[Federal Register Volume 71, Number 57 (Friday, March 24, 2006)]
[Rules and Regulations]
[Pages 14808-14815]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-2866]


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NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

36 CFR Part 1260

RIN 3095-AB38


Declassification of National Security Information

AGENCY: National Archives and Records Administration (NARA).

ACTION: Final rule.

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SUMMARY: This rule updates NARA's regulations related to 
declassification of classified national security information in records 
transferred to NARA's legal custody. The rule incorporates changes 
resulting from amendments to Executive Order 12958, Classified National 
Security Information, as amended. These changes include establishing 
procedures for the automatic declassification of records in NARA's 
legal custody and revising requirements for reclassification of 
information to meet the provisions of EO 12958, as amended. This rule 
will affect members of the public and Federal agencies.

DATES: Effective April 24, 2006.

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

SUPPLEMENTARY INFORMATION: The proposed rule was originally published 
in the August 12, 2005, Federal Register (70 FR 47161) for a sixty day 
comment period. We notified several researcher organizations about the 
proposed rule and posted a notice about it on our Web site, http://www.archives.gov. NARA received eight responses to the proposed rule. 
Two were from individuals, one was from a public interest group, and 
the others were from government agencies. Two of the responses from 
government agencies were no comments.
    One individual expressed concern about actions of the George W. 
Bush administration, including that an Executive Order (EO) has been 
used to permanently seal records of the two Bush presidencies. This 
issue is beyond the purview of EO 12958, as amended. The other 
individual's comment objected to the provisions in subpart E regarding 
reclassification. He stated that there is no urgent need for alteration 
of current processes available to the agencies involved in the 
safeguarding of our nation's security interests. However, this rule 
brings NARA policy into conformity with provisions of EO 12958, as 
amended, and therefore, his comments cannot be accepted.
    Two comments questioned the concept of ``integral file block.'' One 
commenter asked if the term was new or had been used previously in a 
records management environment. The other commenter was concerned that 
an integral file block could contain records spanning an indefinite 
period of time--possibly decades--and this would effectively prevent 
the timely declassification of historically significant information 
that would otherwise be eligible for release. The commenter recommended 
that NARA adopt regulations that would provide for review of integral 
file blocks that span more than eight years to determine whether the 
integral file block could be broken up for the purpose of 
declassification while maintaining the integrity of the records.
    Integral file blocking is a long standing practice in records 
management. The concept was introduced into the EO to promote better, 
more efficient reviews. For example, rather than review records in any 
one box multiple times on a year by year basis, an agency can review 
all records in the box at one time. Records are handled less frequently 
and are reviewed in relationship to each other, enhancing the 
possibility of contextual decisions. Most records are reviewed by the 
originating agencies and NARA

[[Page 14809]]

