[Federal Register Volume 81, Number 227 (Friday, November 25, 2016)]
[Proposed Rules]
[Pages 85196-85201]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28221]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 267

[Docket ID: DOD-2016-OS-0079]
RIN 0790-AJ51


Production of Official Records or Disclosure of Official 
Information in Proceedings Before Federal, State or Local Governmental 
Entities of Competent Jurisdiction

AGENCY: National Reconnaissance Office, Department of Defense.

ACTION: Proposed rule.

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SUMMARY: This proposed rule sets forth procedures for the National 
Reconnaissance Office (NRO) personnel to follow for the release of 
official information by NRO personnel in legal proceedings, through 
testimony, production of documents, or otherwise.

DATES: Comments must be received by January 24, 2017.

ADDRESSES: You may submit comments, identified by docket number and/or 
Regulatory Information Number (RIN) and title, by any of the following 
methods:
     Federal Rulemaking Portal: http://www.regulations.gov.
    Follow the instructions for submitting comments.
     Mail: Department of Defense, Office of the Deputy Chief 
Management Officer, Directorate for Oversight and Compliance, 4800 Mark 
Center Drive, Mailbox #24, Alexandria, VA 22350-1700.
    Instructions: All submissions received must include the agency name 
and docket number or RIN for this Federal Register document. The 
general policy for comments and other submissions from members of the 
public is to make these submissions available for public viewing on the 
Internet at http://www.regulations.gov as they are received without 
change, including any personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Lisa Miller, (703) 808-1060.

SUPPLEMENTARY INFORMATION:

Background

    Pursuant to DoD Directive 5105.23, ``National Reconnaissance Office 
(NRO),'' effective October 29, 2015 (available at http://www.dtic.mil/whs/directives/corres/pdf/510523p.pdf), the NRO was designated as a 
Defense Agency. This proposed regulation aligns with comparable 
regulations for other defense agencies. This rulemaking discusses 
procedures for NRO personnel to follow when asked to provide official 
testimony in a legal proceeding. It also informs members of the public 
of the procedures for official NRO documents, files, records or 
information or official testimony which could include:
    (1) Any material contained in the files of the NRO;
    (2) Any information relating to, or based upon, material contained 
in the files of the NRO, including but not limited to summaries of such 
information or material, or opinions based on such information or 
material; or
    (3) Any information acquired by any person while such person was 
performing official duties while detailed to the NRO, assigned to the 
NRO, or due to that person's official status or association with the 
NRO. These procedures also apply to subpoenas duces tecum for any 
document within the NRO's possession and to requests for official 
certification of copies of any documents.
    These procedures discussed in this proposed rule apply to 
information requests associated with:
    (1) State court proceedings, to include grand jury proceedings.
    (2) Federal civil proceedings where the United States, NRO, or any 
other Federal Agency is not a party to the case; and
    (3) State and local legislative and administrative proceedings.

[[Page 85197]]

Authority

    The authority for promulgation of this regulatory action is 50 
U.S.C. 3003(4)(f) and 10 U.S.C. 424(b)(2), and Executive Order 12333, 
``United States Intelligence Activities'', as amended, with particular 
reference to Section 1.4 (f) and (g) and Section 1.6 (d), (e) and (h).
    Congress, when enacting the National Security Act of 1947 (``the 
Act''), intended to provide a comprehensive program for the future 
security of the United States, and provide for the establishment of 
integrated policies and procedures for the departments, agencies, and 
functions of the Government relating to the national security. The Act 
was designed to provide a Department of Defense, including the three 
military Departments of the Army, the Navy (including naval aviation 
and the United States Marine Corps), and the Air Force under the 
direction, authority, and control of the Secretary of Defense. The Act 
also provided for the establishment of unified or specified combatant 
commands. The National Reconnaissance Office is identified as an 
``intelligence agency'' under the National Security Act of 1947, as 
amended, (50 U.S.C. 3003(4)(f)).
    An exemption for specified intelligence agencies from the 
disclosure of organizational and personnel information is provided in 
10 U.S.C. 424(b)(2). This exemption provides that, except as required 
by the President, no provision of law shall be construed to require the 
disclosure of: (1) The organization or any function of an organization 
of the Department of Defense (specifically the Defense Intelligence 
Agency, National Reconnaissance Office and the National Geospatial 
Intelligence Agency); or (2) the number of persons employed by, or 
assigned or detailed to, any such organization or the name, official 
title, occupational series, grade, or salary of any such person.

