[Federal Register Volume 69, Number 125 (Wednesday, June 30, 2004)]
[Rules and Regulations]
[Pages 39324-39331]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-14754]


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NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

36 CFR Part 1256

RIN 3095-AB11


Restrictions on the Use of Records

AGENCY: National Archives and Records Administration (NARA).

ACTION: Final rule; request for comments.

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SUMMARY: NARA is revising its regulations on access to Federal records 
and donated historical materials containing restricted information. 
This rule entirely rewrites and reorganizes this portion of NARA's 
regulations to incorporate several changes, and also to clarify it 
using plain language. The regulation has been updated to bring the 
language on access restrictions in better conformance with the 
exemptions to the Freedom of Information Act (FOIA). In addition, in 
response to comments received on the proposed rule, we are further 
modifying the regulations outlining controlled procedures for access to 
privacy-restricted information for purposes of biomedical research to 
allow access for social science research. This final rule affects the 
public and Federal agencies.

DATES: This rule is effective July 30, 2004, except Sec.  1256.28, 
which will be effective September 28, 2004.
    Comments on Sec.  1256.28 must be received by August 30, 2004, at 
the address shown below. NARA intends to publish any changes to Sec.  
1256.28 resulting from this comment period before September 28, 2004.

ADDRESSES: You may submit comments on Sec.  1256.28, identified by RIN 
3095-AB11, by any of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    E-mail: [email protected]. Include RIN 3095-AB11 in the subject 
line of the message.
    Fax: (301) 837-0319.
    Mail: Regulation Comments Desk (NPOL), Room 4100, National Archives 
and Records Administration, 8601 Adelphi Road, College Park, MD 20740-
6001.
    Hand Delivery/Courier: Regulation Comments Desk (NPOL), Room 4100, 
National Archives and Records Administration, 8601 Adelphi Road, 
College Park, MD 20740-6001.

FOR FURTHER INFORMATION CONTACT: Jennifer Davis Heaps at 301-837-1801.

SUPPLEMENTARY INFORMATION: The proposed rule was published in the 
January 5, 2004, Federal Register (69 FR 295) for a 60-day public 
comment period. NARA notified several researcher organizations of the 
availability of the proposed rule. A copy of the proposed rule was also 
posted on the NARA Web site.
    NARA received nine responses to the proposed rule, all on the 
proposal to remove from the regulations a provision at Sec.  1256.4 
allowing access to privacy-restricted information for biomedical 
research. Most commenters urged that NARA continue to provide access to 
certain records for social science research as had been permitted under 
Sec.  1256.16(b)(3) in the past, using the process outlined in Sec.  
1256.4.
    We carefully considered the commenters' request on the issue of 
social science research and concluded that controlled access to 
privacy-restricted information for this purpose is in the public 
interest. As a result, we have restored the process for granting access 
to privacy-restricted information for biomedical research formerly 
found in 36 CFR 1256.4 and have extended its coverage to certain social 
science research. With the reorganization of Part 1256, this process is 
now located at Sec.  1256.28. Social science researchers will be 
required to request access to specific records that contain privacy-
restricted information through NARA's Access Review Committee, just as 
a biomedical researcher would. We have made some minor modifications to 
the application review process to further ensure appropriate protection 
of privacy-restricted information during access.
    This provision does not permit access to the privacy-restricted 
files of individuals for family history or other research on specific 
persons, such as a biography or political or sociological profile. 
Researchers interested in obtaining access to the files of individual 
family members must provide proof that they have the permission of the 
subject relative or that the relative is no longer living. NARA does 
not restrict records for privacy reasons where the subject individual 
is no longer living, as stated in 36 CFR 1256.56.
    We are delaying the effective date of Sec.  1256.28 for 90 days to 
allow public comment. We will evaluate those comments and, if changes 
in the provision are needed, we will publish a final rule amending this 
section before the September 28, 2004, effective date.
    We have also made minor clarifications in language to General 
Restrictions in Sec. Sec.  1256.52, 1256.54, and 1256.56.
    We removed the part 1254 changes that were in the proposed rule 
because

[[Page 39325]]

a separate final rule completely revising part 1254 and incorporating 
those changes is published in the Federal Register is also published in 
this issue.
    This rule is not a significant regulatory action for the purposes 
of Executive Order 12866 and has not been reviewed by the Office of 
Management and Budget (OMB). As required by the Regulatory Flexibility 
Act, it is hereby certified that this rule will not have a significant 
impact on a substantial number of small entities because this rule 
applies to individual researchers. This rule contains an information 
collection previously approved by OMB. This rule does not have any 
federalism implications. This rule is not a major rule as defined in 5 
U.S.C. Chapter 8, Congressional Review of Agency Rulemaking.

List of Subjects in 36 CFR Part 1256

    Archives and records, Copyright.


