Declassification of National Security Information, 40296-40302 [2011-17128]

Agencies

• National Archives and Records Administration

[Federal Register Volume 76, Number 131 (Friday, July 8, 2011)]
[Proposed Rules]
[Pages 40296-40302]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-17128]


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

NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

36 CFR Part 1260

[FDMS NARA-11-0001]
RIN 3095-AB64


Declassification of National Security Information

AGENCY: National Archives and Records Administration.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This proposed rule would update NARA's regulations related to 
declassification of classified national security information in records 
transferred to NARA's legal custody. The rule incorporates changes 
resulting from issuance of Executive Order 13526, Classified National 
Security Information, and its Implementing Directive. These changes 
include establishing procedures for the automatic declassification of 
records in NARA's legal custody and revising requirements for 
reclassification of information to meet the provisions of E.O. 13526. 
Executive Order 13526 also created the National Declassification Center 
(NDC) with a mission to align people, processes, and technologies to 
advance the declassification and public release of historically 
valuable permanent records while maintaining national security. This 
rule will affect members of the public and Federal agencies.

DATES: Comments are due by September 6, 2011.

ADDRESSES: You may submit comments, identified by RIN 3095-AB64, by any 
of the following methods:
    Federal eRulemaking Portal: https://www.regulations.gov. Follow the 
instructions for submitting comments.
    Fax: (301) 837-0319.
    Mail: Regulation Comments Desk (NPOL), Room 4100, National Archives 
and Records Administration, 8601 Adelphi Road, College Park, MD 20740-
6001.
    Hand Delivery/Courier: Regulation Comments Desk (NPOL), Room 4100, 
National Archives and Records Administration, 8601 Adelphi Road, 
College Park, MD.

FOR FURTHER INFORMATION CONTACT: Marilyn Redman at (301) 837-1850; e-
mail: marilyn.redman@nara.gov.

SUPPLEMENTARY INFORMATION: Following is a discussion of substantive 
changes contained in this proposed rule. Additional nonsubstantive 
changes have been made and the proposed regulation has been written in 
plain language

[[Page 40297]]

where possible in accordance with the Presidential Memorandum of June 
1, 1998, Plain Language in Government Writing.

What changes have been made in this proposed rule?

    We propose to amend the existing regulation to reflect changes 
resulting from the issuance of Executive Order 13526, replacing 
Executive Order 12958 as amended. In particular we are adding sections 
that discuss the National Declassification Center and Automatic 
Declassification. We are also updating policies managing Mandatory 
Declassification Review appeals. NARA's proposed section on the 
National Declassification Center (NDC) includes:
     The purpose of the NDC.
     How the NDC will ensure the quality of the final product.
     How referrals to other agencies will be processed through 
the NDC.
    This proposed rule is a significant regulatory action for the 
purpose of Executive Order 12866 and has been reviewed by the Office of 
Management and Budget. As required by the Regulatory Flexibility Act, I 
certify that this rule will not have a significant impact on a 
substantial number of small entities because it affects Federal 
agencies and individual researchers. This regulation does not have any 
federalism implications.

List of Subjects in 36 CFR Part 1260

    Archives and records, Classified information.

    For the reasons set forth in the preamble, NARA proposes to revise 
Subchapter D of Chapter XII of title 36, Code of Federal Regulations, 
to read as follows:

SUBCHAPTER D--DECLASSIFICATION

PART 1260--DECLASSIFICATION OF NATIONAL SECURITY INFORMATION

Subpart A--General Information
Sec.
1260.1 What is the purpose of this part?
1260.2 What definitions apply to the regulations in this part?
1260.4 What NARA holdings are covered by this part?
Subpart B--Responsibilities
1260.20 Who is responsible for the declassification of classified 
national security Executive Branch information that has been 
accessioned by NARA?
1260.22 Who is responsible for the declassification of classified 
national security White House originated information in NARA's 
holdings?
1260.24 Who is responsible for declassification of foreign 
government information in NARA's holdings?
1260.26 Who is responsible for issuing special procedures for 
declassification of records pertaining to intelligence activities 
and intelligence sources or methods, or of classified cryptologic 
records in NARA's holdings?
1260.28 Who is responsible for declassifying Restricted Data, 
Formerly Restricted Data, and Transclassified Foreign Nuclear 
Information?
Subpart C--The National Declassification Center (NDC)
1260.30 What is the NDC?
1260.32 How is the NDC administered?
1260.34 What are the responsibilities of the NDC?
1260.36 What are agency responsibilities with the NDC?
1260.38 How does the NDC ensure the quality of declassification 
reviews?
1260.40 What types of referrals will the NDC process?
1260.42 How does the NDC process referrals of Federal Records?
1260.44 How does the NDC process RAC Project referrals?
1260.46 How does the Department of Defense process referrals?
Subpart D--Automatic Declassification
1260.50 How are records at NARA reviewed as part of the automatic 
declassification process?
1260.52 What are the procedures when agency personnel review records 
in NARA's legal and physical custody?
1260.54 Will NARA loan accessioned records back to the agencies to 
conduct declassification review?
1260.56 What are NARA considerations when implementing automatic 
declassification?
Subpart E--Systematic Declassification
1260.60 How does the NDC facilitate systematic review of records 
exempted at the individual record or file series level?
Subpart F--Mandatory Declassification Review (MDR)
1260.70 How does a researcher submit a MDR request?
1260.72 What procedures does NARA follow when it receives a request 
for Executive Branch records under MDR?
1260.74 What are agency responsibilities after receiving a MDR 
request forwarded by NARA?
1260.76 What are NARA's procedures after it has received the 
agency's declassification determination?
1260.78 What is the appeal process when a MDR request for Executive 
Branch information in NARA's legal custody is denied in whole or in 
part?
Subpart G--Reclassification of Records Transferred to NARA
1260.80 What actions must NARA take when information in its physical 
and legal custody is reclassified after declassification under 
proper authority?
1260.82 What actions must NARA take with information in its physical 
and legal custody that has been made available to the public after 
declassification without proper authority?

    Authority:  44 U.S.C. 2101 to 2118; 5 U.S.C. 552; E.O. 13526, 75 
FR 707, 3 CFR, 2009 Comp., p. 298; Presidential Memorandum of 
December 29, 2009 ``Implementation of the Executive Order, 
Classified National Security Information, 75 FR 733, 3 CFR, 2009 
Comp., p. 412; 32 CFR part 2001.

Subpart A--General Information


Sec.  1260.1  What is the purpose of this part?

    (a) This subchapter defines the responsibilities of NARA and other 
Federal agencies for declassification of classified national security 
information in the holdings of NARA. This part also describes NARA's 
procedures for:
    (1) Operation of the National Declassification Center,
    (2) Processing referrals to other agencies,
    (3) Facilitating systematic reviews of NARA holdings, and
    (4) Processing mandatory declassification review requests for NARA 
holdings.
    (b) Regulations for researchers who wish to request access to 
materials containing classified national security information are found 
in 36 CFR part 1256.
    (c) For the convenience of the user, the following table provides 
references between the sections contained in this part and the relevant 
sections of the Order and the Implementing Directive.

 
----------------------------------------------------------------------------------------------------------------
                                                                                        Related section of
             CFR section                     Related section of E.O. 13526            implementing directive
----------------------------------------------------------------------------------------------------------------
1260.20 Who is responsible for the    3.3, 3.3(d)(3), 3.6.......................
 declassification of classified
 national security Executive Branch
 information that has been
 accessioned by NARA?

[[Page 40298]]

 
1260.22 Who is responsible for the    3.3(d)(3), 3.6............................
 declassification of classified
 national security White House
 originated information in NARA's
 holdings?
1260.24 Who is responsible for        6.1(s)....................................
 declassification of foreign
 government information in NARA's
 holdings?
1260.28 Who is responsible for        ..........................................  2001.24(i).
 declassifying Restricted Data,
 Formerly Restricted Data, and
 Transclassified Foreign Nuclear
 Information?
1260.34 What are the                  3.3. 3.3(d)(3), 3.4.......................
 responsibilities of the NDC?
1260.36 What are agency               3.3(d)(3).................................
 responsibilities with the NDC?
1260.40 What types of referrals will  3.3.......................................
 the NDC process?
1260.42 How does the NDC process      3.3(d)(3)(B)..............................
 referrals of Federal Records?
1260.46 How does the Department of    3.3.......................................
 Defense process referrals?
1260.50 How are records at NARA       3.3.......................................
 reviewed as part of the automatic
 declassification process?
1260.52 What are the procedures when  3.3.......................................  2001.30(p).
 agency personnel review records in
 NARA's legal and physical custody?
1260.56 What are NARA considerations  3.3.......................................
 when implementing automatic
 declassification?
1260.72 What procedures does NARA     3.6(a), 3.6(b)............................  2001.33.
 follow when it receives a request
 for Executive Branch records under
 MDR?
1260.74 What are agency               3.5(c)....................................
 responsibilities after receiving a
 MDR request forwarded by NARA?
1260.76 What are NARA's procedures    ..........................................  Appendix A.
 after it has received the agency's
 declassifications determination?
1260.78 What is the appeal process    3.3.......................................  2001.30(p), 2001.33.
 when a MDR request for Executive
 Branch information in NARA's legal
 custody is denied in whole or in
 part?
1260.80 What actions must NARA take   ..........................................  2001.13.
 when information in its physical
 and legal custody is reclassified
 after declassification under proper
 authority?
1260.82 What actions must NARA take   ..........................................  2001.13.
 with information in its physical
 and legal custody that has been
 made available to the public after
 declassification without proper
 authority?
----------------------------------------------------------------------------------------------------------------

