[Federal Register Volume 80, Number 208 (Wednesday, October 28, 2015)]
[Rules and Regulations]
[Pages 65934-65944]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 197
[Docket ID: DoD-2013-OS-0108]
RIN 0790-AJ07
Historical Research in the Files of the Office of the Secretary
of Defense (OSD)
AGENCY: Department of Defense.
ACTION: Final rule.
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SUMMARY: This final rule updates and clarifies procedures regarding the
review and accessibility to records and information in the custody of
the Secretary of Defense and the OSD Components. The purpose of this
rule is to provide such guidance to former Cabinet level officials and
former Presidential appointees (FPAs), including their personnel,
aides, and official researchers.
DATES: This rule is effective November 27, 2015.
FOR FURTHER INFORMATION CONTACT: Mr. Ronald R. McCully, 571-372-0473.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Purpose of the Regulatory Action
a. The Office of the Secretary of Defense (OSD) is issuing a final
rule that would update Part 197.5 of Title 32, Code of Federal
Regulations. This final rule updates and clarifies procedures regarding
the review and accessibility to records and information in the custody
of the Secretary of Defense and the OSD Components. The purpose of this
rule is to provide such guidance to former Cabinet level officials and
former Presidential appointees (FPAs), including their personnel,
aides, and official researchers.
b. In accordance with Title 5 of the United States Code,
``Government Organization and Employees,'' this rule updates procedures
for the programs that permit authorized personnel to perform historical
research in records created by or in the custody of Office of the
Secretary of Defense and its components consistent with federal
regulations.
B. Summary of the Major Provisions of the Regulatory Action In Question
This final rule updates and clarifies procedures regarding the
review and accessibility to records and information in the custody of
the Secretary of Defense and the OSD Components. The purpose of this
rule is to provide such guidance to former Cabinet level officials and
former Presidential appointees (FPAs), including their personnel,
aides, and official researchers.
1. Explanation of FOIA Exemptions and Classification Categories:
Explanation of restrictions applicable to the public's request for
information within OSD files.
2. Responsibilities: Outlines the responsibilities of Director of
Administration and Management (D&AM); OSD Records Administrator, and
the OSD Components.
3. Procedures for Historical Researchers Permanently Assigned
Within the Executive Branch Working on Official Projects: Updates and
outlines procedures for access to information held within OSD files for
historical research.
4. Procedures for the Department of State (DoS) Foreign Relations
of the United States (FRUS) Series: Updates and outlines for official
researchers of the DOS to access information within OSD Files.
5. Procedures for Historical Researchers Not Permanently Assigned
to the Executive Branch: Updates and outlines procedures for Non DoD
and executive branch personnel to access information within OSD files
for historical research.
6. Procedures for Document Review for the FRUS Series: Updates and
outlines procedures for reviewing FRUS information within OSD files for
historical research.
7. Procedures for Copying Documents: Updates and outlines
procedures for copying information within OSD files for historical
research.
8. General Guidelines for Researching OSD Records: Updates and
outlines procedures for researching information within OSD files for
historical research.
9. General Guidelines for Researching OSD Records: Updates and
outlines guidelines applicable to researchers while reviewing OSD
files.
C. Costs and Benefits
Annual yearly cost vary and are dependent on the number of
researchers requesting access to DoD owned information, the volume of
information requiring review and/or declassification and other
operational constraints within a given FY.
Cost: Cost estimates use actual data for 2012 per hour. Cost is
aggregated based on average rank (military), grade (civilian) and time
in service for personnel qualified for oversight of researchers within
the Washington-Baltimore-Northern Virginia, DC-MD-VA-WV-PA area.
Military = Rank 05 with 10+ years of time in service
Civilian = Grade GS-13, Step 5+ with minimum 5 years of time in service
Military = $39.77 per hour
Civilian = $48.51 per hour
[[Page 65935]]
Benefit: This allows the government to assert positive control over
access to classified and unclassified information requested for
research purposes. DoD information intended for public release that
pertains to military matters, national security issues, or subjects of
significant concern to the DoD shall be reviewed for clearance prior to
release.
II. Public Comments
On Thursday, May 8, 2014 (79 FR 26381-26391), the Department of
Defense published a proposed rule requesting public comment. At the end
of the 60-day public comment period, 1 comment was received.
Comment: OGIS commends OSD for providing access guidance to former
Cabinet-level officials and former Presidential appointees (FPAs),
including their personnel, aides, and official researchers,
particularly in regard to the nine FOIA exemptions, summarized in the
``Table--Explanation of FOIA Exemptions.''
