[Federal Register Volume 81, Number 45 (Tuesday, March 8, 2016)]
[Rules and Regulations]
[Pages 12007-12011]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-05149]


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

NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

36 CFR Part 1275

[FDMS No. NARA-16-0004; NARA-2016-019]
RIN 3095-AB86


Nixon Administration Presidential Historical Materials

AGENCY:  National Archives and Records Administration (NARA).

ACTION:  Direct final rule.

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

SUMMARY:  NARA is amending this regulation to update provisions in 
accord with recent developments, including completed processing of the 
five chronological tape segments, as required by section 6 of the 
Kutler settlement agreement. The changes are primarily administrative 
and focus on changes to certain access and notice provisions currently 
in the regulations, as well as minor word and sentence changes in line 
with Plain Language Act provisions. Because NARA has completed the 
requirements of the Kutler Settlement agreement, we are removing it as 
an appendix to this part.

DATES:  This rule is effective April 7, 2016, without further action, 
unless NARA receives adverse comments by March 28, 2016. If NARA 
receives an adverse comment, it will publish a timely withdrawal of the 
rule in the Federal Register.

ADDRESSES:  You may submit comments on this rule, identified by RIN 
3095-AB86, by any of the following methods:
    [ssquf] Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    [ssquf] Email: [email protected]. Include RIN 3095-AB86 
in the subject line of the message.
    [ssquf] Mail (for paper, disk, or CD-ROM submissions): Send 
comments to: Regulations Comments Desk (External Policy Program, 
Strategy & Performance Division (SP)); Suite 4100; National Archives 
and Records Administration; 8601 Adelphi Road; College Park, MD 20740-
6001.

[[Page 12008]]

    [ssquf] Hand delivery or courier: Deliver comments to front desk at 
8601 Adelphi Road, College Park, MD, addressed to: Regulations Comments 
Desk, External Policy Program; Suite 4100.

FOR FURTHER INFORMATION CONTACT:  For information or questions about 
the regulation and the comments process, contact Kimberly Keravuori, 
External Policy Program Manager, by email at 
[email protected], or by telephone at 301.837.3151.

SUPPLEMENTARY INFORMATION:

Regulatory Analysis

Review Under Executive Orders 12866 and 13563

    Executive Order 12866, Regulatory Planning and Review, 58 FR 51735 
(September 30, 1993), and Executive Order 13563, Improving Regulation 
and Regulation Review, 76 FR 23821 (January 18, 2011), 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, distributive impacts, and equity). 
This rule is not ``significant'' under section 3(f) of Executive Order 
12866 because it proposes to make only minor administrative revisions. 
The Office of Management and Budget (OMB) has reviewed this regulation.

Review Under the Regulatory Flexibility Act (5 U.S.C. 601, et seq.)

    This review requires an agency to prepare an initial regulatory 
flexibility analysis and publish it when the agency publishes the rule. 
This requirement does not apply if the agency certifies that the rule 
will not, if promulgated, have a significant economic impact on a 
substantial number of small entities (5 U.S.C. 603). NARA certifies, 
after review and analysis, that this rule will not have a significant 
adverse economic impact on small entities because it makes only minor 
administrative changes to the rule and the rule governs how people may 
access these records, which does not impact small entities.

Review Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.)

    This rule does not contain information collection activities that 
are subject to review and approval by the Office of Management and 
Budget (OMB) under the Paperwork Reduction Act.

Review Under Executive Order 13132, Federalism, 64 FR 43255 (August 4, 
1999)

    Review under Executive Order 13132 requires that agencies review 
regulations for Federalism effects on the institutional interest of 
states and local governments, and, if the effects are sufficiently 
substantial, prepare a Federal assessment to assist senior policy 
makers. This rule will not have any direct effects on State and local 
governments within the meaning of the Executive Order. Therefore, this 
regulation does not require a Federalism assessment.

List of Subjects in 36 CFR Part 1275

    Access, Information, Presidential records.