0
For the reasons set forth in the preamble, NARA revises part 1256 of 
title 36, Code of Federal Regulations to read as follows:

PART 1256--ACCESS TO RECORDS AND DONATED HISTORICAL MATERIALS

Subpart A--General Information
Sec.
1256.1 What does this part cover?
1256.2 How do I obtain access to records stored in Federal Records 
Centers?
1256.4 How does NARA handle subpoenas and other legal demands for 
records in its custody?
1256.6 How do I obtain access to records of defunct agencies?
1256.8 How do I obtain access to Presidential records?
1256.10 How do I obtain access to Nixon Presidential materials?
Subpart B--Access to Federal Archival Records
1256.20 May I obtain access to Federal archival records?
1256.22 How do I request access to restricted information in Federal 
archival records?
1256.24 How long may access to some records be denied?
1256.26 When can I appeal decisions about access to Federal archival 
records?
1256.28 Does NARA make any exceptions for access to records 
containing privacy-restricted information?
Subpart C--Access to Donated Historical Materials
1256.30 How do I obtain access to donated historical materials?
1256.32 How do I request access to restricted information in donated 
historical materials?
1256.34 How long may access to some donated historical materials be 
denied?
1256.36 When can I appeal decisions about access to donated 
historical materials?
Subpart D--General Restrictions
1256.40 What are general restrictions?
1256.42 Who imposes general restrictions?
1256.44 Does NARA ever waive general restrictions?
1256.46 National security-classified information.
1256.48 Information about internal agency rules and practices.
1256.50 Information exempted from disclosure by statute.
1256.52 Trade secrets and commercial or financial information.
1256.54 Inter- and intra-agency memoranda (subject to privilege).
1256.56 Information that would invade the privacy of a living 
individual.
1256.58 Information related to law enforcement investigations.
1256.60 Information relating to financial institutions.
1256.62 Geological and geophysical information relating to wells.
Subpart E--Access to Materials Containing National Security-Classified 
Information
1256.70 What controls access to national security-classified 
information?
1256.72 What are FOIA requests and mandatory review requests?
1256.74 How does NARA process Freedom of Information Act (FOIA) 
requests for classified information?
1256.76 How do I request mandatory review of classified information 
under Executive Order 12958, as amended?
1256.78 How does NARA handle my mandatory review request?
1256.80 How does NARA provide classified access to historical 
researchers and former Presidential appointees?
Subpart F--Domestic Distribution of United States Information Agency 
Audiovisual Materials in the National Archives of the United States
1256.90 What does this subpart cover?
1256.92 What is the purpose of this subpart?
1256.94 Definition.
1256.96 What provisions apply to the transfer of USIA audiovisual 
records to the National Archives of the United States?
1256.98 Can I get access to and obtain copies of USIA audiovisual 
records transferred to the National Archives of the United States?
1256.100 What is the copying policy for USIA audiovisual records 
that either have copyright protection or contain copyrighted 
material?
1256.102 What fees does NARA charge?

    Authority: 44 U.S.C. 2101-2118; 22 U.S.C. 1461(b); 5 U.S.C. 552; 
E.O. 12958 (60 FR 19825, 3 CFR, 1995 Comp., p. 333; E.O. 13292, 68 
FR 15315, 3 CFR, 2003 Comp., p. 196; E.O. 13233, 66 FR 56023, 3 CFR, 
2001 Comp., p. 815.

Subpart A--General Information


Sec.  1256.1  What does this part cover?

    This part describes NARA's policies on access to archival records 
of the Executive Branch and donated historical materials in the 
National Archives of the United States and to records in the physical 
custody of the Federal records centers. This part applies to records 
and materials covered by the Federal Records Act (44 U.S.C. 2108 and 
chs. 29, 31, 33) and donated historical materials. This part does not 
apply to Presidential, Supreme Court, Senate, House of Representatives, 
and Architect of the Capitol records except for the purpose of 
directing mandatory review requests in subpart E.


Sec.  1256.2  How do I obtain access to records stored in Federal 
Records Centers?

    Agencies that retire their records to a Federal records center 
(FRC) set rules for access to those records. Address requests for 
access to records stored in Federal records centers directly to the 
appropriate agency or to the appropriate FRC director at the address 
shown in part 1253. When the agency's rules permit, NARA makes FRC 
records available to requesters. When the agency's rules and 
restrictions do not permit access FRCs receive requests that should 
have been sent to the agency, the FRC director refers the requests and 
any appeals for access, including those made under the Freedom of 
Information Act (5 U.S.C. 552, as amended), to the responsible agency.


Sec.  1256.4  How does NARA handle subpoenas and other legal demands 
for records in its custody?

    (a) For records stored in a Federal records center, NARA honors a 
subpoena duces tecum (subpoena) or other legal demand for the 
production of agency records, to the extent required by law, if the 
agency that retired the records has not imposed any restrictions. If 
the agency has imposed restrictions, NARA notifies the authority 
issuing the subpoena or other legal demand that NARA abides by the 
agency-imposed restrictions and refers the authority to the agency for 
further action.
    (b) The Archivist of the United States, the General Counsel (NGC) 
or his or her designee, and the Director of the FRC where the records 
are stored are the only NARA officials authorized to accept a subpoena 
or other legal demand for records transferred to an FRC.
    (c) The Archivist of the United States, the General Counsel (NGC) 
or his or her designee, the appropriate Assistant

[[Page 39326]]

Archivist, Regional Administrator, or Director of a Presidential 
library are the only NARA officials who may be served a subpoena duces 
tecum or other legal demand for the production of documents designated 
as Federal archival records or donated historical materials 
administered by NARA.


