[House Report 115-824]
[From the U.S. Government Publishing Office]


115th Congress    }                                  {       Report
                        HOUSE OF REPRESENTATIVES
 2d Session       }                                  {        115-824

======================================================================



 
              ELECTRONIC MESSAGE PRESERVATION ACT OF 2017

                                _______
                                

 July 16, 2018.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

   Mr. Gowdy, from the Committee on Oversight and Government Reform, 
                        submitted the following

                              R E P O R T

                        [To accompany H.R. 1376]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Oversight and Government Reform, to whom 
was referred the bill (H.R. 1376) to amend title 44, United 
States Code, to require preservation of certain electronic 
records by Federal agencies, to require a certification and 
reports relating to Presidential records, and for other 
purposes, having considered the same, report favorably thereon 
without amendment and recommend that the bill do pass.

                                CONTENTS

                                                                   Page
Summary and Purpose of the Legislation...........................     2
Background and Need for Legislation..............................     2
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................     2
Statement of General Performance Goals and Objectives............     3
Legislative History..............................................     3
Committee Consideration..........................................     3
Roll Call Votes..................................................     3
Explanation of Amendments........................................     3
Application of Law to the Legislative Branch.....................     3
Duplication of Federal Programs..................................     3
Disclosure of Directed Rule Makings..............................     4
Federal Advisory Committee Act...................................     4
Unfunded Mandates Statement......................................     4
Earmark Identification...........................................     4
Committee Estimate...............................................     4
New Budget Authority and Congressional Budget Office Cost 
  Estimate.......................................................     4
Section-by-Section Analysis......................................     5
Changes in Existing Law Made by the Bill, as Reported............     6

                   Summary and Purpose of Legislation

    H.R. 1376, the Electronic Message Preservation Act of 2017, 
requires agencies to capture, preserve, and manage federal 
records electronically if they were created electronically. The 
Archivist of the United States is directed to issue regulations 
directing agencies to implement the bill. The bill also 
requires the heads of each federal agency to report to the 
Archivist on compliance with the regulations and make the 
report publicly available on the agency's website.

                  Background and Need for Legislation

    The federal government urgently needs to modernize its 
recordkeeping infrastructure. When Congress enacted the Federal 
Records Act of 1950, the variety of electronic platforms that 
agencies now use to create federal records did not exist.\1\ 
With new forms of information technology constantly emerging, 
applications and methods that federal agencies currently employ 
to create and preserve records may not be viable in the future, 
threatening the availability of federal records and making 
their preservation more difficult and expensive, if they can be 
preserved at all.\2\
---------------------------------------------------------------------------
    \1\Federal Records Act of 1950, Pub. L. No. 81-754, Title V, 64 
Stat. 583 (codified as amended at 44 U.S.C. Chapters 29, 31, & 33).
    \2\Cong. Research Serv., R43165, Retaining and Preserving Federal 
Records in a Digital Environment: Background and Issues for Congress 
(2013).
---------------------------------------------------------------------------
    While the federal government's use of electronic 
communications continues to rise, several agencies still employ 
a ``print-to-file'' method of electronic record preservation. 
The volume of business conducted via electronic media, 
especially email, increases the likelihood of unintentional 
loss or deletion of federal records. Additionally, there are a 
multitude of challenges with recordkeeping systems that require 
paper copies of electronic records, ranging from their 
susceptibility to error to their overall cost.\3\ Complicating 
matters, the statutes governing the capture and storage of 
electronic records are often ambiguous.
---------------------------------------------------------------------------
    \3\Nat'l Archives & Records Admin., Why Federal Agencies Need to 
Move Towards Electronic Recordkeeping, http://www.archives.gov/records-
mgmt/policy/prod1afn.html (last updated Aug. 15, 2016).
---------------------------------------------------------------------------
    H.R. 1376 will help address these shortcomings by codifying 
a directive from the Office of Management and Budget and the 
National Archives and Records Administration (Archives) 
requiring agencies to preserve records electronically if they 
were created electronically.\4\ By codifying this requirement, 
H.R. 1376 will help close a number of gaps in current law and 
ensure federal agencies are using methods approved and 
standardized by the Archives to capture and store electronic 
files. The bill also requires presidential records be held to 
the same standard.
---------------------------------------------------------------------------
    \4\Memorandum from Beth F. Cobert, Deputy Director for Mgmt., 
Office of Mgmt. & Budget, and David S. Ferriero, Archivist of the U.S., 
Nat'l Archives & Records Admin., to Heads of Executive Dep'ts and 
Agencies and Independent Agencies, M-14-16 (2014), available at https:/
/www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2014/m-14-
16.pdf.
---------------------------------------------------------------------------

