[Federal Register Volume 81, Number 181 (Monday, September 19, 2016)]
[Rules and Regulations]
[Pages 64063-64066]
[FR Doc No: 2016-21825]
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CENTRAL INTELLIGENCE AGENCY
32 CFR Part 1909
Access to Classified Information by Historical Researchers and
Certain Former Government Personnel
AGENCY: Central Intelligence Agency.
ACTION: Final rule.
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SUMMARY: Consistent with Executive Order 13526, the Central
Intelligence Agency (CIA) is providing greater clarity about the
procedures under which it may provide historical researchers and
certain former Government personnel with access to classified CIA
information. This rule is being issued as a final rule without prior
notice of proposed rulemaking as allowed by the Administrative
Procedure Act for rules of agency procedure and interpretation.
DATES: Effective September 19, 2016.
FOR FURTHER INFORMATION CONTACT: Joseph W. Lambert, (703) 613-1379.
SUPPLEMENTARY INFORMATION: Consistent with section 4.4 of Executive
Order 13526, the CIA has revised its access regulations to more clearly
set forth the procedures used to provide historical researchers and
certain former Government personnel with access to classified CIA
information. This rule is being issued as a final rule without prior
notice of proposed rulemaking as allowed by the Administrative
Procedure Act, 5 U.S.C. 553(b)(3)(A) for rules of agency procedure and
interpretation.
List of Subjects in 32 CFR Part 1909
Archives and records, Classified information, Historical records.
0
Accordingly, the CIA is revising 32 CFR part 1909 as follows:
PART 1909--ACCESS TO CLASSIFIED CIA INFORMATION BY HISTORICAL
RESEARCHERS AND CERTAIN FORMER GOVERNMENT PERSONNEL PURSUANT TO
SEC. 4.4 OF EXECUTIVE ORDER 13526
Sec.
1909.1 Authority and purpose.
1909.2 Definitions.
1909.3 Contact for general information and requests.
1909.4 Suggestions and complaints.
1909.5 Requirements as to who may apply.
1909.6 Designation of authority to waive need-to-know and grant
historical access requests.
1909.7 Receipt, recording, and tasking.
1909.8 Determinations on requests for access by former Presidents
and Vice Presidents, former Presidential and Vice Presidential
appointees or designees, and historical researchers.
1909.9 Action by the ARP.
1909.10 Final CIA decision.
1909.11 Notification of decision.
1909.12 Termination of access.
Authority: Executive Order 13526, 75 FR 707, 3 CFR 2010 Comp.,
p. 298-327 (or successor Orders).
Sec. 1909.1 Authority and purpose.
(a) Authority. This part is issued under the authority of and in
order to implement section 4.4 of Executive Order 13526, as amended (or
successor Orders); section 1.6 of Executive Order 12333, as amended (or
successor Orders); section 102A of the National Security Act of 1947,
as amended; and section 6 of the Central Intelligence Agency Act of
1947, as amended.
(b) Purpose. This part prescribes procedures for waiving the need-
to-know requirement for access to classified information with respect
to persons:
(1) Requesting access to classified CIA information as historical
researchers;
(2) Requesting access to classified CIA information as a former
Presidential or Vice Presidential appointee or designee; or
(3) Requesting access to classified CIA information as a former
President or Vice President.
Sec. 1909.2 Definitions.
As used in this part:
Agency Release Panel or Panel or ARP means the CIA Agency Release
Panel established pursuant to part 1900 of this chapter.
CIA means the Unites States Central Intelligence Agency.
Control means ownership or the authority of the CIA pursuant to
Federal statute or legal privilege to regulate official or public
access to records.
Coordinator means the CIA Information and Privacy Coordinator who
serves as the CIA manager of the historical access process established
pursuant to section 4.4 of the Order.
Days means business days. Three (3) days may be added to any time
limit imposed on a requester by this part if responding by U.S.
domestic mail; ten (10) days may be added if responding by
international mail;
[[Page 64064]]
Director of Security means the CIA official responsible for making
determinations regarding all security and access approvals and
overseeing execution of the necessary secrecy, nondisclosure, and/or
prepublication review agreements as may be required.
