Federal Register: January 5, 2004 (Volume 69, Number 2)
Proposed Rules
Page 295-301
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NATIONAL ARCHIVES AND RECORDS ADMINISTRATION
36 CFR Parts 1254 and 1256
RIN 3095-AB11
Restrictions on the Use of Records
AGENCY: National Archives and Records Administration.
ACTION: Proposed rule.
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SUMMARY: NARA proposes to revise its regulations on access to Federal
records and donated historical materials containing restricted
information. This proposal entirely rewrites and reorganizes this
portion of NARA's regulations to incorporate several changes, and also
to clarify it using plain language. The regulation has been updated to
bring the language on access restrictions in better conformance with
the Freedom of Information Act (FOIA). In addition, we propose to
remove an existing policy that allows access to restricted information
for purposes of biomedical statistical research. This proposed rule
would affect the public and Federal agencies.
DATES: Comments must be received on or before March 5, 2004.
ADDRESSES: Send comments to Regulation Comments Desk (NPOL), Room 4100,
National Archives and Records Administration, 8601 Adelphi Road,
College Park, MD 20740-6001. You may fax comments to (301) 837-0319 or
e-mail them to [email protected]. You may also comment via
http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Jennifer Davis Heaps at (301) 837-
1801.
SUPPLEMENTARY INFORMATION: This proposed rule contains discussion of
important changes in our regulations dealing with access to archival
materials. We have made additional changes in presenting the
information. We also have written the proposed regulation in plain
language following the Presidental Memorandum of June 1, 1998, Plain
Language in Government Writing.
What Substantive Changes Have Been Made in These Proposed Regulations?
We have broadened the scope of 36 CFR part 1256, currently titled
Restrictions on the Use of Records, to cover access to archival
holdings in general. Specifically, we:
[sbull] Renamed the part Access to Records and Donated Historical
Materials to reflect the proposed scope of the whole part, which covers
NARA's policies on access to our holdings, including information about
restrictions on Federal records and donated historical materials.
[sbull] Updated and renumbered the current Sec. Sec. 1256.10
through 1256.18 on NARA's general restrictions which parallel selected
FOIA exemptions to include all exemptions, reflect Department of
Justice guidance on exemption (b)(2), and show statutory changes to the
wording of other exemptions.
[sbull] Removed references to the publication of restrictions in
the Guide to the National Archives of the United States because the
information on general restrictions in the Guide is no longer current.
[sbull] Removed the current subpart B on specific restrictions
because all restrictions that agencies designate must be in compliance
with the Freedom of Information Act.
[sbull] Created a new section, Sec. 1256.44, on conditions for the
release of restricted information in Federal records or materials
withheld under any general restriction.
[sbull] Added information on how to request access to restricted
information in donated historical materials.
[sbull] Moved subparts C and D from 36 CFR part 1254 into 36 CFR
part 1256 because they relate to general information about access to
records and donated historical materials. We will revise the remainder
of Part 1254 later this year.
[sbull] Removed our procedures for granting permission to do
biomedical statistical or quantitative research in privacy-restricted
records.
Other than rewriting in plain language, we have not changed the
process for access to United States Information Agency (USIA)
audiovisual records accessioned into the National Archives of the
United States.
How Is NARA Proposing To Change Access to Privacy-Restricted Federal
Records for Statistical Biomedical Research?
NARA currently permits full access to privacy-restricted
information in Federal records to persons engaged in statistical or
quantitative biomedical research on an approval basis under tightly-
controlled conditions specified in the current Sec. 1256.4. No
researchers have requested access to any records under these conditions
since the regulation went into effect in 1988. We propose to remove
this provision for access because we have determined that the
procedures may not provide sufficient safeguards against the accidental
or intentional release of privacy-restricted information.
Instead, as already provided for in law, NARA will provide access
to the releasable portions of records and materials containing such
information to entities and individuals in accordance with the
provisions of the Freedom of Information Act (5 U.S.C. 552, as
amended), Presidential Records Act (44 U.S.C. chapter 22), Presidential
Recordings and Materials Preservation Act (44 U.S.C. 2111 note),
Federal Records Act (44 U.S.C. 2108), applicable executive orders, and
Deeds of Gift for donated historical materials.
NARA will continue to provide full access to these records to the
agency of origin in accordance with the proposed Sec. 1256.44(b).
This proposed change also removes the information collection
required for
[[Page 296]]
statistical biomedical researcher applicants under the current
regulation.
Why Is NARA Moving Portions of 36 CFR 1254 Into Part 1256?
