[Federal Register Volume 60, Number 166 (Monday, August 28, 1995)]
[Rules and Regulations]
[Pages 44634-44642]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-21125]
[[Page 44633]]
_______________________________________________________________________
Part III
National Archives and Records Administration
_______________________________________________________________________
36 CFR Part 1220 et al.
Electronic Mail Systems; General Records Schedule 20; Disposition of
Electronic Records; Final Rule and Notice
Federal Register / Vol. 60, No. 166 / Monday, August 28, 1995 / Rules
and Regulations
[[Page 44634]]
NATIONAL ARCHIVES AND RECORDS ADMINISTRATION
36 CFR Parts 1220, 1222, 1228, and 1234
RIN 3095-AA58
Electronic Mail Systems
AGENCY: National Archives and Records Administration.
ACTION: Final rule.
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SUMMARY: The National Archives and Records Administration (NARA) is
issuing standards for management of Federal records created or received
on electronic mail (e-mail) systems in these amendments to 36 CFR
Chapter XII. The standards will affect all Federal agencies.
On March 24, 1994, NARA published a notice of proposed rulemaking
on standards for the management of e-mail records. In response to this
notice NARA received 92 comments (comprising approximately 1500 pages)
covering a wide range of issues from Federal agencies, private
organizations, and interested individuals. NARA has revised its
proposal to reflect many of the comments received and to clarify and
focus the standards. The standards now being issued are framed in
regulatory language, rather than as an appendix to 36 CFR Part 1234 as
formerly proposed. The final rule places e-mail into its proper context
in the appropriate parts of 36 CFR Chapter XII, including specifically
creation and maintenance of records, regardless of media.
EFFECTIVE DATE: September 27, 1995.
FOR FURTHER INFORMATION CONTACT: James J. Hastings, Director, Records
Appraisal and Disposition Division, National Archives at College Park
(NIR), 8601 Adelphi Road, College Park, MD 20740-6001, or by telephone
on 301-713-7110 ext. 274.
A complete set of the responses to the notice of proposed
rulemaking that was published on March 24, 1994, is available for
public inspection at the address listed above.
SUPPLEMENTARY INFORMATION:
Background
Because nearly all Federal agencies now use e-mail to transact
Government business, there is the need for Government-wide standards on
managing e-mail records. NARA published a Notice of Proposed Rulemaking
on standards for managing e-mail records on March 24, 1994 (hereafter
referred to as the March standards). There was significant response to
this proposal, particularly on the part of those who will be affected
more immediately by the rule--the Federal Government agencies. Ninety-
two responses were received, of which 76 were from Federal agencies, 13
from other organizations, and three from the general public. The vast
majority of comments from Federal agencies were critical of the March
standards; most of the comments from other organizations were
supportive.
In addition to the specific responses listed below, NARA has made
two overall revisions that will clarify the coverage of the regulations
and provide further guidance. The first of these changes is the
framework of the standards. The March standards were written as an
appendix to 36 CFR Part 1234. As an appendix to the regulations, the
standards were not clearly understood because many of the provisions
were duplicative of other sections of 36 CFR Subchapter B or were out
of context. Accordingly, NARA now has revised various sections of 36
CFR Subchapter B to incorporate the records management standards for e-
mail. Incorporating the provisions concerning e-mail in the appropriate
sections will clarify coverage and accomplish the critical goal of
placing e-mail in context with the creation, maintenance, and
disposition of records in all media.
The second overall change NARA has made is to better focus the
final regulations by eliminating references that were in the March
standards to future e-mail systems, advantages of electronic
recordkeeping, and other non-regulatory matters. These important
considerations are more appropriately addressed by NARA, in
consultation with other agencies and organizations, in separate
guidance rather than in regulations. NARA will issue bulletins and
publications concerning the application of the Federal Records Act to
the modern office environment. These issuances will address electronic
recordkeeping requirements and other matters relating to the effect of
office automation on records management. NARA will continue to issue
guidance, working with agencies and representatives of the computer
industry, to assist agencies to adapt their recordkeeping requirements
to the rapid developments in information technology.
The revised framework and the improved focus of the standards will
clarify their purpose--to define requirements for proper identification
and preservation of Federal records created or received on e-mail
systems.
The regulations and guidance will allow agency officials to make
decisions about the most appropriate and effective use of e-mail, and,
therefore, to make maximum use of its potential.
Comments and Response
The following are summaries of and responses to the major comments
that were received. They are listed in descending order according to
the percentage of respondents who addressed each issue.
1. Comment: The March Standards Would Be Too Expensive and Burdensome
Seventy percent of the agencies and 60% of all respondents
commented that implementation of the requirements in the March
standards would be too expensive and burdensome. Many of the agencies
interpreted the regulations as requiring electronic maintenance of e-
mail records. Most agencies, because their current e-mail systems were
not designed to manage records, must maintain their e-mail records on
paper and file them with other records. Few agencies currently have the
technical capability or recordkeeping need to maintain e-mail records
electronically for their full retention period. Most of the agencies
that responded stated clearly that their systems do not have the
capacity to maintain their e-mail electronically and that it would
require unreasonable time and expense to modify or replace their
systems. The burden would be particularly great because current off-
the-shelf software products do not provide full records management
functionality. Many agencies indicated that they are considering the
benefits of electronic recordkeeping and plan to adopt it in the
future, particularly when off-the-shelf software products are
available. They objected strongly, however, to a regulatory requirement
to do so.
Response: While the proposed standards encouraged agencies to
consider the benefits of electronic recordkeeping, neither the
standards nor the Federal Records Act require electronic recordkeeping.