cannot control how they apply the integral file block concept. That is 
a matter for the originating agencies' record management personnel and 
for Information Security Oversight Office (ISOO) oversight of agency 
declassification programs. Therefore, we do not accept the 
recommendation to adopt regulations to review integral file blocks 
spanning more than eight years to see if they can be broken up to 
facilitate declassification.
    The same commenter recommended adding language to Sec.  1260.52 to 
explain a requester's right to appeal to the Interagency Security 
Classification Appeals Panel (ISCAP) if an agency fails to respond to a 
mandatory review request within one year of the date of the request and 
further to add similar language to Sec. Sec.  1260.54 and 1260.55 to 
inform an appellant of the right to appeal to the ISCAP if a final 
decision on the appeal is not made within 180 days of the date of the 
appeal. NARA accepts these recommendations and has amended Sec. Sec.  
1260.52, 1260.54, and 1260.55 to include additional language.
    The same commenter also recommended amending Sec.  1260.70 
involving reclassification. The Order states that in order for 
information to be reclassified, it must be ``reasonably recoverable.'' 
The commenter suggested including a definition of ``reasonably 
recoverable'' in order to better inform agencies of the circumstances 
under which reclassification may be inappropriate and that the 
Archivist may object to reclassification. NARA has added to the end of 
Sec.  1260.70 the language ``in accordance with section 1.7(c) of the 
Order and Sec.  2001.13(a) of the Implementing Directive (32 CFR 
2001.13(a))''.
    One commenter suggested adding a sentence to the definition of 
declassification in Sec.  1260.2 stating that if an agency does not 
review records before automatic declassification occurs, that process 
will supersede the agency's review. This suggested change is not 
necessary because section 3.3 of the EO covers this. The same commenter 
asked if an agency can delegate to NARA authority in the form of 
declassification guidance to declassify foreign government information. 
According to 32 CFR 2001.30(h), NARA must consult with the original 
classifying agency. This commenter also suggested that the statement in 
Sec.  1260.42(a)(2) that NARA will ``provide space for agency reviewers 
in the facility in which the records are located as space is 
available'' is contradictory and suggested that NARA clarify the 
wording. NARA has revised the section to indicate that NARA will 
provide space to the extent that space is available.
    This commenter asked why in Sec.  1260.44 NARA stated that it will 
consider loaning records back to an originating agency for 
declassification review only in the Washington, DC, metropolitan area. 
NARA has limited the loan of accessioned records to the Washington, DC, 
metropolitan area so that NARA staff can inspect an agency facility to 
insure that the facility has proper environmental and security 
conditions for accessioned archival records. NARA staff must also be 
able to monitor the handling and storage of archival records while in 
agency custody.
    One commenter objected to the provisions of Sec.  1260.46 allowing 
a delay in automatic declassification of five years for classified 
information in microforms, motion pictures, audiotapes, videotapes, or 
comparable media that make declassification review more difficult. He 
stated that ``While the term `Special media records' has long been used 
by NARA to designate government records existing on microform, film 
audiotapes, videotapes and the like, it is time to not separate out 
government records based upon the media they reside on. Records are 
records.'' In the 2003 amendment to the EO, ISOO recognized that 
classified information contained in microforms, motion pictures, 
audiotapes, videotapes, or comparable media might make a review for 
possible declassification exemptions more difficult or costly and 
implemented this provision. This rule brings NARA's procedures into 
conformity with the EO.
    One commenter suggested that the time for an agency to follow up on 
a preliminary telephone request for an urgent reclassification action 
be shortened from 5 days to 3 for fear that the longer time will lead 
to the formal documentation not being provided. NARA does not accept 
this recommendation. Initial requests for reclassification usually come 
from agency declassification reviewers. NARA wants to allow time for 
appropriate staffing of the request within the agency.
    One agency commenter requested revision of Sec.  1260.28 to make it 
clear that the Department of Defense, in conjunction with the 
Department of Energy, is responsible for classification and 
declassification guidance for Formerly Restricted Data. We have revised 
Sec.  1260.28 to read, ``Only designated officials within the 
Department of Energy may declassify records containing Restricted Data. 
Any record determined to contain Restricted Data (RD) may not be 
reviewed for declassification of national security information until 
the Secretary of Energy has determined that the RD marking may be 
removed. Declassification review of national security information in 
records containing Formerly Restricted Data (FRD) may only be performed 
after the Secretary of Energy, in conjunction with the Secretary of 
Defense, has determined that the FRD marking may be removed.''
    As part of NARA's analysis of comments received on the proposed 
rule, ISOO recommended that we add language to paragraphs (a) and (b) 
of Sec.  1260.20 to make it clear that while there is no requirement 
for an agency to review its records for its own equities, there is a 
requirement to review for those of other agencies. We have made the 
suggested changes.
    In Sec.  1260.26 we have changed Director of Central Intelligence 
to Director of National Intelligence to conform with the change in the 
law. We have deleted ``The Executive Secretary'' and corrected the room 
number for the address of the ISCAP cited in Sec. Sec.  1260.54(e), 
1260.55(d), and 1260.62(c). We have made minor clarifications in 
language in Sec. Sec.  1260.40, 1260.54(b)(2), 1260.54(f), 1260.74(d), 
and 1260.74(e).
    This rule is a significant regulatory action for the purposes of EO 
12866 and has been reviewed by the Office of Management and Budget. As 
required by the Regulatory Flexibility Act, I certify that this rule 
will not have a significant impact on a substantial number of small 
entities because it affects Federal agencies and individual 
researchers. This rule does not have any federalism implications.

List of Subjects in 36 CFR Part 1260

    Archives and records, Classified information.