The Table describes Exemption (b)(4) as protecting ``trade secrets
and commercial or financial information obtained from a private source
which would cause substantial competitive harm to the source if
disclosed.'' (Emphasis added) OGIS notes that Exemption 4 applies to
material obtained from a variety of sources, both public and private.
Such sources may include ``state governments, agencies of foreign
governments, and Native American tribes or nations,'' according to the
Department of Justice Guide to the Freedom of Information Act, http://www.justice.gov/oip/foia_guide09/exemption4.pdf#_PAGE1.
As such, OGIS suggests clarifying by changing ``from a private
source'' to ``a non-U.S. Government source.''
Response: OSD concurs and, in consultation with the OSD FOIA
Office, we will include in the next revision or update of the
regulation.
III. Regulatory Procedures
Executive Order 12866, ``Regulatory Planning and Review'' and Executive
Order 13563, ``Improving Regulation and Regulatory Review''
Executive Orders 13563 and 12866 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distribute impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule has not been designated a ``significant
regulatory action,'' because the rule does not have an annual effect on
the economy of $100 million or more or adversely affect in a material
way the economy; a section of the economy; productivity; competition;
jobs; the environment; public health or safety; or State, local, or
tribal governments or communities; create a serious inconsistency or
otherwise interfere with an action taken or planned by another Agency;
materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs, or the rights and obligations of recipients
thereof; or raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
these Executive Orders.
Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4)
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA)
(Pub. L. 104-4) requires agencies assess anticipated costs and benefits
before issuing any rule whose mandates require spending in any 1 year
of $100 million in 1995 dollars, updated annually for inflation. In
2014, that threshold is approximately $141 million. This rule will not
mandate any requirements for State, local, or tribal governments, nor
will it affect private sector costs.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
The Department of Defense certifies that this final rule is not
subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it
would not, if promulgated, have a significant economic impact on a
substantial number of small entities. Therefore, the Regulatory
Flexibility Act, as amended, does not require us to prepare a
regulatory flexibility analysis.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)
It has been certified that this rule does not impose reporting or
recordkeeping requirements under the Paperwork Reduction Act of 1995.
Executive Order 13132, ``Federalism''
Executive Order 13132 establishes certain requirements that an
agency must meet when it promulgates a proposed rule (and subsequent
final rule) that imposes substantial direct requirement costs on State
and local governments, preempts State law, or otherwise has Federalism
implications. This final rule will not have a substantial effect on
State and local governments.
List of Subjects in 32 CFR Part 197
Historical records, Research.
Accordingly, 32 CFR part 197 is revised to read as follows:
PART 197--HISTORICAL RESEARCH IN THE FILES OF THE OFFICE OF THE
SECRETARY OF DEFENSE (OSD)
Sec.
197.1 Purpose.
197.2 Applicability.
197.3 Definitions.
197.4 Policy.
197.5 Responsibilities.
197.6 Procedures.
Appendix A to Part 197--Explanation of FOIA Exemptions and
Classification Categories
Authority: 5 U.S.C. 301, Executive Order 13526, 5 U.S.C. 552b,
and Pub. L. 102-138.
Sec. 197.1 Purpose.
This part, in accordance with the authority in DoD Directive
5110.4, implements policy and updates procedures for the programs that
permit authorized personnel to perform historical research in records
created by or in the custody of Office of the Secretary of Defense
(OSD) consistent with Executive Order 13526; DoD Manual 5230.30, ``DoD
Mandatory Declassification Review (MDR) Program'' (available at http://www.dtic.mil/whs/directives/corres/pdf/523030m.pdf); 32 CFR part 286;
32 CFR part 310; DoD Manual 5200.01, ``DoD Information Security
Program'' Volumes 1-4 (available at http://www.dtic.mil/whs/directives/corres/pdf/520001_vol1.pdf, http://www.dtic.mil/whs/directives/corres/pdf/520001_vol2.pdf, http://www.dtic.mil/whs/directives/corres/pdf/520001_vol3.pdf, and http://www.dtic.mil/whs/directives/corres/pdf/520001_vol4.pdf); 36 CFR 1230.10 and 36 CFR part 1236; DoD Directive
5230.09, ``Clearance of DoD Information for Public Release'' (available
at http://www.dtic.mil/whs/directives/corres/pdf/523009p.pdf); and 32
CFR 197.5.
Sec. 197.2 Applicability.
This part applies to:
(a) The Office of the Secretary of Defense (OSD), the Defense
Agencies, and the DoD Field Activities in the National Capital Region
that are serviced by Washington Headquarters Services (WHS) (referred
to collectively in this part as the ``WHS-Serviced Components'').
