[Federal Register: September 11, 2007 (Volume 72, Number 175)]
[Proposed Rules]
[Page 51744-51747]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11se07-19]
[[Page 51744]]
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NATIONAL ARCHIVES AND RECORDS ADMINISTRATION
36 CFR Part 1250
[NARA-07-0003]
RIN 3095-AB42
Public Availability and Use of Federal Records
AGENCY: National Archives and Records Administration.
ACTION: Proposed rule.
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SUMMARY: The National Archives and Records Administration (NARA) is
proposing to revise its regulations implementing the Freedom of
Information Act (FOIA). The proposed revisions update the regulations
for access and release of information under the FOIA among NARA's
archival holdings and NARA's own operational records.
DATES: Comments are due by November 13, 2007.
ADDRESSES: NARA invites interested persons to submit comments on this
proposed rule. Comments may be submitted by any of the following
methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Fax: Submit comments by facsimile transmission to 301-837-
0319.
Mail: Send comments to Regulations Comments Desk (NPOL),
Room 4100, Policy and Planning Staff, National Archives and Records
Administration, 8601 Adelphi Road, College Park, MD 20740-6001.
Hand Delivery or Courier: Deliver comments to 8601 Adelphi
Road, College Park, MD.
FOR FURTHER INFORMATION CONTACT: Laura McCarthy at (301) 837-3023 or
via fax number 301-837-0319.
SUPPLEMENTARY INFORMATION: The proposed revisions to NARA's regulations
on public availability and use of Federal records modify several of the
procedures and responsibilities of NARA staff in response to requests
submitted under the provisions of the Freedom of Information Act
(FOIA). The proposed revisions update NARA's regulations to incorporate
changes that have occurred since the last revision of 36 CFR part 1250,
including:
Reflecting the legal transfer of certain official military
personnel records to the National Archives of the United States in
2005. The transfer of these records to NARA expands the application of
36 CFR part 1250 to twentieth-century military personnel records that
are archival records; those military personnel records that have not
been transferred to NARA remain under the legal custody of the agency
that created them.
Incorporating the provisions of Executive Order 13392,
``Improving Agency Disclosure of Information,'' by revising Sec.
1250.22 to include the establishment of FOIA Customer Service Centers
and the designation of FOIA Public Liaisons. The proposed rule also
advises the public of a new e-mail address for the submission of FOIA
requests to NARA.
Extending the time the former and incumbent President have
to respond to notification of the proposed release of presidential
records consistent with E.O. 13233, Further Implementation of the
Presidential Records Act (issued November 1, 2001). Executive Order
13233 allows the Presidents at least 90 days to make a determination
concerning the release of presidential records.
Incorporating changes to the fee schedule for self-service
copies.
Revising NARA's procedures for identifying records
containing confidential commercial information in Sec. 1250.82. We
propose to provide a 10 day response time for the submitter, instead of
the current five day period, to respond to notification of the release
of confidential commercial information in the records. We also propose
to change our public notification procedures to include a method of
notifying multiple submitters by posting on our Web site or publishing
a notice concerning the release of confidential commercial information.
This proposed rule is not a significant regulatory action for the
purposes of Executive Order 12866 and has not 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 this
regulation will affect only persons and organizations who file FOIA
requests with NARA. This regulation does not have any federalism
implications.
List of Subjects in 36 CFR Part 1250
Archives and records, Confidential business information, Freedom of
information.
For the reasons set forth in the preamble, NARA proposes to amend
part 1250 of title 36, Code of Federal Regulations, as follows:
PART 1250--PUBLIC AVAILABILITY AND USE OF FEDERAL RECORDS
1. Revise the authority citation for part 1250 to read as follows:
Authority: 44 U.S.C. 2104(a); 5 U.S.C. 552; E.O. 12958, 60 FR
19825, 3 CFR, 1995 Comp., p. 333, as amended by E.O. 13292, 68 FR
15315, March 28, 2003; E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp.,
p. 235., E.O 13392, 70 FR 75371, 3 CFR, 2006 Comp., p. 216.
2. Revise the section heading of Sec. 1250.1 to read as follows:
Sec. 1250.1 What is the scope of this part?
* * * * *
3. Amend Sec. 1250.2 by revising the section heading;
redesignating paragraph (k) as paragraph (l); and adding a new
paragraph (k) to read as follows:
Sec. 1250.2 What definitions apply to this part?
* * * * *
(k) Search means the process of looking for and retrieving records
or information responsive to a request. It includes page-by-page or
line-by-line identification of information within records and also
includes reasonable efforts to locate and retrieve information from
records maintained in electronic form or format.
* * * * *
4. Amend Sec. 1250.6 by revising paragraph (c) in the table to
read as follows:
Sec. 1250.6 Does FOIA cover all the records at NARA?
* * * * *
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If you want access to . . . Then access is governed by . . .
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* * * * * * *
(c) Records of Congress and Parts 1254 through 1260 of this
legislative branch agencies. chapter. FOIA does not apply to
these records.
* * * * * * *
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5. Revise Sec. 1250.8 to read as follows:
Sec. 1250.8 Does NARA provide access to all the executive branch
records housed at NARA facilities?
(a) NARA provides access to the following records:
(1) NARA operational records; and
(2) Archival records, including those Official Military Personnel
Files that have been transferred to the legal custody of NARA.
(b) NARA does not provide access to the following records:
(1) Other military and civilian records that remain in the legal
custody of the agencies that created them; access to such records is
governed by the FOIA, Privacy Act, and other access regulations of the
creating agencies. Military personnel records that are less than 62
years old from the date of the individual's separation from the
military and medical records of former members of the military are held
at NARA's National Personnel Records Center (NPRC), located in St.
Louis, Missouri. The NPRC also houses the records of former civilian
employees of the Federal government. The NPRC processes FOIA requests
for these records under authority delegated by the originating
agencies, not under the provisions of this part; and
(2) In our national and regional records centers, NARA stores
records that agencies no longer need for day-to-day business. These
records remain in the legal custody of the agencies that created them.
Access to these records is through the originating agency; NARA does
not process FOIA requests for these records.
6. Amend Sec. 1250.10 by revising paragraphs (a) and (b) to read
as follows:
Sec. 1250.10 Do I need to use FOIA to gain access to records at NARA?
(a) Most archival records held by NARA have no restrictions to
access and are available to the public for research without filing a
FOIA request. You may either visit a NARA facility as a researcher to
view and copy records or you may write to request copies of specific
records.
(b) If you seek access to archival records that are restricted and
not available to the public, you must file either a FOIA request or, if
the records are restricted because they contain classified national
security information, a mandatory declassification review request (see
part 1256 of this chapter for procedures to request access to
information) to gain access to these materials. See 36 CFR 1256.76 for
information on filing mandatory declassification review requests.
* * * * *
7. Amend Sec. 1250.12 by revising paragraph (c) to read as
follows:
Sec. 1250.12 What types of records are available in NARA's FOIA
Reading Room?
* * * * *
(c) Any of this material that was created after October 31, 1996,
will also be placed on NARA's Web site at http://www.archives.gov/foia/electronic-reading-room.html
.
* * * * *
8. Revise Sec. 1250.14 to read as follows:
Sec. 1250.14 If I do not use FOIA to request records, will NARA treat
my request differently?
If you request executive branch agency records that contain
restrictions under the provisions of the FOIA, you must submit a FOIA
request. Alternatively, you may submit a mandatory review request for
those records that are restricted because they contain national
security classified information. If you request records that are
publicly available we will respond to your request as promptly as
possible, whether you invoke FOIA or not.
9. Amend Sec. 1250.20 to revise paragraph (a) and add new
paragraph (d) to read as follows:
Sec. 1250.20 What do I include in my FOIA request?
* * * * *
(a) Describe the records you wish to access with enough detail for
NARA staff to find them with a reasonable amount of effort. The more
information you provide, the better possibility NARA has of finding the
records you requested. Information that helps us find records includes:
(1) The agencies, offices, or individuals involved; and
(2) The approximate date when the records were created.
* * * * *
(d) You may find NARA's ``Freedom of Information Act Reference
Guide'' helpful in making your request. The ``Guide'' is available on
our Web site at http://www.archives.gov/foia/foia-guide.html. You may
request a paper copy of the ``Guide'' by writing the NARA FOIA officer
at the address provided in 36 CFR 1250.22(d). For additional
information about the FOIA, you may refer directly to the statute (5
U.S.C. 552, as amended).