Sec.  1256.6  How do I obtain access to records of defunct agencies?

    NARA handles access to archives and FRC records received from 
agencies that have ceased to exist without a successor in function as 
described in Subpart B.


Sec.  1256.8  How do I obtain access to Presidential records?

    See 36 CFR part 1270, Presidential Records, for the rules for 
access to Presidential records transferred to NARA.


Sec.  1256.10  How do I obtain access to Nixon Presidential materials?

    See 36 CFR part 1275, Preservation and Protection of and Access to 
the Presidential Historical Materials of the Nixon Administration, for 
the rules for access to Nixon Presidential materials.

Subpart B--Access to Federal Archival Records


Sec.  1256.20  May I obtain access to Federal archival records?

    (a) Most Federal archival records are open for research without 
submitting a Freedom of Information Act (FOIA) request. Part 1254 
specifies procedures for using unrestricted records in a NARA research 
room, submitting reference requests, and ordering copies of records.
    (b) Some records are subject to restrictions prescribed by statute, 
Executive Order, or by restrictions specified in writing in accordance 
with 44 U.S.C. 2108 by the agency that transferred the records to the 
National Archives of the United States. All agency-specified 
restrictions must comply with the FOIA. Even if the records are not 
national-security classified, we must screen some records for other 
information exempt from release under the FOIA.


Sec.  1256.22  How do I request access to restricted information in 
Federal archival records?

    (a) You may file a FOIA request. To request access under the 
provisions of the FOIA, see part 1250 of this chapter, Public 
Availability and Use of Federal Records.
    (b) For classified information in Federal records, you may file a 
FOIA request or a mandatory review request under Executive Order 12958, 
as amended, as described in Sec.  1256.74.


Sec.  1256.24  How long may access to some records be denied?

    (a) Although many records are open for research, some records are 
closed for long periods, either under our general restrictions, 
described in subpart D of this part, or another governing authority. 
For example, in accordance with 44 U.S.C. 2108(b), we do not grant 
access to restricted census and survey records of the Bureau of the 
Census less than 72 years old containing data identifying individuals 
enumerated in population censuses.
    (b) Screening records takes time. We screen records as soon as 
possible and can often make most of the records in which you are 
interested available. In the case of electronic structured databases, 
NARA can make a copy of records with restricted information masked. In 
response to FOIA requests for records in other media, we make a copy of 
the record available if we can mask or ``redact'' restricted 
information.


Sec.  1256.26  When can I appeal decisions about access to Federal 
archival records?

    (a) For information on filing appeals for requests made under the 
FOIA, see 36 CFR part 1250, subpart D, Appeals.
    (b) For information on filing appeals for requests made under 
mandatory review, see Sec.  1260.54 of this chapter.


Sec.  1256.28  Does NARA make any exceptions for access to records 
containing privacy-restricted information?

    (a) NARA policy. Access to archival records containing information 
access to which would invade the privacy of an individual is restricted 
by Sec.  1256.56.
    (1) NARA may authorize access to such records for the purpose of 
research to qualified persons doing biomedical or social science 
research under the conditions outlined in this section as long as the 
records do not also contain information restricted by statute or 
national security-classified information.
    (2) If NARA is able to make a copy of such records with all 
personal identifiers masked or deleted, NARA will make such a 
``sanitized'' copy of the record available to all researchers in 
accordance with Sec.  1256.24.
    (3) NARA will not grant access to restricted census and survey 
records of the Bureau of the Census less than 72 years old containing 
data identifying individuals enumerated in population censuses in 
accordance with 44 U.S.C. 2108(b).
    (b) Request for access. Researchers who wish to have access to 
records restricted by Sec.  1256.56 to conduct biomedical or social 
science research must submit a written request to the NARA FOIA/Privacy 
Act Officer (NGC), National Archives and Records Administration, 8601 
Adelphi Road, College Park, MD 20740-6001. OMB control number 3095-0002 
has been assigned to this collection of information requirement. 
Researchers are encouraged to consult informally with NARA before 
submitting the formal request. The request must include the following 
information:
    (1) Name and mailing address;
    (2) Institutional affiliation and position, if applicable;
    (3) List of published research, if applicable;
    (4) References from two persons who have first-hand knowledge of 
the requester's qualifications to perform the research;
    (5) A statement of the nature of the research to be conducted and 
any plans for publication or presentation of the research findings;
    (6) A listing of all sources of grant funds supporting the research 
project or its publication;
    (7) A statement of the methodology to be used;
    (8) A statement of the administrative, technical, and physical 
safeguards to be employed by the researcher to prevent unauthorized use 
or disclosure of the records;
    (9) A listing of the record groups and series titles to be used; 
and
    (10) A statement that the researcher will abide by the conditions 
of access to be prescribed by NARA and that the researcher will assume 
responsibility for the action of all persons working with the 
researcher on the project.
    (c) Access Review Committee. Requests made under paragraph (b) of 
this section will be reviewed by NARA's Access Review Committee, which 
is composed of the Deputy Archivist of the United States, the Assistant 
Archivist for the Office of Records Services--Washington, DC, the 
Assistant Archivist for the Official of Regional Records Services, and 
the director(s) of the NARA division(s) that has custody of the 
requested records. The Committee may consult other persons within and 
outside the Federal Government who are knowledgeable in the research 
field for assistance in evaluating a request.
    (1) The Committee will examine the request to determine whether:
    (i) The requested information is of such a highly sensitive 
personal nature that disclosure must not be permitted even for 
biomedical or social science research;
    (ii) The methodology proposed by the requester will permit the 
researcher to obtain the projected research results without revealing 
personally identifying information;

