Historical Research in the Files of the Office of the Secretary of Defense (OSD), 36875-36880 [E7-13006]
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Federal Register / Vol. 72, No. 129 / Friday, July 6, 2007 / Rules and Regulations
PART 1625—AGE DISCRIMINATION IN
EMPLOYMENT ACT
1. Revise the authority citation for part
1625 to read as follows:
I
Authority: 29 U.S.C. 621–634; 5 U.S.C.
301; sec. 2, Reorg. Plan No. 1 of 1978, 43 FR
19807; E.O. 12067, 43 FR 28967.
Subpart A—Interpretations
I
2. Revise § 1625.2 to read as follows:
§ 1625.2
Act.
Discrimination prohibited by the
It is unlawful for an employer to
discriminate against an individual in
any aspect of employment because that
individual is 40 years old or older,
unless one of the statutory exceptions
applies. Favoring an older individual
over a younger individual because of
age is not unlawful discrimination
under the ADEA, even if the younger
individual is at least 40 years old.
However, the ADEA does not require
employers to prefer older individuals
and does not affect applicable state,
municipal, or local laws that prohibit
such preferences.
I 3. Revise § 1625.4 to read as follows:
§ 1625.4 Help wanted notices or
advertisements.
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(a) Help wanted notices or
advertisements may not contain terms
and phrases that limit or deter the
employment of older individuals.
Notices or advertisements that contain
terms such as age 25 to 35, young,
college student, recent college graduate,
boy, girl, or others of a similar nature
violate the Act unless one of the
statutory exceptions applies. Employers
may post help wanted notices or
advertisements expressing a preference
for older individuals with terms such as
over age 60, retirees, or supplement your
pension.
(b) Help wanted notices or
advertisements that ask applicants to
disclose or state their age do not, in
themselves, violate the Act. But because
asking applicants to state their age may
tend to deter older individuals from
applying, or otherwise indicate
discrimination against older
individuals, employment notices or
advertisements that include such
requests will be closely scrutinized to
assure that the requests were made for
a lawful purpose.
I 4. Revise the first paragraph of
§ 1625.5 to read as follows:
§ 1625.5
Employment applications.
A request on the part of an employer
for information such as Date of Birth or
age on an employment application form
is not, in itself, a violation of the Act.
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But because the request that an
applicant state his age may tend to deter
older applicants or otherwise indicate
discrimination against older
individuals, employment application
forms that request such information will
be closely scrutinized to assure that the
request is for a permissible purpose and
not for purposes proscribed by the Act.
That the purpose is not one proscribed
by the statute should be made known to
the applicant by a reference on the
application form to the statutory
prohibition in language to the following
effect:
*
*
*
*
*
[FR Doc. E7–13051 Filed 7–5–07; 8:45 am]
BILLING CODE 6570–01–P
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authority over information contained in
or revealed by the records has been
obtained.
Access to unclassified OSD
Component files by historical
researchers shall be permitted
consistent with the restrictions of the
exemptions of the Freedom of
Information Act. The procedures for
access to classified information shall be
used if the requested unclassified
information is contained in OSD files
whose overall markings are classified.
On February 28, 2007 (72 FR 8952),
the Department of Defense published a
proposed rule, ‘‘Historical Research in
the Files of the Office of the Secretary
of Defense (OSD)’’ inviting public
comments. No comments were received.
Executive Order 13132, ‘‘Federalism’’
DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 197
[DoD–2006–OS–0023]
RIN 0790–AI12
Historical Research in the Files of the
Office of the Secretary of Defense
(OSD)
Department of Defense.
ACTION: Final rule.
AGENCY:
SUMMARY: This final rule identifies and
updates the policies and procedures for
the programs that permit U.S. citizens to
perform historical research in records
created by or in the custody of the
Office of the Secretary of Defense (OSD).
Historical Research in the Files of OSD
updates the policies and procedures for
the programs that permit U.S. citizens to
perform historical research in records
created by or in the custody of the OSD.
DATES: Effective Date: This rule is
effective August 6, 2007.
FOR FURTHER INFORMATION CONTACT: Mr.
Robert Storer, 703–696–2197.
SUPPLEMENTARY INFORMATION: Anyone
accessing classified material must
possess the requisite security clearance.
Information requested by historical
researchers shall be accessed at a DoD
activity or facility under the control of
the National Archives and Records
Administration (NARA).
Access to records by historical
researchers shall be limited to the
specific records within the scope of the
proposed historical research over which
the Department of Defense has
classification authority. Access shall
also be limited to any other records for
which the written consent of other
Agencies that have classification
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It has been certified that 32 CFR part
197 does not have federalism
implications, as set forth in Executive
Order 13132. This rule does not have
substantial direct effects on:
(1) The States;
(2) The relationship between the
National Government and the States; or
(3) The distribution of power and
responsibilities among the various
levels of Government.
Executive Order 12630, ‘‘Government
Actions and Interference With
Constitutionally Protected Property
Rights’’
It has been certified that 32 CFR part
197 does not:
(1) Place a restriction on a use of
private property;
(2) Involve a permitting process or
any other decision-making process that
will interfere with, or otherwise
prohibit, the use of private property; or
(3) Regulate private property use for
the protection of public health or safety.
Executive Order 12866, ‘‘Regulatory
Planning and Review’’
It has been certified that 32 CFR part
197 does not:
(1) Have an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy; a section of the economy;
productivity; competition; jobs; the
environment; public health or safety; or
State, local, or tribunal governments or
communities;
(2) Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another Agency;
(3) Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs, or the rights and
obligations of recipients thereof; or
(4) Raise novel legal or policy issues
arising out of legal mandates, the
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President’s priorities, or the principles
set forth in this Executive Order.
Executive Order 13045, ‘‘Protection of
Children From Environmental Health
Risks and Safety Risks’’
It has been certified that 32 CFR part
197 does not present any environmental
health or safety effects on children.
Section 202, Public Law 104–4,
‘‘Unfunded Mandates Reform Act’’
It has been certified that 32 CFR part
197 does not contain a Federal mandate
that may result in the expenditure by
State, local and tribunal governments, in
aggregate, or by the private sector, of
$100 million or more in any one year.
National Environmental Policy Act
It has been certified that 32 CFR part
197 does not significantly affect the
quality of the human environment.
Public Law 96–354, ‘‘Regulatory
Flexibility Act’’ (5 U.S.C. 601)
It has been certified that 32 CFR part
197 is not subject to the Regulatory
Flexibility Act (5 U.S.C. 601) because it
would not, if promulgated, have a
significant economic impact on a
substantial number of small entities.
Historical Research in the files of the
Office of the Secretary of Defense (OSD)
updates policies and procedures for the
programs that permit U.S. citizens to
perform historical research in records
created by or in the custody of the OSD.
Public Law 96–511, ‘‘Paperwork
Reduction Act’’ (44 U.S.C. Chapter 35)
It has been certified that 32 CFR part
197 does not impose reporting or
recordkeeping requirements under the
Paperwork Reduction Act of 1995.
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PART 197—HISTORICAL RESEARCH
IN THE FILES OF THE OFFICE OF THE
SECRETARY OF DEFENSE (OSD)
Sec.
197.1 Purpose.
197.2 Applicability and scope.
197.3 Definition.
197.4 Policy.
197.5 Responsibilities.
197.6 Procedures.
Appendix A to Part 197—Explanation of
Freedom of Information Act (5 U.S.C.
552) Exemptions
Appendix B to Part 197—Procedures for
Historical Researchers Permanently
Assigned Within the Executive Branch
Working on Official Projects
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Authority: 10 U.S.C. 301.
§ 197.1
Purpose.
This part identifies and updates the
policies and procedures for the
programs that permit U.S. citizens to
perform historical research in records
created by or in the custody of the OSD
consistent with Executive Order 12958,
DoD 5200.01–R 1, DoD 5400.07–R, DoD
Directive 5400.11, the Interagency
Agreement on Access for Official
Agency Historians, and DoD Directive
5230.09.
§ 197.2
Applicability and scope.
This part applies to:
(a) The Office of the Secretary of
Defense and organizations for which the
Washington Headquarters Services
provides administrative support
(hereafter referred to collectively as the
‘‘OSD Components’’).
(b) All historical researchers.
(c) Former OSD Presidential
Appointees seeking access to records
containing information they originated,
reviewed, signed, or received while
serving in an official capacity.
§ 197.3
Definition.
Historical researcher or researcher. A
person desiring to conduct research in
OSD files for historical information to
use in any project (e.g. agency historical
office projects, books, articles, studies,
or reports) regardless of the person’s
employment status.
List of Subjects in 32 CFR Part 197
Administrative practice and
procedure.
