[Federal Register Volume 65, Number 33 (Thursday, February 17, 2000)]
[Proposed Rules]
[Pages 8077-8081]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-3729]


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NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

36 CFR Part 1260

RIN 3095-AA67


Records Declassification

AGENCY: National Archives and Records Administration (NARA).

ACTION: Proposed rule.

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SUMMARY: NARA has reviewed its regulations related to declassification 
of national security-classified information in records transferred to 
NARA's legal custody. NARA is updating them to incorporate changes 
resulting from Executive Order 12958, Classified National Security 
Information. The changes in this proposed rule include:
    --Revising the timeline for systematic review from 30 years to 25 
years.
    --Redefining declassification responsibilities to reflect the E.O. 
12958 requirement for agencies to maintain systematic review programs.
    --Adding requirements for agencies that elect to review their 
accessioned records at NARA.
    --Adding requirements for loaning records to agencies for 
declassification review.
    --Revising requirements for reclassification of information to meet 
the provisions of E.O. 12958.
    The proposed rule will affect members of the public who file 
mandatory review requests and Federal agencies.

DATES: Comments must be received on or before April 17, 2000.

ADDRESSES: Send comments to Regulation Comment Desk, NPLN, Room 4100, 
National Archives and Records Administration, 8601 Adelphi Road, 
College Park, Maryland, 10740-6001. You may also fax comments to (301) 
713-7270.

FOR FURTHER INFORMATION CONTACT: Nancy Allard or Shawn Morton at (301) 
713-7360.

SUPPLEMENTARY INFORMATION: Following is a discussion of substantive 
changes contained in this proposed rule. The proposed rule is written 
in plain language in accordance with the Presidential Memorandum of 
June 1, 1998, Plain Language in Government Writing. Additional 
nonsubstantive changes, such as updated addresses, have been made 
throughout this proposed rule.
    We are reorganizing Subpart A to include general information that 
is found in the current Sec. 1260.1, including definitions for 
systematic review and mandatory review, and sections on the purpose, 
scope, and authority of this regulation. Executive Order 12958 changes 
the timeline for systematic review from 30 years to 25 years, and it 
also requires that agencies retain the responsibility for systematic 
review for older records; however, they may delegate declassification 
authority to NARA by providing declassification guidance to NARA. This 
redefinition of responsibilities is reflected in the proposed 
Sec. 1260.20, which is a change to the existing Sec. 1260.2(c) that 
gave NARA declassification responsibility for records more than 30 
years old. The proposed Secs. 1260.22 and 1260.26 detail 
declassification responsibilities for White House originated 
information and intelligence and cryptography information. The 
responsibilities in these proposed sections are unchanged from the 
responsibilities outlined in the existing Sec. 1260.2. The proposed 
Sec. 1260.24 assigns declassification responsibility for foreign 
government information to the agency that received the information 
regardless of the age of the information. This is a change from the 
existing Sec. 1260.2(b) and (c) that gave NARA the responsibility for

[[Page 8078]]

declassification review of foreign government information that is more 
than 30 years old.
    Subpart C is retitled ``Systematic Review.'' The proposed 
Sec. 1260.40 stipulates that NARA will review for declassification 
under systematic review all records in its holdings that are over 25 
years old. However, the originating agencies may choose to review these 
records themselves by sending personnel to the NARA facility in which 
the records are located to conduct the review. The proposed 
Sec. 1260.42 outlines the rules for agencies that wish to send 
personnel to a NARA facility to conduct a systematic declassification 
review. Agency reviewers must abide by NARA security regulations and 
procedures for handling archival materials. Agency reviewers also must 
obtain approval from NARA before using scanners, microfilm readers or 
other equipment to copy or read original records. The proposed 
Sec. 1260.44 explains procedures for NARA to loan original records back 
to agencies for declassification review if agency reviewers cannot work 
at a NARA facility. NARA will inspect areas in which loaned records are 
to be stored and reviewed to ensure that the records are maintained in 
archivally acceptable conditions and that the areas meet the standards 
for the storage and handling of national security-classified materials. 
The requesting agencies must abide by NARA procedures for handling and 
preserving original records.
    The proposed Sec. 1260.50, which consists of the current 
Secs. 1260.10 and 1260.30, details NARA's responsibilities for handling 
mandatory review requests for Executive branch records. NARA will refer 
copies of records in its possession that are less than 25 years old 
back to the originating agencies for declassification review. Agencies 
may also send agency reviewers to NARA to review records on-site. The 
agency responsibilities and the appellate process under mandatory 
review in the proposed Secs. 1260.52 and 1260.54 are essentially 
unchanged from the existing Secs. 1260.12 and 1260.32. The proposed 
Sec. 1260.58, which contains portions of the existing Secs. 1260.42 and 
1260.50, discusses how NARA will handle mandatory review requests for 
White House originated information.
    Procedures for reclassifying records are moved to the proposed 
Subpart E, and encompass the existing Secs. 1260.70 through 1260.74. 
These regulations are essentially unchanged, except that we include a 
provision in the proposed Sec. 1260.74 that states that NARA will 
notify the requesting agency if NARA appeals a reclassification request 
to ISOO.
    This proposed rule is not a significant regulatory action for the 
purposes of Executive Order 12866. As required by the Regulatory 
Flexibility Act, it is hereby certified that this proposed rule will 
not have a significant impact on a substantial number of small entities 
because it applies to Federal agencies.