Former Presidential or Vice Presidential appointee or designee
means any person who has previously occupied a senior policy-making
position in the Executive branch of the United States Government to
which they were appointed or designated by the current or a former
President or Vice President.
Historical researcher means any individual with professional
training in the academic field of history (or related fields such as
journalism) engaged in a historical research project that is intended
for publication (or any similar activity such as academic course
development) and that is reasonably intended to increase the
understanding of the American public regarding the operations and
activities of the United States Government. This term also means anyone
selected by a former President or Vice President, or by a former
Presidential or Vice Presidential appointee or designee, to assist them
in historical research as a research associate.
Information means any knowledge that can be communicated or
documentary material, regardless of its physical form that is owned by,
produced by or for, or is under the control of the United States
Government.
Interested party means any official in the executive,
congressional, or judicial branches of government, United States or
foreign, or U.S. Government contractor who, in the sole discretion of
the CIA, has a subject matter or physical interest in the documents or
information at issue;
Originator means the CIA officer who originated the information at
issue, or successor in office, or a CIA officer who has been delegated
declassification authority for the information at issue in accordance
with the provisions of the Order.
Order means Executive Order 13526 of December 29, 2009 and
published at 75 FR 707 (or successor Orders).
Senior Agency Official means the official designated by the DCIA
under section 5.4(d) of the Order to direct and administer the CIA's
program under which information is classified, safeguarded, and
declassified.
Sec. 1909.3 Contact for general information and requests.
For general information on this part, to inquire about access to
CIA information under this part, or to make a formal request for such
access, please direct your communication in writing to the Information
and Privacy Coordinator, Central Intelligence Agency, Washington, DC
20505. Inquiries will also by accepted by facsimile at (703) 613-3007.
For general information only, the telephone number is (703) 613-1287.
Collect calls cannot be accepted.
Sec. 1909.4 Suggestions and complaints.
The CIA welcomes suggestions, comments, or complaints with regard
to its administration of the historical access provisions of Executive
Order 13526. Members of the public shall address all such
communications to the CIA Information and Privacy Coordinator. The CIA
will respond as determined feasible and appropriate under the
circumstances.
Sec. 1909.5 Requirements as to who may apply.
(a) Historical researchers--(1) In general. Any historical
researcher as defined above may submit a request in writing to the
Coordinator to be given access to classified information for purposes
of that research. Any such request shall indicate the nature, purpose,
and scope of the research project.
(2) Additional considerations. In light of the very limited Agency
resources, it is the policy of the Agency to consider applications for
access by historical researchers (other than research associates) only
in those instances where the researcher's needs cannot be satisfied
through requests for access to reasonably described records under the
Freedom of Information Act or the mandatory declassification review
provisions of Executive Order 13526, and where issues of internal
resource availability and fairness to all members of the historical
research community militate in favor of a particular grant.
(b) Former Presidential and Vice Presidential appointees or
designees. Any former Presidential or Vice Presidential appointee or
designee as defined herein may also submit a request to be given access
to any classified items which they originated, reviewed, signed, or
received while serving in that capacity. Requests from such appointees
or designees shall be in writing to the Coordinator and shall identify
the records containing the classified information of interest. Such
appointees or designees may also request approval for a research
associate, but there is no entitlement to such enlargement of access
and the decision in this regard shall be in the sole discretion of the
Senior Agency Official.
(c) Former Presidents and Vice Presidents. Any former President or
Vice President may submit a request for access to classified CIA
information. Requests from former Presidents or Vice Presidents shall
be in writing to the Coordinator and shall identify the records
containing the classified information of interest. A former President
or Vice President may also request approval for a research associate,
but there is no entitlement to such enlargement of access and the
decision in this regard shall be in the sole discretion of the Senior
Agency Official
Sec. 1909.6 Designation of authority to waive need-to-know and grant
historical access requests.
(a) The Agency Release Panel (ARP) is designated to review requests
and shall issue a recommendation to the Senior Agency Official who
shall issue the final CIA decision whether or not to waive the need-to-
know and grant requests for access by historical researchers, by former
Presidential and Vice Presidential appointees and designees, or by
former Presidents and Vice Presidents under Executive Order 13526 (or
successor Orders) and these regulations.
