nity for oral presentation will normally not be provided, but may as a matter within the sole and exclusive prerogative of the component be extended where it is found to be in the interest of the DoD Component or the public. After careful consideration of all relevant matter presented, the component shall incorporate in the adopted regulation a concise general statement of its basis and purpose. A preamble to the adopted regulation may be published in the FEDERAL REGISTER to explain the relationship of the adopted rule to the proposed rule, including the nature and effect of public comments. § 296.5

Publication in the Federal Register of adopted regulations and other matters.

Subject to the exemptions set forth in 32 CFR 286.6:

(a) Each DoD Component shall publish in the FEDERAL REGISTER an informative, current description for the guidance of the public, of where, how, and by what authority it performs any of its functions. In deciding which information to publish in the FEDERAL REGISTER a DoD Component shall consider the fundamental objective of informing all interested persons of how to deal effectively with the component.

(b) Information to be published in the FEDERAL REGISTER Shall include:

(1) Descriptions of the central and field organization of the component concerned, and the established places at which, the employees or members of the armed forces from whom, and the methods whereby the public may secure information, make submittals or requests, or obtain decisions.

(2) The procedures by which a DoD Component conducts its business with the public, both formally and informally.

(3) The rules of procedure which must be followed, the description of forms which must be completed, or the source from which forms may be obtained, and instructions on the scope and content of papers, reports, examinations required to be submitted pursuant to such rules of procedures, as adopted by the component.

(4) Directives, instructions,, regulations, manuals, policy memoranda, statements of general policy, or interpretation of general applicability adopted by the agency, and other substantive rules of general applicability affecting the public.

(c) With the approval of the Director of the FEDERAL REGISTER, the requirement for publication in the FEDERAL REGISTER (1 CFR, Part 51, 37 FR 23614, Nov. 4, 1972) may be satisfied by reference in the FEDERAL REGISTER to other publications reasonably available to the class of persons affected and containing the information which must otherwise be published in the FEDERAL REGISTER.

(1) In order to be eligible for incorporation by reference, the matter must be in the nature of published data, criteria, standards, specifications, techniques, illustrations, or other published information reasonably available to members of class affected thereby.

(2) Incorporation by reference is not acceptable as a complete substitute for promulgating in full text material required to be published by 5 U.S.C. 552.

(3) Incorporation by reference is acceptable as a means of avoiding unnecessary repetition within the promulgated document of published information already reasonably available to the class affected. Examples include:

(i)

Construction standards promulgated by a professional association or architects, engineers, or builders.

(ii) Code of ethics promulgated by professional organizations.

(iii) Forms and formats publicly or privately published and readily available to the persons required to use them.

(d) It is incumbent upon each component to review all information of the type described in paragraph (b) of this section, to ensure that it is published on an up-to-date basis in the FEDERAL REGISTER, including every amendment revision, or repeal. No member of the general public can be required to resort to, or be adversely affected by, any material not published as required by the foregoing provisions of § 296.5 unless he has actual and timely notice of the content of that material.

the disposition, and the reason for the disposition, of any written petition for the issuance, amendment, or repeal of a regulation. The official responsibility for disposition of the petition may at his absolute discretion, grant the petitioner a right to appear for the purpose of supporting his petition if this is compatible with the orderly conduct of public business.

§ 296.7 Effective date and implementation.

This Part becomes effective on February 1, 1975, but is applicable only to the regulations promulgated under the authority of a component after April 1, 1975. Two copies of implementing regulations shall be forwarded to the General Counsel of the Department of Defense on or before April 1, 1975.

This Part implements the provisions of 32 CFR 286 pursuant to Title 5, United States Code, Section 552, as amended by P.L. 93-502, assigns responsibilities, and sets forth procedures for the effective administration of the Freedom of Information Program within the Office of the Secretary of Defense, including the Organization of the Joint Chiefs of Staff. § 297.2 Applicability and scope.

