[Senate Report 118-235]
[From the U.S. Government Publishing Office]
Calendar No. 548
118th Congress} { Report
SENATE
2d Session } { 118-235
======================================================================
STRENGTHENING OVERSIGHT OF FEDERAL
RECORDS ACT OF 2024
__________
R E P O R T
OF THE
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
TO ACCOMPANY
S. 4042
TO AMEND TITLE 44, UNITED STATES CODE, TO
REFORM THE MANAGEMENT OF FEDERAL RECORDS, AND
FOR OTHER PURPOSES
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
November 12, 2024.--Ordered to be printed
__________
U.S. GOVERNMENT PUBLISHING OFFICE
WASHINGTON : 2024
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
GARY C. PETERS, Michigan, Chairman
THOMAS R. CARPER, Delaware RAND PAUL, Kentucky
MAGGIE HASSAN, New Hampshire RON JOHNSON, Wisconsin
KYRSTEN SINEMA, Arizona JAMES LANKFORD, Oklahoma
JACKY ROSEN, Nevada MITT ROMNEY, Utah
JON OSSOFF, Georgia RICK SCOTT, Florida
RICHARD BLUMENTHAL, Connecticut JOSH HAWLEY, Missouri
LAPHONZA R. BUTLER, California ROGER MARSHALL, Kansas
David M. Weinberg, Staff Director
Alan S. Kahn, Chief Counsel
Lena C. Chang, Director of Governmental Affairs
Emily I. Manna, Professional Staff Member
Dominic S. Thibault, Research Assistant
William E. Henderson III, Minority Staff Director
Christina N. Salazar, Minority Chief Counsel
Andrew J. Hopkins, Minority Counsel
Laura W. Kilbride, Chief Clerk
Calendar No. 548
118th Congress} { Report
SENATE
2d Session } { 118-235
======================================================================
STRENGTHENING OVERSIGHT OF FEDERAL
RECORDS ACT OF 2024
_______
November 12, 2024.--Ordered to be printed
_______
Mr. Peters, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany S. 4042]
[Including cost estimate of the Congressional Budget Office]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 4042) to amend
title 44, United States Code, to reform the management of
Federal records, and for other purposes, having considered the
same, reports favorably thereon with an amendment in the nature
of a substitute, and recommends that the bill, as amended, do
pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History..............................................3
IV. Section-by-Section Analysis of the Bill, as Reported.............4
V. Evaluation of Regulatory Impact..................................6
VI. Congressional Budget Office Cost Estimate........................7
VII. Changes in Existing Law Made by the Bill, as Reported............8
I. Purpose and Summary
S. 4042, the Strengthening Oversight of Federal Records Act
of 2024, would modernize the Federal Records Act and add
additional accountability measures for violations of federal
recordkeeping laws. Specifically, the bill clarifies that
federal employees must preserve any records sent using
ephemeral messaging apps, incorporates records management into
federal employee performance reviews, expands the scope of
violations that the U.S. National Archives and Records
Administration (NARA) must refer to the U.S. Department of
Justice (DOJ), codifies and expands NARA's existing electronic
record preservation program, and creates an advisory committee
on use of emerging technology for records management.
II. Background and Need for the Legislation
The Federal Records Act (FRA) governs the management of
government records, including the criteria for the creation,
preservation, disposal, and removal of federal records.\1\ The
FRA also provides mechanisms for recovering records that are
wrongly altered, destroyed, or removed.\2\ The FRA defines
records as follows:
---------------------------------------------------------------------------
\1\44 U.S.C. ch. 31 Sec. 3101 et seq.
\2\44 U.S.C. Sec. 3106.
Records includes all recorded information, regardless
of form or characteristics, made or received by a
Federal agency under Federal law or in connection with
the transaction of public business and preserved or
appropriate for preservation by that agency or its
legitimate successor as evidence of the organization,
functions, policies, decisions, procedures, operations,
or other activities of the Government or because of the
informational value of the data in them.\3\
---------------------------------------------------------------------------
\3\44 U.S.C. Sec. 3301(a)(1)(A).
