[Federal Register Volume 80, Number 208 (Wednesday, October 28, 2015)]
[Rules and Regulations]
[Pages 65934-65944]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-27393]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 197

[Docket ID: DoD-2013-OS-0108]
RIN 0790-AJ07


Historical Research in the Files of the Office of the Secretary 
of Defense (OSD)

AGENCY: Department of Defense.

ACTION: Final rule.

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SUMMARY: This final rule updates and clarifies procedures regarding the 
review and accessibility to records and information in the custody of 
the Secretary of Defense and the OSD Components. The purpose of this 
rule is to provide such guidance to former Cabinet level officials and 
former Presidential appointees (FPAs), including their personnel, 
aides, and official researchers.

DATES: This rule is effective November 27, 2015.

FOR FURTHER INFORMATION CONTACT: Mr. Ronald R. McCully, 571-372-0473.

SUPPLEMENTARY INFORMATION:

I. Executive Summary

A. Purpose of the Regulatory Action

    a. The Office of the Secretary of Defense (OSD) is issuing a final 
rule that would update Part 197.5 of Title 32, Code of Federal 
Regulations. This final rule updates and clarifies procedures regarding 
the review and accessibility to records and information in the custody 
of the Secretary of Defense and the OSD Components. The purpose of this 
rule is to provide such guidance to former Cabinet level officials and 
former Presidential appointees (FPAs), including their personnel, 
aides, and official researchers.
    b. In accordance with Title 5 of the United States Code, 
``Government Organization and Employees,'' this rule updates procedures 
for the programs that permit authorized personnel to perform historical 
research in records created by or in the custody of Office of the 
Secretary of Defense and its components consistent with federal 
regulations.

B. Summary of the Major Provisions of the Regulatory Action In Question

    This final rule updates and clarifies procedures regarding the 
review and accessibility to records and information in the custody of 
the Secretary of Defense and the OSD Components. The purpose of this 
rule is to provide such guidance to former Cabinet level officials and 
former Presidential appointees (FPAs), including their personnel, 
aides, and official researchers.
    1. Explanation of FOIA Exemptions and Classification Categories: 
Explanation of restrictions applicable to the public's request for 
information within OSD files.
    2. Responsibilities: Outlines the responsibilities of Director of 
Administration and Management (D&AM); OSD Records Administrator, and 
the OSD Components.
    3. Procedures for Historical Researchers Permanently Assigned 
Within the Executive Branch Working on Official Projects: Updates and 
outlines procedures for access to information held within OSD files for 
historical research.
    4. Procedures for the Department of State (DoS) Foreign Relations 
of the United States (FRUS) Series: Updates and outlines for official 
researchers of the DOS to access information within OSD Files.
    5. Procedures for Historical Researchers Not Permanently Assigned 
to the Executive Branch: Updates and outlines procedures for Non DoD 
and executive branch personnel to access information within OSD files 
for historical research.
    6. Procedures for Document Review for the FRUS Series: Updates and 
outlines procedures for reviewing FRUS information within OSD files for 
historical research.
    7. Procedures for Copying Documents: Updates and outlines 
procedures for copying information within OSD files for historical 
research.
    8. General Guidelines for Researching OSD Records: Updates and 
outlines procedures for researching information within OSD files for 
historical research.
    9. General Guidelines for Researching OSD Records: Updates and 
outlines guidelines applicable to researchers while reviewing OSD 
files.

C. Costs and Benefits

    Annual yearly cost vary and are dependent on the number of 
researchers requesting access to DoD owned information, the volume of 
information requiring review and/or declassification and other 
operational constraints within a given FY.
    Cost: Cost estimates use actual data for 2012 per hour. Cost is 
aggregated based on average rank (military), grade (civilian) and time 
in service for personnel qualified for oversight of researchers within 
the Washington-Baltimore-Northern Virginia, DC-MD-VA-WV-PA area.

Military = Rank 05 with 10+ years of time in service
Civilian = Grade GS-13, Step 5+ with minimum 5 years of time in service
Military = $39.77 per hour
Civilian = $48.51 per hour


[[Page 65935]]


    Benefit: This allows the government to assert positive control over 
access to classified and unclassified information requested for 
research purposes. DoD information intended for public release that 
pertains to military matters, national security issues, or subjects of 
significant concern to the DoD shall be reviewed for clearance prior to 
release.

