Federal Register: June 1, 2000 (Volume 65, Number 106)
Rules and Regulations
Page 34973-34977
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NATIONAL ARCHIVES AND RECORDS ADMINISTRATION
36 CFR Part 1260
RIN 3095-AA67
Records Declassification
AGENCY: National Archives and Records Administration (NARA).
ACTION: Final rule.
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SUMMARY: This rule updates NARA regulations related to declassification
of national security-classified information in records transferred to
NARA's legal custody. It incorporates changes resulting from Executive
Order 12958, Classified National Security Information, including:
Revising the timeline for systematic review from 30 years to 25
years;
Redefining declassification responsibilities to reflect the E.O.
12958 requirement for agencies to maintain systematic review programs;
Adding requirements for agencies that elect to review their
accessioned records at NARA;
Adding requirements for loaning records to agencies for
declassification review; and Revising requirements for reclassification
of information to meet the provisions of E.O. 12958;
The rule affects members of the public who file mandatory review
requests and Federal agencies.
DATES: This rule is effective July 1, 2000.
FOR FURTHER INFORMATION CONTACT: Nancy Allard or Shawn Morton at 301-
713-7360.
SUPPLEMENTARY INFORMATION: NARA published a notice of proposed
rulemaking on February 17, 2000, at 65 FR 8077. The comment period
ended on April 17, 2000. NARA received comments from 9 Federal agencies
and 1 professional organization. Of the comments from the Federal
agencies, 3 concurred with the proposed rule, 5 recommended
clarifications or changes and 1 offered ``no comment.''
Following is a summary of the comments and a discussion of the
changes that we made to the proposed rule to address those comments.
Automatic Declassification
One commenter stated that we should add a provision to account for
the automatic declassification provisions in section 3.4 of Executive
Order 12958. Executive Order 13142, issued on November 19, 1999,
amended Executive Order 12958 section 3.4 to delay the application of
automatic declassification for records accessioned into NARA until
April 17, 2003. We have made appropriate reference to the automatic
declassification requirements in the regulation.
As we reviewed Secs. 1260.20 and 1260.40 to incorporate the
reference, we further clarified these sections by removing the
distinctions between records that are older and younger than 25 years
to focus on the responsibilities for declassifying the information.
Restricted Data and Formerly Restricted Data
One Federal agency commented that the regulation does not address
declassification responsibilities for nuclear-related information
classified as Restricted Data and Formerly Restricted Data. This type
of information is classified under the Atomic Energy Act of 1954, as
amended, and is exempt from all requirements under Executive Order
12958. We added the language suggested by the commenter as
Sec. 1260.28, which specifies that only designated individuals in the
Department of Energy may declassify records containing Restricted Data,
and that only designated officials within the Department of Defense or
the Department of Energy may declassify Formerly Restricted Data.
Mandatory Review Requests for White House Originated Information
The National Security Council recommended deleting Sec. 1260.62
which explains how agencies should handle mandatory review requests for
White House originated materials from a past administration that are in
their custody. This section would have required agencies to forward the
request, copies of the requested records, and a recommendation to grant
or deny the request to the Archivist. The Archivist would then decide
whether or not to declassify the information. The commenter noted that
Federal agencies do not segregate White House originated information in
their custody from their Federal records, and, therefore, follow the
process for responding to Mandatory Review and FOIA requests for
Federal records. We have accepted the comment after consulting with the
Information Security Oversight Office.
Referring Documents Back to Agencies for Declassification
Determinations
One Federal agency commented that Sec. 1260.50 should be modified
in several ways. The commenter pointed out that at times, the
association of an agency with a particular document can be in itself a
classified fact requiring protection. NARA currently does not tell
requesters which agencies it has referred documents to. We have
modified Sec. 1260.50(d) according to the commenter's suggestion to
clarify this existing practice.
