[Federal Register Volume 59, Number 58 (Friday, March 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-7187]


[[Page Unknown]]

[Federal Register: March 25, 1994]


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NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

36 CFR Part 1275

RIN 3095-AA59

 

Preservation and Protection of and Access to the Presidential 
Historical Materials of the Nixon Administration; Amendment of Public 
Access Regulations

AGENCY: National Archives and Records Administration.

ACTION: Proposed rule.

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SUMMARY: The National Archives and Records Administration proposes to 
amend regulations on procedures for preserving and protecting the 
Presidential historical materials of the Nixon administration and for 
providing public access to these materials. The Archivist of the United 
States is required by law to issue these regulations, and may amend 
them from time to time. The proposed regulatory amendments would 
clarify various terms that appear in 36 CFR part 1275; clarify the 
nature of the archival processing being conducted on the Nixon 
Presidential materials; and provide for the reproduction of the Nixon 
White House tape recordings. The proposed amendments to 36 CFR part 
1275 would affect former President Nixon and other individuals whose 
names appear in the materials, as well as members of the general public 
interested in conducting research regarding those materials.

DATES: All comments must be received by close of business May 24, 1994.

ADDRESSES: All comments must be submitted in writing to the Policy and 
Program Analysis Division (NAA), National Archives and Records 
Administration, The National Archives at College Park, 8601 Adelphi 
Road, College Park, MD 20740-6001.

FOR FURTHER INFORMATION CONTACT: Mary Ann Hadyka or Nancy Allard at 
(301) 713-6730.

