Presidential Records, 95542-95547 [2016-31011]
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Federal Register / Vol. 81, No. 249 / Wednesday, December 28, 2016 / Proposed Rules
thereunder and does not have a
principal’’.
determination of the amount of the
United States property treated as held
by a controlled foreign corporation
(CFC) through a partnership.
Written or electronic comments
and request for a public hearing are still
being accepted and must be received by
February 1, 2017.
DATES:
Send submissions to:
CC:PA:LPD:PR (REG–114734–16), Room
5203, Internal Revenue Service, P.O.
Box 7604, Ben Franklin Station,
Washington, DC 20044. Submissions
may be hand-delivered Monday through
Friday between the hours of 8 a.m. and
4 p.m. to CC:PA:LPD:PR (REG–114734–
16), Courier’s Desk, Internal Revenue
Service, 1111 Constitution Avenue NW.,
Washington, DC, or sent electronically
via the Federal eRulemaking Portal at
https://www.regulations.gov (IRS REG–
114734–16).
Martin V. Franks,
Chief, Publications and Regulations Branch,
Legal Processing Division, Associate Chief
Counsel, (Procedure and Administration).
[FR Doc. 2016–31358 Filed 12–27–16; 8:45 am]
BILLING CODE 4830–01–P
ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
Concerning the proposed regulations,
Rose E. Jenkins, (202) 317–6934;
concerning submissions of comments or
request for a public hearing, Regina
Johnson, (202) 317–6901 (not a toll-free
number).
SUPPLEMENTARY INFORMATION:
Background
The notice of proposed rulemaking
(REG–114734–16) that is the subject of
this document is under sections 954 and
956 of the Internal Revenue Code.
Need for Correction
As published, the notice of proposed
rulemaking (REG–114734–16) contains
errors that may prove to be misleading
and are in need of clarification.
Correction of Publication
Accordingly, the notice of proposed
rulemaking, (REG–114734–16), that was
the subject of FR Doc. 2016–26424, is
corrected as follows:
1. On page 76543, first column, in the
preamble, the sixth line from the top of
the page, the language, ‘‘property that
does not have a principal’’ is corrected
to read ‘‘property that is respected for
Federal income tax purposes under
section 704(b) and the regulations
thereunder and does not have a
principal’’.
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■
§ 1.956–4
[Corrected]
2. On page 76543, third column, third
line from the bottom of paragraph
(b)(2)(ii), the language ‘‘allocation does
not have a principal’’ is corrected to
read ‘‘allocation will be respected for
Federal income tax purposes under
section 704(b) and the regulations
■
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NATIONAL ARCHIVES AND RECORDS
ADMINISTRATION
36 CFR Part 1270
[FDMS No. NARA–16–0005; NARA–2017–
011]
RIN 3095–AB87
Presidential Records
on the submission): Regulations
Comments Desk (External Policy
Program, Strategy and Performance
Division (SP)); Suite 4100; National
Archives and Records Administration;
8601 Adelphi Road; College Park, MD
20740–6001
• Hand delivery or courier: Deliver
comments to the front desk at the
address above.
Instructions: You must include on all
submissions the Regulatory Information
Number (RIN) for this rulemaking (RIN
3095–AB87) and NARA’s name. We
may publish any comments we receive
without changes, including any
personal information you provide.
FOR FURTHER INFORMATION CONTACT:
Kimberly Keravuori, by email at
regulation_comments@nara.gov, or by
telephone at 301–837–3151.
SUPPLEMENTARY INFORMATION:
National Archives and Records
Administration (NARA).
ACTION: Proposed rule.
Background
We are proposing to revise
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 and remain in effect, even without
this proposed regulatory revision. The
proposed changes 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 and issue this updated
regulation to reduce confusion about
access to Presidential records in light of
these recent changes in the law.
DATES: Submit comments by January 27,
2017.
ADDRESSES: You may submit comments,
identified by RIN 3095–AB87, by any of
the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Email: Regulation_comments@
nara.gov. Include RIN 3095–AB87 in the
subject line of the message.
• Mail (for paper, disk, or CD–ROM
submissions. Include RIN 3095–AB87
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.
This privilege review process was
previously controlled by an Executive
Order, subject to change by any sitting
administration. Because Congress
codified the privilege review process 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
AGENCY:
SUMMARY:
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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 more minor changes. We are
therefore also revising the regulation to
reflect these changes (the regulatory
changes are identified in more detail
below).
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.
