[Federal Register Volume 61, Number 79 (Tuesday, April 23, 1996)]
[Rules and Regulations]
[Pages 17842-17849]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9974]



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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: Final rule and interim final rule.

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SUMMARY: This rule revises the procedures to be followed by the 
National Archives and Records Administration (``NARA'') for preserving 
and protecting the Presidential historical materials of the Nixon 
Administration, for providing public access to these materials, and for 
providing for the reproduction of the Nixon White House tape 
recordings, based on a Settlement Agreement reached through mediation 
among Public Citizen and Stanley I. Kutler, the National Archives and 
Records Administration, and William E. Griffin and John H. Taylor, co-
executors of the Estate of Richard M. Nixon, parties to Stanley I. 
Kutler and Public Citizen v. John W. Carlin, Archivist of the United 
States, and William E. Griffin and John H. Taylor, Co-executors of 
Richard M. Nixon's Estate, Civ. A. No. 92-0662-NHJ (D.D.C.) (Johnson, 
J.). Furthermore, the final rule clarifies various terms that appear in 
36 CFR Part 1275. This final rule and interim final rule will affect 
the heirs of 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: The effective date for this final rule and interim final rule is 
May 23, 1996.
    Comments on the amendments to Secs. 1275.42, 1275.48, and 1275.64 
must be received by close of business June 24, 1996. NARA will issue a 
final rule confirming or further amending these amendments after this 
comment period closes.

ADDRESSES: All comments must be submitted in writing to the Regulation 
Comment Desk, Policy and Planning Division (PIRM-POL), Room 3200, 
National Archives and Records Administration, 8601 Adelphi Road, 
College Park, MD 20740-6001.

FOR FURTHER INFORMATION CONTACT: Nancy Allard at (301) 713-6730.

SUPPLEMENTARY INFORMATION: Professor Stanley Kutler and Public Citizen 
commenced an action against the Archivist of the United States on March 
19, 1992, by filing a complaint under the Administrative Procedure Act, 
5 U.S.C. 701, et seq. The complaint alleged that the Archivist had 
failed to carry out his obligations under the Presidential Recordings 
and Materials Preservation Act of 1974 (``PRMPA''), 44 U.S.C. 2111 
note, concerning the release of approximately 3,700 hours of tape 
recordings made during the Presidency of Richard M. Nixon. Thereafter, 
former President Nixon intervened and filed cross-claims; after his 
death in 1994, his co-executors were substituted in his place.
    During the course of the litigation, which entailed substantial 
discovery and motions, the principal disputes revolved around the issue 
of how to reconcile the disclosure requirements of the PRMPA and the 
privacy interests of Mr. Nixon and his family, as well as the other 
interests legally protected by the PRMPA. A major portion of the 
controversy centered on the issue of the timing of releases of the 
tapes (all at once or in segments), and whether the releases could be 
made before some or all of the tape segments found to be private or 
personal were returned to Mr. Nixon or his estate as required by law.
    Following the release of approximately 60 hours of tape recordings 
subpoenaed by the Watergate Special Prosecution Force (``WSPF'') during 
its investigation, NARA had decided that the best way to proceed with 
the release of the body of the approximately 3,700 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 
(later extended to August 13, 1993), and August 26, 1993, respectively. 
58 FR 31548 (June 3, 1993); 58 FR 35983 (July 2, 1993).

[[Page 17843]]

Former President Nixon raised certain objections to these proposed 
releases. When NARA rejected former President Nixon's contention that 
those releases should not go forward, he sought relief in the district 
court. On August 9, 1993, Judge Royce Lamberth of the United States 
District Court for the District of Columbia issued an order in the 
Kutler case preliminarily enjoining NARA from carrying out the releases 
of Watergate-related tape segments scheduled for release on 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 as a single ``integral file 
segment'' before release to the public.
    On March 25, 1994, the proposed amendments to the current PRMPA 
regulations were published for public comment at 59 FR 14128. At that 
time, NARA believed that the proposed amendments were required to 
clarify various terms that appear in 36 CFR Part 1275; clarify the 
nature of the archival processing being conducted on the Nixon 
Presidential historical materials; and provide for the reproduction of 
the available Nixon White House tape recordings.
    During the comment period, originally 60 days but extended by an 
additional 30 days, 59 FR 27257 (May 26, 1994), NARA received comments 
from eight individuals and organizations in response to these proposed 
regulations. The comments consisted of both objections to and support 
for the proposed amendments, although many of the comments were 
generally supportive of the proposed regulatory changes. The Nixon 
estate submitted extensive comments objecting to the proposed 
amendments.
    The Kutler case was referred to a court-appointed mediator, and 
most of the issues were resolved by the parties in a Settlement 
Agreement, which is attached hereto as Appendix A to 36 CFR Part 1275. 
As a result of the mediation, NARA is amending certain of its 
regulations as set forth below. Other comments have been incorporated 
into this final and interim final rule. Although NARA does not take a 
position as to whether it is necessary to resubmit the proposed changes 
to the regulations as a result of the Settlement Agreement, NARA 
nevertheless is publishing as an interim final rule for a 60-day 
comment period those sections of Part 1275 which have been revised in 
accordance with the provisions of the Settlement Agreement reached 
among the parties. Those sections of the proposed rule published on 
March 25, 1994, that have not been further revised due to the 
Settlement Agreement are issued as a final rule. No additional comments 
will be considered on these sections, which include 36 CFR 1275.16(e) 
and (g), 1275.20, 1275.46, 1275.56, 1275.66 and 1275.70. NARA had 
previously proposed to amend Sec. 1275.16(b), but now has decided that 
an amendment to this section is not necessary. NARA is amending the 
current regulations in accordance with the terms of the Settlement 
Agreement.

