81 FR 95542 - Presidential Records

NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

Federal Register Volume 81, Issue 249 (December 28, 2016)

Page Range		95542-95547
FR Document		2016-31011
We are proposing to revise this regulation to reflect changes instituted by the Presidential and Federal Records Acts Amendments of 2014 (2014 Amendments). These Amendments in part added new requirements to the Presidential Records Act (PRA), which went into effect in 2014 and remain in effect, even without this proposed regulatory revision. The proposed changes make clear that, when we maintain electronic Presidential records on behalf of the President before the President's term of office expires, the President retains exclusive control over the records. In addition, the proposed changes establish procedures that we will follow to notify an incumbent President and former President when we propose to disclose Presidential records to the public, Congress, the courts, or the incumbent President under the provisions of the PRA allowing for access to Presidential records otherwise subject to restrictions. We began the regulatory revision process in response to the 2014 Amendments and issue this updated regulation to reduce confusion about access to Presidential records in light of these recent changes in the law.
Federal Register, Volume 81 Issue 249 (Wednesday, December 28, 2016)
[Federal Register Volume 81, Number 249 (Wednesday, December 28, 2016)]
[Proposed Rules]
[Pages 95542-95547]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-31011]


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NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

36 CFR Part 1270

[FDMS No. NARA-16-0005; NARA-2017-011]
RIN 3095-AB87


Presidential Records

AGENCY: National Archives and Records Administration (NARA).

ACTION: Proposed rule.

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SUMMARY: We are proposing to revise this regulation to reflect changes 
instituted by the Presidential and Federal Records Acts Amendments of 
2014 (2014 Amendments). These Amendments in part added new requirements 
to the Presidential Records Act (PRA), which went into effect in 2014 
and remain in effect, even without this proposed regulatory revision. 
The proposed changes make clear that, when we maintain electronic 
Presidential records on behalf of the President before the President's 
term of office expires, the President retains exclusive control over 
the records. In addition, the proposed changes establish procedures 
that we will follow to notify an incumbent President and former 
President when we propose to disclose Presidential records to the 
public, Congress, the courts, or the incumbent President under the 
provisions of the PRA allowing for access to Presidential records 
otherwise subject to restrictions. We began the regulatory revision 
process in response to the 2014 Amendments and issue this updated 
regulation to reduce confusion about access to Presidential records in 
light of these recent changes in the law.

DATES: Submit comments by January 27, 2017.

ADDRESSES: You may submit comments, identified by RIN 3095-AB87, by any 
of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Email: [email protected]. Include RIN 3095-AB87 
in the subject line of the message.
     Mail (for paper, disk, or CD-ROM submissions. Include RIN 
3095-AB87 on the submission): Regulations Comments Desk (External 
Policy Program, Strategy and Performance Division (SP)); Suite 4100; 
National Archives and Records Administration; 8601 Adelphi Road; 
College Park, MD 20740-6001
     Hand delivery or courier: Deliver comments to the front 
desk at the address above.
    Instructions: You must include on all submissions the Regulatory 
Information Number (RIN) for this rulemaking (RIN 3095-AB87) and NARA's 
name. We may publish any comments we receive without changes, including 
any personal information you provide.

FOR FURTHER INFORMATION CONTACT: Kimberly Keravuori, by email at 
[email protected], or by telephone at 301-837-3151.

SUPPLEMENTARY INFORMATION: 

Background

    We are revising our regulations governing Presidential and Vice 
Presidential records to incorporate changes made by the Presidential 
and Federal Records Act Amendments of 2014, (``2014 Amendments,'' Pub. 
L. 113-187, 128 Stat. 1017).
    The 2014 Amendments made several changes to the Presidential 
Records Act (44 U.S.C. 2201-2209). The most substantial change was 
codifying the procedures by which we notify former and incumbent 
Presidents so that they may consider whether to restrict public access 
to Presidential records of former Presidents that are in our legal 
custody. This privilege review process was previously controlled by an 
Executive Order, subject to change by any sitting administration. 
Because Congress codified the privilege review process for public 
disclosures in the 2014 Amendments, we are revising the regulation to 
set out processes for giving notice in such cases, and for former or 
incumbent Presidents to consider whether to assert a constitutionally 
based privilege.
    The 2014 Amendments did not codify the provisions of the Executive 
Order allowing for notification to the former and incumbent President 
when Congress, the courts, or the incumbent President (instead of the 
public) makes the request for records subject to access restrictions. 
To ensure that the former and incumbent Presidents are given notice and 
an opportunity to consider whether to assert a constitutionally based 
privilege in those circumstances as well, we are revising our 
regulation to set out procedures we follow prior to disclosing records 
under the PRA's exceptions to restricted access, which

[[Page 95543]]

are similar to the procedures we follow when we propose to make 
disclosures to the public.
    The 2014 Amendments also authorized an incumbent President to 
transfer physical custody of their permanent electronic Presidential 
records to NARA, while leaving legal custody with the President, and 
some other more minor changes. We are therefore also revising the 
regulation to reflect these changes (the regulatory changes are 
identified in more detail below).
    We are also making a small revision to the regulation to be 
consistent with 2016 amendments to the Freedom of Information Act, and 
are revising the wording and organization of the regulation to make it 
easier to follow, in compliance with provisions of the Plain Writing 
Act of 2010.

