[Federal Register Volume 68, Number 100 (Friday, May 23, 2003)]
[Rules and Regulations]
[Pages 28132-28138]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-12969]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 299

RIN 0790-AG96


National Security Agency/Central Security Service (NSA/CSS) 
Freedom of Information Act Program

AGENCY: Department of Defense.

ACTION: Interim final rule.

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SUMMARY: The part implements the Freedom of Information Act, as 
amended. It assigns responsibility for responding to written requests 
made pursuant to the Act and provides for the review required to 
determine the appropriateness of classification.

DATES: This rule is effective August 5, 2002. Consideration will be 
given to all comments received on or before July 22, 2003.

ADDRESSES: Forward comments to National Security Agency, FOIA Office 
(DC321), 9800 Savage Road STE 6248, Ft. George G. Meade, MD 20755-6248.

FOR FURTHER INFORMATION CONTACT: Pamela Phillips, 301-688-6527.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

    It has been determined that 32 CFR part 299 is not a significant 
regulatory action. The rule 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 the recipients 
thereof; or (4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
this Executive Order.

Unfunded Mandates Reform Act

    It has been certified that 32 CFR part 299 does not contain a 
Federal Mandate that may result in the expenditure by State, local and 
tribal governments, in aggregate, or by the private sector, of $100 
million or more in any one year.

Regulatory Flexibility Act

    It has been determined that this rule is not subject to the 
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities.

Paperwork Reduction Act

    It has been certified that 32 CFR part 299 does not impose any 
reporting or recordkeeping requirements under the Paperwork Reduction 
Act of 1995 (44 U.S.C. Chapter 44).

Executive Order 13132

    It has been certified that 32 CFR part 299 does not have federalism 
implications, as set forth in Executive Order 13132.

List of Subjects in 32 CFR Part 299

    Freedom of Information.

0
Accordingly, 32 CFR part 299 is revised to read as follows:

PART 299--NATIONAL SECURITY AGENCY/CENTRAL SECURITY SERVICE (NSA/
CSS) FREEDOM OF INFORMATION ACT PROGRAM

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


[[Page 28133]]


    Authority: 5 U.S.C. 552.


Sec.  299.1  Purpose.

    (a) This part implements 5 U.S.C. 552, as amended, and DoD 5400.7-
R,\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 5 
U.S.C. 552, as amended, 5 U.S.C. 552a, as amended, DoD 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 waiver 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 Internet. The mailing address is FOIA/PA Services (DC321), 
National Security Agency, 9800 Savage Road STE 6248, Ft. George G. 
Meade, MD 20755-6248. The Web-based system contains a form to be 
completed by the requester, requiring name and postal mailing address. 
The URL is http://www.nsa.gov/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 written request submitted by a U.S. 
citizen or an alien admitted for permanent residence for access to or 
amendment of records on himself/herself which are contained in a PA 
system of 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 20755-6248.
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    (c) Agency records. (1) The 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:
    (i) Objects or articles such as structures, furniture, vehicles and 
equipment, whatever their historical value or value as evidence;
    (ii) Intangible records such as an individual's memory or oral 
communication; and
    (iii) Personal records of an individual not subject to agency 
creation or retention requirements, created and maintained primarily 
for the convenience of an agency employee, and not distributed to other 
agency employees for their official use.
    (2) A record must exist and 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.
    (3) Hard copy or electronic records that are subject to FOIA 
requests under 5 U.S.C. 552(a)(3) and are available through an 
established distribution system on the Internet, normally need not be 
processed under the FOIA. The Agency shall 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 shall 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 shall not be 
accepted. Before the Agency responds to a request, the request must 
comply with the provisions of this part. In order that members of the 
public have timely access to unclassified information regarding NSA 
activities, requests for information that would not be withheld if 
requested under the FOIA or the Privacy Act (PA) may be honored through 
appropriate means without requiring the requester to invoke the FOIA or 
the PA. Although a record may require minimal redaction before its 
release, this fact alone shall not require the Agency to direct the 
requester to submit a formal FOIA or PA request for the record.
    (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 of 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 public 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 National Cryptologic Museum (NCM), 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 NCM. In addition, these records are 
made available to the public through the Internet. An index of this 
material is available in hard copy in the museum library and on the 
Internet.


Sec.  299.4  Responsibilities.