SUPPLEMENTARY INFORMATION: The current regulations were required to be 
promulgated because the previous regulations were ruled invalid by the 
United States District Court for the District of Columbia in Allen v. 
Carmen, 578 F. Supp. 951 (D.D.C. 1983); the case held that the previous 
regulations were tainted by the legislative veto provision of the 
Presidential Recordings and Materials Preservation Act (``PRMPA''), 44 
U.S.C. 2111 note (1974). The current regulations were published on 
February 28, 1986, 51 FR 7228, and became effective on June 26, 1986. 
On April 12, 1988, the U.S. Court of Appeals for the District of 
Columbia Circuit upheld the District Court's approval of the 
regulations promulgated by the Archivist on June 26, 1986. Public 
Citizen v. Burke, 843 F.2d 1473 (D.C. Cir. 1988).
    Since promulgation of the current regulations, the National 
Archives and Records Administration has continued to prepare the Nixon 
Presidential materials for public access. Nixon Presidential historical 
material falling into several categories has been released since 1986. 
One category consists of selected subject categories and Staff Member 
and Office Files from the Nixon White House Central Files, which has 
been released (subject to the withholding of restricted material) in 
relatively small portions over time. Most of this material from the 
White House Central Files documents the President's constitutional and 
statutory duties, and the release of that material has been largely 
uneventful. 51 FR 32700 (Sept. 15, 1986), 53 FR 1870 (Jan. 22, 1988), 
53 FR 40976 and 41441 (Oct. 19, 1988), 54 FR 24054 (June 5, 1989), 54 
FR 43878 (Oct. 27, 1989), 56 FR 30774 (July 5, 1991), 57 FR 417 (Jan. 
6, 1992), 57 FR 23602 (June 4, 1992), 58 FR 17433 (April 2, 1993), and 
58 FR 31548 (June 3, 1993). In addition, the National Archives and 
Records Administration has released the Nixon White House Photo 
Collection, 44 FR 57221 (Oct. 4, 1979); Nixon White House 
Communications Agency Audio and Video Files, 51 FR 26782 (July 25, 
1986); Nixon White House selected audiovisual materials, 53 FR 40976 
(October 19, 1988); and Nixon Presidential historical materials 
relating to POW/MIA matters, 58 FR 52121 (Oct. 6, 1993).
    In 1987, a large series of materials known as the White House 
Special Files was released. 52 FR 3068 (Jan. 30, 1987). That file 
consists of many thousands of pages of sensitive documents, a high 
percentage of which document abuses of power. In addition to the 
withholding of material that the National Archives and Records 
Administration determined to be subject to restriction under the 
current regulations, the National Archives and Records Administration 
withheld material from the White House Special Files which it deemed 
releasable, but which former President Nixon claimed was subject to 
restriction or that was private or personal and therefore returnable. 
These contested documents are currently undergoing further review by 
the Presidential Materials Review Board in accordance with the 
provisions of the current PRMPA regulations.
    On June 4, 1991, the National Archives and Records Administration 
released a group of Nixon White House tape recordings. The release 
consisted of approximately 60 hours of tape recordings previously 
subpoenaed by the Watergate Special Prosecution Force (``WSPF'') during 
its investigations, as well as tape transcripts located among the 
records of the WSPF. Approximately 12\1/2\ hours of these tape 
recordings had previously been played in open court in United States v. 
Connelly and United States v. Mitchell and released, 45 FR 26823 (April 
21, 1980); however, the balance of approximately 47\1/2\ hours had not 
been released previously. This 1991 release of tape recordings and 
accompanying transcripts, processed in accordance with the decision of 
the U.S. Court of Appeals for the District of Columbia Circuit in 
Ricchio v. Klein, 773 F.2d 1389 (D.C. Cir. 1985) was not challenged by 
any party in federal court. 56 FR 12400 (March 25, 1991).
    The National Archives and Records Administration decided that the 
best way to proceed with the release of the body of the 4,000 hours of 
Nixon White House tape recordings was to release Watergate-related 
segments of the tape recordings in small monthly groupings on an 
ongoing basis. The first of these releases was noticed in the Federal 
Register on April 2, 1993, 58 FR 17433, and took place on May 17, 1993, 
without any objections from affected parties.
    The second and third releases were noticed in the Federal Register 
on June 3, 1993, and July 2, 1993, to take place on July 15, 1993, and 
August 26, 1993, respectively. 58 FR 31548 (June 3, 1993); 58 FR 35983 
(July 2, 1993). Former President Nixon raised certain procedural 
objections to these proposed releases. When the National Archives and 
Records Administration rejected former President Nixon's contention 
that those releases should not go forward, he sought relief in the 
courts. On August 9, 1993, Judge Royce Lamberth of the United States 
District Court for the District of Columbia issued an order 
preliminarily enjoining the National Archives and Records 
Administration from carrying out the releases of allegedly Watergate-
related tape recordings scheduled for August 13 and 26, 1993, pending 
(1) Segregation and return to former President Nixon of all private or 
personal conversations on the tape recordings; and (2) processing of 
the tape recordings before release to the public as a single ``integral 
file segment.'' The Court's ruling relied on the terms of the current 
PRMPA regulations, and on the terms of a draft processing manual which 
the National Archives and Records Administration's Nixon Presidential 
Materials Project (``Nixon Project'') has used in preparing Nixon 
Presidential materials for public disclosure.
    In several respects, which will be discussed in greater detail 
below, the current regulations and the Nixon Project draft processing 
manual, especially as interpreted preliminarily by the court in the 
context of the preliminary injunction, do not reflect what the National 
Archives and Records Administration has come to recognize as the most 
appropriate fashion in which to process and release the Nixon White 
House tape recordings. Therefore, the National Archives and Records 
Administration proposes certain amendments to the current regulations 
(which will have the effect of altering the draft processing manual) to 
balance the National Archives and Records Administration's 
responsibility to provide public access to the tape recordings, 
including those segments relating to Watergate, at the earliest 
reasonable date, with the need to protect the rights of former 
President Nixon and other affected parties.