0
For the reasons set forth in the preamble, NARA amends chapter XII of 
title 36, Code of Federal Regulations, by revising part 1260 to read as 
follows:

PART 1260--DECLASSIFICATION OF NATIONAL SECURITY INFORMATION

Subpart A--General Information
Sec.
1260.1 What is the purpose of this part?
1260.2 Definitions.
1260.4 What NARA holdings are covered by this part?
1260.6 What is the authority for this part?
Subpart B--Responsibilities
1260.20 Who is responsible for the declassification of classified 
national

[[Page 14810]]

security Executive Branch information that has been accessioned by 
NARA?
1260.22 Who is responsible for the declassification of classified 
national security 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 issuing special procedures for 
declassification of information pertaining to intelligence 
activities, sources and methods, or of classified cryptologic 
information in NARA's holdings?
1260.28 Who is responsible for declassifying records that contain 
information classified under the Atomic Energy Act of 1954, as 
amended, commonly referred to as Restricted Data and Formerly 
Restricted Data?
Subpart C--Systematic Review
1260.40 How are records at NARA 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?
1260.46 How will NARA implement automatic declassification?
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 after receiving 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?
1260.55 What is the appeal process when an agency denies a mandatory 
review request for Executive Branch information within Nixon 
Presidential Historical materials or Presidential records?

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 is the appeal process when a mandatory review request 
for White House originated information is denied?
Subpart E--Reclassification
1260.70 Can previously released Executive Branch information be 
reclassified or have its classification restored?
1260.72 Can previously released White House originated information 
be reclassified or have its classification restored?
1260.74 What if NARA does not concur with an agency decision to 
reclassify or restore the classification of information that has 
been previously released?

    Authority: 44 U.S.C. 2101 to 2118; 5 U.S.C. 552; E.O. 12958, 60 
FR 19825, 3 CFR, 1995 Comp., p. 333; E.O. 13142, 64 FR 66089, 3 CFR, 
1999 Comp., p. 236; E.O. 13292, 68 FR 15315; 32 CFR part 2001.

Subpart A--General Information


Sec.  1260.1  What is the purpose of this part?

    (a) This part defines the responsibilities of NARA and other 
Federal agencies for declassification of classified national security 
information in the holdings of NARA.
    This part also describes NARA's procedures for:
    (1) Conducting systematic reviews of NARA holdings, and
    (2) Processing mandatory review requests for NARA holdings.
    (b) Regulations for researchers who wish to request access to 
materials containing classified national security information are found 
in 36 CFR part 1256.


Sec.  1260.2  Definitions.

    (a) Classified national security information or classified 
information means information that has been determined under EO 12958, 
as amended, or any predecessor order to require protection against 
unauthorized disclosure and is marked to indicate its classified status 
when in documentary form.
    (b) Declassification means the authorized change in the status of 
information from classified information to unclassified information.
    (c) Systematic declassification review means the review for 
declassification of classified information contained in records that 
have been determined by the Archivist of the United States to have 
permanent historical value in accordance with 44 U.S.C. 2107.
    (d) Mandatory declassification review means the review for 
declassification of classified information in response to a request for 
declassification that meets the requirements under section 3.5 of EO 
12958, as amended.
    (e) Integral file block means a distinct component of a file 
series, as defined in this section, that should be maintained as a 
separate unit in order to ensure the integrity of the records. An 
integral file block may consist of a set of records covering either a 
specific topic or a range of time such as presidential administration 
or a 5-year retirement schedule within a specific file series that is 
retired from active use as a group.
    (f) File series means file units or documents arranged according to 
a filing system or kept together because they relate to a particular 
subject or function, result from the same activity, document a specific 
kind of transaction, take a particular physical form, or have some 
other relationship arising out of their creation, receipt, or use, such 
as restrictions on access or use.


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

    The NARA holdings covered by this part are records legally 
transferred to the National Archives and Records Administration (NARA), 
including Federal records accessioned into the National Archives of the 
United States, 44 U.S.C. 2107; Presidential records, 44 U.S.C. 2201-
2207; Nixon Presidential materials, 44 U.S.C. 2111 note; and donated 
historical materials in Presidential Libraries and in the National 
Archives of the United States, 44 U.S.C. 2111.


Sec.  1260.6  What is the authority for this part?

    Declassification of and public access to classified national 
security information is governed by EO 12958 of April 17, 1995 (3 CFR 
part 1995 Comp., p. 333), EO 13142 of November 19, 1999 (3 CFR part 
1999 Comp., p. 236), EO 13292 of March 28, 2003 (68 FR 15315), 
collectively referred to as EO 12958, as amended, and by the 
Information Security Oversight Office (ISOO) Implementing Directive for 
EO 12958, as amended (32 CFR part 2001).

