[Federal Register Volume 76, Number 250 (Thursday, December 29, 2011)]
[Rules and Regulations]
[Pages 81827-81834]
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NATIONAL ARCHIVES AND RECORDS ADMINISTRATION
36 CFR Part 1260
[FDMS NARA-11-0001]
RIN 3095-AB64
Declassification of National Security Information
AGENCY: National Archives and Records Administration.
ACTION: Final rule.
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SUMMARY: The National Archives and Records Administration (NARA) is
updating its regulations related to declassification of classified
national security information in records transferred to NARA's legal
custody. The rule incorporates changes resulting from issuance of
Executive Order 13526, Classified National Security Information, and
its Implementing Directive. These changes include establishing
procedures for the automatic declassification of records in NARA's
legal custody and revising requirements for reclassification of
information to meet the provisions of E.O. 13526. Executive Order 13526
also created the National Declassification Center (NDC) with a mission
to align people, processes, and technologies to advance the
declassification and public release of historically valuable permanent
records while maintaining national security. This rule will affect
members of the public and Federal agencies.
DATES: This rule is effective January 30, 2012.
FOR FURTHER INFORMATION CONTACT: Marilyn Redman at (301) 837-1850;
email: marilyn.redman@nara.gov.
[[Page 81828]]
SUPPLEMENTARY INFORMATION: On July 8, 2011, NARA published a proposed
rule (76 FR 40296) for revisions to the regulations on declassification
of national security information. These revisions were required by the
issuance of Executive Order 13526, replacing Executive Order 12958, as
amended. We received one formal comment from an individual on the
proposed changes. This commenter identified three specific concerns.
The first concern was of the adequacy of the definition of
``Declassification'' in Section 1260.2. Executive Order 13526 defines
declassification of information in Section 6.1(m) of the Order and we
have used the definition found in the Order in our regulation. We
believe NARA's language for 36 CFR 1260 is consistent with the language
of the Order.
The commenter's second concern was that Section 1260.28 of the
proposed rule did not indicate that the three categories of nuclear
weapons information are exempt from the requirements of E.O. 13526.
Section 1260.28(b) specifically states that ``Any record that contains
RD, FRD, or TFNI shall be excluded from automatic declassification and
referred by the primary reviewing agency to DOE using a completed SF
715.'' Additionally, the language in this section was vetted and
approved by DOE.
The third comment suggested that agency responsibilities for
mandatory declassification review (Section 1260.74) include a
requirement for FOIA-type review. While a referral agency may provide
advice to NARA on other possible restrictions, there is no requirement
that it do so when responding to a mandatory declassification request.
Moreover, it is NARA's responsibility to apply other restrictions in
accordance with FOIA and other laws for accessioned Federal records and
transferred Presidential records and papers, and communicate this to
the requester.
This final rule is a significant regulatory action for the purpose
of Executive Order 12866 and has been reviewed by the Office of
Management and Budget. As required by the Regulatory Flexibility Act, I
certify that this rule will not have a significant impact on a
substantial number of small entities because it affects Federal
agencies and individual researchers. This regulation does not have any
federalism implications.
List of Subjects in 36 CFR Part 1260
Archives and records, Classified information.
For the reasons set forth in the preamble, NARA revises Subchapter
D of Chapter XII of title 36, Code of Federal Regulations, 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 part?
1260.2 What definitions apply to the regulations in this part?
1260.4 What NARA holdings are covered by this part?
Subpart B--Responsibilities
1260.20 Who is responsible for the declassification of classified
national security Executive Branch information that has been
accessioned by NARA?
1260.22 Who is responsible for the declassification of classified
national security 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 records pertaining to intelligence activities
and intelligence sources or methods, or of classified cryptologic
records in NARA's holdings?
1260.28 Who is responsible for declassifying Restricted Data,
Formerly Restricted Data, and Transclassified Foreign Nuclear
Information?