II. Public Comments

    On Thursday, May 8, 2014 (79 FR 26381-26391), the Department of 
Defense published a proposed rule requesting public comment. At the end 
of the 60-day public comment period, 1 comment was received.
    Comment: OGIS commends OSD for providing access guidance to former 
Cabinet-level officials and former Presidential appointees (FPAs), 
including their personnel, aides, and official researchers, 
particularly in regard to the nine FOIA exemptions, summarized in the 
``Table--Explanation of FOIA Exemptions.''
    The Table describes Exemption (b)(4) as protecting ``trade secrets 
and commercial or financial information obtained from a private source 
which would cause substantial competitive harm to the source if 
disclosed.'' (Emphasis added) OGIS notes that Exemption 4 applies to 
material obtained from a variety of sources, both public and private. 
Such sources may include ``state governments, agencies of foreign 
governments, and Native American tribes or nations,'' according to the 
Department of Justice Guide to the Freedom of Information Act, http://www.justice.gov/oip/foia_guide09/exemption4.pdf#_PAGE1.
    As such, OGIS suggests clarifying by changing ``from a private 
source'' to ``a non-U.S. Government source.''
    Response: OSD concurs and, in consultation with the OSD FOIA 
Office, we will include in the next revision or update of the 
regulation.

III. Regulatory Procedures

Executive Order 12866, ``Regulatory Planning and Review'' and Executive 
Order 13563, ``Improving Regulation and Regulatory Review''

    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distribute impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule has not been designated a ``significant 
regulatory action,'' because the rule does not have an annual effect on 
the economy of $100 million or more or adversely affect in a material 
way the economy; a section of the economy; productivity; competition; 
jobs; the environment; public health or safety; or State, local, or 
tribal governments or communities; create a serious inconsistency or 
otherwise interfere with an action taken or planned by another Agency; 
materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs, or the rights and obligations of recipients 
thereof; or raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
these Executive Orders.

Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4)

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) 
(Pub. L. 104-4) requires agencies assess anticipated costs and benefits 
before issuing any rule whose mandates require spending in any 1 year 
of $100 million in 1995 dollars, updated annually for inflation. In 
2014, that threshold is approximately $141 million. This rule will not 
mandate any requirements for State, local, or tribal governments, nor 
will it affect private sector costs.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    The Department of Defense certifies that this final rule is not 
subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it 
would not, if promulgated, have a significant economic impact on a 
substantial number of small entities. Therefore, the Regulatory 
Flexibility Act, as amended, does not require us to prepare a 
regulatory flexibility analysis.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    It has been certified that this rule does not impose reporting or 
recordkeeping requirements under the Paperwork Reduction Act of 1995.

Executive Order 13132, ``Federalism''

    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a proposed rule (and subsequent 
final rule) that imposes substantial direct requirement costs on State 
and local governments, preempts State law, or otherwise has Federalism 
implications. This final rule will not have a substantial effect on 
State and local governments.

List of Subjects in 32 CFR Part 197

    Historical records, Research.

    Accordingly, 32 CFR part 197 is revised to read as follows:

PART 197--HISTORICAL RESEARCH IN THE FILES OF THE OFFICE OF THE 
SECRETARY OF DEFENSE (OSD)

Sec.
197.1 Purpose.
197.2 Applicability.
197.3 Definitions.
197.4 Policy.
197.5 Responsibilities.
197.6 Procedures.
Appendix A to Part 197--Explanation of FOIA Exemptions and 
Classification Categories

    Authority: 5 U.S.C. 301, Executive Order 13526, 5 U.S.C. 552b, 
and Pub. L. 102-138.


Sec.  197.1  Purpose.

    This part, in accordance with the authority in DoD Directive 
5110.4, implements policy and updates procedures for the programs that 
permit authorized personnel to perform historical research in records 
created by or in the custody of Office of the Secretary of Defense 
(OSD) consistent with Executive Order 13526; DoD Manual 5230.30, ``DoD 
Mandatory Declassification Review (MDR) Program'' (available at http://www.dtic.mil/whs/directives/corres/pdf/523030m.pdf); 32 CFR part 286; 
32 CFR part 310; DoD Manual 5200.01, ``DoD Information Security 
Program'' Volumes 1-4 (available at http://www.dtic.mil/whs/directives/corres/pdf/520001_vol1.pdf, http://www.dtic.mil/whs/directives/corres/pdf/520001_vol2.pdf, http://www.dtic.mil/whs/directives/corres/pdf/520001_vol3.pdf, and http://www.dtic.mil/whs/directives/corres/pdf/520001_vol4.pdf); 36 CFR 1230.10 and 36 CFR part 1236; DoD Directive 
5230.09, ``Clearance of DoD Information for Public Release'' (available 
at http://www.dtic.mil/whs/directives/corres/pdf/523009p.pdf); and 32 
CFR 197.5.


Sec.  197.2  Applicability.

    This part applies to:
    (a) The Office of the Secretary of Defense (OSD), the Defense 
Agencies, and the DoD Field Activities in the National Capital Region 
that are serviced by Washington Headquarters Services (WHS) (referred 
to collectively in this part as the ``WHS-Serviced Components'').
    (b) All historical researchers as defined in Sec.  197.3.

[[Page 65936]]

    (c) Cabinet Level Officials, Former Presidential Appointees (FPAs) 
to include their personnel, aides and researchers, seeking access to 
records containing information they originated, reviewed, signed, or 
received while serving in an official capacity.


