Federal Register: August 12, 2005 (Volume 70, Number 155)
Proposed Rules            
Page 47161-47166
                    

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NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

36 CFR Part 1260

RIN 3095-AB38

 
Declassification of National Security Information

AGENCY: National Archives and Records Administration (NARA).

ACTION: Proposed rule.

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SUMMARY: This proposed rule would update NARA regulations related to 
declassification of classified national security information in records 
transferred to NARA's legal custody. The proposal incorporates changes 
resulting from amendments to Executive Order 12958, Classified National 
Security Information. 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. 12958 as amended. The proposed rule will affect 
members of the public and Federal agencies.

DATES: Comments are due by October 11, 2005.

ADDRESSES: You may submit comments, identified by RIN 3095-AB38, by any 
of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    E-mail: [email protected]. Include RIN 3095-AB38 in the subject 
line of the message.
    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: Jennifer Davis Heaps at 301-837-1801.

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 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 amendments to the 1995 Executive Order 12958. Executive 
Order 13142 of November 19, 1999, and Executive Order 13292 of March 
28, 2003, provided for additional amendments to E.O. 12958. In 
particular, we are adding a section that discusses how NARA will 
implement automatic declassification (see Sec.  1260.46). We also 
propose to revise Subpart E on reclassification.
    NARA's proposed section on automatic declassification includes:
     The use of an integral file block to determine the 
automatic declassification date for a group of records;
     Allowing a five year delay in automatic declassification 
for special media records; and
     Allowing a three year delay in automatic declassification 
for records that have been referred to another agency for review.
    In addition, this proposed section clarifies the kind of 
information that is subject to automatic declassification, including 
information from the creating agency or information from another agency 
that has been properly referred.
    NARA proposes revising the section on reclassification to include a 
procedure by which an agency head may request the reclassification of 
records that have previously been properly declassified and released. 
We also clarify steps an agency may take to restrict information that 
was released to the public but was not properly declassified 
(``inadvertent release.'')
    This proposed rule is a significant regulatory action for the 
purposes 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 proposed rule will not have a significant 
impact on a substantial number of small entities because it affects 
Federal agencies and individual researchers. This proposed rule 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 amend 
chapter XII of title 36, Code of Federal Regulations, by revising part 
1260 to read as follows:

PART 1260--DECLASSIFICATION OF NATIONAL SECURITY INFORMATION

Subpart A--General Information
Sec.
1260.1 What is the purpose of this part?
1260.2 Definitions.
1260.4 What NARA holdings are covered by this part?
1260.6 What is the authority for 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 information pertaining to intelligence 
activities and intelligence sources or methods, or of classified 
cryptologic information in NARA's holdings?
1260.28 Who is responsible for declassifying records that contain 
information classified under the Atomic Energy Act of 1954, as 
amended, commonly referred to as Restricted Data and Formerly 
Restricted Data?
Subpart C--Systematic Review
1260.40 How are records at NARA reviewed for declassification?
1260.42 What are the procedures for agency personnel to review 
records at a NARA facility?
1260.44 Will NARA loan accessioned records back to the agencies to 
conduct declassification review?
1260.46 How will NARA implement automatic declassification?
Subpart D--Mandatory Review

Executive Branch Records

1260.50 What procedures does NARA follow when it receives a request 
for Executive Branch records under mandatory review?
1260.52 What are agency responsibilities after receiving a mandatory 
review request forwarded by NARA?
1260.54 What is the appeal process when a mandatory review request 
for Executive Branch information is denied?
1260.55 What is the appeal process when a mandatory review request 
for Executive Branch information is denied within Nixon Presidential 
Historical materials or Presidential records?

White House Originated Information

1260.56 Is White House originated information subject to mandatory 
review?
1260.58 What are the procedures for requesting a mandatory review of 
White House originated information?

[[Page 47162]]

1260.60 What are agency responsibilities with regard to mandatory 
review requests for White House originated information?
1260.62 What is the appeal process when a mandatory review request 
for White House originated information is denied?
Subpart E--Reclassification
1260.70 Can previously released Executive Branch information be 
reclassified or have its classification restored?
1260.72 Can previously released White House originated information 
be reclassified or have its classification restored?
1260.74 What if NARA does not concur with a request to reclassify or 
restore the classification of information that has been previously 
released?