Subpart C--The National Declassification Center (NDC)
1260.30 What is the NDC?
1260.32 How is the NDC administered?
1260.34 What are the responsibilities of the NDC?
1260.36 What are agency responsibilities with the NDC?
1260.38 How does the NDC ensure the quality of declassification
reviews?
1260.40 What types of referrals will the NDC process?
1260.42 How does the NDC process referrals of Federal Records?
1260.44 How does the NDC process RAC Project referrals?
1260.46 How does the Department of Defense process referrals?
Subpart D--Automatic Declassification
1260.50 How are records at NARA reviewed as part of the automatic
declassification process?
1260.52 What are the procedures when agency personnel review records
in NARA's legal and physical custody?
1260.54 Will NARA loan accessioned records back to the agencies to
conduct declassification review?
1260.56 What are NARA considerations when implementing automatic
declassification?
Subpart E--Systematic Declassification
1260.60 How does the NDC facilitate systematic review of records
exempted at the individual record or file series level?
Subpart F--Mandatory Declassification Review (MDR)
1260.70 How does a researcher submit an MDR request?
1260.72 What procedures does NARA follow when it receives a request
for Executive Branch records under MDR?
1260.74 What are agency responsibilities after receiving an MDR
request forwarded by NARA?
1260.76 What are NARA's procedures after it has received the
agency's declassification determinations?
1260.78 What is the appeal process when an MDR request for Executive
Branch information in NARA's legal custody is denied in whole or in
part?
Subpart G--Reclassification of Records Transferred to NARA
1260.80 What actions must NARA take when information in its physical
and legal custody is reclassified after declassification under
proper authority?
1260.82 What actions must NARA take with information in its physical
and legal custody that has been made available to the public after
declassification without proper authority?
Authority: 44 U.S.C. 2101 to 2118; 5 U.S.C. 552; E.O. 13526, 75
FR 707, 3 CFR, 2009 Comp., p. 298; Presidential Memorandum of
December 29, 2009 ``Implementation of the Executive Order,
Classified National Security Information,'' 75 FR 733, 3 CFR, 2009
Comp., p. 412; 32 CFR Part 2001.
Subpart A--General Information
Sec. 1260.1 What is the purpose of this part?
(a) This subchapter defines the responsibilities of NARA and other
Federal agencies for declassification of classified national security
information in the holdings of NARA. This part also describes NARA's
procedures for:
(1) Operation of the National Declassification Center,
(2) Processing referrals to other agencies,
(3) Facilitating systematic reviews of NARA holdings, and
(4) Processing mandatory declassification review requests for NARA
holdings.
(b) Regulations for researchers who wish to request access to
materials containing classified national security information are found
in 36 CFR part 1256.
(c) For the convenience of the user, the following table provides
references between the sections contained in this part and the relevant
sections of the Order and the Implementing Directive.
[[Page 81829]]
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Related section of E.O. Related section of
CFR section 13526 Implementing Directive
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1260.20 Who is responsible for the declassification 3.3, 3.3(d)(3), 3.6 ...........................
of classified national security Executive Branch
information that has been accessioned by NARA?
1260.22 Who is responsible for the declassification 3.3(d)(3), 3.6 ...........................
of classified national security White House
originated information in NARA's holdings?
1260.24 Who is responsible for declassification of 6.1(s) ...........................
foreign government information in NARA's holdings?
1260.28 Who is responsible for declassifying ............................ 2001.24(i)
Restricted Data (as defined by the Atomic Energy Act
of 1954, as amended), Formerly Restricted Data (as
defined in 10 CFR 1045.3, and Transclassified
Foreign Nuclear Information (as defined in 32 CFR
2001.24(i))?
1260.34 What are the responsibilities of the NDC?.... 3.3, 3.3(d)(3), 3.4 ...........................
1260.36 What are agency responsibilities with the 3.3(d)(3) ...........................
NDC?.
1260.40 What types of referrals will the NDC process? 3.3 ...........................
1260.42 How does the NDC process referrals of Federal 3.3(d)(3)(B) ...........................
Records?.