(b) All historical researchers as defined in Sec. 197.3.
[[Page 65936]]
(c) Cabinet Level Officials, Former Presidential Appointees (FPAs)
to include their personnel, aides and researchers, seeking access to
records containing information they originated, reviewed, signed, or
received while serving in an official capacity.
Sec. 197.3 Definitions.
The following definitions apply to this part:
Access. The availability of or the permission to consult records,
archives, or manuscripts. The ability and opportunity to obtain
classified, unclassified, or administratively controlled information or
records.
Electronic records. Records stored in a form that only a computer
can process and satisfies the definition of a federal record, also
referred to as machine-readable records or automatic data processing
records (including email).
Historical researchers or requestors. A person approved to conduct
research in OSD files for historical information to use in a DoD
approved project (e.g., agency historical office projects, books,
articles, studies, or reports), regardless of the person's employment
status. Excluded are Military personnel assigned to OSD; OSD employees,
contractors, and students conducting research in response to academic
requirements.
Records (also referred to as federal records or official records).
All books, papers, maps, photographs, machine-readable materials, or
other documentary materials, regardless of physical form or
characteristics, made or received by an agency of the U.S. Government
under federal law or in connection with the transaction of public
business and preserved or appropriate for preservation by that agency
or its legitimate successor as evidence of the organization, functions,
policies, decisions, procedures, operations, or other activities of the
U.S. Government or because of the informational value of data in them.
Sec. 197.4 Policy.
It is OSD policy that:
(a) Pursuant to Executive Order 13526, anyone requesting access to
classified material must possess the requisite security clearance.
(b) Members of the public seeking the declassification of DoD
documents under the provisions of section 3.5 of Executive Order 13526
will contact the appropriate OSD Component as listed in DoD Manual
5230.30.
(c) Records and information requested by FPA and approved
historical researchers will be accessed at a facility under the control
of the National Archives and Records Administration (NARA), NARA's
Archives II in College Park, Maryland, a Presidential library, or an
appropriate U.S. military facility or a DoD activity in accordance with
Vol 3 of DoD Manual 5200.01, ``DoD Information Security Program,''
February 24, 2012, as amended.
(d) Access to records and information will be limited to the
specific records within the scope of the proposed research request over
which OSD has authority and to any other records for which the written
consent of other agencies with authority has been granted in accordance
with Vol 3 of DoD Manual 5200.01, ``DoD Information Security Program,''
February 24, 2012, as amended.
(e) Access to unclassified OSD Component records and information
will be permitted consistent with the restrictions of the exemptions of
5 U.S.C. 552(b) (also known and referred to in this part as the
``Freedom of Information Act'' (FOIA), 32 CFR part 286, Sec. 197.5 of
this part, and consistent with 32 CFR part 310. The procedures for
access to classified information will be used if the requested
unclassified information is contained in OSD files whose overall
markings are classified.
(f) Except as otherwise provided in DoD Manual 5200.01 volume 3, no
person may have access to classified information unless that person has
been determined to be trustworthy and access is essential to the
accomplishment of a lawful and authorized purpose.
(g) Persons outside the Executive Branch who are engaged in
approved historical research projects may be granted access to
classified information, consistent with the provisions of Executive
Order 13526 and DoD Manual 5200.01 volume 1 provided that the OSD
official with classification jurisdiction over that information grants
access.
(h) Contractors working for Executive Branch agencies may be
allowed access to classified OSD Component files provided the
contractors meet all the required criteria for such access as an
historical researcher including the appropriate level of personnel
security clearance set forth in paragraphs (a) and (i) of this section.
No copies of OSD records and information may be released directly to
the contractors. The Washington Headquarters Services Records and
Declassification Division (WHS/RDD) will be responsible for ensuring
that the contractor safeguards the documents and the information is
only used for the project for which it was requested per section 4.1 of
Executive Order 13526, ``Classified National Security Information,''
December 29, 2009.
(i) All DoD-employed requesters, to include DoD contractors, must
have critical nuclear weapons design information (CNWDI) to access
CNWDI information. All other non DoD and non-Executive Branch personnel
must have a Department of Energy-issued ``Q'' clearance to access CNWDI
information in accordance with DoD Manual 5220.22, ``National
Industrial Security Program Operating Manual (NISPOM),'' February 28,
2006, as amended.
(j) The removal of federal records and information from OSD custody
is not authorized; this includes copies and email according to 36 CFR
1230.10. Copies of records and information that are national security
classified will remain under the control of the agency.
(k) Access for FPAs is limited to records they originated,
reviewed, signed, or received while serving as Presidential appointees,
unless there is another basis for providing access in accordance with
Vol 3 of DoD Manual 5200.01, ``DoD Information Security Program,''
February 24, 2012, as amended.