Part 1254, Availability of Records and Donated Historical
Materials, currently includes these subparts: general information;
research room rules; access to unclassified records and donated
historical materials; access to national security information;
information, reproduction, and authentication services; and
microfilming archival records. We propose to move Sec. 1254.8 on how
NARA handles subpoenas, the subpart on access to unclassified records
and donated historical materials, and the subpart on access to national
security information to part 1256 to provide a more comprehensive
explanation of how our holdings may be accessed. The proposed
Sec. Sec. 1256.8 and 1256.10 provide references to our regulations on
access to Presidential records and Nixon Presidential historical
materials, respectively. The following chart provides the proposed and
current designations of the relevant subparts:
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Proposed designation of subpart Current designation
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36 CFR part 1256, Subpart A, General Expansion of 36 CFR Sec.
Information. 1254.8 and Sec. Sec.
1254.32 through 1254.36.
36 CFR Part 1256, Subpart B, Access to Expansion of 36 CFR Sec. Sec.
Federal Archival Records. 1254.30 and 1256.2.
36 CFR Part 1256, Subpart C, Access to Expansion of 36 CFR Sec. Sec.
Donated Historical Materials. 1254.36 and 1256.2.
36 CFR Part 1256, Subpart D, General 36 CFR Part 1256, Subpart A,
Restrictions. General Restrictions
36 CFR Part 1256, Subpart E, Access to 36 CFR Part 1254, Subpart D,
Materials Containing National Security- Access to National Security
Classified Information. Information.
36 CFR Part 1256, Subpart F, Domestic 36 CFR Part 1256, Subpart C,
Distribution of United States Domestic Distribution of
Information Agency Audiovisual United States Information
Materials in the National Archives of Agency Materials in the
the United States. National Archives of the
United States.
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This proposed rule is not a significant regulatory action for the
purposes of Executive Order 12866 and has not been reviewed by the
Office of Management and Budget (OMB). As required by the Regulatory
Flexibility Act, it is hereby certified that this proposed rule will
not have a significant impact on a substantial number of small entities
because this rule applies to individual researchers. This proposed rule
does not have any federalism implications.
List of Subjects
36 CFR Part 1254
Archives and records, Confidential business information, Freedom of
information, Micrographics.
36 CFR Part 1256
Archives and records, Copyright.
For the reasons set forth in the preamble, NARA proposes to amend
chapter XII of title 36 of the Code of Federal Regulations as follows:
PART 1254--AVAILABILITY OF RECORDS AND DONATED HISTORICAL MATERIALS
1. The authority for part 1254 is revised to read as follows:
Authority: 44 U.S.C. 2101-2118 and 5 U.S.C. 552, as amended.
Sec. Sec. 1254.30 through 1254.36 and 1254.40 through
1254.50 [Removed]
2. Amend part by removing and reserving subparts C (Sec. Sec.
1254.30 through 1254.36) and D (Sec. Sec. 1254.40 through 1254.50).
3. Amend Sec. 1254.1 by revising paragraph (e) to read as follows:
Sec. 1254.1 General provisions.
* * * * *
(e) Requests received in the normal course of reference service
that do not specifically cite the Freedom of Information Act (5 U.S.C.
552, as amended) are not considered requests made under the act.
Requests under the act must follow the procedures in part 1250.
* * * * *
Sec. 1254.8 [Removed]
4. Part 1254 is amended by removing Sec. 1254.8.
5. Part 1256 is revised to read as follows:
PART 1256--ACCESS TO RECORDS AND DONATED HISTORICAL MATERIALS
Subpart A--General Information
Sec.
1256.1 What does this part cover?
1256.2 How do I obtain access to records stored in Federal Records
Centers?
1256.4 How does NARA handle subpoenas and other legal demands for
records in its custody?
1256.6 How do I obtain access to records of defunct agencies?
1256.8 How do I obtain access to Presidential records?
1256.10 How do I obtain access to Nixon Presidential materials?
Subpart B--Access to Federal Archival Records
1256.20 May I obtain access to Federal archival records?
1256.22 How do I request access to restricted information in Federal
archival records?
1256.24 How long may access to some records be denied?
1256.26 When can I appeal decisions about access to Federal archival
records?
Subpart C--Access to Donated Historical Materials
1256.30 How do I obtain access to donated historical materials?
1256.32 How do I request access to restricted information in donated
historical materials?
1256.34 How long may access to some donated historical materials be
denied?
1256.36 When can I appeal decisions about access to donated
historical materials?
Subpart D--General Restrictions
1256.40 What are general restrictions?
1256.42 Who imposes general restrictions?
1256.44 Does NARA ever waive general restrictions?
1256.46 National security-classified information.
1256.48 Information about internal agency rules and practices.
1256.50 Information exempted from disclosure by statute.
1256.52 Trade secrets and commercial or financial information.
1256.54 Inter- and intra-agency memoranda.
1256.56 Information that would invade the privacy of a living
individual.