Interim Final Rule Provisions (Sections Affected by the Settlement 
Agreement)

    The following amended sections of 36 CFR Part 1275 are being issued 
as an interim final rule to allow public comment.
    NARA had previously proposed to amend Sec. 1275.42(a) to clarify 
the manner in which NARA intends to proceed with the archival 
processing and release of the tape recordings and all other textual 
Nixon Presidential historical materials. To address these concerns, the 
proposed amendments to Sec. 1275.42(a) would have allowed the release 
of the tape recordings in groupings that would not necessarily have 
constituted ``integral file segments,'' but which would have permitted 
the opening of portions of the tape recordings without the need for the 
approximately 3,700 hours to be released at once. The current 
regulations provide that Nixon White House materials will be disclosed 
to the public in ``integral file segments.''
    As a result of the Settlement Agreement in the Kutler case, NARA is 
now amending Sec. 1275.42(a) to describe specifically the schedule for 
the opening of the approximately 3,700 hours of tape recordings, as 
well as the procedures for allowing interested and affected parties--
including the Nixon estate--the opportunity to review (and object as 
appropriate to) a particular segment of tape recordings being proposed 
for opening. The Settlement Agreement also takes into account the fact 
that due to the extensive nature of the tape recordings collection, it 
would be impossible for the Nixon estate to review all portions of the 
tape recordings proposed for opening within the allotted 30-day period. 
As a result, the current revised amendments to Sec. 1275.42(a) 
incorporate a procedure whereby the Nixon estate will be given 
sufficient lead time to review each segment of tape recordings NARA 
proposes for opening.
    In addition, the previously proposed amendments to Sec. 1275.42(a) 
provided that the Archivist was free to release segments of the tape 
recordings prior to transferring private or personal material in 
accordance with current Sec. 1275.48, thereby allowing NARA 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. Based on the Settlement 
Agreement in the Kutler case, however, NARA is now amending 
Sec. 1275.42(a)(2) to allow for identification of additional private or 
personal materials located during the rereview of the tape recordings 
and return to the Nixon estate at approximately the time that NARA 
proposes each segment for public release.
    In accordance with the Settlement Agreement in the Kutler case, 
NARA is amending Sec. 1275.44 by adding a new subsection (e) which sets 
forth the precise procedures for the Nixon estate to raise any 
objections to those tape recordings that NARA has designated as 
relating to abuses of governmental power, as well as the standard to be 
applied by the specially appointed review panel in reviewing those 
objections. For those segments designated abuses of governmental power, 
the Nixon estate has agreed to accept the review panel's decisions as 
binding, thereby foregoing its right to appeal decisions regarding its 
objections in the normal course pursuant to Sec. 1275.46. In addition, 
although the Nixon estate has not waived its appeal rights available 
for any objections with respect to the remaining tape segments, 
subsection (e) provides that the Nixon estate may, at any time, elect 
to use the procedures used for raising objections to the abuses of 
governmental power tape segments. Subsection (e) also specifies the 
standard that will be applied by the specially appointed review panel 
in reviewing the objections to the remaining tape recordings should the 
Nixon estate elect to use the alternative procedure.
    NARA is amending Sec. 1275.48(a) to make clear that no portion of 
the original tape recordings or master preservation copy is to be 
returned to the heirs of former President Nixon. NARA's position is 
that it is complying with the PRMPA by retaining the entire original 
tape recordings and a master preservation copy containing these 
materials. This is one of the issues in the Kutler case and the parties 
to the Settlement Agreement have agreed to resolve this issue, 
including the validity of this particular section and of 
Sec. 1275.64(e), in the courts. NARA is also amending this section to 
make clear that it restricts access to all private or personal material 
on the original tape

[[Page 17844]]

recordings and master preservation copy that NARA maintains.
    NARA had previously proposed to amend Sec. 1275.64 to include a 
provision allowing for the reproduction of tape recordings opened to 
the public. The issue of whether to provide copies of tape recordings 
has been considered by NARA on several occasions. At the time the 
current regulations were written, NARA 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). In accordance with the Settlement Agreement 
in the Kutler case, Sec. 1275.64 is being amended to state that copies 
of the tapes will be made available following the public release of the 
last of the tape segments contemplated in Sec. 1275.42(a). However, if 
the last tape segment is not released by December 31, 1999, NARA will 
allow members of the public to obtain copies only of the abuses of 
governmental power tapes, together with any other tapes publicly 
released as of the effective date of the Settlement Agreement, 
beginning January 1, 2000. If the releases contemplated in 
Sec. 1275.42(a) are not completed by December 31, 2002, NARA will, 
beginning January 1, 2003, allow members of the public to obtain copies 
of all tapes that have been made available to the public by that date 
and tapes that subsequently become available, as they are released. 
NARA is also adding Sec. 1275.64(e) to make clear that the Archivist 
will produce and maintain a master preservation copy of the original 
tape recordings for preservation purposes.

