Federal Register / Vol. 63, No. 109 / Monday, June 8, 1998 / Proposed Rules 31161

exemption, FDA determines that the

manufacturer no longer meets the

requirements for an exemption on the

basis that it is economically prohibitive

or unethical to conduct the studies

needed to submit a supplemental

application for the new use.

(e) If FDA terminates an approval of

an application for an exemption under

paragraph (d) of this section, the

manufacturer must, within 60 days of

being notified by FDA that its

exemption approval has been

terminated, file a supplemental

application for the new use that is the

subject of the information being

disseminated under the exemption,

certify, under § 99.201(a)(4)(i) or

(a)(4)(ii) that it will file a supplemental

application for the new use, or cease

disseminating information on the new

use. FDA may require a manufacturer

that ceases the dissemination of

information on the new use to

undertake corrective action.

§ 99.405 Applicability of labeling,

adulteration, and misbranding authority.

The dissemination of information

relating to a new use for a drug or

device may constitute labeling, evidence

of a new intended use, adulteration, or

misbranding of the drug or device if

such dissemination fails to comply with

section 551 of the Federal Food, Drug,

and Cosmetic Act (the act) and the

requirements of this part. A

manufacturer’s failure to exercise due

diligence in submitting the clinical

studies that are necessary for the

approval of a new use that is the subject

of information disseminated under this

part or in beginning or completing such

clinical studies shall be deemed a

failure to comply with section 551 of the

act and the requirements of this part.

Subpart F—Recordkeeping and Reports

§ 99.501 Recordkeeping and reports.

(a) A manufacturer disseminating

information under this part shall:

(1) Maintain records sufficient to

allow the manufacturer to take

corrective action as required by FDA.

The manufacturer shall make such

records available to FDA, upon request,

for inspection and copying. Such

records shall either:

(i) Identify, by name, those persons

receiving the disseminated information;

or

(ii) Identify, by category, the

recipients of the disseminated

information, unless FDA requires the

manufacturer to retain records

identifying individual recipients of the

disseminated information.

Manufacturers whose records identify

recipients by category only shall:

(A) Identify subcategories of

recipients where appropriate (e.g.,

oncologists, pediatricians, obstetricians,

etc.); and

(B) Ensure that any corrective action

to be taken will be sufficiently

conspicuous to individuals within that

category of recipients;

(2) Maintain an identical copy of the

information disseminated under this

part; and

(3) Upon the submission of a

supplemental application to FDA, notify

the appropriate office identified in

§ 99.201(c) of this part.

(b) A manufacturer disseminating

information on a new use for a drug or

device shall, on a semiannual basis,

submit to the FDA office identified in

§ 99.201(c) of this part:

(1) A list containing the titles of

articles and reference publications

relating to the new use of drugs or

devices that the manufacturer

disseminated to a health care

practitioner, pharmacy benefit manager,

health insurance issuer, group health

plan, or Federal or State government

agency. The list shall cover articles and

reference publications disseminated in

the 6-month period preceding the date

on which the manufacturer provides the

list to FDA;

(2) A list identifying the categories of

health care practitioners, pharmacy

benefit managers, health insurance

issuers, group health plans, or Federal

or State government agencies that

received the articles and reference

publications in the 6-month period

described in paragraph (b)(1) of this

section. The list shall also identify

which category of recipients received a

particular article or reference

publication;

(3) A notice and summary of any

additional clinical research or other data

relating to the safety or effectiveness of

the new use, and, if the manufacturer

possesses such clinical research or other

data, a copy of the research or data.

Such other data may include, but is not

limited to, new articles published in

scientific or medical journals, reference

publications, and summaries of adverse

effects that are or may be associated

with the new use;

(4) If the manufacturer is conducting

studies necessary for the submission of

a supplemental application, periodic

progress reports on these studies. Such

reports shall describe the studies’

current status (i.e., progress on patient

enrollment, any significant problems

that could affect the manufacturer’s

ability to complete the studies, and

expected completion dates). If the

manufacturer discontinues or terminates

a study before completing it, the

manufacturer shall, as part of the next

periodic progress report, state the

reasons for such discontinuation or

termination; and

(5) If the manufacturer was granted an

exemption from the requirement to

submit a supplemental application for

the new use, any new or additional

information that relates to whether the

manufacturer continues to meet the

requirements for such exemption. This

information may include, but is not

limited to, new or additional

information regarding revenues from the

product that is the subject of the

dissemination and new or additional

information regarding the

persuasiveness of the data on the new

use, including information regarding

whether the new use is broadly

accepted as current standard medical

treatment or therapy.

(c) A manufacturer shall maintain a

copy of all information, lists, records,

and reports required or disseminated

under this part for 3 years after it has

ceased dissemination of such

information and make such documents

available to FDA for inspection and

copying.

Dated: May 29, 1998.

Michael A. Friedman,

Lead Deputy Commissioner for the Food and

Drug Administration.

Donna E. Shalala,

Secretary of Health and Human Services.

[FR Doc. 98–14918 Filed 6–4–98; 4:30 pm]

BILLING CODE 4160–01–F

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 286

[DoD 5400.7–R]

RIN 0790–AG58

DoD Freedom of Information Act

Program Regulation

AGENCY: Office of the Secretary,

Department of Defense (DoD).

ACTION: Proposed rule.

SUMMARY: This proposed rule conforms

to the requirements of the Electronic

Freedom of Information Act

Amendments of 1996. This proposed

revision reflects substantial and

administrative changes since May 1997,

as a result of DoD reorganization. The

proposal also provides guidance to DoD

on implementation of this amended law.

DATES: Comments must be received by

August 7, 1998.
31162 Federal Register / Vol. 63, No. 109 / Monday, June 8, 1998 / Proposed Rules

1Copies may be viewed via internet at http://

web7.whs.osd.mil/corres.htm.

ADDRESSES: Forward comments to OSD/

WHS, Room 2C757, 1155 Defense

Pentagon, Washington, DC 20301–1155

FOR FURTHER INFORMATION CONTACT: Mr.

C. Talbott, 703–697–1171.

SUPPLEMENTARY INFORMATION:

Executive Order 12866, ‘‘Regulatory

Planning and Review’’

It has been determined that 32 CFR

part 286 is not a significant regulatory

action. The rule does not:

(1) Have an annual effect to 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.

Pub. L. 96–354, ‘‘Regulatory Flexibility

Act’’ (5 U.S.C. 601)

It has been 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. This rule

implements the Freedom of Information

Act (5 U.S.C. 552), a statute concerning

the release of Federal Government

records, and does not economically

impact Federal Government relations

with the private sector.

Pub. L. 96–511, ‘‘Paperwork Reduction

Act’’ (44 U.S.C. Chapter 35)

It has been certified that this part does

not impose any reporting or

recordkeeping requirements under the

Paperwork Reduction Act of 1995.

List of Subjects in 32 CFR Part 286

Freedom of information.

Accordingly, 32 CFR part 286 is

proposed to be revised to read as

follows:

PART 286—DOD FREEDOM OF

INFORMATION ACT PROGRAM

REGULATION

Subpart A—General Provisions

Sec.

286.1 Purpose and applicability.

286.2 DoD public information.

286.3 Definitions.

286.4 Policy.

Subpart B—FOIA Reading Rooms

286.7 Requirements.

286.8 Indexes.

Subpart C—Exemptions

286.11 General provisions.

286.12 Exemptions.

Subpart D—For Official Use Only

286.15 General provisions.

286.16 Markings.

286.17 Dissemination and transmission.

286.18 Safeguarding FOUO information.

286.19 Termination, disposal and

unauthorized disclosure.

Subpart E—Release and Processing

Procedures

286.22 General provisions.

286.23 Initial determinations.

286.24 Appeals.

286.25 Judicial actions.

Subpart F—Fee Schedule

286.28 General provisions.

286.29 Collection of fees and fee rates.

286.30 Collection of fees and fee rates for

technical data.

Subpart G—Reports

286.33 Reports control.

Subpart H—Education and Training

286.36 Responsibility and purpose.

Appendix A to Part 286—Combatant

Commands—Processing Procedures for

FOIA Appeals

Appendix B to Part 286—Addressing FOIA

Requests

Appendix C to Part 286—DD Form 2086,

‘‘Record of Freedom of Information (FOI)

Processing Cost’’

Appendix D to Part 286—DD Form 2086–1,

‘‘Record of Freedom of Information (FOI)

Processing Cost for Technical Data’’

Appendix E to Part 286—DD Form 2564,

‘‘Annual Report Freedom of Information

Act’’

Appendix F to Part 286—DoD Freedom of

Information Act Program Components

Authority: 5 U.S.C. 552.

Subpart A—General Provisions

§ 286.1 Purpose and applicability.

(a) Purpose. This part provides

policies and procedures for the DoD

implementation of the Freedom of

Information Act, as amended (5 U.S.C.

552), and DoD Directive 5400.7,1 and

promotes uniformity in the DoD

Freedom of Information Act (FOIA)

Program.

(b) Applicability. This part applies to

the Office of the Secretary of Defense

(OSD), the Military Departments, the

Chairman of the Joint Chiefs of Staff, the

Combatant Commands, the Inspector

General of the Department of Defense

(IG DoD), the Defense Agencies, and the

DoD Field Activities (hereafter referred

to collectively as ‘‘the DoD

Components’’). This part takes

precedence over all DoD Component

publications that supplement and

implement the DoD FOIA Program. A

list of DOD Components is at appendix

F to this part.

§ 286.2 DoD public information.

(a) Public information. (1) The public

has a right to information concerning

the activities of its Government. DoD

policy is to conduct its activities in an

open manner and provide the public

with a maximum amount of accurate

and timely information concerning its

activities, consistent always with the

legitimate public and private interests of

the American people. A record

requested by a member of the public

who follows rules established by proper

authority in the Department of Defense

shall not be withheld in whole or in part

unless the record is exempt from

mandatory partial or total disclosure

under the FOIA. As a matter of policy,

DoD Components shall make

discretionary disclosures of exempt

records or information whenever

disclosure would not foreseeably harm

an interest protected by a FOIA

exemption, but this policy does not

create any right enforceable in court. In

order that the public may have timely

information concerning DoD activities,

records requested through public

information channels by news media

representatives that would not be

withheld if requested under the FOIA

should be released upon request.

Prompt responses to requests for

information from news media

representatives should be encouraged to

eliminate the need for these requesters

to invoke the provisions of the FOIA

and thereby assist in providing timely

information to the public. Similarly,

requests from other members of the

public for information that would not be

withheld under the FOIA should

continue to be honored through

appropriate means without requiring the

requester to invoke the FOIA.

(2) Within the OSD, the Assistant

Secretary of Defense for Command,

Control, Communications, and

Intelligence, as Chief Information

Officer, in conjunction with the

Director, Administration and

Managment is responsible for ensuring

preparation of reference material or a

guide for requesting records or

information from the Department of

Defense, subject to the nine exemptions

of the FOIA. This publication shall also

include an index of all major

information systems, and a description

of major information and record locator

systems, as defined by the Office of the

Assistant Secretary of Defense for
Federal Register / Vol. 63, No. 109 / Monday, June 8, 1998 / Proposed Rules 31163

Command, Control, Communications,

and Intelligence. DoD FOIA

Components shall coordinate with the

appropriate office(s) to insure that this

is also accomplished within their

department or organization.

(3) DoD Components shall also

prepare, in addition to normal FOIA

regulations, a handbook for the use of

the public in obtaining information from

their organization. This handbook

should be a short, simple explanation to

the public of what the FOIA is designed

to do, and how a member of the public

can use it to access government records.

Each DoD Component should explain

the types of records that can be obtained

through FOIA requests, why some

records cannot, by law, be made

available, and how the DoD Component

determines whether the record can be

released. The handbook should also

explain how to make a FOIA request,

how long the requester can expect to

wait for a reply, and explain the right of

appeal. The handbook should

supplement other information locator

systems, such as the Government

Information Locator Service (GILS), and

explain how a requester can obtain more

information about those systems. The

handbook should be available on paper

and through electronic means and

contain the following additional

information, complete with electronic

links to the below elements; the location

of reading room(s) within the

Component and the types and categories

of information available, the location of

Component’s World Wide Web page, a

reference to the Component’s FOIA

regulation and how to obtain a copy, a

reference to the Component’s FOIA

annual report and how to obtain a copy

and the location of the Component’s

GILS page. Also, the DoD Components’

Freedom of Information Act Annual

Reports should refer to the handbook

and how to obtain it.

(b) Control system. A request for

records that invokes the FOIA shall

enter a formal control system designed

to ensure accountability and compliance

with the FOIA. Any request for DoD

records that either explicitly or

implicitly cites the FOIA shall be

processed under the provisions of this

part, unless otherwise required by

§ 286.4(m).

§ 286.3 Definitions.

As used in this part, the following

terms and meanings shall be applicable:

Administrative appeal. A request by a

member of the general public, made

under the FOIA, asking the appellate

authority of a DoD Component to

reverse a decision to withhold all or part

of a requested record; to deny a fee

category claim by a requester; to deny a

request for waiver or reduction of fees;

to deny a request to review an initial fee

estimate; to deny a request for expedited

processing due to demonstrated

compelling need under § 286.4(d)(3);

and confirm that no records were

located during the initial search.

Requesters also may appeal the failure

to receive a response determination

within the statutory time limits; and any

determination that the requester

believes is adverse in nature.

Agency record. (1) The products of

data compilation, such as all books,

papers, maps, and photographs,

machine readable materials, inclusive of

those in electronic form or format, or

other documentary materials, regardless

of physical form or characteristics, made

or received by an agency of the United

States Government under Federal law in

connection with the transaction of

public business and in Department of

Defense possession and control at the

time the FOIA request is made. Care

should be taken not to exclude records

from being considered agency records,

unless they fall within one of the

categories in paragraph (2) of this

definition.

(2) The following are not included

within the definition of the word

‘‘record’’:

(i) Objects or articles, such as

structures, furniture, vehicles and

equipment, whatever their historical

value, or value as evidence.

(ii) Anything that is not a tangible or

documentary record, such as an

individual’s memory or oral

communication.

(iii) Personal records of an individual

not subject to agency creation or

retention requirements, created and

maintained primarily for the

convenience of an agency employee,

and not distributed to other agency

employees for their official use.

Personal papers fall into three

categories: those created before entering

Government service; private materials

brought into, created, or received in the

office that were not created or received

in the course of transacting Government

business; and work-related personal

papers that are not used in the

transaction of Government business.

(3) A record must exist and be in the

possession and control of the

Department of Defense at the time of the

request to be considered subject to this

part and the FOIA. There is no

obligation to create, compile, or obtain

a record to satisfy a FOIA request. See

§ 286.5(g)(2) on creating a record in the

electronic environment.

(4) Hard copy or electronic records,

that are subject to FOIA requests under

5 U.S.C. 552(a)(3), and that are available

to the public through an established

distribution system, or through the

Federal Register, the National Technical

Information Service, or the Internet,

normally need not be processed under

the provisions of the FOIA. If a request

is received for such information, DoD

Components shall provide the requester

with guidance, inclusive of any written

notice to the public, on how to obtain

the information. However, if the

requester insists that the request be

processed under the FOIA, then the

request shall be processed under the

FOIA. If there is any doubt as to

whether the request must be processed,

contact the Directorate for Freedom of

Information and Security Review.

Appellate authority. The Head of the

DoD Component or the Component

head’s designee having jurisdiction for

this purpose over the record, or any of

the other adverse determinations

outlined in definitions ‘‘Administrative

appeal’’ and ‘‘initial denial authority’’ .

DoD Component. An element of the

Department of Defense, as defined in

§ 286.1(b), authorized to receive and act

independently on FOIA requests. (See

appendix F of this part.) A DoD

Component has its own initial denial

authority (IDA), appellate authority, and

legal counsel.

Electronic record. Records (including

e-mail) that are created, stored, and

retrievable by electronic means.

Federal Agency. As defined by 5

U.S.C. 552(f)(1), a Federal agency is any

executive department, military

department, Government corporation,

Government controlled corporation, or

other establishment in the executive

branch of the Government (including

the Executive Office of the President), or

any independent regulatory agency.

FOIA request. A written request for

DoD records that adequately describes

the record(s) sought, made by any

person, including a member of the

public (U.S. or foreign citizen), an

organization, or a business, but not

including a Federal Agency or a fugitive

from the law, that either explicitly or

implicitly invokes the FOIA, DoD

Directive 5400.7, this part, or DoD

Component supplementing regulations

or instructions. Requesters should also

address fees in their request. Written

requests may be received by postal

service or other commercial delivery

means, by facsimile, or electronically.

Requests received electronically should

have a postal mailing address included

since it may not be practical to provide

a substantive response electronically.

The request is considered perfected

when the above conditions have been

met and the request arrives at the FOIA
31164 Federal Register / Vol. 63, No. 109 / Monday, June 8, 1998 / Proposed Rules

office of the Component in possession of

the records.

Initial denial authority (IDA). An

official who has been granted authority

by the head of a DoD Component to

withhold records requested under the

FOIA for one or more of the nine

categories of records exempt from

mandatory disclosure. IDA’s may also

deny a fee category claim by a requester;

deny a request for expedited processing

due to demonstrated compelling need

under § 286.4(d)(3); deny a request for a

waiver or reduction of fees; review a fee

estimate; and confirm that no records

were located in response to a request.

Public interest. The interest in

obtaining official information that sheds

light on an agency’s performance of its

statutory duties because the information

falls within the statutory purpose of the

FOIA to inform citizens about what

their Government is doing. That

statutory purpose, however, is not

fostered by disclosure of information

about private citizens accumulated in

various governmental files that reveals

nothing about an agency’s or official’s

own conduct.

§ 286.4 Policy.

(a) Compliance with the FOIA. DoD

personnel are expected to comply with

the FOIA, this part, and DoD FOIA

policy in both letter and spirit. This

strict adherence is necessary to provide

uniformity in the implementation of the

DoD FOIA Program and to create

conditions that will promote public

trust.

(b) Openness with the public. The

Department of Defense shall conduct its

activities in an open manner consistent

with the need for security and

adherence to other requirements of law

and regulation. Records not exempt

from disclosure under the Act shall,

upon request, be made readily

accessible to the public in accordance

with rules promulgated by competent

authority, whether or not the Act is

invoked.

(c) Avoidance of procedural obstacles.

DoD Components shall ensure that

procedural matters do not unnecessarily

impede a requester from obtaining DoD

records promptly. Components shall

provide assistance to requesters to help

them understand and comply with

procedures established by this part and

any supplemental regulations published

by the DoD Components.

(d) Prompt action on requests. (1)

Generally, when a member of the public

complies with the procedures

established in this part and DoD

Component regulations or instructions

for obtaining DoD records, and after the

request is received by the official

designated to respond, DoD

Components shall endeavor to provide a

final response determination within the

statutory 20 working days. If a

significant number of requests, or the

complexity of the requests prevent a

final response determination within the

statutory time period, DoD Components

shall advise the requester of this fact,

and explain how the request will be

responded to within its multitrack

processing system (see § 286.5(d)(2)). A

final response determination is

notification to the requester that the

records are released, or will be released

on a certain date, or the records are

denied under the appropriate FOIA

exemption, or the records cannot be

provided for one or more of the other

reasons in § 286.23(b). Interim responses

acknowledging receipt of the request,

negotiations with the requester

concerning the scope of the request, the

response timeframe, and fee agreements

are encouraged; however, such actions

do not constitute a final response

determination pursuant to the FOIA. If

a request fails to meet minimum

requirements as set forth in § 286.3

definition of ‘‘FOIA request’’,

Components shall apprise the requester

how to perfect the request. The statutory

20 working day time limit applies upon

receipt of a perfected FOIA request as

outlined in § 286.3 definition of ‘‘FOIA

request’’.

(2) Multitrack processing. When a

Component has a significant number of

pending requests that prevents a

response determination being made

within 20 working days, the requests

shall be processed in a multitrack

processing system, based on the date of

receipt, the amount of work and time

involved in processing the requests, and

whether the request qualifies for

expedited processing as described in

paragraph (d)(3) of this section. DoD

Components may establish as many

processing queues as they wish;

however, at a minimum, three

processing tracks shall be established,

all based on a first-in-first-out concept,

and rank ordered by the date of receipt

of the request. One track shall be a

processing queue for simple requests,

one track for complex requests, and one

track shall be a processing queue for

expedited processing as described in

paragraph (d)(3) of this section.

Determinations as to whether a request

is simple or complex shall be made by

each DoD Component. DoD Components

shall provide a requester whose request

does not qualify for the fastest queue

(except for expedited processing as

described in paragraph (d)(3) of this

section), an opportunity to limit in

writing by hard copy, facsimile, or

electronically, the scope of the request

in order to qualify for the fastest queue.

This multitrack processing system does

not obviate Components’ responsibility

to exercise due diligence in processing

requests in the most expeditious manner

possible.

(3) Expedited processing. A separate

queue shall be established for requests

meeting the test for expedited

processing. Expedited processing shall

be granted to a requester after the

requester requests such and

demonstrates a compelling need for the

information. Notice of the determination

as to whether to grant expedited

processing in response to a requester’s

compelling need shall be provided to

the requester within 10 calendar days

after receipt of the request in the DoD

Component’s office that will determine

whether to grant expedited processing.

Once the DoD Component has

determined to grant expedited

processing, the request shall be

processed as soon as practicable.

Actions by DoD Components to initially

deny or affirm the initial denial on

appeal of a request for expedited

processing, and failure to respond in a

timely manner shall be subject to

judicial review.

(i) Compelling need means that the

failure to obtain the records on an

expedited basis could reasonably be

expected to pose an imminent threat to

the life or physical safety of an

individual.