Costs and Benefits

    This proposed rule would benefit the public and the United States 
Government by providing clear procedures for members of the public and 
Government employees to follow when official testimony or official 
documents, records, files or information are sought from NRO or from 
NRO personnel in connection with legal proceedings.

Regulatory Analysis

Executive Order 12866, ``Regulatory Planning and Review'' and Executive 
Order 13563, ``Improving Regulation and Regulatory Review''

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distribute impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This proposed rule has been designated a ``significant 
regulatory action,'' although not economically significant because the 
rulemaking does not have an annual effect on the economy of $100 
million or more, under section 3(f) of Executive Order 12866. 
Accordingly, the rule has been reviewed by the Office of Management and 
Budget.

Unfunded Mandates Reform Act (2 U.S.C. Ch. 25)

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 
U.S.C. 1532) requires agencies to assess anticipated costs and benefits 
before issuing any rule whose mandates require spending in any 1 year 
of $100 million in 1995 dollars, updated annually for inflation. In 
2016, that threshold is approximately $146 million. This rulemaking 
would not mandate any requirements for State, local, or tribal 
governments, nor will it affect private sector costs.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. Ch. 6)

    The Department of Defense certifies that this proposed rule is not 
subject to the Regulatory Flexibility Act (5 U.S.C. Ch. 6) because it 
would not, if promulgated, have a significant economic impact on a 
substantial number of small entities. This proposed rule would provide 
clarity to U.S. Government personnel and outside counsel on the proper 
rules and procedures to serve process on U.S. Government officials in 
their official capacity and to obtain official U.S. Government 
testimony or documents for use in legal proceedings. Therefore, the 
Regulatory Flexibility Act, as amended, does not require us to prepare 
a regulatory flexibility analysis.

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

    It has been determined that this rulemaking does not impose 
reporting or record keeping requirements under the Paperwork Reduction 
Act of 1995.

Executive Order 13132, ``Federalism''

    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a proposed rule (and subsequent 
final rule) that imposes substantial direct requirement costs on State 
and local governments, preempts State law, or otherwise has Federalism 
implications. This rulemaking would not have a substantial effect on 
the States; the relationship between the National Government and the 
States; or the distribution of power and responsibilities among the 
various levels of Government.

List of Subjects in 32 CFR Part 267

    Legal proceedings, Testimony, Documentation.

    Accordingly, 32 CFR part 267 is proposed to be added to read as 
follows:

PART 267--PRODUCTION OF OFFICIAL RECORDS OR DISCLOSURE OF OFFICIAL 
INFORMATION IN PROCEEDINGS BEFORE FEDERAL, STATE OR LOCAL 
GOVERNMENTAL ENTITIES OF COMPETENT JURISDICTION

Sec.
267.1 Scope and purpose.
267.2 Definitions.
267.3 Policy.
267.4 Procedures.
267.5 Service of process.
267.6 Fees.

    Authority: 50 U.S.C. 3003(4)(f) and 10 U.S.C. 424(b)(2).


Sec.  267.1  Scope and purpose.

    (a) This part establishes policy, assigns responsibilities, and 
prescribes mandatory procedures governing the release of official 
information by National Reconnaissance Office (NRO) personnel in legal 
proceedings, through testimony, production of documents, or otherwise. 
This part sets forth procedures for NRO personnel to follow if they are 
subpoenaed to produce or disclose, or to testify with respect to:
    (1) Any material contained in the files of the NRO;
    (2) Any information relating to, or based upon, material contained 
in the files of the NRO, including but not limited to summaries of such 
information or material, or opinions based on such information or 
material; or

[[Page 85198]]