General

    Section 1275.16(b) is amended to make clear that no physical 
portion of the original tape recordings shall constitute private or 
personal material, and therefore no portion of those original 
recordings is to be returned to former President Nixon or to any other 
affected party. The PRMPA requires the Archivist to maintain those 
original tape recordings, whether or not they contain personal 
conversations; as a result, the amendment to Sec. 1275.16(b) states 
that the original tape recordings constitute Presidential historical 
materials.
    Section 1275.16(e) clarifies the nomenclature used throughout the 
regulations and distinguishes between ``Archivist,'' defined as the 
Archivist of the United States or his or her designated agent, and 
``archivist,'' as defined in the current subsection, i.e., as an 
employee of the National Archives and Records Administration, who, by 
education or experience, is specially trained in archival techniques.
    Section 1275.16(g) clarifies the definition of ``archival 
processing'' to ensure that nothing in the subsection creates any 
obligation on the part of the Archivist to perform any one particular 
archival processing task listed in the subsection. In so doing, the 
National Archives and Records Administration intends to make clear that 
transcripts of the tape recordings need not be made. Although the 
current regulations indicate that the processing of the Nixon White 
House materials may undergo one or more of several archival processing 
phases, including the preparation of transcripts, the National Archives 
and Records Administration does not believe that the regulations 
intended to obligate the processing archivists to transcribe all 4,000 
hours of tape recordings before releasing them to the public. Indeed, 
the National Archives and Records Administration has estimated that it 
would take an extraordinary amount of staff time to accomplish such a 
task. In addition, the definition of ``archival processing'' in 
Sec. 1275.16(g) has been expanded to reflect the archival processing of 
the Nixon Presidential materials that actually has been taking place.
    Section 1275.20 is amended to be consistent with the amended 
definition of ``Archivist'' set forth in amended Sec. 1275.16(e) above.
    Section 1275.42(a) is amended to clarify the manner in which the 
National Archives and Records Administration intends to proceed with 
the archival processing and release of the tape recordings and all 
other non-tape Nixon Presidential materials. The current regulations 
provide that Nixon White House materials will be disclosed to the 
public in ``integral file segments.'' The concept of integral file 
segment, although not defined anywhere in the current regulations, is 
based on standard archival practice, and ordinarily refers to an 
archival determination that a particular group of processed documents 
constitutes an intelligible and complete unit for purposes of 
historical research. Archival determinations of integral file segments 
may vary significantly both in the quantity of inclusive materials and 
in the qualitative factors used in determining the components of a 
particular file segment (e.g., subject matter, author, time frame, 
etc.).
    The Nixon Project draft processing manual indicates that the 
National Archives and Records Administration intended to process the 
entire 4,000 hours of tape recordings as one integral file segment. In 
support of his motion for a preliminary injunction that was issued on 
August 9, 1993, former President Nixon argued that the draft processing 
manual, when read in conjunction with the current regulations, 
prohibits the National Archives and Records Administration from 
releasing any portion of the tape recordings before the remaining body 
of the non-restricted tape recordings (other than the approximately 60 
hours of WSPF tape segments previously released) is processed and 
released. Former President Nixon's position is not supported by the 
realities of processing the materials for public access nor, aside from 
the provisions of the current regulations and draft processing manual 
hereby proposed for amendment, supported legally, since it is contrary 
to other statutory and regulatory obligations of the National Archives 
and Records Administration.
    First, waiting until all 4,000 hours of tape have been reviewed and 
prepared for release would seriously undermine the statutory and 
regulatory obligation of the National Archives and Records 
Administration to give the public access to Watergate-related material 
at the earliest reasonable date. Second, releasing or restricting all 
4,000 hours at once would be inconsistent with current Sec. 1275.42(b), 
which requires the National Archives and Records Administration to 
publish a Federal Register notice of a proposed opening of materials. 
The purpose of that notice is to allow interested parties the 
opportunity to review--and object as appropriate--to those materials 
which are being proposed for opening. Under current Sec. 1275.44(a), 
anyone who wishes to object to a proposed opening must do so within 
thirty (30) days of the notice. In light of the fact that the 