The FRA requires the Archivist of the United States to
develop guidance and regulations for recordkeeping practices
and entrusts agency heads with implementing recordkeeping
requirements.\4\ The FRA gives agencies the ability to dispose
of records with insufficient historical or informational value,
with the permission of the Archivist. As such, agencies partner
with NARA to create records schedules that determine how long a
category of records must be preserved.\5\ In 2014, Congress
passed the Presidential and Federal Records Act Amendments of
2014 to update the law to account for electronic records.\6\
However, the emergence of new technologies and circumstances
necessitates additional reforms. Appropriately preserving the
records of the United States is vital to maintaining an
accurate historical record, ensuring transparency of decision
making, and enabling robust oversight.
---------------------------------------------------------------------------
\4\44 U.S.C. chs. 29 and 31.
\5\44 U.S.C. Sec. 3303 and Sec. 3303a.
\6\Pub. L. 113-187.
---------------------------------------------------------------------------
Rapidly emerging technology, including the proliferation of
electronic records, has challenged and exposed gaps in the
FRA.\7\ Ephemeral messaging apps such as WhatsApp and Signal
allow users to automatically delete messages and present
serious challenges to proper records management.\8\ NARA has
established programs to address electronic records, such as the
Capstone program which automatically archives certain senior
officials' emails--a program this bill would codify and
expand.\9\ Additionally, as of June 30, 2024, NARA no longer
accepts paper records from agencies, further cementing the
transition to electronic records.\10\
---------------------------------------------------------------------------
\7\Congressional Research Service, Retaining and Preserving Federal
Records in a Digital Environment: Background and Issues for Congress
(July 2013) (available at: https://crsreports.congress.gov/product/pdf/
R/R43165/4).
\8\National Archives and Records Administration, Bulletin 2015-02
(July 2015).
\9\National Archives and Records Administration, Bulletin 2013-02
(Aug 2013).
\10\Memorandum from Office of Management and Budget and NARA to
Heads of Executive Departments and Agencies Regarding an Update to the
Transition to Electronic Records (December 23, 2022).
---------------------------------------------------------------------------
Recent high-profile violations of the FRA demonstrate the
lack of adequate accountability mechanisms and highlight the
need for reform. High level officials in both the Obama and
Trump administrations failed to preserve electronic
communications that were sent on personal e-mail and messaging
accounts.\11\ Additionally, the United States Secret Service
deleted messages that were sent by officials, after they were
requested by Congress and the Department of Homeland Security
Inspector General, during an agency-wide reset of phones.\12\
---------------------------------------------------------------------------
\11\Department of State, Office of Inspector General, Office of the
Secretary: Evaluation of Email Records Management and Cybersecurity
Requirements (May 2016); Clinton Broke Federal Rules with Email Server,
Audit Finds, NBC News (May 2016) (https://www.nbcnews.com/news/us-news/
clinton-broke-federal-rules-email-server-audit-finds-n580131); American
Oversight, Top VA Officials Used Personal Email to Communicate with
Mar-A-Lago Members (May 2019) (https://www.americanoversight.org/top-
va-officials-used-personal-email-to-communicate-with-mar-a-lago-
members); Watchdog Report Says Mike Pompeo `Regularly' Used Personal
Email While Director of CIA, Newsweek (Oct. 21, 2020) (https://
www.newsweek.com/watchdog-report-says-mike-pompeo-regularly-used-
personal-email-while-director-cia-1541163).
\12\U.S. Secret Service Members Erased Jan. 5-6 Texts After
Messages Were Requested, Says Watchdog, CBS News (July 15, 2022)
(https://www.cbsnews.com/news/secret-service-jan-6-text-messages-erase/
).