    (3) Any information acquired by any person while such person was 
performing official duties while detailed to the NRO, assigned to the 
NRO, or due to that person's official status or association with the 
NRO. These procedures also apply to subpoenas duces tecum for any 
document within the NRO's possession and to requests for official 
certification of copies of any documents.
    (b) These procedures apply to information requests associated with:
    (1) State court proceedings, to include grand jury proceedings.
    (2) Federal civil proceedings where the United States, NRO, or any 
other Federal Agency is not a party to the case; and
    (3) State and local legislative and administrative proceedings.
    (c) These procedures do not apply to:
    (1) Congressional requests or subpoenas for testimony or documents; 
and
    (2) Release of official information or testimony by NRO personnel 
in the following situations, authorized:
    (i) Before courts-martial convened by the authority of the Military 
Departments or in any administrative meetings conducted by a DoD 
component;
    (ii) Pursuant to administrative proceedings conducted by the Equal 
Employment Opportunity and Diversity Management (EEO&DM) Office;
    (iii) In response to requests for records or information from the 
United States Department of Justice (DOJ) or other federal government 
counsel representing the United States or the interests of the United 
States in litigation;
    (iv) Pursuant to the disclosure of any information to Federal, 
State, or local prosecuting or law enforcement authorities in 
conjunction with an investigation conducted by a DoD criminal 
investigative organization.
    (d) This part is intended to provide guidance for the internal 
operation of the NRO and to ensure the orderly execution of NRO's 
mission, not to impede any legal proceeding.


Sec.  267.2  Definitions.

    For the purpose of this part:
    Demand. Any subpoena, order, or other legal summons (except 
garnishment orders) that is issued by a federal, state, or local 
governmental entity of competent jurisdiction with the authority to 
require the production, disclosure, or release of official NRO 
information or for the appearance and testimony of NRO personnel as 
witnesses.
    Employee or NRO employee. When used herein refers to NRO personnel, 
current or former.
    General Counsel. The NRO General Counsel, to include the Principal 
Deputy General Counsel, Deputy General Counsel, or Acting General 
Counsel.
    Litigation. All pretrial, trial, and post-trial stages of all 
existing or reasonably anticipated judicial or administrative actions, 
hearings, investigations, or similar proceedings before civilian 
courts, commissions, boards or other tribunals, foreign and domestic. 
This term includes responses to discovery requests, depositions, and 
other pretrial proceedings, as well as responses to formal or informal 
requests by attorneys or others in situations involving litigation.
    NRO personnel. Present and former civilian employees assigned or 
detailed to NRO, or employed by NRO, and present and former military 
personnel assigned or detailed to NRO, or employed by NRO. The 
definition of NRO personnel also includes individuals hired through 
contractual agreements by or on behalf of NRO.
    Official Information. All information of any kind, in any storage 
medium, whether or not classified or protected from disclosure that:
    (1) Is in the custody and control of the NRO; or
    (2) Relates to information in the custody and control of the NRO; 
or
    (3) Was acquired by NRO personnel as part of their official duties 
or because of their official status within NRO.
    Production or Produce. The disclosure of:
    (1) Any material contained in the files of NRO; or
    (2) Any information relating to, or based upon, material contained 
in the files of the NRO, including but not limited to summaries of such 
information or material, or opinions based on such information or 
material; or
    (3) Any information acquired by any person while such person was 
performing official duties as detailed to the NRO, assigned to the NRO, 
or due to that person's official status or association with the NRO.
    These procedures also apply to subpoenas duces tecum for any 
document within the NRO's possession and to requests for certification 
of copies of any documents.
    Service of Process. The delivery of a summons and complaint, or 
other document the purpose of which is to give notice of a proceeding 
or to establish the jurisdiction of a court or administrative 
proceeding, in the manner prescribed by Rule 4, Federal Rules of Civil 
Procedure, to an officer or agency of the United States named in court 
or administrative proceedings.


Sec.  267.3  Policy.