NARA recognizes that agency e-mail systems have different
characteristics and that agencies have varying recordkeeping
requirements and procedures. Accordingly, the final standards have been
revised to clarify that they apply to e-mail messages that meet the
definition of record in the Federal Records Act, regardless of the
media on which they are preserved, and to provide realistic
requirements that agencies can meet immediately. As indicated above,
guidance that is to be issued by NARA will address how agencies can use
electronic
[[Page 44635]]
recordkeeping to meet their recordkeeping requirements and will
describe the advantages of automated records management.
Other areas that agencies considered too costly and burdensome
concerned training and monitoring the proper management of e-mail
records. For a summary and response to these comments, see #11, below.
Many agencies observed that implementing the proposed standards
would be so burdensome that it would violate the spirit and intent of
the President's National Performance Review initiative to streamline
Government and reduce regulations. E-mail affords the opportunity for
very efficient communications within agencies, with other
organizations, and with the citizenry as a whole. The burden of
implementing the standards as proposed would make e-mail more
cumbersome and would place obstacles in the way of a streamlined
Government.
NARA recognizes that e-mail has a major role in the efficiency of
communications; widespread and easy use of e-mail has made it an
important tool for the conduct of Government business. Accordingly,
agencies should ensure that e-mail messages that document their
policies, programs, and functions are appropriately preserved.
Therefore, agencies must put into place policies and procedures that
ensure that e-mail records are identified and preserved. The final
standards now being issued afford discretion as to how agencies will
fulfill this responsibility but do not allow agencies the discretion as
to whether they will accomplish it. If agencies are creating or
receiving e-mail messages that meet the definition of records in the
Federal Records Act, and most agencies that commented agreed that they
are, then they must have a program in place that preserves these
records for the appropriate period of time.
2. Comment: Clarification Needed Between Record and Nonrecord E-mail
Nearly 45% of the Federal agencies and more than 40% of the non-
Federal respondents expressed concerns about making the distinction
between record and nonrecord e-mail. Most indicated that under the
March standards too many e-mail messages would be determined to be
records, thus clogging the system with unimportant messages. Of
particular concern was the paragraph that stated that all copies of e-
mail messages must be evaluated as to whether they are records or not.
Respondents believe that this would lead to needless retention of many
duplicates of messages. Agencies requested NARA to clarify what
constitutes the record copy. Furthermore, the language and examples
that were used in the proposed standards would result in all but the
most ephemeral messages being considered records. Many of the agencies
also expressed concern about the treatment of drafts in the proposed
standards. They commented that the March standards exaggerated the
importance of drafts.
Response: NARA believes the final standards now being issued will
put e-mail into its proper context and provide for preservation of only
those messages that are required for agencies to fulfill their
obligation under the law for adequate and proper documentation of
agency organization, functions, policies, decisions, procedures, and
essential transactions. Agencies have long been required to have in
place recordkeeping requirements that specify what records are to be
created and how they are to be preserved. By placing the e-mail
provisions in context with the overall requirements agencies already
have for appropriate creation, maintenance, and disposition of Federal
records, NARA has stressed the importance of recordkeeping requirements
regardless of media and, at the same time, reinforced the need to
consider e-mail as an important tool for records creation and receipt.
E-mail records are no more and no less important than other records.
Agency personnel must apply the same decision-making process to e-mail
that they apply to other documentary materials regardless of the media
used to create them. Proper implementation of these regulations will
result in thorough documentation of agency activities.
The provision in the March standards concerning multiple copies of
messages potentially being records was simply a restatement of long-
established NARA policy. The policy is that multiple copies of the same
document may meet the definition of records if each of them is used to
transact agency business. Copies that have such record status are
usually filed in different recordkeeping systems and are used for
different purposes. Not all copies, therefore, would necessarily be
considered records. This provision was included in the March standards
to ensure that agencies understood that it applied to e-mail just as it
has applied for many years to records in other formats. The final
regulations continue to have a provision concerning multiple copies. It
is now placed in 36 CFR 1222.34, Identifying Federal Records, so it
will be in context with other categories of materials that must be
evaluated to determine their record status.
The purpose of including the provisions on drafts in the March
standards was to highlight the point that e-mail systems are often used
to circulate draft documents and, as specified in 36 CFR 1222.34,
drafts may meet the definition of Federal record. The preservation of
drafts, including those circulated on e-mail systems, could be
necessary for an agency to meet its recordkeeping requirements. Draft
documents or working papers that propose or evaluate high-level
policies or decisions and provide unique information that contributes
to the understanding of major decisions of the agency should be
preserved as Federal records. Agencies should apply the same criteria
specified in 36 CFR 1222.34 to drafts that are circulated on e-mail
systems as they apply to drafts circulated by other means. The final
regulations now being issued continue to stress that drafts and other
working papers that are circulated on e-mail systems may be records.
The provision for this has been placed in 36 CFR 1234.24, in the
context of an agency's overall responsibility for managing electronic
mail records.
3. Comment: Further NARA Guidance is Needed
Almost one half of the Federal agencies indicated in their comments
that more overall guidance is needed from NARA before they could meet
the broader requirements they believed the March standards implied. In
addition, many agencies requested that NARA work with agencies and
vendors to help develop off-the-shelf software that will accomplish the
goals of electronic recordkeeping, encryption and authentication
functions, and other specific features that will be required when
agencies convert from paper to electronic recordkeeping.
Response: As indicated previously, NARA agrees that there is a need
for work in these areas and it has a major responsibility in the
development of this guidance. The regulations, however, must be limited
to basic requirements; other issuances will provide guidance that
explains the requirements and will offer suggestions for compliance.
Future guidance from NARA, including a revision of the ``Managing
Electronic Records'' handbook, will address electronic recordkeeping
requirements in the office automation environment, and provide guidance
for the identification of e-mail records and other information that
will prove useful to agencies as they progress to more sophisticated
technologies.