Sec.  197.3  Definitions.

    The following definitions apply to this part:
    Access. The availability of or the permission to consult records, 
archives, or manuscripts. The ability and opportunity to obtain 
classified, unclassified, or administratively controlled information or 
records.
    Electronic records. Records stored in a form that only a computer 
can process and satisfies the definition of a federal record, also 
referred to as machine-readable records or automatic data processing 
records (including email).
    Historical researchers or requestors. A person approved to conduct 
research in OSD files for historical information to use in a DoD 
approved project (e.g., agency historical office projects, books, 
articles, studies, or reports), regardless of the person's employment 
status. Excluded are Military personnel assigned to OSD; OSD employees, 
contractors, and students conducting research in response to academic 
requirements.
    Records (also referred to as federal records or official records). 
All books, papers, maps, photographs, machine-readable materials, or 
other documentary materials, regardless of physical form or 
characteristics, made or received by an agency of the U.S. Government 
under federal law or in connection with the transaction of public 
business and preserved or appropriate for preservation by that agency 
or its legitimate successor as evidence of the organization, functions, 
policies, decisions, procedures, operations, or other activities of the 
U.S. Government or because of the informational value of data in them.


Sec.  197.4  Policy.

    It is OSD policy that:
    (a) Pursuant to Executive Order 13526, anyone requesting access to 
classified material must possess the requisite security clearance.
    (b) Members of the public seeking the declassification of DoD 
documents under the provisions of section 3.5 of Executive Order 13526 
will contact the appropriate OSD Component as listed in DoD Manual 
5230.30.
    (c) Records and information requested by FPA and approved 
historical researchers will be accessed at a facility under the control 
of the National Archives and Records Administration (NARA), NARA's 
Archives II in College Park, Maryland, a Presidential library, or an 
appropriate U.S. military facility or a DoD activity in accordance with 
Vol 3 of DoD Manual 5200.01, ``DoD Information Security Program,'' 
February 24, 2012, as amended.
    (d) Access to records and information will be limited to the 
specific records within the scope of the proposed research request over 
which OSD has authority and to any other records for which the written 
consent of other agencies with authority has been granted in accordance 
with Vol 3 of DoD Manual 5200.01, ``DoD Information Security Program,'' 
February 24, 2012, as amended.
    (e) Access to unclassified OSD Component records and information 
will be permitted consistent with the restrictions of the exemptions of 
5 U.S.C. 552(b) (also known and referred to in this part as the 
``Freedom of Information Act'' (FOIA), 32 CFR part 286, Sec.  197.5 of 
this part, and consistent with 32 CFR part 310. The procedures for 
access to classified information will be used if the requested 
unclassified information is contained in OSD files whose overall 
markings are classified.
    (f) Except as otherwise provided in DoD Manual 5200.01 volume 3, no 
person may have access to classified information unless that person has 
been determined to be trustworthy and access is essential to the 
accomplishment of a lawful and authorized purpose.
    (g) Persons outside the Executive Branch who are engaged in 
approved historical research projects may be granted access to 
classified information, consistent with the provisions of Executive 
Order 13526 and DoD Manual 5200.01 volume 1 provided that the OSD 
official with classification jurisdiction over that information grants 
access.
    (h) Contractors working for Executive Branch agencies may be 
allowed access to classified OSD Component files provided the 
contractors meet all the required criteria for such access as an 
historical researcher including the appropriate level of personnel 
security clearance set forth in paragraphs (a) and (i) of this section. 
No copies of OSD records and information may be released directly to 
the contractors. The Washington Headquarters Services Records and 
Declassification Division (WHS/RDD) will be responsible for ensuring 
that the contractor safeguards the documents and the information is 
only used for the project for which it was requested per section 4.1 of 
Executive Order 13526, ``Classified National Security Information,'' 
December 29, 2009.
    (i) All DoD-employed requesters, to include DoD contractors, must 
have critical nuclear weapons design information (CNWDI) to access 
CNWDI information. All other non DoD and non-Executive Branch personnel 
must have a Department of Energy-issued ``Q'' clearance to access CNWDI 
information in accordance with DoD Manual 5220.22, ``National 
Industrial Security Program Operating Manual (NISPOM),'' February 28, 
2006, as amended.
    (j) The removal of federal records and information from OSD custody 
is not authorized; this includes copies and email according to 36 CFR 
1230.10. Copies of records and information that are national security 
classified will remain under the control of the agency.
    (k) Access for FPAs is limited to records they originated, 
reviewed, signed, or received while serving as Presidential appointees, 
unless there is another basis for providing access in accordance with 
Vol 3 of DoD Manual 5200.01, ``DoD Information Security Program,'' 
February 24, 2012, as amended.
    (l) Authorization is required from all agencies whose classified 
information is, or is expected to be, in the requested files prior to 
granting approval for access. Separate authorizations for access to 
records and information maintained in OSD Component office files or at 
the federal records centers will not be required in accordance with Vol 
3 of DoD Manual 5200.01, ``DoD Information Security Program,'' February 
24, 2012, as amended.