1256.58 Information related to law enforcement investigations.
1256.60 Information relating to financial institutions.
1256.62 Geological and geophysical information relating to wells.
Subpart E--Access to Materials Containing National Security-Classified
Information
1256.70 What controls access to national security-classified
information?
1256.72 What are FOIA requests and mandatory review requests?
1256.74 How does NARA process Freedom of Information Act (FOIA)
requests for classified information?
1256.76 How do I request mandatory review of classified information
under Executive Order 12958, as amended?
1256.78 How does NARA handle my mandatory review request?
[[Page 297]]
1256.80 How does NARA provide classified access to historical
researchers and former Presidential appointees?
Subpart F--Domestic Distribution of United States Information Agency
Audiovisual Materials in the National Archives of the United States
1256.90 What does this subpart cover?
1256.92 What is the purpose of this subpart?
1256.94 Definition.
1256.96 What provisions apply to the transfer of USIA audiovisual
records to the National Archives of the United States?
1256.98 Can I get access to and obtain copies of USIA audiovisual
records transferred to the National Archives of the United States?
1256.100 What is the copying policy for USIA audiovisual records
that either have copyright protection or contain copyrighted
material?
1256.102 What fees does NARA charge?
Authority: 44 U.S.C. 2101-2118; 22 U.S.C. 1461(b); 5 U.S.C. 552,
as amended; E.O. 12958 (3 CFR, 1995 Comp., p. 333), as amended; E.O.
13292 (68 FR 15315); E.O. 13233 (66 FR 56023, November 5, 2001, 3
CFR, 2001 Comp., p. 815).
Subpart A--General Information
Sec. 1256.1 What does this part cover?
This part describes NARA's policies on access to archival records
of the Executive Branch and donated historical materials in the
National Archives of the United States and to records in the physical
custody of the Federal records centers. This part applies to records
and materials covered by the Federal Records Act (44 U.S.C. 2108 and
chs. 29, 31, 33) and donated historical materials. This part does not
apply to Presidential, judicial, and legislative records except for the
purpose of directing mandatory review requests in subpart E.
Sec. 1256.2 How do I obtain access to records stored in Federal
Records Centers?
Agencies that retire their records to a Federal records center
(FRC) set rules for access to those records. Address requests for
access to records stored in Federal records centers directly to the
appropriate agency or to the appropriate FRC director at the address
shown in part 1253. When the agency's rules permit, NARA makes FRC
records available to requesters. When the agency's rules and
restrictions do not permit access, the FRC director refers the requests
and any appeals for access, including those made under the Freedom of
Information Act (5 U.S.C. 552, as amended), to the responsible agency.
Sec. 1256.4 How does NARA handle subpoenas and other legal demands
for records in its custody?
(a) For records stored in a Federal records center, NARA honors a
subpoena duces tecum (subpoena) or other legal demand for the
production of agency records, to the extent required by law, if the
agency that retired the records has not imposed any restrictions. If
the agency has imposed restrictions, NARA notifies the authority
issuing the subpoena or other legal demand that NARA abides by the
agency-imposed restrictions and refers the authority to the agency for
further action.
(b) The Archivist of the United States, the General Counsel (NGC)
or his or her designee, and the Director of the FRC where the records
are stored are the only NARA officials authorized to accept a subpoena
or other legal demand for records transferred to an FRC.
(c) The Archivist of the United States, the General Counsel (NGC)
or his or her designee, the appropriate Assistant Archivist, Regional
Administrator, or Director of a Presidential library are the only NARA
officials who may be served a subpoena duces tecum or other legal
demand for the production of documents designated as Federal archival
records or donated historical materials administered by NARA.
Sec. 1256.6 How do I obtain access to records of defunct agencies?
NARA handles access to archives and FRC records received from
agencies that have ceased to exist without a successor in function as
described in Sec. Sec. 1256.20 and 1256.78.
Sec. 1256.8 How do I obtain access to Presidential records?
See 36 CFR part 1270, Presidential Records, for the rules for
access to Presidential records transferred to NARA.
Sec. 1256.10 How do I obtain access to Nixon Presidential materials?
See 36 CFR part 1275, Preservation and Protection of and Access to
the Presidential Historical Materials of the Nixon Administration, for
the rules for access to Nixon Presidential materials.
Subpart B--Access to Federal Archival Records
Sec. 1256.20 May I obtain access to Federal archival records?