(ii) Compelling need also means that

the information is urgently needed by

an individual primarily engaged in

disseminating information in order to

inform the public concerning actual or

alleged Federal Government activity. An

individual primarily engaged in

disseminating information means a

person whose primary activity involves

publishing or otherwise disseminating

information to the public.

Representatives of the news media (see

§ 286.28(e)(7)(i)) would normally qualify

as individuals primarily engaged in

disseminating information. Other

persons must demonstrate that their

primary activity involves publishing or

otherwise disseminating information to

the public.

(A) Urgently needed means that the

information has a particular value that

will be lost if not disseminated quickly.

Ordinarily this means a breaking news

story of general public interest.

However, information of historical

interest only, or information sought for

litigation or commercial activities

would not qualify, nor would a news

media publication or broadcast deadline
Federal Register / Vol. 63, No. 109 / Monday, June 8, 1998 / Proposed Rules 31165

unrelated to the news breaking nature of

the information.

(B) [Reserved]

(iii) A demonstration of compelling

need by a requester shall be made by a

statement certified by the requester to be

true and correct to the best of their

knowledge. This statement must

accompany the request in order to be

considered and responded to within the

10 calendar days required for decisions

on expedited access.

(iv) Other reasons for expedited

processing. Other reasons that merit

expedited processing by DoD

Components are an imminent loss of

substantial due process rights and

humanitarian need. A demonstration of

imminent loss of substantial due

process rights shall be made by a

statement certified by the requester to be

true and correct to the best of his or her

knowledge. Humanitarian need means

that disclosing the information will

promote the welfare and interests of

mankind. A demonstration of

humanitarian need shall be also made

by a statement certified by the requester

to be true and correct to the best of his

or her knowledge. Both statements

mentioned above must accompany the

request in order to be considered and

responded to within the 10 calendar

days required for decisions on

expedited access. Once the decision has

been made to expedite the request for

either of these reasons, the request may

be processed in the expedited

processing queue behind those requests

qualifying for compelling need.

(v) These same procedures also apply

to requests for expedited processing of

administrative appeals.

(e) Use of exemptions. It is DoD policy

to make records publicly available,

unless the record qualifies for

exemption under one or more of the

nine exemptions. It is DoD policy that

DoD Components shall make

discretionary releases whenever

possible; however, a discretionary

release is normally not appropriate for

records clearly exempt under

exemptions 1, 3, 4, 6, 7 (C) and 7(F) (see

subpart C of this part). Exemptions 2, 5,

and 7(A)(B)(D) and (E) (see subpart C of

this part) are discretionary in nature,

and DoD Components are encouraged to

exercise discretionary releases

whenever possible. Exemptions 4, 6 and

7(C) cannot be claimed when the

requester is the submitter of the

information.

(f) Public domain. Nonexempt records

released under the authority of this part

are considered to be in the public

domain. Such records may also be made

available in Components’ reading rooms

in paper form, as well as electronically,

to facilitate public access. Discretionary

releases to FOIA requesters constitute a

waiver of the FOIA exemption that may

otherwise apply. Disclosure to a

properly constituted advisory

committee, to Congress, or to other

Federal Agencies does not waive the

exemption. (See § 286.22 (d)) Exempt

records disclosed without authorization

by the appropriate DoD official do not

lose their exempt status. Also, while

authority may exist to disclose records

to individuals in their official capacity,

the provisions of this part apply if the

same individual seeks the records in a

private or personal capacity.

(g) Creating a record. (1) A record

must exist and be in the possession and

control of the Department of Defense at

the time of the search to be considered

subject to this part and the FOIA. There

is no obligation to create, compile, or

obtain a record to satisfy a FOIA

request. A DoD Component, however,

may compile a new record when so

doing would result in a more useful

response to the requester, or be less

burdensome to the agency than

providing existing records, and the

requester does not object. Cost of

creating or compiling such a record may

not be charged to the requester unless

the fee for creating the record is equal

to or less than the fee which would be

charged for providing the existing

record. Fee assessments shall be in

accordance with subpart F of this part.

(2) About electronic data, the issue of

whether records are actually created or

merely extracted from an existing

database is not always readily apparent.

Consequently, when responding to

FOIA requests for electronic data where

creation of a record, programming, or

particular format are questionable,

Components should apply a standard of

reasonableness. In other words, if the

capability exists to respond to the

request, and the effort 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. As used in

this sense, a significant expenditure of

resources in both time and manpower,

that would cause a significant

interference with the operation of the

Components’ automated information

system would not be a business as usual

approach.

(h) Description of requested record.

(1) Identification of the record desired is

the responsibility of the requester. The

requester must provide a description of

the desired record, that enables the

Government to locate the record with a

reasonable amount of effort. In order to

assist DoD Components in conducting

more timely searches, requesters should

endeavor to provide as much identifying

information as possible. When a DoD

Component receives a request that does

not reasonably describe the requested

record, it shall notify the requester of

the defect in writing. The requester

should be asked to provide the type of

information outlined in paragraph (h)(2)

of this section. DoD Components are not

obligated to act on the request until the

requester responds to the specificity

letter. When practicable, DoD

Components shall offer assistance to the

requester in identifying the records

sought and in reformulating the request

to reduce the burden on the agency in

complying with the Act.

(2) The following guidelines are

provided to deal with generalized

requests and are based on the principle

of reasonable effort (Descriptive

information about a record may be

divided into two broad categories.):

(i) Category I is file-related and

includes information such as type of

record (for example, memorandum),

title, index citation, subject area, date

the record was created, and originator.

(ii) Category II is event-related and

includes the circumstances that resulted

in the record being created or the date

and circumstances surrounding the

event the record covers.

(3) Generally, a record is not

reasonably described unless the

description contains sufficient Category

I information to permit the conduct of

an organized, non random search based

on the DoD Component’s filing

arrangements and existing retrieval

systems, or unless the record contains

sufficient Category II information to

permit inference of the Category I

elements needed to conduct such a

search.

(4) The following guidelines deal with

requests for personal records:

Ordinarily, when personal identifiers

are provided only in connection with a

request for records concerning the

requester, only records in a Privacy Act

system of records that can be retrieved

by personal identifiers need be

searched. However, if a DoD Component

has reason to believe that records on the

requester may exist in a record system

other than a Privacy Act system, the

DoD Component shall search that

system under the provisions of the

FOIA. In either case, DoD Components

may request a reasonable description of

the records desired before searching for

such records under the provisions of the

FOIA and the Privacy Act. If the record

is required to be released under the

FOIA, does not bar its disclosure. See
31166 Federal Register / Vol. 63, No. 109 / Monday, June 8, 1998 / Proposed Rules

paragraph (m) of this section for the

relationship between the FOIA and the

Privacy Act.

(5) The previous guidelines

notwithstanding, the decision of the

DoD Component concerning

reasonableness of description must be

based on knowledge of its files. If the

description enables DoD Component

personnel to locate the record with

reasonable effort, the description is

adequate. The fact that a FOIA request

is broad or burdensome in its magnitude

does not, in and of itself, entitle a DoD

Component to deny the request on the

ground that it does not reasonably

describe the records sought. The key

factor is the ability of the DoD

Component’s staff to reasonably

ascertain and locate which records are

being requested.

(i) Referrals. (1) The DoD FOIA

referral policy is based upon the

concept of the originator of a record

making a release determination on its

information. If a DoD Component

receives a request for records originated

by another DoD Component, it should

contact the DoD Component to

determine if it also received the request,

and if not, obtain concurrence from the

other DoD Component to refer the

request. In either situation, the requester

shall be advised of the action taken,

unless exempt information would be

revealed. While referrals to originators

of information result in obtaining the

best possible decision on release of the

information, the policy does not relieve

DoD Components from the

responsibility of making a release

decision on a record should the

requester object to referral of the request

and the record. Should this situation

occur, DoD Components should

coordinate with the originator of the

information prior to making a release

determination. A request received by a

DoD Component having no records

responsive to a request shall be referred

routinely to another DoD Component, if

the other DoD Component has reason to

believe it has the requested record. Prior

to notifying a requester of a referral to

another DoD Component, the DoD

Component receiving the initial request

shall consult with the other DoD

Component to determine if that DoD

Component’s association with the

material is exempt. If the association is

exempt, the DoD Component receiving

the initial request will protect the

association and any exempt information

without revealing the identity of the

protected DoD Component. The

protected DoD Component shall be

responsible for submitting the

justifications required in any litigation.

Any DoD Component receiving a

request that has been misaddressed

shall refer the request to the proper

address and advise the requester. DoD

Components making referrals of

requests or records shall include with

the referral, a point of contact by name,

a telephone number, and an e-mail

address.

(2) A DoD Component shall refer for

response directly to the requester, a

FOIA request for a record that it holds

to another DoD Component or agency

outside the DoD, if the record originated

in the other DoD Component or outside

agency. Whenever a record or a portion

of a record is referred to another DoD

Component or to a Government Agency

outside of the DoD for a release

determination and direct response, the

requester shall be informed of the

referral, unless it has been determined

that notification would reveal exempt

information. Referred records shall only

be identified to the extent consistent

with security requirements.

(3) A DoD Component may refer a

request for a record that it originated to

another DoD Component or agency

when the other DoD Component or

agency has a valid interest in the record,

or the record was created for the use of

the other DoD Component or agency. In

such situations, provide the record and

a release recommendation on the record

with the referral action. Ensure you

include a point of contact with the

telephone number. An example of such

a situation is a request for audit reports

prepared by the Defense Contract Audit

Agency. These advisory reports are

prepared for the use of contracting

officers and their release to the audited

contractor shall be at the discretion of

the contracting officer. A FOIA request

shall be referred to the appropriate DoD

Component and the requester shall be

notified of the referral, unless exempt

information would be revealed. Another

example is a record originated by a DoD

Component or agency that involves

foreign relations, and could affect a DoD

Component or organization in a host

foreign country. Such a request and any

responsive records may be referred to

the affected DoD Component or

organization for consultation prior to a

final release determination within the

Department of Defense. See also

§ 286.22(e).

(4) Within the Department of Defense,

a DoD Component shall ordinarily refer

a FOIA request and a copy of the record

it holds, but that was originated by

another DoD Component or that

contains substantial information

obtained from another DoD Component,

to that Component for direct response,

after direct coordination and obtaining

concurrence from the Component. The

requester then shall be notified of such

referral. DoD Components shall not, in

any case, release or deny such records

without prior consultation with the

other DoD Component, except as

provided in § 286.22(e).

(5) DoD Components that receive

referred requests shall answer them in

accordance with the time limits

established by the FOIA, this part, and

their multitrack processing queues,

based upon the date of initial receipt of

the request at the referring component

or agency.

(6) Agencies outside the Department

of Defense that are subject to the FOIA.

(i) A DoD Component may refer a

FOIA request for any record that

originated in an agency outside the

Department of Defense or that is based

on information obtained from an outside

agency to the agency for direct response

to the requester after coordination with

the outside agency, if that agency is

subject to FOIA. Otherwise, the DoD

Component must respond to the request.

(ii) A DoD Component shall refer to

the agency that provided the record any

FOIA request for investigative,

intelligence, or any other type of records

that are on loan to the Department of

Defense for a specific purpose, if the

records are restricted from further

release and so marked. However, if for

investigative or intelligence purposes,

the outside agency desires anonymity, a

DoD Component may only respond

directly to the requester after

coordination with the outside agency.

(7) DoD Components that receive

requests for records of the National

Security Council (NSC), the White

House, or the White House Military

Office (WHMO) shall process the

requests. DoD records in which the NSC

or White House has a concurrent

reviewing interest, and NSC, White

House, or WHMO records discovered in

DoD Components’ files shall be

forwarded to the Directorate for

Freedom of Information and Security

Review (DFOISR). The DFOISR shall

coordinate with the NSC, White House,

or WHMO and return the records to the

originating agency after coordination.

(8) To the extent referrals are

consistent with the policies expressed

by this section, referrals between offices

of the same DoD Component are

authorized.

(9) On occasion, the Department of

Defense receives FOIA requests for

General Accounting Office (GAO)

records containing DoD information.

Even though the GAO is outside the

Executive Branch, and not subject to the

FOIA, all FOIA requests for GAO

documents containing DoD information

received either from the public, or on
Federal Register / Vol. 63, No. 109 / Monday, June 8, 1998 / Proposed Rules 31167

2See footnote 1 to § 286.1(a).

referral from the GAO, shall be

processed under the provisions of the

FOIA.

(j) Authentication. Records provided

under this part shall be authenticated

with an appropriate seal, whenever

necessary, to fulfill an official

Government or other legal function.

This service, however, is in addition to

that required under the FOIA and is not

included in the FOIA fee schedule. DoD

Components may charge for the service

at a rate of $5.20 for each

authentication.

(k) Combatant Commands. (1) The

Combatant Commands are placed under

the jurisdiction of the OSD, instead of

the administering Military Department

or the Chairman of the Joint Chiefs of

Staff, only for the purpose of

administering the DoD FOIA Program.

This policy represents an exception to

the policies directed in DoD Directive

5100.32; it authorizes and requires the

Combatant Commands to process FOIA

requests in accordance with DoD

Directive 5400.7 and this part. The

Combatant Commands shall forward

directly to the Director, Freedom of

Information and Security Review all

correspondence associated with the

appeal of an initial denial for records

under the provisions of the FOIA.

Procedures to effect this administrative

requirement are outlined in appendix A

of this part.

(2) Combatant Commands shall

maintain an electronic reading room for

FOIA-processed 5 U.S.C. 552(a)(2)(D)

records in accordance with subpart B of

this part. Records qualifying for this

means of public access also shall be

maintained in hard copy for public

access at Combatant Commands’

respective locations.

(l) Records management. FOIA

records shall be maintained and

disposed of in accordance with the

National Archives and Records

Administration General Records

Schedule, and DoD Component records

schedules.

(m) Relationship between the FOIA

and the Privacy Act (PA). Not all

requesters are knowledgeable of the

appropriate statutory authority to cite

when requesting records. In some

instances, they may cite neither Act, but

will imply one or both Acts. For these

reasons, the following guidelines are

provided to ensure that requesters

receive the greatest amount of access

rights under both Acts:

(1) If the record is required to be

released under the FOIA, the Privacy

Act does not bar its disclosure. Unlike

the FOIA, the Privacy Act applies only

to U.S. citizens and aliens admitted for

permanent residence.

(2) Requesters who seek records about

themselves contained in a Privacy Act

system of records and who cite or imply

only the Privacy Act, will have their

requests processed under the provisions

of both the Privacy Act and the FOIA.

If the Privacy Act system of records is

exempt from the provisions of 5 U.S.C.

552a(d)(1), the requester shall be so

advised with the appropriate Privacy

Act exemption, and then further advised

that the information was therefore

reviewed for release under the FOIA.

(3) Requesters who seek records about

themselves that are not contained in a

Privacy Act system of records and who

cite or imply the Privacy Act will have

their requests processed under the

provisions of the FOIA, since the

Privacy Act does not apply to these

records.

(4) Requesters who seek records about

themselves that are contained in a

Privacy Act system of records and who

cite or imply the FOIA or both Acts will

have their requests processed under the

provisions of both the Privacy Act and

the FOIA. If the Privacy Act system of

records is exempt from the provisions of

5 U.S.C. 552a(d)(1), the requester shall

be so advised with the appropriate

Privacy Act exemption, and then further

advised that the information was

therefore reviewed for release under the

FOIA.

(5) Requesters who seek access to

agency records that are not part of a

Privacy Act system of records, and who

cite or imply the Privacy Act and FOIA,

will have their requests processed under

the FOIA since the Privacy Act does not

apply to these records.

(6) Requesters who seek access to

agency records and who cite or imply

the FOIA will have their requests

processed under the FOIA.

(7) Requesters shall be advised in

final responses which Act was used.

(n) Non-responsive information in

responsive records. DoD Components

shall interpret FOIA requests liberally

when determining which records are

responsive to the requests, and may

release non-responsive information.

However, should DoD Components

desire to withhold non-responsive

information, the following steps shall be

accomplished:

(1) Consult with the requester, and

ask if the requester views the

information as responsive, and if not,

seek the requester’s concurrence to

deletion of non-responsive information

without a FOIA exemption. Reflect this

concurrence in the response letter.

(2) If the responsive record is

unclassified, and the requester does not

agree to deletion of non-responsive

information without a FOIA exemption,

release all non-responsive and

responsive information which is not

exempt. For non-responsive information

that is exempt, notify the requester that

even if the information were determined

responsive, it would likely be exempt

under (state appropriate exemption(s)).

Advise the requester of the right to

request this information under a

separate FOIA request. The separate

request shall be placed in the same

location within the processing queue as

the original request.

(3) If the responsive record is

classified, and the requester does not

agree to deletion of non-responsive

information without a FOIA exemption,

release all unclassified responsive and

non-responsive information which is

not exempt. If the non-responsive

information is exempt, follow the

procedures in paragraph (n)(2) of this

section. The classified, non-responsive

information need not be reviewed for

declassification at this point. Advise the

requester that even if the classified

information were determined

responsive, it would likely be exempt

under 5 U.S.C. 552(b)(1), and other

exemptions if appropriate. Advise the

requester of the right to request this

information under a separate FOIA

request. The separate request shall be

placed in the same location within the

processing queue as the original request.

(o) Honoring form or format requests.

DoD Components shall provide the

record in any form or format requested

by the requester if the record is readily

reproducible in that form or format. DoD

Components shall make reasonable

efforts to maintain their records in forms

or formats that are reproducible. In

responding to requests for records, DoD

Components shall make reasonable

efforts to search for records in electronic

form or format, except when such efforts

would significantly interfere with the

operation of the DoD Components’

automated information system. Such

determinations shall be made on a case

by case basis. See also paragraph (g)(2)

of this section.

Subpart B—FOIA Reading Rooms

§ 286.7 Requirements.

(a) Reading room. Each DoD

Component shall provide an appropriate

facility or facilities where the public

may inspect and copy or have copied

the records described in paragraph (b) of

this section and § 286.8(a). In addition

to the records described in paragraph (b)

of this section and § 286.8(a), DoD

Components may elect to place other

records in their reading room, and also
31168 Federal Register / Vol. 63, No. 109 / Monday, June 8, 1998 / Proposed Rules

make them electronically available to

the public. DoD Components may share

reading room facilities if the public is

not unduly inconvenienced, and also

may establish decentralized reading

rooms. When appropriate, the cost of

copying may be imposed on the person

requesting the material in accordance

with the provisions of subpart F of this

part.

(b) Record availability. The FOIA

requires that records described in 5

U.S.C. 552(a)(2) (A), (B), (C), and (D)

created on or after November 1, 1996,

shall be made available electronically by

November 1, 1997, as well as in hard

copy in the FOIA reading room for

inspection and copying, unless such

records are published and copies are

offered for sale. Personal privacy

information, that if disclosed to a third

party requester, would result in an

invasion of the first party’s personal

privacy, and contractor submitted

information, that if disclosed to a

competing contractor, would result in

competitive harm to the submitting

contractor shall be deleted from all 5

U.S.C. 552(a)(2) records made available

to the general public. In every case,

justification for the deletion must be

fully explained in writing, and the

extent of such deletion shall be

indicated on the record which is made

publicly available, unless such

indication would harm an interest

protected by an exemption under which

the deletion was made. If technically

feasible, the extent of the deletion in

electronic records or any other form of

record shall be indicated at the place in

the record where the deletion was made.

However, a DoD Component may

publish in the Federal Register a

description of the basis upon which it

will delete identifying details of

particular types of records to avoid

clearly unwarranted invasions of

privacy, or competitive harm to

business submitters. In appropriate

cases, the DoD Component may refer to

this description rather than write a

separate justification for each deletion.

5 U.S.C. 552(a)(2) (A), (B), (C), and (D)

records are:

(1) (a)(2)(A) records. Final opinions,

including concurring and dissenting

opinions, and orders made in the

adjudication of cases, as defined in 5

U.S.C. 551 (reference (f)), that may be

cited, used, or relied upon as precedents

in future adjudications.

(2) (a)(2)(B) records. Statements of

policy and interpretations that have

been adopted by the agency and are not

published in the Federal Register.

(3) (a)(2)(C) records. Administrative

staff manuals and instructions, or

portions thereof, that establish DoD

policy or interpretations of policy that

affect a member of the public. This

provision does not apply to instructions

for employees on tactics and techniques

to be used in performing their duties, or

to instructions relating only to the

internal management of the DoD

Component. Examples of manuals and

instructions not normally made

available are:

(i) Those issued for audit,

investigation, and inspection purposes,

or those that prescribe operational

tactics, standards of performance, or

criteria for defense, prosecution, or

settlement of cases.

(ii) Operations and maintenance

manuals and technical information

concerning munitions, equipment,

systems, and intelligence activities.

(4) (a)(2)(D) records. Those 5 U.S.C.

552(a)(3) records, which because of the

nature of the subject matter, have

become or are likely to become the

subject of subsequent requests for

substantially the same records. These

records are referred to as FOIAprocessed (a)(2) records.

(i) DoD Components shall decide on

a case by case basis whether records fall

into this category, based on the

following factors:

(A) Previous experience of the DoD

Component with similar records.

(B) Particular circumstances of the

records involved, including their nature

and the type of information contained in

them.

(C) The identity and number of

requesters and whether there is

widespread press, historic, or

commercial interest in the records.

(ii) This provision is intended for

situations where public access in a

timely manner is important, and it is not

intended to apply where there may be

a limited number of requests over a

short period of time from a few

requesters. DoD Components may

remove the records from this access

medium when the appropriate officials

determine that access is no longer

necessary.

(iii) Should a requester submit a FOIA

request for FOIA-processed (a)(2)

records, and insist that the request be

processed, DoD Components shall

process the FOIA request. However,

DoD Components have no obligation to

process a FOIA request for 5 U.S.C.