Sec.  1260.2  What definitions apply to the regulations in this part?

    Classified national security information, or classified 
information, means information that has been determined under Executive 
Order 13526 or any predecessor order to require protection against 
unauthorized disclosure and is marked to indicate its classified status 
when in documentary form.
    Declassification means the authorized change in the status of 
information from classified information to unclassified information.
    Equity refers to information:
    (1) Originally classified by or under the control of an agency;
    (2) In the possession of the receiving agency in the event of 
transfer of function; or
    (3) In the possession of a successor agency for an agency that has 
ceased to exist.
    File series means file units or documents arranged according to a 
filing system or kept together because they relate to a particular 
subject or function, result from the same activity, document a specific 
kind of transaction, take a particular physical form, or have some 
other relationship arising out of their creation, receipt, or use, such 
as restrictions on access or use.
    Integral file block means a distinct component of a file series, as 
defined in this section, that should be maintained as a separate unit 
in order to ensure the integrity of the records. An integral file block 
may consist of a set of records covering either a specific topic or a 
range of time such as presidential administration or a 5-year 
retirement schedule within a specific file series that is retired from 
active use as a group. For purposes of automatic declassification, 
integral file blocks shall contain only records dated within 10 years 
of the oldest record in the file block.
    Mandatory declassification review means the review for 
declassification of classified information in response to a request for 
declassification that meets the requirements under section 3.5 of 
Executive Order 13526.
    Records means the records of an agency and Presidential materials 
or Presidential records, as those terms are defined in title 44, United 
States Code, including those created or maintained by a government 
contractor, licensee, certificate holder, or grantee that are subject 
to the sponsoring agency's control under the terms of the contract, 
license, certificate, or grant.
    Referral means that information in an agency's records that was 
originated by or is of interest to another agency is sent to that 
agency for a determination of its classification status.
    Systematic declassification review means the review for 
declassification of classified information, including previously 
exempted information, contained in records that have been determined by 
the Archivist of the United States to have permanent historical value 
in accordance with 44 U.S.C. 2107.


Sec.  1260.4  What NARA holdings are covered by this part?

    The NARA holdings covered by this part are records legally 
transferred to NARA, including Federal records, 44 U.S.C. 2107; 
Presidential records, 44 U.S.C. 2201-2207; Nixon Presidential 
materials, 44 U.S.C. 2111 note; and donated historical materials, 44 
U.S.C. 2111.

Subpart B--Responsibilities


Sec.  1260.20  Who is responsible for the declassification of 
classified national security Executive Branch information that has been 
accessioned by NARA?

    (a) Consistent with the requirements of section 3.3 of the Order on 
automatic declassification, the originating agency is responsible for 
declassification of its

[[Page 40299]]

information and identifying equity holders.
    (b) An agency may delegate declassification authority to NARA.
    (c) If an agency does not delegate declassification authority to 
NARA, the agency is responsible for reviewing the records to identify 
the equities of other agencies before the date that the records become 
eligible for automatic declassification.
    (d) NARA is responsible for the declassification of records in its 
legal custody of defunct agencies that have no successor. NARA will 
consult with agencies having an equity in the records before making 
declassification determinations in accordance with sections 3.3(d)(3) 
and 3.6 of the Order.


Sec.  1260.22  Who is responsible for the declassification of 
classified national security White House originated information in 
NARA's holdings?

    (a) NARA is responsible for declassification of information from a 
previous administration that was originated by:
    (1) The President and Vice President;
    (2) The White House staff;
    (3) Committees, commissions, or boards appointed by the President; 
or,
    (4) Others specifically providing advice and counsel to the 
President or acting on behalf of the President.
    (b) NARA will consult with agencies having equity in the records 
before making declassification determinations in accordance with 
sections 3.3(d)(3) and 3.6 of Executive Order 13526.