Substantive Changes in the Regulation

Subpart A

    Sec.  1270.1, Scope: Removed ``Nothing in these regulations is 
intended to govern procedures for assertion of, or response to, any 
constitutionally based privilege which may be available to an incumbent 
or former President.'' The 2014 Amendments at 44 U.S.C. 2208 now 
include the President's authority to assert a constitutionally based 
privilege and those provisions have been added to this regulation.
    Sec.  1270.2, Application: Removed ``These regulations apply to all 
Presidential records created during a term of office of the President 
beginning on or after January 20, 1981.'' This is already included 
elsewhere in the regulation and thus was redundant.
    Changed from stating that all provisions in the regulation apply to 
the Vice President and Vice Presidential records, to stating that all 
provisions except Sec. Sec.  1270.46 and 1270.48 apply to the Vice 
President as to the President, because those sections have now been 
revised due to the 2014 Amendments at 44 U.S.C. 2208 to cover only 
Presidential authorities.
    Sec.  1270.4, Definitions: Removed ``documentary material, personal 
records, President, Presidential archival depository, Vice Presidential 
records, filed'' definitions because they are terms not used in the 
regulation any longer or the definitions were identical to the statute 
and not needed.

Subpart B

    Changed the title of the subpart from ``Handling Presidential 
records upon death or disability'' to ``Custody and control of 
Presidential records'' and revised the subpart to add a provision on 
``Presidential records in the Archivist's physical custody'' (Sec.  
1270.20), because the President may request that the Archivist maintain 
physical custody of Presidential records (now, under the 2014 
Amendments at 44 U.S.C. 2203(f), also including electronic records) 
during the President's term of office. However, the President remains 
responsible for control and access to these records until the end of 
the President's term of office.

Subpart C

    Sec.  1270.32, Disposal of Presidential records in the Archivist's 
custody: Revised to require a preliminary notice of proposed disposal 
with a 45-day public comment period, in addition to the final notice 
published 60 days prior to the disposal, as established in the 2014 
Amendments at 44 U.S.C. 2203(g)(3).

Subpart D

    Added Sec.  1270.38 to clarify when public access to Presidential 
records may occur based on requirements in 44 U.S.C. 2204, to make it 
easier for readers to understand the context in which the subsequent 
sections on restricting access occur.
    Sec.  1270.42(b), Appealing restricted access: Expanded the time in 
which a person denied access due to a Presidential restriction may file 
an appeal, from 35 days after receiving NARA's denial letter to 90 
days, to be consistent with the 2016 Amendments to the Freedom of 
Information Act, at 5 U.S.C. 552(a)(6)(i)(III)(aa).
    Sec.  1270.44, Exceptions to restricted access: Under the 2014 
Amendments at 44 U.S.C. 2204(f), added a provision at (a)(4) that the 
Archivist will not release original Presidential records to a 
President's designated representative who has been convicted of a crime 
that involves misuse or misappropriation of NARA records.
    Added provisions at (d) through (g) allowing for notification of a 
request for records to the former and incumbent President so that they 
may consider whether to assert a constitutionally based privilege. 
These provisions are similar to new section 1270.48, which, in accord 
with the 2014 Amendments at 44 U.S.C. 2208, covers releasing records to 
the public and claiming privilege against disclosure.
    Sec.  1270.46, Notice of intent to disclose Presidential records to 
the public: In accord with the 2014 Amendments at 44 U.S.C. 2208(2)(B), 
added detail in subsection (b) about what will be included in the 
notice to the public (such as the NARA case number and the end date of 
the 60-day working period set out in Sec.  1270.48 for the President to 
assert a constitutional privilege).
    Sec.  1270.48, Releasing records to the public and claiming 
privilege against disclosure: Revised to include procedures, now 
codified in the 2014 Amendments, by which Presidents may restrict 
public access to Presidential records of former Presidents that are in 
NARA's legal custody through a constitutionally based privilege against 
disclosure. This new section parallels new provisions in 44 U.S.C. 
2208, including a 60-day notice period in which a President may assert 
a constitutionally based claim of privilege against disclosure.
    The regulation has also been revised throughout with non-
substantive edits and reorganization to incorporate Plain Writing Act 
practices and make it clearer and easier to read.

Regulatory Analysis

Review Under Executive Orders 12866 and 13563

    Executive Order 12866, Regulatory Planning and Review, 58 FR 51735 
(September 30, 1993), and Executive Order 13563, Improving Regulation 
and Regulation Review, 76 FR 23821 (January 18, 2011), direct agencies 
to assess all costs and benefits of available regulatory alternatives 
and, if regulation is necessary, to select regulatory approaches that 
maximize net benefits (including potential economic, environmental, 
public health and safety effects, distributive impacts, and equity). 
This proposed rule is ``significant'' under section 3(f) of Executive 
Order 12866. It involves revisions to existing regulations to bring 
them in line with statutory changes, and affects only individuals or 
Government entities and access to Presidential or Vice Presidential 
records. The Office of Management and Budget (OMB) has reviewed this 
proposed regulation.

Review Under the Regulatory Flexibility Act (5 U.S.C. 601, et seq.)

