[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]]

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Part IV





National Counterintelligence Center





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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

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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

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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

[[Page 49893]]

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

[[Page 49894]]

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