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Daily Rules, Proposed Rules, and Notices of the Federal Government

Defense Logistics Agency

Office of the Secretary

32 CFR Part 1285

[Docket ID: DOD-2012-OS-0019]

RIN 0790-AI87

Defense Logistics Agency Freedom of Information Act Program

AGENCY: Defense Logistics Agency, DoD.
ACTION: Proposed rule.
SUMMARY: The Defense Logistics Agency (DLA) proposes to revise and update its existing rule concerning the DLA Freedom of Information Act (FOIA) Program. This rule implements changes to conform to the requirements of the Electronic Freedom of Information Act Amendments of 1996, Public Law 104-231, and the OPEN Government Act of 2007, Public Law 110-175. In addition, part 1285 will be redesignated as part 300.
DATES: Submit comments on or before December 14, 2012.
ADDRESSES: * Federal Rulemaking Portal:http://www.regulations.gov.Follow the instructions for submitting comments.

* Mail: Federal Docket management System Office, 4800 Mark Center Drive, East Tower, Suite 02G09, Alexandria, VA 22350-3100.

Instructions:All submissions received must include the agency name and docket number or Regulatory Information Number (RIN) for thisFederal Registerdocument. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet athttp://www.regulations.govas they are received without change, including any personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Ms. Deborah Teer, (703) 767-5247 orDeborah.teer@dla.mil.
SUPPLEMENTARY INFORMATION:

This rule supplements 32 CFR part 286 to accommodate specific requirements of the DLA FOIA Program.

Executive Summary I. Purpose of This Regulatory Action

a. This rule assigns responsibilities and establishes policies and procedures for a uniform DLA Freedom of Information Act program pursuant to the provisions of the Freedom of Information Act.

b. Authority: 5 U.S.C. 552.

II. Summary of the Major Provisions of This Regulatory Action

This rule implements changes to conform to the requirements of the Electronic Freedom of Information Act Amendments of 1996, Public Law 104-231, and the OPEN Government Act of 2007, Public Law 110-175.

III. Costs and Benefits of this Regulatory Action

This regulatory action imposes no monetary costs to the Agency or public. The benefit to the public is the accurate reflection of the Agency's FOIA Program to ensure that policies and procedures are known to the public.

Regulatory Procedures Executive Order 12866, “Regulatory Planning and Review” and Executive Order 13563, “Improving Regulation and Regulatory Review”

It has been certified that 32 CFR part 300 does not: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a sector of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency; (3) Materially alter the budgetary impact of entitlements,grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in these Executive orders.

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

It has been determined that 32 CFR part 300 is not subject to the Regulatory Flexibility Act because it would not, if promulgated, have significant economic impact on a substantial number of small entities.

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

It has been determined that 32 CFR part 300 does not impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995.

Public Law 104-4, Unfunded Mandates Reform Act of 1995

It has been certified that 32 CFR part 300 does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995.

Executive Order 13132, Federalism

It has been certified that 32 CFR part 300 does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132.

Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks

32 CFR part 300 is not subject to Executive Order 13045.

List of Subjects in 32 CFR Parts 300 and 1285 Freedom of Information Act.

For the reasons stated in the preamble, DLA proposes to redesignate 32 CFR part 1285 as part 300 and revise it to read as follows:

TITLE 32—NATIONAL DEFENSE CHAPTER XII—DEFENSE LOGISTICS AGENCY PART 300DEFENSE LOGISTICS AGENCY FREEDOM OF INFORMATION ACT PROGRAM— Subpart A—General Provisions Sec. 300.1 Purpose 300.2 DLA FOIA regulatory precedence 300.3 Definitions 300.4 Policy Subpart B—Exemptions Sec. 300.5 General Subpart C—FOIA Request Processing Sec. 300.6 General 300.7 FOIA request processing procedures 300.8 Initial determinations 300.9 Appeals 300.10 Judicial actions Subpart D—Fees and Fee Waivers Sec. 300.11 General

Appendix A to Part 300—Access to DLA Records

Authority:

5 U.S.C. 552.

Subpart A—General Provisions
§ 300.1 Purpose.