(l) Authorization is required from all agencies whose classified
information is, or is expected to be, in the requested files prior to
granting approval for access. Separate authorizations for access to
records and information maintained in OSD Component office files or at
the federal records centers will not be required in accordance with Vol
3 of DoD Manual 5200.01, ``DoD Information Security Program,'' February
24, 2012, as amended.
Sec. 197.5 Responsibilities.
(a) The Director of Administration (DA), Office of the Deputy Chief
Management Officer (ODCMO), or designee is the approval authority for
access to DoD information in OSD Component files and in files at the
National Archives, Presidential libraries, and other similar
institutions in accordance with DoD Directive 5110.4 and DoD Manual
5230.30.
(b) OSD Records Administrator. Under the authority, direction, and
control of the DA, ODCMO, the OSD Records Administrator:
(1) Exercises approval authority for research access to OSD and WHS
Serviced Components records, information, and the Historical Research
Program.
(2) Maintains records necessary to process and monitor each case.
(3) Obtains all required authorizations.
(4) Obtains, when warranted, the legal opinion of the General
Counsel of the
[[Page 65937]]
Department of Defense regarding the requested access.
(5) Coordinates, with the originator, on the public release review
on documents selected by the researchers for use in unclassified
projects in accordance with DoD Directive 5230.09 and DoD Instruction
5230.29, ``Security and Policy Review of DoD Information for Public
Release'' (available at http://www.dtic.mil/whs/directives/corres/pdf/523029p.pdf).
(6) Coordinates requests with the OSD Historian.
(7) Provides prospective researchers the procedures necessary for
requesting access to OSD Component files.
(c) The WHS-serviced Components heads, when requested:
(1) Determine whether access is for a lawful and authorized
government purpose or in the interest of national security.
(2) Determine whether the specific records requested are within the
scope of the proposed historical research.
(3) Determine the location of the requested records.
(4) Provide a point of contact to the OSD Records Administrator.
Sec. 197.6 Procedures.
(a) Procedures for historical researchers permanently assigned
within the Executive Branch working on official projects. (1) In
accordance with Sec. 197.5, the WHS-serviced Components heads, when
requested, will:
(i) Make a written determination that the requested access is
essential to the accomplishment of a lawful and authorized U.S.
Government purpose, stating whether the requested records can be made
available. If disapproved, cite specific reasons.
(ii) Provide the location of the requested records, including
accession and box numbers if the material has been retired to the
Washington National Records Center (WNRC).
(iii) Provide a point of contact for liaison with the OSD Records
Administrator if any requested records are located in OSD Component
working files.
(2) The historical researcher or requestor will:
(i) Submit a request for access to OSD files to: OSD Records
Administrator, WHS/Records and Declassification Division, 4800 Mark
Center Drive, Suite 02F09-02, Alexandria, VA 22350-3100.
(ii) All requests must be signed by an appropriate official and
must contain:
(A) The name(s) of the researcher(s) and any assistant(s), level of
security clearance, and the federal agency, institute, or company to
which the researcher is assigned.
(B) A statement on the purpose of the project, including whether
the final product is to be classified or unclassified.
(C) An explicit description of the information being requested and,
if known, the originating office, so that the identification and
location of the information may be facilitated.
(D) Appropriate higher authorization of the request.
(E) Ensure researcher's security manager or personnel security
office verifies his or her security clearances in writing to the OSD
Records Administrator's Security Manager.
(iii) Maintain the file integrity of the records being reviewed,
ensuring that no records are removed and that all folders are replaced
in the correct box in their proper order.
(iv) Make copies of any documents pertinent to the project,
ensuring that staples are carefully removed and that the documents are
re-stapled before they are replaced in the folder.
(v) Submit the completed manuscript for review prior to public
presentation or publication to: WHS/Chief, Security Review Division,
Office of Security Review, 1155 Defense Pentagon, Washington, DC 20301-
1155.
(vi) If the requester is an official historian of a federal agency
requiring access to DoD records at the National Archives facilities or
a Presidential library, the requested must be addressed directly to the
pertinent facility with an information copy sent to the OSD Records
Administrator. The historian's security clearances must be verified to
the National Archives or the Presidential library.
(3) The use of computers, laptops, computer tablets, personal
digital assistants, recorders, or similar devices listed in Sec.
197.6(f) is prohibited. Researchers will use letter-sized paper
(approximately 8\1/2\ by 11 inches), writing on only one side of the
page. Each page of notes must pertain to only one document.
