[Federal Register Volume 60, Number 109 (Wednesday, June 7, 1995)]
[Rules and Regulations]
[Pages 29989-29992]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13951]



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NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

36 CFR Part 1236

RIN 3095-AA51


Management of Vital Records

AGENCY: National Archives and Records Administration.

ACTION: Final rule.

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SUMMARY: This regulation revises NARA regulations on Federal agencies' 
management of vital records in order to place the vital records program 
in the context of agency emergency management responsibilities. The 
vital records program is intended to ensure continuity of agency 
operations and protect rights of citizens and the Government. The 
regulation affects all Federal agencies.

EFFECTIVE DATE: This rule is effective June 7, 1995.

FOR FURTHER INFORMATION CONTACT: Mary Ann Hadyka or Nancy Allard at 
301-713-6730.

SUPPLEMENTARY INFORMATION: NARA published a notice of proposed 
rulemaking on May 31, 1994 (59 FR 28033) for a 60-day comment period. 
The proposed rule expanded the vital records program to incorporate 
contingency planning and records disaster mitigation and recovery. 
Twenty written comments were received. It was clear that the extension 
of the regulation on vital records to a broader context was perceived 
by the agencies to be confusing, redundant, and burdensome. 
Consequently, NARA has revised the regulation to limit its application 
to vital records responsibilities, in the context of the larger 
emergency management program. Additional information will be provided 
in a forthcoming NARA management guide. The guide will provide more 
detail on vital records program planning, identifying vital records, 
training agency staff, and assessing records damaged in an emergency or 
disaster to determine what steps, if any, should be taken to recover 
the information in them. Its provisions will be advisory, rather than 
mandatory.
    Following is a section-by-section discussion of the major issues 
raised in the written comments.

Section-by-Section Analysis

Section 1236.10  Purpose

    One agency thought that vital records should be presented as part 
of the disaster recovery program, rather than the reverse. Another 
agency recommended that the rule clarify the relationship between 
contingency planning, vital records, and records disaster mitigation 
and recovery. This section has been modified to reflect the revised 
scope of the regulation.

Section 1236.12  Authority

    NARA reconsidered the authorities cited for this regulation and 
deleted 44 U.S.C. 3105 because that section of the law relates to 
unauthorized disposal. It supports the records disposition regulations 
at 36 CFR 1228 and has no direct relationship to regulations on vital 
records.

Section 1236.14  Definitions 

    One agency noted that the definition of contingency planning 
actually described risk analysis. Another agency recommended that the 
definition of emergency operating records be modified to clearly cover 
records [[Page 29990]] needed to operate during and after an emergency 
in addition to records containing procedures for operating during an 
emergency. That agency also suggested that the definition of records 
disaster mitigation and recovery was too broad and recommended that it 
be clearly limited to emergency situations. The definitions of 
contingency planning and emergency operating records have been revised. 
In response to a third agency recommendation, the definition of off-
site was added. NARA changed rights-and-interests records to legal and 
financial rights records because the latter term is more precise. The 
definitions of emergency coordinator, hazard, and vital records 
manager, were deleted because they are not used in the revised 
regulation.

Sections 1236.20 through 1236.24

    These sections, originally proposed to cover contingency planning, 
have been deleted. Contingency planning for emergencies is adequately 
covered in FEMA issuances such as the ``Federal Response Planning 
Guide, Continuity of Operations (COOP) Planning Guidance (FRPG 01-
94).''

Section 1236.30  Vital Records Program

    Six agencies questioned one or more of the elements of the vital 
records program described in this section, including issuance of a 
separate directive for the program, establishing a separate position 
for the vital records manager, providing training, and conducting 
annual reviews. NARA did not intend this section to require separate 
directives, full-time positions, elaborate training, or burdensome 
reviews. Management of vital records should be the responsibility of 
the agency records manager. It is one of many records management 
functions that should be addressed in agency records management 
directives, training, and program reviews. This section was modified to 
include only the basic requirements relating specifically to vital 
records.