Final Rule Provisions

    The following amendments to 36 CFR Part 1275 are being adopted as a 
final rule. No comments will be accepted on these provisions.
    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 NARA, who, by education or experience, is specially trained 
in archival science.
    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, NARA 
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, 
NARA does not believe that the regulations intended to obligate the 
processing archivists to transcribe all of the approximately 3,700 
hours of tape recordings before releasing them to the public. NARA does 
not believe this is an obligation because the tapes are the original 
record. NARA has created tape logs to serve as a subject guide to the 
tape recordings. NARA chose to create tape logs instead of 
transcriptions because NARA has estimated that it would take at least 
400,000 hours of staff time to accomplish such transcriptions. In 
addition, because of the sound quality of the tape recordings, NARA 
could not guarantee the accuracy of the transcriptions. Furthermore, 
the definition of ``archival processing'' in Sec. 1275.16(g) has been 
expanded to reflect the archival processing of the Nixon Presidential 
historical 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).
    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 1275.64(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 NARA. This change reflects not only current practice at the 
Nixon Presidential Materials Staff, but common practice at other 
Presidential libraries within the NARA 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).
    Typographical corrections are made to Sec. 1275.46(i) and 
Sec. 1275.56.

Other

    NARA has issued these regulations as an interim final rule under 
the good cause exception to the Administrative Procedures Act. NARA 
believes that the proper execution of the agency's function--in this 
case, the release of the Nixon Presidential historical materials at the 
earliest reasonable date--requires prompt implementation of the 
amendments to Part 1275, including the provisions that have been 
modified by the Settlement Agreement. Therefore, NARA finds it in the 
public interest to issue these regulations as an interim final rule.
    The 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 regulatory amendments will not have a significant impact on small 
business entities. For purposes of Title II, Subtitle E of Public Law 
104-121, this rule is not a major rule as defined in section 804 of the 
act.

List of Subjects in 36 CFR Part 1275

Archives and Records

    For the reasons set forth in the preamble above, Part 1275 of Title 
36 of the Code of Federal Regulations is amended 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. 98-497; 44 U.S.C. 2104; and 
sections 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 (e) and (g) to 
read as follows:


Sec. 1275.16  Definitions.

* * * * *
    (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

[[Page 17845]]

aids such as folder title 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 Nixon 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 processing the materials, the archivists will give priority to 
segregating private or personal materials and transferring them to 
their proprietary or commemorative owner in accordance with 
Sec. 1275.48. In conducting such archival processing, the archivists 
will restrict portions of the materials pursuant to Secs. 1275.50 and 
1275.52. 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. The Archivist will open for public access each integral 
file segment of materials upon completion of archival processing of 
that segment.
    (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 the Settlement Agreement (see Appendix A to 
this part). In conducting the archival processing of the tape 
recordings, the archivists will restrict segments of the tape 
recordings pursuant to Secs. 1275.50 and 1275.52. The tape segments 
which consist of abuses of governmental power information, as defined 
in Sec. 1275.16(c), will be given priority processing by the archivists 
and will be prepared for public access and released following review 
and resolution of objections from the Nixon estate and other interested 
parties as set forth in the Settlement Agreement (see Appendix A to 
this Part). After the tape segments which consist of abuses of 
governmental power information have been released, the archivists will 
conduct archival processing of those tape recordings which were taped 
in the Cabinet Room, as set forth in the Settlement Agreement, Appendix 
A to this Part. Following release of the Cabinet Room tape recordings, 
the remaining tape recordings will be prepared for public access and 
released in five segments in accordance with the schedule set forth in 
the Settlement Agreement. In addition, NARA will identify and return 
any additional private or personal segments to the Nixon estate, at 
approximately the time that NARA proposes each segment for public 
release.
* * * * *
    5. Section 1275.44 is amended by adding new paragraph (e) to read 
as follows:


Sec. 1275.44  Rights and privileges; right to a fair trial.

* * * * *
    (e)(1) In place of the right to make all other objections with 
respect to the tape segments that NARA has designated as abuses of 
governmental power materials, the Nixon estate may object to their 
release only on the ground that such designation by NARA is clearly 
inconsistent with the term ``abuses of governmental power'' as used in 
Sec. 104(a)(1) of the Presidential Recordings and Materials 
Preservation Act (PRMPA) and defined in Sec. 1275.16(c), as qualified 
by Sec. 1275.50(b). Any such objection may not be based on isolated 
instances of alleged failure by NARA to apply the appropriate review 
standard, but only on a pattern of misapplication of the requirements 
of the PRMPA and its implementing regulations. Further, any such 
objection must be accompanied by specific examples of alleged review 
errors and contain sufficient information to enable the review panel of 
three Presidential Library archivists appointed by the Archivist, as 
described in the Settlement Agreement, Appendix A to this Part, to 
locate those examples readily.
    (2) If an objection is made by the Nixon estate to the abuses of 
governmental power tape segments, the matter shall be immediately 
referred to a panel of three Presidential Library archivists appointed 
by the Archivist as set forth in the Settlement Agreement, Appendix A 
to this Part. The decision of the panel shall be either that the Nixon 
estate's objection is sustained or that it is rejected. The decision 
shall include a brief statement of the panel's reasons, but it need not 
include an item-by-item determination. In deciding whether the 
designation by NARA of the material proposed to be released is clearly 
inconsistent with the definition of ``abuses of governmental power'', 
the panel shall consider whether the release would seriously injure 
legitimate interests of identifiable individuals, whether the errors 
suggest a pattern of misinterpretation, and any other factor that bears 
on the issue of whether NARA's designation of material as relating to 
``abuses of governmental power'' was reasonable, considered as a whole. 
The panel's decision shall be final and binding on all parties to the 
Kutler litigation, and no party may exercise any right to appeal to any 
person, board, or court that might otherwise be available.
    (3) The Nixon estate may, at any time, elect to use the procedures 
outlined in paragraphs (e)(1) and (e)(2) of this section for the tape 
recordings other than the abuses of governmental power segments, except 
that the standard under which objections shall be made by the Nixon 
estate, and under which the review panel shall decide their merits, is 
whether the release taken as a whole is plainly inconsistent with the 
requirements of the Presidential Recordings and Materials Preservation 
Act of 1974 and these regulations. If the Nixon estate elects to use 
the procedures in paragraph 1 of the Settlement Agreement (Appendix A 
to this Part) in place of the provisions in paragraphs 4 (b) and (d) 
and 5(c) of the Settlement Agreement for a tape segment, the estate 
cannot subsequently revert back to the formal objection process set 
forth in this section for that tape segment.


