30 September 1998
Source: http://www.access.gpo.gov/su_docs/aces/aaces002.html

    [Federal Register: September 30, 1998 (Volume 63, Number 189)]
    [Proposed Rules]
    [Page 52208-52213]
    From the Federal Register Online via GPO Access [wais.access.gpo.gov]
    [DOCID:fr30se98-30]

    [[Page 52208]]

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    DEPARTMENT OF DEFENSE

    Office of the Secretary

    32 CFR Part 299

    [RIN 0790-AG59]

    Freedom of Information Act Program

    AGENCY: National Security Agency/Central Security Service, Defense.

    ACTION: Proposed rule.

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    SUMMARY: This rule proposes to revise the National Security Agency/
    Central Security Services (NSA/CSS) regulation governing disclosure of
    information under the Freedom of Information Reform Act of 1986 (Pub.
    L. 99-570). As a component of the Department of Defense, the
    Departmental rules and schedules with respect to the Freedom of
    Information Reform Act will also be the policy of the NSA/CSS. The
    effect of the proposed rule is to conform to the requirements of the
    Electronic Freedom of Information Act Amendments of 1996, 5 U.S.C. 552,
    as amended by Public Law 104-231. It also incorporates guidance
    provided by the Department of Defense on implementation of this amended
    law.

    DATES: Comments must be submitted by November 30, 1998.

    ADDRESSES: Send comments to: Susan A. Arnold, Assistant General Counsel
    (Civil Litigation and Administrative Law) Office of General Counsel,
    National Security Agency, Fort George G. Meade, Maryland 20755-6250.

    FOR FURTHER INFORMATION CONTACT:
    Barbara Paisley, FOIA Office, National Security Agency. (301) 688-6527.

    SUPPLEMENTARY INFORMATION: This rule does not constitute a major rule
    within the meaning of Executive Order 12866. Neither the requirements
    of the Regulatory Flexibility Act, 5 U.S.C. 605(b), nor the reporting
    or recordkeeping requirements under the Paperwork Reduction Act of 1995
    (Pub. L. 104-13) apply. It is hereby certified that this proposed rule
    does not exert a significant economic impact on a significant number of
    small entities. This determination is made based upon the fact that the
    rule merely updates the procedural aspects of the NSA/CSS Freedom of
    Information Act Program, which include guidance on how and from whom to
    request information pertaining to the NSA/CSS; imposes no new
    requirements, rights, or benefits on small entities; will have neither
    a beneficial nor an adverse affect on small entities, and is not a
    major rule under the Regulatory Flexibility Act.

    List of Subjects in 32 CFR Part 299

        Freedom of information.

        According, title 32, chapter I, part 299 is revised to read as
    follows:

    PART 299--NSA/CSS FREEDOM OF INFORMATION ACT PROGRAM

    Sec.
    299.1  Purpose and applicability.
    299.2  Definitions
    299.3  Policy
    299.4  Responsibilities.
    299.5  Procedures.
    299.6  Fees.
    299.7  Exempt records.

        Authority: 5 U.S.C. 552.

    Sec. 299.1  Purpose and applicability.

        (a) This part implements 5 U.S.C. 552, as amended, and DoD 5400.7-
    4R \1\ assigns responsibility for responding to written requests made
    pursuant to 5 U.S.C. 552; and provides for the review required to
    determine the appropriateness of classification pursuant to DoD 5200.1-
    R \2\
    ---------------------------------------------------------------------------

        \1\ Copies may be obtained, at cost, from the National Technical
    Information Service, 5285 Port Royal Road, Springfield, VA 22161.
        \2\ See footnote 1 to this section.
    ---------------------------------------------------------------------------

        (b) This part applies to all NSA/CSS elements, field activities and
    personnel, and governs the release or denial of any information under
    the terms of the Freedom of Information Act (FOIA).

    Sec. 299.2  Definitions.