  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
(2)(b)(1) of rule X of the Rules of the House of 
Representatives, the Committee's oversight findings and 
recommendations are reflected in the previous section.

         Statement of General Performance Goals and Objectives

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the Committee's performance 
goal or objective of this bill is to amend title 44, United 
States Code, to require preservation of certain electronic 
records by Federal agencies, to require a certification and 
reports relating to Presidential records.

                          Legislative History

    On March 7, 2017, Representative Elijah Cummings (D-MD) 
introduced H.R. 1376, the Electronic Message Preservation Act 
of 2017. H.R. 1376 was referred to the Committee on Oversight 
and Government Reform. The Committee considered H.R. 1376 at a 
business meeting on March 15, 2018 and ordered the bill 
favorably reported by voice vote.
    In the 114th Congress, Representative Cummings introduced 
H.R. 2319, the Electronic Message Preservation Act of 2015, a 
substantially similar bill to H.R. 1376. On July 12, 2016, the 
Committee ordered H.R. 2319 favorably reported by voice vote.

                        Committee Consideration

    On March 15, 2018, the Committee met in open session and, 
with a quorum being present, ordered the bill favorably 
reported by voice vote.

                            Roll Call Votes

    There were no roll call votes requested or conducted during 
Committee consideration of H.R. 1376.

                       Explanation of Amendments

    There were no amendments to H.R. 1376 offered or adopted 
during Committee consideration of the bill.

              Application of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of this bill to the legislative 
branch where the bill relates to the terms and conditions of 
employment or access to public services and accommodations. 
This bill amends title 44, United States Code, to require 
preservation of certain electronic records by Federal agencies 
and to require a certification and reports relating to 
Presidential records. As such, this bill does not relate to 
employment or access to public services and accommodations.

                    Duplication of Federal Programs

    In accordance with clause 2(c)(5) of rule XIII no provision 
of this bill establishes or reauthorizes a program of the 
Federal Government known to be duplicative of another Federal 
program, a program that was included in any report from the 
Government Accountability Office to Congress pursuant to 
section 21 of Public Law 111-139, or a program related to a 
program identified in the most recent Catalog of Federal 
Domestic Assistance.

                  Disclosure of Directed Rule Makings

    The bill directs the completion of a specific rule making 
within the meaning of 5 U.S.C. 551. The bill requires the 
Archivist of the United States to promulgate regulations 
governing federal agency preservation of electronic federal 
records.

                     Federal Advisory Committee Act

    The Committee finds that the legislation does not establish 
or authorize the establishment of an advisory committee within 
the definition of Section 5(b) of the appendix to title 5, 
United States Code.

                      Unfunded Mandates Statement

    Pursuant to section 423 of the Congressional Budget and 
Impoundment Control Act (Pub. L. 113-67) the Committee has 
included a letter received from the Congressional Budget Office 
below.

                         Earmark Identification

    This bill does not include any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of rule XXI of the House of Representatives.

                           Committee Estimate

    Pursuant to clause 3(d)(2)(B) of rule XIII of the Rules of 
the House of Representatives, the Committee includes below a 
cost estimate of the bill prepared by the Director of the 
Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974.

