when a release is denied in full.
Response: The final rule has been revised at § 300.9(c) to address EPIC's comment. DLA does not deny records in full on the grounds of reasonable segregability. Full denials are based on FOIA exemptions and should be appealed on this basis.
Comment: EPIC suggests language adding the right to appeal if the requester receives no determination. This subsection changes the window of time in which requesters may file an appeal from sixty to thirty calendar days.
Response: DLA has revised the definition of an adverse determination (see § 300.3(b)) to include this language. The length of time to appeal is set by DoD, therefore, is outside the scope of DLA's authority.
Comment: OGIS suggests renumbering the current § 300.10 as § 300.11 and inserting a new § 300.10 to inform requesters of the mediation services provided by OGIS to resolve disputes between FOIA requesters and DLA in accordance with FOIA and DoD policy.
Response: DLA recognized the value of mediation and appreciates its role in the FOIA process, however, DoD has not established guidelines for using mediation services provided by OGIS to resolve disputes between FOIA requesters and the Agency, therefore this comment is not adopted.
Comment: OGIS suggests that in addition to the adoption of 32 CFR part 286, Subpart F, Fee Schedule that DLA address fee estimates and administrative waiver of fees.
Response: The purpose of this rule is to implement 32 CFR part 286 and DLA finds it unnecessary to duplicate information published by DoD.
Freedom of Information Act.
For the reasons stated in the preamble, DoD amends 32 CFR chapters I and XII as follows:
5 U.S.C. 552.
This part provides policies and procedures for the Defense Logistics Agency (DLA) implementation of the Freedom of Information Act (FOIA) (5 U.S.C. 552). This part supplements and implements the Department of Defense (DoD) FOIA Program Directive (32 CFR part 285) and DoD FOIA Program Regulation (32 CFR part 286). This part applies to DLA Components and takes precedence over all DLA regulations that supplement the FOIA program.
This part is published in accordance with the authority contained in 5 U.S.C. 552 and 32 CFR parts 285 and 286. It supplements 32 CFR part 286 to accommodate specific requirements of DLA's FOIA Program. For all FOIA issues not covered by this part, the rules set forth in 32 CFR part 286 will govern.
Definitions not included in this subpart may be found in 32 CFR part 286, subpart A. The following terms and meanings apply for the purposes of this part:
(a)
(b)
(c)
(d)
(e)
(f)
(1)
(i) Searching for responsive emails or electronic documents located on individually-assigned computers or servers;
(ii) Time taken by a programmer to create a program to run a requested report from a database; or
(iii) Searching through hardcopy files to include records stored at a Federal Records Center. The term “search” also includes a page-by-page and line-by-line identification of a record to determine if it, or portions, are responsive to the request.
(2)
(3)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(p)
(1) Commercial;
(2) Non-commercial scientific or educational institutions or news media; and
(3) All others.
DLA adopts and supplements the DoD FOIA Program policy and procedures codified at 32 CFR part 286, subpart A, General Provisions and subpart B, FOIA Reading Rooms and 32 CFR part 285.
(a)
(b)
(1) To meet the requirements of Executive Order 13392, each FOIA Requester Service Center shall have an internet Web site that serves to educate the public on the FOIA process. At a minimum, each Web site shall have the address, telephone number, facsimile number, and electronic mail address to which FOIA requests can be sent; a link to DoD's FOIA handbook; the name and contact information of DLA's FOIA Officer and Public Liaison; and information on how a requester can obtain the status of a request. Additionally, each FOIA Requester Service Center Web site will have links to DLA's Headquarters FOIA/Privacy Web site reading room.
(2) [Reserved]
(c)
(2) A record must exist and be in the possession and control of DLA at the time the search begins to be considered subject to this part and the FOIA.
(3) When processing FOIA requests for electronic data, if DLA's Component has the capability to respond to the request, and the effort is reasonable and would be a business as usual approach, then the request should be processed. However, the request need not be processed where the capability to respond does not exist without a significant expenditure of resources, thus not being a normal business as usual approach. For example: Processing a request that would cause a significant interference with the operation of DLA's Component's automated system or require a significant amount of programming effort.
(d)
(e)
Refer to the DoD FOIA Program regulations codified at 32 CFR part 286, subpart C, Exemptions.
DLA adopts and supplements the DoD FOIA Program regulations codified at 32
(2) When personally identifying information in a record is requested by the subject of the record or the subject's representative, and the information is contained within a Privacy Act system of records, the request will be processed under both the FOIA and the Privacy Act. Due to the dual nature of the processing, the FOIA time limits will be used. DLA Components must comply with the provisions of 32 CFR 310.17(c) to confirm the identity of the requester.
(b) [Reserved]
(a)
(1) Open a file in DLA's specified control system designed to ensure accountability and compliance with the FOIA. The control system will include the data elements needed to compile the statistics required in the annual Department of Justice FOIA report or other reports required by another authority. Each request shall automatically be assigned a unique tracking number.
(2) Screen the request for defects in the description, the requester category, the fee declaration, and full postal address. The FOIA Officer will notify the requester of any such defects and provide assistance to help remedy the defects. The FOIA Officer will place the request on-hold until the request is perfected. When a DLA FOIA Requester Service Center receives a request for records that clearly belong to an agency outside of DoD, the requester shall be told these are not agency records and, if possible, provide the name of the agency that may hold the records. No referral of the request is made outside of DoD.
(3) Once a request is perfected, DLA may make one request for additional information unrelated to fees and toll the 20 working-day period while awaiting the information. Tolling the 20 working-day period is not limited for fee related issues.