This part provides policies and procedures for the Defense Logistics Agency (DLA) implementation of the Freedom of Information Act (FOIA) (5 U.S.C. 552). This part supplements and implements the Department of Defense (DOD) FOIA Program Regulation (Refer to 32 CFR part 286 (http://www.gpoaccess.gov/cfr/index.html) and the DOD FOIA Program (http://www.dod.mil/pubs/foi/dfoipo/). This part applies to DLA Components and takes precedence over all DLA regulations that supplement the FOIA program.

§ 300.2 DLA FOIA regulatory precedence.

This part is published in accordance with the authority contained in 5 U.S.C. 552 and 32 CFR parts 285 and 286. It supplements 32 CFR part 286 to accommodate specific requirements of the DLA FOIA Program. For all FOIA issues not covered by this part, the rules set forth in 32 CFR part 286 will govern.

§ 300.3 Definitions.

The following terms and meanings apply for the purposes of this part:

(a)Administrative Appeal.A written request by a member of the public, made under the FOIA, to DLA's Appellate Authority requesting reversal of an adverse determination.

(b)Adverse Determination.Adverse determinations may include decisions that: Withhold all or part of a requested record; deny a fee category claim by a requester; deny a request for waiver or reduction of fees; deny requesters challenge of fee estimates; denies a request for expedited processing; state that no records were located; or what the requester believes is adverse in nature.

(c)Appellate Authority.The General Counsel, DLA, who upon receipt of an administrative appeal, reviews an initial determination and may uphold, reverse or amend any adverse determination.

(d)Consultation.The process whereby a document is sent to another DLA or DOD Component or Federal agency to obtain recommendations on the releasability of the document and is returned to the originator for further action.

(e)Defense Freedom of Information Program Office (DFOIPO).The office responsible for the formulation and implementation of DOD policy guidance for FOIA. For information about DFOIPO refer tohttp://www.dod.mil/pubs/foi/dfoipo/.

(f)Direct Costs.Expenditures made in searching for, reviewing, and duplicating documents in response to a FOIA request. Direct costs include, for example, the salary of the employee performing the work (the basic rate of pay plus 16 percent of that rate to cover benefits) and the costs of operating duplicating machinery. Not included in direct costs are overhead expenses such as the cost of space, heating, or lighting the facility in which the records are stored.

(1)Search.This term includes all time spent looking, both manually and electronically, for records that are responsive to a FOIA request, such as: (1) Searching for responsive emails or electronic documents located on individually-assigned computers or servers; (2) time taken by a programmer to create a program to run a requested report from a database; or (3) searching through hardcopy files to include records stored at a Federal Records Center. The term “search” also includes a page-by-page and line-by-line identification of a record to determine if it, or portions, are responsive to the request.

(2)Duplication.The process of making a copy of a document in response to a FOIA request. Copies can take the form of paper, microfiche, audiovisual or machine-readable documentation (e.g., magnetic tape or compact disc), among others. Personnel time spent performing tasks to enable a computer system to output information in a particular digital form or format for a requester is considered search time, as calculated in the DoD FOIA Program Manual (DoD 5400-07-M).

(3)Review.The examination of documents located in response to a FOIA request to determine withholding. Review also includes the time taken to redact documents, preparing them for release. Review does not include the time spent resolving general legal or policy issues regarding the application of exemptions.

(g)DLA Component.DLA Components consist of Headquarters Organizations, Primary Level Field Activities, Defense Business Services, Regional Commands, and other Organizational entities. A description of DLA Components can be found atwww.dla.mil.

(h)Electronic Records.Records (including email) created, stored, and retrieved by electronic means.

(i)Federal Agency.This term is defined at 5 U.S.C. 551(1) and 5 U.S.C. 552(f)(1).

(j)FOIA Officer.DLA employee who is responsible for processing FOIA requests and is a point of contact for the FOIA program. The FOIA Officer grants or denies requests for fee waivers or expedited processing and makes requester category determinations.