    (a) The Director's Chief of Staff (DC) is responsible for 
overseeing the administration of the FOIA, which includes responding to 
FOIA requests

[[Page 28134]]

and for collecting fees from FOIA requesters.
    (b) The Director of Policy (DC3), or the Deputy Director of Policy 
(D/DC3), if so designated, 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(n));
    (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, Accounting and Financial Services (DF22) 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 shall be 
sent. Although the FOIA office asks FOIA requesters to send payment to 
the FOIA office, for subsequent forwarding to Accounting and Financial 
Services, payment may be received directly in Accounting and Financial 
Services. 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 XXXXX. (FOIA requesters are provided a case number to refer 
to in correspondence with NSA);
    (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 Accounting 
and Financial Services; 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 Director of Policy. In the absence of the Deputy 
Director, the Director's Chief of Staff 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 Director of Policy, as required on 
a case-by-case basis;
    (2) Reviewing the appeals of adverse determinations made by the 
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 Chief of Installation and Logistics (I&L) shall establish 
procedures to ensure that:
    (1) All inquiries for information pursuant to 5 U.S.C. 552 are 
delivered promptly to the 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 Directorates, Associate Directorates, and Field Elements 
shall:
    (1) Establish procedures to ensure that any inquiries for 
information pursuant to 5 U.S.C. 552 are referred immediately and 
directly to the Director of Policy. Field Elements should forward, 
electronically, any requests received to the DIRNSA/CHCSS, ATTN: DC3; 
and
    (2) Designate a senior official and an alternate to act as a focal 
point to assist the 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 Director of Policy. 
Individuals who are contacted by personnel at other government agencies 
and asked to assist in 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 Director of Policy immediately upon receipt once the 
request is identified as a Freedom of Information Act or Privacy Act 
requestor appears to be intended as such a request.
    (b) The Director of Policy, or Deputy Director of Policy, if so 
designated, shall 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 a perfected FOIA request, the FOIA office shall 
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 Director of Policy cannot respond within 20 working days due to 
unusual circumstances, the chief of the FOIA office shall advise the 
requester of the reason for the delay and negotiate a completion date 
with the requester.
    (c) Direct requests to NSA/CSS shall be processed in the order in 
which they are received. Requests referred to NSA/CSS by other 
government agencies shall 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, in accordance with Department of Justice 
Guidelines. If it is not known when the referring agency received the 
request, it shall be placed in the queue according to the date of the 
requester's letter.
    (d) The FOIA office shall maintain six queues (``super easy,'' 
``sensitive/personal easy,'' ``non-personal easy,'' ``sensitive/
personal voluminous,'' ``non-personal complex,'' and ``expedite'') for 
the processing of records in chronological order. The processing queues 
are defined as follows:
    (1) Super easy queue. The super easy queue is for requests for 
which no responsive records are located or for material that requires 
minimal specialized review.
    (2) Sensitive/personal easy queue. The sensitive/personal easy 
queue contains FOIA and PA records that contain sensitive personal 
information, typically relating to the requester or requester's 
relatives, and that do not require a lengthy review. These requests are 
processed by DC321 staff members who specialize in handling sensitive 
personal information.
    (3) Non-personal easy queue. The non-personal easy queue contains 
all other types of NSA records not relating to the requester, that 
often contain classified information that may require coordinated 
review among NSA components, and that do not require a lengthy review. 
These requests are

[[Page 28135]]

