[Federal Register Volume 59, Number 58 (Friday, March 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-7187]
[[Page Unknown]]
[Federal Register: March 25, 1994]
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NATIONAL ARCHIVES AND RECORDS ADMINISTRATION
36 CFR Part 1275
RIN 3095-AA59
Preservation and Protection of and Access to the Presidential
Historical Materials of the Nixon Administration; Amendment of Public
Access Regulations
AGENCY: National Archives and Records Administration.
ACTION: Proposed rule.
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SUMMARY: The National Archives and Records Administration proposes to
amend regulations on procedures for preserving and protecting the
Presidential historical materials of the Nixon administration and for
providing public access to these materials. The Archivist of the United
States is required by law to issue these regulations, and may amend
them from time to time. The proposed regulatory amendments would
clarify various terms that appear in 36 CFR part 1275; clarify the
nature of the archival processing being conducted on the Nixon
Presidential materials; and provide for the reproduction of the Nixon
White House tape recordings. The proposed amendments to 36 CFR part
1275 would affect former President Nixon and other individuals whose
names appear in the materials, as well as members of the general public
interested in conducting research regarding those materials.
DATES: All comments must be received by close of business May 24, 1994.
ADDRESSES: All comments must be submitted in writing to the Policy and
Program Analysis Division (NAA), National Archives and Records
Administration, The National Archives at College Park, 8601 Adelphi
Road, College Park, MD 20740-6001.
FOR FURTHER INFORMATION CONTACT: Mary Ann Hadyka or Nancy Allard at
(301) 713-6730.
SUPPLEMENTARY INFORMATION: The current regulations were required to be
promulgated because the previous regulations were ruled invalid by the
United States District Court for the District of Columbia in Allen v.
Carmen, 578 F. Supp. 951 (D.D.C. 1983); the case held that the previous
regulations were tainted by the legislative veto provision of the
Presidential Recordings and Materials Preservation Act (``PRMPA''), 44
U.S.C. 2111 note (1974). The current regulations were published on
February 28, 1986, 51 FR 7228, and became effective on June 26, 1986.
On April 12, 1988, the U.S. Court of Appeals for the District of
Columbia Circuit upheld the District Court's approval of the
regulations promulgated by the Archivist on June 26, 1986. Public
Citizen v. Burke, 843 F.2d 1473 (D.C. Cir. 1988).
Since promulgation of the current regulations, the National
Archives and Records Administration has continued to prepare the Nixon
Presidential materials for public access. Nixon Presidential historical
material falling into several categories has been released since 1986.
One category consists of selected subject categories and Staff Member
and Office Files from the Nixon White House Central Files, which has
been released (subject to the withholding of restricted material) in
relatively small portions over time. Most of this material from the
White House Central Files documents the President's constitutional and
statutory duties, and the release of that material has been largely
uneventful. 51 FR 32700 (Sept. 15, 1986), 53 FR 1870 (Jan. 22, 1988),
53 FR 40976 and 41441 (Oct. 19, 1988), 54 FR 24054 (June 5, 1989), 54
FR 43878 (Oct. 27, 1989), 56 FR 30774 (July 5, 1991), 57 FR 417 (Jan.
6, 1992), 57 FR 23602 (June 4, 1992), 58 FR 17433 (April 2, 1993), and
58 FR 31548 (June 3, 1993). In addition, the National Archives and
Records Administration has released the Nixon White House Photo
Collection, 44 FR 57221 (Oct. 4, 1979); Nixon White House
Communications Agency Audio and Video Files, 51 FR 26782 (July 25,
1986); Nixon White House selected audiovisual materials, 53 FR 40976
(October 19, 1988); and Nixon Presidential historical materials
relating to POW/MIA matters, 58 FR 52121 (Oct. 6, 1993).
In 1987, a large series of materials known as the White House
Special Files was released. 52 FR 3068 (Jan. 30, 1987). That file
consists of many thousands of pages of sensitive documents, a high
percentage of which document abuses of power. In addition to the
withholding of material that the National Archives and Records
Administration determined to be subject to restriction under the
current regulations, the National Archives and Records Administration
withheld material from the White House Special Files which it deemed
releasable, but which former President Nixon claimed was subject to
restriction or that was private or personal and therefore returnable.
These contested documents are currently undergoing further review by
the Presidential Materials Review Board in accordance with the
provisions of the current PRMPA regulations.