    For the reasons stated in the preamble, NARA revises 36 CFR part 
1275 to read as follows:

PART 1275--PRESERVATION AND PROTECTION OF AND ACCESS TO THE 
PRESIDENTIAL HISTORICAL MATERIALS OF THE NIXON ADMINISTRATION

Sec.
Subpart A--General Provisions
1275.1 Scope and purpose.
1275.14 Legal custody.
1275.16 Definitions.
Subpart B--Preserving and Protecting Materials
1275.20 Responsibility.
1275.22 Security.
Subpart C--Special Access to Materials
1275.30 Access by designees or assignees of former President Nixon.
1275.32 Access by Federal agencies.
1275.34 Access for use in judicial proceedings.
Subpart D--Public Access to Materials
1275.42 Processing.
1275.44 Segregating and reviewing.
1275.46 Transfer of private or personal materials.
1275.48 Restriction of materials related to abuses of governmental 
power.
1275.50 Restriction of materials of general historical significance 
unrelated to abuses of governmental power.
1275.52 Periodic review of restrictions.
1275.54 Appeal of restrictions.
1275.56 Deleting restricted portions.
1275.58 Requests for declassification.
1275.60 Freedom of information Act (FOIA) requests.

    Authority:  44 U.S.C. 2104, 2111 note.

Subpart A--General Provisions


Sec.  1275.1  Scope and purpose.

    This part implements title I of the Presidential Recordings and 
Materials Preservation Act (PRMPA, 44 U.S.C. 2111 note) with respect to 
the Presidential historical materials of the Richard M. Nixon 
Administration (covering the period beginning January 20, 1969, and 
ending August 9, 1974). This part applies to all Nixon Presidential 
historical materials in the custody of the Archivist of the United 
States pursuant to the PRMPA, and prescribes policies and procedures by 
which the National Archives and Records Administration (NARA) 
preserves, protects, and provides access to them.


Sec.  1275.14  Legal custody.

    The Archivist of the United States has or will obtain exclusive 
legal custody and control of all Presidential historical materials of 
the Nixon Administration held pursuant to the provisions of title I of 
the Presidential Recordings and Materials Preservation Act.


Sec.  1275.16  Definitions.

    As used in part 1275, the following definitions apply:
    (a) Presidential historical materials. The term Presidential 
historical materials (also referred to as historical materials and 
materials) means all papers, correspondence, documents, pamphlets, 
books, photographs, films, motion pictures, sound and video recordings, 
machine-readable media, plats, maps, models, pictures, works of art, 
and other objects or materials made or received by former President 
Richard M. Nixon or by members of his staff in connection with his 
constitutional or statutory powers or duties as President and retained 
or appropriate for retention as evidence of or information about these 
powers or duties. Included in this definition are materials relating to 
the political activities of former President Nixon or members of his 
staff, as well as matters relating to President Nixon's private 
political associations that have no connection with the constitutional 
or statutory powers or duties of the President or a member of his 
staff. Excluded from this definition are documentary materials of any 
type that are determined to be the official records of an agency of the 
Government; private or personal materials; stocks of publications, 
processed documents, and stationery; and extra copies of documents 
produced only for convenience or reference when they are clearly so 
identified.
    (b) Private or personal materials. The term private or personal 
materials means those papers and other documentary or commemorative 
materials in any physical form relating solely to the personal and 
family issues of President Nixon, his family, and his

[[Page 12009]]