(a) Most Federal archival records are open for research without
submitting a Freedom of Information Act (FOIA) request. Part 1254
specifies procedures for using unrestricted records in a NARA research
room, submitting reference requests, and ordering copies of records.
(b) Some records are subject to restrictions prescribed by statute,
Executive Order, or by restrictions specified in writing in accordance
with 44 U.S.C. 2108 by the agency that transferred the records to the
National Archives of the United States. All agency-specified
restrictions must comply with the FOIA. Even if the records are not
national-security classified, we must screen some records for other
information exempt from release under the FOIA.
Sec. 1256.22 How do I request access to restricted information in
Federal archival records?
(a) You may file a FOIA request. To request access under the
provisions of the FOIA, see part 1250 of this chapter, Public
Availability and Use of Federal Records.
(b) For classified information in Federal records, you may file a
FOIA request or a mandatory review request under Executive Order 12958,
as amended, as described in Sec. 1256.74.
Sec. 1256.24 How long may access to some records be denied?
(a) Although many records are open for research, some records are
closed for long periods, either under our general restrictions,
described in subpart D of this part, or another governing authority.
For example, in accordance with 44 U.S.C. 2108(b), we do not grant
access to restricted census and survey records of the Bureau of the
Census less than 72 years old containing data identifying individuals
enumerated in population censuses.
(b) Screening records takes time. We screen records as soon as
possible and can often make most of the records in which you are
interested available. In the case of electronic structured databases,
NARA can make a copy of records with restricted information masked. In
response to FOIA requests for records in other media, we make a copy of
the record available if we can mask or ``redact'' restricted
information.
Sec. 1256.26 When can I appeal decisions about access to Federal
archival records?
(a) For information on filing appeals for requests made under the
FOIA, see 36 CFR part 1250, subpart D, Appeals.
(b) For information on filing appeals for requests made under
mandatory review, see Sec. 1260.54 of this chapter.
[[Page 298]]
Subpart C--Access to Donated Historical Materials
Sec. 1256.30 How do I obtain access to donated historical materials?
NARA encourages researchers to confer about donated historical
materials with the appropriate director or reference staff member at
the facilities listed in part 1253 of this chapter. Some donated
historical materials have restrictions on their use and availability as
stated in writing by the donors in the Donor's Deed of Gift. Some may
have other restrictions imposed by statute or Executive Order. If
warranted, the Archivist may apply general restrictions to donated
materials even when not specified in the donor's deed of gift. NARA
staff can assist you with questions about restrictions or copyright
protection that may apply to donated materials. See Sec. 1256.36 for
information on appealing closure of donated materials and subpart D of
this part for information about general restrictions.
Sec. 1256.32 How do I request access to restricted information in
donated historical materials?
(a) At Presidential libraries and regional archives, you may write
to the appropriate director at the facilities in part 1253 of this
chapter. In the Washington, DC, area, you may write to the Director of
Access Programs (NWC) for donated textual materials or the Director of
Modern Records Programs (NWM) for donated electronic records. The
mailing address for NWC and NWM is Office of Records Services--
Washington, DC, 8601 Adelphi Road, College Park, MD 20740-6001.
(b) You may request a review of documents restricted under terms of
a donor's deed of gift or other legal instrument to determine whether
the conditions originally requiring the closure still exist. Your
request must describe each document requested so that the staff can
locate it with a reasonable amount of effort. For files that NARA
previously screened, you may cite the reference to the withheld
document as it appears on the withdrawal sheet.
(c) In many instances, the director or his or her designated
representative will determine whether entire documents or portions of
them can be opened. However, a donor or his or her representative
reserves the right to determine whether the donor's materials, a
series, or a document or portions of it should remain closed (see Sec.
1256.36).
(d) For classified information in donated historical materials, you
may file a mandatory review request under Executive Order 12958, as
amended, as described in Sec. 1256.74.
Sec. 1256.34 How long may access to some donated historical materials
be denied?
Some donated historical materials are closed for long periods,
either under the provisions of the deed of gift, our general
restrictions described in subpart D of this part, or another governing
authority. We are sometimes able to make a copy of materials with
restricted information redacted.
Sec. 1256.36 When can I appeal decisions about access to donated
historical materials?
(a) If you wish to appeal a denial of access from the director or
his designated representative in implementing the provisions of a
donor's deed of gift, you may write a letter addressed to the Deputy
Archivist of the United States, National Archives and Records
Administration, 8601 Adelphi Road, College Park, MD 20740-6001. The
Deputy Archivist, the Assistant Archivist for Presidential Libraries,
and the Assistant Archivist for Records Services--Washington, DC, or
their designated representatives, compose the Board of Review for
appeals relating to donated historical materials.