552(a)(2)(A), (B), and (C) records

because these records are required to be

made public and not FOIA-processed

under paragraph (a)(3) of the FOIA.

§ 286.8 Indexes.

(a) ‘‘(a) (2)’’ materials. (1) Each DoD

Component shall maintain in each

facility prescribed in § 286.7(a), an

index of materials described in

§ 286.7(b) that are issued, adopted, or

promulgated, after July 4, 1967. No ‘‘(a)

(2)’’ materials issued, promulgated, or

adopted after July 4, 1967, that are not

indexed and either made available or

published may be relied upon, used or

cited as precedent against any

individual unless such individual has

actual and-timely notice of the contents

of such materials. Such materials

issued, promulgated, or adopted before

July 4, 1967, need not be indexed, but

must be made available upon request if

not exempted under this part.

(2) Each DoD Component shall

promptly publish quarterly or more

frequently, and distribute, by sale or

otherwise, copies of each index of ‘‘(a)

(2)’’ materials or supplements thereto

unless it publishes in the Federal

Register an order containing a

determination that publication is

unnecessary and impracticable. A copy

of each index or supplement not

published shall be provided to a

requester at a cost not to exceed the

direct cost of duplication as set forth in

subpart F of this part.

(3) Each index of ‘‘(a) (2)’’ materials or

supplement thereto shall be arranged

topical or by descriptive words rather

than by case name or numbering system

so that members of the public can

readily locate material. Case name and

numbering arrangements, however, may

also be included for DoD Component

convenience.

(4) A general index of FOIA-processed

(a)(2) records referred to in § 286.7(b)(4),

shall be made available to the public,

both in hard copy and electronically by

December 31, 1999.

(b) Other materials. (1) Any available

index of DoD Component material

published in the Federal Register, such

as material required to be published by

Section 552(a)(1) of the FOIA, shall be

made available in DoD Component

FOIA reading rooms, and electronically

to the public.

(2) Although not required to be made

available in response to FOIA requests

or made available in FOIA Reading

Rooms, ‘‘(a)(1)’’ materials shall, when

feasible, be made available to the public

in FOIA reading rooms for inspection

and copying, and by electronic means.

Examples of ‘‘(a)(1)’’ materials are:

descriptions of an agency’s central and

field organization, and to the extent they

affect the public, rules of procedures,

descriptions of forms available,

instruction as to the scope and contents

of papers, reports, or examinations, and

any amendment, revision, or report of

the aforementioned.
Federal Register / Vol. 63, No. 109 / Monday, June 8, 1998 / Proposed Rules 31169

3Copies may be obtained, at cost, from the

National Technical Information Service, 5285 Port

Royal Road, Springfield, VA 22161. 4See footnote 1 to § 286.1(a).

Subpart C—Exemptions

§ 286.11 General provisions.

Records that meet the exemption

criteria of the FOIA may be withheld

from public disclosure and need not be

published in the Federal Register, made

available in a library reading room, or

provided in response to a FOIA request.

§ 286.12 Exemptions.

The following types of records may be

withheld in whole or in part from

public disclosure under the FOIA,

unless otherwise prescribed by law: (A

discretionary release of a record (see

also § 286.4(e)) to one requester shall

prevent the withholding of the same

record under a FOIA exemption if the

record is subsequently requested by

someone else. However, a FOIA

exemption may be invoked to withhold

information that is similar or related

that has been the subject of a

discretionary release. In applying

exemptions, the identity of the requester

and the purpose for which the record is

sought are irrelevant with the exception

that an exemption may not be invoked

where the particular interest to be

protected is the requester’s interest.)

(a) Number 1 (5 U.S.C. 552(b)(1)).

Those properly and currently classified

in the interest of national defense or

foreign policy, as specifically authorized

under the criteria established by

Executive Order and implemented by

regulations, such as DoD 5200.1–R.3

Although material is not classified at the

time of the FOIA request, a

classification review may be undertaken

to determine whether the information

should be classified. The procedures in

DoD 5200.1–R apply. If the information

qualifies as exemption 1 information,

there is no discretion regarding its

release. In addition, this exemption

shall be invoked when the following

situations are apparent:

(1) The fact of the existence or

nonexistence of a record would itself

reveal classified information. In this

situation, Components shall neither

confirm nor deny the existence or

nonexistence of the record being

requested. A ‘‘refusal to confirm or

deny’’ response must be used

consistently, not only when a record

exists, but also when a record does not

exist. Otherwise, the pattern of using a

‘‘no record’’ response when a record

does not exist, and a ‘‘refusal to confirm

or deny’’ when a record does exist will

itself disclose national security

information.

(2) Compilations of items of

information that are individually

unclassified may be classified if the

compiled information reveals additional

association or relationship that meets

the standard for classification under an

existing executive order for

classification and DoD 5200.1–R, and is

not otherwise revealed in the individual

items of information.

(b) Number 2 (5 U.S.C. 552 (b)(2)).

Those related solely to the internal

personnel rules and practices of the

Department of Defense or any of its

Components. This exemption is entirely

discretionary. This exemption has two

profiles, high (b)(2) and low (b)(2).

Paragraph (b)(2) of this section contains

a brief discussion on the low (b)(2)

profile; however, that discussion is for

information purposes only. When only

a minimum Government interest would

be affected (administrative burden),

there is a great potential for

discretionary disclosure of the

information. Consequently, DoD

Components shall not invoke the low

(b)(2) profile.

(1) Records qualifying under high

(b)(2) are those containing or

constituting statutes, rules, regulations,

orders, manuals, directives,

instructions, and security classification

guides, the release of which would

allow circumvention of these records

thereby substantially hindering the

effective performance of a significant

function of the Department of Defense.

Examples include:

(i) Those operating rules, guidelines,

and manuals for DoD investigators,

inspectors, auditors, or examiners that

must remain privileged in order for the

DoD Component to fulfill a legal

requirement.

(ii) Personnel and other

administrative matters, such as

examination questions and answers

used in training courses or in the

determination of the qualifications of

candidates for employment, entrance on

duty, advancement, or promotion.

(iii) Computer software, the release of

which would allow circumvention of a

statute or DoD rules, regulations, orders,

manuals, directives, or instructions. In

this situation, the use of the software

must be closely examined to ensure a

circumvention possibility exists.

(2) Records qualifying under the low

(b)(2) profile are those that are trivial

and housekeeping in nature for which

there is no legitimate public interest or

benefit to be gained by release, and it

would constitute an administrative

burden to process the request in order

to disclose the records. Examples

include rules of personnel’s use of

parking facilities or regulation of lunch

hours, statements of policy as to sick

leave, and administrative data such as

file numbers, mail routing stamps,

initials, data processing notations, brief

references to previous communications,

and other like administrative markings.

DoD Components shall not invoke the

low (b)(2) profile.

(c) Number 3 (5 U.S.C. 552 (b)(3)).

Those concerning matters that a statute

specifically exempts from disclosure by

terms that permit no discretion on the

issue, or in accordance with criteria

established by that statute for

withholding or referring to particular

types of matters to be withheld. The

Directorate for Freedom of Information

and Security Review maintains a list of

(b)(3) statutes used within the

Department of Defense, and provides

updated lists of these statutes to DoD

Components on a periodic basis. A few

examples of such statutes are:

(1) Patent Secrecy, 35 U.S.C. 181–188.

Any records containing information

relating to inventions that are the

subject of patent applications on which

Patent Secrecy Orders have been issued.

(2) Restricted Data and Formerly

Restricted Data, 42 U.S.C. 2162.

(3) Communication Intelligence, 18

U.S.C. 798.

(4) Authority to withhold from public

disclosure certain technical data, 10

U.S.C. 130 and DoD Directive 5230.25.4

(5) Confidentiality of medical quality

assurance records: Qualified Immunity

for Participants, 10 U.S.C. 1102f.

(6) Physical protection of special

nuclear material: Limitation on

Dissemination of Unclassified

Information, 10 U.S.C. 128.

(7) Protection of intelligence sources

and methods, 50 U.S.C. 403–3(c)(5).

(8) Protection of contractor submitted

proposals, 10 U.S.C. 2305(g).

(9) Procurement integrity, 41 U.S.C.

423.

(d) Number 4 (5 U.S.C. 552 (b)(4)).

Those containing trade secrets or

commercial or financial information

that a DoD Component receives from a

person or organization outside the

Government with the understanding

that the information or record will be

retained on a privileged or confidential

basis in accordance with the customary

handling of such records. Records

within the exemption must contain

trade secrets, or commercial or financial

records, the disclosure of which is likely

to cause substantial harm to the

competitive position of the source

providing the information; impair the

Government’s ability to obtain necessary

information in the future; or impair

some other legitimate Government
31170 Federal Register / Vol. 63, No. 109 / Monday, June 8, 1998 / Proposed Rules

interest. Commercial or financial

information submitted on a voluntary

basis, absent any exercised authority

prescribing criteria for submission is

protected without any requirement to

show competitive harm (see paragraph

(d)(8) of this section). If the information

qualifies as exemption 4 information,

there is no discretion in its release.

Examples include:

(1) Commercial or financial

information received in confidence in

connection with loans, bids, contracts,

or proposals set forth in or incorporated

by reference in a contract entered into

between the DoD Component and the

offeror that submitted the proposal, as

well as other information received in

confidence or privileged, such as trade

secrets, inventions, discoveries, or other

proprietary data. See also § 286.23(h)(2).

Additionally, when the provisions of 10

U.S.C. 2305(g) and 41 U.S.C. 423 are

met, certain proprietary and source

selection information may be withheld

under exemption 3.

Statistical data and commercial or

financial information concerning

contract performance, income, profits,

losses, and expenditures, if offered and

received in confidence from a contractor

or potential contractor.

(3) Personal statements given in the

course of inspections, investigations, or

audits, when such statements are

received in confidence from the

individual and retained in confidence

because they reveal trade secrets or

commercial or financial information

normally considered confidential or

privileged.

(4) Financial data provided in

confidence by private employers in

connection with locality wage surveys

that are used to fix and adjust pay

schedules applicable to the prevailing

wage rate of employees within the

Department of Defense.

(5) Scientific and manufacturing

processes or developments concerning

technical or scientific data or other

information submitted with an

application for a research grant, or with

a report while research is in progress.

(6) Technical or scientific data

developed by a contractor or

subcontractor exclusively at private

expense, and technical or scientific data

developed in part with Federal funds

and in part at private expense, wherein

the contractor or subcontractor has

retained legitimate proprietary interests

in such data in accordance with 10

U.S.C. 2320–2321 and DoD Federal

Acquisition Regulation Supplement

(DFARS), Chapter 2 of 48 CFR, part 227,

subpart 227.71–227.72. Technical data

developed exclusively with Federal

funds may be withheld under

Exemption Number 3 if it meets the

criteria of 10 U.S.C. 130 and DoD

Directive 5230.25 (see paragraph (c)(7)

of this section).

(7) Computer software which is

copyrighted under the Copyright Act of

1976 (17 U.S.C. 106), the disclosure of

which would have an adverse impact on

the potential market value of a

copyrighted work.

(8) Proprietary information submitted

strictly on a voluntary basis, absent any

exercised authority prescribing criteria

for submission. Examples of exercised

authorities prescribing criteria for

submission are statutes, Executive

Orders, regulations, invitations for bids,

requests for proposals, and contracts.

Submission of information under these

authorities is not voluntary. (See also

§ 286.23(h)(3))

(e) Number 5 (5 U.S.C. 552 (b)(5)).

Those containing information

considered privileged in litigation,

primarily under the deliberative process

privilege. Except as provided in

paragraphs (e)(2) through (e)(5) of this

section, internal advice,

recommendations, and subjective

evaluations, as contrasted with factual

matters, that are reflected in deliberative

records pertaining to the decisionmaking process of an agency, whether

within or among agencies (as defined in

5 U.S.C. 552(e)), or within or among

DoD Components. In order to meet the

test of this exemption, the record must

be both deliberative in nature, as well as

part of a decision-making process.

Merely being an internal record is

insufficient basis for withholding under

this exemption. Also potentially

exempted are records pertaining to the

attorney-client privilege and the

attorney work-product privilege. This

exemption is entirely discretionary.

(1) Examples of the deliberative

process include:

(i) The non factual portions of staff

papers, to include after-action reports,

lessons learned, and situation reports

containing staff evaluations, advice,

opinions, or suggestions.

(ii) Advice, suggestions, or

evaluations prepared on behalf of the

Department of Defense by individual

consultants or by boards, committees,

councils, groups, panels, conferences,

commissions, task forces, or other

similar groups that are formed for the

purpose of obtaining advice and

recommendations.

(iii) Those non factual portions of

evaluations by DoD Component

personnel of contractors and their

products.

(iv) Information of a speculative,

tentative, or evaluative nature or such

matters as proposed plans to procure,

lease or otherwise acquire and dispose

of materials, real estate, facilities or

functions, when such information

would provide undue or unfair

competitive advantage to private

personal interests or would impede

legitimate government functions.

(v) Trade secret or other confidential

research development, or commercial

information owned by the Government,

where premature release is likely to

affect the Government’s negotiating

position or other commercial interest.

(vi) Records that are exchanged

among agency personnel and within and

among DoD Components or Agencies as

part of the preparation for anticipated

administrative proceeding by an Agency

or litigation before any Federal, State, or

military court, as well as records that

qualify for the attorney-client privilege.

(vii) Those portions of official reports

of inspection, reports of the Inspector

Generals, audits, investigations, or

surveys pertaining to safety, security, or

the internal management,

administration, or operation of one or

more DoD Components, when these

records have traditionally been treated

by the courts as privileged against

disclosure in litigation.

(viii) Planning, programming, and

budgetary information that is involved

in the defense planning and resource

allocation process.

(2) If any such intra- or inter-agency

record or reasonably segregable portion

of such record hypothetically would be

made available routinely through the

discovery process in the course of

litigation with the Agency, then it

should not be withheld under the FOIA.

If, however, the information

hypothetically would not be released at

all, or would only be released in a

particular case during civil discovery

where a party’s particularized showing

of need might override a privilege, then

the record may be withheld. Discovery

is the formal process by which litigants

obtain information from each other for

use in the litigation. Consult with legal

counsel to determine whether

exemption 5 material would be

routinely made available through the

discovery process.

(3) Intra- or inter-agency memoranda

or letters that are factual, or those

reasonably segregable portions that are

factual, are routinely made available

through discovery, and shall be made

available to a requester, unless the

factual material is otherwise exempt

from release, inextricably intertwined

with the exempt information, so

fragmented as to be uninformative, or so

redundant of information already

available to the requester as to provide

no new substantive information.
Federal Register / Vol. 63, No. 109 / Monday, June 8, 1998 / Proposed Rules 31171

5See footnote 1 to § 286.1(a).

6See footnote 1 to § 286.1(a).

(4) A direction or order from a

superior to a subordinate, though

contained in an internal

communication, generally cannot be

withheld from a requester if it

constitutes policy guidance or a

decision, as distinguished from a

discussion of preliminary matters or a

request for information or advice that

would compromise the decision-making

process.

(5) An internal communication

concerning a decision that subsequently

has been made a matter of public record

must be made available to a requester

when the rationale for the decision is

expressly adopted or incorporated by

reference in the record containing the

decision.

(f) Number 6 (5 U.S.C. 552(b)(6)).

Information in personnel and medical

files, as well as similar personal

information in other files, that, if

disclosed to a requester, other than the

person about whom the information is

about, would result in a clearly

unwarranted invasion of personal

privacy. Release of information about an

individual contained in a Privacy Act

System of records that would constitute

a clearly unwarranted invasion of

privacy is prohibited, and could subject

the releaser to civil and criminal

penalties. If the information qualifies as

exemption 6 information, there is no

discretion in its release.

(1) Examples of other files containing

personal information similar to that

contained in personnel and medical

files include:

(i) Those compiled to evaluate or

adjudicate the suitability of candidates

for civilian employment or membership

in the Armed Forces, and the eligibility

of individuals (civilian, military, or

contractor employees) for security

clearances, or for access to particularly

sensitive classified information.

(ii) Files containing reports, records,

and other material pertaining to

personnel matters in which

administrative action, including

disciplinary action, may be taken.

(2) Home addresses are normally not

releasable without the consent of the

individuals concerned. This includes

lists of home addressees and military

quarters’ addressees without the

occupant’s name. In addition, the names

and duty addresses (postal and/or email) of DoD military and civilian

personnel who are assigned to units that

are sensitive, routinely deployable, or

stationed in foreign territories can

constitute a clearly unwarranted

invasion of personal privacy.

(i) Privacy interest. A privacy interest

may exist in personal information even

though the information has been

disclosed at some place and time. If

personal information is not freely

available from sources other than the

Federal Government, a privacy interest

exists in its nondisclosure. The fact that

the Federal Government expended

funds to prepare, index and maintain

records on personal information, and

the fact that a requester invokes FOIA to

obtain these records indicates the

information is not freely available.

(ii) Names and duty addresses

published in telephone directories,

organizational charts, rosters and

similar materials for personnel assigned

to units that are sensitive, routinely

deployable, or stationed in foreign

territories are withholdable under this

exemption.

(iii) This exemption shall not be used

in an attempt to protect the privacy of

a deceased person, but it may be used

to protect the privacy of the deceased

person’s family if disclosure would

rekindle grief, anguish, pain,

embarrassment, or even disruption of

peace of mind of surviving family

members. In such situations, balance the

surviving family members’ privacy

against the public’s right to know to

determine if disclosure is in the public

interest. Additionally, the deceased’s

social security number should be

withheld since it is used by the next of

kin to receive benefits. Disclosures may

be made to the immediate next of kin as

defined in DoD Directive 5154.24.5

(iv) When the subject of an

investigative report is the requester of

the record and the report is contained in

a Privacy Act system of records, it may

only be denied to the requester if

withholding is both authorized by DoD

5400.11–R,6 and by exemption 6 of the

FOIA.

(v) A clearly unwarranted invasion of

the privacy of third parties identified in

a personnel, medical or similar record

constitutes a basis for deleting those

reasonably segregable portions of that

record. When withholding third party

personal information from the subject of

the record and the record is contained

in a Privacy Act system of records,

consult with legal counsel.

(vi) This exemption also applies when

the fact of the existence or nonexistence

of a responsive record would itself

reveal personally private information,

and the public interest in disclosure is

not sufficient to outweigh the privacy

interest. In this situation, DoD

Components shall neither confirm nor

deny the existence or nonexistence of

the record being requested. This is a

Glomar response, and exemption 6 must

be cited in the response. Additionally,

in order to insure personal privacy is

not violated during referrals, DoD

Components shall coordinate with other

DoD Components or Federal Agencies

before referring a record that is exempt

under the Glomar concept.

(A) A ‘‘refusal to confirm or deny’’

response must be used consistently, not

only when a record exists, but also

when a record does not exist.

Otherwise, the pattern of using a ‘‘no

records’’ response when a record does

not exist and a ‘‘refusal to confirm or

deny’’ when a record does exist will

itself disclose personally private

information.

(B) Refusal to confirm or deny should

not be used when:

(1) The person whose personal

privacy is in jeopardy has provided the

requester a waiver of his or her privacy

rights;

(2) The person initiated or directly

participated in an investigation that lead

to the creation of an agency record seeks

access to that record; or

(3) The person whose personal

privacy is in jeopardy is deceased, the

Agency is aware of that fact, and

disclosure would not invade the privacy

of the deceased’s family. See paragraph

(e)(2)(iii) of this section.

(g) Number 7 (5 U.S.C. 552 (b)(7)).

Records or information compiled for

law enforcement purposes; i.e., civil,

criminal, or military law, including the

implementation of Executive Orders or

regulations issued pursuant to law. This

exemption may be invoked to prevent

disclosure of documents not originally

created for, but later gathered for law

enforcement purposes. With the

exception of parts (C) and (F) (see

paragraph (g)(1)(iii) of this section) of

this exemption, this exemption is

discretionary. If information qualifies as

exemption (7)(C) or (7)(F) (see paragraph

(g)(1)(iii) of this section) information,

there is no discretion in its release.

(1) This exemption applies, however,

only to the extent that production of

such law enforcement records or

information could result in the

following:

(i) Could reasonably be expected to

interfere with enforcement proceedings

(5 U.S.C. 552(b)(7)(A)).

(ii) Would deprive a person of the

right to a fair trial or to an impartial

adjudication (5 U.S.C. 552(b)(7)(B)).

(iii) Could reasonably be expected to

constitute an unwarranted invasion of

personal privacy of a living person,

including surviving family members of

an individual identified in such a record

(5 U.S.C. 552(b)(7)(C)).

(A) This exemption also applies when

the fact of the existence or nonexistence
31172 Federal Register / Vol. 63, No. 109 / Monday, June 8, 1998 / Proposed Rules

of a responsive record would itself

reveal personally private information,

and the public interest in disclosure is

not sufficient to outweigh the privacy

interest. In this situation, Components

shall neither confirm nor deny the

existence or nonexistence of the record

being requested. This is a Glomar

response, and exemption (7)(C) must be

cited in the response. Additionally, in

order to insure personal privacy is not

violated during referrals, DoD

Components shall coordinate with other

DoD Components or Federal Agencies

before referring a record that is exempt

under the Glomar concept.

(B) A ‘‘refusal to confirm or deny’’

response must be used consistently, not

only when a record exists, but also

when a record does not exist.

Otherwise, the pattern of using a ‘‘no

records’’ response when a record does

not exist and a ‘‘refusal to confirm or

deny’’ when a record does exist will

itself disclose personally private

information.

(C) Refusal to confirm or deny should

not be used when:

(1) The person whose personal

privacy is in jeopardy has provided the

requester with a waiver of his or her

privacy rights; or

(2) The person whose personal

privacy is in jeopardy is deceased, and

the Agency is aware of that fact.