Sec.  197.5  Responsibilities.

    (a) The Director of Administration (DA), Office of the Deputy Chief 
Management Officer (ODCMO), or designee is the approval authority for 
access to DoD information in OSD Component files and in files at the 
National Archives, Presidential libraries, and other similar 
institutions in accordance with DoD Directive 5110.4 and DoD Manual 
5230.30.
    (b) OSD Records Administrator. Under the authority, direction, and 
control of the DA, ODCMO, the OSD Records Administrator:
    (1) Exercises approval authority for research access to OSD and WHS 
Serviced Components records, information, and the Historical Research 
Program.
    (2) Maintains records necessary to process and monitor each case.
    (3) Obtains all required authorizations.
    (4) Obtains, when warranted, the legal opinion of the General 
Counsel of the

[[Page 65937]]

Department of Defense regarding the requested access.
    (5) Coordinates, with the originator, on the public release review 
on documents selected by the researchers for use in unclassified 
projects in accordance with DoD Directive 5230.09 and DoD Instruction 
5230.29, ``Security and Policy Review of DoD Information for Public 
Release'' (available at http://www.dtic.mil/whs/directives/corres/pdf/523029p.pdf).
    (6) Coordinates requests with the OSD Historian.
    (7) Provides prospective researchers the procedures necessary for 
requesting access to OSD Component files.
    (c) The WHS-serviced Components heads, when requested:
    (1) Determine whether access is for a lawful and authorized 
government purpose or in the interest of national security.
    (2) Determine whether the specific records requested are within the 
scope of the proposed historical research.
    (3) Determine the location of the requested records.
    (4) Provide a point of contact to the OSD Records Administrator.


Sec.  197.6  Procedures.

    (a) Procedures for historical researchers permanently assigned 
within the Executive Branch working on official projects. (1) In 
accordance with Sec.  197.5, the WHS-serviced Components heads, when 
requested, will:
    (i) Make a written determination that the requested access is 
essential to the accomplishment of a lawful and authorized U.S. 
Government purpose, stating whether the requested records can be made 
available. If disapproved, cite specific reasons.
    (ii) Provide the location of the requested records, including 
accession and box numbers if the material has been retired to the 
Washington National Records Center (WNRC).
    (iii) Provide a point of contact for liaison with the OSD Records 
Administrator if any requested records are located in OSD Component 
working files.
    (2) The historical researcher or requestor will:
    (i) Submit a request for access to OSD files to: OSD Records 
Administrator, WHS/Records and Declassification Division, 4800 Mark 
Center Drive, Suite 02F09-02, Alexandria, VA 22350-3100.
    (ii) All requests must be signed by an appropriate official and 
must contain:
    (A) The name(s) of the researcher(s) and any assistant(s), level of 
security clearance, and the federal agency, institute, or company to 
which the researcher is assigned.
    (B) A statement on the purpose of the project, including whether 
the final product is to be classified or unclassified.
    (C) An explicit description of the information being requested and, 
if known, the originating office, so that the identification and 
location of the information may be facilitated.
    (D) Appropriate higher authorization of the request.
    (E) Ensure researcher's security manager or personnel security 
office verifies his or her security clearances in writing to the OSD 
Records Administrator's Security Manager.
    (iii) Maintain the file integrity of the records being reviewed, 
ensuring that no records are removed and that all folders are replaced 
in the correct box in their proper order.
    (iv) Make copies of any documents pertinent to the project, 
ensuring that staples are carefully removed and that the documents are 
re-stapled before they are replaced in the folder.
    (v) Submit the completed manuscript for review prior to public 
presentation or publication to: WHS/Chief, Security Review Division, 
Office of Security Review, 1155 Defense Pentagon, Washington, DC 20301-
1155.
    (vi) If the requester is an official historian of a federal agency 
requiring access to DoD records at the National Archives facilities or 
a Presidential library, the requested must be addressed directly to the 
pertinent facility with an information copy sent to the OSD Records 
Administrator. The historian's security clearances must be verified to 
the National Archives or the Presidential library.
    (3) The use of computers, laptops, computer tablets, personal 
digital assistants, recorders, or similar devices listed in Sec.  
197.6(f) is prohibited. Researchers will use letter-sized paper 
(approximately 8\1/2\ by 11 inches), writing on only one side of the 
page. Each page of notes must pertain to only one document.
    (4) The following applies to all notes taken during research:
    (i) All notes are considered classified at the level of the 
document from which they were taken.
    (ii) Indicate at the top of each page of notes the document:
    (A) Originator.
    (B) Date.
    (C) Subject (if the subject is classified, indicate the 
classification).
    (D) Folder number or other identification.
    (E) Accession number and box number in which the document was 
found.
    (F) Security classification of the document.
    (iii) Number each page of notes consecutively.
    (iv) Leave the last 1\1/2\ inches on the bottom of each page of 
notes blank for use by the reviewing agencies.
    (v) Ensure the notes are legible, in English, and in black ink.
    (vi) All notes must be given to the staff at the end of each day. 
The facility staff will forward the notes to the OSD Records 
Administrator for an official review and release to the researcher.
    (5) The OSD Records Administrator will:
    (i) Process all requests from Executive Branch employees requesting 
access to OSD Component files for official projects.
    (ii) Determine which OSD Component originated the requested records 
and, if necessary, request an access determination from the OSD 
Component and the location of the requested records, including but not 
limited to electronic information systems, databases or accession 
number and box numbers if the hardcopy records have been retired 
offsite.
    (iii) Request authorization for access from other OSD Component as 
necessary.
    (A) Official historians employed by federal agencies may have 
access to the classified information of any other agency found in DoD 
files, as long as authorization for access has been obtained from these 
agencies.
    (B) If the requester is not an official historian, authorization 
for access must be obtained from the Central Intelligence Agency (CIA), 
National Security Council (NSC), Department of State (DOS), and any 
other non-DoD agency whose classified information is expected to be 
found in the files to be accessed.
    (iv) Make a written determination as to the researcher's 
trustworthiness based on the researcher having been issued a security 
clearance.
    (v) Compile all information on the request for access to classified 
information, to include evidence of an appropriately issued personnel 
security clearance, and forward the information to the DA, ODCMO; OSD 
Component or designee, who will make the access determination.
    (vi) Notify the researcher of the authorization and conditions for 
access to the requested records or of the denial of access and the 
reason(s).
    (vii) Ensure that all conditions for access and release of 
information for use in the project are met.
    (viii) Make all necessary arrangements for the researcher to visit 
the review location and review the requested records.