10. Add new paragraph (g) to Sec. 1250.22 to read as follows:
Sec. 1250.22 Where do I send my FOIA request?
* * * * *
(g) In accordance with the provisions of Executive Order 13392,
NARA has established FOIA Customer Service Centers and designated FOIA
Public Liaisons at all NARA facilities that process FOIA requests. If
you have questions about the processing of your FOIA request, you may
contact the designated FOIA Customer Service Center for the facility
processing your request. If you continue to have concerns after that
initial contact, you may wish to contact the designated FOIA Public
Liaison for the facility processing your request. A list of NARA's FOIA
Customer Service Centers and Public Liaisons can be found at http://www.archives.gov/foia/contacts.html.
You may request a paper copy of
the list by writing to the NARA FOIA Officer at the address provided in
paragraph (d) of this section.
11. Revise Sec. 1250.24 to read as follows:
Sec. 1250.24 Will you accept a FOIA request electronically?
Yes, you may submit a FOIA electronically to foia@nara.gov. The
body of the message must contain all of the information listed in Sec.
1250.20.
12. Amend Sec. 1250.26 by revising paragraphs (a) and (e) to read
as follows:
Sec. 1250.26 How quickly will NARA respond to my FOIA request?
(a) NARA will acknowledge all FOIA requests within 20 working days.
We will inform you if a response to your request may take longer than
the usual amount of time because of its complexity.
* * * * *
(e) If you have requested Presidential records and NARA grants you
access, we must inform the incumbent and former Presidents of our
intention to disclose information from those records. After receiving
the notice, and pursuant to the provisions of the current Executive
Order on the implementation of the Presidential Records Act, the
incumbent and former president have at least 90 days in which to invoke
Executive Privilege to deny access to the requested information. NARA
will send you an initial response to your FOIA request within 20
working days and inform you of the status of your request. However, the
final response to your FOIA request can only be made at the end of the
Presidential notification period.
* * * * *
13. Amend Sec. 1250.28 by revising the section heading and
paragraph (b) to read as follows:
Sec. 1250.28 Will NARA ever expedite the review of the records I
requested under the FOIA?
* * * * *
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(b) We can expedite only those requests, or segments of requests,
for records under our control. If another agency controls the records
you requested, NARA must refer the request to that agency for
processing. If your request is referred to another agency, we will
inform you and suggest that you seek expedited review from that agency.
Similarly, some records under our control contain information that
remains under the control of another agency, such as classified
national security information, which may require referral to the
classifying agency for declassification review. NARA cannot expedite
the review of national security classified records nor can we shorten
the Presidential notification period described in Sec. 1250.26(e).
14. Revise Sec. 1250.32 to read as follows:
Sec. 1250.32 How quickly will NARA process an expedited request?
We will respond to your request for expedited processing within 10
calendar days of our receipt of your request. If we grant your request,
the NARA office responsible for the review of the requested records
will process your request as quickly as possible. We will inform you if
we deny your request for expedited processing. If you decide to appeal
that denial, we will also expedite our review of your appeal.
15. Amend Sec. 1250.56 by revising paragraph (c)(1)to read as
follows:
Sec. 1250.56 Fee schedule for NARA operational records.
* * * * *
(c) Reproduction fees--(1) Self-service photocopying. At NARA
facilities with self-service photocopiers, you may make reproductions
of released paper documents. For reproductions made at NARA facilities
in the Washington, DC area the cost is 25 cents per page. For
reproductions made in NARA field locations the cost is 20 cents per
page.
16. Revise Sec. 1250.60 to read as follows:
Sec. 1250.60 How will NARA determine if I am eligible for a fee
waiver or fee reduction for NARA operational records?
(a) If you request a fee waiver, NARA considers furnishing the
requested records without charge or at a fee below those listed in
Sec. 1250.56. To be eligible for a fee waiver or reduction you must
explain:
(1) How the requested records pertain to the operations and
activities of the Federal Government. There must be a clear connection
between the identifiable operations or activities of the federal
government and the subject of your request.
(2) How the release will reveal meaningful information about
Federal Government activities that is not already publicly known.
(3) How the disclosure to you will advance the understanding of the
general public on the issue.
(4) Your expertise or understanding of the requested records.
(5) How you intend to disseminate the requested information to a
broad spectrum of the public.
