[Federal Register Volume 72, Number 175 (Tuesday, September 11, 2007)]
[Proposed Rules]
[Pages 51744-51747]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-17913]



[[Page 51744]]

=======================================================================
-----------------------------------------------------------------------

NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

36 CFR Part 1250

[NARA-07-0003]
RIN 3095-AB42


Public Availability and Use of Federal Records

AGENCY: National Archives and Records Administration.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The National Archives and Records Administration (NARA) is 
proposing to revise its regulations implementing the Freedom of 
Information Act (FOIA). The proposed revisions update the regulations 
for access and release of information under the FOIA among NARA's 
archival holdings and NARA's own operational records.

DATES: Comments are due by November 13, 2007.

ADDRESSES: NARA invites interested persons to submit comments on this 
proposed rule. Comments may be submitted by any of the following 
methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: Submit comments by facsimile transmission to 301-837-
0319.
     Mail: Send comments to Regulations Comments Desk (NPOL), 
Room 4100, Policy and Planning Staff, National Archives and Records 
Administration, 8601 Adelphi Road, College Park, MD 20740-6001.
     Hand Delivery or Courier: Deliver comments to 8601 Adelphi 
Road, College Park, MD.

FOR FURTHER INFORMATION CONTACT: Laura McCarthy at (301) 837-3023 or 
via fax number 301-837-0319.

SUPPLEMENTARY INFORMATION: The proposed revisions to NARA's regulations 
on public availability and use of Federal records modify several of the 
procedures and responsibilities of NARA staff in response to requests 
submitted under the provisions of the Freedom of Information Act 
(FOIA). The proposed revisions update NARA's regulations to incorporate 
changes that have occurred since the last revision of 36 CFR part 1250, 
including:
     Reflecting the legal transfer of certain official military 
personnel records to the National Archives of the United States in 
2005. The transfer of these records to NARA expands the application of 
36 CFR part 1250 to twentieth-century military personnel records that 
are archival records; those military personnel records that have not 
been transferred to NARA remain under the legal custody of the agency 
that created them.
     Incorporating the provisions of Executive Order 13392, 
``Improving Agency Disclosure of Information,'' by revising Sec.  
1250.22 to include the establishment of FOIA Customer Service Centers 
and the designation of FOIA Public Liaisons. The proposed rule also 
advises the public of a new e-mail address for the submission of FOIA 
requests to NARA.
     Extending the time the former and incumbent President have 
to respond to notification of the proposed release of presidential 
records consistent with E.O. 13233, Further Implementation of the 
Presidential Records Act (issued November 1, 2001). Executive Order 
13233 allows the Presidents at least 90 days to make a determination 
concerning the release of presidential records.
     Incorporating changes to the fee schedule for self-service 
copies.
     Revising NARA's procedures for identifying records 
containing confidential commercial information in Sec.  1250.82. We 
propose to provide a 10 day response time for the submitter, instead of 
the current five day period, to respond to notification of the release 
of confidential commercial information in the records. We also propose 
to change our public notification procedures to include a method of 
notifying multiple submitters by posting on our Web site or publishing 
a notice concerning the release of confidential commercial information.
    This proposed 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. 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 this 
regulation will affect only persons and organizations who file FOIA 
requests with NARA. This regulation does not have any federalism 
implications.

List of Subjects in 36 CFR Part 1250

    Archives and records, Confidential business information, Freedom of 
information.

    For the reasons set forth in the preamble, NARA proposes to amend 
part 1250 of title 36, Code of Federal Regulations, as follows:

PART 1250--PUBLIC AVAILABILITY AND USE OF FEDERAL RECORDS

    1. Revise the authority citation for part 1250 to read as follows:

    Authority: 44 U.S.C. 2104(a); 5 U.S.C. 552; E.O. 12958, 60 FR 
19825, 3 CFR, 1995 Comp., p. 333, as amended by E.O. 13292, 68 FR 
15315, March 28, 2003; E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., 
p. 235., E.O 13392, 70 FR 75371, 3 CFR, 2006 Comp., p. 216.

    2. Revise the section heading of Sec.  1250.1 to read as follows:


Sec.  1250.1  What is the scope of this part?

* * * * *
    3. Amend Sec.  1250.2 by revising the section heading; 
redesignating paragraph (k) as paragraph (l); and adding a new 
paragraph (k) to read as follows:


Sec.  1250.2  What definitions apply to this part?