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

    (a) The agency that received or classified the information is 
responsible for its declassification.
    (b) In the case of a defunct agency, NARA is responsible for 
declassification of foreign government information, as defined in 
section 6.1(s) of the Order, in its holdings and will consult with the 
agencies having equity in the records before making declassification 
determinations.


Sec.  1260.26  Who is responsible for issuing special procedures for 
declassification of records pertaining to intelligence activities and 
intelligence sources or methods, or of classified cryptologic records 
in NARA's holdings?

    (a) The Director of National Intelligence is responsible for 
issuing special procedures for declassification of classified records 
pertaining to intelligence activities and intelligence sources and 
methods.
    (b) The Secretary of Defense is responsible for issuing special 
procedures for declassification of classified cryptologic records.


Sec.  1260.28  Who is responsible for declassifying Restricted Data, 
Formerly Restricted Data, and Transclassified Foreign Nuclear 
Information?

    (a) Only designated officials within the Department of Energy (DOE) 
may declassify Restricted Data (RD) (as defined by the Atomic Energy 
Act of 1954, as amended). The declassification of Formerly Restricted 
Data (FRD) (as defined in 10 CFR 1045.3) may only be performed after 
designated officials within DOE, in conjunction with designated 
officials within DOD, have determined that the FRD marking may be 
removed. Declassification of Transclassified Foreign Nuclear 
Information (TFNI) (as defined in 32 CFR 2001.24(i)) may be performed 
only by designated officials within DOE.
    (b) Any record that contains RD, FRD, or TFNI shall be excluded 
from automatic declassification and referred by the primary reviewing 
agency to DOE using a completed SF 715 to communicate both the referral 
action and the actions taken on the equities of the primary reviewing 
agency. Any record identified by the primary reviewing agency as 
potentially containing RD, FRD, or TFNI shall be referred to DOE using 
a completed SF 715.

Subpart C--The National Declassification Center (NDC)


Sec.  1260.30  What is the NDC?

    The National Declassification Center (NDC) is established within 
NARA to streamline declassification processes, facilitate quality-
assurance measures, and implement standardized training for 
declassification of records determined to have permanent historical 
value.


Sec.  1260.32  How is the NDC administered?

    (a) The NDC is administered by a Director, who shall be appointed 
by the Archivist of the United States, in consultation with the 
Secretaries of State, Defense, Energy, and Homeland Security, the 
Attorney General, and the Director of National Intelligence.
    (b) The Archivist, in consultation with the representatives of the 
participants in the NDC and after receiving comments from the general 
public, shall develop priorities for declassification activities under 
the responsibility of the NDC that are based upon researcher interest 
and likelihood of declassification.


Sec.  1260.34  What are the responsibilities of the NDC?

    The NDC shall coordinate the following activities:
    (a) Referrals, to include:
    (1) Timely and appropriate processing of all referrals in 
accordance with section 3.3(d)(3) of Executive Order 13526; and
    (2) The exchange among agencies of detailed declassification 
guidance to enable referrals as identified in paragraph (a)(1) of this 
section.
    (b) General interagency declassification activities as necessary to 
fulfill the requirements of sections 3.3 and 3.4 of the Order;
    (c) The development of effective, transparent, standard 
declassification work processes, training, and quality assurance 
measures;
    (d) The development of solutions to declassifying information 
contained in electronic records and special media; and planning for 
solutions for declassifying information as new technologies emerge;
    (e) The documentation and publication of declassification review 
decisions; and support of NDC declassification responsibilities by 
linking and using existing agency databases; and
    (f) Storage, and related services, on a reimbursable basis, for 
Federal records containing classified national security information.


Sec.  1260.36  What are agency responsibilities with the NDC?

    Agency heads shall fully cooperate with the Archivist and the 
activities of the NDC and provide the following resources for NDC 
operations:
    (a) Adequate and current declassification guidelines to process 
referrals in accordance with section 3.3(d)(3) of the Order and as 
indicated in Sec.  1260.54(a); and
    (b) Assignment of agency personnel to the NDC, at the request of 
the Archivist, with delegated authority by the agency head to review 
and exempt or declassify information originated by that agency found in 
records accessioned into the National Archives of the United States; 
and
    (c) Coordination with the NDC of the establishment of any agency 
centralized facilities and internal operations to conduct 
declassification reviews to ensure that such agencies conduct internal 
declassification reviews of records of permanent historical value.