    (a) No employee shall produce any materials or information in 
response to a demand without prior authorization as set forth in this 
part. This part applies to current and to former employees and 
contractors, in accordance with applicable nondisclosure agreements.
    (b) This part is intended only to provide procedures for responding 
to a demand for production of documents or information, and is not 
intended to, does not, and may not be relied upon to, create any right 
or benefit, substantive or procedural, enforceable by any party against 
the United States.
    (c) Except as permitted by paragraph (d) of this section, no NRO 
personnel may provide testimony or produce documents in any proceeding 
referenced in Sec.  267.1(b) of this part concerning information 
acquired in the course of performing official NRO duties or because of 
the person's official relationship with NRO, except as specifically 
authorized by the General Counsel.
    (d) With the approval of the General Counsel, on behalf of the 
Director of NRO, NRO personnel may testify at the request of another 
Federal agency, or, where it is in the interests of the NRO, at the 
request of a State or local government or State legislative committee, 
subject to applicable nondisclosure agreements and in accordance with 
procedures set forth in this part.
    (e) Official information that is not classified or privileged may 
be made available for use in Federal and State courts, at the 
discretion of the General Counsel, who may deny requested information 
or testimony under the procedures set forth in this part, or as 
otherwise authorized and warranted under applicable law.


Sec.  267.4  Procedures.

    (a) If official information is sought, through testimony or 
otherwise, by a litigation demand, the individual seeking such release 
or testimony must set forth, in writing and with as much specificity as 
possible, the nature and relevance of the official information sought, 
and shall send such demand to NRO Office of General Counsel (OGC), 
National Reconnaissance Office, Chantilly, VA 20151.
    (b) Any NRO personnel in receipt of a litigation request or demand 
for official NRO information or the testimony of NRO personnel as

[[Page 85199]]

witnesses shall immediately notify the NRO OGC, National Reconnaissance 
Office, Chantilly, VA 20151 (703/808-1060), and shall provide a copy of 
the request or demand to the OGC, which shall follow the procedures set 
forth in this section.
    (c) NRO personnel shall not produce, disclose, release, comment 
upon, or testify concerning any official information during litigation 
except as expressly authorized in writing by the General Counsel. In 
exigent circumstances, the General Counsel may issue oral approval, but 
a written record of such approval will be made and retained in the OGC.
    (d) The NRO OGC and senior NRO officials with responsibility for 
the information sought in the demand shall determine whether any 
information, materials, or testimony may properly be produced in 
response to the demand, provided that the OGC may assert any and all 
legal defenses and objections to the demand available to NRO prior to 
the start of any search for information responsive to the demand. NRO 
may, in its sole discretion, decline to begin any search for 
information responsive to the demand until a final and non-appealable 
disposition of any such defenses and objections raised by NRO has been 
made by the entity or person that issued the demand.
    (e) In deciding whether to authorize the release of official NRO 
information or the testimony of NRO personnel concerning official 
information (hereafter referred to as ``production'') pursuant to 
paragraph (d) of this section, OGC shall consider the following 
factors, among any other pertinent considerations:
    (1) Whether production would be unduly burdensome or otherwise 
inappropriate under the applicable rules of discovery or the rules of 
procedure governing the case or matter in which the demand arose;
    (2) Whether production would violate a statute, executive order, 
regulation, or directive;
    (3) Whether production would reveal NRO organization, functions, or 
personnel information protected from disclosure by statute;
    (4) Whether production would reveal information properly classified 
in the interest of national security;
    (5) Whether production would interfere with ongoing enforcement 
proceedings, compromise constitutional rights, reveal the identity of 
an intelligence source or confidential informant, disclose trade 
secrets or similarly confidential commercial or financial information 
without the owner's consent, or otherwise be inappropriate under the 
circumstances;
    (6) Whether the disclosure would have an adverse effect on 
performance by the NRO of its official mission and duties, to include:
    (i) The need to conserve the time of NRO personnel for the conduct 
of official business;
    (ii) The need to avoid spending the time and money of the United 
States to serve private purposes;
    (iii) The need to avoid involving the NRO in contested issues not 
related to its official mission.
    (f) The NRO OGC is responsible for notifying the appropriate NRO 
employees and other persons of all decisions regarding responses to 
demands and providing advice and counsel as to the implementation of 
such decisions.
    (g) If, after NRO personnel have received a litigation request or 
demand and have in turn notified the OGC in accordance with paragraph 
(b) of this section, a response to the request or demand is required 
before instructions from the OGC are received, an attorney from the 
OGC, or, as appropriate, an attorney from the U.S. Department of 
Justice (DOJ) representing the NRO, shall appear before and furnish the 
court or other competent authority with a copy of this part; shall 
inform the requestor or the court or other authority that the request 
or demand is being reviewed, and shall respectfully seek a stay of the 
request or demand pending a final determination by NRO OGC.
    (h) If the court of competent jurisdiction or other appropriate 
authority declines to stay the effect of the request or demand in 
response to action taken pursuant to paragraph (g) of this section, or 
if such court or other authority orders that the request or demand must 
be complied with notwithstanding the final decision of the General 
Counsel, the NRO personnel upon whom the request or demand was made 
shall notify the General Counsel of such ruling or order. If the 
General Counsel determines that no further legal review of or challenge 
to the ruling or order will be sought, the affected NRO personnel shall 
comply with the demand or order. If directed by the General Counsel not 
to comply with the demand, however, the affected NRO personnel shall 
respectfully decline to comply with the demand. See United States ex 
rel. Touhy v. Ragen, 340 U.S. 462 (1951). In that circumstance, the NRO 
personnel shall state the following to the Court: ``I must respectfully 
advise the Court that under instructions given to me by the General 
Counsel of the National Reconnaissance Office, in accordance with 
Department of Defense Directive 5405.2 and [this part, (32 CFR part 
267), I must respectfully decline to [produce/disclose] that 
information.''
    (i) In the event NRO personnel receive a litigation demand for 
official information originated by another U.S. Government component, 
the General Counsel shall forward the appropriate portions of the 
request to the OGC for the other component. The General Counsel shall 
notify the requestor, court, or other authority of the referral, unless 
providing such notice would itself disclose classified information. To 
protect classified information, the General Counsel, in such cases, 
shall notify the requestor of the referral of the request, or positions 
thereof, to another government agency without specifying the identity 
of such agency. The General Counsel shall assist in coordinating 
responses by the unidentified agency to the request to the extent 
necessary to protect classified information from unauthorized 
disclosure.