[[Page 44636]]
One specific area of confusion has been addressed in these
regulations. Agencies expressed concern about the difference between
electronic records systems and electronic recordkeeping systems. To
clarify the distinction, the term ``electronic records system'' has
been changed to ``electronic information system'' in 36 CFR 1234.2. The
term ``electronic information system'' is more inclusive than
``electronic recordkeeping system'' and would include any automated
system that contains and provides access to data whether or not it
provides records management functions; the term ``electronic
recordkeeping system'' is limited to those electronic information
systems that are designed to organize, categorize, and otherwise
control the creation, maintenance, and disposition of records. The
definitions of electronic recordkeeping system and electronic
information system have been added to the regulations to clarify this
distinction (See 36 CFR 1234.2). Most e-mail systems currently in use
are not designed for the preservation, use, and appropriate disposition
of records so they are electronic information systems, not electronic
recordkeeping systems. See 36 CFR 1234.24 (b)(2) for instructions to
agencies for preserving e-mail records in recordkeeping systems.
4. Comment: The March Standards Would Have a Chilling Effect on the Use
of E-mail
Approximately 40% of the Federal agency respondents expressed
concerns that implementing NARA's proposed standards would bring about
a chilling effect that would limit the use and usefulness of e-mail
systems. Some felt that monitoring individual mailboxes would be
unnecessarily invasive and far beyond what is done with paper or
records in other media. Others indicated that the informal nature of e-
mail messages is the main attraction of the system and NARA's proposed
standards would inappropriately formalize the communications and, in
this way, inhibit use. Still others commented that the obligation
placed on users to consider the record status of every message and to
take appropriate actions to preserve those that have been determined to
be records would place unreasonable burdens on staff, would reduce
productivity, and would destroy rapid communication, the most important
feature of e-mail.
Response: The majority of the agencies in their comments agreed
that Federal records are being created on their e-mail systems. Because
of this, a number of agencies already have in place records management
requirements pertaining to e-mail. These requirements provide simple
instructions for staff to follow about what materials may be created on
e-mail systems and the categories that may constitute Federal records.
There is no indication that these instructions have had a chilling
effect on the use of e-mail. Agencies that lack guidance, however, may
not be creating and preserving adequate records and may not be taking
advantage of the full benefits of e-mail. Clear guidance will allow
agency staff to make decisions about the most appropriate and effective
use of e-mail, and, therefore, make maximum use of its potential.
The final standards now being issued put the obligation to identify
e-mail records in the context of 36 CFR Part 1222 Creation and
Maintenance of Federal Records, which provides instructions on creation
and maintenance of records in all media. This context should reassure
those agencies who feared that the standards would inhibit use because
the requirements are the same for records in all media. If e-mail is
used for records creation or receipt, 36 CFR Part 1222 applies.
5. Comment: The Proposed Standards Overly Emphasized the Importance of
E-mail
More than 30% of the Federal agencies said that the March standards
overly emphasized e-mail because of the extraordinarily detailed and
stringent requirements for managing e-mail compared to other records.
Agencies expressed the concern that such lengthy standards for e-mail
inflated the value of e-mail. They stressed that e-mail is a delivery
system only and the value comes from the content of the message and not
the mechanism used to send it. Many of the agencies pointed out that
regulations for paper records do not reach the same level of detail,
which they consider unnecessary. The level of control that would be
required for e-mail would impose costly and burdensome measures
regardless of the relative importance of the messages.
A major subset of the comments in the category of misplaced
emphasis advocated that NARA place e-mail in context with other
electronic records rather than singling e-mail out for special
treatment. These agencies stressed the importance of managing all
categories of electronic records and suggested that the strong emphasis
on e-mail in the proposed standards diverted attention from the overall
goal of agencies to properly manage records in all media.
Some agencies and professional organizations expressed the concern
that the emphasis on e-mail was misplaced because it focused on only
one type of record and not on the larger issue of whether agency
policies, functions, transactions, and decisions are being properly
documented, as required by law and regulation. They suggested that NARA
attend to its responsibility to direct agencies on creation and
maintenance of records documenting their activities and give agencies
the discretion on how to accomplish that goal.
Response: NARA understands that the lengthy standards proposed in
March could lead to the conclusion that e-mail is more important than
other records. As indicated above, the final standards now being issued
will put e-mail in the proper context with all other records and,
therefore, respond to the concerns of those who objected to an over-
emphasis on e-mail. NARA also agrees that more emphasis should be
placed on recordkeeping requirements to ensure that proper records are
created and maintained. If agencies fail to create and maintain on
another format full documentation of their policies and activities
under clear and specific recordkeeping requirements, e-mail could
assume an inflated importance. Agencies have the opportunity and
responsibility to put e-mail in its proper context by issuing, where
they are lacking, recordkeeping requirements that clearly state what
records are to be created and maintained and on what medium. The
standards on e-mail now being issued should be used by agencies as they
develop or revise their own recordkeeping requirements.
6. Comment: The March Standards are Confusing and Poorly Worded
More than 30% of the respondents, primarily Federal agencies, said
that the proposed standards were unclear, inconsistent, or redundant.
These comments concerned most sections of the March standards,
including the guidance on drafts, scheduling, copies, recordkeeping
systems, definition of records, calendars, preserved records,
transmission and receipt data, backups, nonrecord materials,
appropriate for preservation, monitoring, and permanent and temporary
records.
Response: The final standards have been revised to eliminate
redundancy and, as noted above, will put the requirements for e-mail in
the context of overall records management responsibilities. These
changes were made in response to the requests to clarify and focus the
standards.
[[Page 44637]]
7. Comment: There is a Need for a Schedule for Implementation of the
March Standards
Approximately 30% of the Federal agencies expressed very serious
concerns about the schedule for implementation of the March standards.