(k)FOIA Public Liaison.The member of the DLA Headquarters FOIA staff to whom a FOIA requester can raise concerns about the service the requester received from a DLA FOIA Requester Service Center.

(l)FOIA Request.A written request for DLA records that reasonably describes the record(s) sought; indicates a willingness to pay processing fees, asks for their statutory entitlement (if applicable), or requests a fee waiver; includes a postal mailing address, and contact information. A FOIA request meeting these conditions, arriving at the DLA FOIA Requester Service Center in possession of the requested records, is considered perfected or properly received at which time the statutory time limit for response begins. Written requests may be received by postal service or other commercial delivery means, by facsimile, or electronically.

(m)DLA FOIA Requester Service Center.The DLA Office authorized to receive and process FOIA requests and where a FOIA requester can gain information concerning the DLA FOIA Program, the status of the person's FOIA request, or information about the agency's FOIA response. Refer to Appendix A of this part for locations of FOIA Requester Service Centers or for additional information refer to DLA's public web site atwww.dla.mil/FOIA-Privacy.

(n)Initial Denial Authority (IDA).By this regulation, the Director, DLA, delegates to Heads of DLA Components the authority to withhold information requested under the FOIA pursuant to one or more of the nine FOIA exemptions and to confirm that no records were located in response to a request. The designation of IDA may be further delegated by the Heads of DLA Components to their Deputies. IDA's may also deny a fee category claim by a requester, deny a request for expedited processing, deny a request for a waiver or reduction of fees, or review a fee estimate, although these determinations are usually made by the FOIA Officer.

(o)Referral.The process of transferring records found in response to a FOIA request to another DLA or DOD Component, or any Federal agency for review and direct response to the requester. This process is used when documents located during a search are found to have originated with another DLA or DOD Component, or Federal agency.

§ 300.4 Policy.

DLA adopts and supplements the DOD FOIA Program policy and procedures codified at 32 CFR part 286, Subpart A, General Provisions and Subpart B, FOIA Reading Rooms and 32 CFR part 285.

(a)General.The public has a right to information concerning the activities of its Government. DLA policy is to conduct its activities in an open manner and to provide the public maximum accurate and timely information concerning DLA activities, balanced with the need for security, public and private interests of the American people, and adherence to other requirements of law and regulation. A DLA record, requested by a member of the public who follows the DLA established procedures, 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, DLA 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. Records requested through public affairs channels by news media representatives, that would not be withheld if requested under the FOIA, should be released promptly upon request. Similarly, requests from other members of the public for information that would not be withheld under the FOIA should continue to be provided through appropriate means without requiring the requester to invoke the FOIA.

(b)Customer Service.Executive Order 13392, Improving Agency disclosure of Information, December 14, 2005, requires agencies to emphasize a new citizen-centered approach to the FOIA that is results-oriented. Because FOIA requesters are seeking a service from the Federal Government, all DLA Components shall respond courteously and professionally to FOIA requesters. Additionally, the Components shall provide the public with information about agency records that are already publicly available, as well as information about the status of a person's FOIA request and an estimated date on which the DLA Component will complete the request. Refer to Appendix A for DLA FOIA Requester Service Center contact information.

(1) To meet the requirements of Executive Order 13392, each FOIA Requester Service Center shall have an internet Web site that serves to educate the public on the FOIA process. At a minimum, each Web site shall have the address, telephone number, facsimile number, and electronic mail address to which FOIA requests can be sent; a link to DOD's FOIA handbook; the name and contact information of the DLA FOIA Officer and Public Liaison; and information on how a requester can obtain the status of a request. Additionally, each FOIA Requester Service Center Web site will have links to the DLA Headquarters FOIA/Privacy Web site reading room.

(c)Creating a Record.(1) A record must exist and be in the possession and control of DLA at the time the search begins to be considered subject to this part and the FOIA.