[[Page 65938]]

    (ix) Provide all requested records and information under OSD 
control in electronic formats consistent with 36 CFR part 1236. For all 
other information, a staff member will be assigned to supervise the 
researcher's copying of pertinent documents at the assigned facility.
    (x) If the records are maintained in the OSD Component's working 
files, arrange for the material to be converted to electronic format 
for the researchers to review.
    (xi) Notify the National Archives, Presidential library, or 
military facility of the authorization and access conditions of all 
researchers approved to research OSD records held in those facilities.
    (b) Procedures for the DOS Foreign Relations of the United States 
(FRUS) series. (1) The DOS historians will:
    (i) Submit requests for access to OSD files. The request should 
list the names and security clearances for the historians doing the 
research and an explicit description, including the accession and box 
numbers, of the files being requested. Submit request to: OSD Records 
Administrator, WHS/Records and Declassification Division, 4800 Mark 
Center Dr, Suite 02F09-02, Alexandria, VA 22380-2100.
    (ii) Submit to the OSD Records Administrator requests for access 
for members of the Advisory Committee on Historical Diplomatic 
Documentation to documents copied by the DOS historians for the series 
or the files reviewed to obtain the documents.
    (iii) Request that the DOS Diplomatic Security staff verify all 
security clearances in writing to the OSD Records Administrator's 
Security Manager.
    (iv) Give all document copies to the OSD Records Administrator 
staff member who is supervising the copying as they are made.
    (v) Submit any OSD documents desired for use or pages of the 
manuscript containing OSD classified information for declassification 
review prior to publication to the Chief, Security Review Division at: 
WHS/Chief, Security Review Division, Office of Security Review, 1155 
Defense Pentagon, Washington, DC 20301-1155.
    (2) The OSD Records Administrator will:
    (i) Determine the location of the records being requested by the 
DOS for the FRUS series according to Title IV of Public Law 102-138, 
``The Foreign Relations of the United States Historical Series.''
    (ii) Act as a liaison with the CIA, NSC, and any other non-OSD 
agency for access by DOS historians to records and information and such 
non-DoD agency classified information expected to be interfiled with 
the requested OSD records.
    (iii) Obtain written verification from the DOS Diplomatic Security 
staff of all security clearances, including ``Q'' clearances.
    (iv) Make all necessary arrangements for the DOS historians to 
access, review, and copy documents selected for use in their research 
in accordance with procedures in accordance with Sec.  197.6(a).
    (v) Provide a staff member to supervise document copying in 
accordance with the guidance provided in Sec.  197.6(d) of this part.
    (vi) Compile a list of the documents that were copied by the DOS 
historians.
    (vii) Scan and transfer copies to DOS in NARA an approved 
electronic format.
    (viii) Submit to the respective agency a list of CIA and NSC 
documents copied and released to the DOS historians.
    (ix) Process DOS Historian Office requests for members of the 
Advisory Committee on Historical Diplomatic Documentation with 
appropriate security clearances to have access to documents copied and 
used by the DOS historians to compile the FRUS series volumes or to the 
files that were reviewed to obtain the copied documents. Make all 
necessary arrangements for the Advisory Committee to review any 
documents that are at the WNRC.
    (c) Procedures for historical researchers not permanently assigned 
to the Executive Branch. (1) The WHS-serviced Components heads, when 
required, will:
    (i) Recommend to the DA, ODCMO, or his or her designee, approval or 
disapproval of requests to access OSD information. State whether access 
to, release, and clearance of the requested information is in the 
interest of national security and whether the information can be made 
available. If disapproval is recommended, specific reasons should be 
cited.
    (ii) Provide the location of the requested information, including 
but not limited to the office, component, information system or 
accession and box numbers for any records that have been retired to the 
WNRC.
    (iii) Provide a point of contact for liaison with the OSD Records 
Administrator if any requested records are located in OSD Component 
working files.
    (2) The OSD Records Administrator will:
    (i) Process all requests from non-Executive Branch researchers for 
access to OSD or WHS-serviced Components files. Certify via the WHS 
Security Officer that the requester has the appropriate clearances.
    (ii) Determine which OSD Component originated the requested records 
and, as necessary, obtain written recommendations for the research to 
review the classified information.
    (iii) Obtain prior authorization to review their classified 
information from the DOS, CIA, NSC, and any other agency whose 
classified information is expected to be interfiled with OSD records.
    (iv) Obtain agreement from the researcher(s) and any assistant(s) 
that they will comply with conditions governing access to the 
classified information (see Figure to Sec.  197.6).