Sec. 1275.46  [Amended]

    6. 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.''
    7. 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

[[Page 17846]]

to be neither related to abuses of governmental power nor otherwise of 
general historical significance, to former President Nixon's estate, 
or, when appropriate and after notifying the Nixon estate, to the 
former staff member having primary proprietary or commemorative 
interest in the materials; however, no physical part of any original 
tape recording or a master preservation copy to which reference is made 
in Sec. 1275.64 shall be transferred to the heirs of former President. 
NARA will maintain the original tape recordings and a master 
preservation copy, including the private and personal segments, in a 
manner consistent with the PRMPA and these regulations and will 
restrict access to all private or personal material on the originals 
and the master preservation copy.
* * * * *


Sec. 1275.56  [Amended]

    8. Section 1275.56 is amended by removing the term 
``adminsitrative'' and replacing it with the term ``administrative.''
    9. Section 1275.64 is amended by removing in paragraph (b) the term 
``Archivists'' and replacing it with the term ``archivists'' and adding 
new paragraphs (d) and (e) to read as follows:


Sec. 1275.64  Reproductions of tape recordings of Presidential 
conversations.

* * * * *
    (d) The reproduction for members of the public of the reference 
copies of the available tape recordings described in paragraph (a) of 
this section will be permitted as follows: Copies of tape recordings 
will be made available following the public release of the last of the 
tape segments contemplated in Sec. 1275.42(a). If the releases 
contemplated in Sec. 1275.42(a) are not completed by December 31, 1999, 
NARA will, beginning January 1, 2000, allow members of the public to 
obtain copies only of the abuses of governmental power tapes, together 
with any other tapes publicly released as of the effective date of the 
Settlement Agreement. If the releases contemplated in Sec. 1275.42(a) 
are not completed by December 31, 2002, NARA will, beginning January 1, 
2003, allow members of the public to obtain copies of all tapes that 
have been made available to the public by that date and tapes that 
subsequently become available as they are released. Such copying will 
be controlled by NARA or its designated contractor. 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.
    (e) The Archivist shall produce and maintain a master preservation 
copy of the original tape recordings for preservation purposes.
    10. 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 NARA, by a contractor designated by NARA, 
or by researchers using self-service copiers. Such self-service copying 
shall be done in accordance with the NARA 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]

    11. 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 ``NARA Archivists'' and 
adding in its place the term ``NARA archivists.''
* * * * * *
    12. Appendix A to Part 1275 is added to read as follows:

Appenidx A--Settlement Agreement

    Settlement Agreement filed April 12, 1996, in Stanley I. Kutler 
and Public Citizen v. John W. Carlin, Archivist of the United 
States, and William E. Griffin and John H. Taylor, Co-executors of 
Richard M. Nixon's Estate, Civil Action No. 92-0662-NHJ (D.D.C.) 
(Johnson, J.)

Settlement Agreement

    This Settlement Agreement (``Agreement'') is made by and entered 
into among plaintiffs Stanley I. Kutler and Public Citizen; 
defendant/cross-claim defendant John W. Carlin, in his official 
capacity as Archivist of the United States; and defendant-
intervenors/cross-claimants John H. Taylor and William E. Griffin, 
co-executors of the estate of Richard M. Nixon (``the Nixon 
estate''), in the above-entitled action by and through the parties' 
undersigned attorneys.
    It is hereby agreed, by and among the parties, appearing through 
their undersigned attorneys, that this action is partially settled 
on the following terms:

Terms of Agreement

    1(a). As soon as practicable, the National Archives and Records 
Administration (``the Archives'') will publicly release the segments 
of tape recordings made during the Presidency of Richard M. Nixon 
(``tape recordings'' or ``tapes'') identified by the Archives as 
relating to ``abuses of governmental power,'' as defined by 36 
C.F.R. Part 1275, along with the corresponding portions of the tape 
log and any other finding aid. The date of that release, which is 
expected to be on or about November 15, 1996, shall be determined in 
the following manner.
    (b). No later than April 15, 1996, the Archives shall deliver to 
an agent of the Nixon estate a copy of the approximately 201 hours 
of abuses of governmental power tape segments that it proposes to 
release, together with the corresponding portions of the tape log 
and any other finding aid, for review by the Nixon estate to 
determine whether it intends to object to the release. The Archives 
agrees to provide a period of orientation to the designated Nixon 
estate agent with respect to the review of the abuses of 
governmental power tape segments and to be available to respond to 
questions thereafter.
    (c). In place of the right to make all other objections with 
respect to the tape recordings that the Archives has designated as 
abuses of governmental power materials, the Nixon estate agrees that 
it may object to their release only on the ground that such 
designation by the Archives is clearly inconsistent with the term 
``abuses of governmental power'' as used in section 104(a)(1) of the 
Presidential Recordings and Materials Preservation Act of 1974 
(``the Act''), 44 U.S.C. Sec. 2111 note, and defined in 36 C.F.R. 
1275.16(c), as qualified by 36 C.F.R. 1275.50(b). Any such objection 
shall be in writing and may not be based on isolated instances of 
alleged failure by the Archives to apply the appropriate review 
standard, but only on a pattern of misapplication of the 
requirements of the Act and its implementing regulations. Further, 
any such objection must be accompanied by specific examples of 
alleged review errors and contain sufficient information to enable 
the review panel described in subparagraph 1(e) below to locate 
those examples readily. Nothing in this paragraph shall preclude the 
Nixon estate and the Archives from having informal discussions 
regarding the appropriate treatment of any of the abuses of 
governmental power tape segments.
    (d). The Nixon estate shall have until October 1, 1996, to 
submit any objection in accordance with subparagraph 1(c) above. If 
no such objection is filed, the Archives shall proceed to issue a 
notice of proposed release pursuant to 36 C.F.R. 1275.42 as soon as 
possible, but no later than October 15, 1996.
    (e). If an objection is made, the matter shall be immediately 
referred to a panel of the following three Presidential Library 
archivists: David Alsobrook, Frances Seeber, and Claudia Anderson. 
If any of these three persons is unable to serve, the Archivist 
shall appoint a substitute who is acceptable to the other parties.
    (f). The panel shall have such access to the tapes as it deems 
necessary to make its decision. The decision of the panel shall be 
either that the Nixon estate's objection is sustained or that it is 
rejected. The decision shall include a brief statement of the 
panel's reasons, but it need not include an item-by-item 
determination. In deciding whether the designation by the Archives 
of the material proposed to be released is clearly inconsistent with 
the definition of ``abuses of governmental power,'' the panel shall 
consider whether the release would seriously injure legitimate 
interests of identifiable

[[Page 17847]]