Section 1236.32  Identifying, Using and Protecting Vital Records

    This section has been divided into three sections, now designated 
Sec. 1236.22, Sec. 1236.24, and Sec. 1236.26. One agency recommended 
that the inventory of vital records be integrated into the records 
scheduling process. NARA did not intend that this inventory necessarily 
duplicate inventorying for scheduling. Section 1236.22 clarifies that 
point, and further explanation will be provided in the forthcoming 
guide. Another agency suggested that common vital records be so 
designated in the General Records Schedules. NARA declines to accept 
this suggestion because many vital records common to many agencies are 
permanent and therefore not in the General Records Schedules (GRS). 
Many other vital records are unique to individual agencies. As vital 
records are identified in the course of contingency planning, NARA 
believes it inappropriate to mandate that specific series in the GRS be 
treated as vital records.
    One agency recommended that this section more clearly address 
electronic records and security backup copies. In particular, the 
agency asked if electronic records could be regarded as the vital 
record copy, even if it is not an exact duplicate. In Sec. 1236.22, 
NARA modified the regulation to clarify that it is the informational 
content, not the form, of the records that must be considered. Also, 
Sec. 1236.26 indicates that copies of electronic records created for 
security purposes are adequate for protecting vital information, even 
if the copies include records not containing vital information. 
Additional guidance on electronic records will be provided in the 
forthcoming guide.
    Two agencies raised questions about copies of vital records, and 
one recommended a risk analysis to determine whether duplication is 
necessary. Section 1236.24 clarifies that agencies determine when 
copies are needed.
    Several agencies questioned the restriction on use of Federal 
Records Centers (FRC's) to copies of legal and financial rights 
records. We have modified the rule at Sec. 1236.26(c) to allow agencies 
to store emergency operating records at FRC's under certain conditions.
    One agency pointed out that not all vital record copies are cycled, 
and two agencies stated that the disposition of the copies may not be 
the same as the originals. This rule was clarified on these points.

Sections 1236.40 and 1236.42  Records Disaster Mitigation and Recovery 
Program

    Three agencies found Sec. 1236.40, Records protection, confusing in 
relation to the scope of the records protection plan. Three agencies 
raised questions about the scope of Sec. 1236.42, Elements of a records 
disaster mitigation and recovery program. One recommended that the 
program be integrated with information security plans and contingency 
of operations plans. Another objected to the requirement that agencies 
test records recovery programs for all offices. The third asked if a 
plan was required for each series or for records in each medium. NARA 
reconsidered the propriety of including this level of detail about the 
broader emergency management program in its regulations on vital 
records and deleted the entire section. NARA concluded that the 
proposed regulation was confusing to agencies, duplicative of 
requirements imposed by FEMA on emergency management and by GSA on 
computer security, and unnecessarily burdensome.
    The Administrative Procedures Act (5 U.S.C. 553(d)) provides that 
the effective date of a final rule may be less than 30 days after 
publication in the Federal Register when the rule relieves a 
restriction. This rule will allow agencies to store their emergency 
operating vital records in the Federal Records Centers. Previously, 
only legal and financial rights vital records could be transferred to a 
records center. Accordingly, we are making this final rule effective 
immediately.
    This rule is not a significant regulatory action for purposes of 
Executive Order 12866 of September 30, 1993, and has not been reviewed 
under the Order by the Office of Management and Budget. As required by 
the Regulatory Flexibility Act, it is hereby certified that this rule 
will not have a significant impact on small entities.

List of Subjects in 36 CFR 1236

    Archives and records.

    For the reasons set forth in the preamble, 36 CFR chapter XII is 
amended by revising part 1236 to read as follows:

PART 1236--MANAGEMENT OF VITAL RECORDS

Subpart A--General

Sec.
1236.10  Purpose.
1236.12  Authority.
1236.14  Definitions.

Subpart B--Vital Records

1236.20  Vital records program objectives.
1236.22  Identification of vital records.
1236.24  Use of vital records and copies of vital records.
1236.26  Protection of vital records.
1236.28  Disposition of original vital records.

    Authority: 44 U.S.C. 2104(a), 2904(a), 3101; E. O. 12656, 53 FR 
47491, 3 CFR, 1988 Comp., p. 585.

Subpart A--General


Sec. 1236.10  Purpose.

    This part prescribes policies and procedures for establishing a 
program for the identification and protection of vital records, those 
records needed by [[Page 29991]] agencies for continuity of operations 
before, during, and after emergencies, and those records needed to 
protect the legal and financial rights of the Government and persons 
affected by Government activities. The records may be maintained on a 
variety of media including paper, magnetic tape or disk, photographic 
film, and microfilm. The management of vital records is part of an 
agency's continuity of operations plan designed to meet emergency 
management responsibilities.