collection of tape recordings consists of some 4,000 hours (minus 
copies of approximately 775 hours of tape segments previously 
identified as private or personal or room noise and offered for return 
to former President Nixon), it would be impossible for any one 
individual to review all portions of the tape recordings proposed for 
opening within the allotted thirty-day period if all of the 
unrestricted tape recordings were to be opened at the same time.
    To address these concerns, the proposed amendments to 
Sec. 1275.42(a) would allow the release of the tape recordings in 
groupings which would permit the opening of reasonable portions of the 
tape recordings without the need for all 4,000 hours to be released at 
once.
    In addition, amended Sec. 1275.42(a) provides that the Archivist is 
free to release segments of the tape recordings that are not private or 
personal prior to transferring private or personal material in 
accordance with current Sec. 1275.48. This amendment would allow the 
National Archives and Records Administration to continue processing and 
opening Watergate-related segments of the tape recordings at the 
earliest reasonable date, in accordance with its statutory and 
regulatory responsibility, before all private or personal conversations 
are culled out of copies of the remaining parts of the tape recordings 
and returned to former President Nixon or other affected parties. Given 
that the release of non-private conversations would not violate an 
individual's right to keep private conversations confidential, this 
amendment is entirely appropriate.
    Sections 1275.46(d) and 1275.46(f) are amended to be consistent 
with the amended definition of ``Archivist'' set forth in amended 
Sec. 1275.16(e).
    Section 1275.48(a) is amended to be consistent with the amendment 
to Sec. 1275.16(b), to make clear that no portion of the original tape 
recordings is to be returned to former President Nixon or to any other 
affected party. The PRMPA requires the Archivist to maintain those 
original tape recordings, whether or not they contain private or 
personal conversations. The amendment to this subsection would 
eliminate any doubt that the Archivist is to retain the original tape 
recordings.
    Section 1275.64 is amended to include a provision allowing for the 
reproduction of tape recordings opened to the public. This amendment is 
fully consistent with the practice of the National Archives and Records 
Administration with regard to other tape recordings. The issue of 
whether to provide copies of tape recordings has been considered by the 
National Archives and Records Administration on several occasions. At 
the time the current regulations were being written, the National 
Archives and Records Administration decided to maintain its prior 
position of not allowing copies of tape recordings, although it 
specifically stated that this position would be reviewed periodically. 
51 FR 7228 (Feb. 28, 1986). After careful reconsideration of its 
position, the National Archives and Records Administration has decided 
to allow the copying of released tape recordings. In so doing, the 
National Archives and Records Administration relies on the guidance 
from the Supreme Court in Nixon v. Warner Communications, Inc., 435 
U.S. 589, 606-08 (1978), wherein the Supreme Court recognized the 
prerogative of the National Archives and Records Service (the 
predecessor to the National Archives and Records Administration) to 
consider providing the public with an opportunity to obtain such 
copies. In light of the Supreme Court's decision in Warner 
Communications, and because such copying would seem to be in the public 
interest generally as well as in keeping with the spirit of the PRMPA, 
the National Archives and Records Administration is amending the 
regulations to allow for such copying.
    Section 1275.64(b) is also amended to be consistent with the 
nomenclature distinction between ``Archivist'' and ``archivist'' as set 
forth in Sec. 1275.16(e).
    Section 1275.66(a) is amended to accommodate two different 
possibilities with respect to the reproduction of released Nixon 
materials other than tape recordings: Copying by researchers on self-
service government copiers; and copying by contract vendors at the 
request of the National Archives and Records Administration. This 
change reflects not only current practice at the Nixon Project, but 
common practice at other presidential libraries within the National 
Archives and Records Administration system as well as NARA regulations 
regarding copying of archival documents.
    Sections 1275.70(a) and 1275.70(b) are amended to be consistent 
with the nomenclature distinction between ``Archivist'' and 
``archivist'' as set forth in Sec. 1275.16(e) above.
    Typographical corrections are made to Sec. 1275.46(i) and 
Sec. 1275.56.
    The proposed amendments to 36 CFR part 1275 are not a significant 
regulatory action for purposes of Executive Order 12866 of September 
30, 1993. As required by the Regulatory Flexibility Act, it is hereby 
certified that these proposed regulatory amendments will not have a 
significant impact on small business entities.