I Accordingly, 32 CFR Chapter 1,
subchapter M is amended by adding
part 197 to read as follows:
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Appendix C to Part 197—Procedures for the
Department of State (DOS) Foreign
Relations of the United States (FRUS)
Series
Appendix D to Part 197—Procedures for
Historical Researchers Not Permanently
Assigned to the Executive Branch
Appendix E to Part 197—Form Letter—
Conditions Governing Access to Official
Records for Historical Research Purposes
Appendix F to Part 197—Procedures for
Copying of Documents for the Foreign
Relations of the United States Series
Appendix G to Part 197—Procedures for
Copying Documents
§ 197.4
Policy.
It is DoD policy, pursuant to E.O.
12958, that:
(a) Anyone accessing classified
material must possess the requisite
security clearance.
(b) Information requested by historical
researchers shall be accessed at a DoD
activity or facility under the control of
the National Archives and Records
Administration (NARA). Usually such
access will occur at either the
1 Copies of unclassified DoD Directives, DoD
Instructions, DoD Publications, and OSD
Administrative Instructions may be found at https://
www.dtic.mil/whs/directives/.
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Washington National Records Center
(WNRC) in Suitland, Maryland, or
NARA’s Archives II in College Park,
Maryland.
(c) Access to records by historical
researchers shall be limited to the
specific records within the scope of the
proposed historical research over which
the Department of Defense has
classification authority. Access shall
also be limited to any other records for
which the written consent of other
Agencies that have classification
authority over information contained in
or revealed by the records has been
obtained.
(d) Access to unclassified OSD
Component files by historical
researchers shall be permitted
consistent with the restrictions of the
exemptions of the Freedom of
Information Act that are contained in
E.O. 12958 and explained in the
appendix B to this part (5 U.S.C. 552).
The procedures for access to classified
information shall be used if the
requested unclassified information is
contained in OSD files whose overall
markings are classified.
(e) Under E.O. 12958, or its successor,
persons permanently assigned within
the Executive Branch may be authorized
access to classified information for
official projects under DoD
classification authority, provided such
access is essential to the
accomplishment of a lawful and
authorized Government purpose and a
written determination of the
trustworthiness of the persons has been
made.
(f) Under E.O. 12958 and paragraph
C6.2.2. of DoD 5200.01–R, persons not
permanently assigned within the
Executive Branch who are engaged in
historical research projects or persons
permanently assigned within the
Executive Branch engaged in personal,
i.e. unofficial projects, may be
authorized access to classified
information under DoD classification
authority. The authorization shall be
based on a written determination of the
researcher’s trustworthiness, on the
proposed access being in the interests of
national security, and on the researcher
signing a copy of the letter (appendix E
to this part) by which he or she agrees
to safeguard the information and to
authorize a review of any notes and
manuscript for a determination that they
contain no classified information.
(g) Access for former Presidential
appointees is limited to records they
originated, reviewed, signed, or received
while serving as Presidential
appointees.
(h) Contractors working for Executive
Branch Agencies may be allowed access
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to classified OSD Component files. No
copies of still classified documents will
be released directly to a contractor. All
copies of classified documents needed
for a classified project will be forwarded
to the office of the Contracting
Government Agency responsible for
monitoring the project. The monitoring
office will be responsible for ensuring
that the contractor safeguards the
documents. The information is only
used for the project for which it was
requested, and that the contractor
returns the documents upon completion
of the final project. All copies of
documents needed for an unclassified
project will undergo a mandatory
declassification review before the copies
are released to the contractor to use in
the project.
(i) The records maintained in OSD
Component office files and at the WNRC
cannot be segregated, requiring that
authorization be received from all
agencies whose classified information is
or is expected to be in the requested
files for access to be permitted.
(j) All researchers must hold security
clearances at the classification level of
the requested information. In addition,
all DoD employed requesters, to include
DoD contractors, must have Critical
Nuclear Weapons Design Information
(CNWDI) access and all other Executive
Branch and non-Executive Branch
requesters must have a Department of
Energy issued ‘‘Q’’ clearance to access
CNWDI information.
§ 197.5
Responsibilities.
(a) The Director of Administration
and Management, Office of the Secretary
of Defense, (DA&M, OSD), or designee
shall, according to the Deputy Secretary
of Defense Memorandum dated August
25, 1993, be the approval authority for
access to DoD classified information in
OSD Component files and in files at the
National Archives, Presidential
libraries, and other similar institutions.
(b) The Heads of the OSD
Components, when requested, shall:
(1) Determine whether access is for a
lawful and authorized Government
purpose or in the interest of national
security.
(2) Determine whether the specific
records requested are within the scope
of the proposed historical research.
(3) Determine the location of the
requested records.
(4) Provide a point of contact to the
OSD Records Administrator.
(c) The OSD Records Administrator
shall:
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(1) Exercise overall management of
the Historical Research Program.
(2) Maintain records necessary to
process and monitor each case.
(3) Obtain all required authorizations.
(4) Obtain, when warranted, the legal
opinion of the General Counsel of the
Department of Defense regarding the
requested access.
(5) Perform a mandatory
declassification review on documents
selected by the researchers for use in
unclassified projects.
(6) Provide to prospective researchers
the procedures necessary for requesting
access to OSD Component files.
(d) The Researcher shall provide any
information and complete all forms
necessary to process a request for
access.
§ 197.6
Procedures.
The procedures for processing and/or
researching for access to OSD
Component files are in appendices B, C,
and D to this part.
Appendix A to Part 197—Explanation
of Freedom of Information Act (5 U.S.C.
552) Exemptions
A. Exemptions
Exemption
Explanation
(b)(1) ..........................
Applies to information that is currently and properly classified pursuant to an Executive Order in the interest of national
defense or foreign policy (See E.O. 12958 and DoD 5200.01–R) (Sec 1.4. Classification Categories from E.O. 12958
are provided on the next page);
Applies to information that pertains solely to the internal rules and practices of the Agency; this exemption has two profiles, ‘‘high’’ and ‘‘low.’’ The ‘‘high’’ profile permits withholding a document which, if released, would allow circumvention of an Agency rule, policy, or statute, thereby impeding the Agency in the conduct of its mission. The ‘‘low’’ profile
permits withholding if there is no public interest in the document, and it would be an administrative burden to process
the request;
Applies to information specifically exempted by a statute establishing particular criteria for withholding. The language of
the statute must clearly state that the information will not be disclosed;
Applies to information such as trade secrets and commercial or financial information obtained from a company on a privileged or confidential basis which, if released, would result in competitive harm to the company;
Applies to inter- and intra-Agency memoranda that are deliberative in nature; this exemption is appropriate for internal
documents that are part of the decision-making process, and contain subjective evaluations, opinions, and recommendations;
Applies to information the release of which could reasonably be expected to constitute a clearly unwarranted invasion of
the personal privacy of individuals; and
Applies to records or information compiled for law enforcement purposes that could reasonably be expected to interfere
with law enforcement proceedings; would deprive a person of a right to a fair trial or impartial adjudication; could reasonably be expected to constitute an unwarranted invasion of the personal privacy of others; disclose the identity of a
confidential source; disclose investigative techniques and procedures; or could reasonably be expected to endanger
the life or physical safety of any individual.
(b)(2) ..........................
(b)(3) ..........................
(b)(4) ..........................
(b)(5) ..........................
(b)(6) ..........................
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(b)(7) ..........................
See Chapter III of DoD 5400.07–R for
further information.
B. Extract From E.O. 12958
Section 1.4. Classification Categories.
Information shall not be considered for
classification unless it concerns:
(a) Military plans, weapons systems, or
operations;
(b) Foreign government information;
(c) Intelligence activities (including special
activities), intelligence sources or methods,
or cryptology;
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(d) Foreign relations or foreign activities of
the United States, including confidential
sources;
(e) Scientific, technological, or economic
matters relating to the national security,
which includes defense against transnational
terrorism;
(f) United States Government programs for
safeguarding nuclear materials or facilities;
(g) Vulnerabilities or capabilities of
systems, installations, infrastructures,
projects, plans, or protection services relating
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to the national security, which includes
defense against transnational terrorism; or
(h) Weapons of mass destruction.
Appendix B to Part 197—Procedures
for Historical Researchers Permanently
Assigned Within the Executive Branch
Working on Official Projects
1. The Head of each OSD Component,
when requested, shall:
a. Make a written determination that the
requested access is essential to the
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accomplishment of a lawful and authorized
Government purpose, stating whether the
requested records can be made available; if
disapproved, cite specific reasons.
b. Provide the location of the requested
records, including accession and box
numbers if the material has been retired to
the WNRC.
c. Provide a point of contact for liaison
with the OSD Records Administrator if any
requested records are located in OSD
Component working files.
2. The OSD Records Administrator shall:
a. Process all requests from Executive
Branch employees requesting access to OSD
Component files for official projects.
b. Determine which OSD Component(s)
originated the requested records and, if
necessary, request an access determination
(paragraph 1.a. of this appendix) from the
OSD Component(s) and the location of the
requested records, including accession and
box numbers if the records are in retired files.
c. Request authorization for access from
other Agencies as necessary:
(1) By the terms of the ‘‘Interagency
Agreement on Access for Official Agency
Historians,’’ hereafter referred to as ‘‘the
Agreement’’, historians employed by a
signatory Agency may have access to the
classified information of any other Agency
signatory to the Agreement found in OSD
files. The Central Intelligence Agency (CIA)
and National Security Council (NSC) are not
signatories to the Agreement. Authorization
for access must be obtained from these
Agencies, as well as from any other nonsignatory Agency whose classified
information is expected to be found in the
files to be accessed.