---------------------------------------------------------------------------
The Strengthening Oversight of Federal Records Act of 2024
aims to update and strengthen federal records law to address
gaps in existing law and ensure greater accountability and
transparency. The bill prohibits the use of non-official
electronic messaging accounts unless messages are preserved,
prevents the deletion of records by automatic mechanism, and
codifies and expands NARA's Capstone program to categorize and
preserve senior officials' electronic messages. The bill also
ensures greater transparency of records schedules by requiring
the Archivist to make any final list of schedules accessible on
a public website. To ensure employee compliance, the bill
requires agencies to incorporate records management
requirements into employee performance reviews and mandates
that departing employees certify their recordkeeping compliance
before leaving agency employment. The bill also improves
accountability measures by expanding the scope of records
violations for which the agency heads must notify the
Archivist, who must subsequently notify Congress. The bill also
instructs the Archivist to work with the U.S. Attorney General
to remedy repeated instances of non-compliance. Lastly, the
bill creates an advisory committee to explore options for
utilizing technology to process and digitize records more
efficiently.
III. Legislative History
Senator Gary Peters (D-MI) introduced S. 4042, the
Strengthening Oversight of Federal Records Act of 2024, with
original cosponsor Senator John Cornyn (R-TX), on March 21,
2024. The bill was referred to the Committee on Homeland
Security and Governmental Affairs.
The Committee considered S. 4042 at a business meeting on
April 10, 2024. At the business meeting, Senator Peters offered
a substitute amendment, and a modification to that amendment.
The Peters substitute amendment, as modified, clarifies that a
provision relating to remedying records violations applies to
all records and changes the authorization of appropriations to
a total of $1 million for the federal advisory committee. The
Committee adopted the modification to the Peters amendment, and
the Peters substitute amendment as modified, by unanimous
consent, with Senators Peters, Hassan, Sinema, Rosen, Ossoff,
Blumenthal, Butler, Paul, Lankford, Romney, Scott, Hawley, and
Marshall present. The bill, as amended by the Peters amendment
as modified, was ordered reported favorably by roll call vote
of 10 yeas to 3 nays, with Senators Peters, Hassan, Sinema,
Rosen, Ossoff, Blumenthal, Butler, Lankford, Scott, and
Marshall voting in the affirmative, and with Senators Paul,
Romney, and Hawley voting in the negative. Senators Carper and
Johnson voted yea by proxy, for the record only.
Consistent with Committee Rule 3(G), the Committee reports
the bill with a technical amendment by mutual agreement of the
Chairman and Ranking Member.
IV. Section-by-Section Analysis of the Bill, as Reported
Section 1. Short title; Table of contents
This section establishes the short title of the bill as the
Strengthening Oversight of Federal Records Act of 2024. It also
provides a table of contents for this Act.
TITLE I. FEDERAL RECORDS REFORM
Section 101. Preservation of federal electronic records
Subsection (a) updates the existing provision for use of
non-official electronic messaging accounts, by prohibiting the
use of non-official electronic messaging accounts unless they
are sent on an application that automatically preserves
records. It also prohibits deletion of such records, including
by an automatic mechanism.
Subsection (b) enhances the requirement to ensure there
adequate and proper documentation of how agencies ensure
records are captured appropriately.
Subsection (c) adds definitions for ``complete data'' and
``readable'' to the definitions section of 44 U.S.C. Chapter
29.
Section 102. Whistleblower protections
Subsection (a) includes a definition for ``whistleblower
protection'' to match 5 U.S.C. 2302(c)(1).
Subsection (b) clarifies that these preservation
requirements should not impair the ability of personnel to
receive whistleblower protections.
Section 103. Preservation of electronic messages of certain officials
Subsection (a) codifies NARA's Capstone program, which
categorizes the electronic messages of senior officials as
permanent records and requires the preservation of messages in
accordance with guidelines from the Archivist. This section
provides a list of officials whose electronic messages should
be preserved, at minimum. It also requires agencies to report
to the Archivist every five years about agency compliance with
the preservation of senior agency officials' electronic
messages and requires agencies to make these reports publicly
available.
Subsection (b) makes a conforming amendment to 44 U.S.C.
Chapter 29 to add the Sec. 2913 created in subsection (a).
Section 104. Proactive disclosure of record retention schedules
Subsection (a) requires the Archivist to make any final
list or schedule of records accessible to the public on the
agency's website and directs agencies to submit to the
Archivist each list or schedule that is in effect at the date
of enactment.
