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

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

[[Page 52208]]



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.


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

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.

Barbara Paisley, FOIA Office, National Security Agency. (301) 688-6527.

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

List of Subjects in 32 CFR Part 299

    Freedom of information.

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


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

    Authority: 5 U.S.C. 552.

Sec. 299.1  Purpose and applicability.

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

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

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

Sec. 299.2  Definitions.

    Terms used in this part, with the exception of the terms in
Sec. 299.4, are defined in DoD 5400.7-R. For ease of reference,
however, some terms are defined in this section.
    (a) FOIA request. (1) A written request for NSA/CSS records, that
reasonably describes the records sought, made by any person, including
a member of the public (U.S. or foreign citizen/entity), an
organization or a business, but not including a Federal Agency or a
fugitive from the law that either explicitly or implicitly invokes
invokes 5 U.S.C. 552, as amended, D0D 5400.7-R, or NSA/CSS Freedom of
Information Act Program, within the National Security Agency/Central
Security Service. Requesters should also indicate a willingness to pay
fees associated with the processing of their request or, in the
alternative, why a wavier of fee may be appropriate.
    (2) An FOIA request may be submitted by U.S. mail or its
equivalent, by facsimile or electronically through the NSA FOIA Home
Page on the World Wide Web (WWW) once the development of a Web-based
procedure for submitting FOIA requests is completed. The Web-based
system will consist of a form to be completed by the requester,
requiring name and postal mailing address. The WWW address is http://
    (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\

    \3\ Copies may be obtained through a FOIA request to the
National Security Agency, Ft. George G. Meade, MD 20755-6000.

    (c) Agency records. Products of data compilation, such as all
books, papers, maps, and photographs, machine readable materials,
including those in electronic form or format (including e-mails), or
other documentary materials, regardless of physical form or
characteristics, made or received by an agency of the United States
Government under Federal law in connection with the transaction of
public business and in NSA/CSS's possession and control at the time the
FOIA request is made. The term ``records'' does not include:
    (1) Objects or articles such as structures, furniture, vehicles and
equipment, whatever their historical value or value as evidence;
    (2) Intangible records such as an individual's memory or oral
communication; and
    (3) Personal records of an individual not subject to agency
creation or retention requirements, created and maintained primarily
for the convenience of an agency employee, and not distributed to other
agency employees for their official use.
    (4) A record must exist an be in the possession and control of the
NSA/CSS at the time of the request to be subject to this part. There is
no obligation to create or compile a record or obtain a record not in
the possession of the NSA/CSS to satisfy an FOIA request. The NSA/CSS
may compile or create a new record when doing so would be less
burdensome to the Agency than providing existing records and the
requester does not object.
    (5) Hard copy or electronic records that are subject to FOIA
requests under

[[Page 52209]]

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

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

Sec. 299.4  Responsibilities.

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

[[Page 52210]]

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

Sec. 299.5  Procedures.

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

[[Page 52211]]