    Authority: 44 U.S.C. 2101 to 2118; 5 U.S.C. 552; E.O. 12958, 60 
FR 19825, 3 CFR, 1995 Comp., p. 333; E.O. 13142, 64 FR 66089, 3 CFR, 
1999 Comp., p. 236; E.O. 13292, 68 FR 15315; 32 CFR part 2001.

Subpart A--General Information


Sec.  1260.1  What is the purpose of this part?

    (a) This part 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) Conducting systematic reviews of NARA holdings, and
    (2) Processing mandatory 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.


Sec.  1260.2  Definitions.

    (a) Classified national security information or classified 
information means information that has been determined under Executive 
Order 12958 as amended or any predecessor order to require protection 
against unauthorized disclosure and is marked to indicate its 
classified status when in documentary form.
    (b) Declassification means the authorized change in the status of 
information from classified information to unclassified information.
    (c) Systematic declassification review means the review for 
declassification of classified 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.
    (d) 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 12958 as amended.
    (e) 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.
    (f) 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.


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

    The NARA holdings covered by this part are records legally 
transferred to the National Archives and Records Administration (NARA), 
including Federal records accessioned into the National Archives of the 
United States, 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 in Presidential Libraries and in the National 
Archives of the United States, 44 U.S.C. 2111.


Sec.  1260.6  What is the authority for this part?

    Declassification of and public access to classified national 
security information is governed by Executive Order 12958 of April 17, 
1995 (3 CFR 1995 Comp., p. 333), Executive Order 13142 of November 19, 
1999 (3 CFR 1999 Comp., p. 236), Executive Order 13292 of March 28, 
2003 (68 FR 15315), collectively referred to as EO 12958 as amended, 
and by the Information Security Oversight Office (ISOO) Implementing 
Directive for Executive Order 12958 as amended (32 CFR Part 2001).

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 Executive 
Order 12958 as amended on automatic declassification, the originating 
agency is responsible for declassification of its information, but may 
delegate declassification authority to NARA in the form of 
declassification guidance.
    (b) If an agency does not delegate declassification authority to 
NARA, the agency is responsible for reviewing the records before the 
date that the records become eligible for automatic declassification.
    (c) NARA is responsible for the declassification of records of a 
defunct agency that has no successor in function. NARA will consult 
with agencies having primary subject matter interest (``equities'') 
before making declassification determinations.


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;
    (2) The White House staff;
    (3) Committees, commissions, or boards appointed by the President; 
or
    (4) Others specifically providing advice and counsel to the 
President or acting on behalf of the President.
    (b) NARA will consult with agencies having primary subject matter 
interest before making declassification determinations.


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

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


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

    (a) The Director of Central Intelligence is responsible for issuing 
special procedures for declassification of classified information 
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 information.

[[Page 47163]]

Sec.  1260.28  Who is responsible for declassifying records that 
contain information classified under the Atomic Energy Act of 1954, as 
amended, commonly referred to as Restricted Data and Formerly 
Restricted Data?

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

Subpart C--Systematic Review


Sec.  1260.40  How are records at NARA reviewed for declassification?

    (a) Consistent with the requirements of section 3.3 of Executive 
Order 12958 as amended on automatic declassification, NARA staff may 
systematically review for declassification records for which the 
originating agencies have provided declassification guidance. The 
originating agency must review records for which it has not provided 
declassification guidance.
    (b) Agencies may choose to review their own records that have been 
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 Library system may be 
referred to agencies holding equity in the documents via the Remote 
Archives Capture Project (RAC). The RAC Project is a collaborative 
program to implement the declassification provisions of E.O. 12958 as 
amended with respect to twenty-five year old or older classified 
holdings in the Presidential Libraries. Classified Presidential 
materials at the libraries are scanned and brought to the Washington, 
DC, metropolitan area in electronic form for review by equity-holding 
agencies in the metropolitan area.


Sec.  1260.42  What are the procedures for agency personnel to review 
records at a NARA facility?

    (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 as 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) Follow NARA procedures for identifying and marking documents 
that cannot be declassified; and
    (3) Obtain permission from NARA before bringing into a NARA 
facility computers, scanners, tape recorders, microfilm readers and 
other equipment necessary to view or copy records. NARA will not allow 
the use of any equipment that poses an unacceptable risk of damage to 
archival materials. See 36 CFR part 1254 for more information on 
acceptable equipment.