friends and that have no connection with his constitutional or 
statutory powers, or duties of the President or any member of the 
President's staff. (Materials relating to private political 
associations, including matters relating to the Republican Party and 
election campaigns, that have been donated to NARA by the Richard Nixon 
Library and Birthplace Foundation pursuant to a 2007 deed of gift are 
excluded from this definition.)
    (c) Abuses of governmental power popularly identified under the 
generic term ``Watergate.'' The term abuses of governmental power 
popularly identified under the generic term ``Watergate'' (also 
referred to as abuses of governmental power), means those alleged acts, 
whether or not corroborated by judicial, administrative, or legislative 
proceedings, which allegedly were conducted, directed, or approved by 
President Richard M. Nixon, his staff, or persons associated with him 
in his constitutional or statutory functions as President, or as 
political activities directly relating to or having a direct effect 
upon those functions, and which:
    (1) Were within the purview of the charters of the Senate Select 
Committee on Presidential Campaign Activities or the Watergate Special 
Prosecution Force; or
    (2) Are described in the Articles of Impeachment adopted by the 
House Committee on the Judiciary and reported to the House of 
Representatives for consideration in House Report No. 93-1305.
    (d) General historical significance. The term general historical 
significance means having administrative, legal, research, or other 
historical value as evidence of or information about the constitutional 
or statutory powers or duties of the President, which an archivist has 
determined is of a quality sufficient to warrant the retention by the 
United States of materials so designated.
    (e) Archivist. The term Archivist means the Archivist of the United 
States or the Archivist's designated agent. The term archivist means an 
employee of NARA who, by education or experience, is specially trained 
in archival science.
    (f) Agency. The term agency means an executive department, military 
department, independent regulatory or non-regulatory agency, Government 
corporation, Government-controlled corporation, or other establishment 
in the executive branch of the Government including the Executive 
Office of the President. For purposes of Sec.  1275.32 only, the term 
agency also includes the White House Office.
    (g) Staff. The term staff means those people whose salaries were 
paid fully or partially from appropriations to the White House Office 
or Domestic Council; who were detailed on a non-reimbursable basis to 
the White House Office or Domestic Council from any other Federal 
activity; who otherwise were designated as assistants to the President, 
in connection with their service in that capacity; or whose files were 
sent to the White House Central Files Unit or Special Files Unit, for 
purposes of those files.
    (h) Classified national security information. The term classified 
national security information means any matter which is designated as 
classified under applicable law, or under E.O. 13526, Classified 
National Security Information (December 29, 2009), or its successors.

Subpart B--Preserving and Protecting Materials


Sec.  1275.20  Responsibility.

    The Archivist is responsible for the preservation and protection of 
the Nixon Presidential historical materials.


Sec.  1275.22  Security.

    The Archivist is responsible for providing adequate security for 
the Presidential historical materials, and for establishing access 
procedures.

Subpart C--Special Access to Materials


Sec.  1275.30  Access by designees or assignees of former President 
Nixon.

    In accordance with subpart B of this part, former President Richard 
M. Nixon's designated or assigned agent(s) at all times have access to 
Presidential historical materials in the custody and control of the 
Archivist.


Sec.  1275.32  Access by Federal agencies.

    In accordance with subpart B of this part, any Federal agency in 
the executive branch has access for lawful Government use to the 
Presidential historical materials in the custody and control of the 
Archivist to the extent necessary for ongoing Government business. The 
Archivist will consider only written requests from heads of agencies or 
departments, deputy heads of agencies or departments, or heads of major 
organizational components or functions within agencies or departments.


Sec.  1275.34  Access for use in judicial proceedings.

    In accordance with subpart B of this part, and subject to any 
rights, defenses, or privileges which the Federal Government or any 
person may invoke, the Presidential historical materials in the custody 
and control of the Archivist will be made available for use in any 
judicial proceeding and are subject to subpoena or other lawful 
process.

Subpart D--Public Access to Materials


Sec.  1275.42  Processing.

    The archivists will conduct archival processing of all closed 
materials to prepare them for public access. In processing the 
materials, the archivists will give priority to segregating private or 
personal materials and transferring them to their proprietary or 
commemorative owners in accordance with Sec.  1275.46. In conducting 
such archival processing, the archivists will restrict portions of the 
materials pursuant to Sec. Sec.  1275.48 and 1275.50. All materials 
will be prepared for public access and released subject to restrictions 
or outstanding claims or petitions seeking such restrictions.


Sec.  1275.44  Segregating and reviewing.

