[Federal Register Volume 63, Number 189 (Wednesday, September 30, 1998)]
[Proposed Rules]
[Pages 52208-52213]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-26144]



[[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\
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    \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.
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    (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.
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    (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

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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