Sec.  1260.44  Will NARA loan accessioned records back to the agencies 
to conduct declassification review?

    In rare cases, when agency reviewers cannot be accommodated at a 
NARA facility, NARA will consider a request to loan records back to an 
originating agency in the Washington, DC, metropolitan area for 
declassification review. Each request will be judged on a case-by-case 
basis. The requesting agency must:
    (a) Ensure that the facility in which the documents will be stored 
and reviewed passes a NARA inspection to ensure that the facility 
maintains:
    (1) The correct archival environment for the storage of permanent 
records; and
    (2) The correct security conditions for the storage and handling of 
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
    (e) Obtain NARA approval of any equipment such as scanners, 
copiers, or cameras to ensure that they do not pose an unacceptable 
risk of damage to archival materials.


Sec.  1260.46  How will NARA implement automatic declassification?

    (a) Textual records and collections. 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), (d), and (e) of this section.
    (b) Special media records. (1) Federal records. Upon proper 
notification from the originating agency, NARA will delay automatic 
declassification for 5 additional years for classified information 
contained in microforms, motion pictures, audiotapes, videotapes, or 
comparable media that make a review for possible declassification 
exemptions more difficult or costly. Information contained in special 
media records that has been referred to an equity holder will be 
automatically declassified 5 years from the date of notification or 30 
years from the date of origination of the special media, whichever is 
longer, unless otherwise properly exempted.
    (2) Presidential collections. NARA will delay automatic 
declassification for 5 additional years for classified information 
contained in Presidential records and donated historical materials in 
the form of microforms, motion pictures, audiotapes, videotapes, or 
comparable media that make a review for possible declassification 
exemptions more difficult or costly. Information contained in special 
media records that has been referred will be automatically declassified 
5 years from the date of notification or 30 years from the date of 
origination of the special media, whichever is longer, unless otherwise 
properly exempted.
    (c) Delayed referrals. NARA will delay automatic declassification 
for up to 3 years for classified records that have been identified by 
the originating agency or by NARA, and referred to an additional agency 
or agencies less than 3 years before automatic declassification would 
otherwise be required.
    (d) Other exceptions. NARA will apply automatic declassification 
only to information of the agency that created the records, and to 
information that has been properly referred to another agency, but not 
acted upon by that agency within 3 years from the date of notification, 
or 28 years from the date of the record or integral file block, 
whichever is later.
    (1) Information from another agency that has not been properly 
identified and referred is not subject to automatic declassification. 
When NARA identifies information of interest to another agency, that 
agency will have 3 years from the date of notification to exempt or 
declassify its equity, and to further refer the record if appropriate. 
If no action is taken, the information from the agency that received 
the referral will be automatically declassified 3 years from the date 
of notification.
    (2) Information contained in special media records that has been 
referred to equity holders will be automatically declassified 5 years 
from the date of notification, or 30 years from the date of origination 
of the special media, whichever is longer, unless otherwise properly 
exempted.
    (e) Discovery of information inadvertently not reviewed. When NARA 
identifies a file series or

[[Page 47164]]

collection in our 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 ISOO within 90 days of discovery. Within 180 
days NARA will refer the records to the originating agency or 
systematically review the records.
    (1) The referral agency will have 3 years from the date of 
notification to exempt, declassify, or further refer the record. If no 
action is taken, the information from the agency that received the 
referral will be automatically declassified 3 years from the date of 
notification.
    (2) Information contained in special media records that has been 
referred will be automatically declassified 5 years from the date of 
notification or 30 years from the date of origination of the special 
media, whichever is longer, unless otherwise properly exempted.

Subpart D--Mandatory Review

Executive Branch Records


Sec.  1260.50  What procedures does NARA follow when it receives a 
request for Executive Branch records under mandatory review?