(2) If the official historian is employed by
an Agency that is not a signatory to the
Agreement, authorization for access must be
obtained from the CIA, NSC, Department of
State (DoS), and any other non-DoD Agency
whose classified information is expected to
be found in the files to be accessed.
(3) If the requester is not an official
historian, authorization for access must be
obtained from the CIA, NSC, DoS, and any
other non-DoD Agency whose classified
information is expected to be found in the
files to be accessed.
(4) Make a written determination as to the
researcher’s trustworthiness based on the
researcher having been issued a security
clearance.
(5) Compile all information on the request
for access to classified information to include
evidence of an appropriately issued
personnel security clearance and forward the
information to the DA&M, OSD, or designee,
who shall make the final access
determination.
(6) Notify the researcher of the
authorization and conditions for access to the
requested records or of the denial of access
and the reason(s).
(7) Ensure all conditions for access and
release of information for use in the project
are met.
(8) Make all necessary arrangements for the
researcher to visit the WNRC and review the
requested records if they have been retired
there.
(9) Assign a member of his staff to
supervise the researcher’s copying of
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pertinent documents at the WNRC. Provide a
copier and toner cartridge or appropriate
consumable supplies to be used by the
researcher to copy the documents.
(10) If the records are maintained in an
OSD Component’s working files, arrange for
the researcher to review the material and
make copies of pertinent documents in the
OSD Component’s office.
(11) Notify the National Archives or
Presidential library concerned of the
authorization and conditions for access, if the
researcher desiring to research material in
those facilities is not an official historian or
is an official historian employed by an
Agency that is not a signatory to the
Agreement.
3. The researcher shall:
a. Submit a request for access to OSD files
to the OSD Records Administrator, 1155
Defense, Pentagon, Washington, DC 20301–
1155.
The request must contain the following
information:
(1) The name(s) of the researcher(s) and
any assistant(s), level of security clearance,
and the office to which the researcher is
assigned.
(2) Provide a statement on the purpose of
the project, including whether the final
product is to be classified or unclassified.
(3) Provide an explicit description of the
information being requested and if known,
the originating office, so that the
identification and location of the information
may be facilitated.
(4) An appropriate higher authority must
sign the request.
b. Ensure his or her security manager or
personnel security office verifies his or her
security clearances in writing to the Security
Manager for the office of the OSD Records
Administrator.
c. Submit notes taken during research, as
follows:
(1) Use letter-sized paper (approximately
81⁄2 by 11 inches), writing on only one side
of the page. Each page of notes must pertain
to only one document.
(2) Indicate at the top of each page of notes
the document’s originator, date, subject (if
the subject is classified, indicate the
classification), folder number or other
identification, accession number and box
number in which the document was found,
and the security classification of the
document. All notes are considered classified
at the level of the document from which they
were taken.
(3) Number each page of notes
consecutively.
(4) Leave the last 11⁄2 inches on the bottom
of each page of notes blank for use by the
reviewing agencies.
(5) Ensure the notes are legible, in English,
and in black ink.
(6) All notes must be given to the facility
staff at the end of each day. The facility staff
will forward the notes to the OSD Records
Administrator for a declassification review
and release determination.
d. Maintain the file integrity of the records
being reviewed, ensuring no records are
removed and all folders are replaced in the
correct box in their proper order.
e. Make copies of any documents pertinent
to the project, ensuring that staples are
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carefully removed and that the documents
are restapled before they are replaced in the
folder. Subparagraph E3.1.3. of this
appendix, also applies to the copying of
documents. The copying of documents at the
WNRC must be accomplished under the
supervision of a member of the OSD Records
Administrator staff (appendix D to this part).
f. Submit, prior to unclassified
presentation or publication, the completed
manuscript, along with any copies of
documents used and notes taken, to the OSD
Records Administrator for onward
transmission to the Chief, Security Review,
Executive Services Directorate for review.
g. If the requester is an official historian of
an Agency signatory to the Agreement,
requests for access to the records at the
National Archives or a Presidential library
should be addressed directly to the pertinent
facility with an information copy to the OSD
Records Administrator.
(1) The historian’s security clearances must
be verified to the National Archives or the
Presidential library.
(2) Paragraphs 1.c. through 1.f. of this
appendix apply to research in files at the
National Archives, a Presidential library, or
other facility.
(3) All notes and documents must be given
to the facility staff for forwarding to the office
of the OSD Records Administrator.
Appendix C to Part 197—Procedures
for the Department of State (DoS)
Foreign Relations of the United States
(FRUS) Series
1. The OSD Records Administrator shall:
a. Determine the location of the records
being requested by the DoS for the FRUS
series under Public Law No. 102–138.
b. Request authorization from the CIA,
NSC, and any other non-DoD Agency not
signatory to the Agreement for the State
historians to have access to such non-DoD
Agency classified information expected to be
interfiled with the requested OSD records.
c. Obtain written verification from the DoS
Diplomatic Security staff of all security
clearances, including ‘‘Q’’ clearances.
d. Make all necessary arrangements for the
State historians to access and review OSD
files.
e. Make all necessary arrangements for the
State historians to copy documents selected
for use in their research.
(1) According to appendix F to this part,
provide a staff member to supervise the
copying and the copier to be used to copy the
documents.
(2) Compile a list of the documents that
were copied by the DoS.
f. Release all documents copied by the DoS
for use in the FRUS still classified.
g. Submit to the respective Agency a list of
CIA and NSC documents copied and released
to the State historians.
h. Process requests from the DoS
Historian’s office for members of the
Advisory Committee on Historical
Diplomatic Documentation, who possess the
appropriate security clearances, to have
access to documents copied and used by the
State historians to compile the FRUS series
volumes or to the files that were reviewed to
obtain the copied document. Make all
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necessary arrangements for the Committee to
review any documents that are at the WNRC.
2. The DoS Historian shall:
a. Submit requests for access to OSD files
to the OSD Records Administrator, 1155
Defense, Pentagon, Washington, DC 20301–
1155. The request should list the names and
security clearances for the historians doing
the research and an explicit description,
including the accession and box numbers, of
the files being requested.
b. Submit requests for access for members
of the Advisory Committee on Historical
Diplomatic Documentation to documents
copied by the State historians for the series
or the files reviewed to obtain the documents
to the OSD Records Administrator.
c. Request that the DoS Diplomatic
Security staff verify all security clearances in
writing to the Security Manager for the office
of the OSD Records Administrator.
d. According to appendix F to this part,
supply the toner cartridge, paper, and other
supplies required to copy the documents.
e. Give all copies of the documents to the
member of the office OSD Records
Administrator’s staff who is supervising the
copying as the documents are copied.
f. Submit any DoD documents desired for
use or pages of the manuscript containing
DoD classified information to the Chief,
Security Review, Executive Services
Directorate, 1155, Defense, Pentagon,
Washington, DC 20301–1155 for a
declassification review prior to publication.
jlentini on PROD1PC65 with RULES
Appendix D to Part 197—Procedures
for Historical Researchers Not
Permanently Assigned to the Executive
Branch
1. The Head of each OSD Component,
when required, shall:
a. Make recommendations to the DA&M,
OSD, or his designee, as to approval or
disapproval of requests to OSD files stating
whether release of the requested information
is in the interest of national security and
whether the information can be made
available; if disapproval is recommended,
specific reasons should be cited.
b. Provide the location of the requested
information, including the accession and box
numbers for any records that have been
retired to the WNRC.
c. Provide a point of contact for liaison
with the OSD Records Administrator if any
requested records are located in Component
working files.
2. The OSD Records Administrator shall:
a. Process all requests from non-Executive
Branch researchers for access to OSD files.
Certify that the requester has the appropriate
clearances.
b. Obtain prior authorization to review
their classified information from the DoS,
CIA, NSC, and any other Agency whose
classified information is expected to be
interfiled with OSD records.
c. Make a determination as to which OSD
Component originated the requested records,
and as necessary, obtain written
recommendations (paragraph 1.a. of this
section) for the research to review the
classified information.