(a) The provisions of this Part apply to the Office of the Secretary of Defense (Director, Defense Research and Engineering, Assistant Secretaries of Defense, Assistants to the Secretary of Defense, or equivalent), the Organization of the Joint Chiefs of Staff, and other activities assigned to OSD for administrative support (hereinafter referred to collectively as "OSD Components").

(b) The provisions of this Part apply to the release of records to the general public and are not applicable to requests from Members of Congress, the General Accounting Office, and other Federal, State and local governmental organizations.

§ 297.3 Policy.

(a) It is the policy of the Department of Defense, consistent with the letter and spirit of Title 5, U.S.C., Section 552, the Freedom of Information Act, to make available to the public the maximum amount of information concerning its operations and activities.

(b) Unclassified information, documents and forms which have heretofore been provided to the public as part of normal service will continue to be made available in accordance with previously established criteria.

(c) Authority to deny an initial request for a record resides in the heads of OSD Components.

(d) Materials required by the Freedom of Information Act for public inspection will be maintained, published, and made available in a public reading room located in Room 2C757, the Pentagon.

(e) Fees will not be charged for access by the public to the public reading room or to the records provided for inspection therein, but fees in accordance with a schedule published in the FEDERAL REGISTER may be charged for furnishing copies.

§ 297.4 Responsibilities and functions.

(a) The Assistant Secretary of Defense (Public Affairs) shall: (1) Direct and administer the Department of Defense Freedom of Information Program for OSD Components.

(2) Establish standards and procedures to assure compliance with and implementation of Title 5, United States Code, Section 552, as amended by P.L. 93-502 and 32 CFR 286.

(3) Develop and submit the consolidated OSD Component Annual Report as required by Title 5, United States Code, Section 552, as amended by P.L. 93-502 and 32 CFR 286.

(4) Serve as the central contact office for the receipt of all requests for records from OSD Components.

(5) Forward requests for records from the public to the OSD Component having proprietary responsibility for the record, and maintain records control procedures that insure action within time limits es

tablished in Title 5, United States Code, Section 552, as amended by P.L. 93-502.

(6) Respond to requesters and collect for deposit with the Assistant Secretary of Defense (Comptroller) fees entailed in the search and reproduction of records.

(7) Establish a facility where the public may inspect and copy records as provided for in 32 CFR 286.

(8) Provide for educational programs on the requirements and implementation of the Freedom of Information Act.

(9) Evaluate and decide, in coordination with the General Counsel, appeals from denial of records by OSD Components.

(10) Maintain data on Freedom of Information activity in a format that meets the requirements of 32 CFR 286.15 and in a manner that affords rapid retrieval.

(b) The Assistant Secretary of Defense (Comptroller) shall. (1) Maintain, publish, and make available for public inspection current OSD Component indices of materials as required by Title 5, United States Code, Section 552, as amended by P.L. 93-502.

(2) Coordinate and arrange for information to be published in the FEDERAL REGISTER pursuant to Title 5, United States Code, Section 552, as amended by P.L. 93-502, 32 CFR 286 and 296.

(c) The General Counsel shall. (1) Coordinate, as appropriate, with the Department of Justice on all final denials of appeals for requests for records when litigation is likely.

(2) Provide advice and assistance to the ASD(PA) as may be required in the discharge of his appellate responsibilities.

(d) Heads of OSD Components shall. (1) Designate the official authorized to deny initial requests for records and designate an office as the point-of-contact for Freedom of Information matters.

(2) Provide to the ASD (PA), when the request for a record is granted, a copy of the record and a statement of search and reproduction charges.

(3) Provide to the ASD(PA), when a record is denied in whole or in part, the justification for denial.

(4) Provide to the ASD (C) quarterly updates of indices as required by 32 CFR 286.11.

(5) Coordinate with the Office of the General Counsel on all proposed denials of records.

(6) Consult with other OSD and DOD Components which have a significant interest in the requested record prior to a final determination. When consultation

with an agency outside DOD is appropriate because of their interest in the requested record, a procedure for effecting that consultation shall be developed in cooperation with the ASD (PA).

