[Federal Register Volume 64, Number 177 (Tuesday, September 14, 1999)]
[Rules and Regulations]
[Pages 49878-49898]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-23243]
[[Page 49877]]
_______________________________________________________________________
Part IV
National Counterintelligence Center
_______________________________________________________________________
32 CFR Part 1800, et al.
Freedom of Information Act; Privacy Act; and Executive Order 12958;
Implementation; Interim Rule
Federal Register / Vol. 64, No. 177 / Tuesday, September 14, 1999 /
Rules and Regulations
[[Page 49878]]
NATIONAL COUNTERINTELLIGENCE CENTER
32 CFR Parts 1800, 1801, 1802, 1803, 1804, 1805, 1806 and 1807
Freedom of Information Act; Privacy Act; and Executive Order
12958; Implementation
AGENCY: National Counterintelligence Center (NACIC).
ACTION: Interim rule.
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SUMMARY: The National Counterintelligence Center (NACIC) is hereby
promulgating interim rules and soliciting comments prior to adoption of
final rules to implement its obligations under the Freedom of
Information Act, the Privacy Act, and Executive Order 12958 (or
successor Orders) provisions relating to classification challenges by
authorized holders, requests for mandatory declassification review, and
access by historical researchers.
DATES: The interim rules are effective September 14, 1999. Public
comments are solicited for the interim rules on or before November 15,
1999.
ADDRESSES: Comments may be submitted to the Information and Privacy
Coordinator, Executive Secretariat Office, National Counterintelligence
Center, 3W01 NHB, Washington, DC 20505.
FOR FURTHER INFORMATION CONTACT: Information and Privacy Coordinator,
Executive Secretariat Office, National Counterintelligence Center, 3W01
NHB, Washington, DC 20505; telephone (703) 874-4121 facsimile (703)
874-5844.
SUPPLEMENTARY INFORMATION: This document promulgates interim rules for
access under the Freedom of Information Act (FOIA), the Privacy Act
(PA), Executive Order (E.O.) 12958, and seeks public comment prior to
adoption of a final rule.
Part 1800 Public Access to NACIC Records Under the Freedom of
Information Act (FOIA)
This part is issued under the authority of and in order to
implement the Freedom of Information Act (FOIA), as amended (5 U.S.C.
552); and section 102 of the National Security Act of 1947, as amended
(50 U.S.C. 403). It prescribes procedures for requesting information on
available NACIC records, or NACIC administration of FOIA, or estimates
of fees that may become due as a result of a request, requesting
records pursuant to FOIA, and filing an administrative appeal of an
initial adverse decision under FOIA.
Part 1801 Public Rights Under the Privacy Act of 1974
This part is issued under the authority of and in order to
implement the Privacy Act of 1974(5 U.S.C. 552a) and Sec. 102 of the
National Security Act of 1947, as amended (50 U.S.C. 403). This part
implements procedures governing a request for notification that the
NACIC maintains a record concerning requestor in any non-exempt portion
of a system of records or any non-exempt system of records, to request
a copy of all non-exempt records or portions of records; to request
records be amended or augmented, or to file an administrative appeal
related to initial adverse determinations.
Part 1802 Challenges to Classification of Documents by Authorized
Holders Pursuant Sec. 1.9 of Executive Order 12958
This part is intended to implement the provisions of Sec. 1.9 of
Executive Order (E.O.) 12958 which permits authorized holders of
classified information to challenge the classified status of that
information. This provision and these regulations confer no rights upon
members of the general public who shall continue to request reviews of
classification under the Mandatory Declassification Review provisions
set forth at Sec. 3.6 of E.O. 12958 and at 32 CFR part 1803.
Part 1803 Public Request for Mandatory Declassification Review of
Classified Information pursuant to Sec. 3.6 of Executive Order
12958
This part is intended to implement the provisions of Sec. 3.6 of
Executive Order (E.O.) 12958 which permits members of the public to
request a declassification review of any information classified under
this or predecessor orders. It includes sections addressing the right
of appeal to the new Interagency Security Classification Appeals Panel
which was established pursuant to Sec. 5.4 of E.O. 12958. This
Executive Order provision and these regulations do not create any right
or benefit, substantive or procedural, enforceable at law by a party
against the United States, its agencies, officers, or employees.
Part 1804 Access by Historical Researchers and Former Presidential
Appointees Provision of Executive Order 12958
This part is issued under the authority of and in order to
implement Sec. 4.5 of E.O. 12958 (or successor Orders). It prescribes
procedures for requesting access to NACIC records for purposes of
historical research or requesting access to NACIC records as a former
Presidential appointee.
Part 1805 Production of Official Information or Disclosure of
Official Information in Proceedings Before Federal State or Local
Government Entities of Competent Jurisdiction
Part 1806 Procedures Governing Acceptance of Service of Process
Part 1807 Enforcement of Nondiscrimination on the Basis of
Disability in Programs or Activities Conducted by the National
Counterintelligence Center
This part is intended to implement the provisions of Sec. 4.5 of
Executive Order (E.O.) 12958 which provides a waiver of the need-to-
know principle in limited circumstances for historical researchers and
former Presidential appointees. These rules do not create any right or
benefit, substantive or procedural, enforceable at law by a party
against the United States, its agencies, officers, or employees. The
decision of NACIC in this regard is final.
List of Subjects
32 CFR Part 1800
Freedom of information, National Counterintelligence Center
32 CFR Part 1801
National Counterintelligence Center, Privacy
32 CFR Parts 1802 and 1803
Administrative practice and procedure, Classified information,
Executive Order, National Counterintelligence Center
32 CFR Part 1804
Administrative practice and procedure, National Counterintelligence
Center, Research-Historian, Presidential appointees
32 CFR Part 1805
Administrative practice and procedure, Information disclosure
32 CFR Part 1806
Buildings, Federal, Law-process servers
32 CFR Part 1807
Civil rights, Federal programs, Persons with disabilities
Dated: August 25, 1999.
Michael Waguespack,
Director, National Counterintelligence Center.
For the reasons set forth in the preamble, NACIC hereby adds
Chapter XVIII consisting of Parts 1800, 1801, 1802, 1803, 1804, 1805,
1806, and 1807 to read as follows:
[[Page 49879]]
Chapter XVIII--National Counterintelligence Center
PART 1800--PUBLIC ACCESS TO NACIC RECORDS UNDER THE FREEDOM OF
INFORMATION ACT (FOIA)
Subpart A--General
Sec.
1800.1 Authority and purpose.
1800.2 Definitions.
1800.3 Contact for general information and requests.
1800.4 Suggestions and complaints.
Subpart B--Filing of FOIA Requests
1800.11 Preliminary information.
1800.12 Requirements as to form and content.
1800.13 Fees for record services.
1800.14 Fee estimates (pre-request option).
Subpart C--NACIC Action on FOIA Requests
1800.21 Processing of requests for records.
1800.22 Action and determination(s) by originator(s) or any
interested party.
1800.23 Payment of fees, notification of decision, and right of
appeal.
Subpart D--Additional Administrative Matters
1800.31 Procedures for business information.
1800.32 Procedures for information concerning other persons.
1800.33 Allocation of resources; agreed extensions of time.
1800.34 Requests for expedited processing.
Subpart E--NACIC Action on FOIA Administrative Appeals
1800.41 Appeal authority.
1800.42 Right of appeal and appeal procedures.
1800.43 Determination(s) by Office Chief(s).
1800.44 Action by appeals authority.
1800.45 Notification of decision and right of judicial review.
Authority: 5 U.S.C. 552.
Subpart A--General
Sec. 1800.1 Authority and purpose.
This part is issued under the authority of and in order to
implement the Freedom of Information Act (FOIA), as amended (5 U.S.C.
552); and section 102 of the National Security Act of 1947, as amended
(50 U.S.C. 403). It prescribes procedures for:
(a) Requesting information on available NACIC records, or NACIC
administration of the FOIA, or estimates of fees that may become due as
a result of a request;
(b) Requesting records pursuant to the FOIA; and
(c) Filing an administrative appeal of an initial adverse decision
under the FOIA.
Sec. 1800.2 Definitions.
For purposes of this part, the following terms have the meanings
indicated:
NACIC means the United States National Counterintelligence Center
acting through the NACIC Information and Privacy Coordinator;
Days means calendar days when NACIC is operating and specifically
excludes Saturdays, Sundays, and legal public holidays. Three (3) days
may be added to any time limit imposed on a requester by this part if
responding by U.S. domestic mail; otherwise ten (10) days may be added
if responding by international mail;
Control means ownership or the authority of NACIC pursuant to
federal statute or privilege to regulate official or public access to
records;
Coordinator means the NACIC Information and Privacy Coordinator who
serves as the NACIC manager of the information review and release
program instituted under the Freedom of Information Act;
Direct-costs means those expenditures which an agency actually
incurs in the processing of a FOIA request; it does not include
overhead factors such as space; it does include:
(1) Pages means paper copies of standard office size or the dollar
value equivalent in other media;
(2) Reproduction means generation of a copy of a requested record
in a form appropriate for release;
(3) Review means all time expended in examining a record to
determine whether any portion must be withheld pursuant to law and in
effecting any required deletions but excludes personnel hours expended
in resolving general legal or policy issues; it also means personnel
hours of professional time;
(4) Search means all time expended in looking for and retrieving
material that may be responsive to a request utilizing available paper
and electronic indices and finding aids; it also means personnel hours
of professional time or the dollar value equivalent in computer
searches;
Expression of interest means a written communication submitted by a
member of the public requesting information on or concerning the FOIA
program and/or the availability of documents from NACIC;
Federal agency means any executive department, military department,
or other establishment or entity included in the definition of agency
in 5 U.S.C. 552(f);
Fees means those direct costs which may be assessed a requester
considering the categories established by the FOIA; requesters should
submit information to assist NACIC in determining the proper fee
category and NACIC may draw reasonable inferences from the identity and
activities of the requester in making such determinations; the fee
categories include:
(1) Commercial means a request in which the disclosure sought is
primarily in the commercial interest of the requester and which
furthers such commercial, trade, income or profit interests;
(2) Non-commercial educational or scientific institution means a
request from an accredited United States educational institution at any
academic level or institution engaged in research concerning the
social, biological, or physical sciences or an instructor or researcher
or member of such institutions; it also means that the information will
be used in a specific scholarly or analytical work, will contribute to
the advancement of public knowledge, and will be disseminated to the
general public;
(3) Representative of the news media means a request from an
individual actively gathering news for an entity that is organized and
operated to publish and broadcast news to the American public and
pursuant to their news dissemination function and not their commercial
interests; the term news means information which concerns current
events, would be of current interest to the general public, would
enhance the public understanding of the operations or activities of the
U.S. Government, and is in fact disseminated to a significant element
of the public at minimal cost; freelance journalists are included in
this definition if they can demonstrate a solid basis for expecting
publication through such an organization, even though not actually
employed by it; a publication contract or prior publication record is
relevant to such status;
(4) All other means a request from an individual not within
categories (h)(1), (2), or (3) of this section;
Freedom of Information Act or ``FOIA'' means the statutes as
codified at 5 U.S.C. 552;
Interested party means any official in the executive, military,
congressional, or judicial branches of government, United States or
foreign, or U.S. Government contractor who, in the sole discretion of
NACIC, has a subject matter or physical interest in the documents or
information at issue;
Originator means the U.S. Government official who originated the
document at issue or successor in office or such official who has been
delegated
[[Page 49880]]
release or declassification authority pursuant to law;
Potential requester means a person, organization, or other entity
who submits an expression of interest;
Reasonably described records means a description of a document
(record) by unique identification number or descriptive terms which
permit a NACIC employee to locate documents with reasonable effort
given existing indices and finding aids;
Records or agency records means all documents, irrespective of
physical or electronic form, made or received by NACIC in pursuance of
federal law or in connection with the transaction of public business
and appropriate for preservation by NACIC as evidence of the
organization, functions, policies, decisions, procedures, operations,
or other activities of NACIC or because of the informational value of
the data contained therein; it does not include:
(1) Books, newspapers, magazines, journals, magnetic or printed
transcripts of electronic broadcasts, or similar public sector
materials acquired generally and/or maintained for library or reference
purposes; to the extent that such materials are incorporated into any
form of analysis or otherwise distributed or published by NACIC, they
are fully subject to the disclosure provisions of the FOIA;
(2) Index, filing, or museum documents made or acquired and
preserved solely for reference, indexing, filing, or exhibition
purposes; and
(3) Routing and transmittal sheets and notes and filing or
destruction notes which do not also include information, comment, or
statements of substance;
Responsive records means those documents (i.e., records) which
NACIC has determined to be within the scope of a FOIA request.
Sec. 1800.3 Contact for general information and requests.
For general information on this part, to inquire about the FOIA
program at NACIC, or to file a FOIA request (or expression of
interest), please direct your communication in writing to the
Information and Privacy Coordinator, Executive Secretariat Office,
National Counterintelligence Center, 3W01 NHB, Washington, DC 20505.
Such inquiries will also be accepted by facsimile at (703)874-5844. For
general information or status information on pending cases only, the
telephone number is (703)874-4121. Collect calls cannot be accepted.
Sec. 1800.4 Suggestions and complaints.
NACIC welcomes suggestions or complaints with regard to its
administration of the Freedom of Information Act. Letters of suggestion
or complaint should identify the specific purpose and the issues for
consideration. NACIC will respond to all substantive communications and
take such actions as determined feasible and appropriate.
Subpart B--Filing of FOIA Requests
Sec. 1800.11 Preliminary information.
Members of the public shall address all communications to the NACIC
Coordinator as specified at Sec. 1800.03 and clearly delineate the
communication as a request under the Freedom of Information Act and
this regulation. NACIC employees receiving a communication in the
nature of a FOIA request shall expeditiously forward same to the
Coordinator. Requests and appeals on requests, referrals, or
coordinations received from members of the public who owe outstanding
fees for information services at this or other federal agencies will
not be accepted and action on all pending requests shall be terminated
in such circumstances.
Sec. 1800.12 Requirements as to form and content.
(a) Required information. No particular form is required. A request
need only reasonably describe the records of interest. This means that
documents must be described sufficiently to enable a professional
employee familiar with the subject to locate the documents with a
reasonable effort. Commonly this equates to a requirement that the
documents must be locatable through the indexing of our various
systems. Extremely broad or vague requests or requests requiring
research do not satisfy this requirement.