1260.46 How does the Department of Defense process 3.3 ...........................
referrals?.
1260.50 How are records at NARA reviewed as part of 3.3 ...........................
the automatic declassification process?
1260.52 What are the procedures when agency personnel 3.3 2001.30(p)
review records in NARA's legal and physical custody?
1260.56 What are NARA considerations when 3.3 ...........................
implementing automatic declassification?
1260.72 What procedures does NARA follow when it 3.6(a), 3.6(b) 2001.33
receives a request for Executive Branch records
under MDR?
1260.74 What are agency responsibilities after 3.5(c) ...........................
receiving an MDR request forwarded by NARA?
1260.76 What are NARA's procedures after it has ............................ Appendix A
received the agency's declassification
determinations?
1260.78 What is the appeal process when an MDR 3.3 2001.30(p), 2001.33
request for Executive Branch information in NARA's
legal custody is denied in whole or in part?
1260.80 What actions must NARA take when information ............................ 2001.13
in its physical and legal custody is reclassified
after declassification under proper authority?
1260.82 What actions must NARA take with information ............................ 2001.13
in its physical and legal custody that has been made
available to the public after declassification
without proper authority?
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Sec. 1260.2 What definitions apply to the regulations in this part?
Classified national security information, or classified
information, means information that has been determined under Executive
Order 13526 or any predecessor order to require protection against
unauthorized disclosure and is marked to indicate its classified status
when in documentary form.
Declassification means the authorized change in the status of
information from classified information to unclassified information.
Equity refers to information:
(1) Originally classified by or under the control of an agency;
(2) In the possession of the receiving agency in the event of
transfer of function; or
(3) In the possession of a successor agency for an agency that has
ceased to exist.
File series means file units or documents arranged according to a
filing system or kept together because they relate to a particular
subject or function, result from the same activity, document a specific
kind of transaction, take a particular physical form, or have some
other relationship arising out of their creation, receipt, or use, such
as restrictions on access or use.
Integral file block means a distinct component of a file series, as
defined in this section, that should be maintained as a separate unit
in order to ensure the integrity of the records. An integral file block
may consist of a set of records covering either a specific topic or a
range of time such as presidential administration or a 5-year
retirement schedule within a specific file series that is retired from
active use as a group. For purposes of automatic declassification,
integral file blocks shall contain only records dated within 10 years
of the oldest record in the file block.
Mandatory declassification review means the review for
declassification of classified information in response to a request for
declassification that meets the requirements under section 3.5 of
Executive Order 13526.
Records means the records of an agency and Presidential materials
or Presidential records, as those terms are defined in title 44, United
States Code, including those created or maintained by a government
contractor, licensee, certificate holder, or grantee that are subject
to the sponsoring agency's control under the terms of the contract,
license, certificate, or grant.
Referral means that information in an agency's records that was
originated by or is of interest to another agency is sent to that
agency for a determination of its classification status.
Systematic declassification review means the review for
declassification of classified information, including previously
exempted information, contained in records that have been determined by
the Archivist of the United States to have permanent historical value
in accordance with 44 U.S.C. 2107.
Sec. 1260.4 What NARA holdings are covered by this part?
The NARA holdings covered by this part are records legally
transferred to NARA, including Federal records, 44 U.S.C. 2107;
Presidential records, 44 U.S.C. 2201-2207; Nixon Presidential
materials, 44 U.S.C. 2111 note; and donated historical materials, 44
U.S.C. 2111.
[[Page 81830]]
Subpart B--Responsibilities
Sec. 1260.20 Who is responsible for the declassification of
classified national security Executive Branch information that has been
accessioned by NARA?
(a) Consistent with the requirements of section 3.3 of the Order on
automatic declassification, the originating agency is responsible for
declassification of its information and identifying equity holders.
(b) An agency may delegate declassification authority to NARA.
