04-22051. Presidential Records Act Procedures

AGENCY:

National Archives and Records Administration (NARA).

ACTION:

Proposed rule.

SUMMARY:

In response to a petition for rulemaking, NARA proposes to amend our rules concerning Presidential records to lengthen the time from 10 working days to 35 calendar days to appeal denial of access. This proposed rule will affect the public.

DATES:

Submit comments on or before November 30, 2004.

ADDRESSES:

NARA invites interested persons to submit comments on this proposed rule. Please include “Attn: 3095-AB40” and your name and mailing address in your comments. Comments may be submitted by any of the following methods:

• Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting comments.
• E-Mail: Send comments to [e-mail]. If you do not receive a confirmation that we have received your e-mail message, contact Jennifer Davis Heaps at 301-837-1850.
• Fax: Submit comments by facsimile transmission to 301-837-0319.
• Mail: Send comments to Regulations Comments Desk (NPOL), Room 4100, Policy and Communications 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:

Jennifer Davis Heaps at 301-837-1801.

SUPPLEMENTARY INFORMATION:

On June 4, 2004, NARA received a petition to extend the timeframe in which a person may appeal the denial of a request for access to Presidential records made under the Presidential Records Act (44 U.S.C. 2201-2207). The petitioners stated that the current timeframe of 10 working days from the date of NARA's denial letter was not long enough to allow requesters to respond and that this limited timeframe served to discourage people from appealing denial decisions. The petitioners requested that the timeframe be extended to 35 calendar days to match the timeframe NARA allows to appeal denials for access to records made under the provisions of the Freedom of Information Act (FOIA) (see 36 CFR 1250.72 (a)) and the Privacy Act (see 36 CFR 1202.56 (a)).

To conform to the requirements under the FOIA, the proposed change also requires that NARA must receive the written appeal within 35 calendar days of the date of NARA's denial letter, instead of the requester filing an appeal no later than 10 working days after receiving NARA's denial. The proposed change is more equitable, as the time in which a requester may receive NARA's denial may fluctuate. We agree with the petitioners that the change from 10 working days to 35 calendar days, corresponding with the length of time to make appeals under the FOIA, will be a service to researchers.

We also propose to change the appeal official to the appropriate Presidential library director and to have the director respond to the appeal within 30 working days.

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 (OMB). As required by the Regulatory Flexibility Act, it is hereby certified that this proposed rule will not have a significant impact on a substantial number of small entities because this rule applies to individual researchers. This proposed rule does not have any federalism implications.

List of Subjects in 36 CFR Part 1270

• Archives and records

For the reasons set forth in the preamble, NARA proposes to amend part 1270 of title 36, Code of Federal Regulations, as follows:

PART 1270—PRESIDENTIAL RECORDS

1. The authority citation for part 1270 is revised to read as follows:

Authority: 44 U.S.C. 2201-2207.

2. Amend § 1270.42 by revising paragraphs (a), (b), and (d) to read as follows:

Subpart D—Access to Presidential Records

§ 1270.42

Denial of access to public; right to appeal.

(a) Any person denied access to a Presidential record (hereinafter the requester) because of a determination that the record or a reasonable segregable portion of the record was (1) properly restricted under 44 U.S.C. 2204(a), and (2) not placed in the public domain by the former President or his agent, may file an administrative appeal with the appropriate Presidential library director at the address cited in part 1253 of this chapter.

(b) All appeals must be received by NARA within 35 calendar days of the date of NARA's denial letter.

* * * * *

(d) Upon receipt of an appeal, the appropriate Presidential library director has 30 working days from the date an appeal is received to consider the appeal and respond in writing to the requester. The director's response must state whether or not the Presidential records requested are to be released and the basis for this determination. The director's decision to withhold release of Presidential records is final and not subject to judicial review.

Dated: September 27, 2004.

John W. Carlin,

Archivist of the United States.