(b) Additional information for fee determination. In addition, a
requester should provide sufficient personal identifying information to
allow us to determine the appropriate fee category. A requester should
also provide an agreement to pay all applicable fees or fees not to
exceed a certain amount or request a fee waiver.
(c) Otherwise. Communications which do not meet these requirements
will be considered an expression of interest and NACIC will work with,
and offer suggestions to, the potential requester in order to define a
request properly.
Sec. 1800.13 Fees for record services.
(a) In general. Search, review, and reproduction fees will be
charged in accordance with the provisions below relating to schedule,
limitations, and category of requester. Applicable fees will be due
even if our search locates no responsive records or some or all of the
responsive records must be denied under one or more of the exemptions
of the Freedom of Information Act.
(b) Fee waiver requests. Records will be furnished without charge
or at a reduced rate whenever NACIC determines:
(1) That, as a matter of administrative discretion, the interest of
the United States Government would be served, or
(2) That it is in the public interest because it is likely to
contribute significantly to the public understanding of the operations
or activities of the United States Government and is not primarily in
the commercial interest of the requester; NACIC shall consider the
following factors when making this determination:
(i) Whether the subject of the request concerns the operations or
activities of the United States Government; and, if so,
(ii) Whether the disclosure of the requested documents is likely to
contribute to an understanding of United States Government operations
or activities; and, if so,
(iii) Whether the disclosure of the requested documents will
contribute to public understanding of United States Government
operations or activities; and, if so,
(iv) Whether the disclosure of the requested documents is likely to
contribute significantly to public understanding of United States
Government operations and activities; and
(v) Whether the requester has a commercial interest that would be
furthered by the requested disclosure; and, if so,
(vi) Whether the disclosure is primarily in the commercial interest
of the requester.
(c) Fee waiver appeals. Denials of requests for fee waivers or
reductions may be appealed to the Director, NACIC via the Coordinator.
A requester is encouraged to provide any explanation or argument as to
how his or her request satisfies the statutory requirement set forth in
paragraph (b) of this section.
(d) Time for fee waiver requests and appeals. It is suggested that
such requests and appeals be made and resolved prior to the initiation
of processing and the incurring of costs. However, fee waiver requests
will be accepted at any time prior to the release of documents or the
completion of a case, and fee waiver appeals within forty-five (45)
days of our initial decision subject to the following condition: if
processing has been initiated, then the requester must agree to be
responsible for costs in the event
[[Page 49881]]
of an adverse administrative or judicial decision.
(e) Agreement to pay fees. In order to protect requesters from
large and/or unanticipated charges, NACIC will request specific
commitment when it estimates that fees will exceed $100.00. NACIC will
hold in abeyance for forty-five (45) days requests requiring such
agreement and will thereafter deem the request closed. This action, of
course, would not prevent an individual from refiling his or her FOIA
request with a fee commitment at a subsequent date.
(f) Deposits. NACIC may require an advance deposit of up to 100
percent of the estimated fees when fees may exceed $250.00 and the
requester has no history of payment, or when, for fees of any amount,
there is evidence that the requester may not pay the fees which would
be accrued by processing the request. NACIC will hold in abeyance for
forty-five (45) days those requests where deposits have been requested.
(g) Schedule of fees--(1) In general. The schedule of fees for
services performed in responding to requests for records is established
as follows:
(i) Personnel Search and Review
Clerical/Technical__Quarter hour__$ 5.00__Professional/
Supervisory__Quarter hour__ 10.00____Manager/Senior
Professional__Quarter hour__18.00
(ii) Computer Search and Production
Search (on-line)__Flat rate__10.00__Search (off-line)__Flat
rate__30.00__Other activity__Per minute__10.00__Tapes (mainframe
cassette)__Each__9.00__Tapes (mainframe
cartridge)__Each__9.00__Tapes (mainframe reel)__Each__20.00__Tapes
(PC 9mm)__Each__25.00__Diskette (3.5'')
__Each__4.00__CD (bulk recorded)__Each__10.00__CD
(recordable)__Each__20.00__ Telecommunications __Per minute__.50__
Paper (mainframe printer)__Per page__.10__Paper (PC b&w laser
printer)__Per page__.10__Paper (PC color printer)__Per page__1.00
(iii) Paper Production
Photocopy (standard or legal)__Per page__.10__Microfiche__Per
frame__.20__Pre-printed (if available)__Per 100
pages__5.00__Published (if available)__Per item__NTIS__
(2) Application of schedule. Personnel search time includes time
expended in either manual paper records searches, indices searches,
review of computer search results for relevance, personal computer
system searches, and various reproduction services. In any event where
the actual cost to NACIC of a particular item is less than the above
schedule (e.g., a large production run of a document resulted in a cost
less than $5.00 per hundred pages), then the actual lesser cost will be
charged.
(3) Other services. For all other types of output, production, or
reproduction (e.g., photographs, maps, or published reports), actual
cost or amounts authorized by statute. Determinations of actual cost
shall include the commercial cost of the media, the personnel time
expended in making the item to be released, and an allocated cost of
the equipment used in making the item, or, if the production is
effected by a commercial service, then that charge shall be deemed the
actual cost for purposes of this part.
(h) Limitations on collection of fees--(1) In general. No fees will
be charged if the cost of collecting the fee is equal to or greater
than the fee itself. That cost includes the administrative costs to
NACIC of billing, receiving, recording, and processing the fee for
deposit to the Treasury Department and, as of the date of these
regulations, is deemed to be $10.00.
(2) Requests for personal information. No fees will be charged for
requesters seeking records about themselves under the FOIA; such
requests are processed in accordance with both the FOIA and the Privacy
Act in order to ensure the maximum disclosure without charge.
(i) Fee categories. There are four categories of FOIA requesters
for fee purposes: ``commercial use'' requesters, ``educational and non-
commercial scientific institution'' requesters, ``representatives of
the news media'' requesters, and ``all other'' requesters. The
categories are defined in Sec. 1800.2, and applicable fees, which are
the same in two of the categories, will be assessed as follows:
(1) ``Commercial use'' requesters: Charges which recover the full
direct costs of searching for, reviewing, and duplicating responsive
records (if any);
(2) ``Educational and non-commercial scientific institution''
requesters as well as ``representatives of the news media'' requesters:
Only charges for reproduction beyond the first 100 pages;
(3) ``All other'' requesters: Charges which recover the full direct
cost of searching for and reproducing responsive records (if any)
beyond the first 100 pages of reproduction and the first two hours of
search time which will be furnished without charge.
(j) Associated requests. A requester or associated requesters may
not file a series of multiple requests, which are merely discrete
subdivisions of the information actually sought for the purpose of
avoiding or reducing applicable fees. In such instances, NACIC may
aggregate the requests and charge the applicable fees.
Sec. 1800.14 Fee estimates (pre-request option).
In order to avoid unanticipated or potentially large fees, a
requester may submit a request for a fee estimate. Pursuant to the
Electronic Freedom of Information Act Amendments of 1996, NACIC will
endeavor within twenty (20) days to provide an accurate estimate, and,
if a request is thereafter submitted, NACIC will not accrue or charge
fees in excess of our estimate without the specific permission of the
requester.
Subpart C--NACIC Action On FOIA Requests
Sec. 1800.21 Processing of requests for records.
(a) In general. Requests meeting the requirements of Secs. 1800.11
through 1800.13 shall be accepted as formal requests and processed
under the Freedom of Information Act, 5 U.S.C. 552, and these
regulations. Pursuant to the Electronic Freedom of Information Act
Amendments of 1996, upon receipt, NACIC shall within twenty (20) days
record each request, acknowledge receipt to the requester in writing,
and thereafter effect the necessary taskings to the NACIC components
reasonably believed to hold responsive records.
(b) Database of ``officially released information.'' As an
alternative to extensive tasking and as an accommodation to many
requesters, NACIC maintains a database of ``officially released
information'' which contains copies of documents released by NACIC.
Searches of this database can be accomplished expeditiously. Moreover,
requests that are specific and well-focused will often incur minimal,
if any, costs. Requesters interested in this means of access should so
indicate in their correspondence. Consistent with the mandate of the
Electronic Freedom of Information Act Amendments of 1996, on-line
electronic access to these records is available to the public. Detailed
information regarding such access is available from the point of
contact specified in Sec. 1800.3.
(c) Effect of certain exemptions. In processing a request, NACIC
shall decline to confirm or deny the existence or nonexistence of any
responsive records whenever the fact of their existence or nonexistence
is itself classified under Executive Order 12958 and may jeopardize
intelligence sources or methods protected pursuant to section 103(c)(6)
of the National Security Act of 1947. In such circumstances, NACIC, in
the form of a final written response, shall so inform
[[Page 49882]]
the requester and advise of his or her right to an administrative
appeal.
(d) Time for response. Pursuant to the Electronic Freedom of
Information Act Amendments of 1996, NACIC will utilize every effort to
determine within the statutory guideline of twenty (20) days after
receipt of an initial request whether to comply with such a request.
However, should the volume of requests require that NACIC seek
additional time from a requester pursuant to Sec. 1800.33, NACIC will
inform the requester in writing and further advise of his or her right
to file an administrative appeal of any adverse determination.
Sec. 1800.22 Action and determination(s) by originator(s) or any
interested party.
(a) Initial action for access. (1) NACIC components tasked pursuant
to a FOIA request shall search all relevant record systems within their
cognizance. They shall:
(i) Determine whether a record exists;
(ii) Determine whether and to what extent any FOIA exemptions
apply;
(iii) Approve the disclosure of all non-exempt records or portions
of records for which they are the originator; and
(iv) Forward to the Coordinator all records approved for release or
necessary for coordination with or referral to another originator or
interested party.
(2) In making these decisions, the NACIC component officers shall
be guided by the applicable law as well as the procedures specified at
Sec. 1800.31 and Sec. 1800.32 regarding confidential commercial
information and personal information (about persons other than the
requester).
(b) Referrals and coordinations. As applicable and within twenty
(20) days, pursuant to the Electronic Freedom of Information Act
Amendments of 1996, of receipt by the Coordinator, any NACIC records
containing information originated by other NACIC components shall be
forwarded to those entities for action in accordance with paragraph (a)
of this section and return. Records originated by other federal
agencies or NACIC records containing other federal agency information
shall be forwarded to such agencies within twenty (20) days of our
completion of initial action in the case for action under their
regulations and direct response to the requester (for other agency
records) or return to NACIC (for NACIC records).
Sec. 1800.23 Payment of fees, notification of decision, and right of
appeal.
(a) Fees in general. Fees collected under this part do not accrue
to the National Counterintelligence Center and shall be deposited
immediately to the general account of the United States Treasury.
(b) Notification of decision. Upon completion of all required
review and the receipt of accrued fees (or promise to pay such fees),
NACIC will promptly inform the requester in writing of those records or
portions of records which may be released and which must be denied.
With respect to the former, NACIC will provide copies; with respect to
the latter, NACIC shall explain the reasons for the denial, identify
the person(s) responsible for such decisions by name and title, and
give notice of a right of administrative appeal.
(c) Availability of reading room. As an alternative to receiving
records by mail, a requester may arrange to inspect the records deemed
releasable at a NACIC ``reading room'' in the metropolitan Washington,
DC area. Access will be granted after applicable and accrued fees have
been paid. Requests to review or browse documents in our database of
``officially released records'' will also be honored in this manner to
the extent that paper copies or electronic copies in unclassified
computer systems exist. All such requests shall be in writing and
addressed pursuant to Sec. 1800.3. The records will be available at
such times as mutually agreed but not less than three (3) days from our
receipt of a request. The requester will be responsible for
reproduction charges for any copies of records desired.
Subpart D--Additional Administrative Matters
Sec. 1800.31 Procedures for business information.
(a) In general. Business information obtained by NACIC by a
submitter shall not be disclosed pursuant to a Freedom of Information
Act request except in accordance with this section. For purposes of
this section, the following definitions apply:
Business information means commercial or financial information in
which a legal entity has a recognized property interest;
Confidential commercial information means such business information
provided to the United States Government by a submitter which is
reasonably believed to contain information exempt from release under
exemption (b)(4) of the Freedom of Information Act, 5 U.S.C. 552,
because disclosure could reasonably be expected to cause substantial
competitive harm;
Submitter means any person or entity who provides confidential
commercial information to the United States Government; it includes,
but is not limited to, corporations, businesses (however organized),
state governments, and foreign governments; and
(b) Designation of confidential commercial information. A submitter
of business information will use good-faith efforts to designate, by
appropriate markings, either at the time of submission or at a
reasonable time thereafter, any portions of its submission that it
considers to be confidential commercial information and hence protected
from required disclosure pursuant to exemption (b)(4). Such
designations shall expire ten (10) years after the date of the
submission unless the submitter requests, and provides justification
for, a longer designation period.
(c) Process in event of FOIA request.--(1) Notice to submitters.
NACIC shall provide a submitter with prompt written notice of receipt
of a Freedom of Information Act request encompassing business
information whenever:
(i) The submitter has in good faith designated the information as
confidential commercial information, or
(ii) NACIC believes that disclosure of the information could
reasonably be expected to cause substantial competitive harm, and
(iii) The information was submitted within the last ten (10) years
unless the submitter requested and provided acceptable justification
for a specific notice period of greater duration.
(2) Form of notice. This notice shall either describe the exact
nature of the confidential commercial information at issue or provide
copies of the responsive records containing such information.
(3) Response by submitter. (i) Within seven (7) days of the above
notice, all claims of confidentiality by a submitter must be supported
by a detailed statement of any objection to disclosure. Such statement
shall:
(A) Specify that the information has not been disclosed to the
public;
(B) Explain why the information is contended to be a trade secret
or confidential commercial information;
(C) Explain how the information is capable of competitive damage if
disclosed;
(D) State that the submitter will provide NACIC and the Department
of Justice with such litigation defense as requested; and
(E) Be certified by an officer authorized to legally bind the
corporation or similar entity.
(ii) It should be noted that information provided by a submitter
pursuant to this provision may itself be subject to disclosure under
the FOIA.