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[GRAPHIC] [TIFF OMITTED] TR28OC15.014

    (v) If the requester is an FPA, submit a memorandum after 
completion of the actions described in this part to WHS, Human 
Resources Directorate, Security Operations Division, requesting the 
issuance (including an interim) or

[[Page 65942]]

reinstatement of an inactive security clearance for the FPA and any 
assistant and a copy of any signed form letters. The Security Division 
will contact the researcher(s) and any assistant(s) to obtain the forms 
required to reinstate or initiate the personnel security investigation 
to obtain a security clearance. Upon completion of the adjudication 
process, notify the OSD Records Administrator in writing of the 
reinstatement, issuance, or denial of a security clearance.
    (vi) Make a written determination as to the researcher's 
trustworthiness based on his or her having been issued a security 
clearance.
    (vii) Compile all information on the request for access to 
classified information, to include either evidence of an appropriately 
issued or reinstated personnel security clearance. Forward the 
information to the DA, ODCMO or designee, who will make the final 
determination on the applicant's eligibility for access to classified 
OSD or WHS-serviced Component files. If the determination is favorable, 
the DA, ODCMO or designee will then execute an authorization for 
access, which will be valid for not more than 2 years.
    (viii) Notify the researcher of the approval or disapproval of the 
request. If the request has been approved, the notification will 
identify the files authorized for review and specify that the 
authorization:
    (A) Is approved for a predetermined time period.
    (B) Is limited to the designated files.
    (C) Does not include access to records and/or information of other 
federal agencies, unless such access has been specifically authorized 
by those agencies.
    (ix) Make all necessary arrangements for the researcher to visit 
the WNRC and review any requested records that have been retired there, 
to include written authorization, conditions for the access, and a copy 
of the security clearance verification.
    (x) If the requested records are at the WNRC, make all necessary 
arrangements for the scanning of documents.
    (xi) If the requested records are maintained in OSD or WHS-serviced 
Component working files, make arrangements for the researcher to review 
the requested information and, if authorized, copy pertinent documents 
in the OSD or WHS-serviced Component's office. Provide the OSD 
Component with a copy of the written authorization and conditions under 
which the access is permitted.
    (xii) Compile a list of all the documents requested by the 
researcher.
    (xiii) Coordinate the official review on all notes taken and 
documents copied by the researcher.
    (xiv) If the classified information to be reviewed is on file at 
the National Archives, a Presidential library, or other facility, 
notify the pertinent facility in writing of the authorization and 
conditions for access.
    (3) The researcher will:
    (i) Submit a request for access to OSD Component files to OSD 
Records Administrator, WHS/Records and Declassification Division, 4800 
Mark Center Drive, Suite 02F09-02, Alexandria VA 22350-3100. The 
request must contain:
    (A) As explicit a description as possible of the information being 
requested so that identification and location of the information may be 
facilitated.
    (B) A statement as to how the information will be used, including 
whether the final project is to be classified or unclassified.
    (C) A statement as to whether the researcher has a security 
clearance, including the level of clearance and the name of the issuing 
agency.
    (D) The names of any persons who will be assisting the researcher 
with the project. If the assistants have security clearances, provide 
the level of clearance and the name of the issuing agency.
    (E) A signed copy of their agreement (see Figure) to safeguard the 
information and to authorize a review of any notes and manuscript for a 
determination that they contain no classified information. Each project 
assistant must also sign a copy of the letter.
    (F) The forms necessary to obtain a security clearance, if the 
requester is an FPA without an active security clearance. Each project 
assistant without an active security clearance will also need to 
complete these forms. If the FPA or assistant have current security 
clearances, their personnel security office must provide verification 
in writing to the OSD Records Administrator's Security Manager.
    (ii) Maintain the integrity of the files being reviewed, ensuring 
that no records are removed and that all folders are replaced in the 
correct box in their proper order.
    (iii) If copies are authorized, give all copies to the custodian of 
the files at the end of each day. The custodian will forward the copies 
of the documents to the OSD Records Administrator for a 
declassification review and release to the requester.
    (A) For records at the WNRC, if authorized, provide the requested 
information in an electronic format. Review will occur only in the 
presence of an OSD Records Administrator staff member.
    (B) Ensure that all staples are carefully removed and that the 
documents are re-stapled before the documents are replaced in the 
folder.
    (C) Submit all classified and unclassified notes made from the 
records to the custodian of the files at the end of each day of 
research. The custodian will transmit the notes to the OSD Records 
Administrator for an official review and release to the researcher at 
the completion of researcher's project.
    (D) Submit the final manuscript to the OSD Records Administrator 
for forwarding to the Chief, Security Review Division, Office of 
Security Review, for a security review and public release clearance in 
accordance with DoD Directive 5230.09 and DoD 5220.22-M, ``National 
Industrial Security Program Operating Manual (NISPOM)'' (available at 
http://www.dtic.mil/whs/directives/corres/pdf/522022m.pdf) prior to 
publication, presentation, or any other public use.
    (d) Procedures for document review for the FRUS series. (1) When 
documents are being reviewed, a WHS/RDD staff member must be present at 
all times.
    (2) The records maybe reviewed at a Presidential Library Archives 
II, College Park Maryland, WNRC, Suitland, Maryland, or an appropriate 
military facility. All requested information will remain under the 
control of the WHS/RDD staff until a public release review is 
completed, and then provided in electronic formats.
    (3) If the requested records have been reviewed in accordance with 
the automatic declassification provisions of Executive Order 13526, any 
tabs removed during the research and copying must be replaced in 
accordance with DoD Manual 5200.01 volume 2.
    (4) The number of boxes to be reviewed will determine which of the 
following procedures will apply. The WHS/RDD staff member will make 
that determination at the time the request is processed. When the 
historian completes the review of the boxes, he or she must contact the 
WHS/RDD to establish a final schedule for scanning the documents. To 
avoid a possible delay, a tentative schedule will be established at the 
time that the review schedule is set.
    (i) For 24 boxes or fewer, review and scanning will take place 
simultaneously. Estimated time to complete scanning is 7 work days.
    (ii) For 25 boxes or more, the historian will review the boxes and 
mark the