Subsection (b) gives additional regulatory authority to
NARA for procedures and standards of ease-of-use for public
inspection of the online records created in subsection (a).
Section 105. Certification regarding preservation of records
Subsection (a) requires the head of each agency to develop
a process for departing employees to certify that they have met
their obligations under the Federal Records Act prior to
separating from service.
Subsection (b) makes a conforming amendment to 44 U.S.C.
Chapter 29 to add the Sec. 2914 created in subsection (a).
TITLE II. ADDITIONAL REFORMS TO PRESERVE AND PROTECT RECORDS AND
GOVERNMENT INTEGRITY
Section 201. Unlawful removal, destruction of records
This section updates 44 U.S.C. 3106, in paragraph (1) it
adds repeated non-compliance with federal record keeping
obligations as a reason the head of an agency must notify the
Archivist, and requires the Archivist to work with the agency
head and Attorney General to remedy such repeated non-
compliance.
In paragraph (2) it requires the Archivist to notify the
Senate Committee on Homeland Security and the House Committee
on Oversight and Accountability of such an agency notification.
In paragraph (3) it requires the Archivist to notify an
agency head and coordinate with the agency if NARA becomes
aware of a records violation. It also requires NARA to jointly
refer the matter to the agency's Office of Inspector General.
Section 202. Records management incorporation into performance plans
This section requires the head of each agency, in
consultation with the Director of the Office of Personnel
Management and the Archivist, to incorporate records management
requirements into employee performance plans.
Section 203. Establishment of an Advisory Committee on Records
Automation
Subsection (a) establishes an ``Advisory Committee on
Records Automation.''
Subsection (b) charges the Advisory Committee on Records
Automation with exploring options for utilizing technology to
process and digitize federal records more efficiently.
Subsection (c) gives the Advisory Committee on Records
Automation the duty of providing advice and recommendations to
the Archivist and agencies on matters regarding records
automation.
Subsection (d) provides the composition of the Advisory
Committee and how such positions are to be filled.
Subsection (e) provides the length of appointment and how
to fill vacancies.
Subsection (f) provides how quickly and often the Advisory
Committee must meet, plus its quorum requirements and rules of
procedures.
Subsection (g) requires the advisory committee to submit a
final report on its findings within two years, as well as
interim reports as appropriate.
Subsection (h) gives the Advisory Committee certain powers,
including the ability to secure information any Federal
department or agency, use the U.S. Postal Service similar to a
federal agency or department, and allows for the use of
donations of service or property.
Subsection (i) clarifies that Advisory Committee members
are not government employees (except if they have another job
as a federal employee), with the exception that they may be
reimbursed for travel expenses.
Subsection (j) terminates the Advisory Committee 90 days
after it submits the final report defined in (g)(1).
Subsection (k) authorizes $500,000 for the advisory
committee, for each of Fiscal Years 2025 and 2026.
Subsection (l) gives the Advisory Committee an exemption
from the requirements of the Federal Advisory Committee Act.
Section 204. Regulations
This section requires the Archivist to issue regulations
for documenting required metadata.
V. Evaluation of Regulatory Impact
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill and determined
that the bill will have no regulatory impact within the meaning
of the rules. The Committee agrees with the Congressional
Budget Office's statement that the bill contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act (UMRA) and would impose no costs
on state, local, or tribal governments.
VI. Congressional Budget Office Cost Estimate
S. 4042 would amend the rules related to the management of
federal records. Specifically, the bill would:
Clarify the role of the National Archives
and Records Administration (NARA) in collecting and
preserving federal records,
Prohibit the use of nonofficial electronic
messaging accounts by executive branch employees for
official business without proper records management
procedures in place for those accounts,
Require federal agencies to establish
policies under which employees leaving federal service
certify that the employee has complied with
recordkeeping requirements,
Require the Office of Personnel Management
to develop criteria that incorporates records
management into employee performance reviews, and
Authorize the appropriation of $500,000 for
both 2025 and 2026 to establish an advisory committee
on records automation.