(2) With regards to electronic data, the issue of whether records are actually created or merely retrieved from an existing database is not always readily apparent. Consequently, when processing FOIA requests for electronic data, if the DLA Component has the capability to respond to the request, and the effort is reasonable and would be a business as usual approach, then the request should be processed. FOIA requests for electronic data will not be processed when:

(i) Processing a request would cause a significant interference with the operation of the DLA Component's automated system, require a significant amount of programming effort or require extensive complex programming to merge files of disparate data formats.

(ii) Creating computer programs and/or purchasing additional hardware (i.e., to extract electronic mail that has been archived) is needed.

(d)Consultations and Referrals.The rules published in part 32 CFR part 286, Subpart A, 286.4(i) and 286.22(e), Policy, apply to this rule (seewww.access.gpo.gov/nara/cfr/cfr-table-search.html#page1).

(e)Forms.This part authorizes the use of forms developed by DoD and DLA for the express use of the FOIA Program.Refer to www.dla.milfor a list of all forms prescribed by this part.

Subpart B—Exemptions
§ 300.5 General.

Refer to the DOD FOIA Program regulations codified at 32 CFR part 286, Subpart C, Exemptions.

Subpart C—FOIA Request Processing
§ 300.6 General.

DLA adopts and supplements the DOD FOIA Program regulations codified at 32 CFR part 286, Subpart E, Release and Processing Procedures.

(a)Requests from the public.(1) Individuals seeking DLA information should address their FOIA requests to one of the FOIA Requester Service Center addresses listed in Appendix A.

(2) When personally identifying information in a record is requested by the subject of the record or the subject's representative, and the information is contained within a Privacy Act system of records, the request will be processed under both the FOIA and the Privacy Act. DLA Components must comply with the provisions of DOD 5400.11-R, C3.1.3 to confirm the identity of the requester (http://www.privacy.defense.gov/files/540011r.pdf).

§ 300.7 FOIA request processing procedures.

(a)Receipt and Control.Requests received after 5:00 p.m. EST will be considered received the following business day. Upon receipt of a request for records, the FOIA Officer must:

(1) Open a file in the DLA specified control system designed to ensure accountability and compliance with the FOIA. The control system will include the data elements needed to compile the statistics required in the annual Department of Justice FOIA report or other reports required by another authority. Each request shall automatically be assigned a unique tracking number.

(2) Screen the request for defects in the description, the requester category, the fee declaration, and full postal address. If the request is not perfected, the request is placed on hold and the FOIA Officer will notify requesters of any such defects and provide assistance to help remedy the defects. When a DLA FOIA Requester Service Center receives a request for records that clearly belong to an agency outside of DOD, the requester shall be told these are not agency records and, if possible, provide the name of the agency that may hold the records. No referral of the request is made outside of DOD.

(3) Once a request is perfected, DLA may make one request for additional information unrelated to fees and toll the 20 working-day period while awaiting the information. Tolling the 20 working-day period is not limited for fee related issues.

(4) DLA uses the date-of-search cut-off to ensure that as many records as possible will be captured by the agency's search. A FOIA request may not be on-going or open-ended in nature. DLA Components are responsible for providing records in possession and control of DLA at the time the search for records begins. DLA Components are not required to expend DLA funds to establish data links that provide real-time or near-real-time data to a FOIA requester.

(b) Multi-track processing. DLA components shall process requests according to their order of receipt. A DLA component uses three processing tracks by distinguishing between simple, complex, and expedited requests based on the need to search from multiple directorates/locations; the need to search for and review a voluminous amount of records; and/or the need to consult with other DLA or DoD Components. Requesters are notified in the acknowledgement letter of the track the request is placed in. Requests placed in the simple track can reasonably expect that their request will be completed within the statutory time limit for responding to requests. Requesters placed in the complex track may be given an opportunity to narrow or modify the scope of their request in order to qualify for faster processing within the specified limits of DLA's simple track. Expedited processing must be requested and a requester who seeks expedited processing must submit a statement, certified to be true and correct to the best of that person's knowledge and belief, explaining in detail the basis for requesting expedited processing. Within ten calendar days of its receipt of a request for expedited processing, the proper component shall decide whether to grant expedited processing and shall notify the requester of the decision. If a request for expedited processing is granted, the request shall be given priority and processed as soon as practicable. If a request for expedited processing is denied, any appeal of that decision shall be acted on expeditiously. Refer to the DoD FOIA Handbook for information on multi-track processing (http://www.dod.mil/pubs/foi/dfoipo/foiaHandbook.html#long.