[[Page 39327]]

    (iii) The research results are intended to be published or 
presented at an academic or research conference;
    (iv) The requester is a biomedical or social science researcher who 
has previous research experience and has submitted or intends to submit 
articles or books on such research for publication;
    (v) The safeguards proposed by the requester will adequately 
protect the personal information; and
    (vi) NARA has sufficient staff and space available to safeguard 
privacy interests necessary to accommodate the research project.
    (2) The decision of the Committee will be made in writing to the 
requester within 15 workdays after receipt of a completed request. At 
the discretion of the Committee, the researcher may meet with the 
Committee to discuss the project or to discuss revising the research 
proposal to meet possible objections of the Committee.
    (d) Conditions of access. Researchers who are granted access to 
restricted records, all others associated with the research project who 
will have access to personally identifiable information from the 
records, and the manager of any facility handling the records 
containing personal identifiers must agree in writing to maintain the 
confidentiality of the information and to adhere to the conditions of 
access imposed by NARA. NARA will impose the following conditions of 
access on any project; additional conditions may be imposed on the use 
of specific records or on specific projects:
    (1) The records may be used only for the purpose of the research 
and for the reporting of research findings as described in the approved 
research project. The records may not be used for any other purpose;
    (2) The records and any authorized copies of records may not be 
transferred to any person or institution not directly involved with the 
approved research project and subject to a written agreement to 
maintain confidentiality specified in Sec.  1256.28(d);
    (3) Reasonable administrative, technical, and physical safeguards, 
as approved by NARA, to prevent unauthorized use or disclosure of the 
records must be established by the researcher and followed by all 
persons associated with the project;
    (4) When required by NARA, the records must be consulted at the 
NARA facility where the records are located;
    (5) The researcher's notes must not contain any individually 
identifiable information. The researcher must use an alternate code 
system to render personally identifiable information as anonymous in 
all research notes;
    (6) Persons who are identified in the records may not be contacted 
by or on behalf of the researcher;
    (7) Before publication or public presentation of the data, the 
final research product(s) must be provided to the Deputy Archivist of 
the United States for review. NARA's review is limited to ensuring that 
there is no possible identification of individuals in the research 
findings. NARA will not evaluate the validity of the research findings.
    (e) Noncompliance with conditions of access. If we discover that a 
researcher has violated any of the conditions of access, we will take 
steps to revoke the NARA research privileges of that person and will 
consult with NARA's General Counsel or his or her designee to determine 
any other steps to be taken to prevent any further disclosure of the 
personal information concerned. NARA may also inform the following 
persons and organizations of the researcher's failure to follow the 
conditions of use:
    (1) The institution with which the researcher is affiliated, if 
applicable;
    (2) Persons who served as references in the application for access;
    (3) Organizations that provided grant funds for the project;
    (4) The sponsor of the publication or public presentation; and
    (5) Appropriate professional organizations.

Subpart C--Access to Donated Historical Materials


Sec.  1256.30  How do I obtain access to donated historical materials?

    NARA encourages researchers to confer about donated historical 
materials with the appropriate director or reference staff member at 
the facilities listed in part 1253 of this chapter. Some donated 
historical materials have restrictions on their use and availability as 
stated in writing by the donors in the Donor's Deed of Gift. Some may 
have other restrictions imposed by statute or Executive Order. If 
warranted, the Archivist may apply general restrictions to donated 
materials even when not specified in the donor's deed of gift. NARA 
staff can assist you with questions about restrictions or copyright 
protection that may apply to donated materials. See Sec.  1256.36 for 
information on appealing closure of donated materials and subpart D of 
this part for information about general restrictions.


Sec.  1256.32  How do I request access to restricted information in 
donated historical materials?

    (a) At Presidential libraries and regional archives, you may write 
to the appropriate director at the facilities in part 1253 of this 
chapter. In the Washington, DC, area, you may write to the Director of 
Access Programs (NWC) for donated textual materials or the Director of 
Modern Records Programs (NWM) for donated electronic records. The 
mailing address for NWC and NWM is Office of Records Services--
Washington, DC, 8601 Adelphi Road, College Park, MD 20740-6001.
    (b) You may request a review of documents restricted under terms of 
a donor's deed of gift or other legal instrument to determine whether 
the conditions originally requiring the closure still exist. Your 
request must describe each document requested so that the staff can 
locate it with a reasonable amount of effort. For files that NARA 
previously screened, you may cite the reference to the withheld 
document as it appears on the withdrawal sheet.
    (c) In many instances, the director or his or her designated 
representative will determine whether entire documents or portions of 
them can be opened. However, a donor or his or her representative 
reserves the right to determine whether the donor's materials, a 
series, or a document or portions of it should remain closed (see Sec.  
1256.36).
    (d) For classified information in donated historical materials, you 
may file a mandatory review request under Executive Order 12958, as 
amended, as described in Sec.  1256.74.