(b) The board's decision is final. If the board cannot make a
determination on your request within 30 working days of receipt, NARA
informs you of the reason for the delay. If the board determines that a
document should remain closed, you may not file a new appeal for two
years. Similarly, you may not file an appeal on documents in
collections that have been open for research for less than 2 years.
(c) In some cases, the donor or his representative may reserve the
right to determine whether the donor's materials, a series, or a
document or portions of it should remain closed; you cannot appeal such
decisions.
(d) For information on filing appeals for requests made under
mandatory review of White House originated information, see Sec.
1260.62 of this chapter.
Subpart D--General Restrictions
Sec. 1256.40 What are general restrictions?
General restrictions apply to certain kinds of information or
classes of records, regardless of the record group to which the records
have been allocated. These general restrictions may apply to records
and materials not covered by the Freedom of Information Act. The
general restrictions are listed and explained in Sec. Sec. 1256.46
through 1256.62.
Sec. 1256.42 Who imposes general restrictions?
The Archivist of the United States imposes all general restrictions
in accordance with 5 U.S.C. 552, as amended, and 44 U.S.C. 2107(4),
2108, and 2111.
Sec. 1256.44 Does NARA ever waive general restrictions?
NARA may provide access to records withheld under a general
restriction only:
(a) To NARA employees for work purposes;
(b) To the creating agency or its authorized agent in the conduct
of agency business;
(c) To the donor, in the case of donated historical materials; or
(d) To the subject of the records in some cases.
Sec. 1256.46 National security-classified information.
In accordance with 5 U.S.C. 552(b)(1), NARA cannot disclose records
containing information regarding national defense or foreign policy
that is properly classified under the provisions of the pertinent
Executive Order on Classified National Security Information and its
implementing directive (Executive Order 12958, as amended).
Sec. 1256.48 Information about internal agency rules and practices.
(a) NARA may withhold from disclosure, in accordance with 5 U.S.C.
552(b)(2), the following:
(1) Records that contain information on substantial internal
matters of agencies that, if disclosed, could risk circumvention of a
legal requirement, such as a statute or an agency regulation.
(2) Records containing information that states or assesses an
agency's vulnerability to outside interference or harm. NARA withholds
records that identify agency programs, systems, or facilities deemed
most sensitive. NARA also withholds records describing specific
measures that can be used to counteract such agency vulnerabilities.
(b) The Archivist of the United States may determine that this
general restriction does not apply to specific records because enough
time has passed that agency statutes or regulations would not be
compromised and programs, systems, and facilities would not be harmed.
Sec. 1256.50 Information exempted from disclosure by statute.
In accordance with 5 U.S.C. 552(b)(3), NARA withholds records
containing
[[Page 299]]
information that is specifically exempted from disclosure by statute
when that statute:
(a) Requires withholding information from the public, leaving no
discretion; or
(b) Establishes particular criteria for withholding or refers to
particular types of matters to be withheld.
Sec. 1256.52 Trade secrets and commercial or financial information.
In accordance with 5 U.S.C. 552(b)(4), NARA may withhold records
that contain trade secrets and commercial or financial information,
obtained from a person, that is privileged or confidential and
submitted to the government. Such records may be disclosed only if:
(a) The person who provided the information agrees to its release;
or
(b) In the judgment of the Archivist of the United States, enough
time has passed that release of the information would not result in
substantial competitive harm to the submitter of the information.
Sec. 1254.54 Inter- and intra-agency memoranda.
(a) In accordance with 5 U.S.C. 552(b)(5), NARA may withhold
information found in inter-agency or intra-agency memoranda if that
information:
(1) Relates to advice, recommendations, and opinions that are a
part of the deliberative, consultative, decision-making process of
government, or
(2) Would reveal the theory of an attorney's case or litigation
strategy.
(b) The Archivist of the United States may determine that this
general restriction does not apply to specific records because enough
time has passed that release of the information would not result in
harm to the decision-making process of government or an attorney's
litigation strategy.
Sec. 1256.56 Information that would invade the privacy of a living
individual.
(a) In accordance with 5 U.S.C. 552(b)(6), NARA will withhold
records in personnel and medical and similar files containing
information about a living individual that reveals details of a highly
personal nature that, if released, would cause a clearly unwarranted
invasion of personal privacy. Similar information in other kinds of
files also may be withheld. Privacy information may include, but is not
limited to, information about the physical or mental health or the
medical or psychiatric care or treatment of the individual, and that:
(1) Contains personal information not known to have been previously
made public, and
(2) Relates to events less than 75 years old.
(b) The Archivist of the United States may determine that this
general restriction does not apply to specific records because enough
time has passed that the privacy of living individuals is not
compromised.