On June 4, 1991, the National Archives and Records Administration
released a group of Nixon White House tape recordings. The release
consisted of approximately 60 hours of tape recordings previously
subpoenaed by the Watergate Special Prosecution Force (``WSPF'') during
its investigations, as well as tape transcripts located among the
records of the WSPF. Approximately 12\1/2\ hours of these tape
recordings had previously been played in open court in United States v.
Connelly and United States v. Mitchell and released, 45 FR 26823 (April
21, 1980); however, the balance of approximately 47\1/2\ hours had not
been released previously. This 1991 release of tape recordings and
accompanying transcripts, processed in accordance with the decision of
the U.S. Court of Appeals for the District of Columbia Circuit in
Ricchio v. Klein, 773 F.2d 1389 (D.C. Cir. 1985) was not challenged by
any party in federal court. 56 FR 12400 (March 25, 1991).
The National Archives and Records Administration decided that the
best way to proceed with the release of the body of the 4,000 hours of
Nixon White House tape recordings was to release Watergate-related
segments of the tape recordings in small monthly groupings on an
ongoing basis. The first of these releases was noticed in the Federal
Register on April 2, 1993, 58 FR 17433, and took place on May 17, 1993,
without any objections from affected parties.
The second and third releases were noticed in the Federal Register
on June 3, 1993, and July 2, 1993, to take place on July 15, 1993, and
August 26, 1993, respectively. 58 FR 31548 (June 3, 1993); 58 FR 35983
(July 2, 1993). Former President Nixon raised certain procedural
objections to these proposed releases. When the National Archives and
Records Administration rejected former President Nixon's contention
that those releases should not go forward, he sought relief in the
courts. On August 9, 1993, Judge Royce Lamberth of the United States
District Court for the District of Columbia issued an order
preliminarily enjoining the National Archives and Records
Administration from carrying out the releases of allegedly Watergate-
related tape recordings scheduled for August 13 and 26, 1993, pending
(1) Segregation and return to former President Nixon of all private or
personal conversations on the tape recordings; and (2) processing of
the tape recordings before release to the public as a single ``integral
file segment.'' The Court's ruling relied on the terms of the current
PRMPA regulations, and on the terms of a draft processing manual which
the National Archives and Records Administration's Nixon Presidential
Materials Project (``Nixon Project'') has used in preparing Nixon
Presidential materials for public disclosure.
In several respects, which will be discussed in greater detail
below, the current regulations and the Nixon Project draft processing
manual, especially as interpreted preliminarily by the court in the
context of the preliminary injunction, do not reflect what the National
Archives and Records Administration has come to recognize as the most
appropriate fashion in which to process and release the Nixon White
House tape recordings. Therefore, the National Archives and Records
Administration proposes certain amendments to the current regulations
(which will have the effect of altering the draft processing manual) to
balance the National Archives and Records Administration's
responsibility to provide public access to the tape recordings,
including those segments relating to Watergate, at the earliest
reasonable date, with the need to protect the rights of former
President Nixon and other affected parties.
General
Section 1275.16(b) is amended to make clear that no physical
portion of the original tape recordings shall constitute private or
personal material, and therefore no portion of those original
recordings is to be returned to former President Nixon or to any other
affected party. The PRMPA requires the Archivist to maintain those
original tape recordings, whether or not they contain personal
conversations; as a result, the amendment to Sec. 1275.16(b) states
that the original tape recordings constitute Presidential historical
materials.
Section 1275.16(e) clarifies the nomenclature used throughout the
regulations and distinguishes between ``Archivist,'' defined as the
Archivist of the United States or his or her designated agent, and
``archivist,'' as defined in the current subsection, i.e., as an
employee of the National Archives and Records Administration, who, by
education or experience, is specially trained in archival techniques.
Section 1275.16(g) clarifies the definition of ``archival
processing'' to ensure that nothing in the subsection creates any
obligation on the part of the Archivist to perform any one particular
archival processing task listed in the subsection. In so doing, the
National Archives and Records Administration intends to make clear that
transcripts of the tape recordings need not be made. Although the
current regulations indicate that the processing of the Nixon White
House materials may undergo one or more of several archival processing
phases, including the preparation of transcripts, the National Archives
and Records Administration does not believe that the regulations
intended to obligate the processing archivists to transcribe all 4,000
hours of tape recordings before releasing them to the public. Indeed,
the National Archives and Records Administration has estimated that it
would take an extraordinary amount of staff time to accomplish such a
task. In addition, the definition of ``archival processing'' in
Sec. 1275.16(g) has been expanded to reflect the archival processing of
the Nixon Presidential materials that actually has been taking place.