Sec.  1256.34  How long may access to some donated historical materials 
be denied?

    Some donated historical materials are closed for long periods, 
either under the provisions of the deed of gift, our general 
restrictions described in subpart D of this part, or another governing 
authority. We are sometimes able to make a copy of materials with 
restricted information redacted.


Sec.  1256.36  When can I appeal decisions about access to donated 
historical materials?

    (a) If you wish to appeal a denial of access from the director or 
his designated representative in implementing the provisions of a 
donor's deed of gift, you may write a letter addressed to the Deputy 
Archivist of the United States, National Archives and Records 
Administration, 8601 Adelphi Road, College Park, MD 20740-6001. The 
Deputy Archivist, the

[[Page 39328]]

Assistant Archivist for Presidential Libraries, and the Assistant 
Archivist for Records Services--Washington, DC, or their designated 
representatives, compose the Board of Review for appeals relating to 
donated historical materials.
    (b) The board's decision is final. If the board cannot make a 
determination on your request within 30 working days of receipt, NARA 
informs you of the reason for the delay. If the board determines that a 
document should remain closed, you may not file a new appeal for two 
years. Similarly, you may not file an appeal on documents in 
collections that have been open for research for less than 2 years.
    (c) In some cases, the donor or his representative may reserve the 
right to determine whether the donor's materials, a series, or a 
document or portions of it should remain closed; you cannot appeal such 
decisions.
    (d) For information on filing appeals for requests made under 
mandatory review of White House originated information, see Sec.  
1260.62 of this chapter.

Subpart D--General Restrictions


Sec.  1256.40  What are general restrictions?

    General restrictions apply to certain kinds of information or 
classes of records, regardless of the record group to which the records 
have been allocated. These general restrictions may apply to records 
and materials not covered by the Freedom of Information Act. The 
general restrictions are listed and explained in Sec. Sec.  1256.46 
through 1256.62.


Sec.  1256.42  Who imposes general restrictions?

    The Archivist of the United States imposes all general restrictions 
in accordance with 5 U.S.C. 552, as amended, and 44 U.S.C. 2107(4), 
2108, and 2111.


Sec.  1256.44  Does NARA ever waive general restrictions?

    NARA may provide access to records withheld under a general 
restriction only to:
    (a) NARA employees for work purposes;
    (b) The creating agency or its authorized agent in the conduct of 
agency business;
    (c) The donor, in the case of donated historical materials; or
    (d) The subject of the records in some cases or the subject's 
authorized agent.


Sec.  1256.46  National security-classified information.

    In accordance with 5 U.S.C. 552(b)(1), NARA cannot disclose records 
containing information regarding national defense or foreign policy 
that is properly classified under the provisions of the pertinent 
Executive Order on Classified National Security Information and its 
implementing directive (Executive Order 12958, as amended).


Sec.  1256.48  Information about internal agency rules and practices.

    (a) NARA may withhold from disclosure, in accordance with 5 U.S.C. 
552(b)(2), the following:
    (1) Records that contain information on substantial internal 
matters of agencies that, if disclosed, could risk circumvention of a 
legal requirement, such as a statute or an agency regulation.
    (2) Records containing information that states or assesses an 
agency's vulnerability to outside interference or harm. NARA withholds 
records that identify agency programs, systems, or facilities deemed 
most sensitive. NARA also withholds records describing specific 
measures that can be used to counteract such agency vulnerabilities.
    (b) The Archivist of the United States may determine that this 
general restriction does not apply to specific records because enough 
time has passed that agency statutes or regulations would not be 
compromised and programs, systems, and facilities would not be harmed.


Sec.  1256.50  Information exempted from disclosure by statute.

    In accordance with 5 U.S.C. 552(b)(3), NARA withholds records 
containing information that is specifically exempted from disclosure by 
statute when that statute:
    (a) Requires withholding information from the public, leaving no 
discretion; or
    (b) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld.


Sec.  1256.52  Trade secrets and commercial or financial information.

    In accordance with 5 U.S.C. 552(b)(4), NARA may withhold records 
that contain trade secrets and commercial or financial information, 
obtained from a person, that is privileged or confidential. Such 
records may be disclosed only if:
    (a) The person who provided the information agrees to its release; 
or
    (b) In the judgment of the Archivist of the United States, enough 
time has passed that release of the information would not result in 
substantial competitive harm to the submitter of the information. See 
36 CFR 1250.82 for additional regulatory guidance.


Sec.  1256.54  Inter- and intra-agency memoranda (subject to 
privilege).

    (a) In accordance with 5 U.S.C. 552(b)(5), NARA may withhold 
information found in inter-agency or intra-agency records if that 
information is subject to a legally recognized privilege, including 
the:
    (1) Deliberative process privilege;
    (2) Attorney work product privilege; and
    (3) Attorney-client privilege.
    (b) The Archivist of the United States may determine that this 
general restriction does not apply to specific records because enough 
time has passed that release of the information would not result in the 
harm that the privilege was intended to protect or confidential 
attorney-client communications.


Sec.  1256.56  Information that would invade the privacy of a living 
individual.