        Terms used in this part, with the exception of the terms in
    Sec. 299.4, are defined in DoD 5400.7-R. For ease of reference,
    however, some terms are defined in this section.
        (a) FOIA request. (1) A written request for NSA/CSS records, that
    reasonably describes the records sought, made by any person, including
    a member of the public (U.S. or foreign citizen/entity), an
    organization or a business, but not including a Federal Agency or a
    fugitive from the law that either explicitly or implicitly invokes
    invokes 5 U.S.C. 552, as amended, D0D 5400.7-R, or NSA/CSS Freedom of
    Information Act Program, within the National Security Agency/Central
    Security Service. Requesters should also indicate a willingness to pay
    fees associated with the processing of their request or, in the
    alternative, why a wavier of fee may be appropriate.
        (2) An FOIA request may be submitted by U.S. mail or its
    equivalent, by facsimile or electronically through the NSA FOIA Home
    Page on the World Wide Web (WWW) once the development of a Web-based
    procedure for submitting FOIA requests is completed. The Web-based
    system will consist of a form to be completed by the requester,
    requiring name and postal mailing address. The WWW address is http://
    www.nsa.gov:8080/docs/efoia/.
        (3) When a request meeting the requirements stated in this section
    is received by the FOIA office and there is no remaining question about
    fees, that request is considered perfected.
        (b) Privacy Act (PA) request. A request submitted by a U.S. citizen
    or an alien admitted for permanent residence for access to records on
    himself/herself which are contained in a PA system of records and/or
    seeking an amendment to his/her records. For purposes of this part, PA
    request refers to a request for copies of records. Regardless of
    whether the requester cites the FOIA, PA or neither law, the request
    will be processed under both this part and NSA/CSS Regulation 10-35,
    Implementation of the Privacy Act of 1974.\3\
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        \3\ Copies may be obtained through a FOIA request to the
    National Security Agency, Ft. George G. Meade, MD 20755-6000.
    ---------------------------------------------------------------------------

        (c) Agency records. Products of data compilation, such as all
    books, papers, maps, and photographs, machine readable materials,
    including those in electronic form or format (including e-mails), 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 NSA/CSS's possession and control at the time the
    FOIA request is made. The term ``records'' does not include:
        (1) Objects or articles such as structures, furniture, vehicles and
    equipment, whatever their historical value or value as evidence;
        (2) Intangible records such as an individual's memory or oral
    communication; and
        (3) 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.
        (4) A record must exist an be in the possession and control of the
    NSA/CSS at the time of the request to be subject to this part. There is
    no obligation to create or compile a record or obtain a record not in
    the possession of the NSA/CSS to satisfy an FOIA request. The NSA/CSS
    may compile or create a new record when doing so would be less
    burdensome to the Agency than providing existing records and the
    requester does not object.
        (5) Hard copy or electronic records that are subject to FOIA
    requests under

    [[Page 52209]]

    5 U.S.C. 552(a)(3) and are available through an established
    distribution system or the Internet, normally need not be processed
    under the FOIA. The Agency will provide guidance to the requester on
    how to obtain the material outside of the FOIA process. If the
    requester insists that the request be processed under the FOIA, then it
    shall be so processed.
    Sec. 299.3  Policy.

        (a) Pursuant to written requests submitted in accordance with the
    FOIA, the NSA/CSS will make records available to the public consistent
    with the Act and the need to protect government interests pursuant to
    subsection (b) of the Act. Oral requests for information will not be
    accepted. Before the Agency responds to a request, the request must
    comply with the provisions of this part.
        (b) Requests for electronic records shall be processed and the
    records retrieved whenever retrieval can be achieved through reasonable
    efforts (in terms of both time and manpower) and these efforts would
    not significantly interfere with the operation of an automated
    information system. Reasonable efforts shall be undertaken to maintain
    records in forms or formats that render electronic records readily
    reproducible.
        (c) The NSA/CSS does not originate final orders, opinions,
    statements of policy, interpretations, staff manuals, or instructions
    that affect members of the pubic of the type generally covered by the
    indexing requirement of 5 U.S.C. 552. Therefore it has been determined,
    pursuant to the pertinent statutory and executive order requirements,
    that it is unnecessary and impracticable to publish an index of the
    type required by 5 U.S.C. 552. However, should such material be
    identified, it will be indexed and placed in the library at the
    Crypotolgic History Museum, which serves as the NSA/CSS FOIA reading
    room, and made available through the Internet. Copies of records which
    have been released under the FOIA and which NSA/CSS has determined are
    likely to become the subject of subsequent requests will be placed in
    the library of the Cryptologic History Museum. In addition, these
    records will be made available to the pubic through the Internet. An
    index of this material will be available in hard copy in the museum
    library and on the Internet.