The agency also offered alternative language in this section to
clarify when NARA would send a document back to an agency for
declassification. The commenter suggested that we insert the phrase,
``Where the originating agency has not provided systematic
declassification guidance, or where there is a question regarding the
declassification guidance provided'' at the beginning of the second
sentence in Sec. 1260.50(b). We have accepted this comment with
modification. We cannot specify that we will refer the information only
if we are missing guidance from the originating agency. When NARA
declassifies information using agency systematic guidance, we must use
the guidance of every agency that has equities in the information. If
we do not have guidance from an agency that has equities in the
information, even when it is not the originating agency, we review the
information using the guidance that we do have, and then refer the
information to the agency(ies) for which we do not have guidance for
final action.
Appeals
We received a comment that NARA should act as the recipient for all
appeals for adverse declassification decisions from other agencies. The
[[Page 34974]]
commenter indicated that this would be more efficient and consistent,
and it would also allow, in the case of multiple referrals, NARA to act
as a central point of contact for the appeal. If an agency's
association with a particular document is classified, the commenter
argued that this would provide a mechanism for protecting that fact.
NARA does not have the resources to handle all appeals for the
entire Executive branch. In addition, the public would perceive this as
an attempt to delay the appeals process by inserting another layer of
bureaucracy into it. In order to address the commenter's concern of
masking the association of particular agencies with particular
information, NARA will send to the requester whatever appeal contact
information the agency desires. Agencies may request other agencies to
act as a contact point for appeals.
Responsibility for Declassification of Intelligence and
Cryptological Information
A Federal agency commented that Sec. 1260.26 improperly states that
the Central Intelligence Agency (CIA) is ``responsible'' for
declassifying information on intelligence sources and methods, and that
the Secretary of Defense is ``responsible'' for declassifying
information on cryptography. Sections 3.5(c) and 3.6(d) of Executive
Order 12958 state that ``the Director of Central Intelligence may
establish special procedures for the declassification of information
pertaining to intelligence.'' It does not state that the CIA is the
sole responsible entity for this action. The Executive Order also
states that ``the Secretary of Defense may establish special procedures
for declassification of cryptologic information.'' We have modified the
regulation to more closely match the Executive Order.
This rule is not a significant regulatory action for the purposes
of Executive Order 12866. As required by the Regulatory Flexibility
Act, it is hereby certified that this rule will not have a significant
impact on a substantial number of small entities because it applies to
Federal agencies. This rule does not have any federalism implications.
List of Subjects in 36 CFR Part 1260
Archives and records.
For the reasons stated in the preamble, the National Archives and
Records Administration revises 36 CFR Part 1260 to read as follows:
SUBCHAPTER D--DECLASSIFICATION
PART 1260--DECLASSIFICATION OF NATIONAL SECURITY INFORMATION
Subpart A--General Information
Sec.
1260.1 What is the purpose of this regulation?
1260.2 Definitions.
1260.4 What NARA holdings are covered by this regulation?
1260.6 What is the authority for this regulation?
Subpart B--Responsibilities
1260.20 Who is responsible for the declassification of national
security-classified Executive Branch information that has been
accessioned by NARA?
1260.22 Who is responsible for the declassification of national
security-classified White House originated information in NARA's
holdings?
1260.24 Who is responsible for declassification of foreign
government information in NARA's holdings?
1260.26 Who is responsible for issuing special procedures for
declassification of information concerning intelligence or
cryptography in NARA's holdings?
1260.28 Who is responsible for declassifying records that contain
nuclear-related information classified under the Atomic Energy Act
of 1954, as amended, commonly referred to as Restricted Data and
Formerly Restricted Data?
Subpart C--Systematic Review
1260.40 How will records at NARA be reviewed for declassification?
1260.42 What are the procedures for agency personnel to review
records at a NARA facility?
1260.44 Will NARA loan accessioned records back to the agencies to
conduct declassification review?
Subpart D--Mandatory Review
Executive Branch Records
1260.50 What procedures does NARA follow when it receives a
request for Executive Branch records under mandatory review?
1260.52 What are agency responsibilities when it receives a
mandatory review request forwarded by NARA?
1260.54 What is the appeal process when a mandatory review request
for Executive Branch information is denied?