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d. Obtain a copy of the letter in Enclosure
6 of this AI signed by the researcher(s) and
any assistant(s).
e. If the requester is a former Presidential
appointee (FPA), after completion of the
actions described in paragraph 1.b. through
1.b.(4) of this appendix, submit a
memorandum to DoD, Human Resources,
Security Division, requesting the issuance
(including an interim) or reinstatement of an
inactive security clearance for the FPA and
any assistant and a copy of any signed form
letters (paragraph 1.b. of this appendix). DoD,
Human Resources, Security Division, will
contact the researcher(s) and any assistant(s)
to obtain the forms required to reinstate or
obtain a security clearance and initiate the
personnel security investigation. Upon
completion of the adjudication process,
notify the OSD Records Administrator in
writing of the reinstatement, issuance, or
denial of a security clearance.
f. Make a written determination as to the
researcher’s trustworthiness, based on his or
her having been issued a security clearance.
g. Compile all information on the request
for access to classified information to include
either evidence of an appropriately issued or
reinstated personnel security clearance and
forward the information to the DA&M, OSD,
or his designee, who shall make the final
determination on the applicant’s eligibility
for access to classified OSD files. If the
determination is favorable, the DA&M, OSD,
or his designee, shall then execute an
authorization for access, which will be valid
for not more than 2 years.
h. Notify the researcher of the approval or
disapproval of the request. If the request has
been approved, the notification shall identify
the files authorized for review and shall
specify that the authorization:
(1) Is approved for a predetermined time
period.
(2) Is limited to the designated files.
(3) Does not include access to records and/
or information of other Federal Agencies,
unless such access has been specifically
authorized by those Agencies.
i. Make all necessary arrangements for the
researcher to visit the WNRC and review any
requested records that have been retired
there, to include written authorization,
conditions for the access, and a copy of the
security clearance verification.
j. If the requested records are at the WNRC,
make all necessary arrangements for the
copying of documents; provide a copier and
toner cartridge for use in copying documents
and a staff member to supervise the copying
of pertinent documents by the researcher.
k. If the requested records are maintained
in OSD Component working files, make
arrangements for the researcher to review the
requested information and if authorized,
copy pertinent documents in the OSD
Component’s office. Provide the OSD
Component with a copy of the written
authorization and conditions under which
the access is permitted.
l. Compile a list of all the documents
copied by the researcher.
m. Perform a mandatory declassification
review on all notes taken and documents
copied by the researcher.
n. If the classified information to be
reviewed is on file at the National Archives,
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36879
a Presidential library or other facility, notify
the pertinent facility in writing of the
authorization and conditions for access.
3. The researcher shall:
a. Submit a request for access to OSD
Component files to the OSD Records
Administrator, 1155 Defense, Pentagon,
Washington, DC 20301–1155. The request
must contain the following:
(1) As explicit a description as possible of
the information being requested so that
identification and location of the information
may be facilitated.
(2) A statement as to how the information
will be used, including whether the final
project is to be classified or unclassified.
(3) State whether the researcher has a
security clearance, including the level of
clearance and the name of the issuing
Agency.
(4) The names of any persons who will be
assisting the researcher with the project. If
the assistants have security clearances,
provide the level of clearance and the name
of the issuing Agency.
b. A signed copy of the letter (appendix E
to this part) by which the requester agrees to
safeguard the information and to authorize a
review of any notes and manuscript for a
determination that they contain no classified
information. Each project assistant must also
sign a copy of the letter.
c. If the requester is an FPA, complete the
forms necessary (see paragraph 1.b. of this
appendix) to obtain a security clearance.
Each project assistant will also need to
complete the forms necessary to obtain a
security clearance. If the FPA or assistant
have current security clearances, their
personnel security office must provide
verification in writing to the Security
Manager for the office of the OSD Records
Administrator.
d. Maintain the integrity of the files being
reviewed, ensuring that no records are
removed and that all folders are replaced in
the correct box in their proper order.
e. If copies are authorized, all copies must
be given to the custodian of the files at the
end of each day. The custodian will forward
the copies of the documents to the OSD
Records Administrator for a declassification
review and release to the requester.
(1) For records at the WNRC, if authorized,
make copies of documents only in the
presence of a member of the OSD Records
Administrator’s staff (appendix G to this
part).
(2) As they are copied, all documents must
be given to the OSD Records Administrator’s
staff member supervising the copying.
(3) Ensure all staples are carefully removed
and that the documents are restapled before
the documents are replaced in the folder.
Paragraph 1.c. of this appendix also applies
to the copying of documents.
f. Submit all notes (classified and
unclassified) made from the records to the
OSD Records Administrator for a
declassification and release review through
the custodian of the files at the end of each
day’s review as described in paragraphs
1.c.(3) through 1.c.(5) of appendix B to this
part.
g. Submit the notes and final manuscript
to the OSD Records Administrator for
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forwarding to the Chief, Security Review,
Executive Services Directorate, for a security
review and clearance under DoD Directive
5230.09 prior to unclassified publication,
presentation, or any other public use.
jlentini on PROD1PC65 with RULES
Appendix E to Part 197—Form Letter—
Conditions Governing Access to Official
Records for Historical Research
Purposes
Date:
OSD Records Administrator
1155 Defense Pentagon
Washington, DC 20301–1155
Dear
I understand that the classified information
to which I have requested access for
historical research purposes is concerned
with the national defense or foreign relations
of the United States, and the unauthorized
disclosure of it could reasonably be expected
to cause damage, serious damage, or
exceptionally grave damage to the national
security depending on whether the
information is classified Confidential, Secret,
or Top Secret, respectively. If granted access,
I therefore agree to the following conditions
governing access to the Office of the
Secretary of Defense (OSD) files:
1. I will abide by any rules and restrictions
promulgated in your letter of authorization,
including those of other Agencies whose
information is interfiled with that of the
OSD.
2. I agree to safeguard the classified
information, to which I gain possession or
knowledge because of my access, in a manner
consistent with Part 4 of Executive Order
12958, ‘‘National Security Information,’’ and
the applicable provisions of the Department
of Defense regulations concerning
safeguarding classified information,
including DoD 5200.1–R, ‘‘Information
Security Program.’’
3. I agree not to reveal to any person or
Agency any classified information obtained
as a result of this access except as authorized
in the terms of your authorization letter or a
follow-on letter, and I further agree that I
shall not use the information for purposes
other than those set forth in my request for
access.
4. I agree to submit my research notes for
security review, to determine if classified
information is contained in them, before their
removal from the specific area assigned to me
for research. I further agree to submit my
manuscript for a similar review before its
publication or presentation. In each of these
reviews, I agree to comply with any decision
of the reviewing official in the interests of the
security of the United States, including the
retention or deletion of any classified parts
of such notes and manuscript whenever the
Federal Agency concerned deems such
retention or deletion necessary.
5. I understand that failure to abide by the
conditions in this statement shall constitute
sufficient cause for canceling my access to
classified information and for denying me
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20:11 Jul 05, 2007
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any future access, and may subject me to
criminal provisions of Federal Law as
referred to in item 6.
6. I have been informed that provisions of
title 18 of the United States Code impose
criminal penalties, under certain
circumstances, for the unauthorized
disclosure, loss, copying, or destruction of
defense information.
THIS STATEMENT IS MADE TO THE
UNITED STATES GOVERNMENT TO
ENABLE IT TO EXERCISE ITS
RESPONSIBILITY FOR THE PROTECTION
OF INFORMATION AFFECTING THE
NATIONAL SECURITY. I UNDERSTAND
THAT ANY MATERIAL FALSE
STATEMENT THAT I MAKE KNOWINGLY
AND WILFULLY SHALL SUBJECT ME TO
THE PENALTIES OF TITLE 18, U.S. CODE,
SECTION 1001.
Signature:
Witness’s Signature:
Date:
Appendix F to Part 197—Procedures for
Copying of Documents for the Foreign
Relations of the United States Series
1. The records will be reviewed and copied
at the WNRC, Suitland, Maryland.
2. The requested records have been
reviewed under the declassification
provisions of E.O. 12958. Part of NARA’s
government-wide procedures for the review
process requires that certain types of
documents be tabbed for easy identification.
Any tabs removed during the research and
copying must be replaced.
3. When documents are being copied, a
DoD/WHS/declassification and historical
research branch staff member must be
present at all times.
4. OSD will supply the copier, but the DoS
must supply the toner cartridge, paper,
staples, staple remover, stapler, and Post-It
Notes. The copier is a Cannon Personal
Copier-Model PC 425. It takes one of two
cartridges—Cannon E20, which makes 2,000
copies and Cannon E40, which makes 4,000
copies.
5. The number of boxes to be reviewed will
determine which of the following two
procedures will apply. The Declassification
and Historical Research Branch staff will
make that determination at the time the
request is processed. When the historian
completes the review of the boxes, he or she
must contact the Declassification and
Historical Research Branch to establish a
final schedule for copying the needed
documents. To avoid a possible delay, a
tentative schedule will be established at the
time that the review schedule is set.
a. For a small number of boxes—the review
and copying will take place simultaneously.
b. For a large number of boxes—the
historian will review the boxes and mark the
documents that are to be copied using PostIt Notes or WNRC Reproduction Tabs.
6. The documents must be given to the
Declassification and Historical Research
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Frm 00022
Fmt 4700
Sfmt 4700
Branch staff member for transmittal to the
Declassification and Historical Research
Branch Office for processing.