individuals, whether the errors suggest a pattern of 
misinterpretation, and any other factor that bears on the issue of 
whether the Archives' designation of material as relating to abuses 
of governmental power was reasonable, considered as a whole. The 
decision of the panel shall be made within sixty (60) days of the 
date of the objection. However, if the panel determines that 
exceptional circumstances interfere with its ability to meet this 
deadline, the panel shall have up to an additional sixty (60) days 
to make its decision. The Archives shall notify the other parties of 
the need for an extension and briefly describe the reasons therefor. 
The panel's decision shall be final and binding on all parties, and 
no party may exercise any right to appeal to any person, board, or 
court that might otherwise be available. Nothing contained in this 
Agreement shall preclude the panel from advising the Archives of any 
particular processing errors that it believes may have been made, 
but the Archivist shall make the final determination as to whether 
to accept such advice.
    (g). If the objection of the Nixon estate is sustained, the 
Archives shall re-review the tapes sufficiently to address the 
concerns raised by whatever aspect of the objection is sustained. At 
the conclusion of such re-review, the same process of review, first 
by the Nixon estate and then by the panel in the event of further 
objection, shall be repeated for those tape segments concerning the 
subject matter of the sustained objection prior to any release of 
tape recordings designated as relating to abuses of governmental 
power.
    (h). The Nixon estate agrees to inform the Archives and 
plaintiffs whether it intends to file objections as soon as it has 
made its decision. If there is an objection by the Nixon estate and 
it is overruled, the Federal Register notice shall be published 
within ten (10) days of the date of the panel's decision.
    (i). If, following the Federal Register notice, no objection by 
other individuals to a release is received within the time provided 
by law, the Archives shall release the tape recordings within ten 
(10) days after such time has expired. If objections are received, 
they shall be promptly considered by the Archives and shall be 
decided as soon thereafter as practical. Any materials as to which 
an objection to release has been timely filed shall not be released 
until such objection has been resolved pursuant to 36 C.F.R. 
1275.44. All materials not objected to shall be released no later 
than thirty (30) days after the time for objections has expired, 
provided that the Archives may withhold any additional conversation 
to which no objection has been made, pending final resolution of an 
objection to another conversation, if (i) such additional 
conversation is in close proximity on the tapes to the objected-to 
conversation and it would be burdensome for the Archives to separate 
out the releasable and objected-to portions, or (ii) the subjects of 
the releasable and the objected-to conversations are closely related 
to one another and the Archives determines that it might be 
misleading or might unfairly prejudice a living individual to 
release only one conversation. Any release under this Agreement 
shall include the corresponding portions of the tape log and any 
other finding aid.
    (j). The Archives shall send to plaintiff Kutler, to arrive no 
later than the day that the release of the tapes occurs, a copy of 
the portions of the tape log and any other finding aid that 
correspond to the tapes being released. The Archives shall also make 
suitable arrangements for plaintiff Kutler to listen to such tapes 
on the date of their release, and/or on such other subsequent 
business days as plaintiff Kutler shall designate.
    2(a). Although the Agreement provides that the Archives will 
identify and return to the Nixon estate a copy of any private or 
personal materials identified on the tapes, the parties have been 
unable to reach agreement regarding the Archivist's retention and 
maintenance of the original tape recordings in their entirety, 
including those segments deemed to be private or personal, along 
with a master preservation copy. The government's position is that 
it is complying with the Act by retaining the original tapes and a 
master preservation copy, including those portions containing 
private or personal conversations. The Nixon estate's position, with 
which plaintiffs agree, is that the family has statutory, 
constitutional, and other rights that prevent the Archives from 
retaining private or personal materials, on both the original tapes 
and all copies.
    (b). The parties have agreed to litigate the issue described in 
subparagraph 2(a) above, including the validity of 36 C.F.R. 
1275.48(a) and 1275.64(e) as proposed for amendment. The parties 
further agree that the Court shall retain jurisdiction of that 
issue, as provided in paragraph 14 below, and that the right to 
litigate this issue includes the right to seek review in the United 
States Court of Appeals for the District of Columbia Circuit and the 
United States Supreme Court. If there is litigation between the 
Nixon estate and the Archivist over the issue described in 
subparagraph 2(a) above, the plaintiffs shall support the Nixon 
estate in any such litigation by filing a brief supporting the 
estate's position in District Court. The parties agree to make all 
reasonable efforts to expedite resolution of this issue.
    (c). This Agreement and all discussions, negotiations and 
exchanges of information leading to it shall be entirely without 
prejudice to any positions the parties may take in the event of such 
litigation. Nothing in this Agreement, in any discussions leading to 
it, or in any information or materials exchanged by the parties as 
part of the mediation may be relied on or disclosed by any party to 
support or rebut the position of any party with respect to the 
treatment of private or personal materials on the original tapes. 
Nothing in this subparagraph prevents any party from expressing its 
understanding as to the meaning and effect of the legal position of 
another party.
    3. The Archives will provide to the Nixon estate any additional 
private or personal materials at approximately the time that the 
Archives proposes each segment identified in paragraphs 4 and 5 
below for public release. Any additional copies of that material 
(other than on a master preservation copy, the status of which will 
be determined in accordance with the resolution of the issue as 
described in subparagraph 2(a) above), will be destroyed by 
appropriate method, with appropriate means of verification.
    4(a). The second group of tapes to be processed for release is 
the approximately 278 hours recorded in the Cabinet Room. The 
projected date for publishing a notice of proposed opening of tapes 
in that group is August 1, 1997. The Archives will make the Cabinet 
Room tapes proposed for release available to the Nixon estate in no 
fewer than four (4) segments. The process by which those tapes will 
be reviewed by the Nixon estate, and the objections handled by the 
Archives, is set forth in the following subparagraphs of this 
paragraph 4.
    (b). The Nixon estate agrees to review each segment as it is 
received and promptly to call to the attention of the Archives any 
concerns that it may have. The Archives and the Nixon estate agree 
to attempt to work out their differences informally in order to 
minimize any objections to a proposed release. To facilitate 
informal consultation between the Nixon estate and the Archives 
concerning the tape review, the Archivist shall designate a panel 
member identified in subparagraph 1(e) above who will serve as a 
contact with the Nixon estate and assure access to information 
relating to Presidential libraries practices and procedures that may 
arise in the course of the tape review. The designated individual 
will be responsible for assuring that the Nixon estate has access to 
the appropriate person to answer its concerns. The Nixon estate may 
communicate with the designated individual orally or in writing. If 
the Archives agrees with the Nixon estate that any portion of a 
segment that has been sent to the Nixon estate as a proposed release 
should not be released, the Archives shall assure that there is 
appropriate documentation to reflect that change.
    (c). The Nixon estate will have a period of at least six (6) 
months in which to review all of the Cabinet Room tapes, beginning 
on the date the Archives makes the first installment of such tapes 
available to the estate for review (but in no event will the six (6) 
months begin earlier than November 15, 1996). During the review of 
the Cabinet Room tapes, the Nixon estate will employ an agent or 
agents who will spend an average of at least thirty two (32) hours a 
week (total) in actual review of the tapes. The Nixon estate may 
request from the Archives an extension of the six-month review 
period, which the Archives shall grant if good cause is shown.
    (d). If, during its review, the Nixon estate becomes aware that 
there are materials proposed for release that it believes should not 
be heard even by individuals on the registry list, it will promptly 
advise the Archives of any such materials so that they can be 
reviewed and/or segregated by the Archives before any other 
individual is permitted to listen to them. The Nixon estate will 
cooperate with the Archives so that the required Federal Register 
notice is published as soon as possible, but in no event shall such 
notice be provided later than ten (10) days after the time the Nixon 
estate completes its review. Final objections from the Nixon estate 
to the release of portions of the tapes shall be filed in accordance 
with 36

[[Page 17848]]

C.F.R. Part 1275 no later than the date for filing objections by 
other persons. Thereafter, subject to paragraph 7 below, the 
provisions of subparagraphs 1(i) and 1(j) above will apply.
    5(a). The remaining tapes, consisting of approximately 2338 
hours, shall be processed for release in five (5) segments. Because 
the precise number of hours of tapes for each month cannot readily 
be determined, the parties have agreed to divide the releases into 
the segments set forth below. The Archives will begin processing 
(which includes, but is not limited to, tape review, preparing tapes 
for declassification review, tape editing and production of finding 
aids) each segment before processing of the preceding segment is 
concluded. Processing of the tapes in each segment is projected to 
take from about fifteen (15) to about twenty three (23) months. The 
approximate number of hours of tapes to be reviewed in each segment 
is set forth in parentheses in the following listing of the 
segments. The projected number of months between the completion of 
the Archives' processing of the immediately preceding segment and 
the completion of the Archives' processing of each listed segment is 
set forth in brackets.