Sec.  267.5  Service of process.

    (a) Service of Process Upon the NRO or NRO Personnel Accepted in an 
Official Capacity Only. This section sets forth mandatory procedures 
for accomplishing valid service of process by registered or certified 
mail upon NRO or upon NRO personnel sued or summoned in an official 
capacity.
    (b) Accepting service of process upon NRO personnel in their 
individual capacities at the workplace is not a function of NRO. 
Acceptance of service of process in a person's individual capacity is 
the responsibility of that individual. Consistent with 10 U.S.C. 424, 
NRO will not provide the name or address of any current or former 
employee of NRO to individuals or entities seeking to serve process on 
such employee solely in his or her individual capacity, even where the 
matter is related to NRO activities.
    (c) Service of a summons or complaint upon NRO or service of 
process upon NRO personnel for official information or testimony must 
be made by: serving the United States Attorney for the district in 
which the action is brought, and sending copies of the summons and 
complaint by registered or certified mail to the Attorney General of 
the United States and to the General Counsel of the National 
Reconnaissance Office, 15675 Lee Road, Chantilly, VA 20151-1715. The 
envelope shall be conspicuously marked ``Copy of Summons and Complaint 
Enclosed.'' Parties may call the OGC at (703) 808-1060 for guidance.
    (d) Only the General Counsel or designee is authorized to accept 
the copies of the summons or complaint on

[[Page 85200]]