7. The Declassification and Historical
Research Branch will notify the historian
when the documents are ready to be pickedup.
Appendix G to Part 197—Procedures
for Copying Documents
1. The records will be reviewed and copied
at the WNRC, Suitland, Maryland.
2. The requested records have been
reviewed under the declassification
provisions of E.O. 12958. Part of NARA’s
government-wide procedures for the review
process requires that certain types of
documents be tabbed for easy identification.
Any tabs removed during the research and
copying must be replaced.
3. The researcher will mark the documents
that he or she wants to copy using Post-It
Notes or WNRC Reproduction Tabs.
4. Any notes taken during the review
process must be given to the WNRC staff for
transmittal to the Declassification Branch.
5. When documents are being copied, a
DoD/WHS/declassification and historical
research branch staff member must be
present at all times. In agreeing to permit the
copying of documents from OSD classified
files at the WNRC, the WNRC is requiring
that the Declassification and Historical
Research Branch be held solely responsible
for the copying process. The staff member is
only there to monitor the copying and ensure
that all record management and security
procedures are followed.
6. The Declassification and Historical
Research Branch will supply the copier and
toner cartridge.
7. The researcher will need to bring paper,
staples, staple remover, stapler, and Post-It
Notes.
8. When the researcher completes the
review of the boxes, he or she must contact
the Declassification and Historical Research
Branch to establish a final schedule for
copying the needed documents.
9. The documents must be given to the
Declassification and Historical Research
Branch staff member for transmittal to the
Declassification and Historical Research
Branch Office for processing.
10. When the documents are ready to be
picked up or mailed, the Declassification and
Historical Research Branch will notify the
office.
11. All questions pertaining to the review,
copying, or transmittal of OSD documents
must be addressed to the OSD action officer.
12. The WNRC staff can only answer
questions regarding the use of their facility.
Dated: June 28, 2007.
L.M. Bynum,
Alternate OSD Federal Register Liaison
Officer, DoD.
[FR Doc. E7–13006 Filed 7–5–07; 8:45 am]
BILLING CODE 5001–06–P
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]]>Agencies
[Federal Register Volume 72, Number 129 (Friday, July 6, 2007)]
[Rules and Regulations]
[Pages 36875-36880]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-13006]
=======================================================================
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 197
[DoD-2006-OS-0023]
RIN 0790-AI12
Historical Research in the Files of the Office of the Secretary
of Defense (OSD)
AGENCY: Department of Defense.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule identifies and updates the policies and
procedures for the programs that permit U.S. citizens to perform
historical research in records created by or in the custody of the
Office of the Secretary of Defense (OSD). Historical Research in the
Files of OSD updates the policies and procedures for the programs that
permit U.S. citizens to perform historical research in records created
by or in the custody of the OSD.
DATES: Effective Date: This rule is effective August 6, 2007.
FOR FURTHER INFORMATION CONTACT: Mr. Robert Storer, 703-696-2197.
SUPPLEMENTARY INFORMATION: Anyone accessing classified material must
possess the requisite security clearance. Information requested by
historical researchers shall be accessed at a DoD activity or facility
under the control of the National Archives and Records Administration
(NARA).
Access to records by historical researchers shall be limited to the
specific records within the scope of the proposed historical research
over which the Department of Defense has classification authority.
Access shall also be limited to any other records for which the written
consent of other Agencies that have classification authority over
information contained in or revealed by the records has been obtained.
Access to unclassified OSD Component files by historical
researchers shall be permitted consistent with the restrictions of the
exemptions of the Freedom of Information Act. The procedures for access
to classified information shall be used if the requested unclassified
information is contained in OSD files whose overall markings are
classified.
On February 28, 2007 (72 FR 8952), the Department of Defense
published a proposed rule, ``Historical Research in the Files of the
Office of the Secretary of Defense (OSD)'' inviting public comments. No
comments were received.
Executive Order 13132, ``Federalism''
It has been certified that 32 CFR part 197 does not have federalism
implications, as set forth in Executive Order 13132. This rule does not
have substantial direct effects on:
(1) The States;
(2) The relationship between the National Government and the
States; or
(3) The distribution of power and responsibilities among the
various levels of Government.
Executive Order 12630, ``Government Actions and Interference With
Constitutionally Protected Property Rights''
It has been certified that 32 CFR part 197 does not:
(1) Place a restriction on a use of private property;
(2) Involve a permitting process or any other decision-making
process that will interfere with, or otherwise prohibit, the use of
private property; or
(3) Regulate private property use for the protection of public
health or safety.
Executive Order 12866, ``Regulatory Planning and Review''
It has been certified that 32 CFR part 197 does not:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy; a section of the
economy; productivity; competition; jobs; the environment; public
health or safety; or State, local, or tribunal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another Agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligations of
recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the
[[Page 36876]]
President's priorities, or the principles set forth in this Executive
Order.
Executive Order 13045, ``Protection of Children From Environmental
Health Risks and Safety Risks''
It has been certified that 32 CFR part 197 does not present any
environmental health or safety effects on children.
Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''
It has been certified that 32 CFR part 197 does not contain a
Federal mandate that may result in the expenditure by State, local and
tribunal governments, in aggregate, or by the private sector, of $100
million or more in any one year.
National Environmental Policy Act
It has been certified that 32 CFR part 197 does not significantly
affect the quality of the human environment.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
It has been certified that 32 CFR part 197 is not subject to the
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if
promulgated, have a significant economic impact on a substantial number
of small entities. Historical Research in the files of the Office of
the Secretary of Defense (OSD) updates policies and procedures for the
programs that permit U.S. citizens to perform historical research in
records created by or in the custody of the OSD.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)
It has been certified that 32 CFR part 197 does not impose
reporting or recordkeeping requirements under the Paperwork Reduction
Act of 1995.
List of Subjects in 32 CFR Part 197
Administrative practice and procedure.
0
Accordingly, 32 CFR Chapter 1, subchapter M is amended by adding part
197 to read as follows:
PART 197--HISTORICAL RESEARCH IN THE FILES OF THE OFFICE OF THE
SECRETARY OF DEFENSE (OSD)
Sec.
197.1 Purpose.
197.2 Applicability and scope.
197.3 Definition.
197.4 Policy.
197.5 Responsibilities.
197.6 Procedures.
Appendix A to Part 197--Explanation of Freedom of Information Act (5
U.S.C. 552) Exemptions
Appendix B to Part 197--Procedures for Historical Researchers
Permanently Assigned Within the Executive Branch Working on Official
Projects
Appendix C to Part 197--Procedures for the Department of State (DOS)
Foreign Relations of the United States (FRUS) Series
Appendix D to Part 197--Procedures for Historical Researchers Not
Permanently Assigned to the Executive Branch
Appendix E to Part 197--Form Letter--Conditions Governing Access to
Official Records for Historical Research Purposes
Appendix F to Part 197--Procedures for Copying of Documents for the
Foreign Relations of the United States Series
Appendix G to Part 197--Procedures for Copying Documents
Authority: 10 U.S.C. 301.
Sec. 197.1 Purpose.
This part identifies and updates the policies and procedures for
the programs that permit U.S. citizens to perform historical research
in records created by or in the custody of the OSD consistent with
Executive Order 12958, DoD 5200.01-R \1\, DoD 5400.07-R, DoD Directive
5400.11, the Interagency Agreement on Access for Official Agency
Historians, and DoD Directive 5230.09.
---------------------------------------------------------------------------
\1\ Copies of unclassified DoD Directives, DoD Instructions, DoD
Publications, and OSD Administrative Instructions may be found at
https://www.dtic.mil/whs/directives/.
---------------------------------------------------------------------------
Sec. 197.2 Applicability and scope.
This part applies to:
(a) The Office of the Secretary of Defense and organizations for
which the Washington Headquarters Services provides administrative
support (hereafter referred to collectively as the ``OSD Components'').
(b) All historical researchers.
(c) Former OSD Presidential Appointees seeking access to records
containing information they originated, reviewed, signed, or received
while serving in an official capacity.
Sec. 197.3 Definition.
Historical researcher or researcher. A person desiring to conduct
research in OSD files for historical information to use in any project
(e.g. agency historical office projects, books, articles, studies, or
reports) regardless of the person's employment status.
Sec. 197.4 Policy.
It is DoD policy, pursuant to E.O. 12958, that:
(a) Anyone accessing classified material must possess the requisite
security clearance.
(b) Information requested by historical researchers shall be
accessed at a DoD activity or facility under the control of the
National Archives and Records Administration (NARA). Usually such
access will occur at either the Washington National Records Center
(WNRC) in Suitland, Maryland, or NARA's Archives II in College Park,
Maryland.
(c) Access to records by historical researchers shall be limited to
the specific records within the scope of the proposed historical
research over which the Department of Defense has classification
authority. Access shall also be limited to any other records for which
the written consent of other Agencies that have classification
authority over information contained in or revealed by the records has
been obtained.