[[Page 65943]]

documents that are to be scanned using WHS/RDD authorized reproduction 
tabs.
    (iii) If the review occurs at facilities that OSD does not control 
ownership of the document, the documents must be given to the WHS/RDD 
staff member for transmittal for processing.
    (5) WHS/RDD will notify the historian when the documents are ready 
to be picked up. All administrative procedures for classified material 
transfers will be followed in accordance with DoD Manual 5200.01 volume 
1 and DoD 5220.22-M and appropriate receipt for unclassified 
information will be used.
    (e) Procedures for copying documents. (1) The records will be 
reviewed and copied at a Presidential Library, Archives II, College 
Park Maryland, WNRC, Suitland, Maryland, or an appropriate U.S. 
military facility.
    (2) If the requested records have been reviewed in accordance with 
the automatic declassification provisions of Executive Order 13526 any 
tabs removed during the research and copying must be replaced in 
accordance with DoD Manual 5200.01 volume 2.
    (3) The researcher will mark the documents that he or she wants to 
copy using WHS/RDD authorized reproduction tabs.
    (4) Any notes taken during the review process must be given to the 
WHS/RDD staff member present for transmittal to the WHS/RDD.
    (5) All reproduction charges are to the responsibility of the 
researcher.
    (6) All documents requested will be copied to an approved 
electronic format by WHS/RDD staff after official review.
    (i) The researcher will need to bring paper, staples, staple 
remover, and stapler.
    (ii) When the researcher completes the review of the boxes, he or 
she must contact the WHS/RDD to establish a final schedule for scanning 
the requested documents.
    (iii) When the documents are scanned, the WHS/RDD will notify the 
researcher.
    (iv) All questions pertaining to the review, copying, or 
transmittal of OSD documents must be addressed to the WHS/RDD staff 
member.
    (f) General guidelines for researching DoD records. DoD records and 
information are unique and often cannot be replaced should they be lost 
or damaged. In order to protect its collections and archives, the OSD 
Records Administrator has set rules that researchers must follow.
    (1) Researchers will work in room assigned. Researchers are not 
allowed in restricted areas.
    (2) Special care must be taken in handling all records. Records may 
not be leaned on, written on, folded, traced from, or handled in any 
way likely to damage them.
    (3) Records should be kept in the same order in which they are 
presented.
    (4) Items that may not be brought into these research areas 
include, but are not limited to:
    (i) Briefcases.
    (ii) Cases for equipment (laptop computers).
    (iii) Computers. This includes laptops, tablet computers, personal 
digital assistants, smart phones, and other similar devices.
    (iv) Cellular phones.
    (v) Computer peripherals including handheld document scanners and 
digital or analog cameras.
    (vi) Containers larger than 9.5'' x 6.25'' (e.g., paper bags, 
boxes, backpacks, shopping bags, and sleeping bags).
    (vii) Food, drinks (includes bottled water) and cigarettes, cigars, 
or pipes.
    (viii) Handbags or purses larger than 9.5'' x 6.25''.
    (ix) Luggage.
    (x) Musical instruments and their cases.
    (xi) Newspapers.
    (xii) Outerwear (e.g., raincoats and overcoats).
    (xiii) Pets (exception for service animals, i.e., any guide dog or 
signal dog that is trained to provide a service to a person with a 
disability).
    (xiv) Scissors or other cutting implements.
    (xv) Televisions and audio or video equipment.
    (xvi) Umbrellas.
    (5) Eating, drinking, or smoking is prohibited.