    (a) In accordance with 5 U.S.C. 552(b)(6), NARA will withhold 
records in personnel and medical and similar files containing 
information about a living individual that reveals details of a highly 
personal nature that, if released, would cause a clearly unwarranted 
invasion of personal privacy. Privacy information may include, but is 
not limited to, information about the physical or mental health or the 
medical or psychiatric care or treatment of the individual, and that:
    (1) Contains personal information not known to have been previously 
made public, and
    (2) Relates to events less than 75 years old.
    (b) The Archivist of the United States may determine that this 
general restriction does not apply to:
    (1) Specific records because enough time has passed that the 
privacy of living individuals is not compromised; or
    (2) Researchers for the purpose of biomedical and social science 
research when such researchers have provided NARA with adequate written 
assurance that the record(s) will be used solely as a research or 
reporting record and that no individually identifiable information will 
be disclosed.


Sec.  1256.58  Information related to law enforcement investigations.

    (a) In accordance with 5 U.S.C. 552(b)(7), NARA will withhold 
records compiled for law enforcement purposes. Unless otherwise 
determined by the Archivist in accordance with paragraph (b) of this 
section, records compiled for

[[Page 39329]]

law enforcement purposes may be disclosed only if all of the following 
conditions are met:
    (1) The release of the information does not interfere with law 
enforcement proceedings;
    (2) The release of the information would not deprive a person of a 
right to a fair trial or an impartial adjudication;
    (3) The release of the information would not constitute an 
unwarranted invasion of personal privacy;
    (4) Confidential sources and information provided by a confidential 
source are not revealed;
    (5) Confidential investigation techniques are not described; and
    (6) Release of the information would not endanger the life or 
physical safety of any person.
    (b) The Archivist of the United States may determine that this 
general restriction does not apply to specific records because enough 
time has passed that:
    (1) The safety of persons is not endangered, and
    (2) The public interest in disclosure outweighs the continued need 
for confidentiality.


Sec.  1256.60  Information relating to financial institutions.

    (a) In accordance with 5 U.S.C. 552(b)(8), NARA may withhold 
information in records contained in or relating to the examination, 
operating, or condition reports prepared by, on behalf of, or for the 
use of an agency responsible for the regulation or supervision of 
financial institutions.
    (b) The Archivist of the United States may determine that this 
general restriction does not apply to specific records because enough 
time has passed that current financial information is not compromised.


Sec.  1256.62  Geological and geophysical information relating to 
wells.

    (a) In accordance with 5 U.S.C. 552(b)(9), NARA may withhold 
information in records that relates to geological and geophysical 
information and data, including maps, concerning wells.
    (b) The Archivist of the United States may determine that this 
general restriction does not apply to specific records because enough 
time has passed that current proprietary rights are not compromised.

Subpart E--Access to Materials Containing National Security-
Classified Information


Sec.  1256.70  What controls access to national security-classified 
information?

    (a) The declassification of and public access to national security-
classified information, hereinafter referred to as ``classified 
information'' is governed by Executive Order 12958 of April 17, 1995 (3 
CFR, 1995 Comp., p. 333) and as amended by Executive Order 13292 of 
March 25, 2003 (68 FR 15315, 3 CFR, 2003 Comp. 196), 32 CFR part 2001, 
and the Freedom of Information Act (5 U.S.C. 552, as amended).
    (b) Public access to documents declassified in accordance with this 
regulation may be restricted or denied for other reasons under the 
provisions of 5 U.S.C. 552(b) for accessioned agency records; 
Sec. Sec.  1256.30 through 1256.36 of this part for donated historical 
materials; 44 U.S.C. 2111, 44 U.S.C. 2201 et seq., and 36 CFR part 1270 
for Presidential records; and 44 U.S.C. 2111 note and 36 CFR part 1275 
for Nixon Presidential materials.


Sec.  1256.72  What are FOIA requests and mandatory review requests?

    (a) You may file a FOIA request for Executive Branch agency 
records, regardless of whether they contain classified information. The 
FOIA also applies to Presidential records as cited in Sec.  1256.74(b). 
The FOIA does not apply to records of the Judicial and Legislative 
Branches or to donated historical materials.
    (b) You may only file a mandatory review request if the records 
contain classified information. NARA handles mandatory review requests 
for records we hold for the Executive, Judicial, and Legislative 
Branches as well as donated historical materials under E.O. 12958, as 
amended, section 3.5.


Sec.  1256.74  How does NARA process Freedom of Information Act (FOIA) 
requests for classified information?

    (a) NARA processes FOIA requests for access to classified 
information in Federal records in accordance with the provisions of 36 
CFR part 1250. Time limits for responses to FOIA requests for 
classified information are those provided in the FOIA, rather than the 
longer time limits provided for responses to mandatory review requests 
specified by Executive Order 12958, Classified National Security 
Information (3 CFR, 1995 Comp., p. 333), as amended by Executive Order 
13292 (68 FR 15315, 3 CFR, 2003 Comp., p. 196).
    (b) NARA processes requests for access to classified information in 
Presidential records under the FOIA and the Presidential Records Act 
(PRA) in accordance with the provisions of part 1270 of this chapter. 
Time limits for responses to FOIA requests for classified information 
are those provided in the FOIA, the PRA, and Executive Order 13233, 
Further Implementation of the Presidential Records Act (3 CFR, 2001 
Comp., p. 815).