* * * * *
    (k) Search means the process of looking for and retrieving records 
or information responsive to a request. It includes page-by-page or 
line-by-line identification of information within records and also 
includes reasonable efforts to locate and retrieve information from 
records maintained in electronic form or format.
* * * * *
    4. Amend Sec.  1250.6 by revising paragraph (c) in the table to 
read as follows:


Sec.  1250.6  Does FOIA cover all the records at NARA?

* * * * *

------------------------------------------------------------------------
     If you want access to . . .        Then access is governed by . . .
------------------------------------------------------------------------
 
                              * * * * * * *
(c) Records of Congress and            Parts 1254 through 1260 of this
 legislative branch agencies.           chapter. FOIA does not apply to
                                        these records.
 
                              * * * * * * *
------------------------------------------------------------------------


[[Page 51745]]

    5. Revise Sec.  1250.8 to read as follows:


Sec.  1250.8  Does NARA provide access to all the executive branch 
records housed at NARA facilities?

    (a) NARA provides access to the following records:
    (1) NARA operational records; and
    (2) Archival records, including those Official Military Personnel 
Files that have been transferred to the legal custody of NARA.
    (b) NARA does not provide access to the following records:
    (1) Other military and civilian records that remain in the legal 
custody of the agencies that created them; access to such records is 
governed by the FOIA, Privacy Act, and other access regulations of the 
creating agencies. Military personnel records that are less than 62 
years old from the date of the individual's separation from the 
military and medical records of former members of the military are held 
at NARA's National Personnel Records Center (NPRC), located in St. 
Louis, Missouri. The NPRC also houses the records of former civilian 
employees of the Federal government. The NPRC processes FOIA requests 
for these records under authority delegated by the originating 
agencies, not under the provisions of this part; and
    (2) In our national and regional records centers, NARA stores 
records that agencies no longer need for day-to-day business. These 
records remain in the legal custody of the agencies that created them. 
Access to these records is through the originating agency; NARA does 
not process FOIA requests for these records.
    6. Amend Sec.  1250.10 by revising paragraphs (a) and (b) to read 
as follows:


Sec.  1250.10  Do I need to use FOIA to gain access to records at NARA?

    (a) Most archival records held by NARA have no restrictions to 
access and are available to the public for research without filing a 
FOIA request. You may either visit a NARA facility as a researcher to 
view and copy records or you may write to request copies of specific 
records.
    (b) If you seek access to archival records that are restricted and 
not available to the public, you must file either a FOIA request or, if 
the records are restricted because they contain classified national 
security information, a mandatory declassification review request (see 
part 1256 of this chapter for procedures to request access to 
information) to gain access to these materials. See 36 CFR 1256.76 for 
information on filing mandatory declassification review requests.
* * * * *
    7. Amend Sec.  1250.12 by revising paragraph (c) to read as 
follows:


Sec.  1250.12  What types of records are available in NARA's FOIA 
Reading Room?

* * * * *
    (c) Any of this material that was created after October 31, 1996, 
will also be placed on NARA's Web site at http://www.archives.gov/foia/electronic-reading-room.html.
* * * * *
    8. Revise Sec.  1250.14 to read as follows:


Sec.  1250.14  If I do not use FOIA to request records, will NARA treat 
my request differently?

    If you request executive branch agency records that contain 
restrictions under the provisions of the FOIA, you must submit a FOIA 
request. Alternatively, you may submit a mandatory review request for 
those records that are restricted because they contain national 
security classified information. If you request records that are 
publicly available we will respond to your request as promptly as 
possible, whether you invoke FOIA or not.
    9. Amend Sec.  1250.20 to revise paragraph (a) and add new 
paragraph (d) to read as follows:


Sec.  1250.20  What do I include in my FOIA request?

* * * * *
    (a) Describe the records you wish to access with enough detail for 
NARA staff to find them with a reasonable amount of effort. The more 
information you provide, the better possibility NARA has of finding the 
records you requested. Information that helps us find records includes:
    (1) The agencies, offices, or individuals involved; and
    (2) The approximate date when the records were created.
* * * * *
    (d) You may find NARA's ``Freedom of Information Act Reference 
Guide'' helpful in making your request. The ``Guide'' is available on 
our Web site at http://www.archives.gov/foia/foia-guide.html. You may 
request a paper copy of the ``Guide'' by writing the NARA FOIA officer 
at the address provided in 36 CFR 1250.22(d). For additional 
information about the FOIA, you may refer directly to the statute (5 
U.S.C. 552, as amended).
    10. Add new paragraph (g) to Sec.  1250.22 to read as follows:


Sec.  1250.22  Where do I send my FOIA request?