Sec.  1260.38  How does the NDC ensure the quality of declassification 
reviews?

    An interagency team of experienced declassification reviewers, 
established

[[Page 40300]]

by NDC, conducts a sampling of reviewed records according to a sampling 
regime approved by a separate interagency program management team. The 
interagency team will verify that each series of agency reviewed 
records complies with the requirements of the Special Historical 
Records Review Plan (Supplement) dated March 3, 2000 (DOE-NARA Plan), 
pursuant to the requirements of Public Law 105-261 (112 Stat. 2259) and 
Public Law 106-65 (113 Stat. 938). Record series that cannot be 
verified to have been reviewed in accordance with the DOE-NARA Plan 
will not proceed through the NDC verification process until 
verification is received by the NDC. The DOE will participate on the 
interagency team to conduct the quality control reviews required by the 
DOE-NARA Plan in accordance with priorities established by the NDC.


Sec.  1260.40  What types of referrals will the NDC process?

    The NDC processes referrals of both Federal records and 
Presidential records. Referrals identified in accessioned Federal 
records will be processed by the Interagency Referral Center (IRC); 
referrals identified in records maintained by the Presidential 
Libraries will be processed by the Remote Archives Capture (RAC) 
Project. (The RAC Project is a collaborative program to facilitate the 
declassification review of classified records in the Presidential 
Libraries in accordance with section 3.3 of the Order. In this project, 
classified Presidential records at the various Presidential Libraries 
are scanned and brought to the Washington, DC, metropolitan area in 
electronic form for review by equity-holding agencies.)


Sec.  1260.42  How does the NDC process referrals of Federal Records?

    (a) All referrals are processed through the IRC.
    (b) Agencies will have one year from the time they receive formal 
notification of referrals by the NDC to review their equity in the 
records. If an agency does not complete its review within one year of 
formal notification, its information will be automatically declassified 
in accordance with section 3.3(d)(3)(B) of the Order unless the 
information has been properly exempted by an equity holding agency 
under section 3.3 of the Order.
    (c) Once notified, the agencies will coordinate their review with 
the NDC so the NDC can properly manage the workflow of the IRC.


Sec.  1260.44  How does the NDC process RAC Project referrals?

    (a) The Presidential Libraries use the RAC Project to process 
referrals.
    (b) Agencies will be notified of RAC Project referrals according to 
an annual prioritization schedule via the NDC.
    (c) The RAC Project identifies the primary agency with equity in 
the record.
    (d) The primary agency will have up to one year from the time it is 
notified of their referral to complete the review of its equity and 
identify all other agencies (``secondary agencies'') with an interest 
in the record. If an agency does not complete its review in one year, 
its equity will be automatically declassified.
    (e) Secondary agencies receiving notification of their referrals 
through the RAC Project will have up to one year to complete their 
review.


Sec.  1260.46  How does the Department of Defense process referrals?

    (a) The Department of Defense (DOD) established the Joint Referral 
Center (JRC) to review DOD agencies' records and all DOD equities 
within those records for declassification in accordance with section 
3.3 of the Order.
    (b) The JRC shall include sufficient quality assurance review 
policies that are in accordance with policies at the NDC and will 
provide the NDC with sufficient information on the results of these 
reviews to facilitate non-DOD agency referral processing and final 
archival processing for public release.
    (c) NARA may loan accessioned records to the JRC for this purpose.

Subpart D--Automatic Declassification


Sec.  1260.50  How are records at NARA reviewed as part of the 
automatic declassification process?

    (a) Consistent with the requirements of section 3.3 of Executive 
Order 13526 on automatic declassification, NARA staff may review for 
declassification records for which the originating agencies have 
provided written authority to apply their approved declassification 
guides. The originating agency must review records for which this 
authority has not been provided.
    (b) Agencies may choose to review their own records that have been 
transferred to NARA's legal custody, by sending personnel to the NARA 
facility where the records are located to conduct the declassification 
review.
    (c) Classified materials in the Presidential Libraries may be 
referred to agencies holding equity in the records through the RAC 
Project.


Sec.  1260.52  What are the procedures when agency personnel review 
records in NARA's legal and physical custody?