Sec. 1256.58 Information related to law enforcement investigations.
(a) In accordance with 5 U.S.C. 552(b)(7), NARA will withhold
records compiled for law enforcement purposes. Unless otherwise
determined by the Archivist in accordance with paragraph (b) of this
section, records compiled for law enforcement purposes may be disclosed
only if all of the following conditions are met:
(1) The release of the information does not interfere with law
enforcement proceedings;
(2) The release of the information would not deprive a person of a
right to a fair trial or an impartial adjudication;
(3) The release of the information would not constitute an
unwarranted invasion of personal privacy;
(4) Confidential sources and/or information provided by a
confidential source are not revealed;
(5) Confidential investigation techniques are not described; and
(6) Release of the information would not endanger the life or
physical safety of any person.
(b) The Archivist of the United States may determine that this
general restriction does not apply to specific records because enough
time has passed that:
(1) The safety of persons is not endangered, and
(2) The public interest in disclosure outweighs the continued need
for confidentiality.
Sec. 1256.60 Information relating to financial institutions.
(a) In accordance with 5 U.S.C. 552(b)(8), NARA may withhold
information in records contained in or relating to the examination,
operating, or condition reports prepared by, on behalf of, or for the
use of an agency responsible for the regulation or supervision of
financial institutions.
(b) The Archivist of the United States may determine that this
general restriction does not apply to specific records because enough
time has passed that current financial information is not compromised.
Sec. 1256.62 Geological and geophysical information relating to
wells.
(a) In accordance with 5 U.S.C. 552(b)(9), NARA may withhold
information in records that relates to geological and geophysical
information and data, including maps, concerning wells.
(b) The Archivist of the United States may determine that this
general restriction does not apply to specific records because enough
time has passed that current proprietary rights are not compromised.
Subpart E--Access to Materials Containing National Security-
Classified Information
Sec. 1256.70 What controls access to national security-classified
information?
(a) The declassification of and public access to national security-
classified information, hereinafter referred to as ``classified
information'' is governed by Executive Order 12958 of April 17, 1995 (3
CFR, 1995 Comp., p. 333) and as amended by Executive Order 13292 of
March 25, 2003 (68 FR 15315), 32 CFR part 2001, and the Freedom of
Information Act (5 U.S.C. 552, as amended).
(b) Public access to documents declassified in accordance with this
regulation may be restricted or denied for other reasons under the
provisions of 5 U.S.C. 552(b) for accessioned agency records;
Sec. Sec. 1256.30 through 1256.36 of this part for donated historical
materials; 44 U.S.C. 2111, 44 U.S.C. 2201 et seq., and 36 CFR part 1270
for Presidential records; and 44 U.S.C. 2111 note and 36 CFR part 1275
for Nixon Presidential materials.
Sec. 1256.72 What are FOIA requests and mandatory review requests?
(a) You may file a FOIA request for Executive Branch records,
regardless of whether they contain classified information. The FOIA
also applies to Presidential records as cited in Sec. 1256.74(b). The
FOIA does not apply to records of the Judicial and Legislative Branches
or to donated historical materials.
(b) You may only file a mandatory review request if the records
contain classified information. NARA handles mandatory review requests
for records we hold for the Executive, Judicial, and Legislative
Branches as well as donated historical materials under E.O. 12958, as
amended, section 3.5.
Sec. 1256.74 How does NARA process Freedom of Information Act (FOIA)
requests for classified information?
(a) NARA processes FOIA requests for access to classified
information in
[[Page 300]]
Federal records in accordance with the provisions of 36 CFR part 1250.
Time limits for responses to FOIA requests for classified information
are those provided in the FOIA, rather than the longer time limits
provided for responses to mandatory review requests specified by
Executive Order 12958, Classified National Security Information (3 CFR,
1995 Comp., p. 333), as amended by Executive Order 13292 (68 FR 15315,
March 28, 2003).
(b) NARA processes requests for access to classified information in
Presidential records under the FOIA and the Presidential Records Act
(PRA) in accordance with the provisions of part 1270 of this chapter.
Time limits for responses to FOIA requests for classified information
are those provided in the FOIA, the PRA, and Executive Order 13233,
Further Implementation of the Presidential Records Act (3 CFR, 2001
Comp., p. 815).
Sec. 1256.76 How do I request mandatory review of classified
information under Executive Order 12958, as amended?
(a) You may request mandatory review of classified information that
is in the legal custody of NARA, as well as in legislative and judicial
records NARA holds. Your mandatory review request must describe the
document or material containing the information with sufficient
specificity to enable NARA to locate it with a reasonable amount of
effort. When possible, a request must include the name of the
originator and recipient of the information, as well as its date,
subject, and file designation. Information we reviewed within the
previous 2 years is not subject to mandatory review. We notify you if
this provision applies to your request.