(d) Access to unclassified OSD Component files by historical
researchers shall be permitted consistent with the restrictions of the
exemptions of the Freedom of Information Act that are contained in E.O.
12958 and explained in the appendix B to this part (5 U.S.C. 552). The
procedures for access to classified information shall be used if the
requested unclassified information is contained in OSD files whose
overall markings are classified.
(e) Under E.O. 12958, or its successor, persons permanently
assigned within the Executive Branch may be authorized access to
classified information for official projects under DoD classification
authority, provided such access is essential to the accomplishment of a
lawful and authorized Government purpose and a written determination of
the trustworthiness of the persons has been made.
(f) Under E.O. 12958 and paragraph C6.2.2. of DoD 5200.01-R,
persons not permanently assigned within the Executive Branch who are
engaged in historical research projects or persons permanently assigned
within the Executive Branch engaged in personal, i.e. unofficial
projects, may be authorized access to classified information under DoD
classification authority. The authorization shall be based on a written
determination of the researcher's trustworthiness, on the proposed
access being in the interests of national security, and on the
researcher signing a copy of the letter (appendix E to this part) by
which he or she agrees to safeguard the information and to authorize a
review of any notes and manuscript for a determination that they
contain no classified information.
(g) Access for former Presidential appointees is limited to records
they originated, reviewed, signed, or received while serving as
Presidential appointees.
(h) Contractors working for Executive Branch Agencies may be
allowed access
[[Page 36877]]
to classified OSD Component files. No copies of still classified
documents will be released directly to a contractor. All copies of
classified documents needed for a classified project will be forwarded
to the office of the Contracting Government Agency responsible for
monitoring the project. The monitoring office will be responsible for
ensuring that the contractor safeguards the documents. The information
is only used for the project for which it was requested, and that the
contractor returns the documents upon completion of the final project.
All copies of documents needed for an unclassified project will undergo
a mandatory declassification review before the copies are released to
the contractor to use in the project.
(i) The records maintained in OSD Component office files and at the
WNRC cannot be segregated, requiring that authorization be received
from all agencies whose classified information is or is expected to be
in the requested files for access to be permitted.
(j) All researchers must hold security clearances at the
classification level of the requested information. In addition, all DoD
employed requesters, to include DoD contractors, must have Critical
Nuclear Weapons Design Information (CNWDI) access and all other
Executive Branch and non-Executive Branch requesters must have a
Department of Energy issued ``Q'' clearance to access CNWDI
information.
Sec. 197.5 Responsibilities.
(a) The Director of Administration and Management, Office of the
Secretary of Defense, (DA&M, OSD), or designee shall, according to the
Deputy Secretary of Defense Memorandum dated August 25, 1993, be the
approval authority for access to DoD classified information in OSD
Component files and in files at the National Archives, Presidential
libraries, and other similar institutions.
(b) The Heads of the OSD Components, when requested, shall:
(1) Determine whether access is for a lawful and authorized
Government purpose or in the interest of national security.
(2) Determine whether the specific records requested are within the
scope of the proposed historical research.
(3) Determine the location of the requested records.
(4) Provide a point of contact to the OSD Records Administrator.
(c) The OSD Records Administrator shall:
(1) Exercise overall management of the Historical Research Program.
(2) Maintain records necessary to process and monitor each case.
(3) Obtain all required authorizations.
(4) Obtain, when warranted, the legal opinion of the General
Counsel of the Department of Defense regarding the requested access.
(5) Perform a mandatory declassification review on documents
selected by the researchers for use in unclassified projects.
(6) Provide to prospective researchers the procedures necessary for
requesting access to OSD Component files.
(d) The Researcher shall provide any information and complete all
forms necessary to process a request for access.
Sec. 197.6 Procedures.
The procedures for processing and/or researching for access to OSD
Component files are in appendices B, C, and D to this part.
Appendix A to Part 197--Explanation of Freedom of Information Act (5
U.S.C. 552) Exemptions
A. Exemptions
------------------------------------------------------------------------
Exemption Explanation
------------------------------------------------------------------------
(b)(1)................................ Applies to information that is
currently and properly
classified pursuant to an
Executive Order in the interest
of national defense or foreign
policy (See E.O. 12958 and DoD
5200.01-R) (Sec 1.4.
Classification Categories from
E.O. 12958 are provided on the
next page);
(b)(2)................................ Applies to information that
pertains solely to the internal
rules and practices of the
Agency; this exemption has two
profiles, ``high'' and ``low.''
The ``high'' profile permits
withholding a document which,
if released, would allow
circumvention of an Agency
rule, policy, or statute,
thereby impeding the Agency in
the conduct of its mission. The
``low'' profile permits
withholding if there is no
public interest in the
document, and it would be an
administrative burden to
process the request;
(b)(3)................................ Applies to information
specifically exempted by a
statute establishing particular
criteria for withholding. The
language of the statute must
clearly state that the
information will not be
disclosed;
(b)(4)................................ Applies to information such as
trade secrets and commercial or
financial information obtained
from a company on a privileged
or confidential basis which, if
released, would result in
competitive harm to the
company;
(b)(5)................................ Applies to inter- and intra-
Agency memoranda that are
deliberative in nature; this
exemption is appropriate for
internal documents that are
part of the decision-making
process, and contain subjective
evaluations, opinions, and
recommendations;
(b)(6)................................ Applies to information the
release of which could
reasonably be expected to
constitute a clearly
unwarranted invasion of the
personal privacy of
individuals; and
(b)(7)................................ Applies to records or
information compiled for law
enforcement purposes that could
reasonably be expected to
interfere with law enforcement
proceedings; would deprive a
person of a right to a fair
trial or impartial
adjudication; could reasonably
be expected to constitute an
unwarranted invasion of the
personal privacy of others;
disclose the identity of a
confidential source; disclose
investigative techniques and
procedures; or could reasonably
be expected to endanger the
life or physical safety of any
individual.
------------------------------------------------------------------------
See Chapter III of DoD 5400.07-R for further information.
B. Extract From E.O. 12958
Section 1.4. Classification Categories. Information shall not be
considered for classification unless it concerns:
(a) Military plans, weapons systems, or operations;
(b) Foreign government information;
(c) Intelligence activities (including special activities),
intelligence sources or methods, or cryptology;
(d) Foreign relations or foreign activities of the United
States, including confidential sources;
(e) Scientific, technological, or economic matters relating to
the national security, which includes defense against transnational
terrorism;
(f) United States Government programs for safeguarding nuclear
materials or facilities;
(g) Vulnerabilities or capabilities of systems, installations,
infrastructures, projects, plans, or protection services relating to
the national security, which includes defense against transnational
terrorism; or
(h) Weapons of mass destruction.
Appendix B to Part 197--Procedures for Historical Researchers
Permanently Assigned Within the Executive Branch Working on Official
Projects
1. The Head of each OSD Component, when requested, shall:
a. Make a written determination that the requested access is
essential to the
[[Page 36878]]
accomplishment of a lawful and authorized Government purpose,
stating whether the requested records can be made available; if
disapproved, cite specific reasons.
b. Provide the location of the requested records, including
accession and box numbers if the material has been retired to the
WNRC.
c. Provide a point of contact for liaison with the OSD Records
Administrator if any requested records are located in OSD Component
working files.
2. The OSD Records Administrator shall:
a. Process all requests from Executive Branch employees
requesting access to OSD Component files for official projects.
b. Determine which OSD Component(s) originated the requested
records and, if necessary, request an access determination
(paragraph 1.a. of this appendix) from the OSD Component(s) and the
location of the requested records, including accession and box
numbers if the records are in retired files.
c. Request authorization for access from other Agencies as
necessary:
(1) By the terms of the ``Interagency Agreement on Access for
Official Agency Historians,'' hereafter referred to as ``the
Agreement'', historians employed by a signatory Agency may have
access to the classified information of any other Agency signatory
to the Agreement found in OSD files. The Central Intelligence Agency
(CIA) and National Security Council (NSC) are not signatories to the
Agreement. Authorization for access must be obtained from these
Agencies, as well as from any other non-signatory Agency whose
classified information is expected to be found in the files to be
accessed.
(2) If the official historian is employed by an Agency that is
not a signatory to the Agreement, authorization for access must be
obtained from the CIA, NSC, Department of State (DoS), and any other
non-DoD Agency whose classified information is expected to be found
in the files to be accessed.
(3) If the requester is not an official historian, authorization
for access must be obtained from the CIA, NSC, DoS, and any other
non-DoD Agency whose classified information is expected to be found
in the files to be accessed.
(4) Make a written determination as to the researcher's
trustworthiness based on the researcher having been issued a
security clearance.
(5) Compile all information on the request for access to
classified information to include evidence of an appropriately
issued personnel security clearance and forward the information to
the DA&M, OSD, or designee, who shall make the final access
determination.
(6) Notify the researcher of the authorization and conditions
for access to the requested records or of the denial of access and
the reason(s).