processed by DC321 staff members who specialize in complex 
classification Issues.
    (4) Sensitive/personal voluminous queue. The sensitive/personal 
voluminous queue contains FOIA and PA records that contain sensitive 
personal information, typically relating to the request or the 
requester's relatives, and that require a lengthy review because of the 
high volume of responsive records. These records may also contain 
classified information that may require coordinated review in several 
NSA components. These requests are processed by DC321 staff members who 
specialize in handling sensitive personal information.
    (5) Non-personal complex queue. The non-personal complex queue 
contains FOIA records not relating to the requester that require a 
lengthy review because of the high volume and/or complexity of 
responsive records. These records contain classified, often technical 
information that requires coordinated review among many specialized NSA 
components, as well as consultation with other government agencies. 
These requests are processed by DC321 staff members who specialize in 
complex classification issues.
    (6) Expedite queue. Cases meeting the criteria for expeditious 
processing as defined in paragraph (f) of this section shall be 
processed in turn within that queue by the appropriate processing team.
    (e) Requesters shall be informed immediately if no responsive 
records are located. Following a search for and retrieval of responsive 
material, the initial processing team shall determine which queue in 
which to place the material, based on the criteria in paragraph (d)(1) 
through (6) of this section and shall so advise the requester. If the 
material requires minimal specialized review (super easy), the initial 
processing team shall review, redact if required, and provide the non-
exempt responsive material to the requester immediately. All other 
material shall be processed by the appropriate specialized processing 
team on a first-in, first-out basis within its queue. These procedures 
are followed so that a requester shall 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 require minimal review. For 
statistical reporting purposes for the Annual Report, super easy, 
sensitive/personal easy, and non-personal easy cases shall be counted 
as ``Easy'' cases, and sensitive/personal voluminous and non-personal 
complex cases shall be counted as ``Hard'' cases.
    (f) 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 (f)(3) of this section will be placed in the 
expedite queue behind requests which are expedited because of a 
compelling need (see paragraphs (f)(1) and (2) of this section).
    (5) A decision on whether to grant expedited treatment shall be 
made within 10 calendar days of receipt. The requester shall 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 shall be provided 
within 20 working days of the date of the decision to expedite. If a 
substantive response cannot be provided within 20 working days, a 
response shall be provided as soon as practicable and the chief of the 
FOIA office shall 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.
    (g) If the 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 
shall be so advised.
    (h) If the FOIA office determines that NSA/CSS may have information 
of the type requested, the office shall contact each Directorate or 
Associate Directorate reasonably expected to hold responsive records.
    (i) The FOIA office shall assign the requester to the appropriate 
fee category under 5 U.S.C. 552, as amended, and DoD 5400.7-R, and, if 
a requester seeks a waiver of fees, the FOIA office shall, 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 Directorate or Associate Directorate shall prepare an 
estimate of the cost required to locate, retrieve and, in the case of 
commercial requesters, review the records. Cost estimates shall 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 $25.00 and under shall 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 shall advise the requester of the 
costs to determine a willingness to pay the fees. A requester's 
willingness to pay fees shall 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 shall be required to submit payment before processing is 
continued if the requester does not have a history of prompt payment. 
All payments shall 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.

[[Page 28136]]

    (j) 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 shall 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.
    (2) If the search does not locate the requested records, the 
Director of Policy shall so advise the requester and offer appeal 
rights.
    (3) If the search locates the requested records, the holding 
organization shall furnish copies of these records immediately to the 
FOIA office. The Director of Policy shall 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 shall 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 shall 
be forwarded promptly to the requester.
    (k) Records or portions thereof originated by other agencies or 
information of primary interest to other agencies found in NSA/CSS 
records shall be handled as follows:
    (1) The originating agency's FOIA Authority shall be provided with 
a copy of the request and the stated records.
    (2) The requester shall be advised of the referral, except when 
notification would reveal exempt information.
    (l) Records of 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, 1987 Comp., p. 235) shall be 
handled as follows:
    (1) The commercial or business submitter shall be provided with a 
copy of the records as NSA/CSS proposes to release them, and the 
submitter shall be given an opportunity to inform the FOIA office about 
its objections to disclosure in writing.
    (2) The Director of Policy or his/her designee shall review the 
submitter's objections to disclosure and, if DC3 decides to release 
records or portions thereof to the requester, provide the submitter 
with an opportunity to enjoin the release of such information.
    (m) Records may be located responsive to an FOIA request which 
contain portions not responsive to the subject of the request. The non-
responsive portions shall be processed as follows:
    (1) If the information is easily identified as releasable, the non-
responsive portions shall 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 shall be considered 
responsive and reviewed accordingly.
    (3) If the conditions as stated in paragraph (m)(2) of this section 
pertain, but it is not a simple matter to contact and/or reach an 
agreement with the requester, the non-responsive portions shall be 
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 non-responsive 
portions, the request shall be placed in the same location within the 
processing queue as the original request and those portions of the 
documents shall 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 shall be processed in their 
entirety.
    (n) Any person advised of an adverse determination shall be 
notified of the right to submit an appeal postmarked within 60 days of 
the date of the response letter and that the appeal must be addressed 
to the NSA/CSS FOIA Appeal Authority, National Security Agency, Ft. 
George G. Meade, MD 20755-6248. 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) Determination that the subject of a request is not within the 
purview of NSA/CSS and that a search for records shall not be 
conducted;
    (7) Denial of a requester for expeditious treatment; and
    (8) Non-agreement regarding completion date of request.
    (o) The GC or his designee shall 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 provide a legal review of the denial and/or the adequacy 
of the search for responsive material, and make other recommendations 
as appropriate.
    (2) If the Appeal Authority 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 (f) of this 
section.)
    (3) If the Appeal Authority 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 shall be forwarded to the 
Director of Policy, as the IDA, for review. Following his/her review, 
the Director of Policy shall return the material to the GC with his/her 
recommendation for release or

