[Federal Register Volume 82, Number 109 (Thursday, June 8, 2017)]
[Rules and Regulations]
[Pages 26588-26592]
[FR Doc No: 2017-11895]
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NATIONAL ARCHIVES AND RECORDS ADMINISTRATION
36 CFR Part 1270
[FDMS No. NARA-16-0005; NARA-2017-042]
RIN 3095-AB87
Presidential Records
AGENCY: National Archives and Records Administration (NARA).
ACTION: Final rule.
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SUMMARY: We are revising this regulation to reflect changes instituted
by the Presidential and Federal Records Acts Amendments of 2014 (2014
Amendments). These Amendments in part added new requirements to the
Presidential Records Act (PRA), which went into effect in 2014. The
changes to this regulation make clear that, when we maintain electronic
Presidential records on behalf of the President before the President's
term of office expires, the President retains exclusive control over
the records. In addition, the proposed changes establish procedures
that we will follow to notify an incumbent President and former
President when we propose to disclose Presidential records to the
public, Congress, the courts, or the incumbent President under the
provisions of the PRA allowing for access to Presidential records
otherwise subject to restrictions. We began the regulatory revision
process in response to the 2014 Amendments to reduce confusion about
access to Presidential records in light of these recent changes in the
law. We published a notice of proposed rulemaking in the Federal
Register on
[[Page 26589]]
December 28, 2016, with a public comment period ending on January 27,
2017. We received no comments.
DATES: This rule is effective on July 10, 2017.
ADDRESSES: National Archives and Records Administration; Regulation
Comments Desk, Suite 4100; 8601 Adelphi Road; College Park, MD 2074-
6001.
FOR FURTHER INFORMATION CONTACT: Kimberly Keravuori, by email at
regulation_comments@nara.gov, by telephone at 301-837-3151, or by mail
at External Policy Program Manager; Strategy Division (MP), Suite 4100;
National Archives and Records Administration; 8601 Adelphi Road;
College Park, MD 20740-6001.
SUPPLEMENTARY INFORMATION:
Background
We are revising our regulations governing Presidential and Vice
Presidential records to incorporate changes made by the Presidential
and Federal Records Act Amendments of 2014, (``2014 Amendments,'' Pub.
L. 113-187, 128 Stat. 1017).
The 2014 Amendments made several changes to the Presidential
Records Act (44 U.S.C. 2201-2209). The most substantial change was
codifying the procedures by which we notify former and incumbent
Presidents so that they may consider whether to restrict public access
to Presidential records of former Presidents that are in our legal
custody. Executive order previously controlled this review process,
which was then subject to change by any sitting administration. Because
Congress codified the privilege review for public disclosures in the
2014 Amendments, we are revising the regulation to set out processes
for giving notice in such cases, and for former or incumbent Presidents
to consider whether to assert a constitutionally based privilege.
The 2014 Amendments did not codify the provisions of the Executive
Order allowing for notification to the former and incumbent President
when Congress, the courts, or the incumbent President (instead of the
public) makes the request for records subject to access restrictions.
To ensure that the former and incumbent Presidents are given notice and
an opportunity to consider whether to assert a constitutionally based
privilege in those circumstances as well, we are revising our
regulation to set out procedures we follow prior to disclosing records
under the PRA's exceptions to restricted access, which are similar to
the procedures we follow when we propose to make disclosures to the
public.
The 2014 Amendments also authorized an incumbent President to
transfer physical custody of their permanent electronic Presidential
records to NARA, while leaving legal custody with the President, and
some other minor changes. We are therefore also revising the regulation
to reflect these changes.
We are also making a small revision to the regulation to be
consistent with 2016 amendments to the Freedom of Information Act, and
are revising the wording and organization of the regulation to make it
easier to follow, in compliance with provisions of the Plain Writing
Act of 2010.
Regulatory Analysis
Review Under Executive Orders 12866 and 13563
Executive Order 12866, Regulatory Planning and Review, 58 FR 51735
(September 30, 1993), and Executive Order 13563, Improving Regulation
and Regulation Review, 76 FR 23821 (January 18, 2011), 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, distributive impacts, and equity).
This rule is ``significant'' under section 3(f) of Executive Order
12866. It involves revisions to existing regulations to bring them in
line with statutory changes, and affects only individuals or Government
entities and access to Presidential or Vice Presidential records. The
Office of Management and Budget (OMB) has reviewed this regulation.
Review Under Executive Order 13771
This action is exempt from Executive Order 13771, 82 FR 9339
(February 3, 2017) because it is a regulation issued with respect to
agency organization and management.
Review Under the Regulatory Flexibility Act (5 U.S.C. 601, et seq.)
Although this rule is not subject to the Regulatory Flexibility
Act, see 5 U.S.C. 553(a)(2), 601(2), NARA has considered whether this
rule, if promulgated, would have a significant economic impact on a
substantial number of small entities (5 U.S.C. 603). NARA certifies,
after review and analysis, that this rule will not have a significant
adverse economic impact on a substantial number of small entities
because it affects only individuals or Government entities and access
to Presidential or Vice Presidential records.
Review Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et
seq.)
This rule does not contain any information collection requirements
subject to the Paperwork Reduction Act.
Review Under Executive Order 13132, Federalism, 64 FR 43255 (August 4,
1999)
Review under Executive Order 13132 requires that agencies review
regulations for Federalism effects on the institutional interest of
states and local governments, and, if the effects are sufficiently
substantial, prepare a Federal assessment to assist senior policy
makers. This rule will not have any direct effects on State and local
governments within the meaning of the Executive Order. Therefore, the
regulation requires no Federalism assessment.
List of Subjects in 36 CFR Part 1270
Archives and records, Government in the Sunshine Act, Open
government, Presidential records.
0
For the reasons stated in the preamble, NARA revises 36 CFR part 1270
to read as follows:
PART 1270--PRESIDENTIAL RECORDS
Subpart A--General Provisions
Sec.
1270.1 Scope of part.
1270.2 Application.
1270.4 Definitions.
Subpart B--Custody and Control of Presidential Records
1270.20 Presidential records in the physical custody of the
Archivist.
1270.22 Designating a representative to act for a President.
1270.24 When the Archivist may act for a President.
Subpart C--Disposing of Presidential Records
1270.30 Disposing of Presidential records by an incumbent President.
1270.32 Disposing of Presidential records in the Archivist's
custody.
Subpart D--Accessing Presidential Records
1270.38 Public access to Presidential records.
1270.40 Restricting access to Presidential records.
1270.42 Appealing restricted access.
1270.44 Exceptions to restricted access.
1270.46 Notice of intent to disclose Presidential records to the
public.
1270.48 Releasing records to the public and claiming privilege
against disclosure.
1270.50 Consulting with law enforcement agencies.
Authority: 44 U.S.C. 2201-2209.
[[Page 26590]]
Subpart A--General Provisions
Sec. 1270.1 Scope of part.
This part implements the provisions of the Presidential Records Act
of 1978, as amended, 44 U.S.C. 2201-2209, and establishes requirements
for preserving, protecting, disposing of, and providing access to all
Presidential and Vice-Presidential records created during a
Presidential or Vice Presidential term of office beginning on or after
January 20, 1981.
Sec. 1270.2 Application.
This part, except Sec. Sec. 1270.46 and 1270.48, applies to Vice-
Presidential records in the same manner as to Presidential records. The
Vice President's duties and responsibilities, with respect to Vice-
Presidential records, are the same as the President's duties and
responsibilities with respect to Presidential records, except those in
Sec. Sec. 1270.46 and 1270.48. The Archivist's authority with respect
to Vice-Presidential records is the same as the Archivist's authority
with respect to Presidential records, except that the Archivist may
enter into an agreement with a non-Federal archival repository to
deposit Vice-Presidential records, if the Archivist determines it to be
in the public interest.
Sec. 1270.4 Definitions.
For the purposes of this part--
Agency has the meaning given by 5 U.S.C. 551(1)(A)-(D) and 552(f).
Archivist means the Archivist of the United States or staff of the
National Archives and Records Administration acting on behalf of the
Archivist.
Presidential records has the meaning given by 44 U.S.C. 2201(2).
Subpart B--Custody and Control of Presidential Records
Sec. 1270.20 Presidential records in the physical custody of the
Archivist.
During a President's term of office, the President may request that
the Archivist maintain physical custody of Presidential records,
including digital or electronic records. However, the President remains
exclusively responsible for control and access to their records until
their term of office concludes. During the President's terms of office,
the Archivist does not disclose any of these records, except under the
President's direction, until the President's term of office concludes.
If a President serves consecutive terms, the Archivist does not
disclose records without the President's direction until the end of the
last term, or the end of another period if specified in 44 U.S.C. 2204
and subpart E of this part.
Sec. 1270.22 Designating a representative to act for a President.