Section 1275.20 is amended to be consistent with the amended
definition of ``Archivist'' set forth in amended Sec. 1275.16(e) above.
Section 1275.42(a) is amended to clarify the manner in which the
National Archives and Records Administration intends to proceed with
the archival processing and release of the tape recordings and all
other non-tape Nixon Presidential materials. The current regulations
provide that Nixon White House materials will be disclosed to the
public in ``integral file segments.'' The concept of integral file
segment, although not defined anywhere in the current regulations, is
based on standard archival practice, and ordinarily refers to an
archival determination that a particular group of processed documents
constitutes an intelligible and complete unit for purposes of
historical research. Archival determinations of integral file segments
may vary significantly both in the quantity of inclusive materials and
in the qualitative factors used in determining the components of a
particular file segment (e.g., subject matter, author, time frame,
etc.).
The Nixon Project draft processing manual indicates that the
National Archives and Records Administration intended to process the
entire 4,000 hours of tape recordings as one integral file segment. In
support of his motion for a preliminary injunction that was issued on
August 9, 1993, former President Nixon argued that the draft processing
manual, when read in conjunction with the current regulations,
prohibits the National Archives and Records Administration from
releasing any portion of the tape recordings before the remaining body
of the non-restricted tape recordings (other than the approximately 60
hours of WSPF tape segments previously released) is processed and
released. Former President Nixon's position is not supported by the
realities of processing the materials for public access nor, aside from
the provisions of the current regulations and draft processing manual
hereby proposed for amendment, supported legally, since it is contrary
to other statutory and regulatory obligations of the National Archives
and Records Administration.
First, waiting until all 4,000 hours of tape have been reviewed and
prepared for release would seriously undermine the statutory and
regulatory obligation of the National Archives and Records
Administration to give the public access to Watergate-related material
at the earliest reasonable date. Second, releasing or restricting all
4,000 hours at once would be inconsistent with current Sec. 1275.42(b),
which requires the National Archives and Records Administration to
publish a Federal Register notice of a proposed opening of materials.
The purpose of that notice is to allow interested parties the
opportunity to review--and object as appropriate--to those materials
which are being proposed for opening. Under current Sec. 1275.44(a),
anyone who wishes to object to a proposed opening must do so within
thirty (30) days of the notice. In light of the fact that the
collection of tape recordings consists of some 4,000 hours (minus
copies of approximately 775 hours of tape segments previously
identified as private or personal or room noise and offered for return
to former President Nixon), it would be impossible for any one
individual to review all portions of the tape recordings proposed for
opening within the allotted thirty-day period if all of the
unrestricted tape recordings were to be opened at the same time.
To address these concerns, the proposed amendments to
Sec. 1275.42(a) would allow the release of the tape recordings in
groupings which would permit the opening of reasonable portions of the
tape recordings without the need for all 4,000 hours to be released at
once.
In addition, amended Sec. 1275.42(a) provides that the Archivist is
free to release segments of the tape recordings that are not private or
personal prior to transferring private or personal material in
accordance with current Sec. 1275.48. This amendment would allow the
National Archives and Records Administration to continue processing and
opening Watergate-related segments of the tape recordings at the
earliest reasonable date, in accordance with its statutory and
regulatory responsibility, before all private or personal conversations
are culled out of copies of the remaining parts of the tape recordings
and returned to former President Nixon or other affected parties. Given
that the release of non-private conversations would not violate an
individual's right to keep private conversations confidential, this
amendment is entirely appropriate.
Sections 1275.46(d) and 1275.46(f) are amended to be consistent
with the amended definition of ``Archivist'' set forth in amended
Sec. 1275.16(e).
Section 1275.48(a) is amended to be consistent with the amendment
to Sec. 1275.16(b), to make clear that no portion of the original tape
recordings is to be returned to former President Nixon or to any other
affected party. The PRMPA requires the Archivist to maintain those
original tape recordings, whether or not they contain private or
personal conversations. The amendment to this subsection would
eliminate any doubt that the Archivist is to retain the original tape
recordings.
Section 1275.64 is amended to include a provision allowing for the
reproduction of tape recordings opened to the public. This amendment is
fully consistent with the practice of the National Archives and Records
Administration with regard to other tape recordings. The issue of
whether to provide copies of tape recordings has been considered by the
National Archives and Records Administration on several occasions. At
the time the current regulations were being written, the National
Archives and Records Administration decided to maintain its prior
position of not allowing copies of tape recordings, although it
specifically stated that this position would be reviewed periodically.