(D) Could reasonably be expected to

disclose the identity of a confidential

source, including a source within the

Department of Defense; a State, local, or

foreign agency or authority; or any

private institution that furnishes the

information on a confidential basis; and

could disclose information furnished

from a confidential source and obtained

by a criminal law enforcement authority

in a criminal investigation or by an

agency conducting a lawful national

security intelligence investigation (5

U.S.C. 552(b)(7)(D)).

(E) Would disclose techniques and

procedures for law enforcement

investigations or prosecutions, or would

disclose guidelines for law enforcement

investigations or prosecutions if such

disclosure could reasonably be expected

to risk circumvention of the law (5

U.S.C. 552(b)(7)(E)).

(F) Could reasonably be expected to

endanger the life or physical safety of

any individual (5 U.S.C. 552(b)(7)(F)).

(2) Some examples of exemption 7

are:

(i) Statements of witnesses and other

material developed during the course of

the investigation and all materials

prepared in connection with related

Government litigation or adjudicative

proceedings.

(ii) The identity of firms or

individuals being investigated for

alleged irregularities involving

contracting with the Department of

Defense when no indictment has been

obtained nor any civil action filed

against them by the United States.

(iii) Information obtained in

confidence, expressed or implied, in the

course of a criminal investigation by a

criminal law enforcement agency or

office within a DoD Component, or a

lawful national security intelligence

investigation conducted by an

authorized agency or office within a

DoD Component. National security

intelligence investigations include

background security investigations and

those investigations conducted for the

purpose of obtaining affirmative or

counterintelligence information.

(3) The right of individual litigants to

investigative records currently available

by law (such as, the Jencks Act, 18

U.S.C. 3500) is not diminished.

(4) When the subject of an

investigative report is the requester of

the record and the report is contained in

a Privacy Act system of records, it may

only be denied to the requester if

withholding is both authorized by DoD

5400.11–R, and by exemption seven of

the FOIA.

(5) Exclusions. Excluded from

exemption 7 are the following two

situations applicable to the Department

of Defense (Components considering

invoking an exclusion should first

consult with the Department of Justice,

Office of Information and Privacy.):

(i) Whenever a request is made that

involves access to records or

information compiled for law

enforcement purposes, and the

investigation or proceeding involves a

possible violation of criminal law where

there is reason to believe that the subject

of the investigation or proceeding is

unaware of its pendency, and the

disclosure of the existence of the

records could reasonably be expected to

interfere with enforcement proceedings,

Components may, during only such

times as that circumstance continues,

treat the records or information as not

subject to the FOIA. In such situation,

the response to the requester will state

that no records were found.

(ii) Whenever informant records

maintained by a criminal law

enforcement organization within a DoD

Component under the informant’s name

or personal identifier are requested by a

third party using the informant’s name

or personal identifier, the Component

may treat the records as not subject to

the FOIA, unless the informant’s status

as an informant has been officially

confirmed. If it is determined that the

records are not subject to 5 U.S.C.

552(b)(7), the response to the requester

will state that no records were found.

(h) Number 8 (5 U.S.C. 552 (b)(8)).

Those contained in or related to

examination, operation or condition

reports prepared by, on behalf of, or for

the use of any agency responsible for the

regulation or supervision of financial

institutions.

(i) Number 9 (5 U.S.C. 552 (b)(9)).

Those containing geological and

geophysical information and data

(including maps) concerning wells.

Subpart D—For Official Use Only

§ 286.15 General provisions.

(a) General. Information that has not

been given a security classification

pursuant to the criteria of an Executive

Order, but which may be withheld from

the public for one or more of the reasons

cited in FOIA exemptions 2 through 9

(see subpart C of this part) shall be

considered as being for official use only.

No other material shall be considered or

marked ‘‘For Official Use Only’’

(FOUO), and FOUO is not authorized as

an anemic form of classification to

protect national security interests.

Additional information on FOUO and

other controlled, unclassified

information may be found in DoD

5200.1–R.

(b) Prior FOUO application. The prior

application of FOUO markings is not a

conclusive basis for withholding a

record that is requested under the FOIA.

When such a record is requested, the

information in it shall be evaluated to

determine whether, under current

circumstances, FOIA exemptions apply

in withholding the record or portions of

it. If any exemptions apply, the record

may nonetheless be released as a

discretionary matter when it is

determined that no governmental

interest will be jeopardized by its

release.

(c) Historical papers. Records such as

notes, working papers, and drafts

retained as historical evidence of DoD

Component actions enjoy no special

status apart from the exemptions under

the FOIA.

(d) Time to mark records. The

marking of records at the time of their

creation provides notice of FOUO

content and facilitates review when a

record is requested under the FOIA.

Records requested under the FOIA that

do not bear such markings shall not be

assumed to be releasable without

examination for the presence of

information that requires continued

protection and qualifies as exempt from

public release.
Federal Register / Vol. 63, No. 109 / Monday, June 8, 1998 / Proposed Rules 31173

7See footnote 1 to § 286.1(a).

8See footnote 1 to § 286.1(a).

9See footnote 1 to § 286.1(a).

(e) Distribution statement.

Information in a technical document

that requires a distribution statement

pursuant to DoD Directive 5230.24 7

shall bear that statement and may be

marked FOUO, as appropriate.

§ 286.16 Markings.

(a) Location of markings. (1) An

unclassified document containing

FOUO information shall be marked ‘‘For

Official Use Only’’ at the bottom on the

outside of the front cover (if any), on

each page containing FOUO

information, and on the outside of the

back cover (if any).

(2) Within a classified document, an

individual page that contains both

FOUO and classified information shall

be marked at the top and bottom with

the highest security classification of

information appearing on the page.

Individual paragraphs shall be marked

at the appropriate classification level, as

well as unclassified or FOUO, as

appropriate.

(3) Within a classified document, an

individual page that contains FOUO

information but no classified

information shall be marked ‘‘For

Official Use Only’’ at the top and bottom

of the page.

(4) Other records, such as

photographs, films, tapes, or slides,

shall be marked ‘‘For Official Use Only’’

or ‘‘FOUO’’ in a manner that ensures

that a recipient or viewer is aware of the

status of the information therein.

(5) FOUO material transmitted

outside the Department of Defense

requires application of an expanded

marking to explain the significance of

the FOUO marking. This may be

accomplished by typing or stamping the

following statement on the record prior

to transfer:

This document contains information

EXEMPT FROM MANDATORY

DISCLOSURE under the FOIA.

Exemption(s) llllll applies/

apply.

(b) [Reserved]

§ 286.17 Dissemination and transmission.

(a) Release and transmission

procedures. Until FOUO status is

terminated, the release and transmission

instructions that follow apply:

(1) FOUO information may be

disseminated within DoD Components

and between officials of DoD

Components and DoD contractors,

consultants, and grantees to conduct

official business for the Department of

Defense. Recipients shall be made aware

of the status of such information, and

transmission shall be by means that

preclude unauthorized public

disclosure. Transmittal documents shall

call attention to the presence of FOUO

attachments.

(2) DoD holders of FOUO information

are authorized to convey such

information to officials in other

Departments and Agencies of the

Executive and Judicial Branches to

fulfill a government function, except to

the extent prohibited by the Privacy Act.

Records thus transmitted shall be

marked ‘‘For Official Use Only,’’ and the

recipient shall be advised that the

information may qualify for exemption

from public disclosure, pursuant to the

FOIA, and that special handling

instructions do or do not apply.

(3) Release of FOUO information to

Members of Congress is governed by

DoD Directive 5400.4.8 Release to the

GAO is governed by DoD Directive

7650.1.9 Records released to the

Congress or GAO should be reviewed to

determine whether the information

warrants FOUO status. If not, prior

FOUO markings shall be removed or

effaced. If withholding criteria are met,

the records shall be marked FOUO and

the recipient provided an explanation

for such exemption and marking.

Alternatively, the recipient may be

requested, without marking the record,

to protect against its public disclosure

for reasons that are explained.

(b) Transporting FOUO information.

Records containing FOUO information

shall be transported in a manner that

prevents disclosure of the contents.

When not commingled with classified

information, FOUO information may be

sent via first-class mail or parcel post.

Bulky shipments, such as distributions

of FOUO Directives or testing materials,

that otherwise qualify under postal

regulations, may be sent by fourth-class

mail.

(c) Electronically and facsimile

transmitted messages. Each part of

electronically and facsimile transmitted

messages containing FOUO information

shall be marked appropriately.

Unclassified messages containing FOUO

information shall contain the

abbreviation ‘‘FOUO’’ before the

beginning of the text. Such messages

and facsimiles shall be transmitted in

accordance with communications

security procedures whenever

practicable.

§ 286.18 Safeguarding FOUO information.

(a) During duty hours. During normal

working hours, records determined to be

FOUO shall be placed in an out-of-sight

location if the work area is accessible to

non-government personnel.

(b) During nonduty hours. At the close

of business, FOUO records shall be

stored so as to prevent unauthorized

access. Filing such material with other

unclassified records in unlocked files or

desks, etc., is adequate when normal

U.S. Government or Governmentcontractor internal building security is

provided during nonduty hours. When

such internal security control is not

exercised, locked buildings or rooms

normally provide adequate after-hours

protection. If such protection is not

considered adequate, FOUO material

shall be stored in locked receptacles

such as file cabinets, desks, or

bookcases. FOUO records that are

subject to the provisions of the National

Security Act of 1959 shall meet the

safeguards outlined for that group of

records.

§ 286.19 Termination, disposal and

unauthorized disclosure.

(a) Termination. The originator or

other competent authority; e.g., initial

denial and appellate authorities, shall

terminate ’’For Official Use Only’’

markings or status when circumstances

indicate that the information no longer

requires protection from public

disclosure. When FOUO status is

terminated, all known holders shall be

notified, to the extent practical. Upon

notification, holders shall efface or

remove the ’’For Official Use Only’’

markings, but records in file or storage

need not be retrieved solely for that

purpose.

(b) Disposal. (1) Nonrecord copies of

FOUO materials may be destroyed by

tearing each copy into pieces to prevent

reconstructing, and placing them in

regular trash containers. When local

circumstances or experience indicates

that this destruction method is not

sufficiently protective of FOUO

information, local authorities may direct

other methods but must give due

consideration to the additional expense

balanced against the degree of

sensitivity of the type of FOUO

information contained in the records.

(2) Record copies of FOUO documents

shall be disposed of in accordance with

the disposal standards established

under 44 U.S.C. 3301–3314, as

implemented by DoD Component

instructions concerning records

disposal.

(c) Unauthorized disclosure. The

unauthorized disclosure of FOUO

records does not constitute an

unauthorized disclosure of DoD

information classified for security

purposes. Appropriate administrative

action shall be taken, however, to fix
31174 Federal Register / Vol. 63, No. 109 / Monday, June 8, 1998 / Proposed Rules

responsibility for unauthorized

disclosure whenever feasible, and

appropriate disciplinary action shall be

taken against those responsible.

Unauthorized disclosure of FOUO

information that is protected by the

Privacy Act may also result in civil and

criminal sanctions against responsible

persons. The DoD Component that

originated the FOUO information shall

be informed of its unauthorized

disclosure.

Subpart E—Release and Processing

Procedures

§ 286.22 General provisions.

(a) Public information. (1) Since the

policy of the Department of Defense is

to make the maximum amount of

information available to the public

consistent with its other

responsibilities, written requests for a

DoD record made under the provisions

of 5 U.S.C. 552 (a)(3) of the FOIA may

be denied only when:

(i) Disclosure would result in a

foreseeable harm to an interest protected

by a FOIA exemption, and the record is

subject to one or more of the exemptions

of the FOIA.

(ii) The record has not been described

well enough to enable the DoD

Component to locate it with a

reasonable amount of effort by an

employee familiar with the files.

(iii) The requester has failed to

comply with the procedural

requirements, including the written

agreement to pay or payment of any

required fee imposed by the instructions

of the DoD Component concerned.

When personally identifiable

information in a record is requested by

the subject of the record or his attorney,

notarization of the request, or a

statement certifying under the penalty

of perjury that their identity is true and

correct may be required. Additionally,

written consent of the subject of the

record is required for disclosure from a

Privacy Act System of records, even to

the subject’s attorney.

(2) Individuals seeking DoD

information should address their FOIA

requests to one of the addresses listed in

appendix B of this part.

(b) Requests from private parties. The

provisions of the FOIA are reserved for

persons with private interests as

opposed to U.S. Federal Agencies

seeking official information. Requests

from private persons will be made in

writing, and should clearly show all

other addressees within the Federal

Government to which the request was

also sent. This procedure will reduce

processing time requirements, and

ensure better inter-and intra-agency

coordination. However, if the requester

does not show all other addressees to

which the request was also sent, DoD

Components shall still process the

request. DoD Components should

encourage requesters to send requests by

mail, facsimile, or by electronic means.

Disclosure of records to individuals

under the FOIA is considered public

release of information, except as

provided for in § 286.4(f) and § 286.12.

(c) Requests from Government

Officials. Requests from officials of State

or local Governments for DoD

Component records shall be considered

the same as any other requester.

Requests from members of Congress not

seeking records on behalf of a

Congressional Committee,

Subcommittee, either House sitting as a

whole, or made on behalf of their

constituents shall be considered the

same as any other requester (see also

§ 286.4 (f) and paragraph (d) of this

section). Requests from officials of

foreign governments shall be considered

the same as any other requester.

Requests from officials of foreign

governments that do not invoke the

FOIA shall be referred to appropriate

foreign disclosure channels and the

requester so notified.

(d) Privileged release outside of the

FOIA to U.S. government official. (1)

Records exempt from release to the

public under the FOIA may be disclosed

in accordance with DoD Component

regulations to agencies of the Federal

Government, whether legislative,

executive, or administrative, as follows:

(i) In response to a request of a

Committee or Subcommittee of

Congress, or to either House sitting as a

whole in accordance with DoD Directive

5400.4;

(ii) To other Federal Agencies, both

executive and administrative, as

determined by the head of a DoD

Component or designee;

(iii) In response to an order of a

Federal court, DoD Components shall

release information along with a

description of the restrictions on its

release to the public.

(2) DoD Components shall inform

officials receiving records under the

provisions of this paragraph that those

records are exempt from public release

under the FOIA. DoD Components also

shall advise officials of any special

handling instructions. Classified

information is subject to the provisions

of DoD 5200.1–R, and information

contained in Privacy Act systems of

records is subject to DoD 5400.11–R.

(e) Consultation with affected DoD

Component. (1) When a DoD

Component receives a FOIA request for

a record in which an affected DoD

organization (including a Combatant

Command) has a clear and substantial

interest in the subject matter,

consultation with that affected DoD

organization is required. As an example,

where a DoD Component receives a

request for records related to DoD

operations in a foreign country, the

cognizant Combatant Command for the

area involved in the request shall be

consulted before a release is made.

Consultations may be telephonic,

electronic, or in hard copy.

(2) The affected DoD Component shall

review the circumstances of the request

for host-nation relations, and provide,

where appropriate, FOIA processing

assistance to the responding DoD

Component regarding release of

information. Responding DoD

Components shall provide copies of

responsive records to the affected DoD

Component when requested by the

affected DoD Component. The affected

DoD Component shall receive a courtesy

copy of all releases in such

circumstances.

(3) Nothing in the above paragraphs

shall impede the processing of the FOIA

request initially received by a DoD

Component.

§ 286.23 Initial determinations.

(a) Initial denial authority. (1)

Components shall limit the number of

IDAs appointed. In designating its IDAs,

a DoD Component shall 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.

(2) The initial determination whether

to make a record available upon request

may be made by any suitable official

designated by the DoD Component in

published regulations. The presence of

the marking ‘‘For Official Use Only’’

does not relieve the designated official

of the responsibility to review the

requested record for the purpose of

determining whether an exemption

under the FOIA is applicable.

(3) The officials designated by DoD

Components to make initial

determinations should consult with

public affairs officers (PAOs) to become

familiar with subject matter that is

considered to be newsworthy, and

advise PAOs of all requests from news

media representatives. In addition, the

officials should inform PAOs in advance

when they intend to withhold or

partially withhold a record, if it appears

that the withholding action may be

challenged in the media.

(b) Reasons for not releasing a record.

The following are reasons for not
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complying with a request for a record

under 5 U.S.C. 552(a)(3):

(1) No records. A search of files failed

to identify responsive records.

(2) Referrals. The request is

transferred to another DoD Component,

or to another Federal Agency.

(3) Request withdrawn. The request is

withdrawn by the requester.

(4) Fee-related reason. The requester

is unwilling to pay fees associated with

a request; the requester is past due in

the payment of fees from a previous

FOIA request; or the requester disagrees

with the fee estimate.

(5) Records not reasonably described.

A record has not been described with

sufficient particularity to enable the

DoD Component to locate it by

conducting a reasonable search.

(6) Not a proper FOIA request for

some other reason. The requester has

failed unreasonably to comply with

procedural requirements, other than feerelated, imposed by this part or DoD

Component supplementing regulations.

(7) Not an agency record. The

information requested is not a record

within the meaning of the FOIA and this

part.

(8) Duplicate request. The request is a

duplicate request (e.g., a requester asks

for the same information more than

once). This includes identical requests

received via different means (e.g.,

electronic mail, facsimile, mail, courier)

at the same or different times.

(9) Other (specify). Any other reason

a requester does not comply with

published rules other than those

outlined in paragraphs (b)(1) through

(b)(8) of this section.

(10) Partial or total denial. The record

is denied in whole or in part in

accordance with procedures set forth in

the FOIA.

(c) Denial tests. To deny a requested

record that is in the possession and

control of a DoD Component, it must be

determined that disclosure of the record

would result in a foreseeable harm to an

interest protected by a FOIA exemption,

and the record is exempt under one or

more of the exemptions of the FOIA. An

outline of the FOIA’s exemptions is

contained in subpart C of this part.

(d) Reasonably segregable portions.

Although portions of some records may

be denied, the remaining reasonably

segregable portions must be released to

the requester when it reasonably can be

assumed that a skillful and

knowledgeable person could not

reconstruct the excised information.

Unless indicating the extent of the

deletion would harm an interest

protected by an exemption, the amount

of deleted information shall be

indicated on the released portion of

paper records by use of brackets or

darkened areas indicating removal of

information. In no case shall the deleted

areas be left ‘‘white’’ without the use of

brackets to show the bounds of deleted

information. In the case of electronic

deletion, or deletion in audiovisual or

microfiche records, if technically

feasible, the amount of redacted

information shall be indicated at the

place in the record such deletion was

made, unless including the indication

would harm an interest protected by the

exemption under which the deletion is

made. This may be done by use of

brackets, shaded areas, or some other

identifiable technique that will clearly

show the limits of the deleted

information. When a record is denied in

whole, the response advising the

requester of that determination will

specifically state that it is not reasonable

to segregate portions of the record for

release.

(e) Response to requester. (1)

Whenever possible, initial

determinations to release or deny a

record normally shall be made and the

decision reported to the requester

within 20 working days after receipt of

the request by the official designated to

respond. When a DoD Component has a

significant number of pending requests

which prevent a response determination

within the 20 working day period, the

requester shall be so notified in an

interim response, and advised whether

their request qualifies for the fast track

or slow track within the DoD

Components’ multitrack processing

system. Requesters who do not meet the

criteria for fast track processing shall be

given the opportunity to limit the scope

of their request in order to qualify for

fast track processing. See also

§ 286.4(d)(2), for greater detail on

multitrack processing and compelling

need meriting expedited processing.

(2) When a decision is made to release

a record, a copy should be made

available promptly to the requester once

he has complied with preliminary

procedural requirements.

(3) When a request for a record is

denied in whole or in part, the official

designated to respond shall inform the

requester in writing of the name and

title or position of the official who made

the determination, and shall explain to

the requester the basis for the

determination in sufficient detail to

permit the requester to make a decision

concerning appeal. The requester

specifically shall be informed of the

exemptions on which the denial is

based, inclusive of a brief statement

describing what the exemption(s) cover.

When the initial denial is based in

whole or in part on a security

classification, the explanation should

include a summary of the applicable

Executive Order criteria for

classification, as well as an explanation,

to the extent reasonably feasible, of how

those criteria apply to the particular

record in question. The requester shall

also be advised of the opportunity and

procedures for appealing an unfavorable

determination to a higher final authority

within the DoD Component.

(4) The final response to the requester

should contain information concerning

the fee status of the request, consistent

with the provisions of subpart F of this

part. When a requester is assessed fees

for processing a request, the requester’s

fee category shall be specified in the

response letter. Components also shall

provide the requester with a complete

cost breakdown (e.g., 15 pages of office

reproduction at $0.15 per page; 5

minutes of computer search time at

$43.50 per minute, 2 hours of

professional level search at $25 per

hour, etc.) in the response letter.

(5) The explanation of the substantive

basis for a denial shall include specific

citation of the statutory exemption

applied under provisions of this part;

e.g., 5 U.S.C. 552(b)(1). Merely referring

to a classification; to a ‘‘For Official Use

Only’’ marking on the requested record;

or to this part or a DoD Component’s

part does not constitute a proper

citation or explanation of the basis for

invoking an exemption.

(6) When the time for response

becomes an issue, the official

responsible for replying shall

acknowledge to the requester the date of

the receipt of the request.

(7) When denying a request for

records, in whole or in part, a DoD

Component shall make a reasonable

effort to estimate the volume of the

records denied and provide this

estimate to the requester, unless

providing such an estimate would harm

an interest protected by an exemption of

the FOIA. This estimate should be in

number of pages or in some other

reasonable form of estimation, unless

the volume is otherwise indicated

through deletions on records disclosed

in part.