(c)Payments in Arrears.Where a requester has previously failed to pay a fee charged within 30 calendar days, DLA may require the requester to pay the full amount owed, plus any applicable interest, before beginning to process a new or pending request from the requester (see OMB Fee Guidelines, 52 FR at 10012 (http://www.dod.gov/pubs/foi/dfoipo/docs/OMBGuidelines_FOIAFees.pdf)).Interest will be at the rate prescribed in 31 U.S.C. 3717, and confirmed with the servicing Financial Operations Office.

(d)Misdirected requests.Misdirected requests shall be forwarded promptly to the FOIA Office of the DLA or DOD Component with the responsibility for the records requested within 10 working days. A misdirected request is a request received by one of DLA or DoD FOIA Offices but is actually seeking records maintained by another DLA or DoD Component. The receiving FOIA Office shall route the request to the proper DLA or DoD FOIA Office and the response time will commence on the date that the request is received by the proper FOIA Office, but not later than ten working days after the request is first received by any DLA or DoD FOIA Office. FOIA requests are not forwarded outside of DOD.

§ 300.8 Initial determinations.

(a) The initial determination is whether to make a record available in response to a FOIA request. A full release may be made by an official knowledgeable of the record, with authority to determine that no harm would come from release. Adverse determinations (refer to § 300.3 (b)) must be made by the designated Initial Denial Authority (IDA). By this regulation, the Director, DLA, delegates to Heads of DLA Components (see § 300.3 (h)) the designation of IDA. The designation of IDA may be further delegated by the Heads of DLA Components to their Deputies. The IDA shall review all recommendations for withholding information and whether the criteria for withholding under one or more FOIA exemptions are met. DLA has IDAs throughout the agency; and each IDA will make the determination for records within their area of functional responsibility. If a request involves records from more than one functional area, consultation will be done with all responsible IDAs but will be signed by the IDA assigned the primary responsibility for processing the request.

(b) The FOIA requires that any reasonably segregable portion of a record must be released after appropriate application of the Act's nine exemptions. Segregation is not reasonable when it would produce an essentially meaningless set of words and phrases, or even sentences which taken separately or together have minimal or no information content.

§ 300.9 Appeals.

(a) An appeal can be made as a result of an initial determination that is considered by the requester to be an adverse determination (see 300.3 (b)).

(b) An appeal must be made in writing to DLA's Appellate Authority and must be postmarked within 30 calendar days from the date of the initial determination letter. The General Counsel serves as DLA's appellate authority. The appeal should include reasons for reconsideration and a copy of the initial determination letter. An appeal may be mailed, emailed tohq-foia@dla.mil,or faxed to 703-767-6091. Appeals are to be addressed to the General Counsel, Defense Logistics Agency, ATTN: DGA, Suite 1644, 8725 John J. Kingman Road, Fort Belvoir, Virginia 22060-6221.

§ 300.10 Judicial actions.

DLA adopts the DOD FOIA Program regulations codified at 32 CFR part 286, Subpart E, Release and Processing Procedures.

Subpart D—Fees and Fee Waivers
§ 300.11 General.

DLA adopts the rules and rates published in 32 CFR part 286, Subpart F, Fee Schedule. In addition, DLA considers fees charged by a Federal Records Center to retrieve and re-file records a part of the direct costs charged to requesters.

APPENDIX A TO PART 300—GAINING ACCESS TO DLA RECORDS

(a) General.

(1) The Defense Logistics Agency, established pursuant to authority vested in the Secretary of Defense, is an agency of DOD under the direction, authority, and control of the Assistant Secretary of Defense for Logistics and Materiel Readiness, and is subject to DOD policies, directives, and instructions.