    (a) NARA will:
    (1) Make the records available to properly cleared agency 
reviewers;
    (2) Provide space for agency reviewers in the facility in which the 
records are located to the extent that space is available; and
    (3) Provide training and guidance for agency reviewers on the 
proper handling of archival materials.
    (b) Agency reviewers must:
    (1) Follow NARA security regulations and abide by NARA procedures 
for handling archival materials;
    (2) Use the Standard Form (SF) 715 and follow NARA procedures for 
identifying and documenting records that require exemption, referral, 
or exclusion in accordance with section 3.3 of the Order or 32 CFR 
2001.30(p); and
    (3) Obtain permission from NARA before bringing into a NARA 
facility computers, scanners, tape recorders, microfilm readers, and 
other equipment necessary to view or copy records. NARA will not allow 
the use of any equipment that poses an unacceptable risk of damage to 
archival materials. See 36 CFR part 1254 for more information on 
acceptable equipment.
    (4) Provide NARA with information, as requested by the Archivist 
and/or NDC Director, on their review so as to facilitate the processing 
of referrals and archival processing.


Sec.  1260.54  Will NARA loan accessioned records back to the agencies 
to conduct declassification review?

    In rare cases, when agency reviewers cannot be accommodated at a 
NARA facility, NARA will consider a request to loan records back to an 
originating agency in the Washington, DC, metropolitan area for 
declassification review. Each request will be judged on a case-by-case 
basis. The requesting agency must:
    (a) Ensure that the facility in which the documents will be stored 
and reviewed passes a NARA inspection to ensure that the facility 
maintains:
    (1) The correct archival environment for the storage of permanent 
records; and
    (2) The correct security conditions for the storage and handling of 
classified national security materials.
    (b) Meet NARA requirements for ensuring the safety of the records;
    (c) Abide by NARA procedures for handling of archival materials;
    (d) Identify and mark documents that cannot be declassified in 
accordance with NARA procedures; and

[[Page 40301]]

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


Sec.  1260.56  What are NARA considerations when implementing automatic 
declassification?

    (a) Integral file blocks. Classified records within an integral 
file block that have not been reviewed and properly exempted from 
declassification, or referred to an equity holder, will be 
automatically declassified on December 31 of the year that is 25 years 
from the date of the most recent record within the file block, except 
as specified in paragraphs (b), (c), and (d) of this section. For the 
purposes of automatic declassification, integral file blocks shall 
contain only records dated within 10 years of the oldest record in the 
block. The records of each Presidential Administration will be treated 
as an integral file block and will be scanned for declassification 
review through the RAC Project.
    (b) Special media records. After consultation with the Director of 
the National Declassification Center and before the records are subject 
to automatic declassification, an agency head or senior agency official 
may delay automatic declassification for up to five additional years 
for classified information contained in media that make a review for 
possible declassification exemptions more difficult or costly. NARA, 
through the NDC, will coordinate processing of referrals made in these 
special media records as part of its overall prioritization strategy.
    (c) Referrals. The IRC at the NDC will provide official 
notification for Federal records, while the RAC Project will provide 
formal notification for Presidential records. For agencies which fail 
to act on their referrals after formal notification by the IRC or the 
RAC Project, NARA will automatically declassify their information in 
accordance with section 3.3(d)(3)(B) of the Order.
    (d) Additional referrals. Agencies will identify referrals in 
accordance with section 3.3(d)(3) of the Order. NARA will delay 
automatic declassification for up to 1 year for classified records that 
have been identified by the originating agency or by NARA as having 
classified information that requires referral that were not identified 
by the primary reviewing agency
    (e) Other circumstances. Information from another agency that has 
not been properly identified and referred is not subject to automatic 
declassification. When NARA identifies information, in accordance with 
section 3.3 of the Order, that agency will have up to 1 year from the 
date of formal notification to review its information for 
declassification.
    (f) Discovery of information inadvertently not reviewed. When NARA 
identifies a file series or collection in its physical and legal 
custody that contains classified information over 25 years old and that 
was inadvertently not reviewed before the effective date of automatic 
declassification, NARA must report the discovery to the Information 
Security Oversight Office (ISOO) and to the responsible agency head or 
senior agency official within 90 days of discovery. ISOO, the 
responsible agency, and NARA will consult on a delay of up to three 
years to review the records.

Subpart E--Systematic Declassification


Sec.  1260.60  How does the NDC facilitate systematic review of records 
exempted at the individual record or file series level?