(c) If an agency does not delegate declassification authority to
NARA, the agency is responsible for reviewing the records to identify
the equities of other agencies before the date that the records become
eligible for automatic declassification.
(d) NARA is responsible for the declassification of records in its
legal custody of defunct agencies that have no successor. NARA will
consult with agencies having an equity in the records before making
declassification determinations in accordance with sections 3.3(d)(3)
and 3.6 of the Order.
Sec. 1260.22 Who is responsible for the declassification of
classified national security 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 and Vice 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 equity in the records
before making declassification determinations in accordance with
sections 3.3(d)(3) and 3.6 of Executive Order 13526.
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, as defined in
section 6.1(s) of the Order, in its holdings and will consult with the
agencies having equity in the records before making declassification
determinations.
Sec. 1260.26 Who is responsible for issuing special procedures for
declassification of records pertaining to intelligence activities and
intelligence sources or methods, or of classified cryptologic records
in NARA's holdings?
(a) The Director of National Intelligence is responsible for
issuing special procedures for declassification of classified records
pertaining to intelligence activities and intelligence sources and
methods.
(b) The Secretary of Defense is responsible for issuing special
procedures for declassification of classified cryptologic records.
Sec. 1260.28 Who is responsible for declassifying Restricted Data,
Formerly Restricted Data, and Transclassified Foreign Nuclear
Information?
(a) Only designated officials within the Department of Energy (DOE)
may declassify Restricted Data (RD) (as defined by the Atomic Energy
Act of 1954, as amended). The declassification of Formerly Restricted
Data (FRD) (as defined in 10 CFR 1045.3) may only be performed after
designated officials within DOE, in conjunction with designated
officials within DOD, have determined that the FRD marking may be
removed. Declassification of Transclassified Foreign Nuclear
Information (TFNI) (as defined in 32 CFR 2001.24(i)) may be performed
only by designated officials within DOE.
(b) Any record that contains RD, FRD, or TFNI shall be excluded
from automatic declassification and referred by the primary reviewing
agency to DOE using a completed SF 715 to communicate both the referral
action and the actions taken on the equities of the primary reviewing
agency. Any record identified by the primary reviewing agency as
potentially containing RD, FRD, or TFNI shall be referred to DOE using
a completed SF 715.
Subpart C--The National Declassification Center (NDC)
Sec. 1260.30 What is the NDC?
The National Declassification Center (NDC) is established within
NARA to streamline declassification processes, facilitate quality-
assurance measures, and implement standardized training for
declassification of records determined to have permanent historical
value.
Sec. 1260.32 How is the NDC administered?
(a) The NDC is administered by a Director, who shall be appointed
by the Archivist of the United States, in consultation with the
Secretaries of State, Defense, Energy, and Homeland Security, the
Attorney General, and the Director of National Intelligence.
(b) The Archivist, in consultation with the representatives of the
participants in the NDC and after receiving comments from the general
public, shall develop priorities for declassification activities under
the responsibility of the NDC that are based upon researcher interest
and likelihood of declassification.
Sec. 1260.34 What are the responsibilities of the NDC?
The NDC shall coordinate the following activities:
(a) Referrals, to include:
(1) Timely and appropriate processing of all referrals in
accordance with section 3.3(d)(3) of Executive Order 13526; and
(2) The exchange among agencies of detailed declassification
guidance to enable referrals as identified in paragraph (a)(1) of this
section.
(b) General interagency declassification activities as necessary to
fulfill the requirements of sections 3.3 and 3.4 of the Order;
(c) The development of effective, transparent, standard
declassification work processes, training, and quality assurance
measures;
(d) The development of solutions to declassifying information
contained in electronic records and special media; and planning for
solutions for declassifying information as new technologies emerge;
(e) The documentation and publication of declassification review
decisions; and support of NDC declassification responsibilities by
linking and using existing agency databases; and
(f) Storage, and related services, on a reimbursable basis, for
Federal records containing classified national security information.
Sec. 1260.36 What are agency responsibilities with the NDC?