List of Subjects in 36 CFR Part 1260

    Archives and records.


    For the reasons stated in the preamble, the National Archives and 
Records Administration proposes to revise 36 CFR Part 1260 to read as 
follows:

SUBCHAPTER D--DECLASSIFICATION

PART 1260--DECLASSIFICATION OF NATIONAL SECURITY INFORMATION

Subpart A--General Information

Sec.
1260.1   What is the purpose of this regulation?
1260.2   Definitions.
1260.4   What NARA holdings are covered by this regulation?
1260.6   What is the authority for this regulation?
Subpart B--Responsibilities
1260.20   Who is responsible for the declassification of national 
security-classified Executive Branch information that has been 
accessioned by NARA?
1260.22   Who is responsible for the declassification of national 
security-classified White House originated information in NARA's 
holdings?
1260.24   Who is responsible for declassification of foreign 
government information in NARA's holdings?
1260.26   Who is responsible for declassification of information 
concerning intelligence or cryptography in NARA's holdings?
Subpart C--Systematic Review
1260.40   How will records at NARA be reviewed for declassification?
1260.42   What are the procedures for agency personnel to review 
records at a NARA facility?
1260.44   Will NARA loan accessioned records back to the agencies to 
conduct declassification review?
Subpart D--Mandatory Review

Executive Branch Records

1260.50   What procedures does NARA follow when it receives a 
request for Executive Branch records under mandatory review?
1260.52   What are agency responsibilities when it receives a 
mandatory review request forwarded by NARA?
1260.54   What is the appeal process when a mandatory review request 
for Executive Branch information is denied?

White House Originated Information

1260.56   Is White House originated information subject to mandatory 
review?
1260.58   What are the procedures for requesting a mandatory review 
of White House originated information?
1260.60   What are agency responsibilities with regard to mandatory 
review requests for White House originated information?
1260.62   What are the procedures when agencies receive a mandatory 
review request for White House originated information in their 
custody?
1260.64   What is the appeal process when a mandatory review request 
for White House originated information is denied?
Subpart E--Reclassification
1260.70   Can Executive Branch information be reclassified?
1260.72   Can White House information be reclassified?
1260.74   Can NARA appeal a request to reclassify information?

    Authority: 44 U.S.C. 2101 to 2118; 5 U.S.C. 552; EO 12958, 60 FR 
19825, 3 CFR, 1995 Comp., p.333; EO 13142, 64 FR 66089

Subpart A--General Information


Sec. 1260.1  What is the purpose of this regulation?

    This regulation defines the responsibilities of NARA and other 
Federal agencies for declassification of national security classified 
information in the holdings of NARA. This part also provides procedures 
for conducting systematic reviews of NARA holdings and for processing 
mandatory review requests for NARA holdings. Regulations for 
researchers wishing to request Federal records under the Freedom of 
Information Act (FOIA) or under mandatory review can be found in 36 CFR 
1254.38.


Sec. 1260.2  Definitions.

    (a) Systematic declassification review means the review for 
declassification of national security-classified information contained 
in records that have been determined by the Archivist of the United 
States to have permanent value in accordance with 44 U.S.C. 2107.
    (b) Mandatory declassification review means the review for 
declassification of national security-classified information in 
response to a request for declassification that meets the requirements 
under section 3.6 of Executive Order 12958.


Sec. 1260.4  What NARA holdings are covered by this regulation?

    The NARA holdings covered by this regulation are records legally 
transferred to the National Archives and Records Administration (NARA), 
including Federal records accessioned into the

[[Page 8079]]

National Archives of the United States; and Presidential records; Nixon 
Presidential materials, and donated historical materials in 
Presidential Libraries and in the National Archives of the United 
States.


Sec. 1260.6  What is the authority for this regulation?