(4) The following applies to all notes taken during research:
(i) All notes are considered classified at the level of the
document from which they were taken.
(ii) Indicate at the top of each page of notes the document:
(A) Originator.
(B) Date.
(C) Subject (if the subject is classified, indicate the
classification).
(D) Folder number or other identification.
(E) Accession number and box number in which the document was
found.
(F) Security classification of the document.
(iii) Number each page of notes consecutively.
(iv) Leave the last 1\1/2\ inches on the bottom of each page of
notes blank for use by the reviewing agencies.
(v) Ensure the notes are legible, in English, and in black ink.
(vi) All notes must be given to the staff at the end of each day.
The facility staff will forward the notes to the OSD Records
Administrator for an official review and release to the researcher.
(5) The OSD Records Administrator will:
(i) Process all requests from Executive Branch employees requesting
access to OSD Component files for official projects.
(ii) Determine which OSD Component originated the requested records
and, if necessary, request an access determination from the OSD
Component and the location of the requested records, including but not
limited to electronic information systems, databases or accession
number and box numbers if the hardcopy records have been retired
offsite.
(iii) Request authorization for access from other OSD Component as
necessary.
(A) Official historians employed by federal agencies may have
access to the classified information of any other agency found in DoD
files, as long as authorization for access has been obtained from these
agencies.
(B) If the requester is not an official historian, authorization
for access must be obtained from the Central Intelligence Agency (CIA),
National Security Council (NSC), Department of State (DOS), and any
other non-DoD agency whose classified information is expected to be
found in the files to be accessed.
(iv) Make a written determination as to the researcher's
trustworthiness based on the researcher having been issued a security
clearance.
(v) Compile all information on the request for access to classified
information, to include evidence of an appropriately issued personnel
security clearance, and forward the information to the DA, ODCMO; OSD
Component or designee, who will make the access determination.
(vi) Notify the researcher of the authorization and conditions for
access to the requested records or of the denial of access and the
reason(s).
(vii) Ensure that all conditions for access and release of
information for use in the project are met.
(viii) Make all necessary arrangements for the researcher to visit
the review location and review the requested records.
[[Page 65938]]
(ix) Provide all requested records and information under OSD
control in electronic formats consistent with 36 CFR part 1236. For all
other information, a staff member will be assigned to supervise the
researcher's copying of pertinent documents at the assigned facility.
(x) If the records are maintained in the OSD Component's working
files, arrange for the material to be converted to electronic format
for the researchers to review.
(xi) Notify the National Archives, Presidential library, or
military facility of the authorization and access conditions of all
researchers approved to research OSD records held in those facilities.
(b) Procedures for the DOS Foreign Relations of the United States
(FRUS) series. (1) The DOS historians will:
(i) Submit requests for access to OSD files. The request should
list the names and security clearances for the historians doing the
research and an explicit description, including the accession and box
numbers, of the files being requested. Submit request to: OSD Records
Administrator, WHS/Records and Declassification Division, 4800 Mark
Center Dr, Suite 02F09-02, Alexandria, VA 22380-2100.
(ii) Submit to the OSD Records Administrator requests for access
for members of the Advisory Committee on Historical Diplomatic
Documentation to documents copied by the DOS historians for the series
or the files reviewed to obtain the documents.
(iii) Request that the DOS Diplomatic Security staff verify all
security clearances in writing to the OSD Records Administrator's
Security Manager.
(iv) Give all document copies to the OSD Records Administrator
staff member who is supervising the copying as they are made.
(v) Submit any OSD documents desired for use or pages of the
manuscript containing OSD classified information for declassification
review prior to publication to the Chief, Security Review Division at:
WHS/Chief, Security Review Division, Office of Security Review, 1155
Defense Pentagon, Washington, DC 20301-1155.
(2) The OSD Records Administrator will:
(i) Determine the location of the records being requested by the
DOS for the FRUS series according to Title IV of Public Law 102-138,
``The Foreign Relations of the United States Historical Series.''
(ii) Act as a liaison with the CIA, NSC, and any other non-OSD
agency for access by DOS historians to records and information and such
non-DoD agency classified information expected to be interfiled with
the requested OSD records.
(iii) Obtain written verification from the DOS Diplomatic Security
staff of all security clearances, including ``Q'' clearances.
(iv) Make all necessary arrangements for the DOS historians to
access, review, and copy documents selected for use in their research
in accordance with procedures in accordance with Sec. 197.6(a).
(v) Provide a staff member to supervise document copying in
accordance with the guidance provided in Sec. 197.6(d) of this part.
(vi) Compile a list of the documents that were copied by the DOS
historians.