White House Originated Information
1260.56 Is White House originated information subject to mandatory
review?
1260.58 What are the procedures for requesting a mandatory review
of White House originated information?
1260.60 What are agency responsibilities with regard to mandatory
review requests for White House originated information?
1260.62 What is the appeal process when a mandatory review request
for White House originated information is denied?
Subpart E--Reclassification
1260.70 Can Executive Branch information be reclassified?
1260.72 Can White House information be reclassified?
1260.74 Can NARA appeal a request to reclassify information?
Authority: 44 USC 2101 to 2118; 5 USC 552; EO 12958, 60 FR19825,
3 CFR, 1995 Comp., p.333; EO 13142, 64 FR 66089, 3 CFR, 1999 Comp.,
p. 236.
Subpart A--General Information
Sec. 1260.1 What is the purpose of this regulation?
This regulation defines the responsibilities of NARA and other
Federal agencies for declassification of national security classified
information in the holdings of NARA. This part also provides procedures
for conducting systematic reviews of NARA holdings and for processing
mandatory review requests for NARA holdings. Regulations for
researchers wishing to request Federal records under the Freedom of
Information Act (FOIA) or under mandatory review can be found in 36 CFR
1254.38.
Sec. 1260.2 Definitions.
(a) Systematic declassification review means the review for
declassification of national security-classified information contained
in records that have been determined by the Archivist of the United
States to have permanent value in accordance with 44 U.S.C. 2107.
(b) Mandatory declassification review means the review for
declassification of national security-classified information in
response to a request for declassification that meets the requirements
under section 3.6 of Executive Order 12958.
Sec. 1260.4 What NARA holdings are covered by this regulation?
The NARA holdings covered by this regulation are records legally
transferred to the National Archives and Records Administration (NARA),
including Federal records accessioned into the National Archives of the
United States; Presidential records; Nixon Presidential materials; and
donated historical materials in Presidential Libraries and in the
National Archives of the United States.
Sec. 1260.6 What is the authority for this regulation?
Declassification of and public access to national security
information is governed by Executive Order 12958 of April 17, 1995 (3
CFR 1995 Comp., p. 333), Executive Order 13142 of November 19, 1999 (3
CFR 1999 Comp., p. 236), and by the Information Security
[[Page 34975]]
Oversight Office Implementing Directive for Executive Order 12958 (32
CFR Part 2001).
Subpart B--Responsibilities
Sec. 1260.20 Who is responsible for the declassification of national
security-classified Executive Branch information that has been
accessioned by NARA?
(a) Consistent with the requirements of section 3.4 of Executive
Order 12958 and Executive Order 13142 on automatic declassification,
the originating agency is responsible for its declassification, but may
delegate declassification authority to NARA in the form of
declassification guidance.
(b) If an agency does not delegate declassification authority to
NARA, the agency is responsible for reviewing the records prior to the
date that the records become eligible for automatic declassification.
(c) NARA is responsible for the declassification of records of a
defunct agency that has no successor in function. NARA will consult
with agencies having primary subject matter interest before making
declassification determinations.
Sec. 1260.22 Who is responsible for the declassification of national
security-classified White House originated information in NARA's
holdings?
(a) NARA is responsible for declassification of information from a
previous administration that was originated by:
(1) The President;
(2) The White House staff;
(3) Committees, commissions, or boards appointed by the President;
or
(4) Others specifically providing advice and counsel to the
President or acting on behalf of the President.
(b) NARA will consult with agencies having primary subject matter
interest before making declassification determinations.
Sec. 1260.24 Who is responsible for declassification of foreign
government information in NARA's holdings?
(a) The agency that received or classified the information is
responsible for its declassification.
(b) In the case of a defunct agency, NARA is responsible for
declassification of foreign government information in its holdings and
will consult with the agencies having primary subject matter interest
before making declassification determinations.
Sec. 1260.26 Who is responsible for issuing special procedures for
declassification of information concerning intelligence or cryptography
in NARA's holdings?