    (a) If the requested records are less than 25 years old, NARA 
refers copies of the records to the originating agency and to agencies 
that have equities in the information for declassification review. 
Agencies may also send personnel to a NARA facility where the records 
are located to conduct a declassification review, or may delegate 
declassification authority to NARA in the form of declassification 
guidance.
    (b) If the requested records are more than 25 years old, NARA will 
review the records using systematic declassification guidance provided 
by the originating agency and agencies having equities in the 
information. If the originating agency, or agencies having equities in 
the information have not provided systematic declassification guidance, 
or if there is a question regarding the guidance, NARA will refer any 
requested documents it is unable to declassify to the appropriate 
agency or agencies for declassification determinations.
    (c) When the records were originated by a defunct agency that has 
no successor agency, NARA is responsible for making the 
declassification determinations, but will consult with agencies having 
primary subject matter interest.
    (d) Requests for mandatory review must describe the document or 
material containing the information with sufficient specificity to 
enable NARA to locate it with a reasonable amount of effort.
    (e) If the document or information has been properly reviewed for 
declassification within the past 2 years, or if the specific 
information is the subject of pending litigation, NARA will inform the 
requester of this fact and of the requester's appeal rights.
    (f) If NARA determines that a requester has submitted a request for 
the same information or material under both the mandatory review and 
the Freedom of Information Act (FOIA), as amended, the requester is 
required to elect one process or the other. If the requester fails to 
elect one or the other, the request will be treated as a request under 
the FOIA, unless the requested information or materials are subject 
only to mandatory review.
    (g) In every case, NARA will acknowledge receipt of the request and 
inform the requester of the action taken. If additional time is 
necessary to make a declassification determination on material for 
which NARA has delegated authority, NARA will tell the requester how 
long it will take to process the request. NARA will also tell the 
requester if part or all of the requested information is referred to 
other agencies for declassification review, subject to section 3.6 (a) 
and (b) of Executive Order 12958 as amended.


Sec.  1260.52  What are agency responsibilities after receiving a 
mandatory review request forwarded by NARA?

    (a) The agency must make a determination within 180 calendar days 
after receiving the request or inform NARA of the additional time 
needed to process the request.
    (b) The agency must notify NARA of any other agency to which it 
forwards the request in those cases requiring the declassification 
determination of another agency.
    (c) The agency must return to NARA a complete copy of each referred 
document with the agency determination uniformly and conspicuously 
identified to leave no doubt about the status of the information and 
the authority for its continued classification or its declassification. 
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 marked.
    (d) The agency must also furnish, for transmission to the 
requester, a brief statement of the reasons the requested information 
cannot be declassified and a statement of the requester's right to 
appeal the decision, along with the procedures for filing an appeal. 
The agency must also supply for transmission to the requester a contact 
name and title and the address where the appeal must be sent. 
Additional information on appeals for requesters is located in 36 CFR 
part 1256 and in Appendix A to 32 CFR part 2001 (Article VIII).


Sec.  1260.54  What is the appeal process when a mandatory review 
request for Executive Branch information is denied?

    (a) If an agency denies a declassification request under mandatory 
review, the requester may appeal directly to the appeal authority at 
that agency.
    (b) If requested by the agency, NARA will supply the agency with:
    (1) Copies of NARA's letter to the requester transmitting the 
agency denial; and
    (2) Copies of any documents denied in part that were furnished to 
the requester.
    (c) The agency appeal authority must notify NARA in writing of the 
final determination and of the reasons for any denial.
    (d) The agency must furnish to NARA a complete copy of any document 
they released to the requester only in part, clearly marked to indicate 
the portions that remain classified. NARA will give the requester a 
copy of any notifications from the agencies that describe what 
information has been denied and what the requester's appeal rights are.
    (e) NARA will also notify the requester of the right to appeal 
denials of access to the Executive Secretary of the Interagency 
Security Classification Appeals Panel, Attn: Mandatory Review Appeals, 
c/o Information Security Oversight Office, National Archives and 
Records Administration, 700 Pennsylvania Avenue, NW, Room 500, 
Washington, DC 20408.
    (f) The pertinent NARA office or Presidential Library will 
coordinate the potential release of information declassified by ISCAP 
when the materials are subject to the Presidential Recordings and 
Materials Preservation Act, 44 U.S.C. 2111 note, and the Presidential 
Records Act, 44 U.S.C. 2203.
    (g) In the case of an appeal for information originated by a 
defunct agency, NARA will notify the requester of the results and 
furnish copies of documents declassified in full and in

[[Page 47165]]

part. If the request cannot be declassified in its entirety, NARA will 
send the requester a brief statement of why the requested information 
cannot be declassified and a notice of the right to appeal the 
determination within 60 calendar days to the Deputy Archivist of the 
United States, National Archives and Records Administration, 8601 
Adelphi Road, College Park, MD 20740-6001.


Sec.  1260.55  What is the appeal process when a mandatory review 
request for Executive Branch information is denied within Nixon 
Presidential Historical materials or Presidential records?

    (a) If an agency denies a declassification request under mandatory 
review for Nixon Presidential materials or a Presidential record as 
defined by 44 U.S.C. 2201, the requester may appeal the determination 
within 60 calendar days to the Deputy Archivist of the United States, 
through the appropriate Presidential library.
    (b) When the Deputy Archivist of the United States receives an 
appeal, he or she will review the decision to deny the information and 
consult with the appellate authorities in the agencies having primary 
subject matter interest in the information.
    (c) NARA will notify the requester in writing of the determination 
and make available any additional information that has been 
declassified as a result of the requester's appeal, following the 
notification procedures of E.O. 13233 for Presidential records or 36 
CFR part 1275.
    (d) NARA will also notify the requester of the right to appeal 
denials of access to the Executive Secretary of the Interagency 
Security Classification Appeals Panel, Attn: Mandatory Review Appeals, 
c/o Information Security Oversight Office, National Archives and 
Records Administration, 700 Pennsylvania Avenue, NW., Room 500, 
Washington, DC 20408.
    (e) The pertinent NARA office or Presidential Library will 
coordinate the potential release of information declassified by ISCAP 
when the materials are subject to the Presidential Recordings and 
Materials Preservation Act, 44 U.S.C. 2111 note, and the Presidential 
Records Act, 44 U.S.C. 2203.

White House Originated Information


Sec.  1260.56  Is White House originated information subject to 
mandatory review?

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


Sec.  1260.58  What are the procedures for requesting a mandatory 
review of White House originated information?

    (a) Requests for mandatory review must describe the document or 
material containing the information with sufficient specificity to 
enable NARA to locate it with a reasonable amount of effort.
    (b) If the document or information has been properly reviewed for 
declassification within the past 2 years, or if the specific 
information is the subject of pending litigation, NARA will inform the 
requester of this fact and of the requester's appeal rights.
    (c) If NARA determines that a requester has submitted a request for 
the same information or material under both the mandatory review and 
the Freedom of Information Act (FOIA), as amended, the requester is 
required to elect one process or the other. If the requester fails to 
elect one or the other, the request will be treated as a request under 
the FOIA, unless the requested information or materials are subject 
only to mandatory review.
    (d) NARA will promptly acknowledge to the requester the receipt of 
a request for White House originated information.
    (e) If the requested information is less than 25 years old, NARA 
will consult with agencies having primary subject matter interest. NARA 
will forward copies of the requested materials to the agencies and 
request their recommendations regarding declassification.
    (f) If the requested records are more than 25 years old, NARA will 
review the records using systematic declassification guidance provided 
by the originating agency and agencies having equities in the 
information. If the originating agency, or agencies having equities in 
the information have not provided systematic declassification guidance, 
or if there is a question regarding the guidance, NARA will refer any 
requested documents it is unable to declassify to the appropriate 
agency or agencies for their recommendations regarding 
declassification.
    (g) NARA will notify the requester of the results and furnish 
copies of the documents declassified in full and in part. If the 
requested records are not declassified in their entirety, NARA will 
send the requester a brief statement of the reasons the information 
cannot be declassified and a notice of the right to appeal the 
determination within 60 calendar days to the Deputy Archivist of the 
United States, National Archives and Records Administration, 8601 
Adelphi Road, College Park, MD 20740-6001.


Sec.  1260.60  What are agency responsibilities with regard to 
mandatory review requests for White House originated information?

    When an agency receives a mandatory review request from NARA for 
consultation on declassification of White House originated material, 
whether it is an initial request or an appeal, the agency must:
    (a) Advise the Archivist whether the information should be 
declassified in whole or in part or should remain classified;
    (b) Provide NARA a brief statement providing the authority for the 
continued classification of any information not declassified; and
    (c) Return all reproductions referred for consultation, including a 
complete copy of each document that should be declassified only in 
part, uniformly and conspicuously marked to leave no doubt about the 
status of the information and the authority for its continued 
classification or its declassification.


Sec.  1260.62  What is the appeal process when a mandatory review 
request for White House originated information is denied?