   New Budget Authority and Congressional Budget Office Cost Estimate

    Pursuant to clause 3(c)(3) of rule XIII of the House of 
Representatives, the cost estimate prepared by the 
Congressional Budget Office and submitted pursuant to section 
402 of the Congressional Budget Act of 1974 is as follows:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, April 12, 2018.
Hon. Trey Gowdy,
Chairman, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1376, the 
Electronic Message Preservation Act of 2017.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                                Keith Hall,
                                                          Director.
    Enclosure.

H.R. 1376--Electronic Message Preservation Act of 2017

    H.R. 1376 would direct the National Archives and Records 
Administration (NARA) to issue regulations governing the 
preservation of email and other electronic records in an 
electronic format. Under H.R. 1376, NARA would have 120 days to 
promulgate regulations and agencies would have two years to 
comply. The bill also would amend the Presidential Records Act 
to authorize NARA to manage the President's electronic records.
    Under the Federal Records Act, each agency is required to 
make and preserve records of its activities and to have 
appropriate systems to manage and preserve those records. That 
act also requires NARA to oversee and issue guidance on 
managing federal records, including email messages. In 2012, 
the Office of Management and Budget issued Managing Government 
Records Directive (M-12-18), which required federal agencies to 
manage all email records in an electronic format by 2016. 
Although current NARA regulations require that government email 
messages be stored electronically, NARA allows agencies to 
print and file paper copies instead.
    Using information from NARA, CBO estimates that 
implementing the bill would have no significant effect on 
federal spending because most of the provisions of H.R. 1376 
would codify current practices. NARA anticipates that by 
December 2019 all federal agencies will have email and other 
electronic records stored electronically. Having NARA manage 
Presidential electronic records would not have a significant 
effect on the federal budget, according to the agency.
    Enacting H.R. 1376 could affect direct spending by agencies 
that use fees, receipts from the sale of goods, and other 
collections to cover operating costs. Therefore, pay-as-you-go 
procedures apply. Because most agencies can adjust the amounts 
collected as their operating costs change, CBO estimates that 
any net changes in direct spending by those agencies would be 
insignificant. Enacting the bill would not affect revenues.
    CBO estimates that enacting H.R. 1376 would not increase 
net direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2029.
    H.R. 1376 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments.
    The CBO staff contact for this estimate is Matthew 
Pickford. The estimate was reviewed by H. Samuel Papenfuss, 
Deputy Assistant Director for Budget Analysis.

                      Section-by-Section Analysis


Section 1. Short title

    Section 1 establishes the short title of the bill.

Section 2. Preservation of electronic messages and other records

    Section 2 adds a new section to chapter 29 of title 44, 
United States Code, requiring the Archivist, within 120 days of 
enactment, to issue regulations governing federal agency 
preservation of electronic federal records. The regulations 
require: (1) electronic capture, management, and preservation 
of electronic records; (2) electronic records to be readily 
accessible through electronic searches; and (3) timely agency 
compliance with the regulations. Not later than two years after 
enactment, the Archivist must establish mandatory minimum 
functional requirements for electronic records management. The 
Archivist is further required to establish a process whereby 
agency electronic records systems meet the functional 
requirements established by the Archivist. Agencies must comply 
with the Archivist's regulations. Section 2 also requires 
agencies to report to the Archivist within one year of 
enactment on compliance with the regulations and for the 
Archivist, in turn, to issue a report on overall agency 
compliance.
    Finally, section 2 adds definitions of ``electronic 
messages'' and ``electronic records management system'' to 
section 2901 of title 44, United States Code.