(7) Ensure all conditions for access and release of information
for use in the project are met.
(8) Make all necessary arrangements for the researcher to visit
the WNRC and review the requested records if they have been retired
there.
(9) Assign a member of his staff to supervise the researcher's
copying of pertinent documents at the WNRC. Provide a copier and
toner cartridge or appropriate consumable supplies to be used by the
researcher to copy the documents.
(10) If the records are maintained in an OSD Component's working
files, arrange for the researcher to review the material and make
copies of pertinent documents in the OSD Component's office.
(11) Notify the National Archives or Presidential library
concerned of the authorization and conditions for access, if the
researcher desiring to research material in those facilities is not
an official historian or is an official historian employed by an
Agency that is not a signatory to the Agreement.
3. The researcher shall:
a. Submit a request for access to OSD files to the OSD Records
Administrator, 1155 Defense, Pentagon, Washington, DC 20301-1155.
The request must contain the following information:
(1) The name(s) of the researcher(s) and any assistant(s), level
of security clearance, and the office to which the researcher is
assigned.
(2) Provide a statement on the purpose of the project, including
whether the final product is to be classified or unclassified.
(3) Provide an explicit description of the information being
requested and if known, the originating office, so that the
identification and location of the information may be facilitated.
(4) An appropriate higher authority must sign the request.
b. Ensure his or her security manager or personnel security
office verifies his or her security clearances in writing to the
Security Manager for the office of the OSD Records Administrator.
c. Submit notes taken during research, as follows:
(1) Use letter-sized paper (approximately 8\1/2\ by 11 inches),
writing on only one side of the page. Each page of notes must
pertain to only one document.
(2) Indicate at the top of each page of notes the document's
originator, date, subject (if the subject is classified, indicate
the classification), folder number or other identification,
accession number and box number in which the document was found, and
the security classification of the document. All notes are
considered classified at the level of the document from which they
were taken.
(3) Number each page of notes consecutively.
(4) Leave the last 1\1/2\ inches on the bottom of each page of
notes blank for use by the reviewing agencies.
(5) Ensure the notes are legible, in English, and in black ink.
(6) All notes must be given to the facility staff at the end of
each day. The facility staff will forward the notes to the OSD
Records Administrator for a declassification review and release
determination.
d. Maintain the file integrity of the records being reviewed,
ensuring no records are removed and all folders are replaced in the
correct box in their proper order.
e. Make copies of any documents pertinent to the project,
ensuring that staples are carefully removed and that the documents
are restapled before they are replaced in the folder. Subparagraph
E3.1.3. of this appendix, also applies to the copying of documents.
The copying of documents at the WNRC must be accomplished under the
supervision of a member of the OSD Records Administrator staff
(appendix D to this part).
f. Submit, prior to unclassified presentation or publication,
the completed manuscript, along with any copies of documents used
and notes taken, to the OSD Records Administrator for onward
transmission to the Chief, Security Review, Executive Services
Directorate for review.
g. If the requester is an official historian of an Agency
signatory to the Agreement, requests for access to the records at
the National Archives or a Presidential library should be addressed
directly to the pertinent facility with an information copy to the
OSD Records Administrator.
(1) The historian's security clearances must be verified to the
National Archives or the Presidential library.
(2) Paragraphs 1.c. through 1.f. of this appendix apply to
research in files at the National Archives, a Presidential library,
or other facility.
(3) All notes and documents must be given to the facility staff
for forwarding to the office of the OSD Records Administrator.
Appendix C to Part 197--Procedures for the Department of State (DoS)
Foreign Relations of the United States (FRUS) Series
1. The OSD Records Administrator shall:
a. Determine the location of the records being requested by the
DoS for the FRUS series under Public Law No. 102-138.
b. Request authorization from the CIA, NSC, and any other non-
DoD Agency not signatory to the Agreement for the State historians
to have access to such non-DoD Agency classified information
expected to be interfiled with the requested OSD records.
c. Obtain written verification from the DoS Diplomatic Security
staff of all security clearances, including ``Q'' clearances.
d. Make all necessary arrangements for the State historians to
access and review OSD files.
e. Make all necessary arrangements for the State historians to
copy documents selected for use in their research.
(1) According to appendix F to this part, provide a staff member
to supervise the copying and the copier to be used to copy the
documents.
(2) Compile a list of the documents that were copied by the DoS.
f. Release all documents copied by the DoS for use in the FRUS
still classified.
g. Submit to the respective Agency a list of CIA and NSC
documents copied and released to the State historians.
h. Process requests from the DoS Historian's office for members
of the Advisory Committee on Historical Diplomatic Documentation,
who possess the appropriate security clearances, to have access to
documents copied and used by the State historians to compile the
FRUS series volumes or to the files that were reviewed to obtain the
copied document. Make all
[[Page 36879]]
necessary arrangements for the Committee to review any documents
that are at the WNRC.
2. The DoS Historian shall:
a. Submit requests for access to OSD files to the OSD Records
Administrator, 1155 Defense, Pentagon, Washington, DC 20301-1155.
The request should list the names and security clearances for the
historians doing the research and an explicit description, including
the accession and box numbers, of the files being requested.
b. Submit requests for access for members of the Advisory
Committee on Historical Diplomatic Documentation to documents copied
by the State historians for the series or the files reviewed to
obtain the documents to the OSD Records Administrator.
c. Request that the DoS Diplomatic Security staff verify all
security clearances in writing to the Security Manager for the
office of the OSD Records Administrator.
d. According to appendix F to this part, supply the toner
cartridge, paper, and other supplies required to copy the documents.
e. Give all copies of the documents to the member of the office
OSD Records Administrator's staff who is supervising the copying as
the documents are copied.
f. Submit any DoD documents desired for use or pages of the
manuscript containing DoD classified information to the Chief,
Security Review, Executive Services Directorate, 1155, Defense,
Pentagon, Washington, DC 20301-1155 for a declassification review
prior to publication.
Appendix D to Part 197--Procedures for Historical Researchers Not
Permanently Assigned to the Executive Branch
1. The Head of each OSD Component, when required, shall:
a. Make recommendations to the DA&M, OSD, or his designee, as to
approval or disapproval of requests to OSD files stating whether
release of the requested information is in the interest of national
security and whether the information can be made available; if
disapproval is recommended, specific reasons should be cited.
b. Provide the location of the requested information, including
the accession and box numbers for any records that have been retired
to the WNRC.
c. Provide a point of contact for liaison with the OSD Records
Administrator if any requested records are located in Component
working files.
2. The OSD Records Administrator shall:
a. Process all requests from non-Executive Branch researchers
for access to OSD files. Certify that the requester has the
appropriate clearances.
b. Obtain prior authorization to review their classified
information from the DoS, CIA, NSC, and any other Agency whose
classified information is expected to be interfiled with OSD
records.
c. Make a determination as to which OSD Component originated the
requested records, and as necessary, obtain written recommendations
(paragraph 1.a. of this section) for the research to review the
classified information.
d. Obtain a copy of the letter in Enclosure 6 of this AI signed
by the researcher(s) and any assistant(s).
e. If the requester is a former Presidential appointee (FPA),
after completion of the actions described in paragraph 1.b. through
1.b.(4) of this appendix, submit a memorandum to DoD, Human
Resources, Security Division, requesting the issuance (including an
interim) or reinstatement of an inactive security clearance for the
FPA and any assistant and a copy of any signed form letters
(paragraph 1.b. of this appendix). DoD, Human Resources, Security
Division, will contact the researcher(s) and any assistant(s) to
obtain the forms required to reinstate or obtain a security
clearance and initiate the personnel security investigation. Upon
completion of the adjudication process, notify the OSD Records
Administrator in writing of the reinstatement, issuance, or denial
of a security clearance.
f. Make a written determination as to the researcher's
trustworthiness, based on his or her having been issued a security
clearance.
g. Compile all information on the request for access to
classified information to include either evidence of an
appropriately issued or reinstated personnel security clearance and
forward the information to the DA&M, OSD, or his designee, who shall
make the final determination on the applicant's eligibility for
access to classified OSD files. If the determination is favorable,
the DA&M, OSD, or his designee, shall then execute an authorization
for access, which will be valid for not more than 2 years.
h. Notify the researcher of the approval or disapproval of the
request. If the request has been approved, the notification shall
identify the files authorized for review and shall specify that the
authorization:
(1) Is approved for a predetermined time period.
(2) Is limited to the designated files.
(3) Does not include access to records and/or information of
other Federal Agencies, unless such access has been specifically
authorized by those Agencies.
i. Make all necessary arrangements for the researcher to visit
the WNRC and review any requested records that have been retired
there, to include written authorization, conditions for the access,
and a copy of the security clearance verification.
j. If the requested records are at the WNRC, make all necessary
arrangements for the copying of documents; provide a copier and
toner cartridge for use in copying documents and a staff member to
supervise the copying of pertinent documents by the researcher.
k. If the requested records are maintained in OSD Component
working files, make arrangements for the researcher to review the
requested information and if authorized, copy pertinent documents in
the OSD Component's office. Provide the OSD Component with a copy of
the written authorization and conditions under which the access is
permitted.
l. Compile a list of all the documents copied by the researcher.
m. Perform a mandatory declassification review on all notes
taken and documents copied by the researcher.
n. If the classified information to be reviewed is on file at
the National Archives, a Presidential library or other facility,
notify the pertinent facility in writing of the authorization and
conditions for access.