Subpart B--Responsibilities


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

    (a) Consistent with the requirements on automatic declassification 
in section 3.3 of EO 12958, as amended, the originating agency is 
responsible for declassification of its information, but may delegate 
declassification authority to NARA in the form of declassification 
guidance. Even though the agency delegates declassification authority 
to NARA in the form of declassification guidance, the agency remains 
responsible for reviewing the records to identify other agencies having 
primary subject matter interest (``equities'') before the date that the 
records become eligible for automatic declassification.
    (b) If an agency does not delegate declassification authority to 
NARA, the agency is responsible for both declassification of its own 
information and reviewing the records to identify the equities of other 
agencies before the date that the records become eligible for automatic 
declassification.
    (c) NARA is responsible for the declassification of records of a 
defunct

[[Page 14811]]

agency that has no successor in function. NARA will consult with 
agencies having equities in the records before making declassification 
determinations.


Sec.  1260. 22  Who is responsible for the declassification of 
classified national security 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 issuing special procedures for 
declassification of information pertaining to intelligence activities, 
sources and methods, or of classified cryptologic information in NARA's 
holdings?

    (a) The Director of National Intelligence is responsible for 
issuing special procedures for declassification of classified 
information pertaining to intelligence activities and intelligence 
sources and methods.
    (b) The Secretary of Defense is responsible for issuing special 
procedures for declassification of classified cryptologic information.


Sec.  1260.28  Who is responsible for declassifying records that 
contain information classified under the Atomic Energy Act of 1954, as 
amended, commonly referred to as Restricted Data and Formerly 
Restricted Data?

    Only designated officials within the Department of Energy may 
declassify records containing Restricted Data. Any record determined to 
contain Restricted Data (RD) may not be reviewed for declassification 
of national security information until the Secretary of Energy has 
determined that the RD marking may be removed. Declassification review 
of national security information in records containing Formerly 
Restricted Data (FRD) may only be performed after the Secretary of 
Energy, in conjunction with the Secretary of Defense, has determined 
that the FRD marking may be removed.

Subpart C--Systematic Review


Sec.  1260.40  How are records at NARA reviewed for declassification?

    (a) Consistent with the requirements on automatic declassification 
in section 3.3 of EO 12958, as amended, NARA staff may conduct 
systematic reviews for declassification of records for which the 
originating agencies have provided declassification guidance. The 
originating agency must review records for which it has not provided 
declassification guidance.
    (b) Agencies may choose to review their own records that have been 
transferred to NARA's legal custody, by sending personnel to the NARA 
facility where the records are located to conduct the declassification 
review.
    (c) Classified materials in the Presidential Library system may be 
referred to agencies holding equity in the documents via the Remote 
Archives Capture (RAC)Project. The RAC Project is a collaborative 
program to implement the declassification provisions of E.O. 12958, as 
amended, with respect to twenty-five year old or older classified 
holdings in the Presidential Libraries. Classified Presidential 
materials at the libraries are scanned and brought to the Washington, 
DC, metropolitan area in electronic form for review by equity-holding 
agencies in the metropolitan area.


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

    (a) NARA will:
    (1) Make the records available to properly cleared agency 
reviewers;
    (2) Provide space for agency reviewers in the facility in which the 
records are located to the extent that space is available; and
    (3) 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 part 1254 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 
classified national security 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 for the use of any equipment as described 
in Sec.  1260.42 (b)(3), such as scanners, copiers, or cameras, to 
ensure that they do not pose an unacceptable risk of damage to archival 
materials.


Sec.  1260.46  How will NARA implement automatic declassification?

    (a) Textual records and collections. Classified records within an 
integral file block will be automatically declassified on December 31 
of the year that is 25 years from the date of the most recent record 
within the file block, except as specified in paragraphs (b), (c), (d), 
and (e) of this section.
    (b) Special media records. (1) Federal records. Upon proper 
notification from the originating agency, NARA will delay automatic 
declassification for 5 additional years for classified information 
contained in microforms, motion pictures, audiotapes, videotapes, or 
comparable media that make a review for possible declassification 
exemptions more difficult or costly. Information contained in special 
media records that has been referred to an equity holder will be 
automatically declassified 5 years from the date of notification or 30 
years from the date of origination of the