(4) Decision and notice of intent to disclose. (i) NACIC shall
consider
[[Page 49883]]
carefully a submitter's objections and specific grounds for
nondisclosure prior to its final determination. If NACIC decides to
disclose a document over the objection of a submitter, NACIC shall
provide the submitter a written notice which shall include:
(A) A statement of the reasons for which the submitter's disclosure
objections were not sustained;
(B) A description of the information to be disclosed; and
(C) A specified disclosure date which is seven (7) days after the
date of the instant notice.
(i) When notice is given to a submitter under this section, NACIC
shall also notify the requester and, if NACIC notifies a submitter that
it intends to disclose information, then the requester shall be
notified also and given the proposed date for disclosure.
(5) Notice of FOIA lawsuit. If a requester initiates a civil action
seeking to compel disclosure of information asserted to be within the
scope of this section, NACIC shall promptly notify the submitter. The
submitter, as specified above, shall provide such litigation assistance
as required by NACIC and the Department of Justice.
(6) Exceptions to notice requirement. The notice requirements of
this section shall not apply if NACIC determines that:
(i) The information should not be disclosed in light of other FOIA
exemptions;
(ii) The information has been published lawfully or has been
officially made available to the public;
(iii) The disclosure of the information is otherwise required by
law or federal regulation; or
(iv) The designation made by the submitter under this section
appears frivolous, except that, in such a case, NACIC will, within a
reasonable time prior to the specified disclosure date, give the
submitter written notice of any final decision to disclose the
information.
Sec. 1800.32 Procedures for information concerning other persons.
(a) In general. Personal information concerning individuals other
than the requester shall not be disclosed under the Freedom of
Information Act if the proposed release would constitute a clearly
unwarranted invasion of personal privacy. See 5 U.S.C. 552(b)(6). For
purposes of this section, the following definitions apply:
Personal information means any information about an individual that
is not a matter of public record, or easily discernible to the public,
or protected from disclosure because of the implications that arise
from Government possession of such information.
Public interest means the public interest in understanding the
operations and activities of the United States Government and not
simply any matter which might be of general interest to the requester
or members of the public.
(b) Determination to be made. In making the required determination
under this section and pursuant to exemption (b)(6) of the FOIA, NACIC
will balance the privacy interests that would be compromised by
disclosure against the public interest in release of the requested
information.
(c) Otherwise. A requester seeking information on a third person is
encouraged to provide a signed affidavit or declaration from the third
person waiving all or some of their privacy rights. However, all such
waivers shall be narrowly construed and the Coordinator, in the
exercise of his discretion and administrative authority, may seek
clarification from the third party prior to any or all releases.
Sec. 1800.33 Allocation of resources; agreed extensions of time.
(a) In general. NACIC components shall devote such personnel and
other resources to the responsibilities imposed by the Freedom of
Information Act as may be appropriate and reasonable considering:
(1) The totality of resources available to the component,
(2) The business demands imposed on the component by the Director
of NACIC or otherwise by law,
(3) The information review and release demands imposed by the
Congress or other governmental authority, and
(4) The rights of all members of the public under the various
information review and disclosure laws.
(b) Discharge of FOIA responsibilities. Components shall exercise
due diligence in their responsibilities under the FOIA and must
allocate a reasonable level of resources to requests under the Act in a
strictly ``first-in, first-out'' basis and utilizing two or more
processing queues to ensure that smaller as well as larger (i.e.,
project) cases receive equitable attention. The Information and Privacy
Coordinator is responsible for management of the NACIC-wide program
defined by this part and for establishing priorities for cases
consistent with established law. The Director, NACIC shall provide
policy and resource direction as necessary and render decisions on
administrative appeals.
(c) Requests for extension of time. When NACIC is unable to meet
the statutory time requirements of the FOIA, it will inform the
requester that the request cannot be processed within the statutory
time limits, provide an opportunity for the requester to limit the
scope of the request so that it can be processed within the statutory
time limits, or arrange with the requester an agreed upon time frame
for processing the request, or determine that exceptional circumstances
mandate additional time in accordance with the definition of
``exceptional circumstances'' per section 552(a)(6)(C) of the Freedom
of Information Act, as amended, effective October 2, 1997. In such
instances NACIC will, however, inform a requester of his or her right
to decline our request and proceed with an administrative appeal or
judicial review as appropriate.
Sec. 1800.34 Requests for expedited processing.
(a) In general. All requests will be handled in the order received
on a strictly ``first-in, first-out'' basis. Exceptions to this section
will only be made in accordance with the following procedures. In all
circumstances, however, and consistent with established judicial
precedent, requests more properly the scope of requests under the
Federal Rules of Civil or Criminal Procedure (or other federal, state,
or foreign judicial or quasi-judicial rules) will not be granted
expedited processing under this or related (e.g., Privacy Act)
provisions unless expressly ordered by a federal court of competent
jurisdiction.
(b) Procedure. Requests for expedited processing will be approved
only when a compelling need is established to the satisfaction of
NACIC. A requester may make such a request with a certification of
``compelling need'' and, within ten (10) days of receipt, NACIC will
decide whether to grant expedited processing and will notify the
requester of its decision. The certification shall set forth with
specificity the relevant facts upon which the requester relies and it
appears to NACIC that substantive records relevant to the stated needs
may exist and be deemed releasable. A ``compelling need'' is deemed to
exist:
(1) When the matter involves an imminent threat to the life or
physical safety of an individual; or
(2) When the request is made by a person primarily engaged in
disseminating information and the information is relevant to a subject
of public urgency concerning an actual or alleged Federal government
activity.
[[Page 49884]]
Subpart E-NACIC Action On FOIA Administrative Appeals
Sec. 1800.41 Appeal authority.
The Director, NACIC will make final NACIC decisions from appeals of
initial adverse decisions under the Freedom of Information Act and such
other information release decisions made under parts 1801, 1802, and
1803 of this chapter. Matters decided by the Director, NACIC will be
deemed a final decision by NACIC.
Sec. 1800.42 Right of appeal and appeal procedures.
(a) Right of Appeal. A right of administrative appeal exists
whenever access to any requested record or any portion thereof is
denied, no records are located in response to a request, or a request
for a fee waiver is denied. NACIC will apprise all requesters in
writing of their right to appeal such decisions to the Director, NACIC
through the Coordinator.
(b) Requirements as to time and form. Appeals of decisions must be
received by the Coordinator within forty-five (45) days of the date of
NACIC's initial decision. NACIC may, for good cause and as a matter of
administrative discretion, permit an additional thirty (30) days for
the submission of an appeal. All appeals shall be in writing and
addressed as specified in Sec. 1800.3. All appeals must identify the
documents or portions of documents at issue with specificity and may
present such information, data, and argument in support as the
requester may desire.
(c) Exceptions. No appeal shall be accepted if the requester has
outstanding fees for information services at this or another federal
agency. In addition, no appeal shall be accepted if the information in
question has been the subject of a review within the previous two (2)
years or is the subject of pending litigation in the federal courts.
(d) Receipt, recording, and tasking. NACIC shall promptly record
each request received under this part, acknowledge receipt to the
requester in writing, and thereafter effect the necessary taskings to
the office(s) which originated or has an interest in the record(s)
subject to the appeal.
(e) Time for response. NACIC shall attempt to complete action on an
appeal within twenty (20) days of the date of receipt. The volume of
requests, however, may require that NACIC request additional time from
the requester pursuant to Sec. 1800.33. In such event, NACIC will
inform the requester of the right to judicial review.
Sec. 1800.43 Determination(s) by Office Chief(s).
Each Office Chief in charge of an office which originated or has an
interest in any of the records subject to the appeal, or designee, is a
required party to any appeal; other interested parties may become
involved through the request of the Coordinator when it is determined
that some or all of the information is also within their official
cognizance. These parties shall respond in writing to the Coordinator
with a finding as to the exempt status of the information. This
response shall be provided expeditiously on a ``first-in, first-out''
basis taking into account the business requirements of the parties and
consistent with the information rights of members of the general public
under the various information review and release laws.
Sec. 1800.44 Action by appeals authority.
(a) Preparation of docket. The Coordinator shall provide a
summation memorandum for consideration of the Director, NACIC; the
complete record of the request consisting of the request, the
document(s) (sanitized and full text) at issue, and the findings of
concerned Office Chiefs or designee(s).
(b) Decision by the Director, NACIC. The Director, NACIC shall
personally decide each case; no personal appearances shall be permitted
without the express permission of the Director, NACIC.
Sec. 1800.45 Notification of decision and right of judicial review.
The Coordinator shall promptly prepare and communicate the decision
of the Director, NACIC to the requester. With respect to any decision
to deny information, that correspondence shall state the reasons for
the decision, identify the officer responsible, and include a notice of
a right to judicial review.
PART 1801--PUBLIC RIGHTS UNDER THE PRIVACY ACT OF 1974
Subpart A-General
Sec.
1801.1 Authority and purpose.
1801.2 Definitions.
1801.3 Contact for general information and requests.
1801.4 Suggestions and complaints.
Subpart B-Filing Of Privacy Act Requests
1801.11 Preliminary information.
1801.12 Requirements as to form.
1801.13 Requirements as to identification of requester.
1801.14 Fees.
Subpart C-Action On Privacy Act Requests
1801.21 Processing requests for access to or amendment of records.
1801.22 Action and determination(s) by originator(s) or any
interested party.
1801.23 Notification of decision and right of appeal.
Subpart D-Additional Administrative Matters
1801.31 Special procedures for medical and psychological records.
1801.32 Requests for expedited processing.
1801.33 Allocation of resources; agreed extensions of time.
Subpart E-Action On Privacy Act Administrative Appeals
1801.41 Appeal authority.
1801.42 Right of appeal and appeal procedures.
1801.43 Determination(s) by Office Chief(s).
1801.44 Action by appeals authority.
1801.45 Notification of decision and right of judicial review.
Subpart F-Prohibitions
1801.51 Limitations on disclosure.
1801.52 Criminal penalties.
Subpart G-Exemptions
1801.63 Specific exemptions.
Authority: 5 U.S.C. 552a.
Subpart A-General
Sec. 1801.1 Authority and purpose.
(a) Authority. This part is issued under the authority of and in
order to implement the Privacy Act of 1974 (5 U.S.C. 552a) and section
102 of the National Security Act of 1947, as amended (50 U.S.C. 403).
(b) Purpose in general. This part prescribes procedures for a
requester, as defined herein:
(1) To request notification of whether the National
Counterintellingence Center (NACIC) maintains a record concerning them
in any non-exempt portion of a system of records or any non-exempt
system of records;
(2) To request a copy of all non-exempt records or portions of
records;
(3) To request that any such record be amended or augmented; and
(4) To file an administrative appeal to any initial adverse
determination to deny access to or amend a record.
(c) Other purposes. This part also sets forth detailed limitations
on how and to whom NACIC may disclose personal information and gives
notice that certain actions by officers or employees of the United
States Government or members of the public could constitute criminal
offenses.
[[Page 49885]]
Sec. 1801.2 Definitions.
For purposes of this part, the following terms have the meanings
indicated:
NACIC means the United States National Counterintelligence Center
acting through the NACIC Information and Privacy Coordinator;
Days means calendar days when NACIC is operating and specifically
excludes Saturdays, Sundays, and legal public holidays. Three (3) days
may be added to any time limit imposed on a requester by this part if
responding by U.S. domestic mail; ten (10) days may be added if
responding by international mail;
Control means ownership or the authority of NACIC pursuant to
federal statute or privilege to regulate official or public access to
records;
Coordinator means the NACIC Information and Privacy Coordinator who
serves as the NACIC manager of the information review and release
program instituted under the Privacy Act;
Federal agency means any executive department, military department,
or other establishment or entity included in the definition of agency
in 5 U.S.C. 552(f);
Interested party means any official in the executive, military,
congressional, or judicial branches of government, United States or
foreign, or U.S. Government contractor who, in the sole discretion of
NACIC, has a subject matter or physical interest in the documents or
information at issue;
Maintain means maintain, collect, use, or disseminate;
Originator means the U.S. Government official who originated the
document at issue or successor in office or such official who has been
delegated release or declassification authority pursuant to law;
Privacy Act or PA means the statute as codified at 5 U.S.C. 552a;
Record means an item, collection, or grouping of information about
an individual that is maintained by NACIC in a system of records;
Requester or individual means a citizen of the United States or an
alien lawfully admitted for permanent residence who is a living being
and to whom a record might pertain;
Responsive record means those documents (records) which NACIC has
determined to be within the scope of a Privacy Act request;
Routine use means, with respect to the disclosure of a record, the
use of such record for a purpose which is compatible with the purpose
for which the record is maintained;
System of records means a group of any records under the control of
NACIC from which records are retrieved by the name of an individual or
by some identifying number, symbol, or other identifying particular
assigned to that individual.
Sec. 1801.3 Contact for general information and requests.
For general information on this part, to inquire about the Privacy
Act program at NACIC, or to file a Privacy Act request, please direct
your communication in writing to the Information and Privacy
Coordinator, Executive Secretariat Office, National Counterintelligence
Center, 3W01 NHB, Washington, DC 20505. Requests with the required
identification statement pursuant to Sec. 1801.13 must be filed in
original form by mail. Subsequent communications and any inquiries will
be accepted by mail or facsimile at (703) 874-5844 or by telephone at
(703) 874-4121. Collect calls cannot be accepted.
Sec. 1801.4 Suggestions and complaints.
NACIC welcomes suggestions or complaints with regard to its
administration of the Privacy Act. Letters of suggestion or complaint
should identify the specific purpose and the issues for consideration.
NACIC will respond to all substantive communications and take such
actions as determined feasible and appropriate.
Subpart B--Filing Of Privacy Act Requests
Sec. 1801.11 Preliminary information.
Members of the public shall address all communications to the
contact specified at Sec. 1801.3 and clearly delineate the
communication as a request under the Privacy Act and this regulation.
Requests and administrative appeals on requests, referrals, and
coordinations received from members of the public who owe outstanding
fees for information services at this or other federal agencies will
not be accepted and action on existing requests and appeals will be
terminated in such circumstances.
Sec. 1801.12 Requirements as to form.
(a) In general. No particular form is required. All requests must
contain the identification information required at Sec. 1801.13.
(b) For access. For requests seeking access, a requester should, to
the extent possible, describe the nature of the record sought and the
record system(s) in which it is thought to be included. Requesters may
find assistance from information described in the Privacy Act Issuances
Compilation which is published biennially by the Federal Register. In
lieu of this, a requester may simply describe why and under what
circumstances it is believed that NACIC maintains responsive records;
NACIC will undertake the appropriate searches.