Section 3. Presidential records

    Section 3 amends section 2206 of title 44, United States 
Code, to require the Archivist to establish standards for the 
economical and efficient management of electronic presidential 
records during the President's term of office. This section 
also adds definitions for ``electronic messages'' and 
``electronic records management system'' to section 2201 of 
title 44, United States Code, and establishes the effective 
date of the section as one year after enactment. The Archivist 
will certify whether a presidential administration's electronic 
records management system is sufficient to meet the electronic 
records management requirements of the Presidential Records 
Act. The Archivist will also submit a report to Congress one 
year after a President leaves office detailing the volume and 
format of the electronic presidential records deposited into 
that President's archival depository.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, and existing law in which no 
change is proposed is shown in roman):

                      TITLE 44, UNITED STATES CODE




           *       *       *       *       *       *       *
                    CHAPTER 22--PRESIDENTIAL RECORDS


Sec.
2201. Definitions.
     * * * * * * *
2210. Certification of the President's management of Presidential 
          records.

Sec. 2201. Definitions

  As used in this chapter--
          (1) The term ``documentary material'' means all 
        books, correspondence, memoranda, documents, papers, 
        pamphlets, works of art, models, pictures, photographs, 
        plats, maps, films, and motion pictures, including, but 
        not limited to, audio and visual records, or other 
        electronic or mechanical recordations, whether in 
        analog, digital, or any other form.
          (2) The term ``Presidential records'' means 
        documentary materials, or any reasonably segregable 
        portion thereof, created or received by the President, 
        the President's immediate staff, or a unit or 
        individual of the Executive Office of the President 
        whose function is to advise or assist the President, in 
        the course of conducting activities which relate to or 
        have an effect upon the carrying out of the 
        constitutional, statutory, or other official or 
        ceremonial duties of the President. Such term--
                  (A) includes any documentary materials 
                relating to the political activities of the 
                President or members of the President's staff, 
                but only if such activities relate to or have a 
                direct effect upon the carrying out of 
                constitutional, statutory, or other official or 
                ceremonial duties of the President; but
                  (B) does not include any documentary 
                materials that are (i) official records of an 
                agency (as defined in section 552(e) of title 
                5, United States Code); (ii) personal records; 
                (iii) stocks of publications and stationery; or 
                (iv) extra copies of documents produced only 
                for convenience of reference, when such copies 
                are clearly so identified.
          (3) The term ``personal records'' means all 
        documentary materials, or any reasonably segregable 
        portion therof, of a purely private or nonpublic 
        character which do not relate to or have an effect upon 
        the carrying out of the constitutional, statutory, or 
        other official or ceremonial duties of the President. 
        Such term includes--
                  (A) diaries, journals, or other personal 
                notes serving as the functional equivalent of a 
                diary or journal which are not prepared or 
                utilized for, or circulated or communicated in 
                the course of, transacting Government business;
                  (B) materials relating to private political 
                associations, and having no relation to or 
                direct effect upon the carrying out of 
                constitutional, statutory, or other official or 
                ceremonial duties of the President; and
                  (C) materials relating exclusively to the 
                President's own election to the office of the 
                Presidency; and materials directly relating to 
                the election of a particular individual or 
                individuals to Federal, State, or local office, 
                which have no relation to or direct effect upon 
                the carrying out of constitutional, statutory, 
                or other official or ceremonial duties of the 
                President.
          (4) The term ``Archivist'' means the Archivist of the 
        United States.
          (5) The term ``former President'', when used with 
        respect to Presidential records, means the former 
        President during whose term or terms of office such 
        Presidential records were created.
          (6) The term ``electronic messages'' has the meaning 
        given that term under section 2901(15).
          (7) The term ``electronic records management system'' 
        has the meaning given that term under section 2901(16).