(4) DLA will provide the requester with the FOIA tracking number and the track in which the FOIA was placed (see § 300.7(b)). Each DLA FOIA Requester Service Center has a telephone line to inform the requester of the status of their request (see Appendix A of this part).
(5) DLA uses the date-of-search cut-off (this cut-off is the day before the search begins) to ensure that as many records as possible will be captured by the agency's search. A FOIA request may not be on-going or open-ended in nature. DLA Components are responsible for providing records in possession and control of DLA at the time the search for records begins. DLA Components are not required to expend DLA funds to establish data links that provide real-time or near-real-time data to a FOIA requester.
(b)
(c)
(d)
(a) The initial determination is whether to make a record available in response to a FOIA request. A full release may be made by an official knowledgeable of the record, with authority to determine that no harm would come from release. Adverse determinations (refer to § 300.3(b)) must be made by the designated Initial Denial Authority (IDA) except for determinations made regarding the requester category and requests for fee waivers or expedited processing. By this regulation, the Director, DLA, delegates to Heads of DLA Components (see § 300.3(h)) the designation of IDA. The designation of IDA may be further delegated by the Heads of DLA Components to their Deputies. The IDA shall review all recommendations for withholding information and whether the criteria for withholding under one or more FOIA exemptions are met. DLA has IDAs throughout the agency; and each IDA will make the determination for records within their area of functional responsibility. If a request involves records from more than one functional area, consultation will be done with all responsible IDAs but will be signed by the IDA assigned the primary responsibility for processing the request.
(b) The FOIA requires that any reasonably segregable portion of a record must be released after appropriate application of the Act's nine exemptions. Segregation is not reasonable when it would produce an
(c) If information is withheld in whole or part, DLA will provide in a response letter the exemption under which the withholding is made, a description of the type of information redacted, the name and title or position of the IDA and the administrative appeal rights. When information is withheld in full, DLA will provide an estimate of the volume withheld. This estimate should be in number of pages or in some other reasonable form of estimation. When information is withheld in part, DLA will show the redacted amount of information and the exemption under which the redaction is made on the released portion of the record, unless including that indication would harm an interest protected by the exemption under which the redaction is made.
When an IDA makes an adverse determination (see § 300.3(b)) the requester may appeal that decision in writing to the designated appellate authority (see § 300.3(a)). An appeal must be made in writing to DLA's Appellate Authority and must be postmarked within the appeal time limits of the DoD FOIA Program Regulation at 32 CFR 286.24. The appeal should be accompanied by copies of the initial request and the denial letter.
DLA adopts the DoD FOIA Program regulations codified at 32 CFR part 286, subpart E, Release and Processing Procedures.
DLA adopts the rules and rates published in 32 CFR part 286, subpart F, Fee Schedule. In addition, DLA considers fees charged by a Federal Records Center to retrieve and re-file records a part of the direct costs charged to requesters.
(a)
(2) DLA is comprised of several Components and each DLA Component is responsible for maintaining its own records; therefore, FOIA requests should be addressed to the FOIA Requester Service Center that has custody of the record sought. (See paragraph (c) of this appendix.) DLA FOIA Officers will assist requesters in determining the correct DLA Requester Service Center to address requests. (See paragraph (c) of this appendix and DLA's public Web site at
(3) On DLA's public Web site is an index to assist in locating DLA records by category, organization, keyword search, or by contract prefix. The index is titled “Index of Information at DLA FOIA Service Centers” at
(b)
(2)
(3)
(c)
(1) Defense Logistics Agency Headquarters, ATTN: DGA, 8725 John J. Kingman Rd., Ste 1644, Fort Belvoir, VA 22060–6221, Fax: 703–767–6091, Email:
(i) DLA Transaction Service, Wright-Patterson AFB, Ohio—Editing/routing of logistics transactions, network interoperability and eBusiness services.
(ii) DLA Strategic Materials, Fort Belvoir, Va.—Manages the strategic and critical raw material stockpile that supports national defense needs.
(iii) DLA Europe & Africa, Kaiserslautern, Germany—Focal point for U.S. European Command's and U.S. Africa Command's theater of operations.
(iv) DLA Pacific, Camp Smith, Hawaii—Focal point for U.S. Pacific Command's theater of operations.
(v) DLA Central, MacDill AFB, Fla.—Focal point for U.S. Central Command's theater of operations.
(2) DLA Energy, 8725 John J. Kingman Rd., Ste 3729, Fort Belvoir, VA 22060–6222, Fax: 703–767–5022, Email:
(3) DLA Land and Maritime, ATTN: GC, 3990 E. Broad Street, Columbus, OH 43218–3990, Fax: 614–692–4385, Email:
(4) DLA Aviation, 8000 Jefferson Davis Highway, Richmond, VA 23297–5000, Fax: 804–279–4137, Email:
(5) DLA Troop Support, 700 Robbins Avenue, Bldg 36, Philadelphia, PA 19111–5096, Fax: 215–737–2151, Email:
(6) DLA Distribution, ATTN: DDC–GC, Mission Drive, Bldg 81, New Cumberland, PA 17070–5000, Fax: 717–770–5685, Email:
(7) DLA Disposition Services and DLA Logistics Information Service, 74 Washington Avenue North, Battle Creek, MI 49017–3084, Fax: 269–961–4534, Email:
(i) Disposition Services: Reutilization, transfer, demilitarization, and environmental disposal and reuse.
(ii) Logistics Information Service: Manages a wide range of logistics information and identification systems.
(8) DLA Document Services, 5450 Carlisle Pike, Bldg 9, P.O. Box 2020, Mechanicsburg, PA 17055–0788, Fax: 717–605–3999, Email: