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Rule

Records Declassification

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Start Preamble

AGENCY:

National Archives and Records Administration (NARA).

ACTION:

Final rule.

SUMMARY:

This rule updates NARA regulations related to declassification of national security-classified information in records transferred to NARA's legal custody. It incorporates changes resulting from Executive Order 12958, Classified National Security Information, including:

Revising the timeline for systematic review from 30 years to 25 years;

Redefining declassification responsibilities to reflect the E.O. 12958 requirement for agencies to maintain systematic review programs;

Adding requirements for agencies that elect to review their accessioned records at NARA;

Adding requirements for loaning records to agencies for declassification review; and Revising requirements for reclassification of information to meet the provisions of E.O. 12958;

The rule affects members of the public who file mandatory review requests and Federal agencies.

DATES:

This rule is effective July 1, 2000.

Start Further Info

FOR FURTHER INFORMATION CONTACT:

Nancy Allard or Shawn Morton at 301-713-7360.

End Further Info End Preamble Start Supplemental Information

SUPPLEMENTARY INFORMATION:

NARA published a notice of proposed rulemaking on February 17, 2000, at 65 FR 8077. The comment period ended on April 17, 2000. NARA received comments from 9 Federal agencies and 1 professional organization. Of the comments from the Federal agencies, 3 concurred with the proposed rule, 5 recommended clarifications or changes and 1 offered “no comment.”

Following is a summary of the comments and a discussion of the changes that we made to the proposed rule to address those comments.

Automatic Declassification

One commenter stated that we should add a provision to account for the automatic declassification provisions in section 3.4 of Executive Order 12958. Executive Order 13142, issued on November 19, 1999, amended Executive Order 12958 section 3.4 to delay the application of automatic declassification for records accessioned into NARA until April 17, 2003. We have made appropriate reference to the automatic declassification requirements in the regulation.

As we reviewed §§ 1260.20 and 1260.40 to incorporate the reference, we further clarified these sections by removing the distinctions between records that are older and younger than 25 years to focus on the responsibilities for declassifying the information.

Restricted Data and Formerly Restricted Data

One Federal agency commented that the regulation does not address declassification responsibilities for nuclear-related information classified as Restricted Data and Formerly Restricted Data. This type of information is classified under the Atomic Energy Act of 1954, as amended, and is exempt from all requirements under Executive Order 12958. We added the language suggested by the commenter as § 1260.28, which specifies that only designated individuals in the Department of Energy may declassify records containing Restricted Data, and that only designated officials within the Department of Defense or the Department of Energy may declassify Formerly Restricted Data.

Mandatory Review Requests for White House Originated Information

The National Security Council recommended deleting § 1260.62 which explains how agencies should handle mandatory review requests for White House originated materials from a past administration that are in their custody. This section would have required agencies to forward the request, copies of the requested records, and a recommendation to grant or deny the request to the Archivist. The Archivist would then decide whether or not to declassify the information. The commenter noted that Federal agencies do not segregate White House originated information in their custody from their Federal records, and, therefore, follow the process for responding to Mandatory Review and FOIA requests for Federal records. We have accepted the comment after consulting with the Information Security Oversight Office.

Referring Documents Back to Agencies for Declassification Determinations

One Federal agency commented that § 1260.50 should be modified in several ways. The commenter pointed out that at times, the association of an agency with a particular document can be in itself a classified fact requiring protection. NARA currently does not tell requesters which agencies it has referred documents to. We have modified § 1260.50(d) according to the commenter's suggestion to clarify this existing practice.

The agency also offered alternative language in this section to clarify when NARA would send a document back to an agency for declassification. The commenter suggested that we insert the phrase, “Where the originating agency has not provided systematic declassification guidance, or where there is a question regarding the declassification guidance provided” at the beginning of the second sentence in § 1260.50(b). We have accepted this comment with modification. We cannot specify that we will refer the information only if we are missing guidance from the originating agency. When NARA declassifies information using agency systematic guidance, we must use the guidance of every agency that has equities in the information. If we do not have guidance from an agency that has equities in the information, even when it is not the originating agency, we review the information using the guidance that we do have, and then refer the information to the agency(ies) for which we do not have guidance for final action.

Appeals

We received a comment that NARA should act as the recipient for all appeals for adverse declassification decisions from other agencies. The Start Printed Page 34974commenter indicated that this would be more efficient and consistent, and it would also allow, in the case of multiple referrals, NARA to act as a central point of contact for the appeal. If an agency's association with a particular document is classified, the commenter argued that this would provide a mechanism for protecting that fact.