    Although this proposed rule is not subject to the Regulatory 
Flexibility Act, see 5 U.S.C. 553(a)(2), 601(2), NARA has considered 
whether this rule, if promulgated, would have a significant economic 
impact on a substantial number of small entities (5 U.S.C. 603). NARA 
certifies, after review and analysis, that this rule will not have a 
significant adverse economic impact on a substantial number of small 
entities because it affects only individuals or Government entities and 
access to Presidential or Vice Presidential records.

[[Page 95544]]

Review Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et 
seq.)

    This proposed rule does not contain any information collection 
requirements subject to the Paperwork Reduction Act.

Review Under Executive Order 13132, Federalism, 64 FR 43255 (August 4, 
1999)

    Review under Executive Order 13132 requires that agencies review 
regulations for Federalism effects on the institutional interest of 
states and local governments, and, if the effects are sufficiently 
substantial, prepare a Federal assessment to assist senior policy 
makers. This proposed rule will not have any direct effects on State 
and local governments within the meaning of the Executive Order. 
Therefore, the proposed regulation requires no Federalism assessment.

List of Subjects in 36 CFR Part 1270

    Archives and records, Government in the Sunshine Act, Open 
government, Presidential records.

    For the reasons stated in the preamble, NARA proposes to revise 36 
CFR part 1270 to read as follows:

PART 1270--PRESIDENTIAL RECORDS

Subpart A--General Provisions
Sec.
1270.1 Scope of part.
1270.2 Application.
1270.4 Definitions.
Subpart B--Custody and Control of Presidential Records
1270.20 Presidential records in the physical custody of the 
Archivist.
1270.22 Designating a representative to act for a President.
1270.24 When the Archivist may act for a President.
Subpart C--Disposing of Presidential Records
1270.30 Disposing of Presidential records by an incumbent President.
1270.32 Disposing of Presidential records in the Archivist's 
custody.
Subpart D--Accessing Presidential Records
1270.38 Public access to Presidential records.
1270.40 Restricting access to Presidential records.
1270.42 Appealing restricted access.
1270.44 Exceptions to restricted access.
1270.46 Notice of intent to disclose Presidential records to the 
public.
1270.48 Releasing records to the public and claiming privilege 
against disclosure.
1270.50 Consulting with law enforcement agencies.

    Authority:  44 U.S.C. 2201-2209.

Subpart A--General Provisions


Sec.  1270.1  Scope of part.

    This part implements the provisions of the Presidential Records Act 
of 1978, as amended, 44 U.S.C. 2201-2209, and establishes requirements 
for preserving, protecting, disposing of, and providing access to all 
Presidential and Vice-Presidential records created during a 
Presidential or Vice Presidential term of office beginning on or after 
January 20, 1981.


Sec.  1270.2  Application.

    This part, except Sec. Sec.  1270.46 and 1270.48, applies to Vice-
Presidential records in the same manner as to Presidential records. The 
Vice President's duties and responsibilities, with respect to Vice-
Presidential records, are the same as the President's duties and 
responsibilities with respect to Presidential records, except those in 
Sec. Sec.  1270.46 and 1270.48. The Archivist's authority with respect 
to Vice-Presidential records is the same as the Archivist's authority 
with respect to Presidential records, except that the Archivist may 
enter into an agreement with a non-Federal archival repository to 
deposit Vice-Presidential records, if the Archivist determines it to be 
in the public interest.


Sec.  1270.4  Definitions.

    For the purposes of this part--
    Agency has the meaning given by 5 U.S.C. 551(1)(A)-(D) and 552(f).
    Archivist means the Archivist of the United States or staff of the 
National Archives and Records Administration acting on behalf of the 
Archivist.
    Presidential records has the meaning given by 44 U.S.C. 2201(2).

Subpart B--Custody and Control of Presidential Records


Sec.  1270.20  Presidential records in the physical custody of the 
Archivist.

    During a President's term of office, the President may request that 
the Archivist maintain physical custody of Presidential records, 
including digital or electronic records. However, the President remains 
exclusively responsible for control and access to their records until 
their term of office concludes. During the President's terms of office, 
the Archivist does not disclose any of these records, except under the 
President's direction, until the President's term of office concludes. 
If a President serves consecutive terms, the Archivist does not 
disclose records without the President's direction until the end of the 
last term, or the end of another period if specified in 44 U.S.C. 2204 
and subpart E of this part.


Sec.  1270.22  Designating a representative to act for a President.

    (a) Title 44 U.S.C. chapter 22 grants the President certain 
discretion and authority over Presidential records. An incumbent or 
former President may designate one or more representatives to exercise 
this discretion and authority, including in the event of the 
President's death or disability.
    (b) The designation under paragraph (a) of this section is 
effective only if the Archivist receives written notice of it, 
including the names of the representatives, before the President dies 
or is disabled.


Sec.  1270.24  When the Archivist may act for a President.

    If a President specifies restrictions on access to Presidential 
records under 44 U.S.C. 2204(a), but has not made a designation under 
Sec.  1270.22 at the time of their death or disability, the Archivist 
exercises the President's discretion or authority under 44 U.S.C. 2204, 
except as limited by 44 U.S.C. 2208 and Sec.  1270.48.