Agency heads shall fully cooperate with the Archivist and the
activities of the NDC and provide the following resources for NDC
operations:
(a) Adequate and current declassification guidelines to process
referrals in accordance with section 3.3(d)(3) of the Order and as
indicated in Sec. 1260.54(a); and
(b) Assignment of agency personnel to the NDC, at the request of
the Archivist, with delegated authority by the agency head to review
and exempt or declassify information originated by that agency found in
records accessioned into the National Archives of the United States;
and
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(c) Coordination with the NDC of the establishment of any agency
centralized facilities and internal operations to conduct
declassification reviews to ensure that such agencies conduct internal
declassification reviews of records of permanent historical value.
Sec. 1260.38 How does the NDC ensure the quality of declassification
reviews?
An interagency team of experienced declassification reviewers,
established by NDC, conducts a sampling of reviewed records according
to a sampling regime approved by a separate interagency program
management team. The interagency team will verify that each series of
agency reviewed records complies with the requirements of the Special
Historical Records Review Plan (Supplement) dated March 3, 2000 (DOE-
NARA Plan), pursuant to the requirements of Public Law 105-261 (112
Stat. 2259) and Public Law No. 106-65 (113 Stat. 938). Record series
that cannot be verified to have been reviewed in accordance with the
DOE-NARA Plan will not proceed through the NDC verification process
until verification is received by the NDC. The DOE will participate on
the interagency team to conduct the quality control reviews required by
the DOE-NARA Plan in accordance with priorities established by the NDC.
Sec. 1260.40 What types of referrals will the NDC process?
The NDC processes referrals of both Federal records and
Presidential records. Referrals identified in accessioned Federal
records will be processed by the Interagency Referral Center (IRC);
referrals identified in records maintained by the Presidential
Libraries will be processed by the Remote Archives Capture (RAC)
Project. (The RAC Project is a collaborative program to facilitate the
declassification review of classified records in the Presidential
Libraries in accordance with section 3.3 of the Order. In this project,
classified Presidential records at the various Presidential Libraries
are scanned and brought to the Washington, DC, metropolitan area in
electronic form for review by equity-holding agencies.)
Sec. 1260.42 How does the NDC process referrals of Federal Records?
(a) All referrals are processed through the IRC.
(b) Agencies will have one year from the time they receive formal
notification of referrals by the NDC to review their equity in the
records. If an agency does not complete its review within one year of
formal notification, its information will be automatically declassified
in accordance with section 3.3(d)(3)(B) of the Order unless the
information has been properly exempted by an equity holding agency
under section 3.3 of the Order.
(c) Once notified, the agencies will coordinate their review with
the NDC so the NDC can properly manage the workflow of the IRC.
Sec. 1260.44 How does the NDC process RAC Project referrals?
(a) The Presidential Libraries use the RAC Project to process
referrals.
(b) Agencies will be notified of RAC Project referrals according to
an annual prioritization schedule via the NDC.
(c) The RAC Project identifies the primary agency with equity in
the record.
(d) The primary agency will have up to one year from the time it is
notified of their referral to complete the review of its equity and
identify all other agencies (``secondary agencies'') with an interest
in the record. If an agency does not complete its review in one year,
its equity will be automatically declassified.
(e) Secondary agencies receiving notification of their referrals
through the RAC Project will have up to one year from the date of
notification to complete their review.
Sec. 1260.46 How does the Department of Defense process referrals?
(a) The Department of Defense (DOD) established the Joint Referral
Center (JRC) to review DOD agencies' records and all DOD equities
within those records for declassification in accordance with section
3.3 of the Order.
(b) The JRC shall include sufficient quality assurance review
policies that are in accordance with policies at the NDC and will
provide the NDC with sufficient information on the results of these
reviews to facilitate non-DOD agency referral processing and final
archival processing for public release.
(c) NARA may loan accessioned records to the JRC for this purpose.
