[Federal Register Volume 65, Number 106 (Thursday, June 1, 2000)]
[Rules and Regulations]
[Pages 34973-34977]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-13809]


=======================================================================
-----------------------------------------------------------------------

NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

36 CFR Part 1260

RIN 3095-AA67


Records Declassification

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.

FOR FURTHER INFORMATION CONTACT: Nancy Allard or Shawn Morton at 301-
713-7360.

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 Secs. 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 
Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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

[[Page 34974]]

commenter 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 Sec. 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.

List of Subjects in 36 CFR Part 1260

    Archives and records.

    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

PART 1260--DECLASSIFICATION OF NATIONAL SECURITY INFORMATION

Subpart A--General Information
Sec.
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?

    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.

Subpart A--General Information


Sec. 1260.1  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.


Sec. 1260.2  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.


Sec. 1260.4  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.


Sec. 1260.6  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

[[Page 34975]]

Oversight Office Implementing Directive for Executive Order 12958 (32 
CFR Part 2001).

Subpart B--Responsibilities


Sec. 1260.20  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.


Sec. 1260.22  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.


Sec. 1260.24  Who is responsible for declassification of foreign 
government information in NARA's holdings?

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


Sec. 1260.26  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.


Sec. 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?

    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


Sec. 1260.40  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.


Sec. 1260.42  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.


Sec. 1260.44  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


Sec. 1260.50  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

[[Page 34976]]

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 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.


Sec. 1260.52  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.


Sec. 1260.54  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


Sec. 1260.56  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.


Sec. 1260.58  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.


Sec. 1260.60  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

[[Page 34977]]

copy of each document that should be released only in part, clearly 
marked to indicate the portions that remain classified.


Sec. 1260.62  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


Sec. 1260.70  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.


Sec. 1260.72  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.


Sec. 1260.74  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.

    Dated: May 26, 2000.
John W. Carlin,
Archivist of the United States.
[FR Doc. 00-13809 Filed 5-31-00; 8:45 am]
BILLING CODE 7515-01-P