NARA does not have the resources to handle all appeals for the entire Executive branch. In addition, the public would perceive this as an attempt to delay the appeals process by inserting another layer of bureaucracy into it. In order to address the commenter's concern of masking the association of particular agencies with particular information, NARA will send to the requester whatever appeal contact information the agency desires. Agencies may request other agencies to act as a contact point for appeals.

Responsibility for Declassification of Intelligence and Cryptological Information

A Federal agency commented that § 1260.26 improperly states that the Central Intelligence Agency (CIA) is “responsible” for declassifying information on intelligence sources and methods, and that the Secretary of Defense is “responsible” for declassifying information on cryptography. Sections 3.5(c) and 3.6(d) of Executive Order 12958 state that “the Director of Central Intelligence may establish special procedures for the declassification of information pertaining to intelligence.” It does not state that the CIA is the sole responsible entity for this action. The Executive Order also states that “the Secretary of Defense may establish special procedures for declassification of cryptologic information.” We have modified the regulation to more closely match the Executive Order.

This rule is not a significant regulatory action for the purposes of Executive Order 12866. As required by the Regulatory Flexibility Act, it is hereby certified that this rule will not have a significant impact on a substantial number of small entities because it applies to Federal agencies. This rule does not have any federalism implications.

Start List of Subjects

List of Subjects in 36 CFR Part 1260

End List of Subjects

For the reasons stated in the preamble, the National Archives and Records Administration revises 36 CFR Part 1260 to read as follows:

SUBCHAPTER D—DECLASSIFICATION

Start Part

PART 1260—DECLASSIFICATION OF NATIONAL SECURITY INFORMATION

Subpart A—General Information
1260.1
What is the purpose of this regulation?
1260.2
Definitions.
1260.4
What NARA holdings are covered by this regulation?
1260.6
What is the authority for this regulation?
Subpart B—Responsibilities
1260.20
Who is responsible for the declassification of national security-classified Executive Branch information that has been accessioned by NARA?
1260.22
Who is responsible for the declassification of national security-classified White House originated information in NARA's holdings?
1260.24
Who is responsible for declassification of foreign government information in NARA's holdings?
1260.26
Who is responsible for issuing special procedures for declassification of information concerning intelligence or cryptography in NARA's holdings?
1260.28
Who is responsible for declassifying records that contain nuclear-related information classified under the Atomic Energy Act of 1954, as amended, commonly referred to as Restricted Data and Formerly Restricted Data?
Subpart C—Systematic Review
1260.40
How will records at NARA be reviewed for declassification?
1260.42
What are the procedures for agency personnel to review records at a NARA facility?
1260.44
Will NARA loan accessioned records back to the agencies to conduct declassification review?
Subpart D—Mandatory Review Executive Branch Records
1260.50
What procedures does NARA follow when it receives a request for Executive Branch records under mandatory review?
1260.52
What are agency responsibilities when it receives a mandatory review request forwarded by NARA?
1260.54
What is the appeal process when a mandatory review request for Executive Branch information is denied?
White House Originated Information
1260.56
Is White House originated information subject to mandatory review?
1260.58
What are the procedures for requesting a mandatory review of White House originated information?
1260.60
What are agency responsibilities with regard to mandatory review requests for White House originated information?
1260.62
What is the appeal process when a mandatory review request for White House originated information is denied?
Subpart E—Reclassification
1260.70
Can Executive Branch information be reclassified?
1260.72
Can White House information be reclassified?
1260.74
Can NARA appeal a request to reclassify information?
Start Authority

Authority: 44 USC 2101 to 2118; 5 USC 552; EO 12958, 60 FR19825, 3 CFR, 1995 Comp., p.333; EO 13142, 64 FR 66089, 3 CFR, 1999 Comp., p. 236.

End Authority

Subpart A—General Information

What is the purpose of this regulation?

This regulation defines the responsibilities of NARA and other Federal agencies for declassification of national security classified information in the holdings of NARA. This part also provides procedures for conducting systematic reviews of NARA holdings and for processing mandatory review requests for NARA holdings. Regulations for researchers wishing to request Federal records under the Freedom of Information Act (FOIA) or under mandatory review can be found in 36 CFR 1254.38.

Definitions.

(a) Systematic declassification review means the review for declassification of national security-classified information contained in records that have been determined by the Archivist of the United States to have permanent value in accordance with 44 U.S.C. 2107.

(b) Mandatory declassification review means the review for declassification of national security-classified information in response to a request for declassification that meets the requirements under section 3.6 of Executive Order 12958.

What NARA holdings are covered by this regulation?

The NARA holdings covered by this regulation are records legally transferred to the National Archives and Records Administration (NARA), including Federal records accessioned into the National Archives of the United States; Presidential records; Nixon Presidential materials; and donated historical materials in Presidential Libraries and in the National Archives of the United States.

What is the authority for this regulation?

Declassification of and public access to national security information is governed by Executive Order 12958 of April 17, 1995 (3 CFR 1995 Comp., p. 333), Executive Order 13142 of November 19, 1999 (3 CFR 1999 Comp., p. 236), and by the Information Security Start Printed Page 34975Oversight Office Implementing Directive for Executive Order 12958 (32 CFR Part 2001).

Subpart B—Responsibilities

Who is responsible for the declassification of national security-classified Executive Branch information that has been accessioned by NARA?

(a) Consistent with the requirements of section 3.4 of Executive Order 12958 and Executive Order 13142 on automatic declassification, the originating agency is responsible for its declassification, but may delegate declassification authority to NARA in the form of declassification guidance.

(b) If an agency does not delegate declassification authority to NARA, the agency is responsible for reviewing the records prior to the date that the records become eligible for automatic declassification.

(c) NARA is responsible for the declassification of records of a defunct agency that has no successor in function. NARA will consult with agencies having primary subject matter interest before making declassification determinations.

Who is responsible for the declassification of national security-classified White House originated information in NARA's holdings?

(a) NARA is responsible for declassification of information from a previous administration that was originated by:

(1) The President;

(2) The White House staff;

(3) Committees, commissions, or boards appointed by the President; or

(4) Others specifically providing advice and counsel to the President or acting on behalf of the President.

(b) NARA will consult with agencies having primary subject matter interest before making declassification determinations.

Who is responsible for declassification of foreign government information in NARA's holdings?

(a) The agency that received or classified the information is responsible for its declassification.

(b) In the case of a defunct agency, NARA is responsible for declassification of foreign government information in its holdings and will consult with the agencies having primary subject matter interest before making declassification determinations.

Who is responsible for issuing special procedures for declassification of information concerning intelligence or cryptography in NARA's holdings?

(a) The Director of Central Intelligence is responsible for issuing special procedures for declassification of information concerning intelligence activities and intelligence sources and methods.

(b) The Secretary of Defense is responsible for issuing special procedures for declassification of information concerning cryptography.

Who is responsible for declassifying records that contain nuclear-related information classified under the Atomic Energy Act of 1954, as amended, commonly referred to as Restricted Data and Formerly Restricted Data?

Only designated officials within the Department of Energy may declassify records containing Restricted Data. Records containing Formerly Restricted Data may only be declassified by designated individuals within the Department of Energy or by appropriate individuals in the Department of Defense.

Subpart C—Systematic Review

How will records at NARA be reviewed for declassification?

(a) Consistent with the requirements of section 3.4 of Executive Order 12958 and Executive Order 13142 on automatic declassification, NARA staff will systematically review for declassification records for which the originating agencies have provided declassification guidance. The originating agency must review records for which it has not provided declassification guidance.

(b) Agencies may choose to review their own records that have been accessioned by NARA by sending personnel to the NARA facility where the records are located to conduct the declassification review.

What are the procedures for agency personnel to review records at a NARA facility?

(a) NARA will make the records available to properly cleared agency reviewers. NARA will provide space for agency reviewers in the facility in which the records are located as space is available. NARA will also provide training and guidance for agency reviewers on the proper handling of archival materials.

(b) Agency reviewers must:

(1) Follow NARA security regulations and abide by NARA procedures for handling archival materials;

(2) Follow NARA procedures for identifying and marking documents that cannot be declassified; and

(3) Obtain permission from NARA before bringing into a NARA facility computers, scanners, tape recorders, microfilm readers and other equipment necessary to view or copy records. NARA will not allow the use of any equipment that poses an unacceptable risk of damage to archival materials. See 36 CFR 1254.26 and 1254.27 for more information on acceptable equipment.

Will NARA loan accessioned records back to the agencies to conduct declassification review?

In rare cases, when agency reviewers cannot be accommodated at a NARA facility, NARA will consider a request to loan records back to an originating agency in the Washington, DC, metropolitan area for declassification review. Each request will be judged on a case-by-case basis. The requesting agency must:

(a) Ensure that the facility in which the documents will be stored and reviewed passes a NARA inspection to ensure that the facility maintains:

(1) The correct archival environment for the storage of permanent records; and

(2) The correct security conditions for the storage and handling of national security-classified materials.

(b) Meet NARA requirements for ensuring the safety of the records;

(c) Abide by NARA procedures for handling of archival materials;

(d) Identify and mark documents that cannot be declassified in accordance with NARA procedures; and

(e) Obtain NARA approval of any equipment such as scanners, copiers, or cameras to ensure that they do not pose an unacceptable risk of damage to archival materials.

Subpart D—Mandatory Review

Executive Branch Records

What procedures does NARA follow when it receives a request for Executive Branch records under mandatory review?

(a) If the requested records are less than 25 years old, NARA refers copies of the records to the originating agency and to agencies that have equities in the information for declassification review. Agencies may also send personnel to a NARA facility where the records are located to conduct a declassification review, or may delegate declassification authority to NARA in the form of declassification guidance.

(b) If the requested records are more than 25 years old, NARA will review the Start Printed Page 34976records using systematic declassification guidance provided by the originating agency and agencies having equities in the information. If the originating agency, or agencies having equities in the information have not provided systematic declassification guidance, or if there is a question regarding the guidance, NARA will refer any requested documents it is unable to declassify to the appropriate agency or agencies for declassification determinations.

(c) When the records were originated by a defunct agency that has no successor agency, NARA is responsible for making the declassification determinations, but will consult with agencies having primary subject matter interest.

(d) In every case, NARA will acknowledge receipt of the request and inform the requester of the action taken. If additional time is necessary to make a declassification determination on material for which NARA has delegated authority, NARA will tell the requester how long it will take to process the request. NARA will also tell the requester if part or all of the requested information is referred to other agencies for declassification review, subject to section 3.7(a) of Executive Order 12958.

What are agency responsibilities when it receives a mandatory review request forwarded by NARA?

(a) The agency must make a determination within 180 calendar days after receiving the request or inform NARA of the additional time needed to process the request. If an initial decision has not been made on the request within 1 year after the original date of the request, the requester may appeal to the Interagency Security Classification Appeals Panel (ISCAP).

(b) The agency must notify NARA of any other agency to which it forwards the request in those cases requiring the declassification determination of another agency.

(c) The agency must return to NARA a complete copy of each declassified document with the agency determination. If documents cannot be declassified in their entirety, the agency must return to NARA a copy of the documents with those portions that must be withheld clearly marked.

(d) The agency must also furnish, for transmission to the requester, a brief statement of the reasons the requested information cannot be declassified and a statement of the requester's right to appeal the decision, along with the procedures for filing an appeal. The agency must also supply for transmission to the requester a contact name and title and the address where the appeal must be sent.

What is the appeal process when a mandatory review request for Executive Branch information is denied?

(a) If an agency denies a declassification request under mandatory review, the requester may appeal directly to the appeal authority at that agency.

(b) If requested by the agency, NARA will supply the agency with:

(1) Copies of NARA's letter to the requester transmitting the agency denial; and

(2) Copies of any documents denied in part that were furnished to the requester.

(c) The agency appeal authority must notify NARA in writing of the final determination and of the reasons for any denial.

(d) The agency must furnish to NARA a complete copy of any document they released to the requester only in part, clearly marked to indicate the portions that remain classified. NARA will give the requester a copy of any notifications from the agencies that describe what information has been denied and what the requesters appeal rights are.

(e) In the case of an appeal for information originated by a defunct agency, NARA will notify the requester of the results and furnish copies of documents declassified in full and in part. If the request cannot be declassified in its entirety, NARA will send the requester a brief statement of why the requested information cannot be declassified and a notice of the right to appeal the determination within 60 calendar days to the Deputy Archivist of the United States, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001.

White House Originated Information

Is White House originated information subject to mandatory review?

White House originated information of former Presidents is subject to mandatory review consistent with the Presidential Records Act, 44 U.S.C. 2203, the Presidential Recordings and Materials Preservation Act, 44 U.S.C. 2111 note, and any deeds of gift that pertain to the materials or the respective Presidential administrations pursuant to 44 U.S.C. 2107 and 2111. Unless precluded by such laws or agreements, White House originated information is subject to mandatory or an equivalent agency review for current classification when the materials have been archivally processed or can be identified with specificity. However, records covered by the Presidential Records Act are closed for 5 years after the end of the Presidential administration, or until an integral file segment has been archivally processed, whichever occurs first, pursuant to 44 U.S.C. 2204.

What are the procedures for requesting a mandatory review of White House originated information?

(a) NARA will promptly acknowledge to the requester the receipt of a request for White House originated information.

(b) If the requested information is less than 25 years old, NARA will consult with agencies having primary subject matter interest. NARA will forward copies of the requested materials to the agencies and request their recommendations regarding declassification.

(c) If the requested records are more than 25 years old, NARA will review the records using systematic declassification guidance provided by the originating agency and agencies having equities in the information. If the originating agency, or agencies having equities in the information have not provided systematic declassification guidance, or if there is a question regarding the guidance, NARA will refer any requested documents it is unable to declassify to the appropriate agency or agencies for their recommendations regarding declassification.

(d) NARA will notify the requester of the results and furnish copies of the documents declassified in full and in part. If the requested records are not declassified in their entirety, NARA will send the requester a brief statement of the reasons the information cannot be declassified and a notice of the right to appeal the determination within 60 calendar days to the Deputy Archivist of the United States, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001.

What are agency responsibilities with regard to mandatory review requests for White House originated information?

When an agency receives a mandatory review request from NARA for consultation on declassification of White House originated material, whether it is an initial request of an appeal, the agency must:

(a) Advise the Archivist whether the information should be declassified in whole or in part or should continue to be exempt from declassification;

(b) Provide NARA a brief statement of the reasons for any denial of declassification; and

(c) Return all reproductions referred for consultation, including a complete Start Printed Page 34977copy of each document that should be released only in part, clearly marked to indicate the portions that remain classified.

What is the appeal process when a mandatory review request for White House originated information is denied?

(a) When the Deputy Archivist of the United States receives an appeal, he/she will review the decision to deny the information and consult with the appellate authorities in the agencies having primary subject matter interest in the information.

(b) NARA will notify the requester of the determination and make available any additional information that has been declassified as a result of the requester's appeal.

(c) NARA will also notify the requester of the right to appeal denials of access to the Executive Secretary of the Interagency Security Classification Appeals Panel, Attn: Mandatory Review Appeals, c/o Information Security Oversight Office, National Archives and Records Administration, 700 Pennsylvania Avenue, NW, Room 18N, Washington, DC 20408.

Subpart E—Reclassification

Can Executive Branch information be reclassified?

(a) An agency may ask NARA to temporarily close, re-review, and possibly reclassify records and donated historical materials originated by the agency. Records that were declassified in accordance with E.O. 12958 (or predecessor orders) may be reclassified only if the information is less than 25 years old and has not been previously disclosed to the public. Agencies must submit in writing requests to reclassify Executive Branch records to the Assistant Archivist for Records Services—Washington, DC, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001. Requests to reclassify information in Presidential libraries must be submitted in writing to the Assistant Archivist for Presidential Libraries, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001. In the request, the agency must:

(1) Identify the records or donated materials involved as specifically as possible;

(2) Explain the reason the re-review and possible reclassification may be necessary; and

(3) Provide any information the agency may have concerning any previous public disclosure of the information.

(b) If the urgency of the request precludes a written request, an authorized agency official may make a preliminary request by telephone and follow up with a written request within 5 workdays.

Can White House originated information be reclassified?

An agency may ask NARA to temporarily close, re-review, and possibly reclassify White House originated information that has been declassified in accordance with E.O. 12958 (or predecessor orders) only if it has not been previously disclosed to the public. The agency must follow the same procedures as a request for reclassification of agency originated information in 36 CFR 1260.70, but it must submit the request to the Assistant Archivist for Presidential Libraries, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001.

Can NARA appeal a request to reclassify information?

NARA may appeal to the Director of the Information Security Oversight Office any re-review or reclassification request from an agency when, in the Archivist's opinion, the facts of previous disclosure suggest that such action is unwarranted or unjustified. NARA will notify the requesting agency that it is appealing the request at the same time that it initiates the appeal.

End Part Start Signature

Dated: May 26, 2000.

John W. Carlin,

Archivist of the United States.

End Signature End Supplemental Information

[FR Doc. 00-13809 Filed 5-31-00; 8:45 am]

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