Sec. 1236.12  Authority.
    Heads of agencies are responsible for the vital records program 
under the following authorities:
    (a) To make and preserve records containing adequate and proper 
documentation of the agency's organization, functions, policies, 
procedures, decisions, and essential transactions, and to furnish 
information to protect the legal and financial rights of the Government 
and of persons directly affected by the agency's activities (44 U.S.C. 
3101).
    (b) To perform national security emergency preparedness functions 
and activities (Executive Order 12656).


Sec. 1236.14  Definitions.

    Basic records management terms are defined in 36 CFR 1220.14. As 
used in part 1236:
    Contingency planning means instituting policies and procedures to 
mitigate the effects of potential emergencies or disasters on an 
agency's operations and records. Contingency planning is part of the 
continuity of operations planning required under Federal Preparedness 
Circulars and other guidance issued by the Federal Emergency Management 
Agency (FEMA) and Executive Order 12656.
    Cycle means the periodic removal of obsolete copies of vital 
records and their replacement with copies of current vital records. 
This may occur daily, weekly, quarterly, annually or at other 
designated intervals.
    Disaster means an unexpected occurrence inflicting widespread 
destruction and distress and having long-term adverse effects on agency 
operations. Each agency defines what a long-term adverse effect is in 
relation to its most critical program activities.
    Emergency means a situation or an occurrence of a serious nature, 
developing suddenly and unexpectedly, and demanding immediate action. 
This is generally of short duration, for example, an interruption of 
normal agency operations for a week or less. It may involve electrical 
failure or minor flooding caused by broken pipes.
    Emergency operating records are that type of vital records 
essential to the continued functioning or reconstitution of an 
organization during and after an emergency. Included are emergency 
plans and directive(s), orders of succession, delegations of authority, 
staffing assignments, selected program records needed to continue the 
most critical agency operations, as well as related policy or 
procedural records that assist agency staff in conducting operations 
under emergency conditions and for resuming normal operations after an 
emergency.
    Legal and financial rights records are that type of vital records 
essential to protect the legal and financial rights of the Government 
and of the individuals directly affected by its activities. Examples 
include accounts receivable records, social security records, payroll 
records, retirement records, and insurance records. These records were 
formerly defined as ``rights-and-interests'' records.
    National security emergency means any occurrence, including natural 
disaster, military attack, technological emergency, or other emergency, 
that seriously degrades or threatens the national security of the 
United States, as defined in Executive Order 12656.
    Off-site storage means a facility other than an agency's normal 
place of business where vital records are stored for protection. This 
is to ensure that the vital records are not subject to damage or 
destruction from an emergency or disaster affecting an agency's normal 
place of business.
    Vital records mean essential agency records that are needed to meet 
operational responsibilities under national security emergencies or 
other emergency or disaster conditions (emergency operating records) or 
to protect the legal and financial rights of the Government and those 
affected by Government activities (legal and financial rights records).
    Vital records program means the policies, plans, and procedures 
developed and implemented and the resources needed to identify, use, 
and protect the essential records needed to meet operational 
responsibilities under national security emergencies or other emergency 
or disaster conditions or to protect the Government's rights or those 
of its citizens. This is a program element of an agency's emergency 
management function.

Subpart B--Vital Records


Sec. 1236.20  Vital records program objectives.

    The vital records program is conducted to identify and protect 
those records that specify how an agency will operate in case of 
emergency or disaster, those records vital to the continued operations 
of the agency during and after an emergency or disaster, and records 
needed to protect the legal and financial rights of the Government and 
of the persons affected by its actions. An agency identifies vital 
records in the course of contingency planning activities carried out in 
the context of the emergency management function. In carrying out the 
vital records program agencies shall:
    (a) Specify agency staff responsibilities;
    (b) Ensure that all concerned staff are appropriately informed 
about vital records;
    (c) Ensure that the designation of vital records is current and 
complete; and
    (d) Ensure that vital records and copies of vital records are 
adequately protected, accessible, and immediately usable.
Sec. 1236.22  Identification of vital records.