           *       *       *       *       *       *       *


Sec. 2203. Management and custody of Presidential records

  (a) Through the implementation of records management controls 
and other necessary actions, the President shall take all such 
steps as may be necessary to assure that the activities, 
deliberations, decisions, and policies that reflect the 
performance of the President's constitutional, statutory, or 
other official or ceremonial duties are adequately documented 
and that such records are preserved and maintained as 
Presidential records pursuant to the requirements of this 
section and other provisions of law.
  (b) Documentary materials produced or received by the 
President, the President's staff, or units or individuals in 
the Executive Office of the President the function of which is 
to advise or assist the President, shall, to the extent 
practicable, be categorized as Presidential records or personal 
records upon their creation or receipt and be filed separately.
  (c) During the President's term of office, the President may 
dispose of those Presidential records of such President that no 
longer have administrative, historical, informational, or 
evidentiary value if--
          (1) the President obtains the views, in writing, of 
        the Archivist concerning the proposed disposal of such 
        Presidential records; and
          (2) the Archivist states that the Archivist does not 
        intend to take any action under subsection (e) of this 
        section.
  (d) In the event the Archivist notifies the President under 
subsection (c) that the Archivist does intend to take action 
under subsection (e), the President may dispose of such 
Presidential records if copies of the disposal schedule are 
submitted to the appropriate Congressional Committees at least 
60 calendar days of continuous session of Congress in advance 
of the proposed disposal date. For the purpose of this section, 
continuity of session is broken only by an adjournment of 
Congress sine die, and the days on which either House is not in 
session because of an adjournment of more than three days to a 
day certain are excluded in the computation of the days in 
which Congress is in continuous session.
  (e) The Archivist shall request the advice of the Committee 
on Rules and Administration and the Committee on Governmental 
Affairs of the Senate and the Committee on House Oversight and 
the Committee on Government Operations of the House of 
Representatives with respect to any proposed disposal of 
Presidential records whenever the Archivist considers that--
          (1) these particular records may be of special 
        interest to the Congress; or
          (2) consultation with the Congress regarding the 
        disposal of these particular records is in the public 
        interest.
  (f) During a President's term of office, the Archivist may 
maintain and preserve Presidential records on behalf of the 
President, including records in digital or electronic form. The 
President shall remain exclusively responsible for custody, 
control, and access to such Presidential records. The Archivist 
may not disclose any such records, except under direction of 
the President, until the conclusion of a President's term of 
office, if a President serves consecutive terms upon the 
conclusion of the last term, or such other period provided for 
under section 2204 of this title.
  (g)(1) Upon the conclusion of a President's term of office, 
or if a President serves consecutive terms upon the conclusion 
of the last term, the Archivist of the United States shall 
assume responsibility for the custody, control, and 
preservation of, and access to, the Presidential records of 
that President. The Archivist shall have an affirmative duty to 
make such records available to the public as rapidly and 
completely as possible consistent with the provisions of this 
chapter.
          (2) The Archivist shall deposit all such Presidential 
        records in a Presidential archival depository or 
        another archival facility operated by the United 
        States. The Archivist is authorized to designate, after 
        consultation with the former President, a director at 
        each depository or facility, who shall be responsible 
        for the care and preservation of such records.
          (3) When the President considers it practicable and 
        in the public interest, the President shall include in 
        the President's budget transmitted to Congress, for 
        each fiscal year in which the term of office of the 
        President will expire, such funds as may be necessary 
        for carrying out the authorities of this subsection.
          (4) The Archivist is authorized to dispose of such 
        Presidential records which the Archivist has appraised 
        and determined to have insufficient administrative, 
        historical, informational, or evidentiary value to 
        warrant their continued preservation. Notice of such 
        disposal shall be published in the Federal Register at 
        least 60 days in advance of the proposed disposal date. 
        Publication of such notice shall constitute a final 
        agency action for purposes of review under chapter 7 of 
        title 5, United States Code.
  (5) One year following the conclusion of a President's term 
of office, or if a President serves consecutive terms one year 
following the conclusion of the last term, the Archivist shall 
submit to the Committee on Homeland Security and Governmental 
Affairs of the Senate and the Committee on Oversight and 
Government Reform of the House of Representatives a report on--
          (A) the volume and format of electronic Presidential 
        records deposited into that President's Presidential 
        archival depository; and
          (B) whether the electronic records management 
        controls of that President met the requirements under 
        sections 2203(a) and 2206(5).