(c) For amendment. For requests seeking amendment, a requester
should identify the particular record or portion subject to the
request, state a justification for such amendment, and provide the
desired amending language.
Sec. 1801.13 Requirements as to identification of requester.
(a) In general. Individuals seeking access to or amendment of
records concerning themselves shall provide their full (legal) name,
address, date and place of birth, and current citizenship status
together with a statement that such information is true under penalty
of perjury or a notarized statement swearing to or affirming identity.
If NACIC determines that this information is not sufficient, NACIC may
request additional or clarifying information.
(b) Requirement for aliens. Only aliens lawfully admitted for
permanent residence (PRAs) may file a request pursuant to the Privacy
Act and this part. Such individuals shall provide, in addition to the
information required under paragraph (a) of this section, their Alien
Registration Number and the date that status was acquired.
(c) Requirement for representatives. The parent or guardian of a
minor individual, the guardian of an individual under judicial
disability, or an attorney retained to represent an individual shall
provide, in addition to establishing the identity of the minor or
individual represented as required in paragraph (a) or (b) of this
section, evidence of such representation by submission of a certified
copy of the minor's birth certificate, court order, or representational
agreement which establishes the relationship and the requester's
identity.
(d) Procedure otherwise. If a requester or representative fails to
provide the information in paragraph (a), (b), or (c) of this section
within forty-five (45) days of the date of our request, NACIC will deem
the request closed. This action, of course, would not prevent an
individual from refiling his or her Privacy Act request at a subsequent
date with the required information.
Sec. 1801.14 Fees.
No fees will be charged for any action under the authority of the
Privacy Act, 5 U.S.C. 552a, irrespective of the fact that a request is
or may be processed under the authority of both the Privacy Act and the
Freedom of Information Act.
[[Page 49886]]
Subpart C-Action On Privacy Act Requests
Sec. 1801.21 Processing requests for access to or amendment of
records.
(a) In general. Requests meeting the requirements of Sec. 1801.11
through Sec. 1801.13 shall be processed under both the Freedom of
Information Act, 5 U.S.C. 552, and the Privacy Act, 5 U.S.C. 552a, and
the applicable regulations, unless the requester demands otherwise in
writing. Such requests will be processed under both Acts regardless of
whether the requester cites one Act in the request, both, or neither.
This action is taken in order to ensure the maximum possible disclosure
to the requester.
(b) Receipt, recording and tasking. Upon receipt of a request
meeting the requirements of Secs. 1801.11 through 1801.13, NACIC shall
within ten (10) days record each request, acknowledge receipt to the
requester, and thereafter effect the necessary taskings to the
office(s) reasonably believed to hold responsive records.
(c) Effect of certain exemptions. In processing a request, NACIC
shall decline to confirm or deny the existence or nonexistence of any
responsive records whenever the fact of their existence or nonexistence
is itself classified under Executive Order 12958 and that confirmation
of the existence of a record may jeopardize intelligence sources and
methods protected pursuant to section 103(c)(6) of the National
Security Act of 1947. In such circumstances, NACIC, in the form of a
final written response, shall so inform the requester and advise of his
or her right to an administrative appeal.
(d) Time for response. Although the Privacy Act does not mandate a
time for response, our joint treatment of requests under both the
Privacy Act and the FOIA means that the NACIC should provide a response
within the FOIA statutory guideline of ten (10) days on initial
requests and twenty (20) days on administrative appeals. However, the
volume of requests may require that NACIC seek additional time from a
requester pursuant to Sec. 1801.33. In such event, NACIC will inform
the requester in writing and further advise of his or her right to file
an administrative appeal.
Sec. 1801.22 Action and determination(s) by originator(s) or any
interested party.
(a) Initial action for access. NACIC offices tasked pursuant to a
Privacy Act access request shall search all relevant record systems
within their cognizance. They shall:
(1) Determine whether responsive records exist;
(2) Determine whether access must be denied in whole or part and on
what legal basis under both Acts in each such case;
(3) Approve the disclosure of records for which they are the
originator; and
(4) Forward to the Coordinator all records approved for release or
necessary for coordination with or referral to another originator or
interested party as well as the specific determinations with respect to
denials (if any).
(b) Initial action for amendment. NACIC offices tasked pursuant to
a Privacy Act amendment request shall review the official records
alleged to be inaccurate and the proposed amendment submitted by the
requester. If they determine that NACIC's records are not accurate,
relevant, timely or complete, they shall promptly:
(1) Make the amendment as requested;
(2) Write to all other identified persons or agencies to whom the
record has been disclosed (if an accounting of the disclosure was made)
and inform of the amendment; and
(3) Inform the Coordinator of such decisions.
(c) Action otherwise on amendment request. If the NACIC office
records manager declines to make the requested amendment (or declines
to make the requested amendment) but agrees to augment the official
records, that manager shall promptly:
(1) Set forth the reasons for refusal; and
(2) Inform the Coordinator of such decision and the reasons
therefore.
(d) Referrals and coordinations. As applicable and within ten (10)
days of receipt by the Coordinator, any NACIC records containing
information originated by other NACIC offices shall be forwarded to
those entities for action in accordance with paragraphs (a), (b), or
(c) of this section and return. Records originated by other federal
agencies or NACIC records containing other federal information shall be
forwarded to such agencies within ten (10) days of our completion of
initial action in the case for action under their regulations and
direct response to the requester (for other NACIC records) or return to
NACIC (for NACIC records).
(e) Effect of certain exemptions. This section shall not be
construed to allow access to systems of records exempted by the
Director, NACIC pursuant to subsections (j) and (k) of the Privacy Act
or where those exemptions require that NACIC can neither confirm nor
deny the existence or nonexistence of responsive records.
Sec. 1801.23 Notification of decision and right of appeal.
Within ten (10) days of receipt of responses to all initial
taskings and subsequent coordinations (if any), and dispatch of
referrals (if any), NACIC will provide disclosable records to the
requester. If a determination has been made not to provide access to
requested records (in light of specific exemptions) or that no records
are found, NACIC shall so inform the requester, identify the denying
official, and advise of the right to administrative appeal.
Subpart D--Additional Administrative Matters
Sec. 1801.31 Special procedures for medical and psychological records.
(a) In general. When a request for access or amendment involves
medical or psychological records and when the originator determines
that such records are not exempt from disclosure, NACIC will, after
consultation with the Director of Medical Services, CIA, determine:
(1) Which records may be sent directly to the requester and
(2) Which records should not be sent directly to the requester
because of possible medical or psychological harm to the requester or
another person.
(b) Procedure for records to be sent to physician. In the event
that NACIC determines, in accordance with paragraph (a)(2) of this
section, that records should not be sent directly to the requester,
NACIC will notify the requester in writing and advise that the records
at issue can be made available only to a physician of the requester's
designation. Upon receipt of such designation, verification of the
identity of the physician, and agreement by the physician:
(1) To review the documents with the requesting individual,
(2) To explain the meaning of the documents, and
(3) To offer counseling designed to temper any adverse reaction,
NACIC will forward such records to the designated physician.
(c) Procedure if physician option not available. If within sixty
(60) days of paragraph (a)(2) of this section, the requester has failed
to respond or designate a physician, or the physician fails to agree to
the release conditions, NACIC will hold the documents in abeyance and
advise the requester that this action may be construed as a technical
denial. NACIC will also advise the requester of the responsible
official and of his or her rights to administrative appeal and
thereafter judicial review.
[[Page 49887]]
Sec. 1801.32 Requests for expedited processing.
(a) All requests will be handled in the order received on a
strictly ``first-in, first-out'' basis. Exceptions to this rule will
only be made in circumstances that NACIC deems to be exceptional. In
making this determination, NACIC shall consider and must decide in the
affirmative on all of the following factors:
(1) That there is a genuine need for the records; and
(2) That the personal need is exceptional; and
(3) That there are no alternative forums for the records sought;
and
(4) That it is reasonably believed that substantive records
relevant to the stated needs may exist and be deemed releasable.
(b) In sum, requests shall be considered for expedited processing
only when health, humanitarian, or due process considerations involving
possible deprivation of life or liberty create circumstances of
exceptional urgency and extraordinary need. In accordance with
established judicial precedent, requests more properly the scope of
requests under the Federal Rules of Civil or Criminal Procedure (or
equivalent state rules) will not be granted expedited processing under
this or related (e.g., Freedom of Information Act) provisions unless
expressly ordered by a federal court of competent jurisdiction.
Sec. 1801.33 Allocation of resources; agreed extensions of time.
(a) In general. NACIC components shall devote such personnel and
other resources to the responsibilities imposed by the Privacy Act as
may be appropriate and reasonable considering:
(1) The totality of resources available to the component,
(2) The business demands imposed on the component by the Director,
NACIC or otherwise by law,
(3) The information review and release demands imposed by the
Congress or other governmental authority, and
(4) The rights of all members of the public under the various
information review and disclosure laws.
(b) Discharge of Privacy Act responsibilities. Offices shall
exercise due diligence in their responsibilities under the Privacy Act
and must allocate a reasonable level of resources to requests under the
Act in a strictly ``first-in, first-out'' basis and utilizing two or
more processing queues to ensure that smaller as well as larger (i.e.,
project) cases receive equitable attention. The Information and Privacy
Coordinator is responsible for management of the NACIC-wide program
defined by this part and for establishing priorities for cases
consistent with established law. The Director, NACIC shall provide
policy and resource direction as necessary and shall render decisions
on administrative appeals.
(c) Requests for extension of time. While the Privacy Act does not
specify time requirements, our joint treatment of requests under the
FOIA means that when NACIC is unable to meet the statutory time
requirements of the FOIA, NACIC may request additional time from a
requester. In such instances NACIC will inform a requester of his or
her right to decline our request and proceed with an administrative
appeal or judicial review as appropriate.
Subpart E--Action On Privacy Act Administrative Appeals
Sec. 1801.41 Appeal authority.
The Director, NACIC will make final NACIC decisions from appeals of
initial adverse decisions under the Privacy Act and such other
information release decisions made under 32 CFR parts 1800, 1802, and
1803 of this chapter. Matters decided by the Director, NACIC will be
deemed a final decision by NACIC.
Sec. 1801.42 Right of appeal and appeal procedures.
(a) Right of Appeal. A right of administrative appeal exists
whenever access to any requested record or any portion thereof is
denied, no records are located in response to a request, or a request
for amendment is denied. NACIC will apprise all requesters in writing
of their right to appeal such decisions to the Director, NACIC through
the Coordinator.
(b) Requirements as to time and form. Appeals of decisions must be
received by the Coordinator within forty-five (45) days of the date of
NACIC's initial decision. NACIC may, for good cause and as a matter of
administrative discretion, permit an additional thirty (30) days for
the submission of an appeal. All appeals to the Director, NACIC shall
be in writing and addressed as specified in Sec. 1801.3. All appeals
must identify the documents or portions of documents at issue with
specificity, provide the desired amending language (if applicable), and
may present such information, data, and argument in support as the
requester may desire.
(c) Exceptions. No appeal shall be accepted if the requester has
outstanding fees for information services at this or another federal
agency. In addition, no appeal shall be accepted if the information in
question has been the subject of an administrative review within the
previous two (2) years or is the subject of pending litigation in the
federal courts.
(d) Receipt, recording, and tasking. NACIC shall promptly record
each administrative appeal, acknowledge receipt to the requester in
writing, and thereafter effect the necessary taskings to the office
chief in charge of the office(s) which originated or has an interest in
the record(s) subject to the appeal.
Sec. 1801.43 Determination(s) by Office Chiefs.
Each Office Chief in charge of an office which originated or has an
interest in any of the records subject to the appeal, or designee, is a
required party to any appeal; other interested parties may become
involved through the request of the Coordinator when it is determined
that some or all of the information is also within their official
cognizance. These parties shall respond in writing to the Coordinator
with a finding as to the exempt or non-exempt status of the information
including citations to the applicable exemption and/or their agreement
or disagreement as to the requested amendment and the reasons
therefore. Each response shall be provided expeditiously on a ``first-
in, first-out'' basis taking into account the business requirements of
the parties and consistent with the information rights of members of
the general public under the various information review and release
laws.
Sec. 1801.44 Action by appeals authority.
(a) Preparation of docket. The Coordinator shall provide a
summation memorandum for consideration of the Director, NACIC; the
complete record of the request consisting of the request, the
document(s) (sanitized and full text) at issue, and the findings of any
concerned office chiefs or designee(s).
(b) Decision by the Director, NACIC. The Director, NACIC shall
personally decide each case; no personal appearances shall be permitted
without the express permission of the Director, NACIC.
Sec. 1801.45 Notification of decision and right of judicial review.
(a) In general. The Coordinator shall promptly prepare and
communicate the decision of the Director, NACIC to the requester. With
respect to any decision to deny information or deny amendment, that
correspondence shall
[[Page 49888]]
state the reasons for the decision, identify the officer responsible,
and include a notice of the right to judicial review.
(b) For amendment requests. With further respect to any decision to
deny an amendment, that correspondence shall also inform the requester
of the right to submit within forty-five (45) days a statement of his
or her choice which shall be included in the official records of NACIC.
In such cases, the applicable record system manager shall clearly note
any portion of the official record which is disputed, append the
requester's statement, and provide copies of the statement to previous
recipients (if any are known) and to any future recipients when and if
the disputed information is disseminated in accordance with a routine
use.
Subpart F--Prohibitions
Sec. 1801.51 Limitations on disclosure.