Subpart C--Disposing of Presidential Records


Sec.  1270.30  Disposing of Presidential records by an incumbent 
President.

    An incumbent President may dispose of any Presidential records of 
their administration that, in the President's opinion, lack 
administrative, historical, informational, or evidentiary value, if the 
President obtains the Archivist's written views about the proposed 
disposal and either--
    (a) Those views state that the Archivist does not intend to request 
Congress's advice on the matter because the Archivist either does not 
consider the records proposed for disposal to be of special interest to 
Congress or does not consider it to be in the public interest to 
consult with Congress about the proposed disposal; or
    (b)(1) Those views state that the Archivist considers either that 
the records proposed for disposal may be of special interest to 
Congress or that consulting with Congress about the proposed disposal 
is in the public interest; and
    (2) The President submits copies of the proposed disposal schedule 
to the Senate and the House of Representatives at least 60 calendar 
days of continuous congressional session before the proposed disposal 
date. For the purpose of this section, a continuous congressional 
session breaks only when Congress adjourns sine die (with no date set 
to resume). If either House of Congress adjourns with a date set to

[[Page 95545]]

resume, and breaks for more than three days, the adjourned days do not 
count when computing the 60-day timeline. The President submits copies 
of the proposed disposal schedule to the Senate Committees on Rules and 
Administration and Homeland Security and Governmental Affairs, and to 
the House Committees on House Administration and Oversight and 
Government Reform.


Sec.  1270.32  Disposing of Presidential records in the Archivist's 
custody.

    (a) The Archivist may dispose of Presidential records in the 
Archivist's legal custody that the Archivist appraises and determines 
to have insufficient administrative, historical, informational, or 
evidentiary value to warrant continuing to preserve them.
    (b) If the Archivist determines that Presidential records have 
insufficient value under paragraph (a) of this section, the Archivist 
publishes a proposed disposal notice in the Federal Register with a 
public comment period of at least 45 days. The notice describes the 
records the Archivist proposes to dispose of, the reason for disposing 
of them, and the projected earliest disposal date.
    (c) After the public comment period in paragraph (b) of this 
section, the Archivist publishes a final disposal notice in the Federal 
Register at least 60 calendar days before the earliest disposal date. 
The notice includes:
    (1) A reasonably specific description of the records scheduled for 
disposal;
    (2) The earliest disposal date; and
    (3) A concise statement of the reason for disposing of the records.
    (d) Publishing the notice required by paragraph (c) of this section 
in the Federal Register constitutes a final agency action for purposes 
of review under 5 U.S.C. 701-706.

Subpart D--Accessing Presidential Records


Sec.  1270.38  Public access to Presidential records.

    Public access to Presidential records generally begins five years 
after the President leaves office, and is administered through the 
Freedom of Information Act (5 U.S.C. 552), as modified by the 
Presidential Records Act (44 U.S.C. 2204(c)).


Sec.  1270.40  Restricting access to Presidential records.

    (a) An incumbent President may, prior to the end of the President's 
term of office or last consecutive term of office, restrict access to 
certain information within Presidential records created during their 
administration, for a period not to exceed 12 years after the President 
leaves office (in accordance with 44 U.S.C. 2204).
    (b) If a President specifies such restrictions, the Archivist 
consults with that President or the President's designated 
representative to identify the affected records, or any reasonably 
segregable portion of them.
    (c) The Archivist then restricts public access to the identified 
records or the restricted information contained in them until the 
earliest of following occurs:
    (1) The restricting President waives the restriction, in whole or 
in part;
    (2) The restriction period in paragraph (a) of this section expires 
for the category of information; or
    (3) The Archivist determines that the restricting President or an 
agent of that President has published the restricted record, a 
reasonably segregable portion of the record, or any significant element 
or aspect of the information contained in the record, in the public 
domain.


Sec.  1270.42  Appealing restricted access.

    (a) If the Archivist denies a person access to a Presidential 
record or a reasonably segregable portion of it due to a restriction 
made under Sec.  1270.40, that person may file an administrative 
appeal. To file an administrative appeal requesting access to 
Presidential records, send it to the director of the Presidential 
Library of the President during whose term of office the record was 
created, at the address listed in 36 CFR 1253.3. To file an 
administrative appeal requesting access to Vice Presidential records, 
send it to the director of the Presidential Materials Division at the 
address listed in 36 CFR 1253.1.
    (b) An appeal must arrive to the director within 90 calendar days 
from the date on the access denial letter.
    (c) Appeals must be in writing and must identify:
    (1) The specific records the requester is seeking; and
    (2) The reasons why the requester believes they should have access 
to the records.
    (d) The director responds to the requester in writing and within 30 
working days from the date they receive the appeal. The director's 
response states whether or not the director is granting access to the 
Presidential records and the basis for that decision. The director's 
decision to withhold release of Presidential records is final and is 
not subject to judicial review.


Sec.  1270.44  Exceptions to restricted access.