    Declassification of and public access to national security 
information is governed by Executive Order 12958 of April 17, 1995 (3 
CFR 1995 Comp., p. 333) and by the Information Security Oversight 
Office Implementing Directive for Executive Order 12958 (32 CFR part 
2001).

Subpart B--Responsibilities


Sec. 1260.20  Who is responsible for the declassification of national 
security-classified Executive Branch information that has been 
accessioned by NARA?

    (a) Information less than 25 years old. The originating agency is 
responsible for its declassification.
    (b) Information more than 25 years old. The originating agency 
retains the ultimate responsibility for declassification but may 
delegate declassification authority to NARA in the form of 
declassification guidance.
    (c) Information in records of a defunct agency. NARA is responsible 
for the declassification of records of a defunct agency that has no 
successor in function. NARA will consult with agencies having primary 
subject matter interest before making declassification determinations.


Sec. 1260. 22  Who is responsible for the declassification of national 
security-classified White House originated information in NARA's 
holdings?

    (a) NARA is responsible for declassification of information from a 
previous administration that was originated by:
    (1) The President;
    (2) The White House staff;
    (3) Committees, commissions, or boards appointed by the President; 
or
    (4) Others specifically providing advice and counsel to the 
President or acting on behalf of the President.
    (b) NARA will consult with agencies having primary subject matter 
interest before making declassification determinations.


Sec. 1260.24  Who is responsible for declassification of foreign 
government information in NARA's holdings?

    (a) The agency that received or classified the information is 
responsible for its declassification.
    (b) In the case of a defunct agency, NARA is responsible for 
declassification of foreign government information in its holdings and 
will consult with the agencies having primary subject matter interest 
before making declassification determinations.


Sec. 1260.26  Who is responsible for declassification of information 
concerning intelligence or cryptography in NARA's holdings?

    (a) The Director of the Central Intelligence Agency is responsible 
for declassification of information concerning intelligence activities 
and intelligence sources and methods.
    (b) The Secretary of Defense is responsible for declassification of 
information concerning cryptography.

Subpart C--Systematic Review


Sec. 1260.40  How will records at NARA be reviewed for 
declassification?

    (a) NARA staff will systematically review for declassification 
records over 25 years old for which the originating agencies have 
provided declassification guidance if the originating agency does not 
wish to review the records itself.
    (b) Agencies may choose to review their own records that are over 
25 years old themselves by sending personnel to the NARA facility where 
the records are located to conduct the declassification review.
    (c) The originating agency must review records less than 25 years 
old and records for which the originating agency has not provided 
declassification guidance.


Sec. 1260.42  What are the procedures for agency personnel to review 
records at a NARA facility?

    (a) NARA will make the records available to properly cleared agency 
reviewers. NARA will provide space for agency reviewers in the facility 
in which the records are located as space is available. NARA will also 
provide training and guidance for agency reviewers on the proper 
handling of archival materials.
    (b) Agency reviewers must:
    (1) Follow NARA security regulations and abide by NARA procedures 
for handling archival materials;
    (2) Follow NARA procedures for identifying and marking documents 
that cannot be declassified; and
    (3) Obtain permission from NARA before bringing into a NARA 
facility computers, scanners, tape recorders, microfilm readers and 
other equipment necessary to view or copy records. NARA will not allow 
the use of any equipment that poses an unacceptable risk of damage to 
archival materials. See 36 CFR 1254.26 and 1254.27 for more information 
on acceptable equipment.


Sec. 1260.44  Will NARA loan accessioned records back to the agencies 
to conduct declassification review?

    In rare cases, when agency reviewers cannot be accommodated at a 
NARA facility, NARA will consider a request to loan records back to an 
originating agency in the Washington, DC metropolitan area for 
declassification review. Each request will be judged on a case-by-case 
basis. The requesting agency must:
    (a) Ensure that the facility in which the documents will be stored 
and reviewed passes a NARA inspection to ensure that the facility 
maintains:
    (1) The correct archival environment for the storage of permanent 
records; and
    (2) The correct security conditions for the storage and handling of 
national security-classified materials.
    (b) Meet NARA requirements for ensuring the safety of the records;
    (c) Abide by NARA procedures for handling of archival materials;
    (d) Identify and mark documents that cannot be declassified in 
accordance with NARA procedures; and
    (e) Obtain NARA approval of any equipment such as scanners, 
copiers, or cameras to ensure that they do not pose an unacceptable 
risk of damage to archival materials.

Subpart D--Mandatory Review

Executive Branch Records


Sec. 1260.50  What procedures does NARA follow when it receives a 
request for Executive Branch records under mandatory review?