No record which is within a system of records shall be disclosed by
any means of communication to any individual or to another agency,
except pursuant to a written request by, or with the prior written
consent of, the individual to whom the record pertains, unless
disclosure of the record would be:
(a) To those officers and employees of NACIC which maintains the
record who have a need for the record in the performance of their
duties;
(b) Required under the Freedom of Information Act, 5 U.S.C. 552;
(c) For a routine use as defined in Sec. 1801.02(m), as contained
in the Privacy Act Issuances Compilation which is published biennially
in the Federal Register, and as described in sections (a)(7) and
(e)(4)(D) of the Act;
(d) To the Bureau of the Census for purposes of planning or
carrying out a census or survey or related activity pursuant to the
provisions of U.S.C. Title 13;
(e) To a recipient who has provided NACIC with advance adequate
written assurance that the record will be used solely as a statistical
research or reporting record, and the record is to be transferred in a
form that is not individually identifiable;
(f) To the National Archives and Records Administration as a record
which has sufficient historical or other value to warrant its continued
preservation by the United States Government, or for evaluation by the
Archivist of the United States or designee to determine whether the
record has such value;
(g) To another agency or to an instrumentality of any governmental
jurisdiction within or under the control of the United States for a
civil or criminal law enforcement activity if the activity is
authorized by law, and if the head of that agency or instrumentality
has made a written request to NACIC specifying the particular
information desired and the law enforcement activity for which the
record is sought;
(h) To a person pursuant to a showing of compelling circumstances
affecting the health or safety of an individual if upon such disclosure
notification is transmitted to the last known address of such
individual;
(i) To either House of Congress, or, to the extent of matter within
its jurisdiction, any committee or subcommittee thereof, any joint
committee of Congress or subcommittee of any such joint committee;
(j) To the Comptroller General or any of his authorized
representatives in the course of the performance of the duties of the
General Accounting Office; or
(k) To any agency, government instrumentality, or other person or
entity pursuant to the order of a court of competent jurisdiction of
the United States or constituent states.
Sec. 1801.52 Criminal penalties.
(a) Unauthorized disclosure. Criminal penalties may be imposed
against any officer or employee of NACIC who, by virtue of employment,
has possession of or access to NACIC records which contain information
identifiable with an individual, the disclosure of which is prohibited
by the Privacy Act or by these rules, and who, knowing that disclosure
of the specific material is so prohibited, willfully discloses the
material in any manner to any person or agency not entitled to receive
same.
(b) Unauthorized maintenance. Criminal penalties may be imposed
against any officer or employee of NACIC who willfully maintains a
system of records without meeting the requirements of section (e)(4) of
the Privacy Act, 5 U.S.C. 552a. The Coordinator and the Director of
NACIC are authorized independently to conduct such surveys and inspect
such records as necessary from time to time to ensure that these
requirements are met.
(c) Unauthorized requests. Criminal penalties may be imposed upon
any person who knowingly and willfully requests or obtains any record
concerning an individual from NACIC under false pretenses.
Subpart G--Exemptions
Sec. 1801.63 Specific exemptions.
Pursuant to authority granted in section (k) of the Privacy Act,
the Director, NACIC has determined to exempt from section (d) of the
Privacy Act those portions and only those portions of all systems of
records maintained by NACIC that would consist of, pertain to, or
otherwise reveal information that is:
(a) Classified pursuant to Executive Order 12958 (or successor or
prior Order) and thus subject to the provisions of 5 U.S.C. 552(b)(1)
and 5 U.S.C. 552a(k)(1);
(b) Investigatory in nature and compiled for law enforcement
purposes, other than material within the scope of section (j)(2) of the
Act; provided however, that if an individual is denied any right,
privilege, or benefit to which they are otherwise eligible, as a result
of the maintenance of such material, then such material shall be
provided to that individual except to the extent that the disclosure
would reveal the identity of a source who furnished the information to
the United States Government under an express promise of
confidentiality, or, prior to the effective date of this section, under
an implied promise of confidentiality;
(c) Maintained in connection with providing protective services to
the President of the United States or other individuals pursuant to 18
U.S.C. 3056;
(d) Required by statute to be maintained and used solely as
statistical records;
(e) Investigatory in nature and compiled solely for the purpose of
determining suitability, eligibility, or qualifications for federal
civilian employment, military service, federal contracts, or access to
classified information, but only to the extent that the disclosure of
such material would reveal the identity of a source who furnished
information to the United States Government under an express promise of
confidentiality, or, prior to the effective date of this section, under
an implied promise of confidentiality;
(f) Testing or examination material used solely to determine
individual qualifications for appointment or promotion in the federal
service the disclosure of which would compromise the objectivity or
fairness of the testing or examination process; or
(g) Evaluation material used to determine potential for promotion
in the armed services, but only to the extent that the disclosure of
such material would reveal the identity of a source who furnished
information to the United States Government under an express promise of
confidentiality, or, prior to the effective date of this section, under
an implied promise of confidentiality.
[[Page 49889]]
PART 1802--CHALLENGES TO CLASSIFICATION OF DOCUMENTS BY AUTHORIZED
HOLDERS PURSUANT TO SECTION 1.9 OF EXECUTIVE ORDER 12958
Subpart A--General
Sec.
1802.1 Authority and purpose.
1802.2 Definitions.
1802.3 Contact for general information and requests.
1802.4 Suggestions and complaints.
Subpart B--Filing of Challenges
1802.11 Prerequisites.
1802.12 Requirements as to form.
1802.13 Identification of material at issue.
1802.14 Transmission.
Subpart C--Action on Challenges
1802.21 Receipt, recording, and tasking.
1802.22 Challenges barred by res judicata.
1802.23 Determination by originator(s) and/or any interested party.
1802.24 Designation of authority to hear challenges.
1802.25 Action on Challenges.
1802.26 Notification of decision and prohibition on adverse action.
Subpart D--Right of Appeal
1802.31 Right of Appeal.
Authority: Executive Order 12958, 60 FR 19825, 3 CFR 1996 Comp.,
p. 333-356 (or successor Orders).
Subpart A--General
Sec. 1802.1 Authority and purpose.
(a) Authority. This part is issued under the authority of and in
order to implement Sec. 1.9 of Executive Order (E.O.) 12958 and section
102 of the National Security Act of 1947.
(b) Purpose. This part prescribes procedures for authorized holders
of information classified under the various provisions of E.O. 12958,
or predecessor Orders, to seek a review or otherwise challenge the
classified status of information to further the interests of the United
States Government. This part and Sec. 1.9 of E.O. 12958 confer no
rights upon members of the general public, or authorized holders acting
in their personal capacity, both of whom shall continue to request
reviews of classification under the mandatory declassification review
provisions set forth at Sec. 3.6 of E.O. 12958.
Sec. 1802.2 Definitions.
For purposes of this part, the following terms have the meanings as
indicated:
NACIC means the United States National Counterintelligence Center
acting through the NACIC Information and Privacy Coordinator;
Authorized holders means any member of any United States executive
department, military department, the Congress, or the judiciary
(Article III) who holds a security clearance from or has been
specifically authorized by NACIC to possess and use on official
business classified information, or otherwise has Constitutional
authority pursuant to their office;
Days means calendar days when NACIC is operating and specifically
excludes Saturdays, Sundays, and legal public holidays. Three (3) days
may be added to any requirement of this part if responding by U.S.
domestic mail; ten (10) days may be added if responding by
international mail;
Challenge means a request in the individual's official, not
personal, capacity and in furtherance of the interests of the United
States;
Control means ownership or the authority of NACIC pursuant to
federal statute or privilege to regulate official or public access to
records;
Coordinator means the NACIC Information and Privacy Coordinator
acting in the capacity of the Director of NACIC;
Information means any knowledge that can be communicated or
documentary material, regardless of its physical form, that is:
(1) Owned by, produced by or for, or under the control of the
United States Government, and
(2) Lawfully and actually in the possession of an authorized holder
and for which ownership and control has not been relinquished by NACIC;
Interested party means any official in the executive, military,
congressional, or judicial branches of government, United States or
foreign, or U.S. Government contractor who, in the sole discretion of
NACIC, has a subject matter or physical interest in the documents or
information at issue;
Originator means the NACIC officer who originated the information
at issue, or successor in office, or a NACIC officer who has been
delegated declassification authority for the information at issue in
accordance with the provisions of this Order;
This Order means Executive Order 12958 of April 17, 1995, or
successor Orders.
Sec. 1802.3 Contact for general information and requests.
For information on this part or to file a challenge under this
part, please direct your inquiry to the Director, National
Counterintelligence Center, Washington, DC 20505. The commercial (non-
secure) telephone is (703) 874-4117; the classified (secure) telephone
for voice and facsimile is (703) 874-5829.
Sec. 1802.4 Suggestions and complaints.
NACIC welcomes suggestions or complaints with regard to its
administration of the Executive Order. Letters of suggestion or
complaint should identify the specific purpose and the issues for
consideration. NACIC will respond to all substantive communications and
take such actions as determined feasible and appropriate.
Subpart B-Filing Of Challenges
Sec. 1802.11 Prerequisites.
Prior to reliance on this part, authorized holders are required to
first exhaust such established administrative procedures for the review
of classified information. Further information on these procedures is
available from the point of contact, Sec. 1802.3.
Sec. 1802.12 Requirements as to form.
The challenge shall include identification of the challenger by
full name and title of position, verification of security clearance or
other basis of authority, and an identification of the documents or
portions of documents or information at issue. The challenge shall
also, in detailed and factual terms, identify and describe the reasons
why it is believed that the information is not protected by one or more
of the Sec. 1.5 provisions, that the release of the information would
not cause damage to the national security, or that the information
should be declassified due to the passage of time. The challenge must
be properly classified; in this regard, until the challenge is decided,
the authorized holder must treat the challenge, the information being
challenged, and any related or explanatory information as classified at
the same level as the current classification of the information in
dispute.
Sec. 1802.13 Identification of material at issue.
Authorized holders shall append the documents at issue and clearly
mark those portions subject to the challenge. If information not in
documentary form is in issue, the challenge shall state so clearly and
present or otherwise refer with specificity to that information in the
body of the challenge.
Sec. 1802.14 Transmission.
Authorized holders must direct challenge requests to NACIC as
specified in Sec. 1802.3. The classified nature of the challenge, as
well as the appended documents, require that the holder transmit same
in full accordance with established security procedures. In general,
registered U.S. mail is approved for SECRET, non-compartmented
[[Page 49890]]
material; higher classifications require use of approved Top Secret
facsimile machines or NACIC-approved couriers. Further information is
available from NACIC as well as corporate or other federal agency
security departments.
Subpart C--Action On Challenges
Sec. 1802.21 Receipt, recording, and tasking.
The Coordinator shall within ten (10) days record each challenge
received under this part, acknowledge receipt to the authorized holder,
and task the originator and other interested parties. Additional
taskings, as required during the review process, shall be accomplished
within five (5) days of notification.
Sec. 1802.22 Challenges barred by res judicata.
The Coordinator shall respond on behalf of the Director, NACIC and
deny any challenge where the information in question has been the
subject of a classification review within the previous two (2) years or
is the subject of pending litigation in the federal courts.
Sec. 1802.23 Response by originator(s) and/or any interested party.
(a) In general. The originator of the classified information
(document) is a required party to any challenge; other interested
parties may become involved through the request of the Director, NACIC
or the originator when it is determined that some or all of the
information is also within their official cognizance.
(b) Determination. These parties shall respond in writing to the
Director, NACIC with a mandatory unclassified finding, to the greatest
extent possible, and an optional classified addendum. This finding
shall agree to a declassification or, in specific and factual terms,
explain the basis for continued classification including identification
of the category of information, the harm to national security which
could be expected to result from disclosure, and, if older than ten
(10) years, the basis for the extension of classification time under
Secs. 1.6 and 3.4 of this Order. These parties shall also provide a
statement as to whether or not there is any other statutory, common
law, or Constitutional basis for withholding as required by Sec. 6.1(c)
of this Order.
(c) Time. The determination(s) shall be provided on a first in,
first out basis with respect to all challenges pending under this
section and shall be accomplished expeditiously taking into account the
requirements of the authorized holder as well as the business
requirements of the originator including their responsibilities under
the Freedom of Information Act, the Privacy Act, or the mandatory
declassification review provisions of this Order.
Sec. 1802.24 Designation of authority to hear challenges.
The Director, NACIC is the NACIC authority to hear and decide
challenges under this part.
Sec. 1802.25 Action on challenge.
Action by Coordinator. The Coordinator shall provide a summation
memorandum for consideration of the Director, NACIC; the complete
package consisting of the challenge, the information at issue, and the
findings of the originator and interested parties shall also be
provided. The Director, NACIC shall personally decide each case; no
personal appearances shall be permitted without the express permission
of the Director, NACIC.
Sec. 1802.26 Notification of decision and prohibition on adverse
action.
The Coordinator shall communicate the decision of NACIC to the
authorized holder, the originator, and other interested parties within
ten (10) days of the decision by the Coordinator. That correspondence
shall include a notice that no adverse action or retribution can be
taken in regard to the challenge and that an appeal of the decision may
be made to the Interagency Security Classification Appeals Panel
(ISCAP) established pursuant to Sec. 5.4 of this Order.
Subpart D--Right of Appeal
Sec. 1802.31 Right of appeal.
A right of appeal is available to the ISCAP established pursuant to
Sec. 5.4 of this Order. Action by that body will be the subject of
rules to be promulgated by the Information Security Oversight Office
(ISOO).
PART 1803--PUBLIC REQUESTS FOR MANDATORY DECLASSIFICATION REVIEW OF
CLASSIFIED INFORMATION PURSUANT TO Sec. 3.6 OF EXECUTIVE ORDER
12958
Subpart A--General
Sec.
1803.1 Authority and purpose.
1803.2 Definitions.
1803.3 Contact for general information and requests.
1803.4 Suggestions and complaints.
Subpart B--Filing of Mandatory Declassification Review (MDR) Requests
1803.11 Preliminary information.
1803.12 Requirements as to form.
1803.13 Fees.
Subpart C--NACIC Action on MDR Requests
1803.21 Receipt, recording, and tasking.
1803.22 Requests barred by res judicata.
1803.23 Determination by originator or interested party.
1803.24 Notification of decision and right of appeal.
Subpart D-NACIC Action on MDR Appeals
1803.31 Requirements as to time and form.
1803.32 Receipt, recording, and tasking.
1803.33 Determination by NACIC Office Chiefs
1803.34 Appeal authority.
1803.35 Action by appeals authority.
1803.36 Notification of decision and right of further appeal.
Subpart E-Further Appeals
1803.41 Right of further appeal.
Authority: Section 3.6 of Executive Order 12958 (or successor
Orders) and Section 102 of the National Security Act, as amended (50
U.S.C. 403).
Subpart A-General
Sec. 1803.1 Authority and purpose.
(a) Authority. This part is issued under the authority of and in
order to implement Sec. 3.6 of Executive Order (E.O.) 12958 (or
successor Orders); and Section 102 of the National Security Act of
1947, as amended (50 U.S.C. 403).