The Federal Records Act (FRA) governs the collection,
retention, and preservation of federal agency records. The FRA
also governs how federal records are to be destroyed or
provided to NARA for permanent archiving. Under the FRA, 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.
Using information from NARA and selected agencies, CBO
expects most of the provisions of the bill would clarify
current activities to manage federal records and expand
reporting requirements. There would be some administrative
costs governmentwide to implement the bill. Based on the costs
of similar activities, CBO estimates that costs of additional
records management and reporting requirements would be about $4
million over the 2025-2029 period. Including the authorized
amounts for the advisory committee, CBO estimates that
implementing the bill would cost $5 million over the 2025-2029
period. Any related spending would be subject to the
availability of appropriated funds.
Enacting S. 4042 also could affect direct spending by some
agencies that are allowed to use fees, receipts from the sale
of goods, and other collections to cover operating costs. CBO
estimates that any net changes in direct spending by those
agencies would be negligible because most of them can adjust
amounts collected to reflect changes in operating costs.
The CBO staff contact for this estimate is Matthew
Pickford. The estimate was reviewed by H. Samuel Papenfuss,
Deputy Director of Budget Analysis.
Phillip L. Swagel,
Director, Congressional Budget Office.
VII. Changes in Existing Law Made by the Bill, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in brackets, new matter is
printed in italic, and existing law in which no change is
proposed is shown in roman):
UNITED STATES CODE
* * * * * * *
TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES
* * * * * * *
PART III--EMPLOYEES
* * * * * * *
Subpart C--Employee Performance
* * * * * * *
CHAPTER 43--PERFORMANCE APPRAISAL
* * * * * * *
Subchapter I--General Provisions
* * * * * * *
SEC. 4302. ESTABLISHMENT OF PERFORMANCE APPRAISAL SYSTEMS
(a) * * *
(b) * * *
(c) The head of each agency, in consultation with the
Director of the Officer of Personnel Management and the
Archivist of the United States, shall develop criteria that
incorporates records management requirements that should be
included in employees' performance standards and reviews.
[(c)] (d) Under regulations which the Office of Personnel
Management shall prescribe, each performance appraisal system
shall provide for--
(1) * * *
(2) * * *
(3) * * *
(4) * * *
(5) * * *
(6) * * *
[(d)] (e) In accordance with regulations which the Office
shall prescribe
* * * * * * *
TITLE 44--PUBLIC PRINTING AND DOCUMENTS
* * * * * * *
CHAPTER 22--PRESIDENTIAL RECORDS
* * * * * * *
SEC. 2206. REGULATIONS
(a) 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)] 2203(g)(4);
(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 procedures for
documenting required metadata.
(b) The Archivist shall issue, and shall regularly update,
implementation guidance with respect to the regulations
described in subsection (a)(5).
* * * * * * *
CHAPTER 29--RECORDS MANAGEMENT BY THE ARCHIVIST OF THE UNITED STATES
AND BY THE ADMINISTRATOR OF GENERAL SERVICES
Sec.
2901. Definitions.
* * * * * * *
2913. Preservation of electronic messages of senior officials.
2914. Certifications regarding preservation of records.
* * * * * * *
SEC. 2901. DEFINITIONS
As used in this chapter, and chapters 21, 25, 31, and 33 of
this title--
(1) * * *
(2) * * *
(3) * * *
(4) * * *
(5) * * *
(6) * * *
(7) * * *
(8) * * *
(9) * * *
(10) * * *
(11) * * *
(12) * * *
(13) * * *
(14) * * *
(15) the term ``electronic messages'' means
electronic mail and other electronic messaging systems
that are used for purposes of communicating between
individuals; [and]
(16) * * *
(a) * * *
(b) * * *
(c) * * *
(d) ensuring the storage, retrieval, and
disposition of records[.];
(17) the term `complete copy' means a copy of all of
the contents of a record, including the metadata with
respect to the record; and
(18) the term `readable' means media that is
retrievable and usable for as long as needed to conduct
Government business and to transfer permanent email
records to the National Archives and Records
Administration.