(a) Title 44 U.S.C. chapter 22 grants the President certain
discretion and authority over Presidential records. An incumbent or
former President may designate one or more representatives to exercise
this discretion and authority, including in the event of the
President's death or disability.
(b) The designation under paragraph (a) of this section is
effective only if the Archivist receives written notice of it,
including the names of the representatives, before the President dies
or is disabled.
Sec. 1270.24 When the Archivist may act for a President.
If a President specifies restrictions on access to Presidential
records under 44 U.S.C. 2204(a), but has not made a designation under
Sec. 1270.22 at the time of their death or disability, the Archivist
exercises the President's discretion or authority under 44 U.S.C. 2204,
except as limited by 44 U.S.C. 2208 and Sec. 1270.48.
Subpart C--Disposing of Presidential Records
Sec. 1270.30 Disposing of Presidential records by an incumbent
President.
An incumbent President may dispose of any Presidential records of
their administration that, in the President's opinion, lack
administrative, historical, informational, or evidentiary value, if the
President obtains the Archivist's written views about the proposed
disposal and either--
(a) Those views state that the Archivist does not intend to request
Congress's advice on the matter because the Archivist either does not
consider the records proposed for disposal to be of special interest to
Congress or does not consider it to be in the public interest to
consult with Congress about the proposed disposal; or
(b)(1) Those views state that the Archivist considers either that
the records proposed for disposal may be of special interest to
Congress or that consulting with Congress about the proposed disposal
is in the public interest; and
(2) The President submits copies of the proposed disposal schedule
to the Senate and the House of Representatives at least 60 calendar
days of continuous congressional session before the proposed disposal
date. For the purpose of this section, a continuous congressional
session breaks only when Congress adjourns sine die (with no date set
to resume). If either House of Congress adjourns with a date set to
resume, and breaks for more than three days, the adjourned days do not
count when computing the 60-day timeline. The President submits copies
of the proposed disposal schedule to the Senate Committees on Rules and
Administration and Homeland Security and Governmental Affairs, and to
the House Committees on House Administration and Oversight and
Government Reform.
Sec. 1270.32 Disposing of Presidential records in the Archivist's
custody.
(a) The Archivist may dispose of Presidential records in the
Archivist's legal custody that the Archivist appraises and determines
to have insufficient administrative, historical, informational, or
evidentiary value to warrant continuing to preserve them.
(b) If the Archivist determines that Presidential records have
insufficient value under paragraph (a) of this section, the Archivist
publishes a proposed disposal notice in the Federal Register with a
public comment period of at least 45 days. The notice describes the
records the Archivist proposes to dispose of, the reason for disposing
of them, and the projected earliest disposal date.
(c) After the public comment period in paragraph (b) of this
section, the Archivist publishes a final disposal notice in the Federal
Register at least 60 calendar days before the earliest disposal date.
The notice includes:
(1) A reasonably specific description of the records scheduled for
disposal;
(2) The earliest disposal date; and
(3) A concise statement of the reason for disposing of the records.
(d) Publishing the notice required by paragraph (c) of this section
in the Federal Register constitutes a final agency action for purposes
of review under 5 U.S.C. 701-706.
Subpart D--Accessing Presidential Records
Sec. 1270.38 Public access to Presidential records.
Public access to Presidential records generally begins five years
after the President leaves office, and is administered through the
Freedom of Information Act (5 U.S.C. 552), as modified by the
Presidential Records Act (44 U.S.C. 2204(c)).
Sec. 1270.40 Restricting access to Presidential records.
(a) An incumbent President may, prior to the end of the President's
term of office or last consecutive term of office, restrict access to
certain information within Presidential records created during their
administration, for
[[Page 26591]]
a period not to exceed 12 years after the President leaves office (in
accordance with 44 U.S.C. 2204).
(b) If a President specifies such restrictions, the Archivist
consults with that President or the President's designated
representative to identify the affected records, or any reasonably
segregable portion of them.
(c) The Archivist then restricts public access to the identified
records or the restricted information contained in them until the
earliest of following occurs:
(1) The restricting President waives the restriction, in whole or
in part;
(2) The restriction period in paragraph (a) of this section expires
for the category of information; or
(3) The Archivist determines that the restricting President or an
agent of that President has published the restricted record, a
reasonably segregable portion of the record, or any significant element
or aspect of the information contained in the record, in the public
domain.
Sec. 1270.42 Appealing restricted access.