51 FR 7228 (Feb. 28, 1986). After careful reconsideration of its
position, the National Archives and Records Administration has decided
to allow the copying of released tape recordings. In so doing, the
National Archives and Records Administration relies on the guidance
from the Supreme Court in Nixon v. Warner Communications, Inc., 435
U.S. 589, 606-08 (1978), wherein the Supreme Court recognized the
prerogative of the National Archives and Records Service (the
predecessor to the National Archives and Records Administration) to
consider providing the public with an opportunity to obtain such
copies. In light of the Supreme Court's decision in Warner
Communications, and because such copying would seem to be in the public
interest generally as well as in keeping with the spirit of the PRMPA,
the National Archives and Records Administration is amending the
regulations to allow for such copying.
Section 1275.64(b) is also amended to be consistent with the
nomenclature distinction between ``Archivist'' and ``archivist'' as set
forth in Sec. 1275.16(e).
Section 1275.66(a) is amended to accommodate two different
possibilities with respect to the reproduction of released Nixon
materials other than tape recordings: Copying by researchers on self-
service government copiers; and copying by contract vendors at the
request of the National Archives and Records Administration. This
change reflects not only current practice at the Nixon Project, but
common practice at other presidential libraries within the National
Archives and Records Administration system as well as NARA regulations
regarding copying of archival documents.
Sections 1275.70(a) and 1275.70(b) are amended to be consistent
with the nomenclature distinction between ``Archivist'' and
``archivist'' as set forth in Sec. 1275.16(e) above.
Typographical corrections are made to Sec. 1275.46(i) and
Sec. 1275.56.
The proposed amendments to 36 CFR part 1275 are not a significant
regulatory action for purposes of Executive Order 12866 of September
30, 1993. As required by the Regulatory Flexibility Act, it is hereby
certified that these proposed regulatory amendments will not have a
significant impact on small business entities.
List of Subjects in 36 CFR Part 1275
Archives and records.
For the reasons set forth in the preamble above, the National
Archives and Records Administration proposes to amend part 1275 of
title 36 of the Code of Federal Regulations as follows:
PART 1275--PRESERVATION AND PROTECTION OF AND ACCESS TO THE
PRESIDENTIAL HISTORICAL MATERIALS OF THE NIXON ADMINISTRATION
1. The authority citation for part 1275 continues to read as
follows:
Authority: Sec. 102(a) of the National Archives and Records
Administration Act of 1984, Pub.L. No. 98-497; 44 U.S.C. 2104; and
secs. 103 and 104 of the Presidential Recordings and Materials
Preservation Act, 88 Stat. 1695; 44 U.S.C. 2111 note.
2. Section 1275.16 is amended by revising paragraphs (b), (e), and
(g) to read as follows:
Sec. 1275.16 Definitions.
* * * * *
(b) Private or personal materials. The term ``private or personal
materials'' shall mean those papers and other documentary or
commemorative materials in any physical form relating solely to a
person's family or other non-governmental activities, including private
political associations, and having no connection with his
constitutional or statutory powers or duties as President or as a
member of the President's staff. No physical part of any original tape
recording to which reference is made in Sec. 1275.64 shall constitute
private or personal materials. The original tape recordings in their
respective entireties shall constitute Presidential historical
materials.
* * * * *
(e) Archivist. The term ``Archivist'' shall mean the Archivist of
the United States or his designated agent. The term ``archivist'' shall
mean an employee of the National Archives and Records Administration
who, by education or experience, is specially trained in archival
science.
* * * * *
(g) Archival processing. The term ``archival processing'' may
include the following general acts performed by archivists with respect
to the Presidential historical materials: Shelving boxes of documents
in chronological, alphabetical, numerical or other sequence; surveying
and developing a location register and cross-index of the boxes;
arranging materials; refoldering and reboxing the documents and
affixing labels; producing finding aids such as folder title lists,
cross-indexes, subject lists, scope and content notes, biographical
data, and series descriptions; rewinding, duplicating and preserving
the original tape recordings; enhancing the tape recordings on which
the conversations are wholly or partially unintelligible so that
extraneous noises may be filtered out; producing general subject matter
logs of the tape recordings; reproducing and transcribing tape
recordings; reviewing the materials to identify items that appear
subject to restriction; identifying items in poor physical condition
and assuring their preservation; identifying materials requiring
further processing; and preparation for public access of all materials
which are not subject to restriction.
* * * * *
3. Section 1275.20 is revised to read as follows:
Sec. 1275.20 Responsibility.