SEC. 2911. DISCLOSURE REQUIREMENT FOR OFFICIAL BUSINESS CONDUCTED USING
NON-OFFICIAL ELECTRONIC MESSAGING ACCOUNTS
[(a) In General.--An officer or employee of an executive
agency may not create or send a record using a non-official
electronic messaging account unless such officer or employee--
[(1) copies an official electronic messaging account
of the officer or employee in the original creation or
transmission of the record; or
[(2) forwards a complete copy of the record to an
official electronic messaging account of the officer or
employee not later than 20 days after the original
creation or transmission of the record.]
(a) In General.--An officer or employee of an executive
agency shall not--
(1) destroy or delete any record created, sent, or
received using a non-official electronic messaging
account, including through any automatic mechanism,
unless the record has been copied or forwarded to an
official electronic messaging account of the officer or
employee; or
(2) create, receive, or send a record using a non-
official electronic messaging account unless--
(A) the policies and procedures of the
executive agency authorize such use by the
officer or employee;
(B) the account is subject to records
management controls to create and preserve
readable records; and
(C) the officer or employee--
(i) copies an official electronic
messaging account of the officer or
employee in the original creation or
transmission of the record; or
(ii) forwards a complete copy of the
record to an official electronic
messaging account of the officer or
employee not later than 20 days after
the original creation or transmission
of the record.
(b) Adverse Actions.--The intentional violation of
subsection (a) (including any rules, regulations, or other
implementing guidelines), as determined by the appropriate
supervisor, shall be a basis for disciplinary action in
accordance with subchapter I, II, or V of chapter 75 of title
5, as the case may be, unless the violation involves a
disclosure, as defined in section 2302(a)(2) of title 5.
(c) Definitions.--In this section:
(1) Electronic messages.--The term ``electronic
messages'' means electronic mail and other electronic
messaging systems, including social media and digital
applications and platforms, that are used for purposes
of communicating between individuals.
* * * * * * *
SEC. 2913. PRESERVATION OF ELECTRONIC MESSAGES OF CERTAIN OFFICIALS
(a) Regulations Required.--
(1) In general.--The Archivist shall promulgate
regulations governing Federal agency preservation of
electronic messages of employees, which shall, at a
minimum--
(A) require that the electronic messages of
senior officers or senior employees of Federal
agencies be designated as a permanent record,
as defined in section 1220.18 of title 36, Code
of Federal Regulations, or any successor
thereto;
(B) require that the electronic messages of
senior officers or senior employees of Federal
agencies--
(i) be stored in accordance with
guidelines prescribed by the Archivist;
and
(ii) are readily accessible for
retrieval through electronic searches;
(C) establish general categories of positions
in Federal agencies that constitute senior
officers and senior employees; and
(D) allow for the culling of transitory
messages, messages that are not records, and
personal messages as appropriate.
(2) Scope.--The regulations promulgated under
paragraph (1) shall, at a minimum, apply to electronic
messages of--
(A) the head of each Federal agency;
(B) the principal assistant to the head of
each Federal agency, including a member of the
Armed Forces serving in a comparable position;
(C) an officer or employee serving as a
deputy, or equivalent position, of an officer,
employee, or member described in subparagraph
(A) or (B);
(D) an employee serving as a staff assistant
to an officer, employee, or member described in
subparagraph (A) or (B), including a special
assistant, confidential assistant, military
assistant, and aide;
(E) an officer or employee serving in a
principal management position at a Federal
agency, including the Chief Operating Officer,
the Chief Information Officer, the Chief
Knowledge Officer, the Chief Technology
Officer, the Chief Financial Officer, and an
equivalent of such an officer;
(F) the director, or equivalent position, of
a significant program office of a Federal
agency;
(G) a principal regional officer of a Federal
agency, including a regional administrator, or
equivalent position;
(H) an officer or employee serving in a
position that routinely provides advice to or
oversight of a Federal agency, including advice
to or oversight of the activities of an
officer, employee, or member described in
subparagraph (A), (B), (C), (E), (F), or (G),
including an officer or employee serving as a
general counsel, chief of staff, or inspector
general;
(I) an officer or employee appointed by the
President, by and with the advice and consent
of the Senate;
(J) any other officer or employee serving in
a position that predominantly creates permanent
records related to mission critical functions
or policy decisions of a Federal agency or that
are of historical significance; and
(K) any officer or employee serving in a
position described in subparagraph (A), (B),
(C), (D), (E), (F), (G), (H), (I), or (J) in an
acting capacity.