(7) Refer cases to the ASD (PA) for review and evaluation when the issues raised are of unusual significance, precedent setting, or otherwise require special attention or guidance.

(8) Provide the record to the ASD (PA), when the initial denial of such record has been appealed by the requester, or at the time of initial denial when appeal seems likely.

(9) Establish procedures to mark record copies and notify holders of classified records that have been declassified as a result of review under this program.

(10) Instruct employees, who act in Freedom of Information matters, in the provisions of this Part and 32 CFR 286. § 297.5 Procedures.

(a) General. A request for a record under the Freedom of Information Act may be denied only upon determining that:

(1) The record is subject to one or more of the exemptions set forth in 32 CFR 286.5, and a significant and legitimate governmental purpose is served by withholding.

(2) The record cannot be found because it has not been described with sufficient particularity to enable a responsible authority to locate it with a reasonable amount of effort.

(3) The requester has unreasonably failed to comply with the procedural requirements imposed by this Part.

(b) Instructions to a Requester. A request for a record from an OSD Component can be made in person or in writing.

(1) Indices of current records will be made available for public inspection in Room 2C757, the Pentagon, between 9 a.m. and 4 p.m., except weekends and Government holidays. Persons not authorized access to the Pentagon will be escorted to the public reading room and will not be permitted to visit other areas of the building.

(2) Copies of records which are listed in these indices will be provided upon payment of any search and copying fees. A copy of the standard schedule of fees previously published in the FEDERAL REGISTER Will be posted in the public reading room. Checks are payable to the Treasury of the United States.

(3) A written request for a record should be addressed to: Directorate for Freedom of Information, Office of the Assistant Secretary of Defense (Public Affairs), Room 2C757, Pentagon, Washington, D.C. 20301. The record should be described as completely as possible to facilitate its retrieval from the gross file of Defense Department records and to reduce search fees, which may be borne by requester.

(4) A requester will state his intention to pay fees that may be charged for search and reproduction of a record. Time spent to assure willingness to pay fees will be in addition to the time allotted to provide a record.

(5) A record will not be released prior to receipt of fees. Failure to pay fees may be cause not to accept a subsequent request for a record from the same person.

(6) Not more than ten working days after notification that a request has been accepted, normally the requester will be notified that his request has been granted or denied. In unusual circumstances, however, such notification may convey that additional time, not to exceed ten working days, is required to make a determination.

(7) Notification of denial will cite the exemption under which the request was denied, will detail the supporting reasons, will identify the denial authority, and will set forth the course of action to be followed for an administrative appeal.

(8) Administrative appeals of initial denials should be addressed to: Assistant Secretary of Defense (Public Affairs), ATTN: Freedom of Information Appeal Board, Pentagon, Washington, D.C. 20301. Such an appeal should offer justification for a reversal of the initial denial.

(9) Not more than twenty working days after notification that an administrative appeal has been accepted, normally the requester will be notified that his appeal has been sustained or denied. In unusual circumstances, however, such notification may convey that additional time, not used in an extension of time to respond to the initial request and not to exceed ten working days, is required to make a determination.

(10) Notification of a final denial will cite supporting reasons, will set forth a course of action that may be followed to seek judicial relief, and will be signed by the official exercising final denial authority.

(c) Instructions to OSD Components. The Directorate for Freedom of Information, Office of the Assistant Secretary of Defense (Public Affairs), hereinafter referred to as the Directorate, will be the office of record and point of contact for OSD Components in matters pertaining to the Freedom of Information Act.

(1) The Directorate will deliver a request for a record to the OSD Component having proprietary responsibility. Redirect without delay any request for a record that originates from a source other than the Directorate.

(2) A request for a record will be delivered to the office of contact, together with a letter of instruction and a cover sheet. The cover sheet, of distinctive design and overprinted with instructions vital to Freedom of Information requests, will not be separated from the request packet to which it is attached.