(a) If the Archivist denies a person access to a Presidential
record or a reasonably segregable portion of it due to a restriction
made under Sec. 1270.40, that person may file an administrative
appeal. To file an administrative appeal requesting access to
Presidential records, send it to the director of the Presidential
Library of the President during whose term of office the record was
created, at the address listed in 36 CFR 1253.3. To file an
administrative appeal requesting access to Vice Presidential records,
send it to the director of the Presidential Materials Division at the
address listed in 36 CFR 1253.1.
(b) An appeal must arrive to the director within 90 calendar days
from the date on the access denial letter.
(c) Appeals must be in writing and must identify:
(1) The specific records the requester is seeking; and
(2) The reasons why the requester believes they should have access
to the records.
(d) The director responds to the requester in writing and within 30
working days from the date they receive the appeal. The director's
response states whether or not the director is granting access to the
Presidential records and the basis for that decision. The director's
decision to withhold release of Presidential records is final and is
not subject to judicial review.
Sec. 1270.44 Exceptions to restricted access.
(a) Even when a President imposes restrictions on access under
Sec. 1270.40, NARA still makes Presidential records of former
Presidents available in the following instances, subject to any rights,
defenses, or privileges which the United States or any agency or person
may invoke:
(1) To a court of competent jurisdiction in response to a properly
issued subpoena or other judicial process, for the purposes of any
civil or criminal investigation or proceeding;
(2) To an incumbent President if the President seeks records that
contain information they need to conduct current Presidential business
and the information is not otherwise available;
(3) To either House of Congress, or to a congressional committee or
subcommittee, if the congressional entity seeks records that contain
information it needs to conduct business within its jurisdiction and
the information is not otherwise available; or
(4) To a former President or their designated representative for
access to the Presidential records of that President's administration,
except that the Archivist does not make any original Presidential
records available to a designated representative that has been
convicted of a crime that involves reviewing, retaining, removing, or
destroying NARA records.
(b) The President, either House of Congress, or a congressional
committee or subcommittee must request the records they seek under
paragraph (a) of this section from the Archivist in writing and, where
practicable, identify the records with reasonable specificity.
(c) The Archivist promptly notifies the President (or their
representative) during whose term of office the record was created, and
the incumbent President (or their representative) of a request for
records under paragraph (a) of this section.
(d) Once the Archivist notifies the former and incumbent Presidents
of the Archivist's intent to disclose records under this section,
either President may assert a claim of constitutionally based privilege
against disclosing the record or a reasonably segregable portion of it
within 30 calendar days after the date of the Archivist's notice. The
incumbent or former President must personally make any decision to
assert a claim of constitutionally based privilege against disclosing a
Presidential record or a reasonably segregable portion of it.
(e) The Archivist does not disclose a Presidential record or
reasonably segregable part of a record if it is subject to a privilege
claim asserted by the incumbent President unless:
(1) The incumbent President withdraws the privilege claim; or
(2) A court of competent jurisdiction directs the Archivist to
release the record through a final court order that is not subject to
appeal.
(f)(1) If a former President asserts the claim, the Archivist
consults with the incumbent President, as soon as practicable and
within 30 calendar days from the date that the Archivist receives
notice of the claim, to determine whether the incumbent President will
uphold the claim.
(2) If the incumbent President upholds the claim asserted by the
former President, the Archivist does not disclose the Presidential
record or a reasonably segregable portion of the record unless:
(i) The incumbent President withdraws the decision upholding the
claim; or
(ii) A court of competent jurisdiction directs the Archivist to
disclose the record through a final court order that is not subject to
appeal.
(3) If the incumbent President does not uphold the claim asserted
by the former President, fails to decide before the end of the 30-day
period detailed in paragraph (f)(1) of this section, or withdraws a
decision upholding the claim, the Archivist discloses the Presidential
record 60 calendar days after the Archivist received notification of
the claim (or 60 days after the withdrawal) unless a court order in an
action in any Federal court directs the Archivist to withhold the
record, including an action initiated by the former President under 44
U.S.C. 2204(e).
(g) The Archivist may adjust any time period or deadline under this
subpart, as appropriate, to accommodate records requested under this
section.
Sec. 1270.46 Notice of intent to disclose Presidential records to the
public.
When the Archivist determines it is in the public interest to make
a Presidential record available to the public for the first time, the
Archivist will:
(a) Promptly notify, in writing, the former President during whose
term of office the record was created and the incumbent President, or
their representatives, of the intended disclosure. This notice informs
the Presidents of the 60-day period in which either President may make
a claim of constitutionally based privilege under Sec. 1270.48; and
(b) Notify the public. The notice includes the following
information about the intended disclosure:
(1) The number of pages;
(2) A brief description of the records;
(3) The NARA case number;
[[Page 26592]]
(4) The date on which the 60-working-day period set out in Sec.