    Sec. 299.4  Responsibilities.

        (a) The Deputy Director for Plans, Policy and Programs (DDP) is
    responsible for responding to FOIA requests and for collecting fees
    from FOIA requesters.
        (b) The Director of Policy (N5) is the NSA/CSS focal point for
    responding to FOIA requests. The Deputy Director of Policy (N5P) is the
    initial denial authority (IDA) and is responsible for:
        (1) Receiving and staffing all initial, written requests for the
    release of information;
        (2) Conducting the necessary reviews to determine the releasability
    of information pursuant to DoD 5200.1-R;
        (3) Providing the requester with releasable material;
        (4) Notifying the requester of any adverse determination, including
    informing the requester of his/her right to appeal an adverse
    determination to the appeal authority (see Sec. 299.5(m));
        (5) Assuring the timeliness of responses;
        (6) Negotiating with the requester regarding satisfying his request
    (e.g., time extensions, modifications to the request);
        (7) Authorizing extensions of time within Agency components (e.g.,
    time needed to locate and/or review material);
        (8) Assisting the Office of General Counsel (OGC) in judicial
    actions filed under 5 U.S.C. 552;
        (9) Maintaining the FOIA reading room and the Internet home page;
    and
        (10) Compiling the annual FOIA report.
        (c) The Chief, Finance and Accounting Office (N4) is responsible
    for:
        (1) Sending initial and follow-up bills to FOIA requesters as
    instructed by the FOIA office, with a copy of all bills going to the
    FOIA office. In cases where an estimate of fees is provided to the
    requester prior to the processing of his/her request, no bill will be
    sent. Although the FOIA office asks FOIA requesters to send payment to
    the FOIA office, for subsequent forwarding to the Finance and
    Accounting Office, payment may be received directly in the Finance and
    Accounting Office. Such payment may be identified by the payee as
    payment for a Freedom of Information Act request, by the letters
    ``FOIA,'' or as payment for J9XXX/J10XXXX. (FOIA requests are
    serialized by a one-up number beginning on October 1 of each year,
    e.g., J9001, J9002.);
        (2) Receiving and handling all checks or money orders remitted in
    payment for FOIA requests crediting them to the proper account and
    notifying the FOIA office promptly of all payments received;
        (3) Notifying the FOIA office promptly of any payments received
    directly from requesters even if no bill was initiated by the Finance
    and Accounting Office; and
        (4) Issuing a prompt reimbursement of overpaid fees to the
    requester upon being notified of such overpayment by the FOIA office.
        (d) The Deputy Director, NSA/CSS, is the FOIA Appeal Authority
    required by 5 U.S.C. 552 for considering appeals of adverse
    determinations by the Deputy Director of Policy. In the absence of the
    Deputy Director, the Executive Director, NSA/CSS, serves as the Appeal
    Authority.
        (e) The General Counsel (GC) or his designee is responsible for:
        (1) Reviewing responses to FOIA requests to determine the legal
    sufficiency of actions taken by the Deputy Director of Policy, as
    required on a case-by-case basis;
        (2) Reviewing the appeals of adverse determinations made by the
    Deputy Director of Policy. The GC will prepare an appropriate reply to
    such appeals and submit that reply to the NSA/CSS FOIA Appeal Authority
    for final decision; and
        (3) Representing the Agency in all judicial actions relating to 5
    U.S.C. 552 and providing support to the Department of Justice.
        (f) The Deputy Director for Support Services will establish
    procedures to ensure that:
        (1) All inquiries for information pursuant to 5 U.S.C. 552 are
    delivered promptly to the Deputy Director of Policy; and
        (2) Any appeal of an adverse determination is delivered promptly
    and directly to the NSA/CSS Appeal Authority staff.
        (g) The Key Components and Field Chiefs will:
        (1) Establish procedures to ensure that any inquiries for
    information pursuant to 5 U.S.C. 552 are referred immediately and
    directly to the Deputy Director of Policy. Field Elements should
    forward, electronically, any requests received to the DIRNSA/CHCSS,
    ATTN: N5P; and
        (2) Designate a senior official and an alternate to act as a focal
    point to assist the Deputy Director of Policy in determining estimated
    and actual cost data, in conducting searches reasonably calculated to
    retrieve responsive records and assessing whether information can be
    released or should be withheld.
        (h) Military and civilian personnel assigned or attached to or
    employed by the NSA/CSS who receive a Freedom of Information Act
    request shall deliver it immediately to the Deputy Director of Policy.
    Individuals who are contacted by personnel at other government agencies
    and asked to assist in