(a) The Director of Central Intelligence is responsible for issuing
special procedures for declassification of information concerning
intelligence activities and intelligence sources and methods.
(b) The Secretary of Defense is responsible for issuing special
procedures for declassification of information concerning cryptography.
Sec. 1260.28 Who is responsible for declassifying records that contain
nuclear-related information classified under the Atomic Energy Act of
1954, as amended, commonly referred to as Restricted Data and Formerly
Restricted Data?
Only designated officials within the Department of Energy may
declassify records containing Restricted Data. Records containing
Formerly Restricted Data may only be declassified by designated
individuals within the Department of Energy or by appropriate
individuals in the Department of Defense.
Subpart C--Systematic Review
Sec. 1260.40 How will records at NARA be reviewed for
declassification?
(a) Consistent with the requirements of section 3.4 of Executive
Order 12958 and Executive Order 13142 on automatic declassification,
NARA staff will systematically review for declassification records for
which the originating agencies have provided declassification guidance.
The originating agency must review records for which it has not
provided declassification guidance.
(b) Agencies may choose to review their own records that have been
accessioned by NARA by sending personnel to the NARA facility where the
records are located to conduct the declassification review.
Sec. 1260.42 What are the procedures for agency personnel to review
records at a NARA facility?
(a) NARA will make the records available to properly cleared agency
reviewers. NARA will provide space for agency reviewers in the facility
in which the records are located as space is available. NARA will also
provide training and guidance for agency reviewers on the proper
handling of archival materials.
(b) Agency reviewers must:
(1) Follow NARA security regulations and abide by NARA procedures
for handling archival materials;
(2) Follow NARA procedures for identifying and marking documents
that cannot be declassified; and
(3) Obtain permission from NARA before bringing into a NARA
facility computers, scanners, tape recorders, microfilm readers and
other equipment necessary to view or copy records. NARA will not allow
the use of any equipment that poses an unacceptable risk of damage to
archival materials. See 36 CFR 1254.26 and 1254.27 for more information
on acceptable equipment.
Sec. 1260.44 Will NARA loan accessioned records back to the agencies
to conduct declassification review?
In rare cases, when agency reviewers cannot be accommodated at a
NARA facility, NARA will consider a request to loan records back to an
originating agency in the Washington, DC, metropolitan area for
declassification review. Each request will be judged on a case-by-case
basis. The requesting agency must:
(a) Ensure that the facility in which the documents will be stored
and reviewed passes a NARA inspection to ensure that the facility
maintains:
(1) The correct archival environment for the storage of permanent
records; and
(2) The correct security conditions for the storage and handling of
national security-classified materials.
(b) Meet NARA requirements for ensuring the safety of the records;
(c) Abide by NARA procedures for handling of archival materials;
(d) Identify and mark documents that cannot be declassified in
accordance with NARA procedures; and
(e) Obtain NARA approval of any equipment such as scanners,
copiers, or cameras to ensure that they do not pose an unacceptable
risk of damage to archival materials.
Subpart D--Mandatory Review
Executive Branch Records
Sec. 1260.50 What procedures does NARA follow when it receives a
request for Executive Branch records under mandatory review?
(a) If the requested records are less than 25 years old, NARA
refers copies of the records to the originating agency and to agencies
that have equities in the information for declassification review.
Agencies may also send personnel to a NARA facility where the records
are located to conduct a declassification review, or may delegate
declassification authority to NARA in the form of declassification
guidance.
(b) If the requested records are more than 25 years old, NARA will
review the
[[Page 34976]]
records using systematic declassification guidance provided by the
originating agency and agencies having equities in the information. If
the originating agency, or agencies having equities in the information
have not provided systematic declassification guidance, or if there is
a question regarding the guidance, NARA will refer any requested
documents it is unable to declassify to the appropriate agency or
agencies for declassification determinations.
(c) When the records were originated by a defunct agency that has
no successor agency, NARA is responsible for making the
declassification determinations, but will consult with agencies having
primary subject matter interest.