(b) ARP Membership. The ARP is chaired by the Director, Information
Management Services and composed of the Chief, Information Review and
Release Group, the Chief, Classification Management Program Office, the
Information Review Officers from the various Directorates and the DCIA
area, as well as the representatives of the various release programs
and offices within CIA. The Information and Privacy Coordinator also
serves as Executive Secretary of the ARP.
Sec. 1909.7 Receipt, recording, and tasking.
The Information and Privacy Coordinator shall within ten (10) days
make a record of each request for access received under this part,
acknowledge receipt to the requester in writing, and take the following
actions:
(a) Compliance with general requirements. The Coordinator shall
review each request under this part and determine whether it meets the
general requirements as set forth in Sec. 1909.5 and notify the
requester that the request has been accepted for consideration if it
does. If it does not, the Coordinator shall so notify the requester and
explain
[[Page 64065]]
the basis for this decision and any steps that can be taken to perfect
the request.
(b) Action on requests meeting general requirements. For requests
which meet the requirements of Sec. 1909.5, the Coordinator shall
thereafter task the Director, Center for the Study of Intelligence, the
originator(s) of the information for which access is sought, and other
interested parties to review the request and provide their input
concerning whether or not the required determinations set forth in
Sec. 1909.8 can be made. Additional taskings may be directed as
required during the review process.
Sec. 1909.8 Determinations on requests for access by former
Presidents and Vice Presidents, former Presidential and Vice
Presidential appointees or designees, and historical researchers.
(a) Required determinations for former Presidents and Vice
Presidents. In order to recommend approval of an access request made by
a former President or Vice President, the ARP must make the following
determinations in writing:
(1) That the access is consistent with the interest of national
security;
(2) That a nondisclosure agreement has been or will be executed by
the requester and other appropriate steps are taken to assure that
classified information will not be disclosed or otherwise compromised;
(3) That a CIA prepublication review agreement has been or will be
executed by the requester which provides for a review of notes and any
resulting manuscript; and,
(4) That appropriate steps can be taken to ensure that the
information is safeguarded in a manner consistent with Executive Order
13526.
(b) Required determinations for former Presidential and Vice
Presidential appointees or designees. In order to recommend approval of
an access request made by a former Presidential or Vice Presidential
appointee or designee, the ARP must make the following determinations
in writing:
(1) That the requester has previously occupied a senior policy-
making position to which the requester was appointed or designated by
the President or Vice President;
(2) That the access is consistent with the interest of national
security;
(3) That a nondisclosure agreement has been or will be executed by
the requester and other appropriate steps are taken to assure that
classified information will not be disclosed or otherwise compromised;
(4) That a CIA prepublication review agreement has been or will be
executed by the requester which provides for a review of notes and any
resulting manuscript;
(5) That appropriate steps can be taken to ensure that the
information is safeguarded in a manner consistent with Executive Order
13526; and,
(6) That access will be limited to items that the person
originated, reviewed, signed, or received while serving as a
Presidential or Vice Presidential appointee or designee.
(c) Required determinations for a research associate of a former
President or Vice President, or of a former Presidential or Vice
Presidential appointee or designee. In order to recommend approval of a
request for historical access by a research associate, the ARP must
make the following determinations in writing:
(1) That the requester has been selected as a research associate of
a former President or Vice President, or of a Presidential or Vice
Presidential appointee or designee;
(2) That the access is consistent with the interest of national
security, and one factor in that determination is that an appropriate
security check has been conducted and a security clearance or access
has been issued by an appropriate U.S. Government agency;
(3) That a nondisclosure agreement has been or will be executed by
the requester and other appropriate steps are taken to assure that
classified information will not be disclosed or otherwise compromised;
(4) That a CIA prepublication review agreement has been or will be
executed by the requester which provides for a review of notes and any
resulting manuscript;
(5) That appropriate steps can be taken to ensure that the
information is safeguarded in a manner consistent with Executive Order
13526; and,
(6) That, in the case of a former Presidential or Vice Presidential
appointee or designee, access by the research associate will be limited
to items that the Presidential or Vice Presidential appointee or
designee who selected the research associate originated, reviewed,
signed, or received while serving as a Presidential or Vice
Presidential appointee or designee.