    [[Page 52210]]

    reviewing material for release under the FOIA must direct the other
    agency employee to the NSA/CSS FOIA office promptly.

    Sec. 299.5  Procedures.

        (a) Requests for copies of records of the NSA/CSS shall be
    delivered to the Deputy Director of Policy immediately upon receipt
    once the request is identified as a Freedom of Information Act or
    Privacy Act request or appears to be intended as such a request.
        (b) The Deputy Director of Policy will endeavor to respond to a
    direct request to NSA/CSS within 20 working days of receipt. If the
    request fails to meet the minimum requirements of perfected FOIA
    request, the FOIA office will advise the requester of how to perfect
    the request. The 20 working day time limit applies upon receipt of the
    perfected request. In the event the Deputy Director of Policy cannot
    respond within 20 working days due to unusual circumstances, the chief
    of the FOIA office will advise the requester of the reason for the
    delay and negotiate a completion date with the requester.
        (c) Direct requests to NSA/CSS will be processed in the order in
    which they are received. Requests referred to NSA/CSS by other
    government agencies will be placed in the processing queue according to
    the date the requester's letter was received by the referring agency if
    that date is known. If it is not known when the referring agency
    received the request, it will be placed in the queue according to the
    date of the requester's letter.
        (d) The FOIA office will maintain three queues (``simple,''
    ``complex'' and ``expedite'') for the processing of records in
    chronological order. Cases placed in the ``simple'' queue require
    little time to process. ``Complex'' cases require a substantial amount
    of review and research prior to making a final release determination.
    This procedure is followed so that a requester will not be required to
    wait a long period of time to learn that the Agency has no records
    responsive to his request or to obtain records that do not require a
    lengthy review.
        (e) Expedited processing shall be granted to a requester if he/she
    requests such treatment and demonstrates a compelling need for the
    information. 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 his/her knowledge. A compelling need is defined as
    follows:
        (1) 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.
        (2) The information is urgently needed by an individual primarily
    engaged in disseminating information to inform the public about actual
    or alleged Federal Government activity. Urgently needed means that the
    information has a particular value that will be lost if not
    disseminated quickly.
        (3) A request may also be expedited, upon receipt of a statement
    certified by the requester to be true and correct to the best of his/
    her knowledge, for the following reasons:
        (i) There would be an imminent loss of substantial due process
    rights.
        (ii) There is a humanitarian need for the material. Humanitarian
    need means that disclosing the information will promote the welfare and
    interests of mankind.
        (4) Requests which meet the criteria for expedited treatment as
    defined in paragraph (e)(3) of this section will be placed in the
    expedite queue behind the requests which are expedited because of a
    compelling need (see Sec. 299.5(e)).
        (5) A decision on whether to grant expedited treatment will be made
    within 10 calendar days of receipt. The requester will be notified
    whether his/her request meets the criteria for expedited processing
    within that time frame. If a request for expedited processing has been
    granted, a substantive response will be provided within 20 working days