(vii) Scan and transfer copies to DOS in NARA an approved
electronic format.
(viii) Submit to the respective agency a list of CIA and NSC
documents copied and released to the DOS historians.
(ix) Process DOS Historian Office requests for members of the
Advisory Committee on Historical Diplomatic Documentation with
appropriate security clearances to have access to documents copied and
used by the DOS historians to compile the FRUS series volumes or to the
files that were reviewed to obtain the copied documents. Make all
necessary arrangements for the Advisory Committee to review any
documents that are at the WNRC.
(c) Procedures for historical researchers not permanently assigned
to the Executive Branch. (1) The WHS-serviced Components heads, when
required, will:
(i) Recommend to the DA, ODCMO, or his or her designee, approval or
disapproval of requests to access OSD information. State whether access
to, release, and clearance of the requested information is in the
interest of national security and whether the information can be made
available. If disapproval is recommended, specific reasons should be
cited.
(ii) Provide the location of the requested information, including
but not limited to the office, component, information system or
accession and box numbers for any records that have been retired to the
WNRC.
(iii) Provide a point of contact for liaison with the OSD Records
Administrator if any requested records are located in OSD Component
working files.
(2) The OSD Records Administrator will:
(i) Process all requests from non-Executive Branch researchers for
access to OSD or WHS-serviced Components files. Certify via the WHS
Security Officer that the requester has the appropriate clearances.
(ii) Determine which OSD Component originated the requested records
and, as necessary, obtain written recommendations for the research to
review the classified information.
(iii) Obtain prior authorization to review their classified
information from the DOS, CIA, NSC, and any other agency whose
classified information is expected to be interfiled with OSD records.
(iv) Obtain agreement from the researcher(s) and any assistant(s)
that they will comply with conditions governing access to the
classified information (see Figure to Sec. 197.6).
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(v) If the requester is an FPA, submit a memorandum after
completion of the actions described in this part to WHS, Human
Resources Directorate, Security Operations Division, requesting the
issuance (including an interim) or
[[Page 65942]]
reinstatement of an inactive security clearance for the FPA and any
assistant and a copy of any signed form letters. The Security Division
will contact the researcher(s) and any assistant(s) to obtain the forms
required to reinstate or initiate the personnel security investigation
to obtain a security clearance. Upon completion of the adjudication
process, notify the OSD Records Administrator in writing of the
reinstatement, issuance, or denial of a security clearance.
(vi) Make a written determination as to the researcher's
trustworthiness based on his or her having been issued a security
clearance.
(vii) Compile all information on the request for access to
classified information, to include either evidence of an appropriately
issued or reinstated personnel security clearance. Forward the
information to the DA, ODCMO or designee, who will make the final
determination on the applicant's eligibility for access to classified
OSD or WHS-serviced Component files. If the determination is favorable,
the DA, ODCMO or designee will then execute an authorization for
access, which will be valid for not more than 2 years.
(viii) Notify the researcher of the approval or disapproval of the
request. If the request has been approved, the notification will
identify the files authorized for review and specify that the
authorization:
(A) Is approved for a predetermined time period.
(B) Is limited to the designated files.
(C) Does not include access to records and/or information of other
federal agencies, unless such access has been specifically authorized
by those agencies.
(ix) Make all necessary arrangements for the researcher to visit
the WNRC and review any requested records that have been retired there,
to include written authorization, conditions for the access, and a copy
of the security clearance verification.
(x) If the requested records are at the WNRC, make all necessary
arrangements for the scanning of documents.
(xi) If the requested records are maintained in OSD or WHS-serviced
Component working files, make arrangements for the researcher to review
the requested information and, if authorized, copy pertinent documents
in the OSD or WHS-serviced Component's office. Provide the OSD
Component with a copy of the written authorization and conditions under
which the access is permitted.
(xii) Compile a list of all the documents requested by the
researcher.
(xiii) Coordinate the official review on all notes taken and
documents copied by the researcher.
(xiv) If the classified information to be reviewed is on file at
the National Archives, a Presidential library, or other facility,
notify the pertinent facility in writing of the authorization and
conditions for access.
(3) The researcher will:
(i) Submit a request for access to OSD Component files to OSD
Records Administrator, WHS/Records and Declassification Division, 4800
Mark Center Drive, Suite 02F09-02, Alexandria VA 22350-3100. The
request must contain:
(A) As explicit a description as possible of the information being
requested so that identification and location of the information may be
facilitated.
(B) A statement as to how the information will be used, including
whether the final project is to be classified or unclassified.
(C) A statement as to whether the researcher has a security
clearance, including the level of clearance and the name of the issuing
agency.