(8) When denying a request for

records in accordance with a statute

qualifying as a FOIA exemption 3

statute, DoD Components shall, in

addition to stating the particular statute

relied upon to deny the information,

also state whether a court has upheld

the decision to withhold the

information under the particular statute,

and a concise description of the scope

of the information being withheld.

(f) Extension of time. (1) In unusual

circumstances, when additional time is
31176 Federal Register / Vol. 63, No. 109 / Monday, June 8, 1998 / Proposed Rules

needed to respond to the initial request,

the DoD Component shall acknowledge

the request in writing within the 20 day

period, describe the circumstances

requiring the delay, and indicate the

anticipated date for a substantive

response that may not exceed 10

additional working days, except as

provided in paragraphs (f)(2) through

(f)(6) of this section.

(2) With respect to a request for which

a written notice has extended the time

limits by 10 additional working days,

and the Component determines that it

cannot make a response determination

within that additional 10 working day

period, the requester shall be notified

and provided an opportunity to limit

the scope of the request so that it may

be processed within the extended time

limit, or an opportunity to arrange an

alternative time frame for processing the

request or a modified request. Refusal

by the requester to reasonably modify

the request or arrange for an alternative

time frame shall be considered a factor

in determining whether exceptional

circumstances exist with respect to DoD

Components’ request backlogs.

Exceptional circumstances do not

include a delay that results from

predictable component backlogs, unless

the DoD Component demonstrates

reasonable progress in reducing its

backlog.

(3) Unusual circumstances that may

justify delay are:

(i) The need to search for and collect

the requested records from other

facilities that are separate from the

office determined responsible for a

release or denial decision on the

requested information.

(ii) The need to search for, collect,

and appropriately examine a

voluminous amount of separate and

distinct records which are requested in

a single request.

(iii) The need for consultation, which

shall be conducted with all practicable

speed, with other agencies having a

substantial interest in the determination

of the request, or among two or more

DoD Components having a substantial

subject-matter interest in the request.

(4) DoD Components may aggregate

certain requests by the same requester,

or by a group of requesters acting in

concert, if the DoD Component

reasonably believes that such requests

actually constitute a single request,

which would otherwise satisfy the

unusual circumstances set forth in

paragraph (f)(3) of this section, and the

requests involve clearly related matters.

Multiple requests involving unrelated

matters shall not be aggregated. If the

requests are aggregated under these

conditions, the requester or requesters

shall be so notified.

(5) In cases where the statutory time

limits cannot be met and no informal

extension of time has been agreed to, the

inability to process any part of the

request within the specified time should

be explained to the requester with a

request that he agree to await a

substantive response by an anticipated

date. It should be made clear that any

such agreement does not prejudice the

right of the requester to appeal the

initial decision after it is made. DoD

Components are reminded that the

requester still retains the right to treat

this delay as a defacto denial with full

administrative remedies.

(6) As an alternative to the taking of

formal extensions of time as described

in § 286.23(f), the negotiation by the

cognizant FOIA coordinating office of

informal extensions in time with

requesters is encouraged where

appropriate.

(g) Misdirected requests. Misdirected

requests shall be forwarded promptly to

the DoD Component or other Federal

Agency with the responsibility for the

records requested. The period allowed

for responding to the request

misdirected by the requester shall not

begin until the request is received by the

DoD Component that manages the

records requested.

(h) Records of non-U.S. government

source. (1) When a request is received

for a record that falls under exemption

4 (see § 286.12 (d)), that was obtained

from a non-U.S. Government source, or

for a record containing information

clearly identified as having been

provided by a non-U.S. Government

source, the source of the record or

information (also known as ‘‘the

submitter’’ for matters pertaining to

proprietary data under 5 U.S.C. 552)

Exemption (b)(4)) (§ 286.12(d), this part

and E. O. 12600 (3 CFR, 1987 Comp.,

p.235)) shall be notified promptly of

that request and afforded reasonable

time (e.g., 30 calendar days) to present

any objections concerning the release,

unless it is clear that there can be no

valid basis for objection. This practice is

required for those FOIA requests for

data not deemed clearly exempt from

disclosure under exemption (b)(4) of 5

U.S.C. 552. If, for example, the record or

information was provided with actual or

presumptive knowledge of the non-U.S.

Government source and established that

it would be made available to the public

upon request, there is no obligation to

notify the source. Any objections shall

be evaluated. The final decision to

disclose information claimed to be

exempt under exemption (b)(4) shall be

made by an official equivalent in rank

to the official who would make the

decision to withhold that information

under the FOIA. When a substantial

issue has been raised, the DoD

Component may seek additional

information from the source of the

information and afford the source and

requester reasonable opportunities to

present their arguments on the legal and

substantive issues involved prior to

making an agency determination. When

the source advises it will seek a

restraining order or take court action to

prevent release of the record or

information, the requester shall be

notified, and action on the request

normally shall not be taken until after

the outcome of that court action is

known. When the requester brings court

action to compel disclosure, the

submitter shall be promptly notified of

this action.

(2) If the submitted information is a

proposal in response to a solicitation for

a competitive proposal, and the

proposal is in the possession and

control of DoD, and meets the

requirements of 10 U.S.C. 2305(g), the

proposal shall not be disclosed, and no

submitter notification and subsequent

analysis is required. The proposal shall

be withheld from public disclosure

pursuant to 10 U.S.C. 2305(g) and

exemption (b)(3) of 5 U.S.C. 552. This

statute does not apply to bids,

unsolicited proposals, or any proposal

that is set forth or incorporated by

reference in a contract between a DoD

Component and the offeror that

submitted the proposal. In such

situations, normal submitter notice shall

be conducted in accordance with

paragraph (h)(1) of this section, except

for sealed bids that are opened and read

to the public. The term proposal means

information contained in or originating

from any proposal, including a

technical, management, or cost proposal

submitted by an offeror in response to

solicitation for a competitive proposal,

but does not include an offeror’s name

or total price or unit prices when set

forth in a record other than the proposal

itself. Submitter notice, and analysis as

appropriate, are required for exemption

(b)(4) matters that are not specifically

incorporated in 10 U.S.C. 2305(g).

(3) If the record or information was

submitted on a strictly voluntary basis,

absent any exercised authority that

prescribes criteria for submission, and

after consultation with the submitter, it

is absolutely clear that the record or

information would customarily not be

released to the public, the submitter

need not be notified. Examples of

exercised authorities prescribing criteria

for submission are statutes, Executive

Orders, regulations, invitations for bids,
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requests for proposals, and contracts.

Records or information submitted under

these authorities are not voluntary in

nature. When it is not clear whether the

information was submitted on a

voluntary basis, absent any exercised

authority, and whether it would

customarily be released to the public by

the submitter, notify the submitter and

ask that it describe its treatment of the

information, and render an objective

evaluation. If the decision is made to

release the information over the

objection of the submitter, notify the

submitter and afford the necessary time

to allow the submitter to seek a

restraining order, or take court action to

prevent release of the record or

information.

(4) The coordination provisions of

this paragraph also apply to any nonU.S. Government record in the

possession and control of the DoD from

multi-national organizations, such as

the North Atlantic Treaty Organization

(NATO), United Nations Commands, the

North American Aerospace Defense

Command (NORAD), the Inter-American

Defense Board, or foreign governments.

Coordination with foreign governments

under the provisions of this paragraph

may be made through Department of

State, or the specific foreign embassy.

(i) File of initial denials. Copies of all

initial denials shall be maintained by

each DoD Component in a form suitable

for rapid retrieval, periodic statistical

compilation, and management

evaluation. Records denied at the initial

stage shall be maintained for a period of

six years to meet the statute of

limitations requirement.

(j) Special mail services. Components

are authorized to use registered mail,

certified mail, certificates of mailing and

return receipts. However, their use

should be limited to instances where it

appears advisable to establish proof of

dispatch or receipt of FOIA

correspondence. The requester shall be

notified that they are responsible for the

full costs of special services.

(k) Receipt accounts. The Treasurer of

the United States has established two

accounts for FOIA receipts, and all

money orders or checks remitting FOIA

fees should be made payable to the U.S.

Treasurer. These accounts, which are

described in paragraphs (k)(1) and (k)(2)

of this section, shall be used for

depositing all FOIA receipts, except

receipts for industrially funded and non

appropriated funded activities.

Components are reminded that the

below account numbers must be

preceded by the appropriate disbursing

office two digit prefix. Industrially

funded and non appropriated funded

activity FOIA receipts shall be

deposited to the applicable fund.

(1) Receipt account 3210 sale of

publications and reproductions,

Freedom of Information Act. This

account shall be used when depositing

funds received from providing existing

publications and forms that meet the

Receipt Account Series description

found in Federal Account Symbols and

Titles.

(2) Receipt account 3210 fees and

other charges for services, Freedom of

Information Act. This account is used to

deposit search fees, fees for duplicating

and reviewing (in the case of

commercial requesters) records to

satisfy requests that could not be filled

with existing publications or forms.

§ 286.24 Appeals.

(a) General. If the official designated

by the DoD Component to make initial

determinations on requests for records

declines to provide a record because the

official considers it exempt under one or

more of the exemptions of the FOIA,

that decision may be appealed by the

requester, in writing, to a designated

appellate authority. The appeal should

be accompanied by a copy of the letter

denying the initial request. Such

appeals should contain the basis for

disagreement with the initial refusal.

Appeal procedures also apply to the

disapproval of a fee category claim by a

requester, disapproval of a request for

waiver or reduction of fees, disputes

regarding fee estimates, review on an

expedited basis a determination not to

grant expedited access to agency

records, for no record determinations

when the requester considers such

responses adverse in nature, not

providing a response determination to a

FOIA request within the statutory time

limits, or any determination found to be

adverse in nature by the requester.

Appeals of Office of the Secretary of

Defense and Chairman of the Joint

Chiefs of Staff determinations may be

sent to the address in appendix B of this

part. If a request is merely

misaddressed, and the receiving DoD

Component simply advises the requester

of such and refers the request to the

appropriate DoD Component, this shall

not be considered a no record

determination.

(b) Time of receipt. A FOIA appeal

has been received by a DoD Component

when it reaches the office of an

appellate authority having jurisdiction.

Misdirected appeals should be referred

expeditiously to the proper appellate

authority.

(c) Time limits. (1) The requester shall

be advised to file an appeal so that it is

postmarked no later than 60 calendar

days after the date of the initial denial

letter. If no appeal is received, or if the

appeal is postmarked after the

conclusion of this 60-day period, the

case may be considered closed. In cases

where the requester is provided several

incremental determinations for a single

request, the time for the appeal shall not

begin until the date of the final

response. Records that are denied shall

be retained for a period of six years to

meet the statute of limitations

requirement.

(2) Final determinations on appeals

normally shall be made within 20

working days after receipt. When a DoD

Component has a significant number of

appeals preventing a response

determination within 20 working days,

the appeals shall be processed in a

multitrack processing system, based at a

minimum, on the three processing

tracks established for initial requests.

See § 286.4(d). All of the provisions of

§ 286.4(d) apply also to appeals of initial

determinations, to include establishing

additional processing queues as needed.

(d) Delay in responding to an appeal.

(1) If additional time is needed due to

the unusual circumstances described in

§ 286.23(f), the final decision may be

delayed for the number of working days

(not to exceed 10), that were not used

as additional time for responding to the

initial request.

(2) If a determination cannot be made

and the requester notified within 20

working days, the appellate authority

shall acknowledge to the requester, in

writing, the date of receipt of the appeal,

the circumstances surrounding the

delay, and the anticipated date for

substantive response. Requesters shall

be advised that, if the delay exceeds the

statutory extension provision or is for

reasons other than the unusual

circumstances identified in § 286.23(f),

they may consider their administrative

remedies exhausted. They may,

however, without prejudicing their right

of judicial remedy, await a substantive

response. The DoD Component shall

continue to process the case

expeditiously.

(e) Response to the requester. (1)

When an appellate authority makes a

final determination to release all or a

portion of records withheld by an IDA,

a written response and a copy of the

records so released should be forwarded

promptly to the requester after

compliance with any preliminary

procedural requirements, such as

payment of fees.

(2) Final refusal of an appeal must be

made in writing by the appellate

authority or by a designated

representative. The response, at a

minimum, shall include the following:
31178 Federal Register / Vol. 63, No. 109 / Monday, June 8, 1998 / Proposed Rules

10See footnote 3 to § 286.12(a).

(i) The basis for the refusal shall be

explained to the requester in writing,

both with regard to the applicable

statutory exemption or exemptions

invoked under provisions of the FOIA,

and with respect to other appeal matters

as set forth in § 286.24(a).

(ii) When the final refusal is based in

whole or in part on a security

classification, the explanation shall

include a determination that the record

meets the cited criteria and rationale of

the governing Executive Order, and that

this determination is based on a

declassification review, with the

explanation of how that review

confirmed the continuing validity of the

security classification.

(iii) The final denial shall include the

name and title or position of the official

responsible for the denial.

(iv) In the case of appeals for total

denial of records, the response shall

advise the requester that the information

being denied does not contain

meaningful portions that are reasonably

segregable.

(v) When the denial is based upon an

exemption 3 statute (see subpart C of

this part), the response, in addition to

citing the statute relied upon to deny

the information, shall state whether a

court has upheld the decision to

withhold the information under the

statute, and shall contain a concise

description of the scope of the

information withheld.

(vi) The response shall advise the

requester of the right to judicial review.

(f) Consultation. (1) Final refusal

involving issues not previously resolved

or that the DoD Component knows to be

inconsistent with rulings of other DoD

Components ordinarily should not be

made before consultation with the DoD

Office of the General Counsel.

(2) Tentative decisions to deny

records that raise new or significant

legal issues of potential significance to

other Agencies of the Government shall

be provided to the DoD Office of the

General Counsel.

§ 286.25 Judicial actions.

(a) General. (1) This section states

current legal and procedural rules for

the convenience of the reader. The

statements of rules do not create rights

or remedies not otherwise available, nor

do they bind the Department of Defense

to particular judicial interpretations or

procedures.

(2) A requester may seek an order

from a U.S. District Court to compel

release of a record after administrative

remedies have been exhausted; i.e.,

when refused a record by the head of a

Component or an appellate designee or

when the DoD Component has failed to

respond within the time limits

prescribed by the FOIA and in this part.

(b) Jurisdiction. The requester may

bring suit in the U.S. District Court in

the district in which the requester

resides or is the requesters place of

business, in the district in which the

record is located, or in the District of

Columbia.

(c) Burden of proof. The burden of

proof is on the DoD Component to

justify its refusal to provide a record.

The court shall evaluate the case de

novo (anew) and may elect to examine

any requested record in camera (in

private) to determine whether the denial

was justified.

(d) Actions by the court. (1) When a

DoD Component has failed to make a

determination within the statutory time

limits but can demonstrate due

diligence in exceptional circumstances,

to include negotiating with the requester

to modify the scope of their request, the

court may retain jurisdiction and allow

the Component additional time to

complete its review of the records.

(2) If the court determines that the

requester’s complaint is substantially

correct, it may require the United States

to pay reasonable attorney fees and

other litigation costs.

(3) When the court orders the release

of denied records, it may also issue a

written finding that the circumstances

surrounding the withholding raise

questions whether DoD Component

personnel acted arbitrarily and

capriciously. In these cases, the special

counsel of the Merit System Protection

Board shall conduct an investigation to

determine whether or not disciplinary

action is warranted. The DoD

Component is obligated to take the

action recommended by the special

counsel.

(4) The court may punish the

responsible official for contempt when a

DoD Component fails to comply with

the court order to produce records that

it determines have been withheld

improperly.

(e) Non-United States government

source information. A requester may

bring suit in a U.S. District Court to

compel the release of records obtained

from a non-government source or

records based on information obtained

from a non-government source. Such

source shall be notified promptly of the

court action. When the source advises

that it is seeking court action to prevent

release, the DoD Component shall defer

answering or otherwise pleading to the

complainant as long as permitted by the

Court or until a decision is rendered in

the court action of the source,

whichever is sooner.

(f) FOIA litigation. Personnel

responsible for processing FOIA

requests at the DoD Component level

shall be aware of litigation under the

FOIA. Such information will provide

management insights into the use of the

nine exemptions by Component

personnel. Whenever a complaint under

the FOIA is filed in a U.S. District Court,

the DoD Component named in the

complaint shall forward a copy of the

complaint by any means to the Director,

Freedom of Information and Security

Review with an information copy to the

DoD Office of the General Counsel,

ATTN: Office of Legal Counsel.

Subpart F—Fee Schedule

§ 286.28 General provisions.

(a) Authorities. The Freedom of

Information Act , as amended; the

Paperwork Reduction Act (44 U.S.C.

Chapter 35), as amended; the Privacy

Act of 1974, as amended; the Budget

and Accounting Act of 1921 and the

Budget and Accounting Procedures Act,

as amended (see 31 U.S.C.); and 10

U.S.C. 2328.

(b) Application. (1) The fees described

in this subpart apply to FOIA requests,

and conform to the Office of

Management and Budget Uniform

Freedom of Information Act Fee

Schedule and Guidelines. They reflect

direct costs for search, review (in the

case of commercial requesters); and

duplication of documents, collection of

which is permitted by the FOIA. They

are neither intended to imply that fees

must be charged in connection with

providing information to the public in

the routine course of business, nor are

they meant as a substitute for any other

schedule of fees, such as DoD 7000.14–

R,10 which does not supersede the

collection of fees under the FOIA.

Nothing in this subchapter shall

supersede fees chargeable under a

statute specifically providing for setting

the level of fees for particular types of

records. A ‘‘statute specifically

providing for setting the level of fees for

particular types of records’’ (5 U.S.C.

552 (a)(4)(a)(vi)) means any statute that

enables a Government Agency such as

the Government Printing Office (GPO)

or the National Technical Information

Service (NTIS), to set and collect fees.

Components should ensure that when

documents that would be responsive to

a request are maintained for distribution

by agencies operating statutory-based

fee schedule programs such as the GPO

or NTIS, they inform requesters of the
Federal Register / Vol. 63, No. 109 / Monday, June 8, 1998 / Proposed Rules 31179

steps necessary to obtain records from

those sources.

(2) The term direct costs means those

expenditures a Component actually

makes in searching for, reviewing (in

the case of commercial requesters), and

duplicating documents to respond to an

FOIA request. Direct costs include, for

example, the salary of the employee

performing the work (the basic rate of

pay for the employee plus 16 percent of

that rate to cover benefits), and the costs

of operating duplicating machinery.

These factors have been included in the

fee rates prescribed at § 286.29. Not

included in direct costs are overhead

expenses such as costs of space, heating

or lighting the facility in which the

records are stored.

(3) The term search includes all time

spent looking, both manually and

electronically, for material that is

responsive to a request. Search also

includes a page-by-page or line-by-line

identification (if necessary) of material

in the record to determine if it, or

portions thereof are responsive to the

request. Components should ensure that

searches are done in the most efficient

and least expensive manner so as to

minimize costs for both the Component

and the requester. For example,

Components should not engage in lineby-line searches when duplicating an

entire document known to contain

responsive information would prove to

be the less expensive and quicker

method of complying with the request.

Time spent reviewing documents in

order to determine whether to apply one

or more of the statutory exemptions is

not search time, but review time. See

paragraph (b)(5) of this section for the

definition of review, and paragraph

(c)(5) of this section and § 286.29(b) for

information pertaining to computer

searches.

(i) When requested, and when there is

reason to believe that some records will

be located, Components shall conduct

partial searches. A partial search is

defined as any search conducted until

the requester’s hourly and/or fee

threshold is met, even if responsive

documents are not located. In the case

of news media, educational and

noncommercial scientific requesters, an

hourly threshold must be specified by

the requester before the Component

begins searching. However, if, by a

Component’s role or mission, the

conduct of a partial search would harm

an interest protected by a FOIA

exemption, the Component shall not

conduct a partial search.

(ii) [Reserved]

(4) The term duplication refers to the

process of making a copy of a document

in response to an FOIA request. Such

copies can take the form of paper copy,

microfiche, audiovisual, or machine

readable documentation (e.g., magnetic

tape or disc), among others. Every effort

will be made to ensure that the copy

provided is in a form that is reasonably

useable, the requester shall be notified

that the copy provided is the best

available and that the Agency’s master

copy shall be made available for review

upon appointment. For duplication of

computer tapes and audiovisual, the

actual cost, including the operator’s

time, shall be charged. In practice, if a

Component estimates that assessable

duplication charges are likely to exceed

$25.00, it shall notify the requester of

the estimate, unless the requester has

indicated in advance his or her

willingness to pay fees as high as those

anticipated. Such a notice shall offer a

requester the opportunity to confer with

Component personnel with the object of

reformulating the request to meet his or

her needs at a lower cost.

(5) The term review refers to the

process of examining documents located

in response to an FOIA request to

determine whether one or more of the

statutory exemptions permit

withholding. It also includes processing

the documents for disclosure, such as

excising them for release. Review does

not include the time spent resolving

general legal or policy issues regarding

the application of exemptions. It should

be noted that charges for commercial

requesters may be assessed only for the

initial review. Components may not

charge for reviews required at the

administrative appeal level of an

exemption already applied. However,

records or portions of records withheld

in full under an exemption that is

subsequently determined not to apply

may be reviewed again to determine the

applicability of other exemptions not

previously considered. The costs for

such a subsequent review would be

properly assessable.

(c) Fee restrictions. (1) No fees may be

charged by any DoD Component if the

costs of routine collection and

processing of the fee are likely to equal

or exceed the amount of the fee. With

the exception of requesters seeking

documents for a commercial use,

Components shall provide the first two

hours of search time, and the first one

hundred pages of duplication without

charge. For example, for a request (other

than one from a commercial requester)

that involved two hours and ten

minutes of search time, and resulted in

one hundred and five pages of

documents, a Component would

determine the cost of only ten minutes

of search time, and only five pages of

reproduction. If this processing cost was

equal to, or less than, the cost to the

Component for billing the requester and

processing the fee collected, no charges

would result.