Substantive Changes in the Regulation
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Subpart A
§ 1270.1, Scope: Removed ‘‘Nothing
in these regulations is intended to
govern procedures for assertion of, or
response to, any constitutionally based
privilege which may be available to an
incumbent or former President.’’ The
2014 Amendments at 44 U.S.C. 2208
now include the President’s authority to
assert a constitutionally based privilege
and those provisions have been added
to this regulation.
§ 1270.2, Application: Removed
‘‘These regulations apply to all
Presidential records created during a
term of office of the President beginning
on or after January 20, 1981.’’ This is
already included elsewhere in the
regulation and thus was redundant.
Changed from stating that all
provisions in the regulation apply to the
Vice President and Vice Presidential
records, to stating that all provisions
except §§ 1270.46 and 1270.48 apply to
the Vice President as to the President,
because those sections have now been
revised due to the 2014 Amendments at
44 U.S.C. 2208 to cover only
Presidential authorities.
§ 1270.4, Definitions: Removed
‘‘documentary material, personal
records, President, Presidential archival
depository, Vice Presidential records,
filed’’ definitions because they are terms
not used in the regulation any longer or
the definitions were identical to the
statute and not needed.
Subpart B
Changed the title of the subpart from
‘‘Handling Presidential records upon
death or disability’’ to ‘‘Custody and
control of Presidential records’’ and
revised the subpart to add a provision
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on ‘‘Presidential records in the
Archivist’s physical custody’’
(§ 1270.20), because the President may
request that the Archivist maintain
physical custody of Presidential records
(now, under the 2014 Amendments at
44 U.S.C. 2203(f), also including
electronic records) during the
President’s term of office. However, the
President remains responsible for
control and access to these records until
the end of the President’s term of office.
Subpart C
§ 1270.32, Disposal of Presidential
records in the Archivist’s custody:
Revised to require a preliminary notice
of proposed disposal with a 45-day
public comment period, in addition to
the final notice published 60 days prior
to the disposal, as established in the
2014 Amendments at 44 U.S.C.
2203(g)(3).
Subpart D
Added § 1270.38 to clarify when
public access to Presidential records
may occur based on requirements in 44
U.S.C. 2204, to make it easier for readers
to understand the context in which the
subsequent sections on restricting
access occur.
§ 1270.42(b), Appealing restricted
access: Expanded the time in which a
person denied access due to a
Presidential restriction may file an
appeal, from 35 days after receiving
NARA’s denial letter to 90 days, to be
consistent with the 2016 Amendments
to the Freedom of Information Act, at 5
U.S.C. 552(a)(6)(i)(III)(aa).
§ 1270.44, Exceptions to restricted
access: Under the 2014 Amendments at
44 U.S.C. 2204(f), added a provision at
(a)(4) that the Archivist will not release
original Presidential records to a
President’s designated representative
who has been convicted of a crime that
involves misuse or misappropriation of
NARA records.
Added provisions at (d) through (g)
allowing for notification of a request for
records to the former and incumbent
President so that they may consider
whether to assert a constitutionally
based privilege. These provisions are
similar to new section 1270.48, which,
in accord with the 2014 Amendments at
44 U.S.C. 2208, covers releasing records
to the public and claiming privilege
against disclosure.
§ 1270.46, Notice of intent to disclose
Presidential records to the public: In
accord with the 2014 Amendments at 44
U.S.C. 2208(2)(B), added detail in
subsection (b) about what will be
included in the notice to the public
(such as the NARA case number and the
end date of the 60-day working period
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set out in § 1270.48 for the President to
assert a constitutional privilege).
§ 1270.48, Releasing records to the
public and claiming privilege against
disclosure: Revised to include
procedures, now codified in the 2014
Amendments, by which Presidents may
restrict public access to Presidential
records of former Presidents that are in
NARA’s legal custody through a
constitutionally based privilege against
disclosure. This new section parallels
new provisions in 44 U.S.C. 2208,
including a 60-day notice period in
which a President may assert a
constitutionally based claim of privilege
against disclosure.
The regulation has also been revised
throughout with non-substantive edits
and reorganization to incorporate Plain
Writing Act practices and make it
clearer and easier to read.
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 proposed 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 proposed regulation.
Review Under the Regulatory Flexibility
Act (5 U.S.C. 601, et seq.)
Although this proposed 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.
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Review Under the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501, et seq.)
Subpart A—General Provisions
§ 1270.22 Designating a representative to
act for a President.
§ 1270.1
This proposed rule does not contain
any information collection requirements
subject to the Paperwork Reduction Act.
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 VicePresidential records created during a
Presidential or Vice Presidential term of
office beginning on or after January 20,
1981.
