Freedom of Information Act Program

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

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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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/.

mitted 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:

ncluding 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

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.

FOIA

requests under

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

n 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;

ee 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.

ts 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 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

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.

g 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.

n 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)).

(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.

uty 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

ay 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.

(2) If the search does not locate the requested records, the Deputy

Director of Policy shall so advise the requester and offer appeal

rights.

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 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.

ster.

(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.

n

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.

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.

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

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

ne 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.

'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.

................ 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.

....................... .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

ns 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

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;

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