[[Page 28137]]

withholding. The GC shall provide a legal review of the material, and 
the Appeal Authority shall make the release determination. Upon denial 
or release of additional information, the Appeal Authority shall 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 shall 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 
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 
shall advise the requester of the right to seek judicial review.
    (6) Appeals shall 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, DC3 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 shall be sent to the 
Directorate(s) and Associate Directorate(s) expected to maintain 
responsive records. If DC3 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, DC3 shall notify the requester 
of this discrepancy and of the estimated cost of processing the 
request. The requester shall be given 60 days to provide additional 
substantiation for the fee status claimed or for a fee waiver or 
reduction. The requester shall be advised that his/her request shall 
not be processed until the discrepancy over the fee category, fee 
waiver or reduction, or both are resolved. He/she shall also be advised 
of his/her right to appeal/DC3's determination. A fee waiver or 
reduction shall 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 DC3's initial notification of the discrepancy in 
fee assessment within the 60 days, DC3's determination about that 
requester's fee status shall be final.
    (b) Fees shall 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. Fees under $25.00 shall be 
waived.
    (d) Fees shall 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 shall be 
handled as follows:
    (1) If the earlier cost estimate was under $250.00 and the 
requester has not yet paid and has no payment history, the requester 
shall be notified of the actual cost and shall be sent a bill under 
separate cover. Upon receipt of payment, processing results and non-
exempt information shall be provided to the requester.
    (2) In cases where the requester paid prior to processing, if the 
actual costs exceed the estimated costs, the requester shall be 
notified of the remaining fees due. Processing results and non-exempt 
information shall be provided to the requester upon payment of the 
amount in excess or, if less than $250.00, receipt of the requester's 
agreement to pay. If the requester refuses to pay the amount in excess, 
processing of the request will be terminated with notice to the 
requester.
    (3) In cases where the requester paid prior to processing, if the 
actual costs are less than estimated fees which have been collected 
from the requester, processing results and the non-exempt information 
shall be provided to the requester, and the FOIA office shall advise 
Accounting and Financial Services of the need to refund funds to the 
requester.
    (e) Fees for manual searches, review time and personnel costs 
associated with computer searches shall be computed according to the 
following schedule:

------------------------------------------------------------------------
                                                                  Hourly
                 Type                            Grade             rate
------------------------------------------------------------------------
(1) Clerical.........................  E9/GS8 and below........      $20
(2) Professional.....................  O1-O6/GS9-GS15..........       44
(3) Executive........................  O7/SCE/SLE/SLP..........       75
(4) Contractor.......................  ........................       44
------------------------------------------------------------------------

    (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 shall be 
computed as for any other record. Duplication costs shall 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 shall 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 meeting 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 first seven of the following nine FOIA exemptions may be 
used by the NSA/CSS to withhold information in whole or in part from 
public disclosure when there is a sound legal basis for protecting the 
information. Discretionary releases shall be made following careful 
Agency consideration of the interests involved.
    (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:

[[Page 28138]]

    (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. 130; 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;
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy of a living person, including surviving 
family members of an individual identified in such a record;
    (iv) Could reasonably be expected to disclose the identity of a 
confidential 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 of FOIA exemptions 2 through 9 
cited in paragraphs (b)(2) through (b)(9) of this section, shall be 
considered ``UNCLASSIFIED//FOR OFFICIAL USE ONLY'' (U//FOUO). No other 
material shall be considered or marked U//FOUO. The marking of 
appropriate records with the U//FOUO designation at the time of their 
creation provides notice of U//FOUO content and shall facilitate review 
when a record is requested under the FOIA. However, records requested 
under the FOIA which do not bear the U//FOUO designation shall not be 
assumed to be releaseable without examination for the presence of 
information that requires continued protection and qualifies as exempt 
from public release.

    Dated: May 16, 2003.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 03-12969 Filed 5-22-03; 8:45 am]
BILLING CODE 5001-08-P