1270.48(a) expires; and
(5) Any other information the Archivist may decide.
Sec. 1270.48 Releasing records to the public and claiming privilege
against disclosure.
(a) Once the Archivist notifies the former and incumbent Presidents
of the Archivist's intent to disclose records under Sec. 1270.46,
either President may assert a claim of constitutionally based privilege
against disclosing the record or a reasonably segregable portion of it.
A President must assert their claim within 60 working days after the
date of the Archivist's notice, and make the claim in accordance with
paragraph (d) of this section.
(b) If neither President asserts a claim within the 60-working-day
period, the Archivist discloses the Presidential record covered by the
notice. If either President asserts a claim on a reasonably segregable
part of the record, the Archivist may disclose only the portion of the
record not subject to the claim.
(c)(1) The incumbent or former President may extend the period
under paragraph (a) of this section once, for not more than 30
additional working days, by sending the Archivist a written statement
asserting that the President needs the extension to adequately review
the record.
(2) However, if the 60-day period under paragraph (a) of this
section, or any extension of that period under paragraph (c)(1) of this
section, would end during the first six months of the incumbent
President's first term of office, then the 60-day period or extension
automatically extends to the end of that six-month period.
(d)(1) The incumbent or former President must personally make any
decision to assert a claim of constitutionally based privilege against
disclosing a Presidential record or a reasonably segregable portion of
it.
(2) The President must notify the Archivist, the Committee on
Oversight and Government Reform of the House of Representatives, and
the Committee on Homeland Security and Governmental Affairs of the
Senate, of a privilege claim under paragraph (a) of this section on the
same day that the President asserts such a claim.
(e)(1) If a former President asserts the claim, the Archivist
consults with the incumbent President, as soon as practicable and
within 30 calendar days from the date that the Archivist receives
notice of the claim, to determine whether the incumbent President will
uphold the claim.
(2) The Archivist notifies the former President and the public of
the incumbent President's decision on the former President's claim no
later than 30 calendar days after the Archivist receives notice of the
claim.
(3) If the incumbent President upholds the claim asserted by the
former President, the Archivist does not disclose the Presidential
record or a reasonably segregable portion of the record unless:
(i) The incumbent President withdraws the decision upholding the
claim; or
(ii) A court of competent jurisdiction directs the Archivist to
disclose the record through a final court order that is not subject to
appeal.
(4) If the incumbent President does not uphold the claim asserted
by the former President, fails to decide before the end of the 30-day
period detailed in paragraph (e)(1) of this section, or withdraws a
decision upholding the claim, the Archivist discloses the Presidential
record 90 calendar days after the Archivist received notification of
the claim (or 90 days after the withdrawal) unless a court order in an
action in any Federal court directs the Archivist to withhold the
record, including an action initiated by the former President under 44
U.S.C. 2204(e).
(f) The Archivist does not disclose a Presidential record or
reasonably segregable part of a record if it is subject to a privilege
claim asserted by the incumbent President unless:
(1) The incumbent President withdraws the privilege claim; or
(2) A court of competent jurisdiction directs the Archivist to
release the record through a final court order that is not subject to
appeal.
Sec. 1270.50 Consulting with law enforcement agencies.
(a) The Archivist requests specific guidance from the appropriate
law enforcement agency when the Archivist is determining whether to
release Presidential records compiled for law enforcement purposes that
may be subject to 5 U.S.C. 552(b)(7). The Archivist requests guidance
if:
(1) No general guidance applies;
(2) The record is particularly sensitive; or
(3) The type of record or information is widespread throughout the
files.
(b) When the Archivist decides to release Presidential records
compiled for law enforcement purposes, the Archivist notifies any
agency that has provided guidance on those records under this section.
The notice includes the following:
(1) A description of the records in question;
(2) A statement that the records described contain information
compiled for law enforcement purposes and may be subject to the
exemption provided by 5 U.S.C. 552(b)(7) for records of this type; and
(3) The name of a contact person at NARA.
(c) Any guidance an agency provides under paragraph (a) of this
section is not binding on the Archivist. The Archivist decides whether
Presidential records are subject to the exemption in 5 U.S.C.
552(b)(7).
David S. Ferriero,
Archivist of the United States.
[FR Doc. 2017-11895 Filed 6-7-17; 8:45 am]
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