[[Page 14812]]

special media, whichever is longer, unless otherwise properly exempted.
    (2) Presidential collections. NARA will delay automatic 
declassification for 5 additional years for classified information 
contained in Presidential records and donated historical materials in 
the form of microforms, motion pictures, audiotapes, videotapes, or 
comparable media that make a review for possible declassification 
exemptions more difficult or costly. Information contained in special 
media records that has been referred will be automatically declassified 
5 years from the date of notification or 30 years from the date of 
origination of the special media, whichever is longer, unless otherwise 
properly exempted.
    (c) Delayed referrals. NARA will delay automatic declassification 
for up to 3 years for classified records that have been identified by 
the originating agency, or by NARA, and referred to an additional 
agency or agencies less than 3 years before automatic declassification 
would otherwise be required.
    (d) Other exceptions. NARA will apply automatic declassification 
only to information that has been properly referred to the agency that 
created the records, or to another agency, but not acted upon by those 
agencies within 3 years from the date of notification, or 28 years from 
the date of the record or integral file block, whichever is later.
    (1) Information that has not been properly identified and referred 
to an agency other than the agency that created the records is not 
subject to automatic declassification. When NARA identifies information 
of interest to another agency, that agency will have 3 years from the 
date of notification to exempt or declassify its equity, and to further 
refer the record if appropriate. If no action is taken, the information 
from the agency that received the referral will be automatically 
declassified 3 years from the date of notification.
    (2) Information contained in special media records that has been 
referred to equity holders will be automatically declassified 5 years 
from the date of notification, or 30 years from the date of origination 
of the special media, whichever is longer, unless otherwise properly 
exempted.
    (e) Discovery of information inadvertently not reviewed. When NARA 
identifies a file series or collection in our physical and legal 
custody that contains classified information over 25 years old and that 
was inadvertently not reviewed before the effective date of automatic 
declassification, NARA must report the discovery to ISOO within 90 days 
of discovery. Within 180 days NARA will refer the records to the 
originating agency or systematically review the records.
    (1) The referral agency will have 3 years from the date of 
notification to exempt, declassify, or further refer the record. If no 
action is taken, the information from the agency that received the 
referral will be automatically declassified 3 years from the date of 
notification.
    (2) Information contained in special media records that has been 
referred will be automatically declassified 5 years from the date of 
notification or 30 years from the date of origination of the special 
media, whichever is longer, unless otherwise properly exempted.

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 and to agencies 
that have equities in the information for declassification review. 
Agencies may also send personnel to a NARA facility where the records 
are located to conduct a declassification review, or may delegate 
declassification authority to NARA in the form of declassification 
guidance.
    (b) If the requested records are more than 25 years old, NARA will 
review the records using systematic declassification guidance provided 
by the originating agency and agencies having equities in the 
information. If the originating agency, or agencies having equities in 
the information have not provided systematic declassification guidance, 
or if there is a question regarding the guidance, NARA will refer any 
requested documents it is unable to declassify to the appropriate 
agency or agencies 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) Requests for mandatory review must describe the document or 
material containing the information with sufficient specificity to 
enable NARA to locate it with a reasonable amount of effort.
    (e) If the document or information has been properly reviewed for 
declassification within the past 2 years, or if the specific 
information is the subject of pending litigation, NARA will inform the 
requester of this fact and of the requester's appeal rights.
    (f) If NARA determines that a requester has submitted a request for 
the same information or material under both the mandatory review and 
the Freedom of Information Act (FOIA), as amended, the request will be 
treated as a request under the FOIA, unless the requested information 
or materials are subject only to mandatory review.
    (g) 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 a declassification determination on material for 
which NARA has delegated authority, 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, subject to section 3.6 (a) 
and (b) of EO 12958 as amended.


Sec.  1260.52  What are agency responsibilities after receiving 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.
    (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 referred 
document with the agency determination uniformly and conspicuously 
identified to leave no doubt about the status of the information and 
the authority for its continued classification or its declassification. 
If a document cannot be declassified in its entirety, the agency must 
return to NARA a copy of the document with those portions that require 
continued classification clearly marked. If a document requires 
continued classification in its entirety, the agency must return to 
NARA a copy of the document 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. 
The agency must also supply for transmission to the requester a contact 
name and title and the address where the appeal must be sent. 
Additional information on appeals for requesters is

[[Page 14813]]

located in 36 CFR part 1256 and in Appendix A to 32 CFR part 2001 
(Article VIII).
    (e) If the agency fails to make a decision on the mandatory review 
request within one year of the original date of the request, the 
requester may appeal to the Interagency Security Classification Appeals 
Panel (ISCAP).