(b) You must address your mandatory review request to the
appropriate staff in the following table.
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. . . then address your request
If the documents are . . . to
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Presidential records and donated The appropriate library cited
historical materials at a Presidential in 36 CFR part 1253.
library.
Nixon Presidential materials........... Director, Nixon Presidential
Materials Staff (NLNS), 8601
Adelphi Road, College Park, MD
20740-6001.
Presidential materials maintained in Director, Presidential
the Washington, DC area. Materials Staff (NLMS), 700
Pennsylvania Avenue, N.W.,
Washington, DC 20408.
[sbull] Federal records................ Chief, Special Access/FOIA
[sbull] Donated historical materials Staff (NWCTF), 8601 Adelphia
related to Federal records. Road, College Park, MD 20740-
[sbull] Judicial records............... 6001.
[sbull] Legislative records maintained
in the Washington, DC area.
Federal records and judicial records The appropriate regional
maintained at a regional archives. archives cited in 36 CFR part
1253.
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Sec. 1256.78 How does NARA handle my mandatory review request?
(a) You may find our procedures for mandatory review and appeals of
denials in part 1260 of this chapter, Declassification of National
Security Information.
(1) When agencies delegate declassification guidance to the
Archivist of the United States, NARA reviews for declassification and
releases the requested information or those declassified portions of
the request that constitute a coherent segment unless withholding is
otherwise warranted under applicable law.
(2) When we do not have guidance from agencies, we coordinate the
declassification review with the original classifying agency or
agencies under the provisions of part 1260, subchapter D of this
chapter.
(b) If we cannot identify the information you seek from the
description you provide or if the volume of information you seek is so
large that processing it would interfere with our capacity to serve all
requestors on an equitable basis, we notify you that, unless you
provide additional information or narrow the scope of your request, we
cannot take further action.
Sec. 1256.80 How does NARA provide classified access to historical
researchers and former Presidential appointees?
(a) In accordance with the requirements of E.O. 12958, as amended,
Section 4.4, we may grant access to classified information to certain
eligible persons. These persons are engaged in historical research
projects or previously occupied policy-making positions to which they
were appointed by the President. If you seek permission to examine
materials under this special historical researcher/Presidential
appointees access program, you must contact NARA in advance. We need at
least 4 months before you wish to have access to the materials to
permit time for the responsible agencies to process your request for
access. If you seek access to classified Presidential records under
Section 4.4, you must first qualify under special access provisions of
44 U.S.C. 2205. NARA informs you of the agencies to which you have to
apply for permission to examine classified information, including
classified information originated by the White House or classified
information in the custody of the National Archives which was
originated by a defunct agency.
(b) You may examine records under this program only after the
originating or responsible agency:
(1) Determines in writing that access is consistent with the
interest of national security; and
(2) Takes appropriate steps to protect classified information from
unauthorized disclosure or compromise, and ensures that the information
is safeguarded in a manner consistent with Executive Order 12958, as
amended.
(c) The originating or responsible agency limits the access granted
to former Presidential and Vice Presidential appointees to items that
the person originated, reviewed, signed, or received while serving as
an appointee.
(d) To protect against the possibility of unauthorized access to
restricted documents, a director may issue instructions supplementing
the research room rules provided in 36 CFR part 1254.
Subpart F--Domestic Distribution of United States Information
Agency Audiovisual Materials in the National Archives of the United
States
Sec. 1256.90 What does this subpart cover?
This subpart contains procedures governing the public availability
of audiovisual records and other materials subject to 22 U.S.C. 1461(b)
that have been transferred to the National Archives of the United
States by the United States Information Agency (USIA).
[[Page 301]]
Sec. 1256.92 What is the purpose of this subpart?
This subpart implements section 501 of the United States
Information and Educational Exchange Act of 1948 (22 U.S.C. 1461), as
amended by section 202 of Public Law No. 101-246 (104 Stat. 49, Feb.
16, 1990). This subpart also outlines procedures that permit the public
to inspect and obtain copies of USIA audiovisual records and other
materials in the United States that were prepared for dissemination
abroad and that have been transferred to NARA for preservation and
domestic distribution.
Sec. 1256.94 Definition.
For the purposes of this subpart, Audiovisual records mean motion
picture films, videotapes, and sound recordings, and other materials
regardless of physical form or characteristics that were prepared for
dissemination abroad.
Sec. 1256.96 What provisions apply to the transfer of USIA
audiovisual records to the National Archives of the United States?