* * * * *
    (g) In accordance with the provisions of Executive Order 13392, 
NARA has established FOIA Customer Service Centers and designated FOIA 
Public Liaisons at all NARA facilities that process FOIA requests. If 
you have questions about the processing of your FOIA request, you may 
contact the designated FOIA Customer Service Center for the facility 
processing your request. If you continue to have concerns after that 
initial contact, you may wish to contact the designated FOIA Public 
Liaison for the facility processing your request. A list of NARA's FOIA 
Customer Service Centers and Public Liaisons can be found at http://www.archives.gov/foia/contacts.html. You may request a paper copy of 
the list by writing to the NARA FOIA Officer at the address provided in 
paragraph (d) of this section.
    11. Revise Sec.  1250.24 to read as follows:


Sec.  1250.24  Will you accept a FOIA request electronically?

    Yes, you may submit a FOIA electronically to [email protected]. The 
body of the message must contain all of the information listed in Sec.  
1250.20.
    12. Amend Sec.  1250.26 by revising paragraphs (a) and (e) to read 
as follows:


Sec.  1250.26  How quickly will NARA respond to my FOIA request?

    (a) NARA will acknowledge all FOIA requests within 20 working days. 
We will inform you if a response to your request may take longer than 
the usual amount of time because of its complexity.
* * * * *
    (e) If you have requested Presidential records and NARA grants you 
access, we must inform the incumbent and former Presidents of our 
intention to disclose information from those records. After receiving 
the notice, and pursuant to the provisions of the current Executive 
Order on the implementation of the Presidential Records Act, the 
incumbent and former president have at least 90 days in which to invoke 
Executive Privilege to deny access to the requested information. NARA 
will send you an initial response to your FOIA request within 20 
working days and inform you of the status of your request. However, the 
final response to your FOIA request can only be made at the end of the 
Presidential notification period.
* * * * *
    13. Amend Sec.  1250.28 by revising the section heading and 
paragraph (b) to read as follows:


Sec.  1250.28  Will NARA ever expedite the review of the records I 
requested under the FOIA?

* * * * *

[[Page 51746]]

    (b) We can expedite only those requests, or segments of requests, 
for records under our control. If another agency controls the records 
you requested, NARA must refer the request to that agency for 
processing. If your request is referred to another agency, we will 
inform you and suggest that you seek expedited review from that agency. 
Similarly, some records under our control contain information that 
remains under the control of another agency, such as classified 
national security information, which may require referral to the 
classifying agency for declassification review. NARA cannot expedite 
the review of national security classified records nor can we shorten 
the Presidential notification period described in Sec.  1250.26(e).
    14. Revise Sec.  1250.32 to read as follows:


Sec.  1250.32  How quickly will NARA process an expedited request?

    We will respond to your request for expedited processing within 10 
calendar days of our receipt of your request. If we grant your request, 
the NARA office responsible for the review of the requested records 
will process your request as quickly as possible. We will inform you if 
we deny your request for expedited processing. If you decide to appeal 
that denial, we will also expedite our review of your appeal.
    15. Amend Sec.  1250.56 by revising paragraph (c)(1)to read as 
follows:


Sec.  1250.56  Fee schedule for NARA operational records.

* * * * *
    (c) Reproduction fees--(1) Self-service photocopying. At NARA 
facilities with self-service photocopiers, you may make reproductions 
of released paper documents. For reproductions made at NARA facilities 
in the Washington, DC area the cost is 25 cents per page. For 
reproductions made in NARA field locations the cost is 20 cents per 
page.
    16. Revise Sec.  1250.60 to read as follows:


Sec.  1250.60  How will NARA determine if I am eligible for a fee 
waiver or fee reduction for NARA operational records?

    (a) If you request a fee waiver, NARA considers furnishing the 
requested records without charge or at a fee below those listed in 
Sec.  1250.56. To be eligible for a fee waiver or reduction you must 
explain:
    (1) How the requested records pertain to the operations and 
activities of the Federal Government. There must be a clear connection 
between the identifiable operations or activities of the federal 
government and the subject of your request.
    (2) How the release will reveal meaningful information about 
Federal Government activities that is not already publicly known.
    (3) How the disclosure to you will advance the understanding of the 
general public on the issue.
    (4) Your expertise or understanding of the requested records.
    (5) How you intend to disseminate the requested information to a 
broad spectrum of the public.
    (6) How disclosure will lead to a significantly greater 
understanding of the Government by the public.
    (b) After reviewing your request and determining that there is a 
substantial public interest in release, NARA also reviews your request 
to determine if the disclosure will further your commercial interests. 
If it does, you are not eligible for a fee waiver or reduction.
    17. Amend Sec.  1250.74 by revising paragraph (c) to read as 
follows:


Sec.  1250.74  Where do I send my appeal?