(b) Agency Report to Archivist.--
(1) In general.--Not later than the date specified in
paragraph (2), and every 5 years thereafter, the head
of each Federal agency shall submit to the Archivist a
report on the compliance of the Federal agency with
subsection (a), including statistics on--
(A) the number of senior officers and senior
employees of the Federal agency whose
electronic messages are being stored as
permanent records in accordance with guidelines
prescribed by the Archivist;
(B) the volume of electronic messages of
senior officers and senior employees of the
Federal agency designated as a permanent record
that are held by the Federal agency; and
(C) the volume of total electronic messages
of officers and employees of the Federal agency
that are held by the Federal agency.
(2) Deadline for initial reports.--The date specified
in this paragraph is the earlier of--
(A) the date that is 210 days after the date
on which the Archivist promulgates regulations
under subsection (a); or
(B) the date that is 1 year after the date of
enactment of this section.
(3) Public availability.--Not later than 30 days
after submitting a report required under paragraph (1)
to the Archivist, the head of a Federal agency shall
make the report publicly available in an accessible
electronic format on the website of the Federal agency.
SEC. 2914. CERTIFICATION REGARDING PRESERVATION OF RECORDS
The head of each Federal agency shall establish policies
and procedures under which each employee of the Federal agency
shall, prior to separating from service as an employee of the
Federal agency, submit to the head of the Federal agency a
certification indicating whether the employee has complied with
the requirements under this chapter relating to the
preservation of records.
* * * * * * *
CHAPTER 31--RECORDS MANAGEMENT BY FEDERAL AGENCIES
* * * * * * *
SEC. 3105. SAFEGUARDS
The head of each Federal agency shall establish safeguards
[against] to ensure the adequate and proper documentation of
the organization, functions, policies, decisions, procedures,
and essential transactions of the Federal agency and to prevent
the removal or loss of records the head of such agency
determines to be necessary and required by regulations of the
Archivist. Safeguards shall include making it known to
officials and employees of the agency--
(1) * * *
(2) * * *
* * * * * * *
SEC. 3106. UNLAWFUL REMOVAL, DESTRUCTION OF RECORDS
[(a) Federal Agency Notification.--The head of each Federal
agency shall notify the Archivist of any actual, impending, or
threatened unlawful removal, defacing, alteration, corruption,
deletion, erasure, or other destruction of records in the
custody of the agency, and with the assistance of the Archivist
shall initiate action through the Attorney General for the
recovery of records the head of the Federal agency knows or has
reason to believe have been unlawfully removed from that
agency, or from another Federal agency whose records have been
transferred to the legal custody of that Federal agency.]
(a) Federal Agency Notification of Unlawful Removal or
Destruction of Records.--
(1) In general.--The head of each Federal agency
shall notify the Archivist if the head of the Federal
agency knows or has reason to believe that there is--
(A) any actual, impending, or threatened
unlawful failure to create or removal,
defacing, alteration, corruption, deletion,
erasure, or other destruction of records in the
custody of the Federal agency; or
(B) any other repeated non-compliance by any
employee of the Federal agency with Federal
record-keeping requirements that the head of
the Federal agency has been unable to fully
address.
(2) Remedy.--With the assistance of the Archivist,
the head of each Federal agency shall initiate action
through the Attorney General for--
(A) fully recovering or restoring records
unlawfully removed from the Federal agency,
including records of another Federal agency
that have been transferred to the legal custody
of that Federal agency, or records that are
defaced, altered, corrupted, deleted, erased,
or destroyed, to the extent practicable; and
(B) remedying any other repeated non-
compliance by any employee of the Federal
agency with Federal record-keeping
requirements.