behalf of NRO. Individual NRO personnel sued or summoned to provide 
information or testimony in an official capacity are not authorized to 
accept service of process. If the General Counsel accepts service of 
process on behalf of NRO or NRO personnel, in accordance with this 
paragraph, the documents for which service is accepted shall be 
stamped: ``Service accepted on behalf of the organization in official 
capacity only.''
    (1) NRO personnel who receive or who have reason to expect to 
receive service of process in any capacity concerning a matter that may 
involve testimony or the furnishing of documents that could reasonably 
be expected to involve official NRO information shall notify the NRO 
OGC, (703) 808-1060 before accepting service and before providing the 
requestor, counsel or other representative of the party who sent the 
demand with any official NRO information in response to the demand.
    (2) If service is sought in an official capacity upon an individual 
who is alleged to work at NRO Headquarters in Chantilly, Virginia, the 
process server should call OGC at (703) 808-1060 for guidance.
    (i) To protect classified NRO employment associations and/or 
classified contracts, the Office of General Counsel shall refuse to 
confirm or deny the existence or the nonexistence of an employment 
relationship with the specific individual sued or summoned in an 
official capacity (other than publicly acknowledged senior agency 
officials of NRO).
    (ii) OGC shall direct the process server to follow the procedures 
set forth in this part to serve process upon the United States Attorney 
for the judicial district in which the action is brought and to send a 
copy of such process to NRO OGC by certified or registered mail.
    (iii) OGC will notify the person summoned and the appropriate NRO 
Security Officer of the legal demand.
    (e) NRO does not accept personal service of process upon NRO 
personnel at NRO facilities or on NRO premises, unless expressly 
directed otherwise by the General Counsel. Process servers will not be 
allowed to enter NRO facilities for the purpose of serving process upon 
any NRO personnel solely in his or her individual capacity. The General 
Counsel, on behalf of the Director of NRO, has sole discretion to 
authorize acceptance of personal service of process upon the NRO or NRO 
personnel served in their official capacities, or served upon NRO 
personnel in an combined individual and official capacity, and may 
exercise this discretion in circumstances where serving process on NRO 
personnel by registered or certified mail is not authorized by law or 
where, in particular circumstances, the General Counsel determines that 
acceptance of personal service of process serves the best 
organizational interests of the NRO.
    (1) A process server who arrives at NRO during duty hours without 
first having contacted the NRO OGC will be referred to the Visitor 
Center. The Visitor Center is not authorized to and shall not accept 
service of process upon NRO or on behalf of any alleged NRO personnel. 
The Visitor Center shall contact OGC.
    (i) The General Counsel or designee shall review the service of 
process at the Visitor Center to assess whether the NRO person is sued 
or summoned in an official or in an individual capacity. If the person 
is sued or summoned in an individual capacity, the General Counsel 
shall refuse to accept service on that basis.
    (ii) If the General Counsel determines that service is sought upon 
NRO or upon an alleged employee of NRO in an official capacity, or if 
the General Counsel is concerned that official NRO information or 
documents may be relevant to the subject matter of the proceeding, the 
General Counsel shall direct the process server to follow the 
procedures set forth in this part and shall refuse to accept service on 
the basis of failure to comply with applicable regulations, unless, as 
an exercise of discretion, OGC determines that acceptance of personal 
service of process best serves the organizational interests of the NRO.
    (iii) If the General Counsel exercises discretion to accept service 
of process upon NRO or upon NRO personnel in an official capacity, in 
accordance with this paragraph, the documents for which service is 
accepted shall be stamped: ``Service accepted on behalf of the 
organization in official capacity only.''
    (iv) OGC will notify the person summoned and the appropriate NRO 
Security Officer of the legal demand.
    (2) [Reserved]
    (f) Litigants may attempt to serve process upon NRO personnel in 
their official capacities at their residences or other places. Because 
NRO personnel are not authorized to accept such service of process, 
such service is not effective under the Federal Rules of Civil 
Procedure. NRO personnel should refuse to accept service. However, NRO 
personnel may find it difficult to determine whether they are being 
sued or summoned in their private or official capacity. Therefore, NRO 
personnel shall notify NRO OGC as soon as possible if they receive any 
summons or complaint that appears to relate to actions in connection 
with their official duties and shall direct such summons or complaint 
to the General Counsel so that the General Counsel can determine the 
scope of service.
    (g) The Commander or Chief of Facility at NRO facilities other than 
NRO Headquarters may accept copies of service of process for himself or 
herself or for NRO personnel assigned to the installation who are sued 
or summoned in their official capacities, without officially confirming 
or denying the existence or nonexistence of an employment or contract 
relationship with the summoned individual. The Commander or Chief of 
Facility will accept any such service of process by noting on the 
return of service form: ``Service accepted on behalf of the 
organization in official capacity only.'' The Commander or Chief of 
Facility will then immediately refer the matter to the General Counsel.
    (1) No individual will officially confirm or deny that the person 
sued or summoned is affiliated with NRO as an employee or contractor 
unless OGC, in coordination with the Commander or Chief of Facility, 
has first determined both that the individual's association with NRO is 
unclassified and that such association may be officially and publicly 
acknowledged in connection with the legal proceeding. If the NRO 
person's association with NRO is classified, service of process shall 
not be accepted unless, as an exercise of discretion, OGC determines 
that acceptance of service of process under the circumstances best 
serves the organizational interests of the NRO and can be accomplished 
without officially confirming or denying the classified association at 
issue. Any such service if accepted must be stamped on the return of 
service form ``Service accepted on behalf of the organization in 
official capacity only.''
    (2) Whether service is accepted or refused, the General Counsel 
will coordinate with NRO security personnel, other federal agencies, or 
other US Government personnel and contact DOJ for guidance on how to 
provide information responsive to legal process while protecting 
classified information from unauthorized disclosure in accordance with 
legal requirements. If OGC or the Commander or Chief of Facility 
accepts service ``on behalf of the organization in official capacity 
only'' and that service was directed toward an individual whose 
association with NRO is or was