    Vital records include emergency plans and related records that 
specify how an agency is to respond to an emergency as well as those 
records that would be needed to continue operations and protect legal 
and financial rights. Agencies should consider the informational 
content of records series and electronic records systems when 
identifying vital records. Only the most recent and complete source of 
the vital information needs to be treated as vital records.


Sec. 1236.24  Use of vital records and copies of vital records.

    Agencies shall ensure that retrieval procedures for vital records 
require only routine effort to locate needed information, especially 
since individuals unfamiliar with the records may need to use them 
during an emergency or disaster. Agencies also shall ensure that all 
equipment needed to read vital records or copies of vital records will 
be available in case of emergency or disaster. For electronic records 
systems, agencies also shall ensure that system documentation adequate 
to operate the system and access the records will be available in case 
of emergency or disaster.


Sec. 1236.26  Protection of vital records.

    Agencies shall take appropriate measures to ensure the survival of 
the vital records or copies of vital records in [[Page 29992]] case of 
emergency or disaster. In the case of electronic records, this 
requirement is met if the information needed in the event of emergency 
or disaster is available in a copy made for general security purposes, 
even when the copy contains other information.
    (a) Duplication. Computer backup tapes created in the normal course 
of system maintenance or other electronic copies that may be routinely 
created in the normal course of business may be used as the vital 
record copy. For hard copy records, agencies may choose to make 
microform copies. Standards for the creation, preservation and use of 
microforms are found in 36 CFR part 1230, Micrographic Records 
Management. The Computer Security Act of 1987 (40 U.S.C. 759, Pub. L. 
100-235), OMB Circular A-130, and 36 CFR part 1234, Electronic Records 
Management, and 41 CFR part 201, subchapter B, Management and Use of 
Information and Records, specify protective measures and standards for 
electronic records.
    (b) Storage. When agencies choose duplication as a protection 
method, the copy of the vital record stored off-site is normally a 
duplicate of the original record. Designating and using duplicate 
copies of original records as vital records facilitates destruction or 
deletion of obsolete duplicates when replaced by updated copies, 
whereas original vital records must be retained for the period 
specified in the agency records disposition schedule. The agency may 
store the original records off-site if protection of original 
signatures is necessary, or if it does not need to keep the original 
record at its normal place of business.
    (c) Storage considerations. Agencies need to consider several 
factors when deciding where to store copies of vital records. Copies of 
emergency operating vital records need to be accessible in a very short 
period of time for use in the event of an emergency or disaster. Copies 
of legal and financial rights records may not be needed as quickly. In 
deciding where to store vital records copies, agencies shall treat 
records that have the properties of both categories, that is, emergency 
operating and legal and financial rights records, as emergency 
operating records.
    (1) Under certain circumstances, Federal records centers (FRC's) 
may store copies of emergency operating vital records. FRC's will store 
small volumes of such records, but may not be able to provide storage 
for large collections or ones requiring constant recycling of the vital 
records, except under reimbursable agreement. Prior to preparing the 
records for shipment, the agency must contact the FRC to determine if 
the center can accommodate the storage requirements and return copies 
in an acceptable period of time.
    (2) The off-site copy of legal and financial rights vital records 
may be stored at an off-site agency location or, in accordance with 
Sec. 1228.156 of this chapter, at an FRC.
    (3) When using an FRC for storing vital records that are duplicate 
copies of original records, the agency must specify on the SF 135, 
Records Transmittal and Receipt, that they are vital records (duplicate 
copies) and the medium on which they are maintained. The agency shall 
also periodically cycle (update) them by removing obsolete items and 
replacing them with the most recent version, when necessary.
    (4) Agencies that transfer permanent, original vital records 
maintained on electronic or microform media to the custody of the 
National Archives may designate such records as their off-site copy. 
That designation may remain in effect until the information in such 
transferred records is superseded or becomes obsolete.


Sec. 1236.28  Disposition of original vital records.

    The disposition of original vital records is governed by records 
schedules approved by NARA (see part 1228, Disposition of Federal 
Records). Original records that are not scheduled may not be destroyed 
or deleted.

    Dated: May 30, 1995.
Trudy Huskamp Peterson,
Acting Archivist of the United States.
[FR Doc. 95-13951 Filed 6-6-95; 8:45 am]
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