           *       *       *       *       *       *       *


Sec. 2206. Regulations

  The Archivist shall promulgate in accordance with section 553 
of title 5, United States Code, regulations necessary to carry 
out the provisions of this chapter. Such regulations shall 
include--
          (1) provisions for advance public notice and 
        description of any Presidential records scheduled for 
        disposal pursuant to section 2203(f)(3);
          (2) provisions for providing notice to the former 
        President when materials to which access would 
        otherwise be restricted pursuant to section 2204(a) are 
        to be made available in accordance with section 
        2205(2);
          (3) provisions for notice by the Archivist to the 
        former President when the disclosure of particular 
        documents may adversely affect any rights and 
        privileges which the former President may have; [and]
          (4) provisions for establishing procedures for 
        consultation between the Archivist and appropriate 
        Federal agencies regarding materials which may be 
        subject to section 552(b)(7) of title 5, United States 
        Code[.]; and
          (5) provisions for establishing standards necessary 
        for the economical and efficient management of 
        electronic Presidential records during the President's 
        term of office, including--
                  (A) records management controls necessary for 
                the capture, management, and preservation of 
                electronic messages;
                  (B) records management controls necessary to 
                ensure that electronic messages are readily 
                accessible for retrieval through electronic 
                searches; and
                  (C) a process to ensure the electronic 
                records management system to be used by the 
                President for the purposes of complying with 
                the requirements in subparagraphs (A) and (B).

           *       *       *       *       *       *       *


Sec. 2210. Certification of the President's management of Presidential 
                    records

  (a) Annual Certification.--The Archivist shall annually 
certify whether the electronic records management controls 
established by the President meet requirements under sections 
2203(a) and 2206(5).
  (b) Report to Congress.--The Archivist shall report annually 
to the Committee on Homeland Security and Governmental Affairs 
of the Senate and the Committee on Oversight and Government 
Reform of the House of Representatives on the status of the 
certification.

           *       *       *       *       *       *       *


 CHAPTER 29--RECORDS MANAGEMENT BY THE ARCHIVIST OF THE UNITED STATES 
              AND BY THE ADMINISTRATOR OF GENERAL SERVICES

Sec.
2901. Definitions.
     * * * * * * *
2912. Preservation of electronic messages and other records.