(d) In every case, NARA will acknowledge receipt of the request and
inform the requester of the action taken. If additional time is
necessary to make a declassification determination on material for
which NARA has delegated authority, NARA will tell the requester how
long it will take to process the request. NARA will also tell the
requester if part or all of the requested information is referred to
other agencies for declassification review, subject to section 3.7(a)
of Executive Order 12958.
Sec. 1260.52 What are agency responsibilities when it receives a
mandatory review request forwarded by NARA?
(a) The agency must make a determination within 180 calendar days
after receiving the request or inform NARA of the additional time
needed to process the request. If an initial decision has not been made
on the request within 1 year after the original date of the request,
the requester may appeal to the Interagency Security Classification
Appeals Panel (ISCAP).
(b) The agency must notify NARA of any other agency to which it
forwards the request in those cases requiring the declassification
determination of another agency.
(c) The agency must return to NARA a complete copy of each
declassified document with the agency determination. If documents
cannot be declassified in their entirety, the agency must return to
NARA a copy of the documents with those portions that must be withheld
clearly marked.
(d) The agency must also furnish, for transmission to the
requester, a brief statement of the reasons the requested information
cannot be declassified and a statement of the requester's right to
appeal the decision, along with the procedures for filing an appeal.
The agency must also supply for transmission to the requester a contact
name and title and the address where the appeal must be sent.
Sec. 1260.54 What is the appeal process when a mandatory review
request for Executive Branch information is denied?
(a) If an agency denies a declassification request under mandatory
review, the requester may appeal directly to the appeal authority at
that agency.
(b) If requested by the agency, NARA will supply the agency with:
(1) Copies of NARA's letter to the requester transmitting the
agency denial; and
(2) Copies of any documents denied in part that were furnished to
the requester.
(c) The agency appeal authority must notify NARA in writing of the
final determination and of the reasons for any denial.
(d) The agency must furnish to NARA a complete copy of any document
they released to the requester only in part, clearly marked to indicate
the portions that remain classified. NARA will give the requester a
copy of any notifications from the agencies that describe what
information has been denied and what the requesters appeal rights are.
(e) In the case of an appeal for information originated by a
defunct agency, NARA will notify the requester of the results and
furnish copies of documents declassified in full and in part. If the
request cannot be declassified in its entirety, NARA will send the
requester a brief statement of why the requested information cannot be
declassified and a notice of the right to appeal the determination
within 60 calendar days to the Deputy Archivist of the United States,
National Archives and Records Administration, 8601 Adelphi Road,
College Park, MD 20740-6001.
White House Originated Information
Sec. 1260.56 Is White House originated information subject to
mandatory review?
White House originated information of former Presidents is subject
to mandatory review consistent with the Presidential Records Act, 44
U.S.C. 2203, the Presidential Recordings and Materials Preservation
Act, 44 U.S.C. 2111 note, and any deeds of gift that pertain to the
materials or the respective Presidential administrations pursuant to 44
U.S.C. 2107 and 2111. Unless precluded by such laws or agreements,
White House originated information is subject to mandatory or an
equivalent agency review for current classification when the materials
have been archivally processed or can be identified with specificity.
However, records covered by the Presidential Records Act are closed for
5 years after the end of the Presidential administration, or until an
integral file segment has been archivally processed, whichever occurs
first, pursuant to 44 U.S.C. 2204.
Sec. 1260.58 What are the procedures for requesting a mandatory review
of White House originated information?
(a) NARA will promptly acknowledge to the requester the receipt of
a request for White House originated information.
(b) If the requested information is less than 25 years old, NARA
will consult with agencies having primary subject matter interest. NARA
will forward copies of the requested materials to the agencies and
request their recommendations regarding declassification.
(c) If the requested records are more than 25 years old, NARA will
review the records using systematic declassification guidance provided
by the originating agency and agencies having equities in the
information. If the originating agency, or agencies having equities in
the information have not provided systematic declassification guidance,
or if there is a question regarding the guidance, NARA will refer any
requested documents it is unable to declassify to the appropriate
agency or agencies for their recommendations regarding
declassification.