(2) Requesters receiving the first two

hours of search and the first one

hundred pages of duplication without

charge are entitled to such only once per

request. Consequently, if a Component,

after completing its portion of a request,

finds it necessary to refer the request to

a subordinate office, another DoD

Component, or another Federal Agency

to action their portion of the request, the

referring Component shall inform the

recipient of the referral of the expended

amount of search time and duplication

cost to date.

(3) The elements to be considered in

determining the ‘‘cost of collecting a

fee’’ are the administrative costs to the

Component of receiving and recording a

remittance, and processing the fee for

deposit in the Department of Treasury’s

special account. The cost to the

Department of Treasury to handle such

remittance is negligible and shall not be

considered in Components’

determinations.

(4) For the purposes of these

restrictions, the word ‘‘pages’’ refers to

paper copies of a standard size, which

will normally be ‘‘81⁄2×11’’ or ‘‘11×14’’.

Thus, requesters would not be entitled

to 100 microfiche or 100 computer

disks, for example. A microfiche

containing the equivalent of 100 pages

or 100 pages of computer printout

however, might meet the terms of the

restriction.

(5) In the case of computer searches,

the first two free hours will be

determined against the salary scale of

the individual operating the computer

for the purposes of the search. As an

example, when the direct costs of the

computer central processing unit, inputoutput devices, and memory capacity

equal $24.00 (two hours of equivalent

search at the clerical level), amounts of

computer costs in excess of that amount

are chargeable as computer search time.

In the event the direct operating cost of

the hardware configuration cannot be

determined, computer search shall be

based on the salary scale of the operator

executing the computer search. See

§ 286.29 for further details regarding

fees for computer searches.

(d) Fee waivers. (1) Documents shall

be furnished without charge, or at a

charge reduced below fees assessed to

the categories of requesters in paragraph

(e) of this section when the Component

determines that waiver or reduction of

the fees is in the public interest because

furnishing the information is likely to

contribute significantly to public

understanding of the operations or
31180 Federal Register / Vol. 63, No. 109 / Monday, June 8, 1998 / Proposed Rules

activities of the Department of Defense

and is not primarily in the commercial

interest of the requester.

(2) When assessable costs for a FOIA

request total $15.00 or less, fees shall be

waived automatically for all requesters,

regardless of category.

(3) Decisions to waive or reduce fees

that exceed the automatic waiver

threshold shall be made on a case-bycase basis, consistent with the following

factors:

(i) Disclosure of the information ‘‘is in

the public interest because it is likely to

contribute significantly to public

understanding of the operations or

activities of the Government.’’

(A) The subject of the request.

Components should analyze whether

the subject matter of the request

involves issues that will significantly

contribute to the public understanding

of the operations or activities of the

Department of Defense. Requests for

records in the possession of the

Department of Defense which were

originated by non-government

organizations and are sought for their

intrinsic content, rather than

informative value, will likely not

contribute to public understanding of

the operations or activities of the

Department of Defense. An example of

such records might be press clippings,

magazine articles, or records forwarding

a particular opinion or concern from a

member of the public regarding a DoD

activity. Similarly, disclosures of

records of considerable age may or may

not bear directly on the current

activities of the Department of Defense;

however, the age of a particular record

shall not be the sole criteria for denying

relative significance under this factor. It

is possible to envisage an informative

issue concerning the current activities of

the Department of Defense, based upon

historical documentation. Requests of

this nature must be closely reviewed

consistent with the requester’s stated

purpose for desiring the records and the

potential for public understanding of

the operations and activities of the

Department of Defense.

(B) The informative value of the

information to be disclosed. This factor

requires a close analysis of the

substantive contents of a record, or

portion of the record, to determine

whether disclosure is meaningful, and

shall inform the public on the

operations or activities of the

Department of Defense. While the

subject of a request may contain

information that concerns operations or

activities of the Department of Defense,

it may not always hold great potential

for contributing to a meaningful

understanding of these operations or

activities. An example of such would be

a previously released record that has

been heavily redacted, the balance of

which may contain only random words,

fragmented sentences, or paragraph

headings. A determination as to whether

a record in this situation will contribute

to the public understanding of the

operations or activities of the

Department of Defense must be

approached with caution, and carefully

weighed against the arguments offered

by the requester. Another example is

information already known to be in the

public domain. Disclosure of

duplicative, or nearly identical

information already existing in the

public domain may add no meaningful

new information concerning the

operations and activities of the

Department of Defense.

(C) The contribution to an

understanding of the subject by the

general public likely to result from

disclosure. The key element in

determining the applicability of this

factor is whether disclosure will inform,

or have the potential to inform the

public, rather than simply the

individual requester or small segment of

interested persons. The identity of the

requester is essential in this situation in

order to determine whether such

requester has the capability and

intention to disseminate the information

to the public. Mere assertions of plans

to author a book, researching a

particular subject, doing doctoral

dissertation work, or indigence are

insufficient without demonstrating the

capacity to further disclose the

information in a manner that will be

informative to the general public.

Requesters should be asked to describe

their qualifications, the nature of their

research, the purpose of the requested

information, and their intended means

of dissemination to the public.

(D) The significance of the

contribution to public understanding. In

applying this factor, Components must

differentiate the relative significance or

impact of the disclosure against the

current level of public knowledge, or

understanding which exists before the

disclosure. In other words, will

disclosure on a current subject of wide

public interest be unique in contributing

previously unknown facts, thereby

enhancing public knowledge, or will it

basically duplicate what is already

known by the general public? A

decision regarding significance requires

objective judgment, rather than

subjective determination, and must be

applied carefully to determine whether

disclosure will likely lead to a

significant public understanding of the

issue. Components shall not make value

judgments as to whether the information

is important enough to be made public.

(ii) Disclosure of the information ‘‘is

not primarily in the commercial interest

of the requester.’’

(A) The existence and magnitude of a

commercial interest. If the request is

determined to be of a commercial

interest, Components should address

the magnitude of that interest to

determine if the requester’s commercial

interest is primary, as opposed to any

secondary personal or non-commercial

interest. In addition to profit-making

organizations, individual persons or

other organizations may have a

commercial interest in obtaining certain

records. Where it is difficult to

determine whether the requester is of a

commercial nature, Components may

draw inference from the requester’s

identity and circumstances of the

request. In such situations, the

provisions of paragraph (e) of this

section, apply. Components are

reminded that in order to apply the

commercial standards of the FOIA, the

requester’s commercial benefit must

clearly override any personal or nonprofit interest.

(B) The primary interest in disclosure.

Once a requester’s commercial interest

has been determined, Components

should then determine if the disclosure

would be primarily in that interest. This

requires a balancing test between the

commercial interest of the request

against any public benefit to be derived

as a result of that disclosure. Where the

public interest is served above and

beyond that of the requester’s

commercial interest, a waiver or

reduction of fees would be appropriate.

Conversely, even if a significant public

interest exists, and the relative

commercial interest of the requester is

determined to be greater than the public

interest, then a waiver or reduction of

fees would be inappropriate. As

examples, news media organizations

have a commercial interest as business

organizations; however, their inherent

role of disseminating news to the

general public can ordinarily be

presumed to be of a primary interest.

Therefore, any commercial interest

becomes secondary to the primary

interest in serving the public. Similarly,

scholars writing books or engaged in

other forms of academic research, may

recognize a commercial benefit, either

directly, or indirectly (through the

institution they represent); however,

normally such pursuits are primarily

undertaken for educational purposes,

and the application of a fee charge

would be inappropriate. Conversely,

data brokers or others who merely

compile government information for
Federal Register / Vol. 63, No. 109 / Monday, June 8, 1998 / Proposed Rules 31181

marketing can normally be presumed to

have an interest primarily of a

commercial nature.

(4) Components are reminded that the

factors and examples used in this

section are not all inclusive. Each fee

decision must be considered on a caseby-case basis and upon the merits of the

information provided in each request.

When the element of doubt as to

whether to charge or waive the fee

cannot be clearly resolved, Components

should rule in favor of the requester.

(5) In addition, the following

additional circumstances describe

situations where waiver or reduction of

fees are most likely to be warranted:

(i) A record is voluntarily created to

prevent an otherwise burdensome effort

to provide voluminous amounts of

available records, including additional

information not requested.

(ii) A previous denial of records is

reversed in total, or in part, and the

assessable costs are not substantial (e.g.

$15.00–$30.00).

(e) Fee assessment. (1) Fees may not

be used to discourage requesters, and to

this end, FOIA fees are limited to

standard charges for direct document

search, review (in the case of

commercial requesters) and duplication.

(2) In order to be as responsive as

possible to FOIA requests while

minimizing unwarranted costs to the

taxpayer, Components shall adhere to

the following procedures:

(i) Analyze each request to determine

the category of the requester. If the

Component determination regarding the

category of the requester is different

than that claimed by the requester, the

Component shall:

(A) Notify the requester to provide

additional justification to warrant the

category claimed, and that a search for

responsive records will not be initiated

until agreement has been attained

relative to the category of the requester.

Absent further category justification

from the requester, and within a

reasonable period of time (i.e., 30

calendar days), the Component shall

render a final category determination,

and notify the requester of such

determination, to include normal

administrative appeal rights of the

determination.

(B) Advise the requester that,

notwithstanding any appeal, a search for

responsive records will not be initiated

until the requester indicates a

willingness to pay assessable costs

appropriate for the category determined

by the Component.

(ii) Requesters should submit a fee

declaration appropriate for the

following categories:

(A) Commercial. Requesters should

indicate a willingness to pay all search,

review and duplication costs.

(B) Educational or noncommercial

scientific institution or news media.

Requesters should indicate a

willingness to pay duplication charges

in excess of 100 pages if more than 100

pages of records are desired.

(C) All others. Requesters should

indicate a willingness to pay assessable

search and duplication costs if more

than two hours of search effort or 100

pages of records are desired.

(iii) If the previous conditions are not

met, then the request need not be

processed and the requester shall be so

informed.

(iv) In the situations described by

paragraphs (e)(2)(i) and (e)(2)(ii) of this

section, Components must be prepared

to provide an estimate of assessable fees

if desired by the requester. While it is

recognized that search situations will

vary among Components, and that an

estimate is often difficult to obtain prior

to an actual search, requesters who

desire estimates are entitled to such

before committing to a willingness to

pay. Should Components’ actual costs

exceed the amount of the estimate or the

amount agreed to by the requester, the

amount in excess of the estimate or the

requester’s agreed amount shall not be

charged without the requester’s

agreement.

(v) No DoD Component may require

advance payment of any fee; i.e.,

payment before work is commenced or

continued on a request, unless the

requester has previously failed to pay

fees in a timely fashion, or the agency

has determined that the fee will exceed

$250.00. As used in this sense, a timely

fashion is 30 calendar days from the

date of billing (the fees have been

assessed in writing) by the Component.

(vi) Where a Component estimates or

determines that allowable charges that a

requester may be required to pay are

likely to exceed $250.00, the

Component shall notify the requester of

the likely cost and obtain satisfactory

assurance of full payment where the

requester has a history of prompt

payments, or require an advance

payment of an amount up to the full

estimated charges in the case of

requesters with no history of payment.

(vii) Where a requester has previously

failed to pay a fee charged in a timely

fashion (i.e., within 30 calendar days

from the date of the billing), the

Component may require the requester to

pay the full amount owed, plus any

applicable interest, or demonstrate that

he or she has paid the fee, and to make

an advance payment of the full amount

of the estimated fee before the

Component begins to process a new or

pending request from the requester.

Interest will be at the rate prescribed in

31 U.S.C. 3717 and confirmed with

respective Finance and Accounting

Offices.

(viii) After all work is completed on

a request, and the documents are ready

for release, Components may request

payment before forwarding the

documents, particularly for those

requesters who have no payment

history, or for those requesters who have

failed previously to pay a fee in a timely

fashion (i.e., within 30 calendar days

from the date of the billing). In the case

of the latter, the previsions of paragraph

(e)(2)(vii) of this section apply.

(ix) When Components act under

paragraphs (e)(2)(i) through (e)(2)(vii) of

this section, the administrative time

limits of the FOIA will begin only after

the Component has received a

willingness to pay fees and satisfaction

as to category determination, or fee

payments (if appropriate).

(x) Components may charge for time

spent searching for records, even if that

search fails to locate records responsive

to the request. Components may also

charge search and review (in the case of

commercial requesters) time if records

located are determined to be exempt

from disclosure. In practice, if the

Component estimates that search

charges are likely to exceed $25.00, it

shall notify the requester of the

estimated amount of fees, unless the

requester has indicated in advance his

or her willingness to pay fees as high as

those anticipated. Such a notice shall

offer the requester the opportunity to

confer with Component personnel with

the object of reformulating the request to

meet his or her needs at a lower cost.

(3) Commercial requesters. Fees shall

be limited to reasonable standard

charges for document search, review

and duplication when records are

requested for commercial use.

Requesters must reasonably describe the

records sought. (See § 286.4(h))

(i) The term commercial use request

refers to a request from, or on behalf of

one who seeks information for a use or

purpose that furthers the commercial,

trade, or profit interest of the requester

or the person on whose behalf the

request is made. In determining whether

a requester properly belongs in this

category, Components must determine

the use to which a requester will put the

documents requested. Moreover, where

a Component has reasonable cause to

doubt the use to which a requester will

put the records sought, or where that

use is not clear from the request itself,

Components should seek additional
31182 Federal Register / Vol. 63, No. 109 / Monday, June 8, 1998 / Proposed Rules

clarification before assigning the request

to a specific category.

(ii) When Components receive a

request for documents for commercial

use, they should assess charges which

recover the full direct costs of searching

for, reviewing for release, and

duplicating the records sought.

Commercial requesters (unlike other

requesters) are not entitled to two hours

of free search time, nor 100 free pages

of reproduction of documents.

Moreover, commercial requesters are

not normally entitled to a waiver or

reduction of fees based upon an

assertion that disclosure would be in the

public interest. However, because use is

the exclusive determining criteria, it is

possible to envision a commercial

enterprise making a request that is not

for commercial use. It is also possible

that a non-profit organization could

make a request that is for commercial

use. Such situations must be addressed

on a case-by-case basis.

(4) Educational institution requesters.

Fees shall be limited to only reasonable

standard charges for document

duplication (excluding charges for the

first 100 pages) when the request is

made by an educational institution

whose purpose is scholarly research.

Requesters must reasonably describe the

records sought (see § 286.4(h)). The term

educational institution refers to a preschool, a public or private elementary or

secondary school, an institution of

graduate high education, an institution

of undergraduate higher education, an

institution of professional education,

and an institution of vocational

education, which operates a program or

programs of scholarly research. Fees

shall be waived or reduced in the public

interest if the criteria of paragraph (d) of

this section, have been met.

(5) Non-commercial scientific

institution requesters. Fees shall be

limited to only reasonable standard

charges for document duplication

(excluding charges for the first 100

pages) when the request is made by a

non-commercial scientific institution

whose purpose is scientific research.

Requesters must reasonably describe the

records sought (see § 286.4(h)). The term

non-commercial scientific institution

refers to an institution that is not

operated on a ‘‘commercial’’ basis as

defined in paragraph (e)(3) 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

product or industry. Fees shall be

waived or reduced in the public interest

if the criteria of paragraph (d) of this

section, have been met.

(6) Components shall provide

documents to requesters in paragraphs

(e)(4) and (e)(5) of this section, for the

cost of duplication alone, excluding

charges for the first 100 pages. To be

eligible for inclusion in these categories,

requesters must show that the request is

being made under the auspices of a

qualifying institution and that the

records are not sought for commercial

use, but in furtherance of scholarly

(from an educational institution) or

scientific (from a non-commercial

scientific institution) research.

(7) Representatives of the news media.

Fees shall be limited to only reasonable

standard charges for document

duplication (excluding charges for the

first 100 pages) when the request is

made by a representative of the news

media. Requesters must reasonably

describe the records sought (see

§ 286.4(h)). Fees shall be waived or

reduced if the criteria of paragraph (d)

of this section, have been met.

(i) The term representative of the

news media refers to any person actively

gathering news for an entity that is

organized and operated to publish or

broadcast news to the public. 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 broadcasting

to the public at large, and publishers of

periodicals (but only in those instances

when they can qualify as disseminators

of ‘‘news’’) who make their products

available for purchase or subscription

by the general public. These examples

are not meant to be all-inclusive.

Moreover, as traditional methods of

news delivery evolve (e.g., electronic

dissemination of newspapers through

telecommunications services), such

alternative media would be included in

this category. In the case of ‘‘freelance’’

journalists, they may be regarded as

working for a news organization if they

can demonstrate a solid basis for

expecting publication though that

organization, even through not actually

employed by it. A publication contract

would be the clearest proof, but

Components may also look to the past

publication record of a requester in

making this determination.

(ii) To be eligible for inclusion in this

category, a requester must meet the

criteria in paragraph (e)(7)(i) of this

section, and his or her request must not

be made for commercial use. A request

for records supporting the news

dissemination function of the requester

shall not be considered to be a request

that is for a commercial use. For

example, a document request by a

newspaper for records relating to the

investigation of a defendant in a current

criminal trial of public interest could be

presumed to be a request from an entity

eligible for inclusion in this category,

and entitled to records at the cost of

reproduction alone (excluding charges

for the first 100 pages).

(iii) ‘‘Representative of the news

media’’ does not include private

libraries, private repositories of

Government records, or middlemen,

such as information vendors or data

brokers.

(8) All other requesters. Components

shall charge requesters who do not fit

into any of the categories described in

paragraphs (e)(3), (e)(4), (e)(5), or (e)(7)

of this section, fees which recover the

full direct cost of searching for and

duplicating records, except that the first

two hours of search time and the first

100 pages of duplication shall be

furnished without charge. Requesters

must reasonably describe the records

sought (see § 286.4(h)). Requests from

subjects about themselves will continue

to be treated under the fee provisions of

the Privacy Act of 1974, which permit

fees only for duplication. Components

are reminded that this category of

requester may also be eligible for a

waiver or reduction of fees if disclosure

of the information is in the public

interest as defined under paragraph

(d)(1) of this section. (See also

paragraph (e)(3)(ii) of this section)

(f) Aggregating requests. Except for

requests that are for a commercial use,

a Component may not charge for the

first two hours of search time or for the

first 100 pages of reproduction.

However, a requester may not file

multiple requests at the same time, each

seeking portions of a document or

documents, solely in order to avoid

payment of fees. When a Component

reasonably believes that a requester or,

on rare occasions, a group of requesters

acting in concert, is attempting to break

a request down into a series of requests

for the purpose of avoiding the

assessment of fees, the Agency may

aggregate any such requests and charge

accordingly. One element to be

considered in determining whether a

belief would be reasonable is the time

period in which the requests have

occurred. For example, it would be

reasonable to presume that multiple

requests of this type made within a 30-

day period had been made to avoid fees.

For requests made over a longer period

however, such a presumption becomes

harder to sustain and Components

should have a solid basis for

determining that aggregation is

warranted in such cases. Components

are cautioned that before aggregating

requests from more than one requester,
Federal Register / Vol. 63, No. 109 / Monday, June 8, 1998 / Proposed Rules 31183

they must have a concrete basis on

which to conclude that the requesters

are acting in concert and are acting

specifically to avoid payment of fees. In

no case may Components aggregate

multiple requests on unrelated subjects

from one requester.

(g) Effect of the Debt Collection Act of

1982 (5 U.S.C. 5515 note). The Debt

Collection Act of 1982 (5 U.S.C. 5515

note) provides for a minimum annual

rate of interest to be charged on overdue

debts owed the Federal Government.

Components may levy this interest

penalty for any fees that remain

outstanding 30 calendar days from the

date of billing (the first demand notice)

to the requester of the amount owed.

The interest rate shall be as prescribed

in 31 U.S.C. 3717. Components should

verify the current interest rate with

respective Finance and Accounting

Offices. After one demand letter has

been sent, and 30 calendar days have

lapsed with no payment, Components

may submit the debt to respective

Finance and Accounting Offices for

collection pursuant to 5 U.S.C. 5515

note.

(h) Computation of fees. The fee

schedule in this subpart shall be used to

compute the search, review (in the case

of commercial requesters) and

duplication costs associated with

processing a given FOIA request. Costs

shall be computed on time actually

spent. Neither time-based nor dollarbased minimum charges for search,

review and duplication are authorized.

The appropriate fee category of the

requester shall be applied before

computing fees.

(i) Refunds. In the event that a

Component discovers that it has

overcharged a requester or a requester

has overpaid, the Component shall

promptly have a refund check issued to

the requester.

§ 286.29 Collection of fees and fee rates.

(a) Collection of fees. Collection of

fees will be made at the time of

providing the documents to the

requester or recipient when the

requester specifically states that the

costs involved shall be acceptable or

acceptable up to a specified limit that

covers the anticipated costs. Collection

of fees may not be made in advance

unless the requester has failed to pay

previously assessed fees within 30

calendar days from the date of the

billing by the DoD Component, or the

Component has determined that the fee

will be in excess of $250 (see

§ 286.28(e)).

(b) Search time.—(1) Manual search.

Type Grade

Hourly

rate

(dollars)

Clerical ..... E9/GS8 and below ..... 12

Professional.O1–O6/GS9–GS15 .... 25

Executive .. O7/GS16/ES1 and

above.

45

(2) Computer search. Fee assessments

for computer search consists of two

parts; individual time (hereafter referred

to as human time), and machine time.

(i) Human time. Human time is all the

time spent by humans performing the

necessary tasks to prepare the job for a

machine to execute the run command.