    (2) If the search does not locate the requested records, the Deputy
Director of Policy shall so advise the requester and offer appeal
    (3) If the search locates the requested records, the holding
organization will furnish copies of these records immediately to the
FOIA office. The Deputy Director of Policy will make a determination as
to the releasability of the records in consultation with the GC, the
Legislative Affairs Office (if any information relates to members of
Congress or their staffs) and other Agency components, as appropriate.
This determination shall also state, with particularity, that a search
reasonably calculated to locate responsive records was conducted and
that all reasonably segregable, non-exempt information was released.
The located records will be handled as follows:
    (i) All exempt records or portions thereof will be withheld and the
requester so advised along with the statutory basis for the denial; the
volume of material being denied, unless advising of the volume would
harm an interest protected by exemption (see 5 U.S.C. 552); and the
procedure for filing an appeal of the denial.
    (ii) All segregable, non-exempt records or portions thereof will be
forwarded promptly to the requester.
    (j) Records or portions thereof originated by other agencies or
information of primary interest to other agencies found in NSA/CSS
records will be handled as follows:
    (1) The originating agency's FOIA Authority will be provided with a
copy of the request and the stated records.
    (2) The requester will be advised of the referral, except when
notification would reveal exempt information.
    (k) Records or portions thereof originated by a commercial or
business submitter and containing information that is arguably
confidential commercial or financial information as defined in
Executive Order 12600 (52 FR 23781, 3 CFR 199 Comp., p. 235) will be
handled as follows:
    (1) The commercial or business submitter will be provided with a
copy of the records as NSA/CSS proposes to release them, and the
submitter will be given an opportunity to inform the FOIA office about
its objections to disclosure in writing.
    (2) The Deputy Director of Policy or his/her designee shall review
the submitter's objections to disclosure and, if N5P decides to release
records or portions thereof to the requester, provide the submitter
with an opportunity to enjoin the release of such information.
    (l) Records may be located responsive to an FOIA request which
contain portions not responsive to the subject of the request. The non-
responsive portions will be processed as follows:
    (1) If the information is easily identified as releasable, the non-
responsive portions will be provided to the requester.
    (2) If additional review or coordination with other NSA/CSS
elements or other government agencies or entities is required to
determine-the releasability of the information, and the processing of
the material would be facilitated by excluding those portions from
review, the requester should be consulted regarding the need to process
those portions. If the requester states that he is interested in the
document in its entirety, including those portions not responsive to
the subject of his request, the entire document will be considered
responsive and reviewed accordingly.
    (3) If the conditions as stated in paragraph (l)(2) of this section
pertain, but it not a simple matter to contact and/or reach an
agreement with the requester, the non-responsive portions will be
whited-out or otherwise marked to differentiate the removal of non-
responsive material from the removal of exempt portions. The requester
shall be advised that portions were removed as non-responsive. In
addition, he/she shall be given an indication of the manner in which
those portions would be treated if responsive (e.g., the information
would be protected by exemptions, would require extensive review/
consultation). Such a response is not considered an adverse
determination. If the requester informs the FOIA office of his interest
in receiving the ``white-out'' portions, the request will be placed in
the same location within the processing queue as the original request
and those portions of the documents will be processed.
    (4) If the requester states in his initial request that he/she
wants all non-responsive portions contained within documents containing
responsive information, then the documents will be processed in their
    (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
    (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
    (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
    (5) When a requester appeals the absence of a response to a request

[[Page 52212]]

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

Sec. 299.6   Fees.

    (a) Upon receipt of a request, N5P shall evaluate the request to
determine the fee category or status of the requester, as well as the
appropriateness of a waiver or reduction of fees if requested. There
are no fees associated with a Privacy Act request, except as stated in
NSA/CSS Regulation 10-35, Implementation of the Privacy Act of 1974. If
fees are assessable, a search cost estimate will be sent to the Key
Component(s) expected to maintain responsive records. If N5P assigns a
fee category to a requester which differs from that claimed by the
requester or determines that a waiver or reduction of fees is not
appropriate, N5P shall notify the requester of this discrepancy and of
the estimated cost of processing the request. The requester will be
given 30 days to provide additional substantiation for the fee status
claimed or for a fee waiver or reduction. The requester will be advised
that his/her request will not be processed until the discrepancy over
the fee category, fee waiver or reduction, or both are resolved. He/she
will also be advised of his/her right to appeal N5P's determination. A
fee waiver or reduction will be granted or denied in accordance with
DoD 5400.7-R and based on information provided by the requester. If the
requester does not respond to N5P's initial notification of the
discrepancy in fee assessment within the 30 days, N5P's determination
about that requester's fee status shall be final
    (b) Fees will reflect only direct search, review (in the case of
commercial requesters) and duplication costs, recovery of which are
permitted by 5 U.S.C. 552. Fees shall not be used to discourage
    (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:

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

    (f) Fees for machine time involved in computer searches shall be
based on the direct cost of retrieving information from the computer,
including associated input/output costs.
    (g) Search costs for audiovisual documentary material will be
computed as for any other record. Duplication costs will be the actual,
direct cost of reproducing the material, including the wage of the
person doing the work. Audiovisual materials provided to a requester
need not be in reproducible format or quality.
    (h) Duplication fees will be assessed according to the following

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

Sec. 299.7  Exempt records.

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

[[Page 52213]]

source, including a source within NSA/CSS, state, local, or foreign
agency or authority, or any private institution which furnishes the
information on a confidential basis, or could disclose information
furnished from a confidential source and obtained by a criminal law
enforcement authority in a criminal investigation or by an agency
conducting a lawful national security intelligence investigation;
    (v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law; and
    (vi) Could reasonably be expected to endanger the life or physical
safety of any individual.
    (8) Records contained in or related to examination, operating, or
condition reports prepared by, on behalf of, or for the use of an
agency responsible for the regulation or supervision of financial
    (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]