These concerns were mainly based in the belief that NARA was imposing
electronic maintenance of e-mail records, which would require
expenditure of millions of dollars in some agencies to purchase the
hardware and software required to appropriately maintain e-mail records
electronically. The level of expense is significantly increased by the
fact that, as agencies pointed out, off-the-shelf products that meet
the requirements for electronic recordkeeping are not yet available.
Accordingly, many agencies said that they would need several years to
implement the proposed standards.
Response: As indicated in the March standards, NARA recognizes that
the variety of automated systems in Federal agencies have different
characteristics and agencies have differing recordkeeping requirements.
Agencies must determine whether their needs require electronic
recordkeeping (rather than paper recordkeeping) and, if so, when to
implement it. The essential point remains, however, that Federal
agencies are obliged to identify and preserve their e-mail records.
This obligation originates in the Federal Records Act, not in NARA
standards. The final standards are intended to amplify the statute and
improve the current regulations by focusing more on how agencies can
fulfill their responsibility to preserve their records appropriately.
8. Comment: There are Difficulties Related to the Preservation of
Transmission and Receipt Data
A key component of an e-mail message is the information about who
sent it, who received it, and the date. Approximately 30% of the
Federal agencies expressed concern about whether their systems could
capture and preserve transmission and receipt data with the record and
whether their systems had the capacity to store it. Some agencies said
their systems do not provide the full name of individuals so users will
have to annotate the message to ensure that all necessary information
is preserved. Agencies stressed that they should have discretion in
determining what information is necessary for them to preserve as an
adequate record; they believe that the requirements for preserving
transmission and receipt data with e-mail records should be the same as
apply to paper records.
Response: The standards now being issued include fundamentally the
same language on transmission and receipt data as was proposed in the
March standards. E-mail records must identify who sent and received the
message and the date. Otherwise, their usefulness as records will be
greatly diminished because the context will not be understood. The body
of the text has little value if the reader does not know who was
involved in the communication and when it occurred. Agencies must take
reasonable measures to preserve transmission data with their current
electronic information systems and they should ensure that any new
electronic information systems automatically include adequate
transmission data on a paper printout, and, where electronic
recordkeeping is used, that they preserve transmission data
electronically. Agencies that are concerned about preserving receipt
data should note that the revised standards direct agencies that have
an electronic mail system with a receipt feature to issue instructions
to staff on when to request receipts and how to preserve them. If
systems do not have this feature or if it is impossible for agencies to
preserve receipts, users should be instructed accordingly. The language
on receipt data provides discretion to agencies on when such
information should be requested. Only if it is needed for recordkeeping
purposes should it be preserved with the record.
9. Comment: The Proposed Standards Do Not Address Privacy/FOIA
Considerations
Twenty-two agencies (nearly 30%) believe that the March standards
had Privacy and Freedom of Information Act implications. They suggested
that staff members have the expectation of privacy or confidentiality
when they send messages, and this would be violated if the messages
were preserved as records and released to the public.
Response: Agencies must determine what constitutes appropriate use
of e-mail systems by staff members and what expectations of privacy may
be assumed. This is not a NARA policy determination. For this reason,
the standards now being issued have not been changed to reflect the
Privacy/FOIA comments of agencies. Some of the comments suggest a
misunderstanding of the distinction between personal materials and
Federal records. For guidance in this area, see NARA's management
guide, ``Personal Papers of Executive Branch Officials.''
10. Comment: The Provisions Concerning Backups are Confusing
The March standards included a section on the suitability of backup
tapes for use as a recordkeeping system. Several agencies found the
discussion of system and security backups to be confusing and the
distinction between the two irrelevant. Some also indicated that the
proposal could lead to expensive changes to backup procedures.
Response: The purpose of addressing backups in the standards was to
stress that backups are not suitable recordkeeping systems. Their
purpose is for recovery of data or systems in case of loss; their
purpose is not efficient preservation, use, retrieval, and disposition
of active records. Since this issue is part of the overall
consideration of requirements for electronic recordkeeping systems,
guidance on backups will be included in the future revision of
``Managing Electronic Records'' and/or other guidance from NARA.
Therefore, only one reference has been included in the standards
pertaining to backups, and it has been placed in a paragraph concerning
appropriate recordkeeping systems (36 CFR 1234.24(c)).
11. Comment: The Training and Monitoring Provisions are Unrealistic
Twenty Federal agencies reacted to the provisions in the March
standards that called for training all staff members on identification,
maintenance, and disposition of e-mail records. Some agencies expressed
the concern that it is unrealistic to expect records managers to train
all agency employees or monitor staff determinations of the record
status of every e-mail message. They indicated that it is impossible to
ensure the effectiveness of the standards because of the huge number of
users of e-mail and the responsibility that individual users must have
for determining which messages are Federal records. Many were
particularly concerned about the cost of monitoring, which several
agencies estimated would require one records manager for every 100
agency employees. No agency can afford to have a staff of hundreds of
records managers monitoring e-mail determinations. All respondents who
addressed this issue highlighted its excessive and unrealistic
expectations. Agencies did not entirely object to any training and
monitoring; they recognize that they have the responsibility to carry
out both of these responsibilities. They objected, however, to what
they concluded are the excessively burdensome and unrealistically
detailed
[[Page 44638]]
requirements specified in the March standards.
Response: NARA agrees that training and monitoring of e-mail
determinations must be reasonable and within the administrative and
fiscal capabilities of the agencies. Monitoring of record status
determinations is an essential part of periodic overall reviews of the
implementation of an agency's records management program. A specific
reference to monitoring record status determinations of e-mail messages
has been added to place this responsibility in its proper context
within 36 CFR 1220.42, Agency internal evaluations. The same approach
has been taken for training requirements. 36 CFR 1222.20 previously
required agencies to train agency personnel on recordkeeping
requirements and identification of records. This part now includes an
amended sentence that stresses that training must pertain to all
materials, regardless of media. Again, this puts training for e-mail in
the context of existing responsibility. Agencies will be able to
fulfill their responsibility to ensure proper management of e-mail
records without significant additional burdens or expense if they
include e-mail training and reviews as part of their ongoing programs.