[[Page 85201]]

classified, OGC will work with the party who made the litigation demand 
and/or the court and DOJ to identify an individual who can provide 
responsive information or testimony while protecting classified 
information in accordance with legal requirements, or will move for 
other appropriate relief as necessary to protect classified 
information.
    (h) If any NRO person is sued or summoned in a foreign court, that 
person shall provide full documentation of the matter securely to the 
cognizant Commander or Chief of Facility. The Commander or Chief of 
Facility will immediately email a scanned copy of the service of 
process to OGC, and shall send the document securely via an information 
system approved to handle classified information, marking the email to 
indicate attorney-client privilege protections as applicable. The 
person sued or summoned will not complete any return of service forms 
for the foreign court without first obtaining approval from NRO OGC to 
the cognizant Commander or Chief of Facility in writing, and shall 
follow instructions from OGC regarding how to complete the return of 
service form. OGC will coordinate with DOJ to determine whether service 
is effective and whether the NRO person is entitled to be represented 
at Government expense.
    (i) The Commander or Chief of Facility will establish procedures at 
the NRO facility, including a provision for liaison with local staff 
judge advocates, if any, to ensure that service of process on persons 
in their individual capacities is accomplished in accordance with local 
law, relevant treaties, and Status of Forces Agreements. Such 
procedures must be approved by the General Counsel. Commanders or 
Chiefs of Facility will designate a point of contact to conduct liaison 
with the OGC.
    (j) Acceptance of service of any summons or complaint by OGC ``on 
behalf of the organization in official capacity only'' shall not 
constitute an official acknowledgement or confirmation by NRO that any 
individual named in the summons or complaint is, in fact, a current or 
former employee of NRO. Acceptance of service of process shall not 
constitute waiver with respect to jurisdiction, propriety or validity 
of service, improper venue, or any other defense in law or equity 
available under the laws or rules applicable to the service of process.


Sec.  267.6  Fees.

    (a) Consistent with the guidelines in DoD 7000.14-R, Vol. 11A, 
Chap. 4, ``User Fees'' (available at http://comptroller.defense.gov/Portals/45/documents/fmr/Volume_11a.pdf), NRO may charge reasonable 
fees, as established by regulation and to the extent not prohibited by 
law, to parties seeking, by request or demand, official information not 
otherwise available under the DoD Freedom of Information Act, 5 U.S.C. 
552. Such fees are calculated to reimburse the Government for the 
expense of providing such information, and may include:
    (1) The costs of time expended by NRO personnel to process and 
respond to the request or demand;
    (2) Attorney time for reviewing the request or demand and any 
information located in response thereto, and for related legal work in 
connection with the request or demand; and
    (3) Expenses generated by materials and equipment used to search 
for, produce, and copy the responsive information See Oppenheimer Fund, 
Inc. v. Sanders, 437 U.S. 340 (1978).
    (b) [Reserved]

    Dated: November 18, 2016.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2016-28221 Filed 11-23-16; 8:45 am]
 BILLING CODE 5001-06-P