    (a) NARA, through the NDC, follows the procedures established in 
Sec.  1260.52 of this part regarding agency access for review of exempt 
file series.
    (b) NARA, through the NDC, will establish a prioritization schedule 
for review of exempted individual Federal records. This schedule will 
take into account upcoming exemption expiration, researcher interest 
and likelihood of declassification. This schedule will be included as 
part of the NDC annual work plan.
    (c) The Presidential Libraries will work directly with agencies to 
facilitate the review of records exempted at the file series level.
    (d) The Presidential Libraries, through the NDC, will establish a 
prioritization schedule for review of previously exempted classified 
materials in the Presidential Library system. These materials will be 
referred to agencies holding equity in the records via the RAC Project.

Subpart F--Mandatory Declassification Review (MDR)


Sec.  1260.70  How does a researcher submit a MDR request?

    (a) For Federal records in NARA's physical and legal custody, 
requests for MDR should be submitted to: National Archives at College 
Park, NWD (Attn: MDR Staff), 8601 Adelphi Road, Room 2600, College Park 
MD 20740 or specialaccess_foia@nara.gov;
    (b) For Presidential records, Nixon Presidential materials, or 
donated presidential materials in the custody of the Presidential 
Libraries, MDR requests should be submitted to the Presidential Library 
with physical and legal custody of the records;
    (c) For Congressional records in NARA's custody, MDR requests 
should be submitted to: The Center for Legislative Archives, 700 
Pennsylvania Ave., NW., Washington, DC 20408 or 
legislative.archives@nara.gov.
    (d) For all records in NARA's physical and legal custody, MDR 
requests must describe the record or material with sufficient 
specificity to enable NARA to locate it with a reasonable amount of 
effort. If NARA is unable to locate the record or material, or requires 
additional information, NARA will inform the requester.


Sec.  1260.72  What procedures does NARA follow when it receives a 
request for Executive Branch records under MDR?

    (a) NARA will review the requested records and determine if they 
have already been released. If not, NARA will refer copies of the 
records to the originating agency and to agencies that may have an 
interest or activity with respect to the classified information for 
declassification review. Agencies may also send personnel to a NARA 
facility where the records are located to conduct a declassification 
review, or may delegate declassification authority to NARA.
    (b) When the records were originated by a defunct agency that has 
no successor agency, NARA is responsible for making the 
declassification determinations, but will consult with agencies having 
interest in or activity with respect to the classified information.
    (c) If the document or information has been reviewed for 
declassification within the past 2 years, NARA may opt not to conduct a 
second review and may instead inform the requester of this fact and of 
the prior review decision and advise the requester of appeal rights in 
accordance with 32 CFR 2001.33.
    (d) If NARA determines that a requester has submitted a request for 
the same information under both MDR and the Freedom of Information Act 
(FOIA), as amended, NARA will notify the requester that he/she is 
required to elect one process or the other. If the requester fails to 
elect one or the other, the request will be treated under the FOIA, 
unless the requested information or materials are subject only to 
mandatory review.
    (e) In every case, NARA will acknowledge receipt of the request and 
inform the requester of the action taken. If additional time is 
necessary to make

[[Page 40302]]

a declassification determination on material for which NARA has 
delegated authority, NARA will tell the requester how long it will take 
to process the request and advise the requester of available appeal 
rights. NARA may also inform the requester if part or all of the 
requested information is referred to other agencies for 
declassification review in accordance with sections 3.6(a) and (b) of 
the Executive Order.
    (f) If NARA fails to provide the requester with a final decision on 
the mandatory review request within one year of the original date of 
the request, the requester may appeal to the Interagency Security 
Classification Appeals Panel (ISCAP).


Sec.  1260.74  What are agency responsibilities after receiving a MDR 
request forwarded by NARA?

    (a) The agency receiving the referral will promptly process and 
review the referral for declassification and public release on a line-
by-line basis in accordance with section 3.5(c) of the Order and 
communicate its review decisions to NARA.
    (b) The agency must notify NARA of any other agency to which it 
forwards the request in those cases requiring the declassification 
determination of another agency to which NARA has not already sent a 
referral for review.
    (c) The agency must return to NARA a complete copy of each referred 
document with the agency determination clearly stated to leave no doubt 
about the status of the information and the authority for its continued 
classification or its declassification.


Sec.  1260.76  What are NARA's procedures after it has received the 
agency's declassifications determination?