(b) Archivist Notification.--In any case in which the head
of a Federal agency does not initiate an action for such
recovery or other redress within a reasonable period of time
after being notified of any such unlawful action described in
subsection (a), or is participating in, or believed to be
participating in any such unlawful action, the Archivist [shall
request the Attorney General to initiate such an action, and
shall notify the Congress when such a request has been made.]
shall--
(1) request the Attorney General to initiate such an
action;
(2) notify the Committee on Homeland Security and
Governmental Affairs of the Senate and the Committee on
Oversight and Accountability of the House of
Representatives;
(3) include with the notification under paragraph (2)
any relevant evidence, analysis, and supporting
documentation pertinent to the incident; and
(4) in coordination with the Attorney General, make
regular updates to the committees specified in
paragraph (2) on the status of efforts to remedy the
unlawful action or noncompliance.
(c) Other Recordkeeping Violations.--
(1) In general.--If the Archivist becomes aware of an
alleged violation by an employee of a Federal agency of
his or her recordkeeping obligations, the Archivist
shall--
(A) notify the head of the Federal agency and
coordinate with the Federal agency to determine
whether a violation took place; and
(B) subject to paragraph (2), refer the
matter to the head of the Federal agency for
corrective action, as necessary.
(2) Agencies with inspectors general.--If the
Archivist makes a referral described in paragraph
(1)(B) to a Federal agency that has an Inspector
General (as defined in section 401 of title 5), the
Archivist shall make a joint referral to the head of
the Federal agency and to the Inspector General of the
Federal agency.
* * * * * * *
CHAPTER 33--DISPOSAL OF RECORDS
* * * * * * *
SEC. 3302. REGULATIONS COVERING LISTS OF RECORDS FOR DISPOSAL,
PROCEDURE FOR DISPOSAL, AND STANDARDS FOR
REPRODUCTION
The Archivist shall promulgate regulations, not
inconsistent with this chapter, establishing--
(1) procedures for the compiling and submitting to
the Archivist of lists and schedules of records
proposed for disposal[,];
(2) procedures for the disposal of records authorized
for disposal[, and];
(3) standards for the reproduction of records by
photographic, microphotographic, or digital processes
with a view to the disposal of the original records[.];
and
(4) procedures and minimum standards of ease-of-use
for public inspection and online maintenance of lists,
schedules, and related materials pursuant to section
3303(b).
* * * * * * *
SEC. 3303. LISTS AND SCHEDULES OF RECORDS TO BE SUBMITTED TO THE
ARCHIVIST BY HEAD OF EACH GOVERNMENT AGENCY
[The head] (a) The head of each agency of the United States
Government shall submit to the Archivist, under regulations
promulgated as provided by section 3302 of this title--
(1) * * *
(2) * * *
(3) * * *
(b)(1) For each list or schedule of records issued under
subsection (a) that is approved by the Archivist, the Archivist
shall--
(A) not later than 30 days after the date on which
the Archivist approves the list or schedule, make the
list or schedule available for public inspection;
(B) make available and maintain the list or schedule
in an accessible electronic database on a website of
the National Archives and Records Administration,
including the relevant crosswalk and appraisal memo;
and
(C) ensure the list or schedule, and all related
materials, are organized in such fashion as to--
(i) facilitate public understanding of the
operations of the records management program of
the Federal agency; and
(ii) assist the Archivist in cataloging
disposition authorities.
(2) Not later than 60 days after the date of enactment of
the Strengthening Oversight of Federal Records Act of 2024, the
head of each Federal agency shall submit to the Archivist each
list or schedule of records issued under subsection (a) before
such date of enactment that is in effect on such date of
enactment, and all related materials, for immediate publication
in the database described in paragraph (1).
(3) The database described in paragraph (1) shall be
searchable and maintained as an open Government data asset, as
defined in section 3502.
* * * * * * *
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