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

    (a) If an agency denies a declassification request under mandatory 
review, the requester may appeal directly to the appeal authority at 
that agency. If a final decision on the appeal is not made within 180 
days of the date of the appeal, the appellant may appeal to the ISCAP.
    (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 in 
sanitized form 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 requester's appeal rights are.
    (e) NARA will also notify the requester of the right to appeal 
denials of access to 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 503, Washington, DC 20408.
    (f) The pertinent NARA office or Presidential Library will 
coordinate the potential release of information declassified by the 
ISCAP when the materials are subject to the Presidential Recordings and 
Materials Preservation Act, 44 U.S.C. 2111 note, and the Presidential 
Records Act, 44 U.S.C. 2203.
    (g) 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 
requested information 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.


Sec.  1260.55  What is the appeal process when an agency denies a 
mandatory review request for Executive Branch information within Nixon 
Presidential Historical materials or Presidential records?

    (a) If an agency denies a declassification request under mandatory 
review for Nixon Presidential materials or a Presidential record as 
defined by 44 U.S.C. 2201, the requester may appeal the determination 
within 60 calendar days to the Deputy Archivist of the United States, 
through the appropriate Presidential library. If a final decision on 
the appeal is not made within 180 days of the date of the appeal, the 
appellant may appeal to the ISCAP.
    (b) When the Deputy Archivist of the United States receives an 
appeal, he or she will review the decision to deny the information and 
consult with the appellate authorities in the agencies having primary 
subject matter interest in the information.
    (c) NARA will notify the requester in writing of the determination 
and make available any additional information that has been 
declassified as a result of the requester's appeal, according to the 
notification procedures of EO 13233 for Presidential records or 36 CFR 
part 1275.
    (d) NARA will also notify the requester of the right to appeal 
denials of access to 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 503, Washington, DC 20408.
    (e) The pertinent NARA office or Presidential Library will 
coordinate the potential release of information declassified by the 
ISCAP when the materials are subject to the Presidential Recordings and 
Materials Preservation Act, 44 U.S.C. 2111 note, and the Presidential 
Records Act, 44 U.S.C. 2203.

White House Originated Information


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

    White House originated information of former Presidents is subject 
to mandatory review consistent with the Presidential Records Act, 44 
U.S.C. 2203, the Presidential Recordings and Materials Preservation 
Act, 44 U.S.C. 2111 note, and any deeds of gift that pertain to the 
materials or the respective Presidential administrations pursuant to 44 
U.S.C. 2107 and 2111. Unless precluded by such laws or agreements, 
White House originated information is subject to mandatory or an 
equivalent agency review for current classification when NARA has 
archivally processed the materials or can identify the materials with 
specificity. However, records covered by the Presidential Records Act 
are closed for 5 years after the end of the Presidential 
administration, or until NARA has archivally processed an integral file 
segment, whichever occurs first, pursuant to 44 U.S.C. 2204.


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

    (a) Requests for mandatory review must describe the document or 
material containing the information with sufficient specificity to 
enable NARA to locate it with a reasonable amount of effort.
    (b) If the document or information has been properly reviewed for 
declassification within the past 2 years, or if the specific 
information is the subject of pending litigation, NARA will inform the 
requester of this fact and of the requester's appeal rights.
    (c) If NARA determines that a requester has submitted a request for 
the same information or material under both the mandatory review and 
the Freedom of Information Act (FOIA), as amended, the request will be 
treated as a request under the FOIA, unless the requested information 
or materials are subject only to mandatory review.
    (d) NARA will promptly acknowledge to the requester the receipt of 
a request for White House originated information.
    (e) If the requested information is less than 25 years old, NARA 
will consult with agencies having primary subject matter interest. NARA 
will forward copies of the requested materials to the agencies and 
request their recommendations regarding declassification.
    (f) If the requested records are more than 25 years old, NARA will 
review the records using systematic declassification guidance provided 
by the originating agency and agencies having equities in the 
information. If the originating agency, or agencies having equities in 
the information have not provided systematic declassification guidance, 
or if there is a question regarding the guidance, NARA will refer any 
requested documents it is unable to

[[Page 14814]]

declassify to the appropriate agency or agencies for their 
recommendations regarding declassification.
    (g) 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 remain classified;
    (b) Provide NARA a brief statement providing the authority for the 
continued classification of any information not declassified; and
    (c) Return all reproductions referred for consultation, including a 
complete copy of each document that should be declassified only in 
part, uniformly and conspicuously marked to leave no doubt about the 
status of the information and the authority for its continued 
classification or its declassification.