Subpart D--Automatic Declassification
Sec. 1260.50 How are records at NARA reviewed as part of the
automatic declassification process?
(a) Consistent with the requirements of section 3.3 of Executive
Order 13526 on automatic declassification, NARA staff may review for
declassification records for which the originating agencies have
provided written authority to apply their approved declassification
guides. The originating agency must review records for which this
authority has not been provided.
(b) Agencies may choose to review their own records that have been
transferred to NARA's legal custody, by sending personnel to the NARA
facility where the records are located to conduct the declassification
review.
(c) Classified materials in the Presidential Libraries may be
referred to agencies holding equity in the records through the RAC
Project.
Sec. 1260.52 What are the procedures when agency personnel review
records in NARA's legal and physical custody?
(a) NARA will:
(1) Make the records available to properly cleared agency
reviewers;
(2) Provide space for agency reviewers in the facility in which the
records are located to the extent that space is available; and
(3) 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) Use the Standard Form (SF) 715 and follow NARA procedures for
identifying and documenting records that require exemption, referral,
or exclusion in accordance with section 3.3 of the Order or 32 CFR
2001.30(p); 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 part 1254 for more information on
acceptable equipment.
(4) Provide NARA with information, as requested by the Archivist
and/or NDC Director, on their review so as to facilitate the processing
of referrals and archival processing.
Sec. 1260.54 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
[[Page 81832]]
(2) The correct security conditions for the storage and handling of
classified national security 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 for use of any equipment such as scanners,
copiers, or cameras to ensure that they do not pose an unacceptable
risk of damage to archival materials.
Sec. 1260.56 What are NARA considerations when implementing automatic
declassification?
(a) Integral File Blocks. Classified records within an integral
file block that have not been reviewed and properly exempted from
declassification, or referred to an equity holder, will be
automatically declassified on December 31 of the year that is 25 years
from the date of the most recent record within the file block, except
as specified in paragraphs (b), (c), and (d) of this section. For the
purposes of automatic declassification, integral file blocks shall
contain only records dated within 10 years of the oldest record in the
block. The records of each Presidential Administration will be treated
as an integral file block and will be scanned for declassification
review through the RAC Project.
(b) Special media records. After consultation with the Director of
the National Declassification Center and before the records are subject
to automatic declassification, an agency head or senior agency official
may delay automatic declassification for up to five additional years
for classified information contained in media that make a review for
possible declassification exemptions more difficult or costly. NARA,
through the NDC, will coordinate processing of referrals made in these
special media records as part of its overall prioritization strategy.
(c) Referrals. The IRC at the NDC will provide official
notification for Federal records, while the RAC Project will provide
formal notification for Presidential records. For agencies which fail
to act on their referrals after formal notification by the IRC or the
RAC Project, NARA will automatically declassify their information in
accordance with section 3.3(d)(3)(B) of the Order.
(d) Additional referrals. Agencies will identify referrals in
accordance with section 3.3(d)(3) of the Order. NARA will delay
automatic declassification for up to 1 year for classified records that
have been identified by the originating agency or by NARA as having
classified information that requires referral that were not identified
by the primary reviewing agency.
(e) Other circumstances. Information from another agency that has
not been properly identified and referred is not subject to automatic
declassification. When NARA identifies information, in accordance with
section 3.3 of the Order, that agency will have up to 1 year from the
date of formal notification to review its information for
declassification.
(f) Discovery of information inadvertently not reviewed. When NARA
identifies a file series or collection in its physical and legal
custody that contains classified information over 25 years old and that
was inadvertently not reviewed before the effective date of automatic
declassification, NARA must report the discovery to the Information
Security Oversight Office (ISOO) and to the responsible agency head or
senior agency official within 90 days of discovery. ISOO, the
responsible agency, and NARA will consult on a delay of up to three
years to review the records.
Subpart E--Systematic Declassification
Sec. 1260.60 How does the NDC facilitate systematic review of records
exempted at the individual record or file series level?