1. February 1971-July 1971 (437 hours) [8 months]
2. August 1971-December 1971 (405 hours) [7 months]
3. January 1972-June 1972 (440 hours) [7 months]
4. July 1972-October 1972 (410 hours) [6 months]
5. November 1972-July 1973 (646 hours) [10 months]

    (b). The time estimates in this Agreement are not enforceable as 
such, but the parties agree to have the Court retain jurisdiction to 
consider requests that it enter a binding order setting a schedule 
for the Archives to complete the processing of the tapes. No party 
may seek such an order unless that party first provides twenty (20) 
days' written notice to the other parties of that party's intention 
to seek such an order. Further, no party may seek such an order 
except on the ground that the Archives has unreasonably failed to 
meet the estimates contained herein by a substantial amount. The 
type of proof that will demonstrate reasonableness on the part of 
the Archives in this regard may include, but will not necessarily be 
limited to, a showing that the Archives is reasonably allocating its 
resources among its various programs and activities in the event 
that it experiences a shortage of resources, including any 
occasioned by court order.
    (c). Portions of each segment processed by the Archives shall be 
provided to the Nixon estate when the processing of each month of 
tape recorded material is completed, unless there are a very few 
hours for two (2) or more months, which may then be combined into a 
single unit. During its review of the chronological tape segments, 
the Nixon estate will employ an agent or agents who will spend an 
average of at least thirty two (32) hours a week (total) in actual 
review of the tapes, forty eight (48) weeks of the year. As its 
review of the tapes proceeds, the Nixon estate shall provide a 
written report of its progress to the Archives and the plaintiffs on 
a bimonthly basis. The report shall include the number of hours 
worked in each week, the number of hours of tapes reviewed in each 
week, and the Nixon estate's projected completion date for review of 
the segment currently under review. The provisions of subparagraphs 
4(b) and 4(d) above shall apply to the review, objections, and 
releases with respect to the chronological tape segments, subject to 
paragraph 7 below.
    (d). If one of the other parties to this Agreement determines 
that the Nixon estate's review is not being conducted diligently or 
in good faith, or that the estate's estimated completion date(s) of 
one or more segments is unreasonable, that party may petition the 
Archivist to establish an earlier date(s) for the completion of the 
review of that segment and/or of future segments. Any such date(s) 
established by the Archivist shall provide the Nixon estate with a 
reasonable opportunity to protect and assert its interests without 
unduly delaying the release of the tapes, and shall be based upon 
consideration of the progress of the Archives' review and its 
scheduled completion date(s); the progress to date of the estate's 
review; and the time reasonably necessary to complete the estate's 
review and to formulate and present any objections. The Archives may 
also propose earlier dates for the completion of the review by the 
Nixon estate on the basis provided for in this subparagraph. If a 
proposal for an earlier date is made, the Nixon estate will have a 
reasonable opportunity to respond.
    6. Once the Archives has completed processing the approximately 
2338 hours of tapes discussed in paragraph 5 above, and has made 
corresponding releases, the Archives shall identify any additional 
copies of partial tape segments in its possession. If the Archives 
determines that some or all of such additional partial tape segments 
are duplicative of any tape recordings that it has already 
processed, the Archives may dispose of the duplicative tape 
segments, following notification to the parties, subject to 
paragraph 3 above. To the extent that such partial tape segments are 
not duplicative of the tape recordings already processed, the 
Archives shall promptly process such non-duplicative portions and 
shall treat any portions determined to be private or personal 
consistently with the resolution of the issue to be litigated as 
described in paragraph 2 above.
    7(a). After completion of the procedures described in paragraph 
4 above, the Cabinet Room tapes that are found to be releasable 
under paragraph 4 above may be released if either there has been a 
final decision by the district court on the issue to be litigated as 
described in subparagraph 2(a) above, or the release is scheduled 
after April 1, 1998, whichever of these two events happens sooner.
    (b). After completion of the procedures described in paragraph 5 
above, the tapes described in paragraph 5(a) above that are found to 
be releasable may be released if either there has been a final 
judgment by the district court, which is not subject to further 
review by appeal or certiorari, with regard to the issue to be 
litigated as described in subparagraph 2(a) above, or there has been 
a final decision by the United States Court of Appeals for the 
District of Columbia Circuit on this issue, or the release is 
scheduled to take place after November 1, 1999, whichever of these 
three events happens sooner.
    (c). As used in subparagraphs 7(a) and (b) above, the term 
``final decision'' means a decision not subject to reconsideration 
under Rule 59 of the Federal Rules of Civil Procedure, or Rules 35 
or 40 of the Federal Rules of Appellate Procedure, respectively.
    8. The Nixon estate may, at any time, elect to use the 
procedures in paragraph 1 above with respect to any tape segment in 
place of the provisions of paragraphs 4(b) and (d) and 5(c) above, 
with the following substitution: The standard under which objections 
shall be made, and under which the panel shall decide their merits, 
is whether the release taken as a whole is plainly inconsistent with 
the requirements of the Act and its implementing regulations. 
Provided, however, that once the Nixon estate elects to use the 
procedures in paragraph 1 above in place of the provisions in 
paragraphs 4(b) and (d) and 5(c) above, it cannot subsequently 
revert back to the formal objection process set forth in 36 C.F.R. 
Part 1275 for that tape segment.
    9. Within thirty (30) days of the Court's entry of an order as 
described in paragraph 14 below, the Archivist shall designate a 
particular person who shall be responsible for responding to 
reasonable inquiries from the plaintiffs on the status of the 
releases and objections. Such designation may be changed at any time 
at the Archivist's discretion by a notice to plaintiffs through 
their counsel.
    10. If the Archives appoints a Senior Archival Panel as defined 
in 36 C.F.R. 1275.46(d) and (e), no party to the Agreement may 
object to the appointment of such a panel on the ground that the 
suggestion to appoint such a panel was originated by an individual 
other than the processing archivists assigned to the Archives' Nixon 
Presidential Materials Staff.
    11. The Archives will allow members of the public to obtain 
copies of publicly accessible portions of the tapes after the 
releases described in paragraph 5 above, are completed; provided, 
however, that if the releases described in paragraph 5 above are not 
completed by December 31, 1999, the Archives will allow members of 
the public to obtain copies only of the abuses of governmental power 
tapes, together with any other tapes publicly released as of the 
date of the filing of this Agreement with the Court, beginning 
January 1, 2000. Further provided, that if the releases described in 
paragraph 5 above are not completed by December 31, 2002, the 
Archives will, beginning January 1, 2003, allow members of the 
public to obtain copies of all tapes that have been made available 
to the public by that date and tapes that subsequently become 
available, as they are released.
    12(a). Promptly after the Court enters the Order provided for in 
paragraph 14 below, plaintiff Kutler will withdraw his request under 
the Freedom of Information Act, 5 U.S.C. 552, for any and all tape 
logs and other finding aids, which is pending in Kutler v. Carlin, 
et al., Civ. A. No. 92-0661-NHJ (D.D.C.). In all other respects, 
plaintiff Kutler's request in that action shall be unaffected by 
this Agreement.