(2) DLA is comprised of several Components and each DLA Component is responsible for maintaining its own records; therefore, FOIA requests should be addressed to the FOIA Requester Service Center that has custody of the record desired. (See (c) below.) DLA FOIA Officers will assist requesters in determining the correct DLA Requester Service Center to address requests. (See paragraph (c) of this appendix and DLA's public Web site atwww.dla.mil.)

(3) On the DLA public Web site is an index to assist in locating DLA records by category, organization, keyword search, or by contract prefix. The index is titled “Index of Information at DLA FOIA Service Centers” atwww.dla.mil/FOIA-Privacy/servindex/pages/category.aspx.

(b) Requester Requirements.

(1) Requesters are responsible for submitting a perfected request as defined in 300.3(m), FOIA Request.

(2) Addressing Requests.

Address requests to the DLA FOIA Requester Service Center most likely to hold the records (see paragraph (c) of this appendix for mailing addresses of DLA FOIA Offices designated to receive FOIA requests). If the DLA FOIA Requester Service Center is undeterminable, address requests to DLA Headquarters FOIA Office for proper routing.

(3) Availability of DLA Publications.

Many unrestricted DLA regulations, manuals, and handbooks are available online. Visit the DLA FOIA/Privacy Web site for more information athttp://www.dla.mil/foia-privacy/.

(c) Locations of DLA FOIA Requester Service Centers.

Refer to the FOIA/Privacy Web page athttp://www.dla.mil/FOIA-Privacy/pages/foiapocs.aspxfor current points of contact at each of the DLA FOIA Requester Service Centers.

Defense Logistics Agency Headquarters, ATTN: DGA, 8725 John J. Kingman Rd., Ste 1644, Fort Belvoir, VA 22060-6221—Responsible for broad functional areas, such as Office of the Director, General Counsel, Small Business Programs, DLA Office of Inspector General, Legislative Affairs, Equal Employment Opportunity Office, Installation Support, Human Resources, Logistics Operations, Information Operations, Acquisition, and Financial Operations. This FOIA Requester Service Center also processes FOIA requests for the following locations:

○ DLA Transaction Service, Wright-Patterson AFB, Ohio—Editing/routing of logistics transactions, network interoperability and eBusiness services.

○ DLA Strategic Materials, Fort Belvoir, Va.—Manages the strategic and critical raw material stockpile that supports national defense needs.

○ DLA Europe & Africa, Kaiserslautern, Germany—Focal point for U.S. European Command's and U.S. Africa Command's theater of operations.

○ DLA Pacific, Camp Smith, Hawaii—Focal point for U.S. Pacific Command's theater of operations.

○ DLA Central, MacDill AFB, Fla.—Focal point for U.S. Central Command's theater of operations.

DLA Energy, 8725 John J. Kingman Rd., Ste 3729, Fort Belvoir, VA 22060-6222—Fuel, energy support and services, and bulk petroleum.

DLA Land and Maritime, ATTN: GC, 3990 E. Broad Street, Columbus, OH 43218-3990—Maritime and land weapons system supply chains.

DLA Aviation, 8000 Jefferson Davis Highway, Richmond, VA 23297-5000—Aviation supply chain.

DLA Troop Support, 700 Robbins Avenue, Bldg 36, Philadelphia, PA 19111-5096—Subsistence, clothing, and textiles, medical, and construction and equipment supply chains.

DLA Distribution, ATTN: DDC-GC, Mission Drive, Bldg 81, New Cumberland, PA 17070-5000—Worldwide network of 25 distribution depots and nine map support offices.

DLA Disposition Services and DLA Logistics Information Service, 74 Washington Avenue North, Battle Creek, MI 49017-3084.

○ Disposition Services: Reutilization, transfer, demilitarization, and environmental disposal and reuse.

○ Logistics Information Service: Manages a wide range of logistics information and identification systems.

DLA Document Services, 5450 Carlisle Pike, Bldg 9, P.O. Box 2020, Mechanicsburg, PA 17055-0788—Automated document production, printing services, digital conversion and document storage.

Dated: September 24, 2012. Patricia L. Toppings, OSD Federal Register Liaison Officer, Department of Defense.