    (a) When the Deputy Archivist of the United States receives an 
appeal, he or she will review the decision to deny the information and 
consult with the appellate authorities in the agencies having primary 
subject matter interest in the information.
    (b) NARA will notify the requester in writing of the determination 
and make available any additional information that has been 
declassified as a result of the requester's appeal.
    (c) NARA will also notify the requester of the right to appeal 
denials of access to the Executive Secretary of the Interagency 
Security Classification Appeals Panel, Attn: Mandatory Review Appeals, 
c/o Information Security Oversight Office, National Archives and 
Records Administration, 700

[[Page 47166]]

Pennsylvania Avenue, NW., Room 500, Washington, DC 20408.

Subpart E--Reclassification


Sec.  1260.70  Can previously released Executive Branch information be 
reclassified or have its classification restored?

    (a) Records that were properly declassified in accordance with E.O. 
12958 as amended (or predecessor orders) and that have been released 
may be temporarily closed and considered for reclassification at the 
request of an agency. Final action must be taken under the personal 
authority of the agency head or deputy agency head, who determines in 
writing within 20 workdays that the reclassification of the information 
is necessary in the interest of the national security. In addition, the 
information must be reasonably recoverable.
    (b) Records that were not properly declassified in accordance with 
Executive Order 12958 as amended (or predecessor orders) remain 
classified. Upon notification, NARA will take administrative action to 
restore markings and controls, as appropriate. In the event that 
records have been released, they may be temporarily closed and their 
classification reviewed at the request of an agency. The agency must 
notify NARA of the results of the review within 30 days.
    (c) Agencies must submit all requests in writing. If the urgency of 
the request precludes a written request, an authorized agency official 
may make a preliminary request by telephone and follow up with a 
written request within 5 working days. Requests concerning Executive 
Branch records must be addressed to the Assistant Archivist for Records 
Services--Washington, DC, National Archives and Records Administration, 
8601 Adelphi Road, College Park, MD 20740-6001. Requests concerning 
information in Presidential libraries must be addressed to the 
Assistant Archivist for Presidential Libraries, National Archives and 
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001.
    (d) Any such written request must include all of the following:
    (1) A description of the records or donated materials involved, 
identified with sufficient specificity to enable NARA to locate it with 
a reasonable amount of effort;
    (2) An explanation as to why the records should be closed and 
reviewed;
    (3) A statement as to the authority for any classification or 
reclassification, to include a reference to the specific category in 
section 1.4 or 3.3(b) of E.O. 12958, as appropriate; and
    (4) Any information the agency may have concerning any previous 
public disclosure of the information. NARA will assist by providing 
information.


Sec.  1260.72  Can previously released White House originated 
information be reclassified or have its classification restored?

    An agency or an entity within the Executive Office of the President 
that solely advises and assists the President, may ask NARA to 
temporarily close, review, and possibly reclassify or restore the 
classification of White House originated information that has been 
declassified and previously released. The agency or other entity must 
follow the same procedures as a request for reclassification of 
Executive branch originated information in 36 CFR 1260.70.


Sec.  1260.74  What if NARA does not concur with a request to 
reclassify or restore the classification of information that has been 
previously released?

    (a) If NARA is concerned that relevant procedures and policies 
under E.O. 12958, as amended, or its Implementing Directives are not 
being properly implemented, the Archivist will promptly report such 
situations to the Director of ISOO.
    (b) If, in the opinion of the Archivist, an agency's determination 
with respect to the classification status of records that have been 
previously released is improper, the Archivist, as an authorized 
holder, may challenge the classification status of the pertinent 
records in accordance with section 1.8 of E.O. 12958, as amended.
    (c) NARA will direct any such challenge in writing to the agency 
with classification authority and jurisdiction over the information.
    (d) If no response is provided by the agency within 120 days, NARA 
may forward the challenge directly to the Interagency Security 
Classification Appeals Panel (ISCAP). NARA must forward the challenge 
within 60 days of the agency's failure to provide a response within 120 
days.
    (e) If an agency appellate authority fails to provide NARA with a 
response to an appeal within 90 days of its receipt, NARA may forward 
the appeal directly to the Interagency Security Classification Appeals 
Panel (ISCAP). NARA must forward the challenge within 60 days of the 
agency's failure to provide a response to an appeal within 90 days.
    (f) All records subject to classification challenges will remain 
classified pending final resolution of the challenge and, if necessary, 
any such appeals.

    Dated: April 27, 2005.
Allen Weinstein,
Archivist of the United States.
[FR Doc. 05-16031 Filed 8-11-05; 8:45 am]

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