(D) The names of any persons who will be assisting the researcher
with the project. If the assistants have security clearances, provide
the level of clearance and the name of the issuing agency.
(E) A signed copy of their agreement (see Figure) to safeguard the
information and to authorize a review of any notes and manuscript for a
determination that they contain no classified information. Each project
assistant must also sign a copy of the letter.
(F) The forms necessary to obtain a security clearance, if the
requester is an FPA without an active security clearance. Each project
assistant without an active security clearance will also need to
complete these forms. If the FPA or assistant have current security
clearances, their personnel security office must provide verification
in writing to the OSD Records Administrator's Security Manager.
(ii) Maintain the integrity of the files being reviewed, ensuring
that no records are removed and that all folders are replaced in the
correct box in their proper order.
(iii) If copies are authorized, give all copies to the custodian of
the files at the end of each day. The custodian will forward the copies
of the documents to the OSD Records Administrator for a
declassification review and release to the requester.
(A) For records at the WNRC, if authorized, provide the requested
information in an electronic format. Review will occur only in the
presence of an OSD Records Administrator staff member.
(B) Ensure that all staples are carefully removed and that the
documents are re-stapled before the documents are replaced in the
folder.
(C) Submit all classified and unclassified notes made from the
records to the custodian of the files at the end of each day of
research. The custodian will transmit the notes to the OSD Records
Administrator for an official review and release to the researcher at
the completion of researcher's project.
(D) Submit the final manuscript to the OSD Records Administrator
for forwarding to the Chief, Security Review Division, Office of
Security Review, for a security review and public release clearance in
accordance with DoD Directive 5230.09 and DoD 5220.22-M, ``National
Industrial Security Program Operating Manual (NISPOM)'' (available at
http://www.dtic.mil/whs/directives/corres/pdf/522022m.pdf) prior to
publication, presentation, or any other public use.
(d) Procedures for document review for the FRUS series. (1) When
documents are being reviewed, a WHS/RDD staff member must be present at
all times.
(2) The records maybe reviewed at a Presidential Library Archives
II, College Park Maryland, WNRC, Suitland, Maryland, or an appropriate
military facility. All requested information will remain under the
control of the WHS/RDD staff until a public release review is
completed, and then provided in electronic formats.
(3) If the requested records have been reviewed in accordance with
the automatic declassification provisions of Executive Order 13526, any
tabs removed during the research and copying must be replaced in
accordance with DoD Manual 5200.01 volume 2.
(4) The number of boxes to be reviewed will determine which of the
following procedures will apply. The WHS/RDD staff member will make
that determination at the time the request is processed. When the
historian completes the review of the boxes, he or she must contact the
WHS/RDD to establish a final schedule for scanning the documents. To
avoid a possible delay, a tentative schedule will be established at the
time that the review schedule is set.
(i) For 24 boxes or fewer, review and scanning will take place
simultaneously. Estimated time to complete scanning is 7 work days.
(ii) For 25 boxes or more, the historian will review the boxes and
mark the
[[Page 65943]]
documents that are to be scanned using WHS/RDD authorized reproduction
tabs.
(iii) If the review occurs at facilities that OSD does not control
ownership of the document, the documents must be given to the WHS/RDD
staff member for transmittal for processing.
(5) WHS/RDD will notify the historian when the documents are ready
to be picked up. All administrative procedures for classified material
transfers will be followed in accordance with DoD Manual 5200.01 volume
1 and DoD 5220.22-M and appropriate receipt for unclassified
information will be used.
(e) Procedures for copying documents. (1) The records will be
reviewed and copied at a Presidential Library, Archives II, College
Park Maryland, WNRC, Suitland, Maryland, or an appropriate U.S.
military facility.
(2) If the requested records have been reviewed in accordance with
the automatic declassification provisions of Executive Order 13526 any
tabs removed during the research and copying must be replaced in
accordance with DoD Manual 5200.01 volume 2.
(3) The researcher will mark the documents that he or she wants to
copy using WHS/RDD authorized reproduction tabs.
(4) Any notes taken during the review process must be given to the
WHS/RDD staff member present for transmittal to the WHS/RDD.
(5) All reproduction charges are to the responsibility of the
researcher.
(6) All documents requested will be copied to an approved
electronic format by WHS/RDD staff after official review.
(i) The researcher will need to bring paper, staples, staple
remover, and stapler.
(ii) When the researcher completes the review of the boxes, he or
she must contact the WHS/RDD to establish a final schedule for scanning
the requested documents.
(iii) When the documents are scanned, the WHS/RDD will notify the
researcher.