The Archivist is responsible for the preservation and protection of
the Presidential historical materials.
4. Section 1275.42 is amended by revising paragraph (a) to read as
follows:
Sec. 1275.42 Processing period; notice of proposed opening.
(a)(1) The archivists will conduct archival processing of those
materials other than tape recordings to prepare them for public access
in accordance with the provisions set forth in this section. In
conducting the archival processing of those materials, the archivists
will restrict those portions of the materials pursuant to Secs. 1275.50
and 1275.52, and will segregate private or personal materials for
transfer in accordance with Sec. 1275.48. All materials other than tape
recordings to which reference is made in Sec. 1275.64 will be prepared
for public access and released subject to restrictions or outstanding
claims or petitions seeking such restrictions.
(2) The archivists will conduct archival processing of the tape
recordings to prepare them for public access in accordance with the
provisions set forth in this section. In conducting the archival
processing of the tape recordings, the archivists will restrict those
segments of the tape recordings pursuant to Secs. 1275.50 and 1275.52,
and will segregate additional private or personal materials for
transfer in accordance with Sec. 1275.48. The tape segments which
consist of Watergate materials, as defined in Sec. 1275.16(c), will be
given priority processing by the archivists and will be prepared for
public access and released as the Archivist determines to be
appropriate. After the tape segments which consist of abuse of power
materials have been released, the archivists will conduct archival
processing of the remainder of the tape recordings in reasonable
chronological segments beginning with February 1971 and ending with
July 1973. The remaining tape segments will be prepared for public
access and released as the Archivist determines to be appropriate.
Nothing in this subsection prohibits the Archivist from preparing for
public access and releasing segments of the tape recordings prior to
transferring private or personal materials pursuant to Sec. 1275.48.
* * * * *
Sec. 1275.46 [Amended]
5. Section 1275.46 is amended by removing in paragraph (d) and
paragraph (f), wherever it appears, the term ``Archivist of the United
States'' and adding in its place the term ``Archivist'', and by
removing in paragraph (i)(2) the term ``reasonbly'' and adding in its
place the term ``reasonably''.
6. Section 1275.48 is amended by revising paragraph (a) to read as
follows:
Sec. 1275.48 Transfer of materials.
(a) The Archivist will transfer sole custody and use of those
materials determined to be private or personal, or to be neither
related to abuses of governmental power nor otherwise of general
historical significance, to former President Nixon or his heirs or,
when appropriate and after notifying Mr. Nixon or his designated agent,
to the former staff member have primary proprietary or commemorative
interest in the materials. No physical part of any original tape
recordings to which reference is made in Sec. 1275.64 shall be
transferred to former President Nixon or his heirs, or to the former
staff members of former President Nixon, under this section.
* * * * *
Sec. 1275.56 [Amended]
7. Section 1275.56 is amended by removing the term
``adminsitrative'' and replacing it with the term ``administrative''.
8. Section 1275.64 is amended by removing in paragraph (b) the term
``Archivist'' and replacing it with the term ``archivist'', and by
adding new paragraph (d) to read as follows:
Sec. 1275.64 Reproduction of tape recordings of Presidential
conversations.
* * * * *
(d) The reproduction for researchers of the reference copies of the
tape recordings described in paragraph (a) of this section is
permitted. Such copying will be controlled and provided by the National
Archives and Records Administration. The fees for the reproduction of
the tape recordings under this section shall be those prescribed in the
schedule set forth in part 1258 of this chapter or pertinent successor
regulation, as that schedule is amended from time to time.
9. Section 1275.66 is amended by revising paragraph (a) to read as
follows:
Sec. 1275.66 Reproduction and authentication of other materials.
(a) Copying of materials other than tape recordings described in
Sec. 1275.64 may be done by the National Archives and Records
Administration or by researchers using self-service copiers. Such self-
service copying shall be done in accordance with National Archives and
Records Administration policy on self-service copying set forth at 36
CFR 1254.71, to ensure that such copying will not harm the materials or
disrupt reference activities.
* * * * *
Sec. 1275.70 [Amended]
10. Section 1275.70 is amended by removing in paragraph (a) the
term ``an Archivist'' and adding in its place the term ``an archivist''
and by removing in paragraph (b) the term ``Archivists'' and adding in
its place the term ``archivists''.
Dated: March 22, 1994.
Trudy Huskamp Peterson,
Acting Archivist of the United States.
[FR Doc. 94-7187 Filed 3-24-94; 8:45 am]
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