12. Comment: NARA Cannot Impose Upon Agencies the Format on Which They
Preserve Their Records
The agency concerns about format centered on the expense and burden
of maintaining e-mail electronically. As indicated in comment number
one, above, they strongly stated that they are not in the position to
preserve their e-mail electronically, and NARA should not impose this
on them. Some respondents representing researchers advocated that e-
mail should be preserved in electronic format because of the electronic
format's enhanced use.
Response: NARA concurs with both of these seemingly contradictory
positions. Electronic records that are appraised as permanent in
schedules approved by NARA that are preserved in an electronic format
will have enhanced usefulness for future research. This enhancement
will accrue only if the records are preserved in an electronic
recordkeeping system with records management functionality that allows
for sorting, retrieving, and manipulating the records. This enhancement
could also be advantageous for agencies while the records remain in
their custody, and NARA encourages agencies to consider the benefits of
electronic recordkeeping systems with full records management
capabilities. However, the prospective interests of future researchers
cannot be used to force agencies to do the impossible nor can these
interests dictate to agencies how they should preserve their records
for their own use. Agencies must create and maintain records to conduct
Government business and account for their activities. Only the agency
can determine what format best serves these purposes. Some agencies, or
components of agencies, may determine that paper recordkeeping will
continue to be adequate and cost-effective for the documentation of
their transactions. In addition, it is clear from the agency responses
that the lack of commercial off-the-shelf technology and the expense of
custom developed solutions make electronic preservation of all e-mail
records of the volume produced by the Federal Government impossible at
the present time. For many agencies to fulfill their responsibilities
immediately under the Federal Records Act they must print their e-mail
records because no alternative currently exists. The final standards
are designed to clarify this point. NARA guidance documents that are
being issued will assist agencies as they consider making the
transition from paper to electronic preservation. Meanwhile, agencies
cannot wait until they have the technology to preserve their records
electronically to apply these records management standards to their
electronic records. E-mail records must be preserved in accordance with
the provisions of the law and the capabilities of the agencies. Format
concerns must not divert the agencies from this essential requirement.
13. Comment: There are Difficulties Concerning the Maintenance of
Distribution Lists
Maintaining the names of staff members on distribution lists
presents numerous technical and administrative problems, according to
the agencies. The dynamic nature and significant length of distribution
lists make their preservation problematic for agencies.
Response: Transmission data is necessary to understand the context
of records in any media. Because in some cases e-mail is sent to
individuals who are only identified on a distribution list, information
page, or other screen that shows the names of individuals who received
messages, agencies should make reasonable attempts to have this
information available for the same amount of time as the record itself
is retained. Those agencies that have limited technical capabilities to
preserve distribution lists are not required to preserve them with each
specific record. The purpose of this provision is to make the agency
realize that for its own recordkeeping needs it must have a record
available of the names of individuals who have received records. The
information could consist of staff rosters maintained in a personnel
office, electronic lists maintained in ADP offices, or lists that are
automatically attached to the e-mail records. As with other format
issues, NARA is not dictating how the lists are to be maintained.
14. Comment: The Standards are Not Necessary
The agencies that stated that the proposed standards were not
needed indicated that the existing law and regulations already require
preservation of records, regardless of format. Some indicated that the
need was for more guidance on specific issues such as functional
requirements and adequacy of documentation.
Response: NARA agrees that the current law and regulations apply to
e-mail. The standards, however, are intended to highlight agency
responsibilities as they use this relatively new technology for
creation and receipt of records. The final rule provides the necessary
context to underscore these responsibilities. In addition, as
previously indicated, future guidance will respond to the requests for
assistance from NARA in the other areas.
15. Comment: The Coverage of Calendars in E-mail Standards is
Misleading
Numerous agencies and other respondents expressed concern about the
provisions in the March standards on calendars. Some agencies indicated
that their calendars were not part of their e-mail system. Others
indicated that their calendars were not shared. A public respondent
advocated that NARA provide specific guidance to agencies about
identifying and managing electronic calendars that are records.
Response: Some confusion has resulted from including instructions
on calendars in proposed standards on e-mail. While some e-mail systems
include calendars, providing extensive instructions on calendars in
regulations governing e-mail was misunderstood by some. The final
regulations continue to stress that calendars on e-mail systems, just
as calendars on other media, may be records and, if so, General Records
Schedule 23 applies. As noted in GRS 23, Federal records of high-level
officials must be specifically scheduled to allow NARA appraisal.
[[Page 44639]]
16. Comment: Other Revisions or Clarifications are Necessary
Many other comments requested clarification or revision of the
March standards. There were numerous suggestions for alternative
language and questions on adequacy of documentation, external systems,
conflicts with existing laws and authorities, and the security of
systems.
Response: NARA revised the standards to reflect many of these
comments, as explained above. Many of the other concerns are addressed
in the NARA guidance publications that will be issued.
17. Comment: Concur with the Proposed Standards
A few agencies and several representatives of the research
community indicated their concurrence with the March standards. They
believed that the standards were timely and necessary for the
preservation of important e-mail records.
Response: NARA believes that the final regulations continue to
reflect the intent and spirit of the March standards that these
respondents endorsed. Compliance with the regulations set forth in this
rule will result in the identification and preservation of e-mail
messages that constitute Federal records. Those that are appraised as
permanent will be available in the future for historians and others who
have expressed their interest and concern. Agencies will better
understand their responsibilities under the final standards.
Consequently, these standards will result in the preservation of
messages that are Federal records and should continue to meet with the
approval of those who concurred with the March standards.