Sec. 2901. Definitions

  As used in this chapter, and chapters 21, 25, 31, and 33 of 
this title--
          (1) the term ``records'' has the meaning given it by 
        section 3301 of this title;
          (2) the term ``records management'' means the 
        planning, controlling, directing, organizing, training, 
        promoting, and other managerial activities involved 
        with respect to records creation, records maintenance 
        and use, and records disposition in order to achieve 
        adequate and proper documentation of the policies and 
        transactions of the Federal Government and effective 
        and economical management of agency operations;
          (3) the term ``records creation'' means the 
        production or reproduction of any record;
          (4) the term ``records maintenance and use'' means 
        any activity involving--
                  (A) location of records of a Federal agency;
                  (B) storage, retrieval, and handling of 
                records kept at office file locations by or for 
                a Federal agency;
                  (C) processing of mail by a Federal agency; 
                or
                  (D) selection and utilization of equipment 
                and supplies associated with records and 
                copying;
          (5) the term ``records disposition'' means any 
        activity with respect to--
                  (A) disposal of temporary records no longer 
                necessary for the conduct of business by 
                destruction or donation;
                  (B) transfer of records to Federal agency 
                storage facilities or records centers;
                  (C) transfer to the National Archives of the 
                United States of records determined to have 
                sufficient historical or other value to warrant 
                continued preservation; or
                  (D) transfer of records from one Federal 
                agency to any other Federal agency;
          (6) the term ``records center'' means an 
        establishment maintained and operated by the Archivist 
        or by another Federal agency primarily for the storage, 
        servicing, security, and processing of records which 
        need to be preserved for varying periods of time and 
        need not be retained in office equipment or space;
          (7) the term ``records management study'' means an 
        investigation and analysis of any Federal agency 
        records, or records management practices or programs 
        (whether manual or automated), with a view toward 
        rendering findings and recommendations with respect 
        thereto;
          (8) the term ``inspection'' means reviewing any 
        Federal agency's records or records management 
        practices or programs with respect to effectiveness and 
        compliance with records management laws and making 
        necessary recommendations for correction or improvement 
        of records management;
          (9) the term ``servicing'' means making available for 
        use information in records and other materials in the 
        custody of the Archivist, or in a records center--
                  (A) by furnishing the records or other 
                materials, or information from them, or copies 
                or reproductions thereof, to any Federal agency 
                for official use, or to the public; or
                  (B) by making and furnishing authenticated or 
                unauthenticated copies or reproductions of the 
                records or other materials;
          (10) the term ``unauthenticated copies'' means exact 
        copies or reproductions of records or other materials 
        that are not certified as such under seal and that need 
        not be legally accepted as evidence;
          (11) the term ``National Archives of the United 
        States'' means those official records which have been 
        determined by the Archivist of the United States to 
        have sufficient historical or other value to warrant 
        their continued preservation by the Federal Government, 
        and which have been accepted by the Archivist for 
        deposit in the Archivist's custody;
          (12) the term ``Archivist'' means the Archivist of 
        the United States;
          (13) the term ``executive agency'' shall have the 
        meaning given such term by section 102 of title 40;
          (14) the term ``Federal agency'' means any executive 
        agency or any establishment in the legislative or 
        judicial branch of the Government (except the Supreme 
        Court, the Senate, the House of Representatives, and 
        the Architect of the Capitol and any activities under 
        the direction of the Architect of the Capitol); [and]
          [(15) the term ``Administrator'' means the 
        Administrator of General Services.]
          (15) the term ``electronic messages'' means 
        electronic mail and other electronic messaging systems 
        that are used for purposes of communicating between 
        individuals; and
          (16) the term ``electronic records management 
        system'' means software designed to manage electronic 
        records, including by--
                  (A) categorizing and locating records;
                  (B) ensuring that records are retained as 
                long as necessary;
                  (C) identifying records that are due for 
                disposition; and
                  (D) ensuring the storage, retrieval, and 
                disposition of records.

           *       *       *       *       *       *       *


Sec. 2912. Preservation of electronic messages and other records

  (a) Regulations Required.--The Archivist shall promulgate 
regulations governing Federal agency preservation of electronic 
messages that are determined to be records. Such regulations 
shall, at a minimum--
          (1) require the electronic capture, management, and 
        preservation of such electronic records in accordance 
        with the records disposition requirements of chapter 
        33;
          (2) require that such electronic records are readily 
        accessible for retrieval through electronic searches; 
        and
          (3) include timelines for Federal agency 
        implementation of the regulations that ensure 
        compliance as expeditiously as practicable.
  (b) Ensuring Compliance.--The Archivist shall promulgate 
regulations that--
          (1) establish mandatory minimum functional 
        requirements for electronic records management systems 
        to ensure compliance with the requirements in 
        paragraphs (1) and (2) of subsection (a); and
          (2) establish a process to ensure that the electronic 
        records management system of each Federal agency meets 
        the functional requirements established under paragraph 
        (1).
  (c) Coverage of Other Electronic Records.--To the extent 
practicable, the regulations promulgated under subsections (a) 
and (b) shall also include requirements for the capture, 
management, and preservation of other electronic records.
  (d) Compliance by Federal Agencies.--Each Federal agency 
shall comply with the regulations promulgated under subsections 
(a) and (b).
  (e) Review of Regulations Required.--The Archivist shall 
periodically review and, as necessary, amend the regulations 
promulgated under subsections (a) and (b).

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