    (a) During the processing period described in Sec.  1275.42, the 
Archivist will assign archivists to segregate private or personal 
materials, as defined in Sec.  1275.16(b). The archivists have sole 
responsibility for the initial review and determination of private or 
personal materials. At all times when the archivists or other 
authorized officials have access to the materials in accordance with 
these regulations, they will take all reasonable steps to minimize the 
degree of intrusion into private or personal materials. Except as 
provided in these regulations, the archivists or other authorized 
officials will not disclose to any person private or personal or 
otherwise restricted information learned as a result of their 
activities under these regulations.
    (b) During the processing period described in Sec.  1275.42, the 
Archivist will assign archivists to segregate materials neither 
relating to abuses of governmental power, as defined in Sec.  
1275.16(c), nor otherwise having general historical significance, as 
defined in Sec.  1275.16(d). The archivists have sole responsibility 
for the initial review and determination of those materials which are 
not related to abuses of governmental power and do not otherwise have 
general historical significance.
    (c) During the processing period described in Sec.  1275.42, the 
Archivist will assign archivists to segregate materials subject to 
restriction, as prescribed in Sec. Sec.  1275.48 and 1275.50. The 
archivists have sole responsibility for the initial review and 
determination

[[Page 12010]]

of materials that should be restricted. The archivists insert a 
notification of withdrawal at the front of the file folder or container 
affected by the removal of restricted material. The notification 
includes a brief description of the restricted material and the basis 
for the restriction as prescribed in Sec. Sec.  1275.48 and 1275.50.


Sec.  1275.46  Transfer of private or personal materials.

    (a) The Archivist will transfer sole custody and use of those 
materials determined to be private or personal, or to be neither 
related to abuses of governmental power nor otherwise of general 
historical significance, to Richard Nixon's heirs or to the former 
staff member who created the materials having primary proprietary or 
commemorative interest in the materials, or to their heir, designee, or 
assignee. Such materials include all segments of the original tape 
recordings that have been or will be identified as private or personal.
    (b) Materials determined to be neither related to abuses of 
governmental power nor otherwise of general historical significance, 
and transferred pursuant to paragraph (a) of this section, will upon 
such transfer no longer be deemed Presidential historical materials as 
defined in Sec.  1275.16(a).


Sec.  1275.48  Restriction of materials related to abuses of 
governmental power.

    (a) The Archivist will restrict access to materials determined 
during the processing period to relate to abuses of governmental power, 
as defined in Sec.  1275.16(c), when:
    (1) Ordered by a court;
    (2) The release of the materials would violate a Federal statute; 
or
    (3) The materials are authorized under criteria established by 
executive order to be kept secret in the interest of national defense 
or foreign policy, provided that any question as to whether materials 
are in fact properly classified or are properly subject to 
classification will be resolved in accordance with the applicable 
executive order or as otherwise provided by law.
    (b) However, the Archivist may waive these restrictions when:
    (1) The requester is engaged in a historical research project; or
    (2) The requester is a former Federal official who had been 
appointed by President Nixon to a policymaking position and who seeks 
access to only those classified materials which he originated, 
reviewed, signed, or received while in public office; and
    (3) The requester has a security clearance equivalent to the 
highest degree of national security classification that may be 
applicable to any of the materials to be examined; and
    (4) The Archivist has determined that the heads of agencies having 
subject matter interest in the material do not object to the granting 
of access to the materials; and
    (5) The requester has signed a statement, which declares that the 
requester will not publish, disclose, or otherwise compromise the 
classified material to be examined and that the requester has been made 
aware of Federal criminal statutes which prohibit the compromise or 
disclosure of this information.
    (c) The Archivist will restrict access to any portion of materials 
determined to relate to abuses of governmental power when the release 
of those portions would constitute a clearly unwarranted invasion of 
personal privacy or constitute libel of a living person: Provided, That 
if material related to an abuse of governmental power refers to, 
involves, or incorporates such personal information, the Archivist will 
make available such personal information, or portions thereof, if such 
personal information, or portions thereof, is essential to an 
understanding of the abuses of governmental power.


Sec.  1275.50  Restriction of materials of general historical 
significance unrelated to abuses of governmental power.