(iv) All questions pertaining to the review, copying, or
transmittal of OSD documents must be addressed to the WHS/RDD staff
member.
(f) General guidelines for researching DoD records. DoD records and
information are unique and often cannot be replaced should they be lost
or damaged. In order to protect its collections and archives, the OSD
Records Administrator has set rules that researchers must follow.
(1) Researchers will work in room assigned. Researchers are not
allowed in restricted areas.
(2) Special care must be taken in handling all records. Records may
not be leaned on, written on, folded, traced from, or handled in any
way likely to damage them.
(3) Records should be kept in the same order in which they are
presented.
(4) Items that may not be brought into these research areas
include, but are not limited to:
(i) Briefcases.
(ii) Cases for equipment (laptop computers).
(iii) Computers. This includes laptops, tablet computers, personal
digital assistants, smart phones, and other similar devices.
(iv) Cellular phones.
(v) Computer peripherals including handheld document scanners and
digital or analog cameras.
(vi) Containers larger than 9.5'' x 6.25'' (e.g., paper bags,
boxes, backpacks, shopping bags, and sleeping bags).
(vii) Food, drinks (includes bottled water) and cigarettes, cigars,
or pipes.
(viii) Handbags or purses larger than 9.5'' x 6.25''.
(ix) Luggage.
(x) Musical instruments and their cases.
(xi) Newspapers.
(xii) Outerwear (e.g., raincoats and overcoats).
(xiii) Pets (exception for service animals, i.e., any guide dog or
signal dog that is trained to provide a service to a person with a
disability).
(xiv) Scissors or other cutting implements.
(xv) Televisions and audio or video equipment.
(xvi) Umbrellas.
(5) Eating, drinking, or smoking is prohibited.
Appendix A to Part 197--Explanation of FOIA Exemptions and
Classification Categories
(a) Explanation of FOIA Exemptions and Classification
Categories--(1) Explanation of FOIA Exemptions. Exemptions and their
explanations are provided in the Table to Appendix A. See chapter
III of 32 CFR part 286 for further information.
Table to Appendix A--Explanation of FOIA Exemptions
------------------------------------------------------------------------
Exemption Explanation
------------------------------------------------------------------------
(b)(1)............................. Applies to records and information
currently and properly classified
in the interest of national
security.
(b)(2)............................. Applies to records related solely
to the internal personnel rules
and practices of an agency.
(b)(3)............................. Applies to records and information
protected by another law that
specifically exempts the
information from public release.
(b)(4)............................. Applies to records and information
on trade secrets and commercial or
financial information obtained
from a private source which would
cause substantial competitive harm
to the source if disclosed.
(b)(5)............................. Applies to records and information
of internal records that are
deliberative in nature and are
part of the decision making
process that contain opinions and
recommendations.
(b)(6)............................. Applies to records or information
the release of which could
reasonably be expected to
constitute a clearly unwarranted
invasion of the personal privacy
of individuals.
(b)(7)............................. Applies to records or information
compiled for law enforcement
purposes that could: (a)
Reasonably be expected to
interfere with law enforcement
proceedings; (b) deprive a person
of a right to a fair trial or
impartial adjudication; (c)
reasonably be expected to
constitute an unwarranted invasion
of the personal privacy of others;
(d) disclose the identity of a
confidential source; (e) disclose
investigative techniques and
procedures; or (f) reasonably be
expected to endanger the life or
physical safety of any individual.
(b)(8)............................. Applies to records and information
for the use of any agency
responsible for the regulation or
supervision of financial
institutions.
(b)(9)............................. Applies to records and information
containing geological and
geophysical information (including
maps) concerning wells.
------------------------------------------------------------------------
(2) Classification Categories. Information will not be
considered for classification unless its unauthorized disclosure
could reasonably be expected to cause identifiable or describable
damage to the national security in accordance with section 1.2 of
Executive Order 13526, and it pertains to one or more of the
following:
(i) Military plans, weapons systems, or operations;
(ii) Foreign government information;
(iii) Intelligence activities (including covert action),
intelligence sources or methods, or cryptology;
[[Page 65944]]
(iv) Foreign relations or foreign activities of the United
States, including confidential sources;
(v) Scientific, technological, or economic matters relating to
the national security;
(vi) U.S. Government programs for safeguarding nuclear materials
or facilities;
(vii) Vulnerabilities or capabilities of systems, installations,
infrastructures, projects, plans, or protection services relating to
the national security; or
(viii) The development, production, or use of weapons of mass
destruction.
(b) [Reserved]
Dated: October 22, 2015.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2015-27393 Filed 10-27-15; 8:45 am]
BILLING CODE 5001-06-P