(b) Purpose. This part prescribes procedures, subject to
limitations set forth below, for members of the public to request a
declassification review of information classified under the various
provisions of this or predecessor Orders. Section 3.6 of E.O. 12958 and
these regulations do not create any right or benefit, substantive or
procedural, enforceable at law by a party against the United States,
its agencies, officers, or employees.
Sec. 1803.2 Definitions.
For purposes of this part, the following terms have the meanings as
indicated:
NACIC means the United States National Counterintelligence Center
acting through the NACIC Information and Privacy Coordinator;
Days means calendar days when NACIC is operating and specifically
excludes Saturdays, Sundays, and legal public holidays. Three (3) days
may be added to any requirement of this part if responding by U.S.
domestic mail; ten (10) days may be added if responding by
international mail;
Control means ownership or the authority of NACIC pursuant to
federal statute or privilege to regulate official or public access to
records;
Coordinator means the NACIC Information and Privacy Coordinator who
serves as the NACIC manager of the
[[Page 49891]]
information review and release program instituted under the mandatory
declassification review provisions of Executive Order 12958;
Federal agency means any executive department, military department,
or other establishment or entity included in the definition of agency
in 5 U.S.C. 552(f);
Information means any knowledge that can be communicated or
documentary material, regardless of its physical form that is owned by,
produced by or for, or under the control of the United States
Government; it does not include information originated by the incumbent
President, White House Staff, appointed committees, commissions or
boards, or any entities within the Executive Office that solely advise
and assist the incumbent President;
Interested party means any official in the executive, military,
congressional, or judicial branches of government, United States or
foreign, or U.S. Government contractor who, in the sole discretion of
NACIC, has a subject matter or physical interest in the documents or
information at issue;
NARA means the National Archives and Records Administration;
Originator means the NACIC officer who originated the information
at issue, or successor in office, or a NACIC officer who has been
delegated declassification authority for the information at issue in
accordance with the provisions of this Order;
Presidential libraries means the libraries or collection
authorities established by statute to house the papers of former
Presidents Hoover, Roosevelt, Truman, Eisenhower, Kennedy, Johnson,
Nixon, Ford, Carter, Reagan, Bush and similar institutions or
authorities as may be established in the future;
Referral means coordination with or transfer of action to an
interested party;
This Order means Executive Order 12958 of April 17, 1995 or
successor Orders;
Sec. 1803.3 Contact for general information and requests.
For general information on this part or to request a
declassification review, please direct your communication to the
Information and Privacy Coordinator, National Counterintelligence
Center, 3W01 NHB, Washington, DC 20505. Such inquiries will also be
accepted by facsimile at (703) 874-5844. For general or status
information only, the telephone number is (703) 874-4121. Collect calls
cannot be accepted.
Sec. 1803.4 Suggestions and complaints.
NACIC welcomes suggestions or complaints with regard to its
administration of the mandatory declassification review program
established under Executive Order 12958. Letters of suggestion or
complaint should identify the specific purpose and the issues for
consideration. NACIC will respond to all substantive communications and
take such actions as determined feasible and appropriate.
Subpart B--Filing of Mandatory Declassification Review (MDR)
Requests
Sec. 1803.11 Preliminary information.
Members of the public shall address all communications to the point
of contact specified above and clearly delineate the communication as a
request under this part. Requests and appeals on requests received from
members of the public who owe outstanding fees for information services
under this Order or the Freedom of Information Act at this or another
federal agency will not be accepted until such debts are resolved.
Sec. 1803.12 Requirements as to form.
The request shall identify the document(s) or material(s) with
sufficient specificity (e.g., National Archives and Records
Administration (NARA) Document Accession Number or other applicable,
unique document identifying number) to enable NACIC to locate it with
reasonable effort. Broad or topical requests for records on a
particular subject may not be accepted under this provision. A request
for documents contained in the various Presidential libraries shall be
effected through the staff of such institutions who shall forward the
document(s) in question for NACIC review. The requester shall also
provide sufficient personal identifying information when required by
NACIC to satisfy requirements of this part.
Sec. 1803.13 Fees.
Requests submitted via NARA or the various Presidential libraries
shall be responsible for reproduction costs required by statute or
regulation. Requests made directly to NACIC will be liable for costs in
the same amount and under the same conditions as specified in part 1800
of this chapter.
Subpart C--NACIC Action on MDR Requests
Sec. 1803.21 Receipt, recording, and tasking.
The Information and Privacy Coordinator shall within ten (10) days
record each mandatory declassification review request received under
this part, acknowledge receipt to the requester in writing (if received
directly from a requester), and shall thereafter task the originator
and other interested parties. Additional taskings, as required during
the review process, shall be accomplished within ten (10) days of
notification.
Sec. 1803.22 Requests barred by res judicata.
The Coordinator shall respond to the requester and deny any request
where the information in question has been the subject of a
classification review within the previous two (2) years or is the
subject of pending litigation in the federal courts.
Sec. 1803.23 Determination by originator or interested party.
(a) In general. The originator of the classified information
(document) is a required party to any mandatory declassification review
request; other interested parties may become involved through a
referral by the Coordinator when it is determined that some or all of
the information is also within their official cognizance.
(b) Required determinations. These parties shall respond in writing
to the Coordinator with a finding as to the classified status of the
information including the category of protected information as set
forth in Sec. 1.5 of this Order, and, if older than ten (10) years, the
basis for the extension of classification time under Secs. 1.6 and 3.4
of this Order. These parties shall also provide a statement as to
whether or not there is any other statutory, common law, or
Constitutional basis for withholding as required by Sec. 6.1(c) of this
Order.
(c) Time. This response shall be provided expeditiously on a first-
in, first-out basis taking into account the business requirements of
the originator or interested parties and consistent with the
information rights of members of the general public under the Freedom
of Information Act and the Privacy Act.
Sec. 1803.24 Notification of decision and right of appeal.
The Coordinator shall communicate the decision of NACIC to the
requester within ten (10) days of completion of all review action. That
correspondence shall include a notice of a right of administrative
appeal to the Director, NACIC pursuant to Sec. 3.6(d) of this Order.
[[Page 49892]]
Subpart D-NACIC Action on MDR Appeals
Sec. 1803.31 Requirements as to time and form.
Appeals of decisions must be received by the Coordinator within
forty-five (45) days of the date of mailing of NACIC's initial
decision. It shall identify with specificity the documents or
information to be considered on appeal and it may, but need not,
provide a factual or legal basis for the appeal.
Sec. 1803.32 Receipt, recording, and tasking.
The Coordinator shall promptly record each appeal received under
this part, acknowledge receipt to the requester, and task the
originator and other interested parties. Additional taskings, as
required during the review process, shall be accomplished within ten
(10) days of notification.
Sec. 1803.33 Determination by NACIC Office Chiefs.
Each NACIC Office Chief in charge of an office which originated or
has an interest in any of the records subject to the appeal, or
designee, is a required party to any appeal; other interested parties
may become involved through the request of the Coordinator when it is
determined that some or all of the information is also within their
official cognizance. These parties shall respond in writing to the
Coordinator with a finding as to the classified status of the
information including the category of protected information as set
forth in Sec. 1.5 of this Order, and, if older than ten (10) years, the
basis for continued classification under Secs. 1.6 and 3.4 of this
Order. These parties shall also provide a statement as to whether or
not there is any other statutory, common law, or Constitutional basis
for withholding as required by Sec. 6.1(c) of this Order. This response
shall be provided expeditiously on a ``first-in, first-out'' basis
taking into account the business requirements of the parties and
consistent with the information rights of members of the general public
under the Freedom of Information Act and the Privacy Act.
Sec. 1803.34 Appeal authority.
The Director, NACIC will make final NACIC decisions from appeals of
initial denial decisions under E.O. 12958. Matters decided by the
Director, NACIC will be deemed a final decision by NACIC.
Sec. 1803.35 Action by appeals authority.
Action by the Director, NACIC. The Coordinator shall provide a
summation memorandum for consideration of the Director, NACIC; the
complete record of the request consisting of the request, the
document(s) (sanitized and full text) at issue, and the findings of the
originator and interested parties. The Director, NACIC shall personally
decide each case; no personal appearances shall be permitted without
the express permission of the Director, NACIC.
Sec. 1803.36 Notification of decision and right of further appeal.
The Coordinator shall communicate the decision of the Director,
NACIC to the requester, NARA, or the particular Presidential Library
within ten (10) days of such decision. That correspondence shall
include a notice that an appeal of the decision may be made to the
Interagency Security Classification Appeals Panel (ISCAP) established
pursuant to Sec. 5.4 of this Order.
Subpart E-Further Appeals
Sec. 1803.41 Right of further appeal.
A right of further appeal is available to the ISCAP established
pursuant to Sec. 5.4 of this Order. Action by that Panel will be the
subject of rules to be promulgated by the Information Security
Oversight Office (ISOO).
PART 1804--ACCESS BY HISTORICAL RESEARCHERS AND FORMER PRESIDENTIAL
APPOINTEES PURSUANT TO Sec. 4.5 OF EXECUTIVE ORDER 12958
Subpart A--General
Sec.
1804.01 Authority and purpose.
1804.02 Definitions.
1804.03 Contact for general information and requests.
1804.04 Suggestions and complaints.
Subpart B--Requests for Historical Access
1804.11 Requirements as to who may apply.
1804.12 Designations of authority to hear requests.
1804.13 Receipt, recording, and tasking.
1804.14 Determinations by tasked officials.
1804.15 Action by hearing authority.
1804.16 Action by appeal authority.
1804.17 Notification of decision.
1804.18 Termination of access.
Authority: Section 4.5 of Executive Order 12958 (or successor
Orders) and Presidential Decision Directive/NSC 24 ``U.S.
Counterintelligence Effectiveness,'' dated May 3, 1994.
Subpart A--General
Sec. 1804.1 Authority and purpose.
(a) Authority. This part is issued under the authority of and in
order to implement Sec. 4.5 of Executive Order 12958 (or successor
Orders); and Presidential Decision Directive/NSC 24, U.S.
Counterintelligence Effectiveness, dated May 3, 1994.
(b) Purpose. (1) This part prescribes procedures for:
(i) Requesting access to NACIC records for purposes of historical
research, or
(ii) Requesting access to NACIC records as a former Presidential
appointee.
(2) Section 4.5 of Executive Order 12958 and this part do not
create any right or benefit, substantive or procedural, enforceable at
law by a party against the United States, its agencies, officers, or
employees.
Sec. 1804.2 Definitions.
For purposes of this part, the following terms have the meanings
indicated:
NACIC means the United States National Counterintelligence Center
acting through the NACIC Information and Privacy Coordinator;
Days means calendar days when NACIC is operating and specifically
excludes Saturdays, Sundays, and legal public holidays. Three (3) days
may be added to any requirement of this part if responding by U.S.
domestic mail; ten (10) days may be added if responding by
international mail;
Control means ownership or the authority of NACIC pursuant to
federal statute or privilege to regulate official or public access to
records;
Coordinator means the NACIC Information and Privacy Coordinator who
serves as the NACIC manager of the historical access program
established pursuant to Section 4.5 of this Order;
Federal agency means any executive department, military department,
or other establishment or entity included in the definition of agency
in 5 U.S.C. 552(f);
Former Presidential appointee means any person who has previously
occupied a policy-making position in the executive branch of the United
States Government to which they were appointed by the current or former
President and confirmed by the United States Senate;
Historian or historical researcher means any individual with
professional training in the academic field of history (or related
fields such as journalism) engaged in a research project leading to
publication (or any similar activity such as academic course
development) reasonably intended to increase the understanding of the
American public into the operations and activities of the United States
government;
Information means any knowledge that can be communicated or
documentary material, regardless of its
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physical form that is owned by, produced by or for, or is under the
control of the United States Government;
Interested party means any official in the executive, military,
congressional, or judicial branches of government, United States or
foreign, or U.S. Government contractor who, in the sole discretion of
NACIC, has a subject matter or physical interest in the documents or
information at issue;
Originator means the NACIC officer who originated the information
at issue, or successor in office, or a NACIC officer who has been
delegated declassification authority for the information at issue in
accordance with the provisions of this Order;
This Order means Executive Order 12958 of April 17, 1995 or
successor Orders.
Sec. 1804.3 Contact for general information and requests.
For general information on this part, to inquire about historical
access to NACIC records, or to make a formal request for such access,
please direct your communication in writing to the Information and
Privacy Coordinator, Executive Secretariat, 3W01 NHB, National
Counterintelligence Center, Washington, DC 20505. Inquiries will also
be accepted by facsimile at (703) 874-5844. For general information
only, the telephone number is (703) 874-4121. Collect calls cannot be
accepted.
Sec. 1804.4 Suggestions and complaints.
NACIC welcomes suggestions or complaints with regard to its
administration of the historical access program established pursuant to
Executive Order 12958. Letters of suggestion or complaint should
identify the specific purpose and the issues for consideration. NACIC
will respond to all substantive communications and take such actions as
determined feasible and appropriate.
Subpart B--Requests for Historical Access
Sec. 1804.11 Requirements as to who may apply.
(a) Historical researchers:--(1) In general. Any historian engaged
in a historical research project as defined above may submit a request
in writing to the Coordinator to be given access to classified
information for purposes of that research. Any such request shall
indicate the nature, purpose, and scope of the research project.
(2) Additional considerations. In light of the very limited
resources for NACIC's various historical programs, it is the policy of
NACIC to consider applications for historical research privileges only
in those instances where the researcher's needs cannot be satisfied
through requests for access to reasonably described records under the
Freedom of Information Act or the mandatory declassification review
provisions of Executive Order 12958 and where issues of internal
resource availability and fairness to all members of the historical
research community militate in favor of a particular grant.
(b) Former Presidential appointees. Any former Presidential
appointee as defined herein may also submit a request to be given
access to any classified records which they originated, reviewed,
signed, or received while serving in that capacity. Such appointees may
also request approval for a research associate but there is no
entitlement to such enlargement of access and the decision in this
regard shall be in the sole discretion of NACIC. Requests from
appointees shall be in writing to the Coordinator and shall identify
the records of interest.
Sec. 1804.12 Designations of authority to hear requests.