Sec.  1256.76  How do I request mandatory review of classified 
information under Executive Order 12958, as amended?

    (a) You may request mandatory review of classified information that 
is in the legal custody of NARA, as well as in legislative and judicial 
records NARA holds. Your mandatory review request must describe the 
document or material containing the information with sufficient 
specificity to enable NARA to locate it with a reasonable amount of 
effort. When possible, a request must include the name of the 
originator and recipient of the information, as well as its date, 
subject, and file designation. Information we reviewed within the 
previous 2 years is not subject to mandatory review. We notify you if 
this provision applies to your request.
    (b) You must address your mandatory review request to the 
appropriate staff in the following table.

------------------------------------------------------------------------
                                         . . . then address your request
       If the documents are . . .                       to
------------------------------------------------------------------------
(1) Presidential records and donated     The appropriate library cited
 historical materials at a Presidential   in 36 CFR part 1253.
 library.
(2) Nixon Presidential materials.......  Director, Nixon Presidential
                                          Materials Staff (NLNS), 8601
                                          Adelphi Road, College Park, MD
                                          20740-6001.
(3) Presidential materials maintained    Director, Presidential
 in the Washington, DC, area.             Materials Staff (NLMS), 700
                                          Pennsylvania Avenue, NW.,
                                          Washington, DC 20408.
(4) Federal records, donated historical  Chief, Special Access/FOIA
 materials related to Federal records,    Staff (NWCTF), 8601 Adelphi
 judicial records, legislative records    Road, College Park, MD 20740-
 maintained in the Washington, DC, area.  6001.
(5) Federal records and judicial         The appropriate regional
 records maintained at a regional         archives cited in 36 CFR part
 archives.                                1253.
------------------------------------------------------------------------


[[Page 39330]]

Sec.  1256.78  How does NARA handle my mandatory review request?

    (a) You may find our procedures for mandatory review and appeals of 
denials in part 1260 of this chapter, Declassification of National 
Security Information.
    (1) When agencies provide declassification guidance and delegate 
declassification authority to the Archivist of the United States, NARA 
reviews for declassification and releases the requested information or 
those declassified portions of the request that constitute a coherent 
segment unless withholding is otherwise warranted under applicable law.
    (2) When we do not have guidance from agencies, we coordinate the 
declassification review with the original classifying agency or 
agencies under the provisions of part 1260, subchapter D of this 
chapter.
    (b) If we cannot identify the information you seek from the 
description you provide or if the volume of information you seek is so 
large that processing it would interfere with our capacity to serve all 
requesters on an equitable basis, we notify you that, unless you 
provide additional information or narrow the scope of your request, we 
cannot take further action.


Sec.  1256.80  How does NARA provide classified access to historical 
researchers and former Presidential appointees?

    (a) In accordance with the requirements of section 4.4 of E.O. 
12958, as amended, we may grant access to classified information to 
certain eligible persons. These persons are engaged in historical 
research projects or previously occupied policy-making positions to 
which they were appointed by the President. If you seek permission to 
examine materials under this special historical researcher/Presidential 
appointees access program, you must contact NARA in advance. We need at 
least 4 months before you wish to have access to the materials to 
permit time for the responsible agencies to process your request for 
access. If you seek access to classified Presidential records under 
section 4.4 of E.O. 12958, you must first qualify under special access 
provisions of 44 U.S.C. 2205. NARA informs you of the agencies to which 
you have to apply for permission to examine classified information, 
including classified information originated by the White House or 
classified information in the custody of the National Archives which 
was originated by a defunct agency.
    (b) You may examine records under this program only after the 
originating or responsible agency:
    (1) Determines in writing that access is consistent with the 
interest of national security; and
    (2) Takes appropriate steps to protect classified information from 
unauthorized disclosure or compromise, and ensures that the information 
is safeguarded in a manner consistent with Executive Order 12958, as 
amended.
    (c) The originating or responsible agency limits the access granted 
to former Presidential and Vice Presidential appointees to items that 
the person originated, reviewed, signed, or received while serving as 
an appointee.
    (d) To protect against the possibility of unauthorized access to 
restricted documents, a director may issue instructions supplementing 
the research room rules provided in 36 CFR part 1254.

Subpart F--Domestic Distribution of United States Information 
Agency Audiovisual Materials in the National Archives of the United 
States


Sec.  1256.90  What does this subpart cover?

    This subpart contains procedures governing the public availability 
of audiovisual records and other materials subject to 22 U.S.C. 1461(b) 
that have been transferred to the National Archives of the United 
States by the United States Information Agency (USIA).


Sec.  1256.92  What is the purpose of this subpart?

    This subpart implements section 501 of the United States 
Information and Educational Exchange Act of 1948 (22 U.S.C. 1461), as 
amended by section 202 of Public Law 101-246 (104 Stat. 49, Feb. 16, 
1990). This subpart also outlines procedures that permit the public to 
inspect and obtain copies of USIA audiovisual records and other 
materials in the United States that were prepared for dissemination 
abroad and that have been transferred to NARA for preservation and 
domestic distribution.


Sec.  1256.94  Definition.