List of Subjects in 36 CFR Part 1275

    Archives and records.

    For the reasons set forth in the preamble above, the National 
Archives and Records Administration proposes to amend part 1275 of 
title 36 of the Code of Federal Regulations as follows:

PART 1275--PRESERVATION AND PROTECTION OF AND ACCESS TO THE 
PRESIDENTIAL HISTORICAL MATERIALS OF THE NIXON ADMINISTRATION

    1. The authority citation for part 1275 continues to read as 
follows:

    Authority: Sec. 102(a) of the National Archives and Records 
Administration Act of 1984, Pub.L. No. 98-497; 44 U.S.C. 2104; and 
secs. 103 and 104 of the Presidential Recordings and Materials 
Preservation Act, 88 Stat. 1695; 44 U.S.C. 2111 note.

    2. Section 1275.16 is amended by revising paragraphs (b), (e), and 
(g) to read as follows:


Sec. 1275.16  Definitions.

* * * * *
    (b) Private or personal materials. The term ``private or personal 
materials'' shall mean those papers and other documentary or 
commemorative materials in any physical form relating solely to a 
person's family or other non-governmental activities, including private 
political associations, and having no connection with his 
constitutional or statutory powers or duties as President or as a 
member of the President's staff. No physical part of any original tape 
recording to which reference is made in Sec. 1275.64 shall constitute 
private or personal materials. The original tape recordings in their 
respective entireties shall constitute Presidential historical 
materials.
* * * * *
    (e) Archivist. The term ``Archivist'' shall mean the Archivist of 
the United States or his designated agent. The term ``archivist'' shall 
mean an employee of the National Archives and Records Administration 
who, by education or experience, is specially trained in archival 
science.
* * * * *
    (g) Archival processing. The term ``archival processing'' may 
include the following general acts performed by archivists with respect 
to the Presidential historical materials: Shelving boxes of documents 
in chronological, alphabetical, numerical or other sequence; surveying 
and developing a location register and cross-index of the boxes; 
arranging materials; refoldering and reboxing the documents and 
affixing labels; producing finding aids such as folder title lists, 
cross-indexes, subject lists, scope and content notes, biographical 
data, and series descriptions; rewinding, duplicating and preserving 
the original tape recordings; enhancing the tape recordings on which 
the conversations are wholly or partially unintelligible so that 
extraneous noises may be filtered out; producing general subject matter 
logs of the tape recordings; reproducing and transcribing tape 
recordings; reviewing the materials to identify items that appear 
subject to restriction; identifying items in poor physical condition 
and assuring their preservation; identifying materials requiring 
further processing; and preparation for public access of all materials 
which are not subject to restriction.
* * * * *
    3. Section 1275.20 is revised to read as follows:


Sec. 1275.20  Responsibility.

    The Archivist is responsible for the preservation and protection of 
the Presidential historical materials.
    4. Section 1275.42 is amended by revising paragraph (a) to read as 
follows:


Sec. 1275.42  Processing period; notice of proposed opening.