* * * * *
    (c) If you invoke FOIA and are denied access to national security 
information accessioned into the National Archives of the United 
States, you must appeal determinations that the records remain 
classified for reasons of national security to the agency with 
responsibility for declassifying that information. Only designated 
officials of the originating agency or responsible agency, or by NARA 
under a written authority, may allow access to accessioned records that 
contain classified national security information. NARA provides you 
with the necessary appeal information in those cases. You can find 
additional information on access to national security classified 
records at NARA in 36 CFR part 1256.
    18. Revise Sec.  1250.76 to read as follows:


Sec.  1250.76  May I submit my FOIA appeal electronically?

    Yes, you may submit a FOIA appeal to [email protected]. The body of the 
message must contain all of the information listed in Sec.  1250.72(b).
    19. Revise Sec.  1250.78 to read as follows:


Sec.  1250.78  How does NARA handle appeals?

    (a) NARA will respond to your appeal within 20 working days after 
its receipt by the appropriate designated appeal official. If we 
reverse or modify our initial decision, we will inform you in writing 
and reprocess your request. If we do not change our initial decision, 
our response to you will explain the reasons for our decision, any FOIA 
exemptions that apply, and your right to judicial review of our 
decision.
    (b) An adverse determination by the Archivist or Deputy Archivist 
is the final action by NARA.
    (c) An appeal ordinarily will not be acted on if it becomes a 
matter of FOIA litigation.
    (d) If you wish to seek review by a court of any adverse 
determination, you must first appeal it under this section.
    20. Revise Sec.  1250.80 to read as follows:


Sec.  1250.80  How does a submitter identify records containing 
confidential commercial information?

    A submitter of confidential commercial information must use good-
faith efforts to designate, by appropriate markings, either at the time 
of submission or at a reasonable time thereafter, any portions of its 
submission that it considers to be protected from disclosure under 
exemption (b)(4) of the FOIA. These designations will expire 10 years 
after the date of the submission unless the submitter requests, and 
provides justification for, a longer designation period.
    21. Amend Sec.  1250.82 by revising the introductory paragraph and 
paragraphs (a) and (b); redesignating paragraphs (c) through (e) as 
paragraphs (e) through (g) respectively; and adding new paragraphs (c) 
and (d) to read as follows:


Sec.  1250.82  How will NARA handle a FOIA request for confidential 
commercial information?

    If NARA receives a FOIA request for records containing confidential 
commercial information or for records that we believe may contain 
confidential commercial information, we will follow these procedures:
    (a) If, after reviewing the records in response to a FOIA request, 
we believe that the records may be released, we will make reasonable 
efforts to inform the original submitter of the confidential commercial 
information of our decision. The notice to the submitter will describe 
the confidential commercial information requested or include copies of 
the requested records.
    (b) When the request is for information from a single or small 
number of submitters, NARA will send a notice via registered mail to 
the submitter's last known address. Our notice to the submitter will 
include a copy of the FOIA request and will tell the submitter the time 
limits and procedures for objecting to the release of the requested 
material.
    (c) When the request is for information from multiple submitters,

[[Page 51747]]

notification may be made by posting on our Web site or publishing the 
notice in a place reasonably likely to inform the submitters of the 
proposed disclosure.
    (d) Submitters have 10 working days from the receipt of our notice 
or the date of posting or publishing the notice to object to the 
release and to explain the basis for the objection. The NARA FOIA 
Officer may extend this period as appropriate.
* * * * *
    22. Amend Sec.  1250.84 by revising the section heading and 
revising paragraph (c) to read as follows:


Sec.  1250.84  How do you serve a subpoena or other legal demand for 
NARA operational records?

* * * * *
    (c) Regulations concerning service of a subpoena duces tecum or 
other legal demand for archival records accessioned into the National 
Archives of the United States, records of other agencies in the custody 
of the Federal records centers, and donated historical materials are 
located at 36 CFR 1256.4.

    Dated: September 4, 2007.
Allen Weinstein,
Archivist of the United States.
[FR Doc. E7-17913 Filed 9-10-07; 8:45 am]
BILLING CODE 7515-01-P