Conclusion
Federal agencies are using office automation to conduct significant
activities. This challenges the agencies and NARA to ensure that
records of the Federal government that are created through office
automation are identified and appropriately preserved. NARA will
continue to work with agencies to develop policies and practices that
ensure the preservation of the content, context, and structure of
records that are produced through office automation.
As agencies become more and more accustomed to conducting their
business electronically, they may find that automated records
management provides a number of advantages that assists them in
accomplishing their mission more efficiently and effectively.
Electronic recordkeeping systems may be the best means to preserve the
content, structure, and context of electronic records. In addition, an
automated system may be more easily searched and manipulated than paper
records. The electronic format may also allow simultaneous use by
multiple staff members and may provide a more efficient method to store
records. Furthermore, when they are no longer needed by the creating
agency, access by future researchers to permanently valuable electronic
records would be enhanced by electronic preservation. NARA will work
closely with agencies as they pursue the next phase of office
automation--comprehensive automated records management.
To assist in the process of determining records status, NARA
recommends that when agencies consider acquiring automated records
management systems they include a feature that helps users identify
records. For example, agencies may want their systems to allow users to
tag documents as record or nonrecord material. Another option would be
to install an automated records management system that analyzes the
contents of a message according to specified rules in order to prompt
the user with a suggested categorization.
As agencies consider automated records management of their office
automation records they should include in their deliberations the
following broad functional requirements for recordkeeping systems:
1. Recordkeeping systems must allow for the grouping of related
records, to ensure their proper context.
2. Recordkeeping systems must make records accessible to authorized
staff, to ensure their usefulness to the agency.
3. Recordkeeping systems must preserve records for their authorized
retention period, to ensure their availability for agency use, to
preserve the rights of the Government and citizens, and to allow
agencies to be held accountable for their actions.
When agencies take the next step in office automation, they should
do so with the assurance that their records will be appropriately
preserved and accessible. NARA and the agencies will work together to
ensure that recordkeeping policies and programs for records that are
produced through office automation serve the needs of the agencies and
the needs of future researchers.
This rule is contained in NARA's Regulatory Plan and is a
significant regulatory action for purposes of Executive Order 12866 of
September 30, 1993. As such, it has been reviewed 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 parts 1220, 1222, 1228, and 1234
Archives and records; Computer technology.
For the reasons set forth in the preamble, 36 CFR Chapter XII of
the Code of Federal Regulations is amended as follows:
SUBCHAPTER B--RECORDS MANAGEMENT
PART 1220--FEDERAL RECORDS; GENERAL
1. The authority for part 1220 continues to read as follows:
Authority: 44 U.S.C. 2104(a) and chs. 29 and 33.
2. Section 1220.14 is amended by removing the definition for
``Information system'' and adding the following definition in
alphabetical order:
Sec. 1220.14 General definitions.
* * * * *
Recordkeeping system is a manual or automated system in which
records are collected, organized, and categorized to facilitate their
preservation, retrieval, use, and disposition.
* * * * *
3. Section 1220.42 is revised to read:
Sec. 1220.42 Agency internal evaluations.
Each agency shall periodically evaluate its records management
programs relating to records creation and recordkeeping requirements,
maintenance and use of records, and records disposition. These
evaluations shall include periodic monitoring of staff determinations
of the record status of documentary materials, including electronic
mail, and implementation of these decisions. These evaluations should
determine compliance with NARA regulations in subchapter B of this
chapter and assess the effectiveness of the agency's records management
program.
PART 1222--CREATION AND MAINTENANCE OF FEDERAL RECORDS
4. The title of part 1222 is revised to read as set forth above.
5. The authority citation for part 1222 continues to read:
Authority: 44 U.S.C. 2904, 3101, and 3102.
[[Page 44640]]
6. Section 1222.20 is amended by revising paragraphs (b)(1) and
(b)(5) to read as follows:
Sec. 1222.20 Agency responsibilities.
* * * * *
(b) * * *
(1) Assign to one or more offices of the agency the responsibility
for the development and implementation of agency-wide programs to
identify, develop, issue, and periodically review recordkeeping
requirements for records for all agency activities at all levels and
locations in all media including paper, microform, audiovisual,
cartographic, and electronic (including those created or received using
electronic mail);
* * * * *
(5) Ensure that adequate training is provided to all agency
personnel on policies, responsibilities, and techniques for the
implementation of recordkeeping requirements and the distinction
between records and nonrecord materials, regardless of media, including
those materials created by individuals using computers to send or
receive electronic mail.
* * * * *
Subpart C--Standards for Agency Recordkeeping Requirements
7. In Sec. 1222.30 paragraph (b) is revised to read:
Sec. 1222.30 Purpose.
* * * * *
(b) Although many agencies regularly issue recordkeeping
requirements for routine operations, many do not adequately specify
such requirements for documenting policies and decisions, nor do they
provide sufficient guidance on distinguishing between records and
nonrecord materials, and maintaining records created or received on
electronic mail systems.
8. In Sec. 1222.32, the introductory text is revised to read as
follows:
Sec. 1222.32 General requirements.
Agencies shall identify, develop, issue, and periodically review
their recordkeeping requirements for all agency operations and for
records in all media, including those records created or received on
electronic mail systems. Recordkeeping requirements shall:
* * * * *
9. In Sec. 1222.34, paragraph (d) is redesignated as paragraph (f),
and new paragraphs (d), (e), and (g) are added to read as follows:
Sec. 1222.34 Identifying Federal records.
* * * * *
(d) Record status of copies. The determination as to whether a
particular document is a record does not depend upon whether it
contains unique information. Multiple copies of the same document and
documents containing duplicative information, including messages
created or received on electronic mail systems, may each have record
status depending on how they are used to transact agency business. See
paragraph (f)(2) of this section concerning the nonrecord status of
extra copies.