(3) A request for a record from the Directorate may not be declined, except, when proprietary responsibility is challenged, it may be returned by a memorandum signed by the denial authority which fixes the proprietary responsibility with a specific OSD Component or other agency of the government. A lack of specificity by the requester that suggests records of other components or agencies may also fit the broad category of the request, will not be sufficient cause to challenge proprietary responsibility.

(4) A suspense will be assigned to each request that must be met by either a decision to grant the request in whole or in part, a decision to deny, or by a petition from the denial authority stating the specific number of additional days required and the reason, provided such petition is made to the Directorate three working days prior to the suspense. Extension of time will be granted on a case by case basis depending upon the ability to justify "unusual circumstances," and will normally not exceed five working days.

(5) When a request is granted a copy of the record and a completed statement of fees will be delivered to the Directorate. When a copy of the record cannot be made available in the time allotted, a statement explaining the delay and establishing the date of its availability will accompany the statement of fees. In every case where a request for a record is granted, a statement of fees will be provided in the time allotted.

(6) When a request is denied in part, an excised copy of the record, a statement of fees, and a letter explaining the reasons for denial and summarizing the coordination/consultation history, will be delivered to the Directorate. When denial is based on classification in the interest of national defense or foreign policy, the explanation shall convey that a current review of the record supports continued classification according to the criteria and rationale of DoD Regulation 5200.1R' for specifically stated reasons that logically support those specific criteria and rationale in the context of the record. Letters of denial will be signed by the denial authority.

(7) When a record is denied in its entirety, all procedures set out in subparagraph (6) of this paragraph apply except, a statement of fees and a copy of the record are not provided.

(8) Cases referred to the Directorate in accordance with § 297.5 (d) (7), will be transmitted by memorandum establishing the unusual or precedent setting conditions. Unless notified to the contrary, Public Affairs review and evaluation action will not relieve the OSD Component of any responsibility to reach an initial decision in the time originally allotted. Public Affairs action will, however, be accomplished so as to provide timely recommendation and guidance.

(9) Components are urged to use the direct lines of communication that have been established by the formation of OSD Component offices to focus on Freedom of Information matters and the Directorate for Freedom of Information. Early in the time allotted, any problems associated with a request that contact with the requester or agencies outside the DoD might resolve, should be presented to the Staff Director, Directorate for Freedom of Information. Direct contact between OSD Components and requesters, or between OSD Components and agencies outside the DOD, is not authorized. § 297.6 Effective date.

This Part is effective February 19, 1975.

PART 298-FREEDOM OF INFORMATION PRACTICES

Purpose.

(a) The Defense Investigative Service was established on April 18, 1972, by Department of Defense (DoD) Directive 5105.42 (38 FR 7131, March 16, 1973) and became operational on October 1, 1972. DIS is a separate operating agency within the DoD, under control of the Secretary of Defense with staff supervision provided by the Assistant Secretary of Defense (Comptroller).

(b) The mission of DIS is to provide the Department of Defense (and, when authorized by the Secretary of Defense, other U.S. Government activities), with a single centrally directed personnel security investigative service. DIS also conducts criminal investigations and crime prevention surveys, and participates in joint investigative task force operations, in support of the Defense Supply Agency (DSA). Finally, it conducts such special investigations as the Secretary of Defense may direct. DIS operates the Defense Central Index of Investigations (DCII), a consolidated index of investigations conducted by all components of the DoD, and the DoD National Agency Check Center (NACC).

Sec.

298.1

298.2

DIS mission.

§ 298.3 DIS organization.

DIS organization includes a headquarters located in Washington, DC, as well as 20 district offices and over 200 subordinate operating locations throughout Continental United States (CONUS), Alaska, Hawaii, and Puerto Rico. A copy of the DIS Regulation 01-13,1 "DIS Malling List," showing addresses of all offices is available to the public upon request and may be obtained from the DIS Public Information Officer, Defense Investigative Service (DO102), Washington, DC 20314.

1 Filed as part of original.