(a) NARA, through the NDC, follows the procedures established in
Sec. 1260.52 above regarding agency access for review of exempt file
series.
(b) NARA, through the NDC, will establish a prioritization schedule
for review of exempted individual Federal records. This schedule will
take into account upcoming exemption expiration, researcher interest
and likelihood of declassification. This schedule will be included as
part of the NDC annual work plan.
(c) The Presidential Libraries will work directly with agencies to
facilitate the review of records exempted at the file series level.
(d) The Presidential Libraries, through the NDC, will establish a
prioritization schedule for review of previously exempted classified
materials in the Presidential Library system. These materials will be
referred to agencies holding equity in the records via the RAC Project.
Subpart F--Mandatory Declassification Review (MDR)
Sec. 1260.70 How does a researcher submit an MDR request?
(a) For Federal records in NARA's physical and legal custody,
requests for MDR should be submitted to: National Archives at College
Park, ANDC (Attn: MDR Staff), 8601 Adelphi Road, Room 2600, College
Park MD 20740 or specialaccess_foia@nara.gov;
(b) For Presidential records, Nixon Presidential materials, or
donated presidential materials in the custody of the Presidential
Libraries, MDR requests should be submitted to the Presidential Library
with physical and legal custody of the records;
(c) For Congressional records in NARA's custody, MDR requests
should be submitted to: The Center for Legislative Archives, 700
Pennsylvania Ave. NW., Washington, DC 20408 or
legislative.archives@nara.gov.
(d) For all records in NARA's physical and legal custody, MDR
requests must describe the record or material with sufficient
specificity to enable NARA to locate it with a reasonable amount of
effort. If NARA is unable to locate the record or material, or requires
additional information, NARA will inform the requester.
Sec. 1260.72 What procedures does NARA follow when it receives a
request for Executive Branch records under MDR?
(a) NARA will review the requested records and determine if they
have already been released. If not, NARA will refer copies of the
records to the originating agency and to agencies that may have an
interest or activity with respect to the classified 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.
(b) 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
interest in or activity with respect to the classified information.
(c) If the document or information has been reviewed for
declassification within the past 2 years, NARA may opt not to conduct a
second review and may instead inform the requester of this fact and of
the prior review decision and advise the requester of appeal rights in
accordance with 32 CFR 2001.33.
(d) If NARA determines that a requester has submitted a request for
the
[[Page 81833]]
same information under both MDR and the Freedom of Information Act
(FOIA), as amended, NARA will notify the requester that he/she is
required to elect one process or the other. If the requester fails to
elect one or the other, the request will be treated under the FOIA,
unless the requested information or materials are subject only to
mandatory review.
(e) 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 and advise the requester of
available appeal rights. NARA may also inform the requester if part or
all of the requested information is referred to other agencies for
declassification review in accordance with section 3.6(a) and (b) of
the Executive Order.
(f) If NARA fails to provide the requester with a final decision on
the mandatory review request within one year of the original date of
the request, the requester may appeal to the Interagency Security
Classification Appeals Panel (ISCAP).
Sec. 1260.74 What are agency responsibilities after receiving an MDR
request forwarded by NARA?
(a) The agency receiving the referral will promptly process and
review the referral for declassification and public release on a line-
by-line basis in accordance with section 3.5(c) of the Order and
communicate its review decisions to NARA.
(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 to which NARA has not already sent a
referral for review.
(c) The agency must return to NARA a complete copy of each referred
document with the agency determination clearly stated to leave no doubt
about the status of the information and the authority for its continued
classification or its declassification.
Sec. 1260.76 What are NARA's procedures after it has received the
agency's declassifications determination?
(a) If a document cannot be declassified in its entirety, the
agency must return to NARA a copy of the document with those portions
that require continued classification clearly marked. If a document
requires continued classification in its entirety, the agency must
return to NARA a copy of the document clearly so marked.