(d) NARA will notify the requester of the results and furnish
copies of the documents declassified in full and in part. If the
requested records are not declassified in their entirety, NARA will
send the requester a brief statement of the reasons the information
cannot be declassified and a notice of the right to appeal the
determination within 60 calendar days to the Deputy Archivist of the
United States, National Archives and Records Administration, 8601
Adelphi Road, College Park, MD 20740-6001.
Sec. 1260.60 What are agency responsibilities with regard to mandatory
review requests for White House originated information?
When an agency receives a mandatory review request from NARA for
consultation on declassification of White House originated material,
whether it is an initial request of an appeal, the agency must:
(a) Advise the Archivist whether the information should be
declassified in whole or in part or should continue to be exempt from
declassification;
(b) Provide NARA a brief statement of the reasons for any denial of
declassification; and
(c) Return all reproductions referred for consultation, including a
complete
[[Page 34977]]
copy of each document that should be released only in part, clearly
marked to indicate the portions that remain classified.
Sec. 1260.62 What is the appeal process when a mandatory review
request for White House originated information is denied?
(a) When the Deputy Archivist of the United States receives an
appeal, he/she will review the decision to deny the information and
consult with the appellate authorities in the agencies having primary
subject matter interest in the information.
(b) NARA will notify the requester of the determination and make
available any additional information that has been declassified as a
result of the requester's appeal.
(c) NARA will also notify the requester of the right to appeal
denials of access to the Executive Secretary of the Interagency
Security Classification Appeals Panel, Attn: Mandatory Review Appeals,
c/o Information Security Oversight Office, National Archives and
Records Administration, 700 Pennsylvania Avenue, NW, Room 18N,
Washington, DC 20408.
Subpart E--Reclassification
Sec. 1260.70 Can Executive Branch information be reclassified?
(a) An agency may ask NARA to temporarily close, re-review, and
possibly reclassify records and donated historical materials originated
by the agency. Records that were declassified in accordance with E.O.
12958 (or predecessor orders) may be reclassified only if the
information is less than 25 years old and has not been previously
disclosed to the public. Agencies must submit in writing requests to
reclassify Executive Branch records to the Assistant Archivist for
Records Services--Washington, DC, National Archives and Records
Administration, 8601 Adelphi Road, College Park, MD 20740-6001.
Requests to reclassify information in Presidential libraries must be
submitted in writing to the Assistant Archivist for Presidential
Libraries, National Archives and Records Administration, 8601 Adelphi
Road, College Park, MD 20740-6001. In the request, the agency must:
(1) Identify the records or donated materials involved as
specifically as possible;
(2) Explain the reason the re-review and possible reclassification
may be necessary; and
(3) Provide any information the agency may have concerning any
previous public disclosure of the information.
(b) If the urgency of the request precludes a written request, an
authorized agency official may make a preliminary request by telephone
and follow up with a written request within 5 workdays.
Sec. 1260.72 Can White House originated information be reclassified?
An agency may ask NARA to temporarily close, re-review, and
possibly reclassify White House originated information that has been
declassified in accordance with E.O. 12958 (or predecessor orders) only
if it has not been previously disclosed to the public. The agency must
follow the same procedures as a request for reclassification of agency
originated information in 36 CFR 1260.70, but it must submit the
request to the Assistant Archivist for Presidential Libraries, National
Archives and Records Administration, 8601 Adelphi Road, College Park,
MD 20740-6001.
Sec. 1260.74 Can NARA appeal a request to reclassify information?
NARA may appeal to the Director of the Information Security
Oversight Office any re-review or reclassification request from an
agency when, in the Archivist's opinion, the facts of previous
disclosure suggest that such action is unwarranted or unjustified. NARA
will notify the requesting agency that it is appealing the request at
the same time that it initiates the appeal.
Dated: May 26, 2000.
John W. Carlin,
Archivist of the United States.
[FR Doc. 00-13809 Filed 5-31-00; 8:45 am]
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