    (a) The Archivist will restrict access to materials determined 
during the processing period to be of general historical significance, 
but not related to abuses of governmental power, under one or more of 
the circumstances specified in Sec.  1275.48(a).
    (b) The Archivist will also restrict access to materials of general 
historical significance, but not related to abuses of governmental 
power, when the release of these materials would:
    (1) Disclose trade secrets and commercial or financial information 
obtained from a person and privileged or confidential; or
    (2) Constitute a clearly unwarranted invasion of personal privacy 
of a living person; or
    (3) Disclose investigatory materials compiled for law enforcement 
purposes, but only when the disclosure of such records would:
    (i) Interfere with enforcement proceedings;
    (ii) Deprive a person of a right to a fair trial or an impartial 
adjudication;
    (iii) Constitute an unwarranted invasion of personal privacy;
    (iv) Disclose the identity of a confidential source who furnished 
information on a confidential basis, and in the case of a record 
compiled by a criminal law enforcement authority in the course of a 
criminal investigation or by an agency conducting a lawful national 
security intelligence investigation, confidential information furnished 
by a confidential source;
    (v) Disclose techniques and procedures for law enforcement 
investigations or prosecutions, or disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law; or
    (vi) Endanger the life or physical safety of any individual.


Sec.  1275.52  Periodic review of restrictions.

    The Archivist periodically will assign archivists to review 
materials placed under restriction by Sec.  1275.48 or Sec.  1275.50 
and to make available for public access those materials which, with the 
passage of time or other circumstances, no longer require restriction.


Sec.  1275.54  Appeal of restrictions.

    The Nixon Presidential Library controls the Nixon Presidential 
historical materials. Upon petition of any researcher who claims in 
writing to the library director that the restriction of specified 
materials is inappropriate and should be removed, the archivists will 
submit the pertinent materials, or representative examples of them, to 
the library director. The library director reviews the restricted 
materials, and consults with interested Federal agencies as necessary. 
To the extent these consultations require the transfer of copies of 
materials to Federal officials outside NARA, the library director will 
comply with the requirements of Sec.  1275.32. As necessary and 
practicable, the library director will also seek the views of any 
person whose rights or privileges might be adversely affected by a 
decision to open the materials. The library director prepares a final 
written decision as to the continued restriction of all or part of the 
pertinent materials. The library director's decision constitutes the 
final administrative determination. The library director will notify 
the petitioner and other interested people of the final administrative 
determination within 60 calendar days following receipt of such 
petition.


Sec.  1275.56  Deleting restricted portions.

    The Archivist will provide a requester any reasonably segregable 
portions of otherwise restricted materials after NARA deletes the 
portions which are restricted under Sec.  1275.48 or Sec.  1275.50.

[[Page 12011]]

Sec.  1275.58  Requests for declassification.

    Challenges to the classification and requests for the 
declassification of national security classified materials are governed 
by the provisions of 36 CFR part 1256, subpart E, as that may be 
amended from time to time.


Sec.  1275.60  Freedom of Information Act (FOIA) requests.

    (a) The Archivist will process Freedom of Information Act (FOIA) 
requests for access to only those materials within the Presidential 
historical materials that are identifiable by an archivist as records 
of an agency as defined in Sec.  1275.16(f). The Archivist will process 
these requests in accordance with the FOIA regulations set forth in 36 
CFR part 1250, NARA Records Subject to FOIA.
    (b) In order to allow NARA archivists to devote as much time and 
effort as possible to the processing of materials for general public 
access, the Archivist will not process those FOIA requests where the 
requester can reasonably obtain the same materials through a request 
directed to an agency (as defined in Sec.  1275.16(f)), unless the 
requester demonstrates that he or she has unsuccessfully sought access 
from that agency or its successor in law or function.

    Dated: March 2, 2016.
David S. Ferriero,
Archivist of the United States.
[FR Doc. 2016-05149 Filed 3-7-16; 8:45 am]
 BILLING CODE 7515-01-P