3. The researcher shall:
a. Submit a request for access to OSD Component files to the OSD
Records Administrator, 1155 Defense, Pentagon, Washington, DC 20301-
1155. The request must contain the following:
(1) As explicit a description as possible of the information
being requested so that identification and location of the
information may be facilitated.
(2) A statement as to how the information will be used,
including whether the final project is to be classified or
unclassified.
(3) State whether the researcher has a security clearance,
including the level of clearance and the name of the issuing Agency.
(4) The names of any persons who will be assisting the
researcher with the project. If the assistants have security
clearances, provide the level of clearance and the name of the
issuing Agency.
b. A signed copy of the letter (appendix E to this part) by
which the requester agrees to safeguard the information and to
authorize a review of any notes and manuscript for a determination
that they contain no classified information. Each project assistant
must also sign a copy of the letter.
c. If the requester is an FPA, complete the forms necessary (see
paragraph 1.b. of this appendix) to obtain a security clearance.
Each project assistant will also need to complete the forms
necessary to obtain a security clearance. If the FPA or assistant
have current security clearances, their personnel security office
must provide verification in writing to the Security Manager for the
office of the OSD Records Administrator.
d. Maintain the integrity of the files being reviewed, ensuring
that no records are removed and that all folders are replaced in the
correct box in their proper order.
e. If copies are authorized, all copies must be given to the
custodian of the files at the end of each day. The custodian will
forward the copies of the documents to the OSD Records Administrator
for a declassification review and release to the requester.
(1) For records at the WNRC, if authorized, make copies of
documents only in the presence of a member of the OSD Records
Administrator's staff (appendix G to this part).
(2) As they are copied, all documents must be given to the OSD
Records Administrator's staff member supervising the copying.
(3) Ensure all staples are carefully removed and that the
documents are restapled before the documents are replaced in the
folder. Paragraph 1.c. of this appendix also applies to the copying
of documents.
f. Submit all notes (classified and unclassified) made from the
records to the OSD Records Administrator for a declassification and
release review through the custodian of the files at the end of each
day's review as described in paragraphs 1.c.(3) through 1.c.(5) of
appendix B to this part.
g. Submit the notes and final manuscript to the OSD Records
Administrator for
[[Page 36880]]
forwarding to the Chief, Security Review, Executive Services
Directorate, for a security review and clearance under DoD Directive
5230.09 prior to unclassified publication, presentation, or any
other public use.
Appendix E to Part 197--Form Letter--Conditions Governing Access to
Official Records for Historical Research Purposes
Date:
OSD Records Administrator
1155 Defense Pentagon
Washington, DC 20301-1155
Dear
I understand that the classified information to which I have
requested access for historical research purposes is concerned with
the national defense or foreign relations of the United States, and
the unauthorized disclosure of it could reasonably be expected to
cause damage, serious damage, or exceptionally grave damage to the
national security depending on whether the information is classified
Confidential, Secret, or Top Secret, respectively. If granted
access, I therefore agree to the following conditions governing
access to the Office of the Secretary of Defense (OSD) files:
1. I will abide by any rules and restrictions promulgated in
your letter of authorization, including those of other Agencies
whose information is interfiled with that of the OSD.
2. I agree to safeguard the classified information, to which I
gain possession or knowledge because of my access, in a manner
consistent with Part 4 of Executive Order 12958, ``National Security
Information,'' and the applicable provisions of the Department of
Defense regulations concerning safeguarding classified information,
including DoD 5200.1-R, ``Information Security Program.''
3. I agree not to reveal to any person or Agency any classified
information obtained as a result of this access except as authorized
in the terms of your authorization letter or a follow-on letter, and
I further agree that I shall not use the information for purposes
other than those set forth in my request for access.
4. I agree to submit my research notes for security review, to
determine if classified information is contained in them, before
their removal from the specific area assigned to me for research. I
further agree to submit my manuscript for a similar review before
its publication or presentation. In each of these reviews, I agree
to comply with any decision of the reviewing official in the
interests of the security of the United States, including the
retention or deletion of any classified parts of such notes and
manuscript whenever the Federal Agency concerned deems such
retention or deletion necessary.
5. I understand that failure to abide by the conditions in this
statement shall constitute sufficient cause for canceling my access
to classified information and for denying me any future access, and
may subject me to criminal provisions of Federal Law as referred to
in item 6.
6. I have been informed that provisions of title 18 of the
United States Code impose criminal penalties, under certain
circumstances, for the unauthorized disclosure, loss, copying, or
destruction of defense information.
THIS STATEMENT IS MADE TO THE UNITED STATES GOVERNMENT TO ENABLE
IT TO EXERCISE ITS RESPONSIBILITY FOR THE PROTECTION OF INFORMATION
AFFECTING THE NATIONAL SECURITY. I UNDERSTAND THAT ANY MATERIAL
FALSE STATEMENT THAT I MAKE KNOWINGLY AND WILFULLY SHALL SUBJECT ME
TO THE PENALTIES OF TITLE 18, U.S. CODE, SECTION 1001.
Signature:
Witness's Signature:
Date:
Appendix F to Part 197--Procedures for Copying of Documents for the
Foreign Relations of the United States Series
1. The records will be reviewed and copied at the WNRC,
Suitland, Maryland.
2. The requested records have been reviewed under the
declassification provisions of E.O. 12958. Part of NARA's
government-wide procedures for the review process requires that
certain types of documents be tabbed for easy identification. Any
tabs removed during the research and copying must be replaced.
3. When documents are being copied, a DoD/WHS/declassification
and historical research branch staff member must be present at all
times.
4. OSD will supply the copier, but the DoS must supply the toner
cartridge, paper, staples, staple remover, stapler, and Post-It
Notes. The copier is a Cannon Personal Copier-Model PC 425. It takes
one of two cartridges--Cannon E20, which makes 2,000 copies and
Cannon E40, which makes 4,000 copies.
5. The number of boxes to be reviewed will determine which of
the following two procedures will apply. The Declassification and
Historical Research Branch staff will make that determination at the
time the request is processed. When the historian completes the
review of the boxes, he or she must contact the Declassification and
Historical Research Branch to establish a final schedule for copying
the needed documents. To avoid a possible delay, a tentative
schedule will be established at the time that the review schedule is
set.
a. For a small number of boxes--the review and copying will take
place simultaneously.
b. For a large number of boxes--the historian will review the
boxes and mark the documents that are to be copied using Post-It
Notes or WNRC Reproduction Tabs.
6. The documents must be given to the Declassification and
Historical Research Branch staff member for transmittal to the
Declassification and Historical Research Branch Office for
processing.
7. The Declassification and Historical Research Branch will
notify the historian when the documents are ready to be picked-up.
Appendix G to Part 197--Procedures for Copying Documents
1. The records will be reviewed and copied at the WNRC,
Suitland, Maryland.
2. The requested records have been reviewed under the
declassification provisions of E.O. 12958. Part of NARA's
government-wide procedures for the review process requires that
certain types of documents be tabbed for easy identification. Any
tabs removed during the research and copying must be replaced.
3. The researcher will mark the documents that he or she wants
to copy using Post-It Notes or WNRC Reproduction Tabs.
4. Any notes taken during the review process must be given to
the WNRC staff for transmittal to the Declassification Branch.
5. When documents are being copied, a DoD/WHS/declassification
and historical research branch staff member must be present at all
times. In agreeing to permit the copying of documents from OSD
classified files at the WNRC, the WNRC is requiring that the
Declassification and Historical Research Branch be held solely
responsible for the copying process. The staff member is only there
to monitor the copying and ensure that all record management and
security procedures are followed.
6. The Declassification and Historical Research Branch will
supply the copier and toner cartridge.
7. The researcher will need to bring paper, staples, staple
remover, stapler, and Post-It Notes.
8. When the researcher completes the review of the boxes, he or
she must contact the Declassification and Historical Research Branch
to establish a final schedule for copying the needed documents.
9. The documents must be given to the Declassification and
Historical Research Branch staff member for transmittal to the
Declassification and Historical Research Branch Office for
processing.
10. When the documents are ready to be picked up or mailed, the
Declassification and Historical Research Branch will notify the
office.
11. All questions pertaining to the review, copying, or
transmittal of OSD documents must be addressed to the OSD action
officer.
12. The WNRC staff can only answer questions regarding the use
of their facility.
Dated: June 28, 2007.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, DoD.
[FR Doc. E7-13006 Filed 7-5-07; 8:45 am]
BILLING CODE 5001-06-P