[[Page 17849]]

    (b). Nothing in this Agreement shall affect the processing by 
the Archives of any dictabelts, which are a collection of recordings 
of former President Nixon and other White House staff members 
dictating memoranda, correspondence and speech drafts, that are 
included in the materials that are subject to the Act.
    13. Pursuant to Rule 315 of this Court, the plaintiffs and the 
defendant shall attempt to resolve the plaintiffs' claim for 
attorneys' fees and expenses and shall advise the Court no later 
than forty-five (45) days after this Court has entered the Order 
provided for in paragraph 14 below on whether they have been able to 
resolve the issue of attorneys' fees and expenses. If no resolution 
has been reached, they will, at that time, recommend a schedule to 
the Court to resolve such claim.
    14. The parties agree to the dissolution of the preliminary 
injunction entered on August 9, 1993, and dismissal with prejudice 
of this action, including all claims and cross-claims, except for 
the issue to be litigated as described in subparagraph 2(a) above, 
and any fees and expenses claimed pursuant to paragraph 13 above, by 
filing the attached Joint Motion to Vacate Preliminary Injunction 
and to Dismiss Claims, and the attached Consent Order. The parties 
agree that the Court shall retain jurisdiction to: (a) Consider the 
entry of an order in accordance with the terms of paragraph 5 above; 
(b) resolve the issue to be litigated as described in subparagraph 
2(a) above; (c) determine any fees and expenses claimed pursuant to 
paragraph 13 above; and (d) for the purpose of enforcing the terms 
of this Agreement. The parties further agree that such jurisdiction, 
except with respect to the issue described in paragraph 2 above, 
will be retained only until the later of the implementation of 
paragraph 11 above or the completion of the releases called for in 
paragraph 5 above. Plaintiffs and the Nixon estate further agree 
that they will not challenge any regulations issued by the Archives 
which implement and are consistent with this Agreement.
    15. The terms of this Agreement may not be altered except with 
the written consent of the parties. Nothing in this Agreement 
constitutes an admission of liability or wrongdoing on the part of 
any party.
    Executed this 12th day of April, 1996.

    For Plaintiffs Stanley I. Kutler and Public Citizen:
Alan B. Morrison,

(D.C. Bar No. 073114), Public Citizen Litigation Group, 1600 20th 
Street NW., Washington, DC 20009, (202) 588-1000.

    For Defendant John W. Carlin:
Anne L. Weismann,

(D.C. Bar No. 298190)

Judry L. Subar,

(D.C. Bar No. 347518)

Alina S. Kofsky,

(D.C. Bar No. 419093), Department of Justice, Federal Programs Branch, 
Civil Division, 901 E Street NW., Room 1010, Washington, DC 20530, 
(202) 514-4523.

    For Defendant-Intervenors John H. Taylor and William E. Griffin:
Herbert J. Miller,
(D.C. Bar No. 026120)
R. Stan Mortenson,
(D.C. Bar No. 114678)
Scott L. Nelson,
(D.C. Bar No. 413548)
Ellen Fels Berkman,
(D.C. Bar No. 433310)
Miller, Cassidy, Larroca & Lewin,
2555 M Street, NW., Washington, DC 20037, (202) 293-6400.

    Dated: April 18, 1996.
John W. Carlin,
Archivist of the United States.
[FR Doc. 96-9974 Filed 4-22-96; 8:45 am]
BILLING CODE 7515-01-P