Appendix A to Part 197--Explanation of FOIA Exemptions and 
Classification Categories

    (a) Explanation of FOIA Exemptions and Classification 
Categories--(1) Explanation of FOIA Exemptions. Exemptions and their 
explanations are provided in the Table to Appendix A. See chapter 
III of 32 CFR part 286 for further information.

           Table to Appendix A--Explanation of FOIA Exemptions
------------------------------------------------------------------------
             Exemption                           Explanation
------------------------------------------------------------------------
(b)(1).............................  Applies to records and information
                                      currently and properly classified
                                      in the interest of national
                                      security.
(b)(2).............................  Applies to records related solely
                                      to the internal personnel rules
                                      and practices of an agency.
(b)(3).............................  Applies to records and information
                                      protected by another law that
                                      specifically exempts the
                                      information from public release.
(b)(4).............................  Applies to records and information
                                      on trade secrets and commercial or
                                      financial information obtained
                                      from a private source which would
                                      cause substantial competitive harm
                                      to the source if disclosed.
(b)(5).............................  Applies to records and information
                                      of internal records that are
                                      deliberative in nature and are
                                      part of the decision making
                                      process that contain opinions and
                                      recommendations.
(b)(6).............................  Applies to records or information
                                      the release of which could
                                      reasonably be expected to
                                      constitute a clearly unwarranted
                                      invasion of the personal privacy
                                      of individuals.
(b)(7).............................  Applies to records or information
                                      compiled for law enforcement
                                      purposes that could: (a)
                                      Reasonably be expected to
                                      interfere with law enforcement
                                      proceedings; (b) deprive a person
                                      of a right to a fair trial or
                                      impartial adjudication; (c)
                                      reasonably be expected to
                                      constitute an unwarranted invasion
                                      of the personal privacy of others;
                                      (d) disclose the identity of a
                                      confidential source; (e) disclose
                                      investigative techniques and
                                      procedures; or (f) reasonably be
                                      expected to endanger the life or
                                      physical safety of any individual.
(b)(8).............................  Applies to records and information
                                      for the use of any agency
                                      responsible for the regulation or
                                      supervision of financial
                                      institutions.
(b)(9).............................  Applies to records and information
                                      containing geological and
                                      geophysical information (including
                                      maps) concerning wells.
------------------------------------------------------------------------

    (2) Classification Categories. Information will not be 
considered for classification unless its unauthorized disclosure 
could reasonably be expected to cause identifiable or describable 
damage to the national security in accordance with section 1.2 of 
Executive Order 13526, and it pertains to one or more of the 
following:
    (i) Military plans, weapons systems, or operations;
    (ii) Foreign government information;
    (iii) Intelligence activities (including covert action), 
intelligence sources or methods, or cryptology;

[[Page 65944]]

    (iv) Foreign relations or foreign activities of the United 
States, including confidential sources;
    (v) Scientific, technological, or economic matters relating to 
the national security;
    (vi) U.S. Government programs for safeguarding nuclear materials 
or facilities;
    (vii) Vulnerabilities or capabilities of systems, installations, 
infrastructures, projects, plans, or protection services relating to 
the national security; or
    (viii) The development, production, or use of weapons of mass 
destruction.
    (b) [Reserved]

    Dated: October 22, 2015.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2015-27393 Filed 10-27-15; 8:45 am]
 BILLING CODE 5001-06-P