(b) NARA will notify the requester of the results of its review and
make available copies of documents declassified in full and in part. If
the requested information cannot be declassified in its entirety, NARA
will send the requester 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. Additional information on
appeals is located in 36 CFR Part 1264 and in Appendix A to 32 CFR Part
2001 (Article VIII).
Sec. 1260.78 What is the appeal process when an MDR request for
Executive Branch information in NARA's legal custody is denied in whole
or in part?
(a) NARA shall respond to the requester in writing that her/his
mandatory declassification review request was denied in full or in part
and the rationale for the denial by using the appropriate category in
either section 1.4 of the Order for information that is less than 25
years old, or section 3.3 of the Order for information that is older
than 25 years, or 32 CFR 2001.30(p) for information governed by the
Atomic Energy Act of 1954, as amended, or the National Security Act of
1947, as amended. NARA will send the requester 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. If a final
decision on the appeal is not made within 60 working days of the date
of the appeal, the requester may appeal to the Interagency Security
Classification Appeals Panel (ISCAP).
(b) NARA will process all appeals in accordance with 32 CFR
2001.33(a)(2)(iii). NARA will inform all agencies with equity interests
in the denied information. Those agencies will assist NARA in the
appellate process and provide NARA with final declassification review
decisions in a timely manner and consistent with 32 CFR
2001.33(a)(2)(iii).
(c) NARA will also notify the requester of the right to appeal
denials of access to the Interagency Security Classification Appeals
Panel, Attn: Mandatory Declassification Review Appeals, c/o Information
Security Oversight Office, National Archives and Records
Administration, 700 Pennsylvania Avenue NW., Room 503, Washington, DC
20408; iscap@nara.gov.
(d) The pertinent NARA office or Presidential Library will
coordinate the potential release of information declassified by the
Interagency Security Classification Appeals Panel (ISCAP).
Subpart G--Reclassification of Records Transferred to NARA
Sec. 1260.80 What actions must NARA take when information in its
physical and legal custody is reclassified after declassification under
proper authority?
(a) When information in the physical and legal custody of NARA that
has been available for public use following declassification under
proper authority is proposed for reclassification in accordance with 32
CFR 2001.13(b)(1), NARA shall take the following actions:
(1) The agency head making the determination to reclassify the
information shall notify the Archivist of the potential
reclassification in writing,
(2) The Archivist shall suspend public access pending approval or
disapproval by the Director of the Information Security Oversight
Office of the reclassification request, and
(3) The Director of the Information Oversight Office shall normally
make a decision on the validity of the reclassification request within
30 days, and
(4) The decision of the Director of ISOO may be appealed by the
Archivist or the agency head to the President through the National
Security Advisor.
(5) Access shall remain suspended pending a prompt decision on the
appeal.
(b) [Reserved]
Sec. 1260.82 What actions must NARA take with information in its
physical and legal custody that has been made available to the public
after declassification without proper authority?
(a) When information in the physical and legal custody of NARA has
been made available for public use following declassification without
proper authority and needs to have its original classification markings
restored, the original classification authority shall notify the
Archivist in writing in accordance with 32 CFR 2001.13(a)(1).
(b) If the Archivist does not agree with the reclassification
decision and the information is more than 25 years old, the information
will be temporarily withdrawn from public access and the Archivist will
appeal the agency decision to the Director of ISOO, who will make a
final decision in accordance with 32 CFR 2001.13(a)(1). The decision of
the Director of ISOO may be appealed by the Archivist or the agency
head to the President through the National Security Advisor.
(c) Information about records that have been reclassified or have
had their classification restored as described in
[[Page 81834]]
Sec. Sec. 1260.80 and 1260.82 will be made available quarterly through
the NARA Web site, http://www.archives.gov/about/plans-reports/withdrawn/. Information will include the responsible agency, NARA
location, date withdrawn, number of records, and number of pages.
Dated: December 14, 2011.
David S. Ferriero,
Archivist of the United States.
[FR Doc. 2011-33284 Filed 12-28-11; 8:45 am]
BILLING CODE 7515-01-P