    of the date of the expedited decision. If a substantive response cannot
    be provided within 20 working days, a response will be provided as soon
    as practicable and the chief of the FOIA office will negotiate a
    completion date with the requester, taking into account the number of
    cases preceding it in the expedite queue and the complexity of the
    responsive material.
        (f) If the Deputy Director of Policy, in consultation with the GC,
    determines that the fact of the existence or non-existence of requested
    material is a matter that is exempt from disclosure, the requester will
    be so advised.
        (g) If the FOIA office determines that NSA/CSS may have information
    of the type requested, the office shall contact each Key Component
    reasonably expected to hold responsive records.
        (h) The FOIA office will assign the requester to the appropriate
    fee category under 5 U.S.C. 552, as amended, DoD 5400.7-R, and NSA/CSS
    Freedom of Information Act Program, and, if a requester seeks a waiver
    of fees, the FOIA office will, after determining the applicable fee
    category, determine whether to waive fees pursuant to DoD 5400.7-R (see
    also Sec. 299.6). If fees are to be assessed in accordance with the
    provisions of 5 U.S.C. 552 and DoD 5400.7-R, the Key Component will
    prepare an estimate of the cost required to locate, retrieve and, in
    the case of commercial requesters, review the records. Cost estimates
    will include only direct search, duplication costs and review time (for
    commercial requesters) as defined in DoD 5400.7-R.
        (1) If the cost estimate does not exceed $25.00, the component
    shall search for and forward to the FOIA office the documents
    responsive to the request. Fees $15.00 and under will be waived.
        (2) If the costs are estimated to exceed $25.00, the component
    shall provide an estimate to the FOIA office without conducting the
    search. The chief of the FOIA office will advise the requester of the
    costs to determine a willingness to pay the fees. A requester's
    willingness to pay fees will be satisfactory when the estimated fee
    does not exceed $250.00 and the requester has a history of prompt
    payment. A history of prompt payment means payment within 30 calendar
    days of the date of billing. If fees are expected to exceed $250.00,
    the requester will be required to submit payment before processing is
    continued if the requester does not have a history of prompt payment.
    All payments will be made by certified check or money order made
    payable to the Treasurer of the United States.
        (3) When a requester has previously failed to pay a fee charged
    within a timely fashion (i.e., within 30 calendar days from the date of
    billing) payment is required before a search is initiated or before
    review is begun. When a requester has no payment history, an advance
    payment may be required of the requester after the case has been
    completed, but prior to providing the final response.
        (4) If a requester has failed to pay fees after three bills have
    been sent, additional requests from that requester and/or the
    organization or company he/she represents will not be honored until all
    costs and interest are paid.
        (i) Upon receipt of a statement of willingness to pay assessable
    fees or the payment from the requester, the FOIA office shall notify
    the NSA/CSS component to search for the appropriate documents.
        (1) The component conducting the search will advise the FOIA office
    of the types of files searched (e.g., electronic records/e-mail, video/
    audio tapes, paper), the means by which the search was conducted (e.g.,
    subject or chronological files, files retrievable by name or personal
    identifier) and any key words used in an electronic search.

    [[Page 52211]]