    (a) Even when a President imposes restrictions on access under 
Sec.  1270.40, NARA still makes Presidential records of former 
Presidents available in the following instances, subject to any rights, 
defenses, or privileges which the United States or any agency or person 
may invoke:
    (1) To a court of competent jurisdiction in response to a properly 
issued subpoena or other judicial process, for the purposes of any 
civil or criminal investigation or proceeding;
    (2) To an incumbent President if the President seeks records that 
contain information they need to conduct current Presidential business 
and the information is not otherwise available;
    (3) To either House of Congress, or to a congressional committee or 
subcommittee, if the congressional entity seeks records that contain 
information it needs to conduct business within its jurisdiction and 
the information is not otherwise available; or
    (4) To a former President or their designated representative for 
access to the Presidential records of that President's administration, 
except that the Archivist does not make any original Presidential 
records available to a designated representative that has been 
convicted of a crime that involves reviewing, retaining, removing, or 
destroying NARA records.
    (b) The President, either House of Congress, or a congressional 
committee or subcommittee must request the records they seek under 
paragraph (a) of this section from the Archivist in writing and, where 
practicable, identify the records with reasonable specificity.
    (c) The Archivist promptly notifies the President (or their 
representative) during whose term of office the record was created, and 
the incumbent President (or their representative) of a request for 
records under paragraph (a) of this section.
    (d) Once the Archivist notifies the former and incumbent Presidents 
of the Archivist's intent to disclose records under this section, 
either President may assert a claim of constitutionally based privilege 
against disclosing the record or a reasonably segregable portion of it 
within 30 calendar days after the date of the Archivist's notice. The 
incumbent or former President must personally make any decision to 
assert a claim of constitutionally based privilege against disclosing a 
Presidential record or a reasonably segregable portion of it.
    (e) The Archivist does not disclose a Presidential record or 
reasonably segregable part of a record if it is subject to a privilege 
claim asserted by the incumbent President unless:
    (1) The incumbent President withdraws the privilege claim; or

[[Page 95546]]

    (2) A court of competent jurisdiction directs the Archivist to 
release the record through a final court order that is not subject to 
appeal.
    (f)(1) If a former President asserts the claim, the Archivist 
consults with the incumbent President, as soon as practicable and 
within 30 calendar days from the date that the Archivist receives 
notice of the claim, to determine whether the incumbent President will 
uphold the claim.
    (2) If the incumbent President upholds the claim asserted by the 
former President, the Archivist does not disclose the Presidential 
record or a reasonably segregable portion of the record unless:
    (i) The incumbent President withdraws the decision upholding the 
claim; or
    (ii) A court of competent jurisdiction directs the Archivist to 
disclose the record through a final court order that is not subject to 
appeal.
    (3) If the incumbent President does not uphold the claim asserted 
by the former President, fails to decide before the end of the 30-day 
period detailed in subparagraph (f)(1) of this section, or withdraws a 
decision upholding the claim, the Archivist discloses the Presidential 
record 60 calendar days after the Archivist received notification of 
the claim (or 60 days after the withdrawal) unless a court order in an 
action in any Federal court directs the Archivist to withhold the 
record, including an action initiated by the former President under 44 
U.S.C. 2204(e).
    (g) The Archivist may adjust any time period or deadline under this 
subpart, as appropriate, to accommodate records requested under this 
section.


Sec.  1270.46  Notice of intent to disclose Presidential records to the 
public.

    When the Archivist determines it is in the public interest to make 
a Presidential record available to the public for the first time, the 
Archivist will:
    (a) Promptly notify, in writing, the former President during whose 
term of office the record was created and the incumbent President, or 
their representatives, of the intended disclosure. This notice informs 
the Presidents of the 60-day period in which either President may make 
a claim of constitutionally based privilege under Sec.  1270.48; and
    (b) Notify the public. The notice includes the following 
information about the intended disclosure:
    (1) The number of pages;
    (2) A brief description of the records;
    (3) The NARA case number;
    (4) The date on which the 60-working-day period set out in Sec.  
1270.48(a) expires; and
    (5) Any other information the Archivist may decide.


Sec.  1270.48  Releasing records to the public and claiming privilege 
against disclosure.