(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.
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 proposed rule will
not have any direct effects on State and
local governments within the meaning
of the Executive Order. Therefore, the
proposed 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.
For the reasons stated in the
preamble, NARA proposes to revise 36
CFR part 1270 to read as follows:
PART 1270—PRESIDENTIAL
RECORDS
Scope of part.
Application.
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.
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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.
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Application.
This part, except §§ 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
§§ 1270.46 and 1270.48. The Archivist’s
authority with respect to VicePresidential 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.
§ 1270.4
Subpart A—General Provisions
Sec.
1270.1
1270.2
1270.4
§ 1270.2
Scope of part.
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
§ 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.
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§ 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 § 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
§ 1270.48.
Subpart C—Disposing of Presidential
Records
§ 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
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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.
§ 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
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§ 1270.38
records.
Public access to Presidential
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)).
§ 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
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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.
§ 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 § 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.
§ 1270.44
Exceptions to restricted access.
(a) Even when a President imposes
restrictions on access under § 1270.40,
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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
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(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
subparagraph (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.
sradovich on DSK3GMQ082PROD with PROPOSALS
§ 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 § 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;
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18:33 Dec 27, 2016
Jkt 241001
(4) The date on which the 60-workingday period set out in § 1270.48(a)
expires; and
(5) Any other information the
Archivist may decide.
§ 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 § 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 subparagraph (a) of this section,
or any extension of that period under
subparagraph (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.
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Fmt 4702
Sfmt 4702
(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
subparagraph (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.
§ 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:
E:\FR\FM\28DEP1.SGM
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Federal Register / Vol. 81, No. 249 / Wednesday, December 28, 2016 / Proposed Rules
(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).
Dated: December 15, 2016.
David S. Ferriero,
Archivist of the United States.
[FR Doc. 2016–31011 Filed 12–27–16; 8:45 am]
BILLING CODE 7515–01–P
NATIONAL ARCHIVES AND RECORDS
ADMINISTRATION
Background
Office of Government Information
Services
36 CFR Chapter XII
[FDMS No. NARA–16–0004; NARA–2017–
001]
RIN 3095–AB88
Office of Government Information
Services
Office of Government
Information Services, NARA.
ACTION: Proposed rule.
AGENCY:
The Open Government Act of
2007 created the Office of Government
Information Services (OGIS) within the
National Archives and Records
Administration (NARA). OGIS has three
statutorily defined functions: OGIS
offers mediation services to help resolve
FOIA disputes; reviews agency FOIA
policies, procedures and compliance;
and identifies procedures and methods
for improving compliance under the
FOIA. This proposed rule sets out the
implementing guidance and procedures
by which OGIS carries out its statutory
mission, and explains OGIS’s role in the
FOIA process.
DATES: Submit comments on or before
February 27, 2017.
ADDRESSES: You may submit comments
on this rule, identified by RIN 3095–
AB88, by any of the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Email: Regulation_comments@
nara.gov. Include RIN 3095–AB88 in the
subject line of the message.
sradovich on DSK3GMQ082PROD with PROPOSALS
SUMMARY:
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• Mail (for paper, disk, or CD–ROM
submissions): Send comments to:
Regulations Comments Desk (External
Policy Program, Strategy & Performance
Division (SP)); Suite 4100; National
Archives and Records Administration;
8601 Adelphi Road; College Park, MD
20740–6001.
• Hand delivery or courier: Deliver
comments to front desk at 8601 Adelphi
Road, College Park, MD, addressed to:
Regulations Comments Desk, External
Policy Program; Suite 4100.
FOR FURTHER INFORMATION CONTACT: For
information or questions about the
regulation and the comments process,
contact Kimberly Keravuori, External
Policy Program Manager, by email at
regulation_comments@nara.gov, or by
telephone at 301.837.3151. For
information or questions on the OGIS
program, contact Nikki Gramian, Deputy
Director, OGIS, by telephone at 1–877–
684–6448.
SUPPLEMENTARY INFORMATION:
The OPEN Government Act of 2007
(Pub. L. 110–175, 121 Stat. 2524)
amended the Freedom of Information
Act, or FOIA (5 U.S.C. 552, as
amended), and created the Office of
Government Information Services
(OGIS) within the National Archives
and Records Administration. OGIS
began receiving FOIA cases in
September 2009.
This proposed regulation explains
OGIS’s statutory role in the FOIA
process and sets out procedures for one
of OGIS’s primary functions: Assisting
agencies and FOIA requesters with
efforts to resolve FOIA disputes. In the
future, this regulation will also include
provisions on OGIS’s other functional
areas, which are currently under
development.