        (2) If the search does not locate the requested records, the Deputy
    Director of Policy shall so advise the requester and offer appeal
    rights.
        (3) If the search locates the requested records, the holding
    organization will furnish copies of these records immediately to the
    FOIA office. The Deputy Director of Policy will make a determination as
    to the releasability of the records in consultation with the GC, the
    Legislative Affairs Office (if any information relates to members of
    Congress or their staffs) and other Agency components, as appropriate.
    This determination shall also state, with particularity, that a search
    reasonably calculated to locate responsive records was conducted and
    that all reasonably segregable, non-exempt information was released.
    The located records will be handled as follows:
        (i) All exempt records or portions thereof will be withheld and the
    requester so advised along with the statutory basis for the denial; the
    volume of material being denied, unless advising of the volume would
    harm an interest protected by exemption (see 5 U.S.C. 552); and the
    procedure for filing an appeal of the denial.
        (ii) All segregable, non-exempt records or portions thereof will be
    forwarded promptly to the requester.
        (j) Records or portions thereof originated by other agencies or
    information of primary interest to other agencies found in NSA/CSS
    records will be handled as follows:
        (1) The originating agency's FOIA Authority will be provided with a
    copy of the request and the stated records.
        (2) The requester will be advised of the referral, except when
    notification would reveal exempt information.
        (k) Records or portions thereof originated by a commercial or
    business submitter and containing information that is arguably
    confidential commercial or financial information as defined in
    Executive Order 12600 (52 FR 23781, 3 CFR 199 Comp., p. 235) will be
    handled as follows:
        (1) The commercial or business submitter will be provided with a
    copy of the records as NSA/CSS proposes to release them, and the
    submitter will be given an opportunity to inform the FOIA office about
    its objections to disclosure in writing.
        (2) The Deputy Director of Policy or his/her designee shall review
    the submitter's objections to disclosure and, if N5P decides to release
    records or portions thereof to the requester, provide the submitter
    with an opportunity to enjoin the release of such information.
        (l) Records may be located responsive to an FOIA request which
    contain portions not responsive to the subject of the request. The non-
    responsive portions will be processed as follows:
        (1) If the information is easily identified as releasable, the non-
    responsive portions will be provided to the requester.
        (2) If additional review or coordination with other NSA/CSS
    elements or other government agencies or entities is required to
    determine-the releasability of the information, and the processing of
    the material would be facilitated by excluding those portions from
    review, the requester should be consulted regarding the need to process
    those portions. If the requester states that he is interested in the
    document in its entirety, including those portions not responsive to
    the subject of his request, the entire document will be considered
    responsive and reviewed accordingly.
        (3) If the conditions as stated in paragraph (l)(2) of this section
    pertain, but it not a simple matter to contact and/or reach an
    agreement with the requester, the non-responsive portions will be
    whited-out or otherwise marked to differentiate the removal of non-
    responsive material from the removal of exempt portions. The requester
    shall be advised that portions were removed as non-responsive. In
    addition, he/she shall be given an indication of the manner in which
    those portions would be treated if responsive (e.g., the information
    would be protected by exemptions, would require extensive review/
    consultation). Such a response is not considered an adverse
    determination. If the requester informs the FOIA office of his interest
    in receiving the ``white-out'' portions, the request will be placed in
    the same location within the processing queue as the original request
    and those portions of the documents will be processed.
        (4) If the requester states in his initial request that he/she
    wants all non-responsive portions contained within documents containing
    responsive information, then the documents will be processed in their
    entirety.
        (m) Any person advised of an adverse determination will be notified
    of the right to appeal within 60 days of the date of the response
    letter and that the appeal must be addressed to the NSA/CSS Appeal
    Authority, National Security Agency, Ft. George G. Meade, MD 20755-
    6000. The following actions are considered adverse determinations:
        (1) Denial of records or portions of records;
        (2) Inability of NSA/CSS to locate records;
        (3) Denial of a request for the waiver or reduction of fees;
        (4) Placement of requester in a specific fee category;
        (5) Amount of estimate of processing costs;
        (6) Denial of a request for expeditious treatment; and
        (7) Non-agreement regarding completion date of request.
        (n) The GC or his designee will process appeals and make a
    recommendation to the Appeal Authority.
        (1) Upon receipt of an appeal regarding the denial of information
    or the inability of the Agency to locate records, the GC or his
    designee shall review the record and determine whether the denial was
    proper and/or whether an adequate search was conducted for responsive
    material, and make other determinations and recommendations as
    appropriate.
        (2) If the GC or his/her designee determines that additional
    information may be released, the information shall be made available to
    the requester within 20 working days from receipt of the appeal. The
    conditions for responding to an appeal for which expedited treatment is
    sought by the requester are the same as those for expedited treatment
    on the initial processing of a request (see paragraph (e) of this
    section.
        (3) If the GC or his/her designee determines that the denial was
    proper, the requester must be advised within 20 days after receipt of
    the appeal that the appeal is denied. The requester likewise shall be
    advised of the basis for the denial and the provisions for judicial
    review of the Agency's appellate determination.
        (4) If a new search for records is conducted and produces
    additional material, the additional records will be forwarded to the
    Deputy Director of Policy, as the IDA, for review. Following his/her
    review, the Deputy Director of Policy will return the material to the
    GC with his/her recommendation for release or withholding. The GC will
    review the material on behalf of the Appeal Authority, and the Appeal
    Authority will make the release determination. Upon denial or release
    of additional information, the Appeal Authority will advise the
    requester that more material was located and that the IDA and the
    Appeal Authority each conducted an independent review of the documents.
    In the case of denial, the requester will be advised of the basis of
    the denial and the right to seek judicial review of the Agency's
    action.
        (5) When a requester appeals the absence of a response to a request