The provisions of 44 U.S.C. 2107 and 36 CFR part 1228 apply to the
transfer of USIA audiovisual records to NARA, and to their deposit with
the National Archives of the United States. At the time the audiovisual
records are transferred to NARA, the Director of USIA, in accordance
with Sec. 1228.184(e) of this chapter, also transfers any production
or title files relating to the ownership of rights in the productions
in connection with USIA's official overseas programming.
Sec. 1256.98 Can I get access to and obtain copies of USIA
audiovisual records transferred to the National Archives of the United
States?
NARA provides access to USIA audiovisual records after the
appropriate time period of restriction has passed.
(a) No USIA audiovisual records in the National Archives of the
United States that were prepared for dissemination abroad are available
for copying until at least 12 years after USIA first disseminated these
materials abroad, or, in the case of materials prepared for foreign
dissemination but not disseminated abroad, until at least 12 years
after the preparation of the materials.
(b) If the appropriate time has passed, you may have access to USIA
audiovisual records that do not have copyright protection and do not
contain copyright material. USIA audiovisual records prepared for
dissemination abroad that NARA determines do not have copyright
protection nor contain copyrighted material are available for
examination and copying as described in the regulations in parts 1252,
1253, 1254, 1256, and 1258 of this chapter. To determine whether
materials have copyright protection or contain copyrighted material,
NARA relies on information contained within or fastened to individual
records (for example, copyright notices); information contained within
relevant USIA production, title, or other files that USIA transferred
to NARA; information provided by requesters under Sec. 1256.100(b)
(for example, evidence from the Copyright Office that copyright has
lapsed or expired); and information provided by copyright or license
holders.
Sec. 1256.100 What is the copying policy for USIA audiovisual records
that either have copyright protection or contain copyrighted material?
If the appropriate time has passed, as stated in Sec. 1256.98(a),
USIA audiovisual records that either have copyright protection or
contain copyrighted material may be copied as follows:
(a) USIA audiovisual records prepared for dissemination abroad that
NARA determines may have copyright protection or may contain
copyrighted material are made available for examination in NARA
research facilities as described in the regulations in this title.
(b) Copies of USIA audiovisual records prepared for dissemination
abroad that NARA determines may have copyright protection or may
contain copyrighted material are provided to you if you seek the
release of such materials in the United States once NARA has:
(1) Ensured, as described in paragraph (c) of this section, that
you have secured and paid for necessary United States rights and
licenses;
(2) Been provided with evidence from the Copyright Office
demonstrating that copyright protection in the materials sought, or
relevant portions in the materials, has lapsed or expired; or
(3) Received your signed certification in accordance with paragraph
(d) of this section that you will use the materials sought only for
purposes permitted by the Copyright Act of 1976, as amended, including
the fair use provisions of 17 U.S.C. 107. No copies of USIA audiovisual
records will be provided until the fees authorized under part 1258 of
this chapter have been paid.
(c) If NARA determines that a USIA audiovisual record prepared for
dissemination abroad may have copyright protection or may contain
copyrighted material, you may obtain copies of the material by
submitting to NARA written evidence from all copyright and/or license
owner(s) that any necessary fees have been paid or waived and any
necessary licenses have been secured.
(d) If NARA has determined that a USIA audiovisual record prepared
for dissemination abroad may have copyright protection or may contain
copyrighted material, persons seeking the release of such material in
the United States may obtain copies of the material by submitting to
NARA the following certification statement:
I, (printed name of individual), certify that my use of the
copyrighted portions of the (name or title and NARA identifier of
work involved) provided to me by the National Archives and Records
Administration (NARA), will be limited to private study,
scholarship, or research purposes, or for other purposes permitted
by the Copyright Act of 1976, as amended. I understand that I am
solely responsible for the subsequent use of the copyrighted
portions of the work identified above.
(e) In every instance where NARA provides a copy of an audiovisual
record under this subpart, and NARA has determined that the work
reproduced may have copyright protection or may contain copyrighted
material, NARA must provide you with a warning notice of copyright.
(f) Nothing in this section limits NARA's ability to make copies of
USIA audiovisual records for preservation, arrangement, repair and
rehabilitation, description, exhibition, security, or reference
purposes.
Sec. 1256.102 What fees does NARA charge?
Copies of audiovisual records will only be provided under this
subpart upon payment of fees in accordance with 44 U.S.C. 2116(c) and
22 U.S.C. 1461(b)(3). See Sec. 1258.4(b) for additional information.
Dated: December 23, 2003.
John W. Carlin,
Archivist of the United States.
[FR Doc. 04-174 Filed 1-2-04; 8:45 am]
BILLING CODE 7515-01-P