(e) Electronic mail messages. Messages created or received on
electronic mail systems may meet the definition of record in 44 USC
3301.
* * * * *
(g) Agency responsibilities. Agencies shall take appropriate action
to ensure that all staff are capable of identifying Federal records.
For electronic mail systems, agencies shall ensure that all staff are
informed of the potential record status of messages, transmittal and
receipt data, directories, and distribution lists.
10. In Sec. 1222.50 paragraph (a) and paragraph (b)(2) are revised;
paragraphs (b)(3) through (b)(8) are redesignated as paragraphs (b)(4)
through (b)(9); newly redesignated paragraphs (b)(4), (b)(6), and
(b)(8) are revised; and new paragraph (b)(3) is added to read as
follows:
Sec. 1222.50 Records maintenance.
(a) Agencies shall prescribe an appropriate records maintenance
program so that complete records are filed or otherwise identified and
preserved, records can be found when needed, the identification and
retention of permanent records are facilitated, and permanent and
temporary records are physically segregated or, for electronic records,
segregable.
(b) * * *
* * * * *
(2) Formally specify official file locations for records in all
media and prohibit the maintenance of records at unauthorized
locations;
(3) Formally specify which officials are responsible for
maintenance and disposition of electronic records and which computer
systems are used for recordkeeping;
(4) Standardize reference service procedures to facilitate the
finding, charging out, and refiling of paper, audiovisual, and
cartographic and architectural records, and to ensure that reference to
electronic records minimizes the risk of unauthorized additions,
deletions, or alterations;
* * * * *
(6) Review its records maintenance program periodically to
determine its adequacy; audit a representative sample of its paper,
audiovisual, electronic, cartographic, and architectural files for
duplication, misclassification, or misfiles;
* * * * *
(8) Establish and implement procedures for maintaining records and
nonrecord materials separately; ensure that record materials generated
electronically are clearly identified as records and protected from
unauthorized change or deletion for the length of their scheduled
retention period; and
* * * * *
PART 1228--DISPOSITION OF FEDERAL RECORDS
11. The authority citation for part 1228 is revised to read as
follows:
Authority: 44 U.S.C. chs. 21, 29, and 33.
12. Section 1228.1 is amended by adding new paragraph (e) as
follows:
Sec. 1228.1 Scope of part.
* * * * *
(e) The material was created or received on an electronic mail
system and it meets the definition of record. For specific instructions
on the disposition of records created or received on electronic mail
systems, see 36 CFR 1234.32.
PART 1234--ELECTRONIC RECORDS MANAGEMENT
Subpart A--General
13. The authority citation for part 1234 continues to read:
Authority: 44 U.S.C. 2904, 3101, 3102, and 3105.
14. Section 1234.1 is revised to read as follows:
Sec. 1234.1 Scope of part.
This part establishes the basic requirements related to the
creation, maintenance, use, and disposition of electronic records.
Electronic records include numeric, graphic, and text information,
which may be recorded on any medium capable of being read by a computer
and which satisfies the definition of a record. This includes, but is
not limited to, magnetic media, such as tapes and disks, and optical
disks. Unless otherwise noted, these requirements apply to all
electronic information systems, whether on microcomputers,
minicomputers, or main-frame computers, regardless of storage media, in
network or stand-alone configurations. This part also covers creation,
maintenance and use, and disposition of Federal records
[[Page 44641]]
created by individuals using electronic mail applications.
15. Section 1234.2 is amended by removing the definitions for
``electronic records system'' and ``information system'' and adding the
following definitions in alphabetical order:
Sec. 1234.2 Definitions.
* * * * *
Electronic information system. A system that contains and provides
access to computerized Federal records and other information.
Electronic mail system. A computer application used to create,
receive, and transmit messages and other documents. Excluded from this
definition are file transfer utilities (software that transmits files
between users but does not retain any transmission data), data systems
used to collect and process data that have been organized into data
files or data bases on either personal computers or mainframe
computers, and word processing documents not transmitted on an e-mail
system.
Electronic mail message. A document created or received on an
electronic mail system including brief notes, more formal or
substantive narrative documents, and any attachments, such as word
processing and other electronic documents, which may be transmitted
with the message.
Electronic recordkeeping system. An electronic system in which
records are collected, organized, and categorized to facilitate their
preservation, retrieval, use, and disposition.
* * * * *
Transmission and receipt data.
(1) Transmission data. Information in electronic mail systems
regarding the identities of sender and addressee(s), and the date and
time messages were sent.
(2) Receipt data. Information in electronic mail systems regarding
date and time of receipt of a message, and/or acknowledgment of receipt
or access by addressee(s).
* * * * *
Subpart B--Program Requirements
16. In Sec. 1234.10 paragraphs (e) through (l) are redesignated (f)
through (m); the term ``electronic records system'' is revised to read
``electronic information system'' in paragraph (d) and redesignated
paragraphs (f), (g), (h), and (m); and a new paragraph (e) is added to
read as follows:
Sec. 1234.10 Agency responsibilities.
* * * * *
(e) Ensuring that adequate training is provided for users of
electronic mail systems on recordkeeping requirements, the distinction
between Federal records and nonrecord materials, procedures for
designating Federal records, and moving or copying records for
inclusion in an agency recordkeeping system;
* * * * *
Subpart C--Standards for the Creation, Use, Preservation, and
Disposition of Electronic Records
Secs. 1234.20 and 1234.22 [Amended]
17. In Sec. 1234.20 (a) and (b) the term ``electronic records
system'' is removed , and the term ``electronic information system'' is
added in its place, and in Sec. 1234.22 (a) and (b) the term
``electronic records system'' is removed, and the term ``electronic
recordkeeping system'' is added in its place.