    (a) Once the Archivist notifies the former and incumbent Presidents 
of the Archivist's intent to disclose records under Sec.  1270.46, 
either President may assert a claim of constitutionally based privilege 
against disclosing the record or a reasonably segregable portion of it. 
A President must assert their claim within 60 working days after the 
date of the Archivist's notice, and make the claim in accordance with 
paragraph (d) of this section.
    (b) If neither President asserts a claim within the 60-working-day 
period, the Archivist discloses the Presidential record covered by the 
notice. If either President asserts a claim on a reasonably segregable 
part of the record, the Archivist may disclose only the portion of the 
record not subject to the claim.
    (c)(1) The incumbent or former President may extend the period 
under paragraph (a) of this section once, for not more than 30 
additional working days, by sending the Archivist a written statement 
asserting that the President needs the extension to adequately review 
the record.
    (2) However, if the 60-day period under subparagraph (a) of this 
section, or any extension of that period under subparagraph (c)(1) of 
this section, would end during the first six months of the incumbent 
President's first term of office, then the 60-day period or extension 
automatically extends to the end of that six-month period.
    (d)(1) The incumbent or former President must personally make any 
decision to assert a claim of constitutionally based privilege against 
disclosing a Presidential record or a reasonably segregable portion of 
it.
    (2) The President must notify the Archivist, the Committee on 
Oversight and Government Reform of the House of Representatives, and 
the Committee on Homeland Security and Governmental Affairs of the 
Senate, of a privilege claim under paragraph (a) of this section on the 
same day that the President asserts such a claim.
    (e)(1) If a former President asserts the claim, the Archivist 
consults with the incumbent President, as soon as practicable and 
within 30 calendar days from the date that the Archivist receives 
notice of the claim, to determine whether the incumbent President will 
uphold the claim.
    (2) The Archivist notifies the former President and the public of 
the incumbent President's decision on the former President's claim no 
later than 30 calendar days after the Archivist receives notice of the 
claim.
    (3) If the incumbent President upholds the claim asserted by the 
former President, the Archivist does not disclose the Presidential 
record or a reasonably segregable portion of the record unless:
    (i) The incumbent President withdraws the decision upholding the 
claim; or
    (ii) A court of competent jurisdiction directs the Archivist to 
disclose the record through a final court order that is not subject to 
appeal.
    (4) If the incumbent President does not uphold the claim asserted 
by the former President, fails to decide before the end of the 30-day 
period detailed in subparagraph (e)(1) of this section, or withdraws a 
decision upholding the claim, the Archivist discloses the Presidential 
record 90 calendar days after the Archivist received notification of 
the claim (or 90 days after the withdrawal) unless a court order in an 
action in any Federal court directs the Archivist to withhold the 
record, including an action initiated by the former President under 44 
U.S.C. 2204(e).
    (f) The Archivist does not disclose a Presidential record or 
reasonably segregable part of a record if it is subject to a privilege 
claim asserted by the incumbent President unless:
    (1) The incumbent President withdraws the privilege claim; or
    (2) A court of competent jurisdiction directs the Archivist to 
release the record through a final court order that is not subject to 
appeal.


Sec.  1270.50  Consulting with law enforcement agencies.

    (a) The Archivist requests specific guidance from the appropriate 
law enforcement agency when the Archivist is determining whether to 
release Presidential records compiled for law enforcement purposes that 
may be subject to 5 U.S.C. 552(b)(7). The Archivist requests guidance 
if:
    (1) No general guidance applies;
    (2) The record is particularly sensitive; or
    (3) The type of record or information is widespread throughout the 
files.
    (b) When the Archivist decides to release Presidential records 
compiled for law enforcement purposes, the Archivist notifies any 
agency that has provided guidance on those records under this section. 
The notice includes the following:

[[Page 95547]]

    (1) A description of the records in question;
    (2) A statement that the records described contain information 
compiled for law enforcement purposes and may be subject to the 
exemption provided by 5 U.S.C. 552(b)(7) for records of this type; and
    (3) The name of a contact person at NARA.
    (c) Any guidance an agency provides under paragraph (a) of this 
section is not binding on the Archivist. The Archivist decides whether 
Presidential records are subject to the exemption in 5 U.S.C. 
552(b)(7).

    Dated: December 15, 2016.
David S. Ferriero,
Archivist of the United States.
[FR Doc. 2016-31011 Filed 12-27-16; 8:45 am]
 BILLING CODE 7515-01-P
95542 Federal Register / Vol. 81, No. 249 / Wednesday, December 28, 2016 / Proposed Rules