(d) Required determinations for a historical researcher (other than
a research associate). In order to recommend approval of an access
request made by a historical researcher (other than a research
associate to which paragraph (c) of this section applies) the ARP must
make the following determinations in writing:
(1) That a serious professional or scholarly research project by
the requester is contemplated;
(2) That the access is consistent with the interest of national
security, and one factor in that determination is that an appropriate
security check has been conducted and a security clearance or access
has been issued by an appropriate U.S. Government agency;
(3) That a nondisclosure agreement has been or will be executed by
the requester, and other appropriate steps are taken to assure that
classified information will not be disclosed or otherwise compromised;
(4) That a CIA prepublication review agreement has been or will be
executed by the requester, which provides for a review of notes and any
resulting manuscript;
(5) That the information requested is reasonably accessible and can
be located and compiled with a reasonable effort;
(6) That it is reasonably expected that substantial and substantive
Government documents and/or information will be amenable to
declassification and release and/or publication;
(7) That sufficient resources are available for the administrative
support of the historical researcher given current requirements; and,
(8) That the request cannot be satisfied to the same extent through
requests for access to reasonably described records under the Freedom
of Information Act or the Mandatory Declassification Review provisions
of Executive Order 13526.
Sec. 1909.9 Action by the ARP.
The ARP shall meet on a regular schedule and may take action when a
simple majority of the total membership is present. A recommendation to
the Senior Agency Official concerning whether or not to grant requests
for access to classified CIA information by former Presidents or Vice
Presidents, by former Presidential or Vice Presidential appointees or
designees, or by historical researchers shall be made by a majority
vote of the members present.
Sec. 1909.10 Final CIA decision.
(a) Upon receipt of a recommendation by the ARP concerning whether
or not to grant access to classified CIA information under this part,
the Senior Agency Official may, in his sole discretion, waive the need-
to-know requirement and approve such access only if he or she:
(1) Determines in writing that access is consistent with the
interests of national security;
(2) Takes appropriate steps to protect classified information from
[[Page 64066]]
unauthorized disclosure or compromise and ensures that the information
is safeguarded in a manner consistent with Executive Order 13526; and,
(3) Limits any access granted to former Presidential or Vice
Presidential appointees and designees (or any research associate they
select) to the items that the former Presidential or Vice Presidential
appointee or designee originated, reviewed, signed, or received while
serving in that capacity.
(b) The Director of the Central Intelligence Agency reserves the
authority to make a superseding decision concerning whether or not to
waive the need-to-know requirement and to grant access to classified
CIA information under this part in any case only if he or she:
(1) Determines in writing that access is consistent with the
interests of national security;
(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 13526; and,
(3) Limits any historical access granted to former Presidential or
Vice Presidential appointees and designees (or any research associate
they select) to the items that the former Presidential or Vice
Presidential appointee or designee originated, reviewed, signed, or
received while serving in that capacity.
(c) The Senior Agency Official also may make a determination that a
successive request for historical access falls within the scope of an
earlier waiver of the ``need-to-know'' criterion under section 4.4 of
the Order, so long as the extant waiver is no more than two years old.
Sec. 1909.11 Notification of decision.
The Executive Secretary shall inform the requester of the final CIA
decision and, if favorable, shall manage the access for such period of
time as deemed required, but in no event for more than two years unless
renewed by the Senior Agency Official, in accordance with the
requirements of this part for waiving need-to-know and granting access
in the first instance.
Sec. 1909.12 Termination of access.
The Coordinator shall cancel any authorization and deny any further
access whenever the Director of Security cancels the security clearance
of any person who has been granted access to classified CIA information
under the part; or whenever the Senior Agency Official, or the Director
of the Central Intelligence Agency, determines that continued access
would no longer be consistent with the requirements of this part; or at
the conclusion of the authorized period of up to two years if there is
no renewal under Sec. 1909.11.
Dated: August 30, 2016.
Joseph W. Lambert,
Director, Information Management Services.
[FR Doc. 2016-21825 Filed 9-16-16; 8:45 am]
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