Secs. 1234.24, 1234.26, 1234.28, 1234.30 and 1234.32 [Redesignated as
Secs. 1234.26, 1234.28, 1234.30, 1234.32 and 1234.34]
18. Sections 1234.24, 1234.26, 1234.28, 1234.30, and 1234.32 are
redesignated as Secs. 1234.26, 1234.28, 1234.30, 1234.32, and 1234.34
and a new 1234.24 is added to read as follows:
Sec. 1234.24 Standards for managing electronic mail records.
Agencies shall manage records created or received on electronic
mail systems in accordance with the provisions of this chapter
pertaining to adequacy of documentation, recordkeeping requirements,
agency records management responsibilities, and records disposition (36
CFR parts 1220, 1222, and 1228).
(a) Agency instructions on identifying and preserving electronic
mail messages will address the following unique aspects of electronic
mail:
(1) Some transmission data (names of sender and addressee(s) and
date the message was sent) must be preserved for each electronic mail
record in order for the context of the message to be understood.
Agencies shall determine if any other transmission data is needed for
purposes of context.
(2) Agencies that use an electronic mail system that identifies
users by codes or nicknames or identifies addressees only by the name
of a distribution list shall instruct staff on how to retain names on
directories or distributions lists to ensure identification of the
sender and addressee(s) of messages that are records.
(3) Agencies that use an electronic mail system that allows users
to request acknowledgments or receipts showing that a message reached
the mailbox or inbox of each addressee, or that an addressee opened the
message, shall issue instructions to e-mail users specifying when to
request such receipts or acknowledgments for recordkeeping purposes and
how to preserve them.
(4) Agencies with access to external electronic mail systems shall
ensure that Federal records sent or received on these systems are
preserved in the appropriate recordkeeping system and that reasonable
steps are taken to capture available transmission and receipt data
needed by the agency for recordkeeping purposes.
(5) Some e-mail systems provide calendars and task lists for users.
These may meet the definition of Federal record. Calendars that meet
the definition of Federal records are to be managed in accordance with
the provisions of General Records Schedule 23, Item 5.
(6) Draft documents that are circulated on electronic mail systems
may be records if they meet the criteria specified in 36 CFR 1222.34.
(b) Agencies shall consider the following criteria when developing
procedures for the maintenance of electronic mail records in
appropriate recordkeeping systems, regardless of format.
(1) Recordkeeping systems that include electronic mail messages
must:
(i) Provide for the grouping of related records into
classifications according to the nature of the business purposes the
records serve;
(ii) Permit easy and timely retrieval of both individual records
and files or other groupings of related records;
(iii) Retain the records in a usable format for their required
retention period as specified by a NARA-approved records schedule;
(iv) Be accessible by individuals who have a business need for
information in the system;
(v) Preserve the transmission and receipt data specified in agency
instructions; and
(vi) Permit transfer of permanent records to the National Archives
and Records Administration (see 36 CFR 1228.188 and 36 CFR 1234.32(a)).
(2) Agencies shall not store the recordkeeping copy of electronic
mail messages that are Federal records only on the electronic mail
system, unless the system has all of the features specified in
paragraph (b)(1) of this section. If the electronic mail system is not
designed to be a recordkeeping system, agencies shall instruct staff on
how to copy Federal records from the electronic mail system to a
recordkeeping system.
(c) Agencies that maintain their electronic mail records
electronically shall move or copy them to a separate
[[Page 44642]]
electronic recordkeeping system unless their system has the features
specified in paragraph (b)(1) of this section. Because they do not have
the features specified in paragraph (b)(1) of this section, backup
tapes should not be used for recordkeeping purposes. Agencies may
retain records from electronic mail systems in an off-line electronic
storage format (such as optical disk or magnetic tape) that meets the
requirements described at 36 CFR 1234.30(a). Agencies that retain
permanent electronic mail records scheduled for transfer to the
National Archives shall either store them in a format and on a medium
that conforms to the requirements concerning transfer at 36 CFR
1228.188 or shall maintain the ability to convert the records to the
required format and medium at the time transfer is scheduled.
(d) Agencies that maintain paper files as their recordkeeping
systems shall print their electronic mail records and the related
transmission and receipt data specified by the agency.
19. The heading of newly redesignated Sec. 1234.32 is revised, the
term ``electronic records system'' is revised to read ``electronic
information system'' in paragraph (a), and a new paragraph (d) is added
to read as follows:
Sec. 1234.32 Retention and disposition of electronic records.
* * * * *
(d) Electronic mail records may not be deleted or otherwise
disposed of without prior disposition authority from NARA (44 U.S.C.
3303a). This applies to the original version of the record that is sent
or received on the electronic mail system and any copies that have been
transferred to a recordkeeping system. See 36 CFR part 1228 for records
disposition requirements.
(1) Disposition of records on the electronic mail system. When an
agency has taken the necessary steps to retain the record in a
recordkeeping system, the identical version that remains on the user's
screen or in the user's mailbox has no continuing value. Therefore,
NARA has authorized deletion of the version of the record on the
electronic mail system under General Records Schedule 20, Item 14,
after the record has been preserved in a recordkeeping system along
with all appropriate transmission data.
(2) Records in recordkeeping systems. The disposition of electronic
mail records that have been transferred to an appropriate recordkeeping
system is governed by the records schedule or schedules that control
the records in that system. If the records in the system are not
scheduled, the agency shall follow the procedures at 36 CFR part 1228.
20. Newly redesignated Sec. 1234.34 is amended by adding a new
paragraph (c) to read as follows:
Sec. 1234.34 Destruction of electronic records.
* * * * *
(c) Agencies shall establish and implement procedures that
specifically address the destruction of electronic records generated by
individuals employing electronic mail.
Dated: August 14, 1995.
John W. Carlin,
Archivist of the United States.
[FR Doc. 95-21125 Filed 8-25-95; 8:45 am]
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