    (a) If the requested records are less than 25 years old, NARA 
refers copies of the records to the originating agency or to the agency 
that has primary subject matter interest for declassification review. 
Agencies may also send personnel to a NARA facility where the records 
are located to conduct a declassification review.
    (b) If the requested records are more than 25 years old, NARA will 
review the records using systematic declassification guidance. NARA 
will refer any documents it is unable to declassify to the appropriate 
agency for declassification determinations.
    (c) When the records were originated by a defunct agency that has 
no successor agency, NARA is responsible for making the 
declassification determinations, but will consult with agencies having 
primary subject matter interest.
    (d) In every case, NARA will acknowledge receipt of the request and 
inform the requester of the action taken. If additional time is 
necessary to make

[[Page 8080]]

a declassification determination, NARA will tell the requester how long 
it will take to process the request. NARA will also tell the requester 
if part or all of the requested information is referred to other 
agencies for declassification review.


Sec. 1260.52  What are agency responsibilities when it receives a 
mandatory review request forwarded by NARA?

    (a) The agency must make a determination within 180 calendar days 
after receiving the request or inform NARA of the additional time 
needed to process the request. If an initial decision has not been made 
on the request within 1 year after the original date of the request, 
the requester may appeal to the Interagency Security Classification 
Appeals Panel (ISCAP).
    (b) The agency must notify NARA of any other agency to which it 
forwards the request in those cases requiring the declassification 
determination of another agency.
    (c) The agency must return to NARA a complete copy of each 
declassified document with the agency determination. If documents 
cannot be declassified in their entirety, the agency must return to 
NARA a copy of the documents with those portions that must be withheld 
clearly marked.
    (d) The agency must also furnish, for transmission to the 
requester, a brief statement of the reasons the requested information 
cannot be declassified and a statement of the requester's right to 
appeal the decision, along with the procedures for filing an appeal and 
the name, title, and address of the appeal authority.


Sec. 1260.54  What is the appeal process when a mandatory review 
request for Executive Branch information was denied?

    (a) If an agency denies a declassification request under mandatory 
review, the requester may appeal directly to the appeal authority at 
that agency.
    (b) If requested by the agency, NARA will supply the agency with:
    (1) Copies of NARA's letter to the requester transmitting the 
agency denial; and
    (2) Copies of any documents denied in part that were furnished to 
the requester.
    (c) The agency appeal authority must notify NARA in writing of the 
final determination and of the reasons for any denial.
    (d) The agency must furnish to NARA a complete copy of any document 
they released to the requester only in part, clearly marked to indicate 
the portions that remain classified. NARA will give the requester a 
copy of any notifications from the agencies that describe what 
information has been denied and what the requesters appeal rights are.
    (e) In the case of an appeal for information originated by a 
defunct agency, NARA will notify the requester of the results and 
furnish copies of documents declassified in full and in part. If the 
request cannot be declassified in its entirety, NARA will send the 
requester a brief statement of why the requested information cannot be 
declassified and a notice of the right to appeal the determination 
within 60 calendar days to the Deputy Archivist of the United States, 
National Archives and Records Administration, 8601 Adelphi Road, 
College Park, MD 20740-6001.

White House Originated Information


Sec. 1260.56  Is White House originated information subject to 
mandatory review?

    White House originated information is subject to mandatory review 
consistent with the Presidential Records Act, the Presidential 
Materials and Recordings Act, and any deeds of gift that pertain to the 
materials or the respective Presidential administrations. Unless 
precluded by such laws or agreements, White House originated 
information is subject to mandatory review 5 years after the close of 
the administration which created the materials or when the materials 
have been archivally processed, whichever occurs first.


Sec. 1260.58  What are the procedures for requesting a mandatory review 
of White House originated information?

    (a) NARA will promptly acknowledge to the requester the receipt of 
a request for White House originated information.
    (b) If the requested information is less than 25 years old, NARA 
will consult with agencies having primary subject matter interest and 
request their recommendations regarding declassification.
    (c) If the requested information is more than 25 years old, NARA 
will review the information using applicable systematic review 
guidance. NARA will refer any documents that cannot be declassified 
using systematic guidance to the agencies with primary subject matter 
interest for their recommendations regarding declassification.
    (d) NARA will notify the requester of the results and furnish 
copies of the documents declassified in full and in part. If the 
requested records are not declassified in their entirety, NARA will 
send the requester a brief statement of the reasons the information 
cannot be declassified and a notice of the right to appeal the 
determination within 60 calendar days to the Deputy Archivist of the 
United States, National Archives and Records Administration, 8601 
Adelphi Road, College Park, MD 20740-6001.