The Director, NACIC has designated the Coordinator, as the NACIC
authority to decide requests for historical and former Presidential
appointee access under Executive Order 12958 (or successor Orders) and
this part.
Sec. 1804.13 Receipt, recording, and tasking.
The Information and Privacy Coordinator shall within ten (10) days
record each request for historical access received under this part,
acknowledge receipt to the requester in writing and take the following
action:
(a) Compliance with general requirements. The Coordinator shall
review each request under this part and determine whether it meets the
general requirements as set forth in Sec. 1804.11; if it does not, the
Coordinator shall so notify the requester and explain the legal basis
for this decision.
(b) Action on requests meeting general requirements. For requests
which meet the requirements of Sec. 1804.11, the Coordinator shall
thereafter task the originator(s) of the materials for which access is
sought and other interested parties. Additional taskings, as required
during the review process, shall be accomplished within ten (10) days
of notification.
Sec. 1804.14 Determinations by tasked officials.
(a) Required determinations. The tasked parties as specified below
shall respond in writing to the Coordinator with recommended findings
to the following issues:
(1)That a serious professional or scholarly research project by the
requester is contemplated;
(2) That such access is clearly consistent with the interests of
national security (by originator and interested party, if any);
(3) That a non-disclosure agreement has been or will be executed by
the requester (or research associate, if any) and other appropriate
steps have been taken to assure that classified information will not be
disclosed or otherwise compromised;
(4) That a pre-publication agreement has been or will be executed
by the requester (or research associate, if any) which provides for a
review of notes and any resulting manuscript by the Deputy Director of
NACIC;
(5) That the information requested is reasonably accessible and can
be located and compiled with a reasonable effort (by the Deputy
Director of NACIC and the originator);
(6) That it is reasonably expected that substantial and substantive
government documents and/or information will be amenable to
declassification and release and/or publication (by the Deputy Director
of NACIC and the originator);
(7) That sufficient resources are available for the administrative
support of the researcher given current mission requirements (by the
Deputy Director of NACIC and the originator); and,
(8) That the request cannot be satisfied to the same extent through
requests for access to reasonably described records under the Freedom
of Information Act or the mandatory declassification review provisions
of Executive Order 12958 (by the Coordinator, the Deputy Director of
NACIC and the originator).
(b) Time. These responses shall be provided expeditiously on a
first-in, first-out basis taking into account the business requirements
of the tasked offices and consistent with the information rights of
members of the general public under the Freedom of Information Act and
the Privacy Act. NACIC will utilize its best efforts to complete action
on requests under this part within thirty (30) days of date of receipt.
Sec. 1804.15 Action by hearing authority.
Action by Coordinator. The Coordinator shall provide a summation
memorandum for consideration of the Director, NACIC, the complete
record of the request consisting of the request and the findings of the
tasked parties. The Director, NACIC shall decide requests on the basis
of the eight factors enumerated at Sec. 1804.14(a). The Director, NACIC
shall personally decide
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each case; no personal appearances shall be permitted without the
express permission of the Director, NACIC.
Sec. 1804.16 Action by appeal authority.
The record compiled (the request, the memoranda filed by the
originator and interested parties, and the previous decision(s)) as
well as any memorandum of law or policy the referent desires to be
considered, shall be certified by the Coordinator and shall constitute
the official record of the proceedings and must be included in any
subsequent filings. In such cases, the factors to be determined as
specified in Sec. 1804.14(a) will be considered by the Director, NACIC
de novo and that decision shall be final.
Sec. 1804.17 Notification of decision.
The Coordinator shall inform the requester of the decision of the
Director, NACIC within ten (10) days of the decision and, if favorable,
shall manage the access for such period as deemed required but in no
event for more than two (2) years unless renewed by the Director, NACIC
in accordance with the requirements of Sec. 1804.14(a).
Sec. 1804.18 Termination of access.
The Coordinator shall cancel any authorization whenever the
security clearance of a requester (or research associate, if any) has
been canceled or whenever the Director, NACIC determines that continued
access would not be in compliance with one or more of the requirements
of Sec. 1804.14(a).
PART 1805-PRODUCTION OF OFFICIAL RECORDS OR DISCLOSURE OF OFFICIAL
INFORMATION IN PROCEEDINGS BEFORE FEDERAL, STATE OR LOCAL
GOVERNMENT ENTITIES OF COMPETENT JURISDICTION
Sec.
1805.1 Scope and purpose.
1805.2 Definitions.
1805.3 General.
1805.4 Procedures for production.
Authority: 5 U.S.C. 104; Presidential Decision Directive/NSC 24
``U.S. Counterintelligence Effectiveness, dated May 3, 1994; 50
U.S.C. 403g; United States ex rel. Touhy v. Ragen, 340 U.S. 462
(1951); E.O. 12333; E.O. 12356; U.S. v. Snepp 444 U.S. 507 (1980).
Sec. 1805.1 Scope and purpose.
This part sets forth the policy and procedures with respect to the
production or disclosure of:
(a) Material contained in the files of NACIC,
(b) Information relating to or based upon material contained in the
files of NACIC,
(c) Information acquired by any person while such person is an
employee of NACIC as part of the performance of that person's official
duties or because of that person's association with NACIC.
Sec. 1805.2 Definitions.
For the purpose of this part:
NACIC means the National Counterintelligence Center and includes
all staff elements of the NACIC.
Demand means any subpoena, order or other legal summons (except
garnishment orders) that is issued by a federal, state or local
government entity of competent jurisdiction with the authority to
require a response on a particular matter, or a request for appearance
of an individual where a demand could issue.
Employee means any officer, any staff, contract or other employee
of NACIC, any person including independent contractors associated with
or acting on behalf of NACIC; and any person formerly having such
relationships with NACIC.
Production or produce means the disclosure of:
(1) Any material contained in the files of NACIC; or
(2) Any information relating to material contained in the files of
NACIC, 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 persons while such persons were
employees of NACIC as a part of the performance of their official
duties or because of their official status or association with NACIC;
in response to a demand upon an employee of NACIC.
NACIC Counsel is the NACIC employee designated to manage legal
matters and regulatory compliance.
Sec. 1805.3 General.
(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 also applies to former employees to the extent
consistent with applicable non-disclosure agreements.
(b) This part is intended only to provide procedures for responding
to demands 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.
Sec. 1805.4 Procedure for production.
(a) Whenever a demand for production is made upon an employee, the
employee shall immediately notify NACIC Counsel, who will follow the
procedures set forth in this section.
(b) NACIC Counsel and the Office Chiefs with responsibility for the
information sought in the demand shall determine whether any
information or materials may properly be produced in response to the
demand, except that NACIC Counsel may assert any and all legal defenses
and objections to the demand available to NACIC prior to the start of
any search for information responsive to the demand. NACIC 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 NACIC has been made by the entity or
person that issued the demand.
(c) NACIC officials shall consider the following factors, among
others, in reaching a decision:
(1) Whether production is appropriate in light of any relevant
privilege;
(2) Whether production is appropriate under the applicable rules of
discovery or the procedures governing the case or matter in which the
demand arose; and
(3) Whether any of the following circumstances apply:
(i) Disclosure would violate a statute, including but not limited
to the Privacy Act of 1974, as amended, 5 U.S.C. 552a;
(ii) Disclosure would reveal classified information;
(iii) Disclosure would improperly reveal trade secrets or
proprietary confidential information without the owner's consent; or
(iv) Disclosure would interfere with the orderly conduct of NACIC's
functions.
(d) If oral or written testimony is sought by a demand in a case or
matter in which the NACIC is not a party, a reasonably detailed
description of the testimony sought, in the form of an affidavit or, if
that is not feasible, a written statement, by the party seeking the
testimony or by the party's attorney must be furnished to the NACIC
Counsel.
(e) The NACIC Counsel shall be responsible for notifying the
appropriate employees and other persons of all decisions regarding
responses to demands and providing advice and counsel as to the
implementation of such decisions.
(f) If response to a demand is required before a decision is made
whether to provide the documents or information sought by the demand,
NACIC Counsel, after consultation with the Department of Justice, shall
appear before and furnish the court or other competent authority with a
copy of this part and
[[Page 49895]]
state that the demand has been or is being, as the case may be,
referred for the prompt consideration of the appropriate NACIC
officials, and shall respectfully request the court or other authority
to stay the demand pending receipt of the required instructions.
(g) If the court or any other authority declines to stay the demand
pending receipt of instructions in response to a request made in
accordance with Sec. 1805.4(g) or rules that the demand must be
complied with regardless of instructions rendered in accordance with
this Part not to produce the material or disclose the information
sought, the employee upon whom the demand has been made shall, if so
directed by NACIC Counsel, respectfully decline to comply with the
demand under the authority of United States ex. rel. Touhy v. Ragen,
340 U.S. 462 (1951), and this part.
(h) With respect to any function granted to NACIC officials in this
part, such officials are authorized to delegate in writing their
authority in any case or matter or category thereof to subordinate
officials.
(i) Any non-employee who receives a demand for the production or
disclosure of NACIC information acquired because of that person's
association or contacts with NACIC should notify NACIC Counsel, (703)
874-4121, for guidance and assistance. In such cases, the provisions of
this part shall be applicable.
PART 1806--PROCEDURES GOVERNING ACCEPTANCE OF SERVICE OF PROCESS
Sec.
1806.1 Scope and Purpose.
1806.2 Definitions.
1806.3 Procedures governing acceptance of service of process.
1806.4 Notification to NACIC Counsel.
1806.5 Authority of NACIC Counsel.
Authority: 5 U.S.C. 104; Presidential Decision Directive/NSC 24
``U.S. Counterintelligence Effectiveness'', dated May 3, 1994; 50
U.S.C. 403g; E.O. 12333.
Sec. 1806.1 Scope and purpose.
(a) This part sets forth the authority of NACIC personnel to accept
service of process on behalf of the NACIC or any NACIC employee.
(b) This part is intended to ensure the orderly execution of the
NACIC's affairs and not to impede any legal proceeding.
(c) NACIC regulations concerning employee responses to demands for
production of official information before federal, state or local
government entities are set out in part 1805 of this chapter.
Sec. 1806.2 Definitions.
NACIC means the National Counterintelligence Center and include all
staff elements of NACIC.
Process means a summons complaint, subpoena, or other official
paper (except garnishment orders) issued in conjunction with a
proceeding or hearing being conducted by a federal, state, or local
government entity of competent jurisdiction.
Employee means any NACIC officer, any staff, contract, or other
employee of NACIC, any person including independent contractors
associated with or acting for or on behalf of NACIC, and any person
formerly having such a relationship with NACIC.
NACIC Counsel refers to the NACIC employee designated by NACIC to
manage legal issues and regulatory compliance.
Sec. 1806.3 Procedures governing acceptance of service of process.
(a) Service of Process Upon the NACIC or a NACIC Employee in an
Official Capacity.--(1) Personal Service. Unless otherwise expressly
authorized by NACIC Counsel, or designee, personal service of process
may be accepted only by NACIC Counsel, Director, NACIC, or Deputy
Director, NACIC, located at Central Intelligence Agency Headquarters,
Langley, Virginia.
(2) Mail Service. Where service of process by registered or
certified mail is authorized by law, unless expressly directed
otherwise by the NACIC Counsel or designee, personal service of process
may be accepted only by NACIC Counsel, Director, NACIC, or Deputy
Director, NACIC. Process by mail should be addressed as follows: NACIC
Counsel, National Counterintelligence Center, Washington, DC 20505.
(b) Service of Process Upon a NACIC Employee Solely in An
Individual Capacity.--(1) General. NACIC will not provide the name or
address of any current or former NACIC employee to individuals or
entities seeking to serve process upon such employee solely in his or
her individual capacity, even when the matter is related to NACIC
activities.
(2) Personal Service. Subject to the sole discretion of appropriate
officials of the CIA, where NACIC is physically located, process
servers generally will not be allowed to enter CIA Headquarters for the
purpose of serving process upon any NACIC employee solely in his or her
individual capacity. Subject to the sole discretion of the Director,
NACIC, process servers will generally not be permitted to enter NACIC
office space for the purpose of serving process upon a NACIC employee
solely in his or her individual capacity. The NACIC Counsel, the
Director, NACIC, and the Deputy Director, NACIC are not permitted to
accept service of process on behalf of a NACIC employee in his or her
individual capacity.
(3) Mail Service. Unless otherwise expressly authorized by the
NACIC Counsel, or designee, NACIC personnel are not authorized to
accept or forward mailed service of process directed to any NACIC
employee in his or her individual capacity. Any such process will be
returned to the sender via appropriate postal channels.
(c) Service of Process Upon a NACIC Employee in a Combined Official
and Individual Capacity.--Unless expressly directed otherwise by the
NACIC Counsel, or designee, any process to be served upon a NACIC
employee in his or her combined official and individual capacity, in
person or by mail, can be accepted only by NACIC Counsel, Director,
NACIC, or Deputy Director, NACIC, National Counterintelligence Center,
Langley, Virginia.
(d) Service of Process Upon a NACIC Counsel. The documents for
which service is accepted in official capacity only shall be stamped
``Service Accepted in Official Capacity Only.'' Acceptance of Service
of Process shall not constitute an admission or waiver with respect to
jurisdiction, propriety 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. 1806.4 Notification to NACIC Counsel.
A NACIC employee who receives or has reason to expect to receive
service of process in an individual, official, or combined individual
and official capacity, in a matter that may involve or the furnishing
of documents and that could reasonably be expected to involve NACIC
interests, shall promptly notify the NACIC Counsel. Such notification
should be given prior to providing the requestor, personal counsel or
any other representative, any NACIC information and prior to the
acceptance of service of process.
Sec. 1806.5 Authority of NACIC Counsel.
Any questions concerning interpretation of this part shall be
referred to the NACIC Counsel for resolution
[[Page 49896]]
PART 1807--ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF
DISABILITY IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE NATIONAL
COUNTERINTELLIGENCE CENTER
Sec.
1807.101 Purpose.
1807.102 Application.
1807.103 Definitions.
1807.104-1807.110 [Reserved]
1807.111 Notice.
1807.112-1807.129 [Reserved]
1807.130 General prohibitions against discrimination.
1807.131-1807.139 [Reserved]
1807.140 Employment.
1807.141-1807.148 [Reserved]
1807.149 Program accessibility: Discrimination prohibited.
1807.150 Program accessibility: Existing facilities.
1807.151 Program accessibility: New construction and alterations.
1807.152-1807.159 [Reserved]
1807.160 Communications.
1807.161-1807.169 [Reserved]
1807.170 Compliance procedures.
Authority: 5 U.S.C. 104, Presidential Decision Directive/NSC 24
U.S. Counterintelligence Effectiveness, dated May 3, 1994, 29 U.S.C.