    [[Page 52212]]

    within the statutory time limits, the GC shall process the absence of a
    response as it would denial of access to records. The Appeal Authority
    will advise the requester of the right to seek judicial review.
        (6) Appeals will be processed using the same multi-track system as
    initial requests. If an appeal cannot be responded to within 20 working
    days, the requirement to obtain an extension from the requester is the
    same as with initial requests. The time to respond to an appeal,
    however, may be extended by the number of working days (not to exceed
    10) that were not used as additional time for responding to the initial
    request. That is, if the initial request is processed within 20 working
    days so that the extra 10 days of processing which an agency can
    negotiate with the requester are not used, the response to the appeal
    may be delayed for that 10 days (or any unused portion of the 10 days).

    Sec. 299.6   Fees.

        (a) Upon receipt of a request, N5P shall evaluate the request to
    determine the fee category or status of the requester, as well as the
    appropriateness of a waiver or reduction of fees if requested. There
    are no fees associated with a Privacy Act request, except as stated in
    NSA/CSS Regulation 10-35, Implementation of the Privacy Act of 1974. If
    fees are assessable, a search cost estimate will be sent to the Key
    Component(s) expected to maintain responsive records. If N5P assigns a
    fee category to a requester which differs from that claimed by the
    requester or determines that a waiver or reduction of fees is not
    appropriate, N5P shall notify the requester of this discrepancy and of
    the estimated cost of processing the request. The requester will be
    given 30 days to provide additional substantiation for the fee status
    claimed or for a fee waiver or reduction. The requester will be advised
    that his/her request will not be processed until the discrepancy over
    the fee category, fee waiver or reduction, or both are resolved. He/she
    will also be advised of his/her right to appeal N5P's determination. A
    fee waiver or reduction will be granted or denied in accordance with
    DoD 5400.7-R and based on information provided by the requester. If the
    requester does not respond to N5P's initial notification of the
    discrepancy in fee assessment within the 30 days, N5P's determination
    about that requester's fee status shall be final
        (b) Fees will reflect only direct search, review (in the case of
    commercial requesters) and duplication costs, recovery of which are
    permitted by 5 U.S.C. 552. Fees shall not be used to discourage
    requesters.
        (c) No minimum fee may be charged.
        (d) Fees will be based on estimates provided by appropriate
    organizational focal points. Upon completion of the processing of the
    request and computation of all assessable fees, the request will be
    handled as follows:
        (1) If the actual costs exceed the estimated costs, the requester
    will be notified of the remaining fees due. Non-exempt information will
    be provided to the requester and additional fees will be collected upon
    the requester's agreement to pay the amount in excess. If the requester
    refuses to pay the amount in excess, processing of the request will be
    terminated with notice to the requester.
        (2) If the actual costs are less than estimated fees which have
    been collected from the requester, the non-exempt information will be
    released and the FOIA office will advise Finance and Accounting Office
    of the need to refund funds to the requester.
        (e) Fees for manual searches, review time and personnel costs
    associated with computer searches will be computed according to the
    following schedule:

    ------------------------------------------------------------------------
                                                                      Hourly
                    Type                            Grade              rate
    ------------------------------------------------------------------------
    (1) Clerical........................  E9/GS8 and below               $12
    (2) Professional....................  O1-O6/GS9-GS15                  25
    (3) Executive.......................  O7/SCE/SLE/SLP                  45
    ------------------------------------------------------------------------

        (f) Fees for machine time involved in computer searches shall be
    based on the direct cost of retrieving information from the computer,
    including associated input/output costs.
        (g) Search costs for audiovisual documentary material will be
    computed as for any other record. Duplication costs will be 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.
        (h) Duplication fees will be assessed according to the following
    schedule:

    ------------------------------------------------------------------------
                                                                    Cost per
                                 Type                                 page
    ------------------------------------------------------------------------
    (1) Office Copy..............................................       $.15
    (2) Microfiche...............................................        .25
    (3) Printed Material.........................................        .02
    ------------------------------------------------------------------------

    Sec. 299.7  Exempt records.

        (a) Records meetings the exemption criteria of 5 U.S.C. 552 need
    not be published in the Federal Register, made available in a reading
    room, or provided in response to requests made under 5 U.S.C. 552.
        (b) The following nine FOIA exemptions may be used by the NSA/CSS
    to withhold information in whole or in part from public disclosure when
    disclosure would cause foreseeable harm to an interest protected by the
    exemption. Discretionary releases will be made whenever possible.
        (1) Records specifically authorized under criteria established by
    an Executive Order to be kept secret in the interest of national
    defense or foreign policy and which are in fact properly classified
    pursuant to such Executive Order.
        (2) Records relating solely to the internal personnel rules and
    practices of an agency.
        (3) Records which concern matters that a statute specifically
    exempts from disclosure, so long as the statutory exemptions permit no
    discretion on what matters are exempt; or matters which meet criteria
    established for withholding by the statute, or which are particularly
    referred to by the statute as being matters to be withheld. Examples of
    such statutes are:
        (i) The National Security Agency Act of 1959 (Public Law 86-36
    Section 6);
        (ii) 18 U.S.C. 798;
        (iii) 50 U.S.C. 403-3(c)(6);
        (iv) 10 U.S.C. 103; and
        (v) 10 U.S.C. 2305(g).
        (4) Records containing trade secrets and commercial or financial
    information obtained from a person and privileged or confidential.
        (5) Interagency or intra-agency memoranda or letters that would not
    be available by law to a party other than an agency in litigation with
    the agency.
        (6) Personnel and medical files and similar files, the disclosure
    of which, would constitute a clearly unwarranted invasion of personal
    privacy.
        (7) Investigatory records compiled for law enforcement purposes,
    but only to the extent that the production of such records:
        (i) Could reasonably be expected to interfere with enforcement
    proceedings;
        (ii) Would deprive a person of the right to a fair trial or to an
    impartial adjudication;
        (ii) 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;
        (iv) Could reasonably be expected to disclose the identity of a
    confidential

    [[Page 52213]]

    source, including a source within NSA/CSS, state, local, or foreign
    agency or authority, or any private institution which furnishes the
    information on a confidential basis, or 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;
        (v) 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; and
        (vi) Could reasonably be expected to endanger the life or physical
    safety of any individual.
        (8) Records contained in or related to examination, operating, or
    condition reports prepared by, on behalf of, or for the use of an
    agency responsible for the regulation or supervision of financial
    institutions.
        (9) Geological and geophysical information and data, including
    maps, concerning wells.
        (c) Information which 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 reasons cited in this section,
    shall be considered as being ``For Official Use Only'' (FOUO). No other
    material shall be considered or marked FOUO.

        Dated: September 16, 1998.
    L.M. Bynum,
    Alternate OSD Federal Register Liaison Officer, Department of Defense.
    [FR Doc. 98-26144 Filed 9-29-98; 8:45 am]
    BILLING CODE 5000-04-M