(6) How disclosure will lead to a significantly greater
understanding of the Government by the public.
(b) After reviewing your request and determining that there is a
substantial public interest in release, NARA also reviews your request
to determine if the disclosure will further your commercial interests.
If it does, you are not eligible for a fee waiver or reduction.
17. Amend Sec. 1250.74 by revising paragraph (c) to read as
follows:
Sec. 1250.74 Where do I send my appeal?
* * * * *
(c) If you invoke FOIA and are denied access to national security
information accessioned into the National Archives of the United
States, you must appeal determinations that the records remain
classified for reasons of national security to the agency with
responsibility for declassifying that information. Only designated
officials of the originating agency or responsible agency, or by NARA
under a written authority, may allow access to accessioned records that
contain classified national security information. NARA provides you
with the necessary appeal information in those cases. You can find
additional information on access to national security classified
records at NARA in 36 CFR part 1256.
18. Revise Sec. 1250.76 to read as follows:
Sec. 1250.76 May I submit my FOIA appeal electronically?
Yes, you may submit a FOIA appeal to nara@foia.gov. The body of the
message must contain all of the information listed in Sec. 1250.72(b).
19. Revise Sec. 1250.78 to read as follows:
Sec. 1250.78 How does NARA handle appeals?
(a) NARA will respond to your appeal within 20 working days after
its receipt by the appropriate designated appeal official. If we
reverse or modify our initial decision, we will inform you in writing
and reprocess your request. If we do not change our initial decision,
our response to you will explain the reasons for our decision, any FOIA
exemptions that apply, and your right to judicial review of our
decision.
(b) An adverse determination by the Archivist or Deputy Archivist
is the final action by NARA.
(c) An appeal ordinarily will not be acted on if it becomes a
matter of FOIA litigation.
(d) If you wish to seek review by a court of any adverse
determination, you must first appeal it under this section.
20. Revise Sec. 1250.80 to read as follows:
Sec. 1250.80 How does a submitter identify records containing
confidential commercial information?
A submitter of confidential commercial information must use good-
faith efforts to designate, by appropriate markings, either at the time
of submission or at a reasonable time thereafter, any portions of its
submission that it considers to be protected from disclosure under
exemption (b)(4) of the FOIA. These designations will expire 10 years
after the date of the submission unless the submitter requests, and
provides justification for, a longer designation period.
21. Amend Sec. 1250.82 by revising the introductory paragraph and
paragraphs (a) and (b); redesignating paragraphs (c) through (e) as
paragraphs (e) through (g) respectively; and adding new paragraphs (c)
and (d) to read as follows:
Sec. 1250.82 How will NARA handle a FOIA request for confidential
commercial information?
If NARA receives a FOIA request for records containing confidential
commercial information or for records that we believe may contain
confidential commercial information, we will follow these procedures:
(a) If, after reviewing the records in response to a FOIA request,
we believe that the records may be released, we will make reasonable
efforts to inform the original submitter of the confidential commercial
information of our decision. The notice to the submitter will describe
the confidential commercial information requested or include copies of
the requested records.
(b) When the request is for information from a single or small
number of submitters, NARA will send a notice via registered mail to
the submitter's last known address. Our notice to the submitter will
include a copy of the FOIA request and will tell the submitter the time
limits and procedures for objecting to the release of the requested
material.
(c) When the request is for information from multiple submitters,
[[Page 51747]]
notification may be made by posting on our Web site or publishing the
notice in a place reasonably likely to inform the submitters of the
proposed disclosure.
(d) Submitters have 10 working days from the receipt of our notice
or the date of posting or publishing the notice to object to the
release and to explain the basis for the objection. The NARA FOIA
Officer may extend this period as appropriate.
* * * * *
22. Amend Sec. 1250.84 by revising the section heading and
revising paragraph (c) to read as follows:
Sec. 1250.84 How do you serve a subpoena or other legal demand for
NARA operational records?
* * * * *
(c) Regulations concerning service of a subpoena duces tecum or
other legal demand for archival records accessioned into the National
Archives of the United States, records of other agencies in the custody
of the Federal records centers, and donated historical materials are
located at 36 CFR 1256.4.
Dated: September 4, 2007.
Allen Weinstein,
Archivist of the United States.
[FR Doc. E7-17913 Filed 9-10-07; 8:45 am]
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