794.
Sec. 1807.101 Purpose.
The purpose of this part is to effectuate section 119 of the
Rehabilitation, Comprehensive Services, and Developmental Disabilities
Amendments of 1978, which amended section 504 of the Rehabilitation Act
of 1973 to prohibit discrimination on the basis of disability in
programs or activities conducted by Executive agencies or the United
States Postal Service.
Sec. 1807.102 Application.
This part applies to all programs or activities conducted by the
NACIC.
Sec. 1807.103 Definitions.
For purposes of this part, the following terms means--
Assistant Attorney General means the Assistant Attorney General,
Civil Rights Division, United States Department of Justice.
Auxiliary aids means services or devices that enable persons with
impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities conducted by the NACIC. For example, auxiliary aids useful
for persons with impaired vision include readers, materials in Braille,
audio recordings, and other similar services and devices. Auxiliary
aids useful for persons with impaired hearing include telephone handset
amplifiers, telephones compatible with hearing aids, telecommunication
devices for deaf persons (TDD's), interpreters, notetakers, written
materials, and other similar services and devices. The CIA, where NACIC
is physically located, may prohibit from any of its facilities any
auxiliary aid, or category of auxiliary aid that the Center for CIA
Security (CCS) determines creates a security risk or potential security
risk. CCS reserves the right to examine any auxiliary aid brought into
the NACIC facilities at CIA Headquarters.
Complete complaint means a written statement that contains the
complainant's name and address and describes the NACIC's alleged
discriminatory action in sufficient detail to inform the NACIC of the
nature and date of the alleged violation of section 504. It must be
signed by the complainant or by someone authorized to do so on his or
her behalf. Complaints filed on behalf of classes or third parties must
describe or identify (by name, if possible) the alleged victims of
discrimination.
Director means the Director of NACIC or an official or employee of
the NACIC acting for the Director under a delegation of authority.
Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other
conveyances or other real or personal property.
Individual with disabilities means any person who has a physical or
mental impairment that substantially limits one or more major life
activities, has a record of such an impairment, or is regarded as
having such an impairment. As used in this definition, the phrase--
(1) Physical or mental impairment includes--
(i) Any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of the
following body systems: Cardiovascular; Neurological; musculoskeletal;
special sense organs; respiratory, including speech organs;
reproductive; digestive; genitourinary; hemic and lymphatic; skin; and
endocrine; or
(ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term physical or mental impairment
includes, but is not limited to, such diseases and conditions as
orthopedic, visual, speech, and hearing impairments, cerebral palsy,
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart
disease, diabetes, mental retardation, emotional illness, drug
addiction, and alcoholism.
(2) Major life activities includes functions such as caring for
one's self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working;
(3) Has a record of such an impairment means has a history of, or
has been misclassified as having a mental or physical impairment that
substantially limits one or more major life activities.
(4) Is regarded as having an impairment means--
(i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the NACIC as constituting
such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others
toward the impairment; or
(iii) Has none of the impairments defined in paragraph (1) of this
definition but is treated by the NACIC as having such an impairment.
Qualified individual with disabilities means--
(1) With respect to any NACIC program or activity under which a
person is required to perform services or to achieve a level of
accomplishment, an individual with a handicap who meets the essential
eligibility requirements and who can achieve the purpose of the program
or activity without modifications in the program or activity that the
NACIC can demonstrate would result in a fundamental alteration in its
nature;
(2) With respect to any other NACIC program or activity, an
individual with disabilities who meets the essential eligibility
requirements for participation in, or receipt of benefits from, that
program or activity; and
(3) Qualified individual with a disability as that term is defined
for purposes of employment in 29 CFR 1614.203(a)(6), which is made
applicable to this part by Sec. 1807.140.
Section 504 means section 504 of the Rehabilitation Act of 1973
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794), as amended by the
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617);
the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978 (Pub. L. 95-002, 92 Stat. 2955); and
the Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat.
1810). As used in this part, section 504 applies only to programs or
activities conducted by the NACIC and not to federally assisted
programs.
[[Page 49897]]
Secs. 1807.104--1807.110 [Reserved]
Sec. 1807.111 Notice.
The NACIC shall make available to employees, applicants,
participants, beneficiaries, and other interested persons, such
information regarding the provisions of this part and its applicability
to the programs or activities conducted by the NACIC, and make that
information available to them in such manner as the Director finds
necessary to apprise those persons of the protections against
discrimination assured them by section 504 and the regulations in this
part.
Secs. 1807.112--1807.129 [Reserved]
Sec. 1807.130 General prohibitions against discrimination.
(a) No qualified individual with disabilities shall, on the basis
of disability, be excluded from participation in, be denied the
benefits of, or otherwise be subjected to discrimination under, any
program or activity conducted by the NACIC.
(b)(1) The NACIC, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangements,
on the basis of disability:
(i) Deny a qualified individual with disabilities the opportunity
to participate in or benefit from the aid, benefit, or service;
(ii) Deny a qualified individual with disabilities an opportunity
to obtain the same result, to gain the same benefit, to reach the same
level of achievement as that provided to others;
(iii) Provide a qualified individual with disabilities with an aid,
benefit, or service that is not as effective in affording equal
opportunity to obtain the same result, to gain the same benefit, or to
reach the same level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to
individuals with disabilities or to any class of individuals with
disabilities than is provided to others unless that action is necessary
to provide qualified individuals with disabilities with aid, benefits,
or services that are as effective as those provided to others;
(v) Deny a qualified individual with disabilities the opportunity
to participate as a member of planning or advisory boards; or
(vi) Otherwise limit a qualified individual with disabilities in
the enjoyment of any right, privilege, advantage, or opportunity
enjoyed by others receiving the aid, benefit, or service.
(2) The NACIC may not deny a qualified individual with disabilities
the opportunity to participate in programs or activities that are not
separate or different, despite the existence of permissibly separate or
different programs or activities.
(3) The NACIC may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration the purpose
or effect of which would:
(i) Subject qualified individuals with disabilities to
discrimination on the basis of disability; or
(ii) Defeat or substantially impair accomplishment of the
objectives of a program or activity with respect to individuals with
disabilities.
(4) The NACIC may not, in determining the site or location of a
facility, make selections the purpose or effect of which would:
(i) Exclude individuals with disabilities from, deny them the
benefits of, or otherwise subject them to discrimination under, any
program or activity conducted by the NACIC; or
(ii) Defeat or substantially impair the accomplishment of the
objectives of a program or activity with respect to individuals with
disabilities.
(5) The NACIC, in the selection of procurement contractors, may not
use criteria that subject qualified individuals with disabilities to
discrimination on the basis of disability.
(6) The NACIC may not administer a licensing or certification
program in a manner that subjects qualified individuals with
disabilities to discrimination on the basis of disability, nor may the
NACIC establish requirements for the programs or activities of
licensees or certified entities that subject qualified individuals with
disabilities to discrimination on the basis of disability. However, the
programs or activities of entities that are licensed or certified by
the NACIC are not, themselves, covered by this part.
(c) The exclusion of persons without disabilities from the benefits
of a program limited by Federal statute or Executive Order to
individuals with disabilities or the exclusion of a specific class of
individuals with disabilities from a program limited by Federal statute
or Executive Order to a different class of individuals with
disabilities is not prohibited by this part.
(d) The NACIC shall administer programs and activities in the most
integrated setting appropriate to the needs of qualified individuals
with disabilities.
Secs. 1807.131--1807.139 [Reserved]
Sec. 1807.140 Employment.
No qualified individual with disabilities shall, solely on the
basis of disability, be subjected to discrimination in employment under
any program or activity conducted by the NACIC. The definitions,
requirements, and procedures of section 501 of the Rehabilitation Act
of 1979 (29 U.S.C. 791), as established by the Equal Employment
Opportunity Commission in 29 CFR part 1614, shall apply to employment
in federally conducted programs or activities.
Secs. 1807.141--1807.148 [Reserved]
Sec. 1807.149 Program accessibility: Discrimination prohibited.
Except as otherwise provided in Sec. 1807.150, no qualified
individual with disabilities shall, because the NACIC's facilities are
inaccessible to or unusable by individuals with disabilities, be denied
the benefits of, be excluded from participation in, or otherwise be
subjected to discrimination under any program or activity conducted by
the NACIC.
Sec. 1807.150 Program accessibility: Existing facilities.
(a) General. The NACIC shall operate each program or activity so
that the program or activity, viewed in its entirety, is readily
accessible to and usable by individuals with disabilities. This program
does not:
(1) Necessarily require the NACIC to make each of its existing
facilities accessible to and usable by individuals with disabilities;
(2)(i) Require the NACIC to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a program or
activity or in undue financial and administrative burdens.
(ii) The NACIC has the burden of proving that compliance with
Sec. 1807.150(a) would result in that alteration or those burdens.
(iii) The decision that compliance would result in that alteration
of those burdens must be made by the Director after considering all of
the NACIC's resources available for use in the funding and operation of
the conducted program or activity, and must be accompanied by a written
statement of the reasons for reaching that conclusion.
(iv) If an action would result in that alteration or those burdens,
the NACIC shall take any other action that would not result in the
alteration of burdens but would nevertheless ensure that individuals
with disabilities receive the
[[Page 49898]]
benefits and services of the program or activity.
(b) Methods. (1) The NACIC may comply with the requirements of this
section through such means as redesign of equipment, delivery of
services at alternate accessible sites, alteration of existing
facilities, or any other methods that result in making its programs or
activities readily accessible to and usable by individuals with
disabilities.
(2) The NACIC is not required to make structural changes in
existing facilities if other methods are effective in achieving
compliance with this section.
(3) In choosing among available methods for meeting the
requirements of this section, the NACIC shall give priority to those
methods that offer programs and activities to qualified individuals
with disabilities in the most integrated setting appropriate.
Sec. 1807.151 Program accessibility: New construction and alterations.
Each building or part of a building that is constructed or altered
by, on behalf of, or for the use of, the NACIC shall be designed,
constructed, or altered so as to be readily accessible to and usable by
individuals with disabilities in compliance with the definitions,
requirements, and standards of the Americans with Disabilities Act
Accessibility Guidelines, 36 CFR part 1191.
Secs. 1807.152--1807.159 [Reserved]
Sec. 1807.160 Communications.
(a) The NACIC shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public as follows:
(1)(i) The NACIC shall furnish appropriate auxiliary aids if
necessary to afford an individual with disabilities an equal
opportunity to participate in, and enjoy the benefits of, a program or
activity conducted by the NACIC.
(ii) In determining what type of auxiliary aid is necessary, the
NACIC shall give primary consideration to the requests of the
individual with disabilities.
(2) Where the NACIC communicates with applicants and beneficiaries
by telephone, telecommunication devices for deaf persons (TDD's) or
equally effective telecommunication systems shall be used to
communicate with persons with impaired hearing.
(b) The NACIC shall ensure that interested persons, including
persons with impaired vision or hearing, can obtain information as to
the existence and location of accessible services, activities, and
facilities.
(c) This section does not require the NACIC to take any action that
it can demonstrate would result in a fundamental alteration in the
nature of a program or activity or in undue financial and
administrative burdens. In those circumstances where NACIC personnel
believe that the proposed action would fundamentally alter the program
or activity or would result in undue financial and administrative
burdens, the NACIC has the burden of proving that compliance with
Sec. 1807.160 would result in such alteration or burdens. The decision
that compliance would result in such alteration or burdens must be made
by the NACIC head or his or her designee after considering all NACIC
resources available for use in the funding and operation of the
conducted program or activity and must be accompanied by a written
statement of the reasons for reaching that conclusion. If an action
required to comply with this section would result in such an alteration
or such burdens, the NACIC shall take any other action that would not
result in such an alteration or such burdens but would nevertheless
ensure that, to the maximum extent possible, individuals with
disabilities receive the benefits and services of the program or
activity.
Secs. 1807.161--1807.169 [Reserved]
Sec. 1807.170 Compliance procedures.
(a) Except as provided in paragraph (b) of this section, this
section applies to all allegations of discrimination on the basis of
disability in programs and activities conducted by the NACIC.
(b) The NACIC shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established by the Equal Employment Opportunity Commission in 29 CFR
part 1614 pursuant to section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791).
(c) The Director, Office of Equal Employment Opportunity, is
responsible for coordinating implementation of this section. Complaints
may be sent to NACIC, Director, Washington, DC 20505.
(d) The NACIC shall accept and investigate all complete complaints
for which it has jurisdiction. All complete complaints must be filed
within 180 days of the alleged act of discrimination. The NACIC may
extend this time period for good cause.
(e) If the NACIC receives a complaint over which it does not have
jurisdiction, it shall promptly notify the complainant and shall make
reasonable efforts to refer the complaint to the appropriate government
entity.
(f) The NACIC shall notify the Architectural and Transportation
Barriers Compliance Board upon receipt of any complaint alleging that a
building or facility that is subject to the Americans with Disabilities
Act Accessibility Guidelines is not readily accessible to and usable by
individuals with disabilities.
(g) Within 180 days of the receipt of a complete complaint for
which it has jurisdiction, The NACIC shall notify the complainant of
the results of the investigation in a letter containing:
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and conclusions of law or
remedies must be filed by the complainant within 90 days of receipt
from the NACIC of the letter required by paragraph (g) of this section.
The NACIC may extend this time for good cause.
(i) Timely appeals shall be accepted and processed by the Director.
(j) The NACIC shall notify the complainant of the results of the
appeal within 60 days of the receipt of the request. If the NACIC
determines that it needs additional information from the complainant,
it shall have 60 days from the date it receives the additional
information to make its determination on the appeal.
(k) The time limits cited in paragraphs (g) and (j) of this section
may be extended with the permission of the Assistant Attorney General.
(l) The Director may delegate the authority for conducting
complaint investigations to other Federal agencies, except that the
authority for making the final determination may not be delegated.
[FR Doc. 99-23243 Filed 9-13-99; 8:45 am]
BILLING CODE 6310-02-P