If execution of a run requires monitoring

by a human, that human time may be

also assessed as computer search. The

terms ’’programmer/operator’’ shall not

be limited to the traditional

programmers or operators. Rather, the

terms shall be interpreted in their

broadest sense to incorporate any

human involved in performing the

computer job (e.g. technician,

administrative support, operator,

programmer, database administrator, or

action officer).

(ii) Machine time. Machine time

involves only direct costs of the Central

Processing Unit (CPU), input/output

devices, and memory capacity used in

the actual computer configuration. Only

this CPU rate shall be charged. No other

machine related costs shall be charged.

In situations where the capability does

not exist to calculate CPU time, no

machine costs can be passed on to the

requester. When CPU calculations are

not available, only human time costs

shall be assessed to requesters. Should

DoD Components lease computers, the

services charged by the lessor shall not

be passed to the requester under the

FOIA.

(c) Duplication.

Type Cost per page (cents)

Pre-Printed

material.

02

Office copy .... 15

Microfiche ...... 25

Computer

copies(tapes,

discs or

printouts).

Actual cost of duplicating the

tape, disc or printout (includes operator’s time and

cost of the medium).

(d) Review time (in the case of

commercial requesters).

Type Grade

Hourly

rate

(dollars)

Clerical ..... E9/GS8 and below ..... 12

Type Grade

Hourly

rate

(dollars)

Professional.O1–O6/GS9–GS15 .... 25

Executive .. O7/GS16/ES1 and

above.

45

(e) Audiovisual documentary

materials. Search costs are computed as

for any other record. Duplication cost is

the actual direct cost of reproducing the

material, including the wage of the

person doing the work. Audiovisual

materials provided to a requester need

not be in reproducible format or quality.

(f) Other records. Direct search and

duplication cost for any record not

described in this section shall be

computed in the manner described for

audiovisual documentary material.

(g) Costs for special services.

Complying with requests for special

services is at the discretion of the

Components. Neither the FOIA, nor its

fee structure cover these kinds of

services. Therefore, Components may

recover the costs of special services

requested by the requester after

agreement has been obtained in writing

from the requester to pay for one or

more of the following services:

(1) Certifying that records are true

copies.

(2) Sending records by special

methods such as express mail, etc.

§ 286.30 Collection of fees and fee rates

for technical data.

(a) Fees for technical data. Technical

data, other than technical data that

discloses critical technology with

military or space application, if required

to be released under the FOIA, shall be

released after the person requesting

such technical data pays all reasonable

costs attributed to search, duplication

and review of the records to be released.

Technical data, as used in this section,

means recorded information, regardless

of the form or method of the recording

of a scientific or technical nature

(including computer software

documentation). This term does not

include computer software, or data

incidental to contract administration,

such as financial and/or management

information. DoD Components shall

retain the amounts received by such a

release, and it shall be merged with and

available for the same purpose and the

same time period as the appropriation

from which the costs were incurred in

complying with request. 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
31184 Federal Register / Vol. 63, No. 109 / Monday, June 8, 1998 / Proposed Rules

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. This

cost is to be differentiated from the

direct costs allowable under § 286.29 for

other types of information released

under the FOIA.

(b) Waiver. Components shall waive

the payment of costs required in

paragraph (a) of this section, which are

greater than the costs that would be

required for release of this same

information under § 286.29 if:

(1) The request is made by a citizen

of the United States or a United States

corporation, and such citizen or

corporation certifies that the technical

data requested is required to enable it to

submit an offer, or 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 contractor with the United

States. However, Components may

require the citizen or corporation to pay

a deposit in an amount equal to not

more than the cost of complying with

the 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 Component determines in

accordance with § 286.28(d)(1), that

such a waiver is in the interest of the

United States.

(c) Fee rates—(1) Search time—(i)

Manual search; clerical.

Type Grade

Hourly

rate

(dollars)

Clerical ........................ E9/GS8

and

below.

13.25

Type Grade

Hourly

rate

(dollars)

(Minimum charge) ....... .................. 8.30

(ii) Manual search; professional and

executive (To be established at actual

hourly rate prior to search. A minimum

charge will be established at 1⁄2

Minimum Charge).

(2) Computer search is based on the

total cost of the central processing unit,

input-output devices, and memory

capacity of the actual computer

configuration. The wage (based upon

the scale in (c)(1)(i) of this section) for

the computer operator and/or

programmer determining how to

conduct, and subsequently executing

the search will be recorded as part of the

computer search. See § 286.29(b)(2) for

further details regarding computer

search.

(3) Duplication.

Type Cost

Aerial photograph, maps, specifications, permits, charts, blueprints, and other technical engineering documents .............................. $2.50

Engineering data (microfilm):

i. Aperture cards

A. Silver duplicate negative, per card ....................................................................................................................................... .75

When key punched and verified, per card ................................................................................................................................ .85

B. Diazo duplicate negative, per card ....................................................................................................................................... .65

When key punched and verified, per card ................................................................................................................................ .75

ii. 35mm roll film, per frame .............................................................................................................................................................. .50

iii. 16mm roll film, per frame ............................................................................................................................................................. .45

iv. Paper prints (engineering drawings), each .................................................................................................................................. 1.50

v. Paper reprints of microfilm indices, each ..................................................................................................................................... .10

(4) Review time.—(i) Clerical.

Type Grade Hourly rate

($)

Clerical .......................................................................................... E9/GS8 and below ....................................................................... 13.25

(Minimum Charge) ........................................................................ ....................................................................................................... 8.30

(ii) Professional and executive (To be established at actual hourly rate prior to review. A minimum charge will

be established at an hourly rate).

(d) Other technical data records. Charges for any additional services not specifically provided in paragraph (c)

of this section, consistent with Volume 11A of DoD 7000.14–R, shall be made by Components at the following rates:

(1) Minimum charge for office copy (up to six images) ....................................................................................................................... $3.50

(2) Each additional image ...................................................................................................................................................................... .10

(3) Each typewritten page ...................................................................................................................................................................... 3.50

(4) Certification and validation with seal, each .................................................................................................................................... 5.20

(5) Hand-drawn plots and sketches, each hour or fraction thereof ..................................................................................................... 12.00

Subpart G—Reports

§ 286.33 Reports control.

(a) General. (1) The Annual Freedom

of Information Act Report is mandated

by the statute and reported on a fiscal

year basis. Due to the magnitude of the

requested statistics and the need to

ensure accuracy of reporting, DoD

Components shall track this data as

requests are processed. This will also

facilitate a quick and accurate

compilation of statistics. DoD

Components shall forward their report

to the Directorate for Freedom of

Information and Security Review no

later than November 30 following the

fiscal year’s close. It may be submitted

electronically and via hard copy

accompanied by a computer diskette. In

turn, DoD will produce a consolidated

report for submission to the Attorney

General, and ensure that a copy of the

DoD consolidated report is placed on

the Internet for public access.

(2) Existing DoD standards and

registered data elements are to be
Federal Register / Vol. 63, No. 109 / Monday, June 8, 1998 / Proposed Rules 31185

11See footnote 3 to § 286.12(a).

utilized to the greatest extent possible in

accordance with the provisions of DoD

Manual 8320.1–M.11

(3) The reporting requirement

outlined in this subpart will be assigned

Report Control Symbol DD–

DA&M(A)1365.

(b) Annual report content. The current

edition of DD Form 2564 will be used

to submit component input. Instructions

for completion follow:

(1) Item 1: Initial request

determinations.—(i) Total requests

processed. Enter the total number of

initial FOIA requests responded to

(completed) during the fiscal year.

Note: Since more than one action

frequently is taken on a completed case,

Total Actions (see paragraph (b)(1)(vi) of this

section) the sum of paragraph (b)(1)(ii)

through (b)(1)(v) of this section, can exceed

total requests processed (See appendix E of

this part for form layout).

(ii) Granted in full. Enter the total

number of initial FOIA requests

responded to that were granted in full

during the fiscal year. (This may include

requests granted by your office, yet still

requiring action by another office.)

(iii) Denied in part. Enter the total

number of initial FOIA requests

responded to and denied in part based

on one or more of the FOIA exemptions.

(Do not report ‘‘Other Reason

Responses’’ as a partial denial here,

unless a FOIA exemption is used also.)

(iv) Denied in full. Enter the total

number of initial FOIA requests

responded to and denied in full based

on one or more of the FOIA exemptions.

(Do not report ‘‘Other Reason

Responses’’ as denials here, unless a

FOIA exemption is used also.)

(v) ‘‘Other reason’’ responses. Enter

the total number of initial FOIA requests

in which you were unable to provide all

or part of the requested information

based on an ‘‘Other Reason’’ response.

Paragraph (b)(2)(ii) of this section

explains the nine possible ‘‘Other

Reasons.’’

(vi) Total actions. Enter the total

number of FOIA actions taken during

the fiscal year. This number will be the

sum of paragraph (b)(1)(ii) through

(b)(1)(v) of this section.

Note: Total Actions must be equal to or

greater than the number of Total Requests

Processed (paragraph (b)(1)(i) of this section).

(2) Item 2: Initial request exemptions

and other reasons.—(i) Exemptions

invoked on Initial requests

determinations. Enter the number of

times an exemption was claimed for

each request that was denied in full or

in part. Since more than one exemption

may be claimed when responding to a

single request, this number will be equal

to or greater than the sum of paragraphs

(b)(1)(iii) and (b)(1)(iv) of this section.

Note that the (b)(7) exemption is

reported by categories identified in

paragraphs (b)(2)(i)(A) through

(b)(2)(i)(F) of this section:

(A) Interfere with enforcement;

(B) Fair trial right;

(C) Invasion of privacy;

(D) Protect confidential source;

(E) Disclose techniques; and

(F) Endanger life or safety.

(ii) ‘‘Other reasons’’ cited on initial

determinations. Identify the ‘‘other

reason’’ response cited when

responding to a FOIA request and enter

the number of times each was claimed.

(A) No records. Enter the number of

times a search of files failed to identify

records responsive to subject request.

(B) Referrals. Enter the number of

times a request was referred to another

DoD Component or Federal Agency for

action.

(C) Request withdrawn. Enter the

number of times a request and/or appeal

was withdrawn by a requester. (For

appeals, report number in Item 4b on

the report form (see appendix E of this

part).)

(D) Fee-related reason. Requester is

unwilling to pay the fees associated

with a request; the requester is past due

in the payment of fees from a previous

FOIA request; or the requester disagrees

with a fee estimate.

(E) Records not reasonably described.

Enter the number of times a FOIA

request could not be acted upon since

the record had not been described with

sufficient particularity to enable the

DoD Component to locate it by

conducting a reasonable search.

(F) Not a proper FOIA request for

some other reason. Enter the number of

times the requester has failed

unreasonably to comply with

procedural requirements, other than feerelated (described in paragraph

(b)(2)(ii)(D) of this section), imposed by

this part or a DoD Component’s

supplementing regulation.

(G) Not an agency record. Enter the

number of times a requester was

provided a response indicating the

requested information was not a record

within the meaning of the FOIA and this

part.

(H) Duplicate request. Record number

of duplicate requests closed for that

reason (e.g., request for the same

information by the same requester). This

includes identical requests received via

different means (e.g., electronic mail,

facsimile, mail, courier) at the same or

different times.

(I) Other (specify). Any other reason a

requester does not comply with

published rules, other than those

reasons outlined in the previous

paragraphs.

(J) Total. Enter the sum of paragraphs

(b)(2)(ii)(A) through (b)(2)(ii)(I) of this

section, in the block provided on the

form. This number will be equal to or

greater than paragraph (b)(1)(v) of this

section since more than one reason may

be claimed for each ‘‘other reason’’

response.

(iii) (b)(3) statutes invoked on initial

determinations. Identify the number of

times you have used a specific statute to

support each (b)(3) exemption. List the

statutes used to support each (b)(3)

exemption; the number of instances in

which the statute was cited; note

whether or not the statute has been

upheld in a court hearing; and provide

a concise description of the material

withheld in each individual case by the

statute’s use. Ensure you cite the

specific sections of the acts invoked.

The total number of instances reported

will be equal to or greater than the total

number of (b)(3) exemptions listed in

Item 2a on the report form.

(3) Item 3: Appeal determinations—(i)

Total appeal responses. Enter the total

number of FOIA appeals responded to

(completed) during the fiscal year.

(ii) Granted in full. Enter the total

number of FOIA appeals responded to

and granted in full during the year.

(iii) Denied in part. Enter the total

number of FOIA appeals responded to

and denied in part based on one or more

of the FOIA exemptions. (Do not report

‘‘Other Reason Responses’’ as a partial

denial here, unless a FOIA exemption is

used also.)

(iv) Denied in full. Enter the total

number of FOIA appeals responded to

and denied in full based on one or more

of the FOIA exemptions. (Do not report

‘‘other reason responses’’ as denials

here, unless a FOIA exemption is used

also.)

(v) ‘‘Other reason’’ responses. Enter

the total number of FOIA appeals in

which you were unable to provide the

requested information based on an

‘‘other reason’’ response (as outlined in

‘‘other reasons’’ in paragraph (b)(2)(ii) of

this section).

(vi) Total actions. Enter the total

number of FOIA appeal actions taken

during the fiscal year. This number will

be the sum of paragraphs (b)(3)(ii)

through (b)(3)(v), and should be equal to

or greater than the number of total

appeal responses, paragraph (b)(3)(i) of

this section.

(4) Item 4: Appeal exemptions and

other reasons—(i) Exemptions invoked

on appeal determinations. Enter the

number of times an exemption was

claimed for each appeal that was denied
31186 Federal Register / Vol. 63, No. 109 / Monday, June 8, 1998 / Proposed Rules

in full or in part. Since more than one

exemption may be claimed when

responding to a single request, this

number will be equal to or greater than

the sum of paragraphs (b)(3)(iii) and

(b)(3)(iv) of this section.

(ii) ‘‘Other reasons’’ cited on appeal

determinations. Identify the ‘‘other

reason’’ response cited when

responding to a FOIA appeal and enter

the number of times each was claimed.

See paragraph (b)(2)(ii) of this section

for description of ‘‘other reasons.’’ This

number can be equal to or possibly

greater than the number in paragraph

(b)(3)(v) of this section since more than

one reason may be claimed for each

‘‘other reason’’ response.

(iii) (b)(3) statutes invoked on appeal

determinations. Identify the number of

times you have used a specific statute to

support each (b)(3) exemption identified

in item 4a on the report form (Appendix

E of this part). List the statutes used to

support each (b)(3) exemption; the

number of instances in which the

statute was cited; note whether or not

the statute has been upheld in a court

hearing; and provide a concise

description of the material withheld in

each individual case by the statute’s

use. Ensure you cite the specific

sections of the statute invoked. The total

number of instances reported will be

equal to or greater than the total number

of (b)(3) exemptions listed in Item 4a on

the report form.

(5) Item 5: Number and median age of

initial cases pending. (i) Total Initial

Cases Pending:

(A) As of beginning report period:

Midnight, 2400 hours, September 30 of

the Preceding Year –OR– 0001 hours,

October 1 at the beginning of the report

period.

(B) As of end report period: Midnight,

2400 hours, at the close of the reporting

period.

(ii) Median age of initial requests

pending: Report the median age in days

(includes holidays and weekends) of

initial requests pending.

(A) As of beginning report period:

Midnight, 2400 hours, September 30 of

the Preceding Year –OR– 0001 hours, 1

October at the beginning of the report

period.

(B) As Of end report period: Midnight,

2400 hours, at the close of the reporting

period.

(iii) Examples of median calculation.

(A) If given five cases aged 10, 25, 35,

65, and 100 days from date of receipt as

of the previous September 30th, the

total requests pending is five (5). The

median age (days) of open requests is

the middle, not average value, in this set

of numbers (10, 25, 35, 65, and 100), 35

(the middle value in the set).

(B) If given six pending cases, aged

10, 20, 30, 50, 120, and 200 days from

date of receipt, as of the previous

September 30th, the total requests

pending is six (6). The median age

(days) of open requests 40 days (the

mean [average] of the two middle

numbers in the set, in this case the

average of middle values 30 and 50).

(iv) Accuracy of calculations.

Agencies are responsible for the

accuracy of their calculations. As

backup, it is highly recommended that

you record the raw data (entire sample

used) to perform calculations in this

section. This will enable you to

recalculate median (and mean values if

you desire) as necessary. Further, if you

have the raw data from your subordinate

elements, you can determine your

department’s/agency’s median.

(v) Average. If a component believes

that ‘‘average’’ (mean) processing time is

a better measure of their performance,

then they should report ‘‘averages’’

(means) as well as their median values

(e.g., with data reflected and plainly

labeled on plain bond as an attachment

to the report). However, ‘‘average’’

(mean) values will not be included in

the consolidated DoD report unless all

components report it.

(6) Item 6: Number of initial requests

received during the fiscal year. Enter the

total number of initial FOIA requests

received during the reporting period

(fiscal year being reported).

(7) Item 7: Types of requests

processed and median age. Information

is reported for three types of initial

requests completed during the reporting

period: Simple; Complex; and

Expedited Processing. The following

items of information are reported for

these requests.

(i) Total number of initial requests.

Enter the total number of initial requests

processed [completed] during the

reporting period (fiscal year) by type

(Simple, Complex and Expedited

Processing) in the appropriate row on

the form.

(ii) Median age (days). Enter the

median number of days [calendar days

including holidays and weekends]

required to process each type of case

(Simple, Complex and Expedited

Processing) during the period in the

appropriate row on the form.

(iii) Example. Given seven initial

requests, multitrack—simple completed

during the fiscal year, aged 10, 25, 35,

65, 79, 90 and 400 days when

completed. The total number of requests

completed was seven (7). The median

age (days) of completed requests is 65,

the middle value in the set.

(8) Item 8: Fees collected from the

public. Enter the total amount of fees

collected from the public during the

fiscal year. This includes search, review

and reproduction costs only.

(9) Item 9: FOIA program costs—(i)

Number of full time staff: Enter the

number of personnel your agency had

dedicated to working FOIA full time

during the fiscal year. This will be

expressed in work-years (manyears). For

example: ‘‘5.1, 3.2, 1.0, 6.5, et al.’’ A

sample calculation follows:

Employee

Number

months

worked

Work-years Note

SMITH, Jane ...................................... 6 .5 Hired full time at middle of fiscal year.

PUBLIC, John Q. ............................... 4 .34 Dedicated to full time FOIA processing last quarter of fiscal year.

BROWN, Tom .................................... 12 1.0 Worked FOIA full time all fiscal year.

Total ............................................ 22 1.84

(ii) Number of part time staff. Enter the number of personnel your agency had dedicated to working FOIA part

time during the fiscal year. This will be expressed in work-years (manyears). For example: ‘‘5.1, 3.2, 1.0, 6.5, et al.’’

A sample calculation follows:
Federal Register / Vol. 63, No. 109 / Monday, June 8, 1998 / Proposed Rules 31187

1Copies may be viewed via internet at http://

web7.whs.osd.mil/corres.htm.

2See footnote 1 to paragraph AP1.1. of this

appendix.

3See footnote 1 to paragraph AP1.1. of this

appendix.

Employee

Number

hours

worked

Work-years Note

PUBLIC, John Q. ............................... 200 .1 Amount of time devoted to part time FOIA processing before becoming full

time FOIA processor in previous example.

WHITE, Sally ..................................... 400 .2 Processed FOIA’s part time while working as paralegal in General Counsel’s Office.

PETERS, Ron .................................... 1,000 .5 Part time employee dedicated to FOIA processing.

Total ............................................ 1,600/2,000 hours (hours worked in a year) equals 0.8 work-years.

(iii) Estimated litigation Cost: Report

your best estimate of litigation costs for

the FY.

(iv) Total program cost: Report the

total cost of FOIA program operation

within your agency. Include your

litigation costs in this total.

(v) Note: While you do not have to

report detailed cost information as in

the past, you should be able to explain

the technique by which you derived

your agency’s total cost figures if the

need arises.

(10) Item 10: Authentication: The

official that approves the agency’s report

submission to DoD will sign and date;

enter typed name and duty title; and

provide the both the agency’s name and

phone number for questions about the

report.

(c) Electronic publication. The

consolidated DoD Annual FOIA

Program Report is the official annual

FOIA report within DoD, and is

available to the public in either paper or

electronic format.

Subpart H—Education and Training

§ 286.36 Responsibility and purpose.

(a) Responsibility. The Head of each

DoD Component is responsible for the

establishment of educational and

training programs on the provisions and

requirements of this part. The

educational programs should be targeted

toward all members of the DoD

Component, developing a general

understanding and appreciation of the

DoD FOIA Program; whereas, the

training programs should be focused

toward those personnel who are

involved in the day-to-day processing of

FOIA requests, and should provide a

thorough understanding of the

procedures outlined in this part.

(b) Purpose. The purpose of the

educational and training programs is to

promote a positive attitude among DoD

personnel and raise the level of

understanding and appreciation of the

DoD FOIA Program, thereby improving

the interaction with members of the

public and improving the public trust in

the DoD.

(c) Scope and principles. Each

Component shall design its FOIA

educational and training programs to fit

the particular requirements of personnel

dependent upon their degree of

involvement in the implementation of

this part. The program should be

designed to accomplish the following

objectives:

(1) Familiarize personnel with the

requirements of the FOIA and its

implementation by this part.

(2) Instruct personnel, who act in

FOIA matters, concerning the provisions

of this part, advising them of the legal

hazards involved and the strict

prohibition against arbitrary and

capricious withholding of information.

(3) Provide for the procedural and

legal guidance and instruction, as may

be required, in the discharge of the

responsibilities of initial denial and

appellate authorities.

(4) Advise personnel of the penalties

for noncompliance with the FOIA.

(d) Implementation. To ensure

uniformity of interpretation, all major

educational and training programs

concerning the implementation of this

part should be coordinated with the

Director, Freedom of Information and

Security Review.