Sec.  1260.62  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 or she will review the decision to deny the information and 
consult with the appellate authorities in the agencies having primary 
subject matter interest in the information.
    (b) NARA will notify the requester in writing 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 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 503, Washington, DC 20408.

Subpart E--Reclassification


Sec.  1260.70  Can previously released Executive Branch information be 
reclassified or have its classification restored?

    (a) Records that were properly declassified in accordance with EO 
12958, as amended, (or predecessor orders) and that have been released 
may be temporarily closed and considered for reclassification at the 
request of an agency. Final action must be taken under the personal 
authority of the agency head or deputy agency head, who determines in 
writing within 20 workdays that the reclassification of the information 
is necessary in the interest of the national security. In addition, the 
information must be reasonably recoverable in accordance with section 
1.7(c) of the Order and section 2001.13(a) of the Implementing 
Directive (32 CFR 2001.13(a)).
    (b) Records that were not properly declassified in accordance with 
EO 12958, as amended, (or predecessor orders) remain classified. Upon 
notification, NARA will take administrative action to restore markings 
and controls, as appropriate. In the event that records have been 
released, they may be temporarily closed and their classification 
reviewed at the request of an agency. The agency must notify NARA of 
the results of the review within 30 days.
    (c) Agencies must submit all requests in writing. 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 working days. Requests concerning Executive 
Branch records must be addressed to the Assistant Archivist for Records 
Services--Washington, DC, National Archives and Records Administration, 
8601 Adelphi Road, College Park, MD 20740-6001. Requests concerning 
information in Presidential libraries must be addressed to the 
Assistant Archivist for Presidential Libraries, National Archives and 
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001.
    (d) Any such written request must include all of the following:
    (1) A description of the records or donated materials involved, 
identified with sufficient specificity to enable NARA to locate it with 
a reasonable amount of effort;
    (2) An explanation as to why the records should be closed and 
reviewed;
    (3) A statement as to the authority for any classification or 
reclassification, to include a reference to the specific category in 
section 1.4 or 3.3(b) of E.O. 12958, as appropriate; and
    (4) Any information the agency may have concerning any previous 
public disclosure of the information. NARA will assist by providing 
information.


Sec.  1260.72  Can previously released White House originated 
information be reclassified or have its classification restored?

    An agency or an entity within the Executive Office of the President 
that solely advises and assists the President, may ask NARA to 
temporarily close, review, and possibly reclassify or restore the 
classification of White House originated information that has been 
declassified and previously released. The agency or other entity must 
follow the same procedures as a request for reclassification of 
Executive branch originated information in 36 CFR 1260.70.


Sec.  1260.74  What if NARA does not concur with an agency decision to 
reclassify or restore the classification of information that has been 
previously released?

    (a) If NARA is concerned that relevant procedures and policies 
under EO 12958, as amended, or its Implementing Directives are not 
being properly implemented, the Archivist will promptly report such 
situations to the Director of ISOO.
    (b) If, in the opinion of the Archivist, an agency's determination 
with respect to the classification status of records that have been 
previously released is improper, the Archivist, as an authorized 
holder, may challenge the classification status of the pertinent 
records in accordance with section 1.8 of EO 12958, as amended.
    (c) NARA will direct any such challenge in writing to the agency 
with classification authority and jurisdiction over the information.
    (d) If no response is provided by the agency within 120 days, NARA 
may forward the challenge directly to the ISCAP. NARA must forward the 
challenge within 60 days of the agency's failure to provide a response 
within the 120 day response period.
    (e) If an agency appellate authority fails to provide NARA with a 
response to an appeal within 90 days of its receipt, NARA may forward 
the appeal directly to the ISCAP. NARA must forward the challenge 
within 60 days of the agency's failure to provide a response to an 
appeal within the 90 day response period.
    (f) All records subject to classification challenges will remain 
classified pending final resolution of the challenge and, if necessary, 
any such appeals.


[[Page 14815]]


    Dated: February 16, 2006.
Allen Weinstein,
Archivist of the United States.
[FR Doc. 06-2866 Filed 3-23-06; 8:45 am]
BILLING CODE 7515-01-P