determination of the amount of the thereunder and does not have a on the submission): Regulations
United States property treated as held principal’’. Comments Desk (External Policy
by a controlled foreign corporation Program, Strategy and Performance
Martin V. Franks,
(CFC) through a partnership. Division (SP)); Suite 4100; National
Chief, Publications and Regulations Branch,
DATES: Written or electronic comments Archives and Records Administration;
Legal Processing Division, Associate Chief
and request for a public hearing are still Counsel, (Procedure and Administration). 8601 Adelphi Road; College Park, MD
being accepted and must be received by 20740–6001
[FR Doc. 2016–31358 Filed 12–27–16; 8:45 am]
February 1, 2017. • Hand delivery or courier: Deliver
BILLING CODE 4830–01–P
comments to the front desk at the
ADDRESSES: Send submissions to: address above.
CC:PA:LPD:PR (REG–114734–16), Room Instructions: You must include on all
5203, Internal Revenue Service, P.O. NATIONAL ARCHIVES AND RECORDS submissions the Regulatory Information
Box 7604, Ben Franklin Station, ADMINISTRATION Number (RIN) for this rulemaking (RIN
Washington, DC 20044. Submissions 3095–AB87) and NARA’s name. We
may be hand-delivered Monday through 36 CFR Part 1270
may publish any comments we receive
Friday between the hours of 8 a.m. and [FDMS No. NARA–16–0005; NARA–2017– without changes, including any
4 p.m. to CC:PA:LPD:PR (REG–114734– 011] personal information you provide.
16), Courier’s Desk, Internal Revenue RIN 3095–AB87 FOR FURTHER INFORMATION CONTACT:
Service, 1111 Constitution Avenue NW., Kimberly Keravuori, by email at
Washington, DC, or sent electronically Presidential Records regulation_comments@nara.gov, or by
via the Federal eRulemaking Portal at telephone at 301–837–3151.
http://www.regulations.gov (IRS REG– AGENCY: National Archives and Records
Administration (NARA). SUPPLEMENTARY INFORMATION:
114734–16).
ACTION: Proposed rule. Background
FOR FURTHER INFORMATION CONTACT:
Concerning the proposed regulations, SUMMARY: We are proposing to revise We are revising our regulations
Rose E. Jenkins, (202) 317–6934; this regulation to reflect changes governing Presidential and Vice
concerning submissions of comments or instituted by the Presidential and Presidential records to incorporate
request for a public hearing, Regina Federal Records Acts Amendments of changes made by the Presidential and
Johnson, (202) 317–6901 (not a toll-free 2014 (2014 Amendments). These Federal Records Act Amendments of
number). Amendments in part added new 2014, (‘‘2014 Amendments,’’ Pub. L.
SUPPLEMENTARY INFORMATION: requirements to the Presidential Records 113–187, 128 Stat. 1017).
Act (PRA), which went into effect in The 2014 Amendments made several
Background 2014 and remain in effect, even without changes to the Presidential Records Act
this proposed regulatory revision. The (44 U.S.C. 2201–2209). The most
The notice of proposed rulemaking
proposed changes make clear that, when substantial change was codifying the
(REG–114734–16) that is the subject of
we maintain electronic Presidential procedures by which we notify former
this document is under sections 954 and
records on behalf of the President before and incumbent Presidents so that they
956 of the Internal Revenue Code.
the President’s term of office expires, may consider whether to restrict public
Need for Correction the President retains exclusive control access to Presidential records of former
over the records. In addition, the Presidents that are in our legal custody.
As published, the notice of proposed
proposed changes establish procedures This privilege review process was
rulemaking (REG–114734–16) contains
that we will follow to notify an previously controlled by an Executive
errors that may prove to be misleading
incumbent President and former Order, subject to change by any sitting
and are in need of clarification.
President when we propose to disclose administration. Because Congress
Correction of Publication Presidential records to the public, codified the privilege review process for
Congress, the courts, or the incumbent public disclosures in the 2014
Accordingly, the notice of proposed President under the provisions of the Amendments, we are revising the
rulemaking, (REG–114734–16), that was PRA allowing for access to Presidential regulation to set out processes for giving
the subject of FR Doc. 2016–26424, is records otherwise subject to restrictions. notice in such cases, and for former or
corrected as follows: We began the regulatory revision incumbent Presidents to consider
■ 1. On page 76543, first column, in the process in response to the 2014 whether to assert a constitutionally
preamble, the sixth line from the top of Amendments and issue this updated based privilege.
the page, the language, ‘‘property that regulation to reduce confusion about The 2014 Amendments did not codify
does not have a principal’’ is corrected access to Presidential records in light of the provisions of the Executive Order
to read ‘‘property that is respected for these recent changes in the law. allowing for notification to the former
Federal income tax purposes under DATES: Submit comments by January 27, and incumbent President when
section 704(b) and the regulations 2017. Congress, the courts, or the incumbent
thereunder and does not have a ADDRESSES: You may submit comments, President (instead of the public) makes
principal’’. identified by RIN 3095–AB87, by any of the request for records subject to access
restrictions. To ensure that the former
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§ 1.956–4 [Corrected] the following methods:
• Federal eRulemaking Portal: http:// and incumbent Presidents are given
■ 2. On page 76543, third column, third www.regulations.gov. Follow the notice and an opportunity to consider
line from the bottom of paragraph instructions for submitting comments. whether to assert a constitutionally
(b)(2)(ii), the language ‘‘allocation does • Email: Regulation_comments@ based privilege in those circumstances
not have a principal’’ is corrected to nara.gov. Include RIN 3095–AB87 in the as well, we are revising our regulation
read ‘‘allocation will be respected for subject line of the message. to set out procedures we follow prior to
Federal income tax purposes under • Mail (for paper, disk, or CD–ROM disclosing records under the PRA’s
section 704(b) and the regulations submissions. Include RIN 3095–AB87 exceptions to restricted access, which

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Federal Register / Vol. 81, No. 249 / Wednesday, December 28, 2016 / Proposed Rules 95543