(e) Uniformity of legal interpretation.

In accordance with DoD Directive

5400.7 the DoD Office of the General

Counsel shall ensure uniformity in the

legal position and interpretation of the

DoD FOIA Program.

Appendix A to Part 286—Combatant

Commands—Processing Procedures for

FOIA Appeals

AP1.1. General.

AP1.1.1. In accordance with DoD Directive

5400.7 1 and this part, the Combatant

Commands are placed under the jurisdiction

of the Office of the Secretary of Defense,

instead of the administering Military

Department, only for the purpose of

administering the Freedom of Information

Act (FOIA) Program. This policy represents

an exception to the policies in DoD Directive

5100.3 2

AP1.1.2. The policy change in paragraph

AP1.1.1. of this appendix, authorizes and

requires the Combatant Commands to process

FOIA requests in accordance with DoD

Directive 5400.7 and DoD Instruction

5400.10 3 and to forward directly to the

Director, Freedom of Information and

Security Review, all correspondence

associated with the appeal of an initial denial

for information under the provisions of the

FOIA.

AP1.2. Responsibilities of commands.

Combatant Commanders in Chief shall:

AP1.2.1. Designate the officials authorized

to deny initial FOIA requests for records.

AP1.2.2. Designate an office as the pointof-contact for FOIA matters.

AP1.2.3. Refer FOIA cases to the Director,

Freedom of Information and Security Review,

for review and evaluation when the issues

raised are of unusual significance, precedent

setting, or otherwise require special attention

or guidance.

AP1.2.4. Consult with other OSD and DoD

Components that may have a significant

interest in the requested record prior to a

final determination. Coordination with

Agencies outside of the Department of

Defense, if required, is authorized.

AP1.2.5. Coordinate proposed denials of

records with the appropriate Combatant

Command’s Office of the Staff Judge

Advocate.

AP1.2.6. Answer any request for a record

within 20 working days of receipt. The

requester shall be notified that his request

has been granted or denied. In unusual

circumstances, such notification may state

that additional time, not to exceed 10

working days, is required to make a

determination.

AP1.2.7. Provide to the Director, Freedom

of Information and Security Review when the

request for a record is denied in whole or in

part, a copy of the response to the requester

or his representative, and any internal

memoranda that provide background

information or rationale for the denial.

AP1.2.8. State in the response that the

decision to deny the release of the requested

information, in whole or in part, may be

appealed to the Director, Administration &

Management, Directorate for Freedom of

Information and Security Review, Room

2C757, 1155 Defense Pentagon, Washington,

DC 20301–1155.

AP1.2.9. Upon request, submit to Director,

Administration and Management a copy of

the records that were denied. The Director,

Administration and Management shall make

such requests when adjudicating appeals.
31188 Federal Register / Vol. 63, No. 109 / Monday, June 8, 1998 / Proposed Rules

4Copies may be obtained, at cost, from the

National Technical Information Service, 5285 Port

Royal Road, Springfield, VA 22161.

AP1.3. Fees for FOIA requests. The fees

charged for requested records shall be in

accordance with subpart F of this part.

AP1.4. Communications. Excellent

communication capabilities currently exist

between the Director, Freedom of

Information and Security Review and the

Freedom of Information Act Offices of the

Combatant Commands. This communication

capability shall be used for FOIA cases that

are time sensitive.

AP1.5. Information requirements.

AP1.5.1. The Combatant Commands shall

submit to the Director, Freedom of

Information and Security Review, an annual

report. The instructions for the report are

outlined in subpart G of this part.

AP1.5.2. The annual reporting requirement

contained in this part shall be submitted in

duplicate to the Director, Freedom of

Information and Security Review not later

than each November 30. This reporting

requirement has been assigned Report

Control Symbol DD–PA(A) 1365 in

accordance with DoD 8910.1–M. 4

Appendix B to Part 286—Addressing

FOIA Requests

AP2.1. General.

AP2.1.1. The Department of Defense

includes the Office of the Secretary of

Defense, the Chairman of the Joint Chiefs of

Staff, the Military Departments, the

Combatant Commands, the Inspector

General, the Defense Agencies, and the DoD

Field Activities.

AP2.1.2. The Department of Defense does

not have a central repository for DoD records.

FOIA requests, therefore, should be

addressed to the DoD Component that has

custody of the record desired. In answering

inquiries regarding FOIA requests, DoD

personnel shall assist requesters in

determining the correct DoD Component to

address their requests. If there is uncertainty

as to the ownership of the record desired, the

requester shall be referred to the DoD

Component that is most likely to have the

record.

AP2.2. Listing of DoD component

addresses for FOIA requests.

AP2.2.1. Office of the Secretary of Defense

and the Chairman of the Joint Chiefs of Staff.

Send all requests for records from the below

listed offices to: Directorate for Freedom of

Information and Security Review, Room

2C757, 1155 Defense Pentagon, Washington,

DC 20301–1155.

Executive Secretariat

Under Secretary of Defense (Policy)

Assistant Secretary of Defense

(International Security Affairs)

Assistant Secretary of Defense

(International Security Policy)

Assistant Secretary of Defense (Special

Operations & Low Intensity Conflict)

Assistant Secretary of Defense (Strategy &

Requirements)

Deputy to the Under Secretary of Defense

(Policy Support)

Director of Net Assessment

Defense Security Assistance Agency

Defense Technology Security

Administration

Under Secretary of Defense (Acquisition &

Technology)

Deputy Under Secretary of Defense

(Logistics)

Deputy Under Secretary of Defense

(Advanced Technology)

Deputy Under Secretary of Defense

(Acquisition Reform)

Deputy Under Secretary of Defense

(Environmental Security)

Deputy Under Secretary of Defense (Space)

Deputy Under Secretary of Defense

(International & Commercial Programs)

Deputy Under Secretary of Defense

(Industrial Affairs & Installations)

Assistant to the Secretary of Defense

(Nuclear, Chemical & Biological Defense

Programs)

Director, Defense Research & Engineering

Director, Small & Disadvantaged Business

Utilization

Director, Defense Procurement

Director, Test Systems Engineering &

Evaluation

Director, Strategic & Tactical Systems

Director, Administration and Management

Defense Evaluation Support Activity

DoD Radiation Experiments Command

Center

On-Site Inspection Agency

Under Secretary of Defense (Comptroller)

Director, Program Analysis and Evaluation

Under Secretary of Defense (Personnel &

Readiness)

Assistant Secretary of Defense (Health

Affairs)

Assistant Secretary of Defense (Legislative

Affairs)

Assistant Secretary of Defense (Public

Affairs)

Assistant Secretary of Defense (Command,

Control, Communications & Intelligence)

Assistant Secretary of Defense (Reserve

Affairs)

General Counsel, Department of Defense

Director, Operational Test and Evaluation

Assistant to the Secretary of Defense

(Intelligence Oversight)

Special Assistant for Gulf War Illness

Defense Advanced Research Projects Agency

Ballistic Missile Defense Organization

Defense Systems Management College

National Defense University

Armed Forces Staff College

Department of Defense Dependents Schools

Uniformed Services University of the Health

Sciences

Armed Forces Radiology Research Institute

Washington Headquarters Services

AP2.2.2. Department of the Army. Army

records may be requested from those Army

officials who are listed in 32 CFR 518. Send

requests to the Freedom of Information and

Privacy Acts Office, SAIS–IA–R/FP, Suite

201, 1725 Jefferson Davis Hwy, Arlington,

VA 22202–4102, for records of the

Headquarters, U.S. Army, or if there is

uncertainty as to which Army activity may

have the records.

AP2.2.3. Department of the Navy. Navy

and Marine Corps records may be requested

from any Navy or Marine Corps activity by

addressing a letter to the Commanding

Officer and clearly indicating that it is a

FOIA request. Send requests to Chief of

Naval Operations, N09B30, 2000 Navy,

Pentagon, Washington, DC 20350–2000, for

records of the Headquarters, Department of

the Navy, and to Commandant of the Marine

Corps, (ARAD), Headquarters U.S. Marine

Corps, 2 Navy Annex, Washington, DC

20380–1775, for records of the U.S. Marine

Corps, or if there is uncertainty as to which

Navy or Marine activities may have the

records.

AP2.2.4. Department of the Air Force. Air

Force records may be requested from the

Commander of any Air Force installation,

major command, or field operating agency

(ATTN: FOIA Office). For Air Force records

of Headquarters, United States Air Force, or

if there is uncertainty as to which Air Force

activity may have the records, send requests

to Department of the Air Force, 11CS/

SCSR(FOIA), 1000 Air Force, Pentagon,

Washington, DC 20330–1000.

AP2.2.5. Defense Contract Audit Agency

(DCAA). DCAA records may be requested

from any of its regional offices or from its

Headquarters. Requesters should send FOIA

requests to the Defense Contract Audit

Agency, ATTN: CMR, 8725 John J. Kingman

Road, Suite 2135, Fort Belvoir, VA 22060–

6219, for records of its headquarters or if

there is uncertainty as to which DCAA region

may have the records sought.

AP2.2.6. Defense Information Systems

Agency (DISA). DISA records may be

requested from any DISA field activity or

from its Headquarters. Requesters should

send FOIA requests to Defense Information

Systems Agency, Regulatory/General

Counsel, 701 South Courthouse Road,

Arlington, VA 22204–2199.

AP2.2.7. Defense Intelligence Agency

(DIA). FOIA requests for DIA records may be

addressed to Defense Intelligence Agency,

ATTN: SVI–1, Washington, DC 20340–5100.

AP2.2.8. Defense Security Service (DSS).

All FOIA requests for DSS records should be

sent to the Defense Security Service, Office

of FOIA and Privacy V0020, 1340 Braddock

Place, Alexandria, VA 22314–1651.

AP2.2.9. Defense Logistics Agency (DLA).

DLA records may be requested from its

headquarters or from any of its field

activities. Requesters should send FOIA

requests to Defense Logistics Agency, ATTN:

CAAR, 8725 John J. Kingman Road, Suite

2533, Ft. Belvoir, VA 22060–6221.

AP2.2.10. National Imagery and Mapping

Agency (NIMA). FOIA requests for NIMA

records may be sent to the National Imagery

and Mapping Agency, General Counsel’s

Office, GCM, Mail Stop D–10, 4600

Sangamore Road, Bethesda, MD 20816–5003.

AP2.2.11. Defense Special Weapons

Agency (DSWA). FOIA requests for DSWA

records may be sent to the Defense Special

Weapons Agency, Public Affairs Office,

Room 113, 6801 Telegraph Road, Alexandria,

VA 22310–3398.

AP2.2.12. National Security Agency (NSA).

FOIA requests for NSA records may be sent

to the National Security Agency/Central

Security Service, FOIA/PA Services, N5P5,

9800 Savage Road, Suite 6248, Fort George G.

Meade, MD 20755–6248.

AP2.2.13. Inspector General of the

Department of Defense (IG, DoD). FOIA
Federal Register / Vol. 63, No. 109 / Monday, June 8, 1998 / Proposed Rules 31189

requests for IG, DoD records may be sent to

the Inspector General of the Department of

Defense, Chief FOIA/PA Office, 400 Army

Navy Drive, Room 405, Arlington, VA 22202–

2884.

AP2.2.14. Defense Finance and Accounting

Service (DFAS). DFAS records may be

requested from any of its regional offices or

from its Headquarters. Requesters should

send FOIA requests to Defense Finance and

Accounting Service, Directorate for External

Services, Crystal Mall 3, Room 416,

Arlington, VA 22240–5291, for records of its

Headquarters, or if there is uncertainty as to

which DFAS region may have the records

sought.

AP2.2.15. National Reconnaissance Office

(NRO). FOIA requests for NRO records may

be sent to the National Reconnaissance

Office, Information Access and Release

Center, Attn: FOIA Officer, 14675 Lee Road,

Chantilly, VA 20151–1715.

AP2.3. Other Addresses. Although the

below organizations are OSD and Chairman

of the Joint Chiefs of Staff Components for

the purposes of the FOIA, requests may be

sent directly to the addresses indicated.

AP2.3.1. DoD TRICARE Support Office.

Director, TRICARE Support Office,

Fitzsimmons USAG Building 611, Aurora,

CO 80045–6900.

AP2.3.2. Chairman, Armed Services Board

of Contract Appeals (ASBCA). Chairman,

Armed Services Board of Contract Appeals,

Skyline Six Rm 703, 5109 Leesburg Pike,

Falls Church, VA 22041–3208.

AP2.3.3. U.S. Central Command.

Commander-in-Chief, U.S. Central

Command, CCJ1/AG, MacDill Air Force Base,

FL 33608–7001.

AP2.3.4. U.S. European Command.

Commander-in-Chief, Headquarters, U.S.

European Command/ECJ1–AA(FOIA) Unit

30400 Box 1000, APO AE 09128–4209.

AP2.3.5. U.S. Southern Command.

Commander-in-Chief, U.S. Southern

Command, SCJ1–A, 3511 NW 91st Avenue,

Miami, FL 33172–1217.

AP2.3.6. U.S. Pacific Command.

Commander-in-Chief, U.S. Pacific Command,

USPACOM FOIA Coordinator (J042),

Administrative Support Division, Joint

Secretariat, Box 28, Camp H. M. Smith, HI

96861–5025.

AP2.3.7. U.S. Special Operations

Command. Commander-in-Chief, U.S.

Special Operations Command, Chief,

Command Information Management Branch,

ATTN: SOJ6–SI, 7701 Tampa Point Blvd.,

MacDill Air Force Base, FL 33621–5323.

AP2.3.8. U.S. Atlantic Command.

Commander-in-Chief, U.S. Atlantic

Command, Code J02P, Norfolk, VA 23511–

5100.

AP2.3.9. U.S. Space Command.

Commander-in-Chief, U.S. Space Command,

Command Records Manager/FOIA/PA

Officer, 150 Vandenberg Street, Suite 1105,

Peterson Air Force Base, CO 80914–5400.

AP2.3.10. U.S. Transportation Command.

Commander-in-Chief, U.S. Transportation

Command, ATTN: TCIM–F, 508 Scott Drive,

Scott Air Force Base, IL 62225–5357.

AP2.3.11. U.S. Strategic Command.

Commander-in-Chief, U.S. Strategic

Command, Attn: J0734, 901 SAC Blvd., Suite

1E5, Offutt Air Force Base, NE 68113–6073.

AP2.4. National Guard Bureau. FOIA

requests for National Guard Bureau records

may be sent to the Chief, National Guard

Bureau, ATTN: NGB–ADM, Room 2C363,

2500 Army Pentagon, Washington, DC

20310–2500.

AP2.5. Miscellaneous. If there is

uncertainty as to which DoD Component may

have the DoD record sought, the requester

may address a Freedom of Information

request to the Directorate for Freedom of

Information and Security Review, Room

2C757, 1155 Defense Pentagon, Washington,

DC 20301–1155.

BILLING CODE 5000–04–P
31190 Federal Register / Vol. 63, No. 109 / Monday, June 8, 1998 / Proposed Rules

Appendix C to Part 286–DD—Form 2086, ‘‘Record of Freedom of Information (FOI) Processing Cost’’
Federal Register / Vol. 63, No. 109 / Monday, June 8, 1998 / Proposed Rules 31191
31192 Federal Register / Vol. 63, No. 109 / Monday, June 8, 1998 / Proposed Rules

Appendix D to Part 286—DD Form 2086–1, ‘‘Record of Freedom of Information (FOI) Processing Cost for Technical

Data’’
Federal Register / Vol. 63, No. 109 / Monday, June 8, 1998 / Proposed Rules 31193
31194 Federal Register / Vol. 63, No. 109 / Monday, June 8, 1998 / Proposed Rules

Appendix E to Part 286—DD Form 2564, ‘‘Annual Report Freedom of Information Act’’
Federal Register / Vol. 63, No. 109 / Monday, June 8, 1998 / Proposed Rules 31195
31196 Federal Register / Vol. 63, No. 109 / Monday, June 8, 1998 / Proposed Rules

Appendix F to Part 286—DoD Freedom

of Information Act Program

Components

Office of the Secretary of Defense/Chairman

of the Joint Chiefs of Staff/Combatant

Commands, Defense Agencies, and the

DoD Field Activities

Department of the Army

Department of the Navy

Department of the Air Force

Defense Information Systems Agency

Defense Contract Audit Agency

Defense Intelligence Agency

Defense Security Service

Defense Logistics Agency

National Imagery and Mapping Agency

Defense Special Weapons Agency

National Security Agency

Office of the Inspector General, Department

of Defense

Defense Finance and Accounting Service

National Reconnaissance Office

Dated: May 22, 1998.

Patricia L. Toppings,

Alternate OSD Federal Register Liaison

Officer, Department of Defense.

[FR Doc. 98–14180 Filed 6–5–98; 8:45 am]

BILLING CODE 5000–04–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[SIPTRAX NO. PA110–4068b; FRL–6102–8]

Approval and Promulgation of Air

Quality Implementation Plans;

Pennsylvania; Gasoline Volatility

Requirements for the Pittsburgh—

Beaver Valley Ozone Nonattainment

Area

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA proposes to approve the

State Implementation Plan (SIP)

revision submitted by the State of

Pennsylvania for the purpose of

establishing low Reid vapor pressure

(RVP) gasoline volatility requirements

for the Pittsburgh-Beaver Valley ozone

nonattainment area. In the Final Rules

section of this Federal Register, EPA is

approving the State’s SIP revision as a

direct final rule without prior proposal

because the Agency views this as a

noncontroversial SIP revision and

anticipates no adverse comments. A

detailed rationale for the approval is set

forth in the direct final rule and the

technical support document. If no

relevant adverse comments are received

in response to this proposed rule by the

deadline for comments, no further

activity is contemplated in relation to

this proposed rule. If EPA receives

relevant adverse comments, it will

publish a notice informing the public

that the direct final rule did not take

effect and EPA will address all public

comments received in a subsequent

final rule based on this proposed rule.

EPA will not institute a second

comment period on this action. Any

parties interested in commenting on this

action should do so at this time.

DATES: Comments must be received in

writing by July 8, 1998.

ADDRESSES: Written comments on this

action should be addressed to David

Arnold, Branch Chief, Ozone and

Mobile Source Section, Mailcode

3AP21, U.S. Environmental Protection

Agency, Region III, 841 Chestnut

Building, Philadelphia, Pennsylvania

19107. Copies of the documents relevant

to this action are available for public

inspection during normal business

hours at the Air Protection Division,

U.S. Environmental Protection Agency,

Region III, 841 Chestnut Building,

Philadelphia, Pennsylvania 19107;

Pennsylvania Department of

Environmental Resources Bureau of Air

Quality Control, P.O. Box 8468, 400

Market Street, Harrisburg, Pennsylvania

17105.

FOR FURTHER INFORMATION CONTACT:

Marcia L. Spink at (215) 566–2104.

SUPPLEMENTARY INFORMATION: See the

information provided in the Direct Final

Rule action pertaining to Gasoline

Volatility Requirements for the

Pittsburgh-Beaver Valley Ozone

Nonattainment Area with the same title,

which is located in the Rules and

Regulations Section of this Federal

Register.

Authority: 42 U.S.C. 7401 et seq.

Dated: May 15, 1998.

A.R. Morris,

Acting Regional Administrator, Region III.

[FR Doc. 98–15024 Filed 6–5–98; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[TN–184–1–(9812)b; TN–199–1–(9813)b;

FRL–6103–9]

Approval and Promulgation of

Implementation Plans Tennessee:

Approval of Revisions to the Knox

County Portion of the Tennessee SIP

Regarding Volatile Organic

Compounds (VOCs) and Process

Particulate Emissions

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing to approve

revisions to section 19.2 and section

46.2.A.34 of the Knox County portion of

the Tennessee State Implementation

Plan (SIP) which were submitted to EPA

through the Tennessee Department of

Air Pollution Control (TDAPC), on

December 24, 1996 and June 18, 1997.

Section 19.2 is revised to include

terminology which more clearly defines

the subject matter of this section:

process particulate emissions. Section

46.2.A.34 is revised to incorporate by

reference the definition for volatile

organic compounds (VOCs) contained in

40 CFR part 51, subpart F.

In the final rules section of this

Federal Register, the EPA is approving

the Knox County portion of the

Tennessee State Implementation Plan

(SIP) as a direct final rule without prior

proposal because the EPA views this as

a noncontroversial revision amendment

and anticipates no adverse comments. A

detailed rationale for the approval is set

forth in the direct final rule. If no

adverse comments are received in

response to this proposed rule, no

further activity is contemplated in

relation to this proposed rule. If EPA

receives adverse comments, the direct

final rule will be withdrawn and all

public comments received will be

addressed in a subsequent final rule

based on this proposed rule. The EPA

will not institute a second comment

period on this document. Any parties

interested in commenting on this

document should do so at this time.

DATES: To be considered, comments

must be received by July 8, 1998.

ADDRESSES: Written comments on this

action should be addressed to Allison

Humphris at the Environmental

Protection Agency, Region 4 Air

Planning Branch, 61 Forsyth Street, SW,

Atlanta, Georgia 30303. Copies of

documents relative to this action are

available for public inspection during

normal business hours at the following

locations. The interested persons

wanting to examine these documents

should make an appointment with the

appropriate office at least 24 hours

before the visiting day. Reference files

TN184–01–9812 and TN199–01–9813.

The Region 4 office may have additional

background documents not available at

the other locations.

Air and Radiation Docket and

Information Center (Air Docket 6102),

U.S. Environmental Protection

Agency, 401 M Street, SW,

Washington, DC 20460, telephone

(202) 260–7549.

Environmental Protection Agency,

Region 4 Air Planning Branch, 61

Forsyth Street, SW, Atlanta, Georgia