OGIS’s Mediation Function
Title 5, United State Code § 552(h)(3),
states that ‘‘The Office of Government
Information Services shall offer
mediation services to resolve disputes
between persons making requests under
this section and administrative agencies
as a non-exclusive alternative to
litigation. . .’’ As a result, we offer
dispute resolution services, which is an
umbrella term encompassing formal
mediation (where a mediator conducts
formal sessions to assist in resolving a
dispute), facilitation (an informal
process in which a mediator aids
communication among and between the
parties to resolve a dispute), and other
commonly recognized resolution
methods. OGIS’s dispute resolution
services may also include OGIS’s
PO 00000
Frm 00052
Fmt 4702
Sfmt 4702
95547
ombuds services (which include
providing information) when those
services aid in resolving disputes. Our
goal is to be an alternative to litigation
by facilitating communication between
a requester and the agency and by
attempting to resolve disputes arising
out of requests for information. We
provide all our dispute resolution
services in accordance with the
Administrative Dispute Resolution Act
(ADRA), 5 U.S.C. 571, et seq.
Both FOIA requesters and agencies
may contact us to help resolve a dispute
at any point in the FOIA process. We do
not advocate on behalf of a requester or
agency; the office promotes a fair FOIA
process and works with parties to reach
a mutually agreeable resolution. If the
parties agree that the dispute has been
resolved, we will close the case and may
follow-up with the agency to confirm
that any agreed-upon action was taken.
However, if the parties cannot agree on
a resolution, OGIS will issue a final
response letter to the parties indicating
that we are concluding the dispute
resolution efforts.
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 proposed rule is
‘‘significant’’ under section 3(f) of
Executive Order 12866 because it
establishes OGIS implementing
regulatory provisions for the first time.
The Office of Management and Budget
(OMB) has reviewed this proposed
regulation.
Review Under the Regulatory Flexibility
Act (5 U.S.C. 601, et seq.)
This review requires an agency to
prepare an initial regulatory flexibility
analysis and publish it when the agency
publishes the proposed rule. This
requirement does not apply if the
agency certifies that the rule will not, if
promulgated, 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 proposed rule will not
have a significant adverse economic
E:\FR\FM\28DEP1.SGM
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]]>Agencies
[Federal Register Volume 81, Number 249 (Wednesday, December 28, 2016)]
[Proposed Rules]
[Pages 95542-95547]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31011]
=======================================================================
-----------------------------------------------------------------------
NATIONAL ARCHIVES AND RECORDS ADMINISTRATION
36 CFR Part 1270
[FDMS No. NARA-16-0005; NARA-2017-011]
RIN 3095-AB87
Presidential Records
AGENCY: National Archives and Records Administration (NARA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: We are proposing to revise 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
and remain in effect, even without this proposed regulatory revision.
The proposed changes 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 and issue this updated
regulation to reduce confusion about access to Presidential records in
light of these recent changes in the law.
DATES: Submit comments by January 27, 2017.
ADDRESSES: You may submit comments, identified by RIN 3095-AB87, by any
of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Email: Regulation_comments@nara.gov. Include RIN 3095-AB87
in the subject line of the message.
Mail (for paper, disk, or CD-ROM submissions. Include RIN
3095-AB87 on the submission): Regulations Comments Desk (External
Policy Program, Strategy and Performance Division (SP)); Suite 4100;
National Archives and Records Administration; 8601 Adelphi Road;
College Park, MD 20740-6001
Hand delivery or courier: Deliver comments to the front
desk at the address above.
Instructions: You must include on all submissions the Regulatory
Information Number (RIN) for this rulemaking (RIN 3095-AB87) and NARA's
name. We may publish any comments we receive without changes, including
any personal information you provide.
FOR FURTHER INFORMATION CONTACT: Kimberly Keravuori, by email at
regulation_comments@nara.gov, or by telephone at 301-837-3151.
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. This privilege review process was previously controlled by an
Executive Order, subject to change by any sitting administration.
Because Congress codified the privilege review process 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
[[Page 95543]]
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 more minor changes. We are therefore also revising the
regulation to reflect these changes (the regulatory changes are
identified in more detail below).
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.
Substantive Changes in the Regulation
Subpart A
Sec. 1270.1, Scope: Removed ``Nothing in these regulations is
intended to govern procedures for assertion of, or response to, any
constitutionally based privilege which may be available to an incumbent
or former President.'' The 2014 Amendments at 44 U.S.C. 2208 now
include the President's authority to assert a constitutionally based
privilege and those provisions have been added to this regulation.