are similar to the procedures we follow on ‘‘Presidential records in the set out in § 1270.48 for the President to
when we propose to make disclosures to Archivist’s physical custody’’ assert a constitutional privilege).
the public. (§ 1270.20), because the President may § 1270.48, Releasing records to the
The 2014 Amendments also request that the Archivist maintain public and claiming privilege against
authorized an incumbent President to physical custody of Presidential records disclosure: Revised to include
transfer physical custody of their (now, under the 2014 Amendments at procedures, now codified in the 2014
permanent electronic Presidential 44 U.S.C. 2203(f), also including Amendments, by which Presidents may
records to NARA, while leaving legal electronic records) during the restrict public access to Presidential
custody with the President, and some President’s term of office. However, the records of former Presidents that are in
other more minor changes. We are President remains responsible for NARA’s legal custody through a
therefore also revising the regulation to control and access to these records until constitutionally based privilege against
reflect these changes (the regulatory the end of the President’s term of office. disclosure. This new section parallels
changes are identified in more detail Subpart C new provisions in 44 U.S.C. 2208,
below). including a 60-day notice period in
We are also making a small revision § 1270.32, Disposal of Presidential
which a President may assert a
to the regulation to be consistent with records in the Archivist’s custody:
constitutionally based claim of privilege
2016 amendments to the Freedom of Revised to require a preliminary notice
against disclosure.
Information Act, and are revising the of proposed disposal with a 45-day
public comment period, in addition to The regulation has also been revised
wording and organization of the
the final notice published 60 days prior throughout with non-substantive edits
regulation to make it easier to follow, in
to the disposal, as established in the and reorganization to incorporate Plain
compliance with provisions of the Plain
2014 Amendments at 44 U.S.C. Writing Act practices and make it
Writing Act of 2010.
2203(g)(3). clearer and easier to read.
Substantive Changes in the Regulation
Subpart D Regulatory Analysis
Subpart A
Added § 1270.38 to clarify when Review Under Executive Orders 12866
§ 1270.1, Scope: Removed ‘‘Nothing public access to Presidential records and 13563
in these regulations is intended to may occur based on requirements in 44
govern procedures for assertion of, or U.S.C. 2204, to make it easier for readers Executive Order 12866, Regulatory
response to, any constitutionally based to understand the context in which the Planning and Review, 58 FR 51735
privilege which may be available to an subsequent sections on restricting (September 30, 1993), and Executive
incumbent or former President.’’ The access occur. Order 13563, Improving Regulation and
2014 Amendments at 44 U.S.C. 2208 § 1270.42(b), Appealing restricted Regulation Review, 76 FR 23821
now include the President’s authority to access: Expanded the time in which a (January 18, 2011), direct agencies to
assert a constitutionally based privilege person denied access due to a assess all costs and benefits of available
and those provisions have been added Presidential restriction may file an regulatory alternatives and, if regulation
to this regulation. appeal, from 35 days after receiving is necessary, to select regulatory
§ 1270.2, Application: Removed NARA’s denial letter to 90 days, to be approaches that maximize net benefits
‘‘These regulations apply to all consistent with the 2016 Amendments (including potential economic,
Presidential records created during a to the Freedom of Information Act, at 5 environmental, public health and safety
term of office of the President beginning U.S.C. 552(a)(6)(i)(III)(aa). effects, distributive impacts, and
on or after January 20, 1981.’’ This is § 1270.44, Exceptions to restricted equity). This proposed rule is
already included elsewhere in the access: Under the 2014 Amendments at ‘‘significant’’ under section 3(f) of
regulation and thus was redundant. 44 U.S.C. 2204(f), added a provision at Executive Order 12866. It involves
Changed from stating that all (a)(4) that the Archivist will not release revisions to existing regulations to bring
provisions in the regulation apply to the original Presidential records to a them in line with statutory changes, and
Vice President and Vice Presidential President’s designated representative affects only individuals or Government
records, to stating that all provisions who has been convicted of a crime that entities and access to Presidential or
except §§ 1270.46 and 1270.48 apply to involves misuse or misappropriation of Vice Presidential records. The Office of
the Vice President as to the President, NARA records. Management and Budget (OMB) has
because those sections have now been Added provisions at (d) through (g) reviewed this proposed regulation.
revised due to the 2014 Amendments at allowing for notification of a request for Review Under the Regulatory Flexibility
44 U.S.C. 2208 to cover only records to the former and incumbent Act (5 U.S.C. 601, et seq.)
Presidential authorities. President so that they may consider
§ 1270.4, Definitions: Removed whether to assert a constitutionally Although this proposed rule is not
‘‘documentary material, personal based privilege. These provisions are subject to the Regulatory Flexibility Act,
records, President, Presidential archival similar to new section 1270.48, which, see 5 U.S.C. 553(a)(2), 601(2), NARA has
depository, Vice Presidential records, in accord with the 2014 Amendments at considered whether this rule, if
filed’’ definitions because they are terms 44 U.S.C. 2208, covers releasing records promulgated, would have a significant
not used in the regulation any longer or to the public and claiming privilege economic impact on a substantial
the definitions were identical to the against disclosure. number of small entities (5 U.S.C. 603).
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statute and not needed. § 1270.46, Notice of intent to disclose NARA certifies, after review and
Presidential records to the public: In analysis, that this rule will not have a
Subpart B accord with the 2014 Amendments at 44 significant adverse economic impact on
Changed the title of the subpart from U.S.C. 2208(2)(B), added detail in a substantial number of small entities
‘‘Handling Presidential records upon subsection (b) about what will be because it affects only individuals or
death or disability’’ to ‘‘Custody and included in the notice to the public Government entities and access to
control of Presidential records’’ and (such as the NARA case number and the Presidential or Vice Presidential
revised the subpart to add a provision end date of the 60-day working period records.

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Document Created: 2016-12-28 02:16:34
Document Modified: 2016-12-28 02:16:34
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Proposed Rules
Action		Proposed rule.
Dates		Submit comments by January 27, 2017.
Contact		Kimberly Keravuori, by email at [email protected], or by telephone at 301-837-3151.
FR Citation		81 FR 95542
RIN Number		3095-AB87
CFR Associated		Archives and Records; Government in the Sunshine Act; Open Government and Presidential Records