    (a)(1) The archivists will conduct archival processing of those 
materials other than tape recordings to prepare them for public access 
in accordance with the provisions set forth in this section. In 
conducting the archival processing of those materials, the archivists 
will restrict those portions of the materials pursuant to Secs. 1275.50 
and 1275.52, and will segregate private or personal materials for 
transfer in accordance with Sec. 1275.48. All materials other than tape 
recordings to which reference is made in Sec. 1275.64 will be prepared 
for public access and released subject to restrictions or outstanding 
claims or petitions seeking such restrictions.
    (2) The archivists will conduct archival processing of the tape 
recordings to prepare them for public access in accordance with the 
provisions set forth in this section. In conducting the archival 
processing of the tape recordings, the archivists will restrict those 
segments of the tape recordings pursuant to Secs. 1275.50 and 1275.52, 
and will segregate additional private or personal materials for 
transfer in accordance with Sec. 1275.48. The tape segments which 
consist of Watergate materials, as defined in Sec. 1275.16(c), will be 
given priority processing by the archivists and will be prepared for 
public access and released as the Archivist determines to be 
appropriate. After the tape segments which consist of abuse of power 
materials have been released, the archivists will conduct archival 
processing of the remainder of the tape recordings in reasonable 
chronological segments beginning with February 1971 and ending with 
July 1973. The remaining tape segments will be prepared for public 
access and released as the Archivist determines to be appropriate. 
Nothing in this subsection prohibits the Archivist from preparing for 
public access and releasing segments of the tape recordings prior to 
transferring private or personal materials pursuant to Sec. 1275.48.
* * * * *


Sec. 1275.46  [Amended]

    5. Section 1275.46 is amended by removing in paragraph (d) and 
paragraph (f), wherever it appears, the term ``Archivist of the United 
States'' and adding in its place the term ``Archivist'', and by 
removing in paragraph (i)(2) the term ``reasonbly'' and adding in its 
place the term ``reasonably''.
    6. Section 1275.48 is amended by revising paragraph (a) to read as 
follows:


Sec. 1275.48  Transfer of materials.

    (a) The Archivist will transfer sole custody and use of those 
materials determined to be private or personal, or to be neither 
related to abuses of governmental power nor otherwise of general 
historical significance, to former President Nixon or his heirs or, 
when appropriate and after notifying Mr. Nixon or his designated agent, 
to the former staff member have primary proprietary or commemorative 
interest in the materials. No physical part of any original tape 
recordings to which reference is made in Sec. 1275.64 shall be 
transferred to former President Nixon or his heirs, or to the former 
staff members of former President Nixon, under this section.
* * * * *


Sec. 1275.56  [Amended]

    7. Section 1275.56 is amended by removing the term 
``adminsitrative'' and replacing it with the term ``administrative''.
    8. Section 1275.64 is amended by removing in paragraph (b) the term 
``Archivist'' and replacing it with the term ``archivist'', and by 
adding new paragraph (d) to read as follows:


Sec. 1275.64  Reproduction of tape recordings of Presidential 
conversations.

* * * * *
    (d) The reproduction for researchers of the reference copies of the 
tape recordings described in paragraph (a) of this section is 
permitted. Such copying will be controlled and provided by the National 
Archives and Records Administration. The fees for the reproduction of 
the tape recordings under this section shall be those prescribed in the 
schedule set forth in part 1258 of this chapter or pertinent successor 
regulation, as that schedule is amended from time to time.
    9. Section 1275.66 is amended by revising paragraph (a) to read as 
follows:


Sec. 1275.66  Reproduction and authentication of other materials.

    (a) Copying of materials other than tape recordings described in 
Sec. 1275.64 may be done by the National Archives and Records 
Administration or by researchers using self-service copiers. Such self-
service copying shall be done in accordance with National Archives and 
Records Administration policy on self-service copying set forth at 36 
CFR 1254.71, to ensure that such copying will not harm the materials or 
disrupt reference activities.
* * * * *


Sec. 1275.70  [Amended]

    10. Section 1275.70 is amended by removing in paragraph (a) the 
term ``an Archivist'' and adding in its place the term ``an archivist'' 
and by removing in paragraph (b) the term ``Archivists'' and adding in 
its place the term ``archivists''.

    Dated: March 22, 1994.
Trudy Huskamp Peterson,
Acting Archivist of the United States.
[FR Doc. 94-7187 Filed 3-24-94; 8:45 am]
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