Sec. 1270.2, Application: Removed ``These regulations apply to all
Presidential records created during a term of office of the President
beginning on or after January 20, 1981.'' This is already included
elsewhere in the regulation and thus was redundant.
Changed from stating that all provisions in the regulation apply to
the Vice President and Vice Presidential records, to stating that all
provisions except Sec. Sec. 1270.46 and 1270.48 apply to the Vice
President as to the President, because those sections have now been
revised due to the 2014 Amendments at 44 U.S.C. 2208 to cover only
Presidential authorities.
Sec. 1270.4, Definitions: Removed ``documentary material, personal
records, President, Presidential archival depository, Vice Presidential
records, filed'' definitions because they are terms not used in the
regulation any longer or the definitions were identical to the statute
and not needed.
Subpart B
Changed the title of the subpart from ``Handling Presidential
records upon death or disability'' to ``Custody and control of
Presidential records'' and revised the subpart to add a provision on
``Presidential records in the Archivist's physical custody'' (Sec.
1270.20), because the President may request that the Archivist maintain
physical custody of Presidential records (now, under the 2014
Amendments at 44 U.S.C. 2203(f), also including electronic records)
during the President's term of office. However, the President remains
responsible for control and access to these records until the end of
the President's term of office.
Subpart C
Sec. 1270.32, Disposal of Presidential records in the Archivist's
custody: Revised to require a preliminary notice of proposed disposal
with a 45-day public comment period, in addition to the final notice
published 60 days prior to the disposal, as established in the 2014
Amendments at 44 U.S.C. 2203(g)(3).
Subpart D
Added Sec. 1270.38 to clarify when public access to Presidential
records may occur based on requirements in 44 U.S.C. 2204, to make it
easier for readers to understand the context in which the subsequent
sections on restricting access occur.
Sec. 1270.42(b), Appealing restricted access: Expanded the time in
which a person denied access due to a Presidential restriction may file
an appeal, from 35 days after receiving NARA's denial letter to 90
days, to be consistent with the 2016 Amendments to the Freedom of
Information Act, at 5 U.S.C. 552(a)(6)(i)(III)(aa).
Sec. 1270.44, Exceptions to restricted access: Under the 2014
Amendments at 44 U.S.C. 2204(f), added a provision at (a)(4) that the
Archivist will not release original Presidential records to a
President's designated representative who has been convicted of a crime
that involves misuse or misappropriation of NARA records.
Added provisions at (d) through (g) allowing for notification of a
request for records to the former and incumbent President so that they
may consider whether to assert a constitutionally based privilege.
These provisions are similar to new section 1270.48, which, in accord
with the 2014 Amendments at 44 U.S.C. 2208, covers releasing records to
the public and claiming privilege against disclosure.
Sec. 1270.46, Notice of intent to disclose Presidential records to
the public: In accord with the 2014 Amendments at 44 U.S.C. 2208(2)(B),
added detail in subsection (b) about what will be included in the
notice to the public (such as the NARA case number and the end date of
the 60-day working period set out in Sec. 1270.48 for the President to
assert a constitutional privilege).
Sec. 1270.48, Releasing records to the public and claiming
privilege against disclosure: Revised to include procedures, now
codified in the 2014 Amendments, by which Presidents may restrict
public access to Presidential records of former Presidents that are in
NARA's legal custody through a constitutionally based privilege against
disclosure. This new section parallels new provisions in 44 U.S.C.
2208, including a 60-day notice period in which a President may assert
a constitutionally based claim of privilege against disclosure.
The regulation has also been revised throughout with non-
substantive edits and reorganization to incorporate Plain Writing Act
practices and make it clearer and easier to read.
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 proposed 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
proposed regulation.
Review Under the Regulatory Flexibility Act (5 U.S.C. 601, et seq.)
Although this proposed 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.
[[Page 95544]]
Review Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et
seq.)
This proposed 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 proposed rule will not have any direct effects on State
and local governments within the meaning of the Executive Order.
Therefore, the proposed 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.
For the reasons stated in the preamble, NARA proposes to revise 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.
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
[[Page 95545]]
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 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
[[Page 95546]]
(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 subparagraph (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;
(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 subparagraph (a) of this
section, or any extension of that period under subparagraph (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 subparagraph (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:
[[Page 95547]]
(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).
Dated: December 15, 2016.
David S. Ferriero,
Archivist of the United States.
[FR Doc. 2016-31011 Filed 12-27-16; 8:45 am]
BILLING CODE 7515-01-P