    (a) If a document cannot be declassified in its entirety, the 
agency must return to NARA a copy of the document with those portions 
that require continued classification clearly marked. If a document 
requires continued classification in its entirety, the agency must 
return to NARA a copy of the document clearly so marked.
    (b) NARA will notify the requester of the results of its review and 
make available copies of documents declassified in full and in part. If 
the requested information cannot be declassified in its entirety, NARA 
will send the requester a notice of the right to appeal the 
determination within 60 calendar days to the Deputy Archivist of the 
United States, National Archives and Records Administration, 8601 
Adelphi Road, College Park, MD 20740-6001. Additional information on 
appeals is located in 36 CFR Part 1264 and in Appendix A to 32 CFR Part 
2001 (Article VIII).


Sec.  1260.78  What is the appeal process when a MDR for Executive 
Branch information in NARA's legal custody is denied in whole or in 
part?

    (a) NARA shall respond to the requester in writing that her/his 
mandatory declassification review request was denied in full or in part 
and the rationale for the denial by using the appropriate category in 
either section 1.4 of the Order for information that is less than 25 
years old, or section 3.3 of the Order for information that is older 
than 25 years, or 32 CFR 2001.30(p) for information governed by the 
Atomic Energy Act of 1954, as amended, or the National Security Act of 
1947, as amended. NARA will send the requester a notice of the right to 
appeal the determination within 60 calendar days to the Deputy 
Archivist of the United States, National Archives and Records 
Administration, 8601 Adelphi Road, College Park, If a final decision on 
the appeal is not made within 60 working days of the date of the 
appeal, the requester may appeal to the Interagency Security 
Classification Appeals Panel (ISCAP).
    (b) NARA will process all appeals in accordance with 32 CFR 
2001.33(a)(2)(iii). NARA will inform all agencies with equity interests 
in the denied information. Those agencies will assist NARA in the 
appellate process and provide NARA with final declassification review 
decisions in a timely manner and consistent with 32 CFR 
2001.33(a)(2)(iii).
    (c) NARA will also notify the requester of the right to appeal 
denials of access to the Interagency Security Classification Appeals 
Panel, Attn: Mandatory Declassification Review Appeals, c/o Information 
Security Oversight Office, National Archives and Records 
Administration, 700 Pennsylvania Avenue, NW., Room 503, Washington, DC 
20408; iscap@nara.gov.
    (d) The pertinent NARA office or Presidential Library will 
coordinate the potential release of information declassified by the 
Interagency Security Classification Appeals Panel (ISCAP).

Subpart G--Reclassification of Records Transferred to NARA


Sec.  1260.80  What actions must NARA take when information in its 
physical and legal custody is reclassified after declassification under 
proper authority?

    (a) When information in the physical and legal custody of NARA that 
has been available for public use following declassification under 
proper authority is proposed for reclassification in accordance with 32 
CFR 2001.13(b)(1), NARA shall take the following actions:
    (1) The agency head making the determination to reclassify the 
information shall notify the Archivist of the potential 
reclassification in writing,
    (2) The Archivist shall suspend public access pending approval or 
disapproval by the Director of the Information Security Oversight 
Office of the reclassification request, and
    (3) The Director of the Information Oversight Office shall normally 
make a decision on the validity of the reclassification request within 
30 days, and
    (4) The decision of the Director of ISOO may be appealed by the 
Archivist or the agency head to the President through the National 
Security Advisor.
    (5) Access shall remain suspended pending a prompt decision on the 
appeal.
    (b) [Reserved.]


Sec.  1260.82  What actions must NARA take with information in its 
physical and legal custody that has been made available to the public 
after declassification without proper authority?

    (a) When information in the physical and legal custody of NARA has 
been made available for public use following declassification without 
proper authority and needs to have its original classification markings 
restored, the original classification authority shall notify the 
Archivist in writing in accordance with 32 CFR 2001.13(a)(1).
    (b) If the Archivist does not agree with the reclassification 
decision and the information is more than 25 years old, the information 
will be temporarily withdrawn from public access and the Archivist will 
appeal the agency decision to the Director of ISOO, who will make a 
final decision in accordance with 32 CFR 2001.13(a)(1). The decision of 
the Director of ISOO may be appealed by the Archivist or the agency 
head to the President through the National Security Advisor.
    (c) Information about records that have been reclassified or have 
had their classification restored as described in Sec. Sec.  1260.80 
and 1260.82 will be made available quarterly through the NARA Web site, 
https://www.archives.gov/about/plans-reports/withdrawn/. Information 
will include the responsible agency, NARA location, date withdrawn, 
number of records, and number of pages.

    Dated: June 30, 2011.
David S. Ferriero,
Archivist of the United States.
[FR Doc. 2011-17128 Filed 7-7-11; 8:45 am]
BILLING CODE 7515-01-P