Sec. 1260.60  What are agency responsibilities with regard to mandatory 
review requests for White House originated information?

    When an agency receives a mandatory review request from NARA for 
consultation on declassification of White House originated material, 
whether it is an initial request or an appeal, the agency must:
    (a) Advise the Archivist whether the information should be 
declassified in-whole or in part or should continue to be exempt from 
declassification;
    (b) Provide NARA a brief statement of the reasons for any denial of 
declassification; and
    (c) Return all reproductions referred for consultation, including a 
complete copy of each document that should be released only in part, 
clearly marked to indicate the portions that remain classified.


Sec. 1260.62  What are the procedures when agencies receive a mandatory 
review request for White House originated information in their custody?

    (a) If an agency that has custody of classified White House 
originated information of a previous administration receives a request 
for mandatory review, the agency will forward to the Office of 
Presidential Libraries, National Archives and Records Administration, 
8601 Adelphi Road, College Park, MD 20740-6001:
    (1) The request for mandatory review;
    (2) Copies of the documents containing the requested information; 
and
    (3) A recommendation concerning declassification.
    (b) NARA will make a determination on declassification after 
consulting with any other agency with primary subject matter interest 
and will notify the requester. If the request is denied in-whole or in 
part, the requester may appeal the decision within 60 calendar days 
after receiving the denial. The appeal should be sent to the Deputy 
Archivist of the United States, National Archives and Records 
Administration, 8601 Adelphi Road, College Park, MD 20740-6001.


Sec. 1260.64  What is the appeal process when a mandatory review 
request for White House originated information is denied?

    (a) When the Deputy Archivist of the United States receives an 
appeal, he/she will review the decision to deny the information and 
consult with the

[[Page 8081]]

appellate authorities in the agencies having primary subject matter 
interest in the information.
    (b) NARA will notify the requester of the determination and make 
available any additional information that has been declassified as a 
result of the requester's appeal.
    (c) NARA will also notify the requester of the right to appeal 
denials of access to the Executive Secretary of the Interagency 
Security Classification Appeals Panel, Attn: Mandatory Review Appeals, 
c/o Information Security Oversight Office, National Archives and 
Records Administration, 700 Pennsylvania Avenue, NW, Room 5W, 
Washington, DC 20408.

Subpart E--Reclassification


Sec. 1260.70  Can Executive Branch information be reclassified?

    (a) An agency may ask NARA to temporarily close, re-review, and 
possibly reclassify records and donated historical materials originated 
by the agency. Records that were declassified in accordance with E.O. 
12958 (or predecessor orders) may be reclassified only if the 
information is less than 25 years old and has not been previously 
disclosed to the public. Agencies must submit in writing requests to 
reclassify Executive Branch records to the Assistant Archivist for 
Records Services--Washington, DC, National Archives and Records 
Administration, 8601 Adelphi Road, College Park, MD 20740-6001. 
Requests to reclassify information in Presidential libraries must be 
submitted in writing to the Assistant Archivist for Presidential 
Libraries, National Archives and Records Administration, 8601 Adelphi 
Road, College Park, MD 20740-6001. In the request, the agency must:
    (1) Identify the records or donated materials involved as 
specifically as possible;
    (2) Explain the reason the re-review and possible reclassification 
may be necessary; and
    (3) Provide any information the agency may have concerning any 
previous public disclosure of the information.
    (b) If the urgency of the request precludes a written request, an 
authorized agency official may make a preliminary request by telephone 
and follow up with a written request within 5 workdays.


Sec. 1260.72  Can White House originated information be reclassified?

    An agency may ask NARA to temporarily close, re-review, and 
possibly reclassify White House originated information that has been 
declassified in accordance with E.O. 12958 (or predecessor orders) only 
if it has not been previously disclosed to the public. The agency must 
follow the same procedures as a request for reclassification of agency 
originated information in 36 CFR 1260.70, but it must submit the 
request to the Assistant Archivist for Presidential Libraries, National 
Archives and Records Administration, 8601 Adelphi Road, College Park, 
MD 20740-6001.


Sec. 1260.74  Can NARA appeal a request to reclassify information?

    NARA may appeal to the Director of the Information Security 
Oversight Office any re-review or reclassification request from an 
agency when, in the Archivist's opinion, the facts of previous 
disclosure suggest that such action is unwarranted or unjustified. NARA 
will notify the requesting agency that it is appealing the request at 
the same time that it initiates the appeal.

    Dated: February 11, 2000.
John W. Carlin,
Archivist of the United States.
[FR Doc. 00-3729 Filed 2-16-00; 8:45 am]
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