    For the purposes of this subpart, ``Audiovisual records'' mean 
motion picture films, videotapes, and sound recordings, and other 
materials regardless of physical form or characteristics that were 
prepared for dissemination abroad.


Sec.  1256.96  What provisions apply to the transfer of USIA 
audiovisual records to the National Archives of the United States?

    The provisions of 44 U.S.C. 2107 and 36 CFR part 1228 apply to the 
transfer of USIA audiovisual records to NARA, and to their deposit with 
the National Archives of the United States. At the time the audiovisual 
records are transferred to NARA, the Director of USIA, in accordance 
with Sec.  1228.266(e) of this chapter, will also transfer any 
production or title files bearing on the ownership of rights in the 
productions in connection with USIA's official overseas programming.


Sec.  1256.98  Can I get access to and obtain copies of USIA 
audiovisual records transferred to the National Archives of the United 
States?

    NARA provides access to USIA audiovisual records after the 
appropriate time period of restriction has passed.
    (a) No USIA audiovisual records in the National Archives of the 
United States that were prepared for dissemination abroad are available 
for copying until at least 12 years after USIA first disseminated these 
materials abroad, or, in the case of materials prepared for foreign 
dissemination but not disseminated abroad, until at least 12 years 
after the preparation of the materials.
    (b) If the appropriate time has passed, you may have access to USIA 
audiovisual records that do not have copyright protection and do not 
contain copyright material. USIA audiovisual records prepared for 
dissemination abroad that NARA determines do not have copyright 
protection nor contain copyrighted material are available for 
examination and copying as described in the regulations in parts 1252, 
1253, 1254, 1256, and 1258 of this chapter. To determine whether 
materials have copyright protection or contain copyrighted material, 
NARA relies on information contained within or fastened to individual 
records (for example, copyright notices); information contained within 
relevant USIA production, title, or other files that USIA transferred 
to NARA; information provided by requesters under Sec.  1256.100(b) 
(for example, evidence from the Copyright Office that copyright has 
lapsed or expired); and information provided by copyright or license 
holders.


Sec.  1256.100  What is the copying policy for USIA audiovisual records 
that either have copyright protection or contain copyrighted material?

    If the appropriate time has passed, as stated in Sec.  1256.98(a), 
USIA audiovisual records that either have copyright protection or 
contain copyrighted material may be copied as follows:
    (a) USIA audiovisual records prepared for dissemination abroad that 
NARA determines may have copyright protection or may contain 
copyrighted material are made available for

[[Page 39331]]

examination in NARA research facilities as described in the regulations 
in this title.
    (b) Copies of USIA audiovisual records prepared for dissemination 
abroad that NARA determines may have copyright protection or may 
contain copyrighted material are provided to you if you seek the 
release of such materials in the United States once NARA has:
    (1) Ensured, as described in paragraph (c) of this section, that 
you have secured and paid for necessary United States rights and 
licenses;
    (2) Been provided with evidence from the Copyright Office 
demonstrating that copyright protection in the materials sought, or 
relevant portions in the materials, has lapsed or expired; or
    (3) Received your signed certification in accordance with paragraph 
(d) of this section that you will use the materials sought only for 
purposes permitted by the Copyright Act of 1976, as amended, including 
the fair use provisions of 17 U.S.C. 107. No copies of USIA audiovisual 
records will be provided until the fees authorized under part 1258 of 
this chapter have been paid.
    (c) If NARA determines that a USIA audiovisual record prepared for 
dissemination abroad may have copyright protection or may contain 
copyrighted material, you may obtain copies of the material by 
submitting to NARA written evidence from all copyright and license 
owner(s) that any necessary fees have been paid or waived and any 
necessary licenses have been secured.
    (d) If NARA has determined that a USIA audiovisual record prepared 
for dissemination abroad may have copyright protection or may contain 
copyrighted material, persons seeking the release of such material in 
the United States may obtain copies of the material by submitting to 
NARA the following certification statement:
    I, (printed name of individual), certify that my use of the 
copyrighted portions of the (name or title and NARA identifier of work 
involved) provided to me by the National Archives and Records 
Administration (NARA), will be limited to private study, scholarship, 
or research purposes, or for other purposes permitted by the Copyright 
Act of 1976, as amended. I understand that I am solely responsible for 
the subsequent use of the copyrighted portions of the work identified 
above.
    (e) In every instance where NARA provides a copy of an audiovisual 
record under this subpart, and NARA has determined that the work 
reproduced may have copyright protection or may contain copyrighted 
material, NARA must provide you with a warning notice of copyright.
    (f) Nothing in this section limits NARA's ability to make copies of 
USIA audiovisual records for preservation, arrangement, repair and 
rehabilitation, description, exhibition, security, or reference 
purposes.


Sec.  1256.102  What fees does NARA charge?

    Copies of audiovisual records will only be provided under this 
subpart upon payment of fees in accordance with 44 U.S.C. 2116(c) and 
22 U.S.C. 1461(b)(3). See Sec.  1258.4(b) for additional information.

    Dated: June 24, 2004.
John W. Carlin,
Archivist of the United States.
[FR Doc. 04-14754 Filed 6-29-04; 8:45 am]
BILLING CODE 7515-01-P