[Federal Register Volume 64, Number 178 (Wednesday, September 15, 1999)]
[Proposed Rules]
[Pages 50028-50031]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-24013]


=======================================================================
-----------------------------------------------------------------------

NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

36 CFR Part 1228


Agency Records Center Rule

AGENCY: National Archives and Records Administration.

ACTION: Initial Regulatory Flexibility Analysis.

-----------------------------------------------------------------------

SUMMARY: The National Archives and Records Administration (NARA) is 
publishing this initial regulatory flexibility analysis to aid the 
public in commenting upon the small business impact of its proposed 
rule revising and updating the standards that records center storage 
facilities must meet to store Federal records.

DATES: Written comments must be received at the address shown in the

[[Page 50029]]

ADDRESSES section on or before October 15, 1999. Comments received 
after this date will not be considered.

ADDRESSES: Submit comments to Regulation Comment Desk (NPOL), Room 
4100, National Archives and Records Administration, 8601 Adelphi Road, 
College Park, MD 20740-6001. Alternatively, comments may be faxed to 
301-713-7270.

FOR FURTHER INFORMATION CONTACT: Nancy Allard at (301) 713-7360, ext. 
226.

SUPPLEMENTARY INFORMATION: This notice supplements NARA's initial 
notice of proposed rulemaking published on April 30, 1999, at 64 FR 
23504, to revise and update records storage facility standards in 36 
CFR part 1228, subpart K. NARA's notice of proposed rulemaking did not 
include an initial regulatory flexibility analysis pursuant to the 
Regulatory Flexibility Act (5 U.S.C. 603), based on a certification 
that the proposed rule will not have a significant economic impact on a 
substantial number of small entities (5 U.S.C. 605). See 64 FR at 
23505. The certification statement in the proposed rule inadvertently 
omitted the phrase ``a substantial number of'', although NARA intended 
that phrase to be part of the statement.

Background

    The proposed rule would apply to all records storage facilities 
Federal agencies use to store, service, and dispose of their records, 
including records centers operated by NARA and other Federal agencies 
and those commercial records storage facilities that Federal agencies 
use to store Federal records. NARA based its certification statement on 
the following unstated assumptions:
     The proposed rule relies on voluntary industry standards 
and industry recommended practices as the basis for most of the 
requirements. NARA made a reasonable assumption that most commercial 
facilities that would be likely to store Federal records would already 
conform to the industry standards and recommended practices. Thus, 
there would not be a significant cost to existing small businesses to 
upgrade their facilities to meet the proposed general facility 
standards.
     Environmental control requirements for storage of 
microfilm, audiovisual, and/or electronic permanent and unscheduled 
records have been in force elsewhere in NARA regulations for three or 
more years. Thus re-stating them in this proposed rule was not changing 
the existing burden on storage facilities. Moreover, at the time the 
proposed rule was developed, permanent records comprise only about five 
to six percent of the NARA's total records center holdings. Because 
only the specific records storage areas that contain permanent or 
unscheduled Federal records will require the NARA environmental 
controls, we assumed that it was unlikely that a significant number of 
commercial centers, small or large, would need to add air-conditioning 
equivalent to that required for office space to more than one storage 
module.
     Certain proposed requirements are imposed by authorities 
outside NARA: The building security requirements are those established 
by the Department of Justice for Level III Federal facilities. Seismic 
safety provisions are required by Executive orders and an integrated 
pest management program is mandated for Federal agencies by the Food 
Protection Act of 1996. Any economic burden for complying with these 
requirements would exist independently of NARA's proposed rule.
     NARA would continue to store Federal records for some 
agencies, although other agencies might choose private sector or other 
Federal agency centers to store their records after NARA's records 
center program becomes fully reimbursable in Fiscal Year 2000. Security 
classified records and IRS records containing restricted taxpayer 
information would continue to be stored in NARA or agency records 
centers, not commercial records storage facilities. As of the end of FY 
1998, NARA centers held more than 6 million c.f. in these categories. 
NARA also expected that the National Personnel Records Center in St. 
Louis would retain 2.02 million c.f. of military personnel files and 
1.4 million c.f. of civilian files, as evidenced in a related proposed 
rule published the same day (64 FR 23510), Storage of Federal Records.
     Two commercial records storage companies, Iron Mountain 
and Pierce Leahy, are currently the predominant private sector 
providers of records storage services to Federal agencies. NARA had no 
evidence that a substantial number of records centers that qualify as 
small businesses store Federal records for agencies, or that storage of 
Federal records comprises a significant percentage of their business 
receipts.
    Accordingly, NARA believed that its certification statement in the 
proposed rule was appropriate. In response to a request from PRISM 
International, a not-for-profit trade association that includes off-
site storage company members, NARA published a June 7, 1999, notice of 
a public meeting on the proposed rule, and extended the comment period 
to July 7, 1999 (64 FR 30276). At that public meeting on June 18, 1999, 
several attendees questioned NARA's certification statement. NARA staff 
stated that NARA had not done any formal cost analysis to support this 
certification and invited attendees to provide comments on the adequacy 
of that statement. In response to this invitation, NARA received 
several comments that the regulation would have a significant impact on 
small business. Additionally, some records storage facilities wrote to 
their members of Congress stating that the proposed rule would have a 
significant impact on them, and those letters were forwarded to NARA 
for consideration.
    The comments on the economic impact appear to be based on two 
provisions of the proposed rule: A requirement in proposed 
Sec. 1228.230(b) that records storage areas not exceed 250,000 c.f. of 
records to protect against catastrophic files and a misinterpretation 
of Sec. 1228.234(a) that NARA would not allow commercial facilities to 
store records higher than 15 feet. (Section 1228.234 describes one 
optional alternative for an acceptable fire detection and suppression 
system, and is the alternative NARA uses in its own records centers. It 
is not a mandatory requirement. NARA intends to clarify this further in 
the final rule by moving the description of this alternative to an 
appendix and reiterating that other alternatives are acceptable.)
    NARA has decided to publish this notice, which includes the 
following initial regulatory flexibility analysis, to provide further 
information and opportunity for public comment on the small business 
impact, if any, of the proposed rule.

Initial Regulatory Flexibility Analysis

    Description of the reasons that action by the agency is being 
considered. Current records center standards were last issued in 1982. 
Based upon advancements in technical knowledge and experience gained 
over the past two decades, NARA believes it is time to update the 
standards for the storage of Federal records in the legal custody of 
Federal agencies. Moreover, as more agencies are turning to the private 
sector for off-site storage, NARA believes that it is necessary to 
require agencies to ensure that records in their legal custody are 
stored in appropriate space wherever the records are stored.
    Succinct statement of the objectives of, and legal basis for, the 
proposed rule. Federal records provide essential

[[Page 50030]]

documentation of the Federal Government's policies and transactions and 
protect rights of individuals. These records must be stored in 
appropriate space to ensure that they remain available for their 
scheduled life.
    NARA is authorized, under 44 U.S.C. 2907, to establish, maintain 
and operate records centers for Federal agencies. NARA is authorized, 
under 44 U.S.C. 3103, to approve a records center that is maintained 
and operated by an agency. NARA is also authorized to promulgate 
standards, procedures, and guidelines to Federal agencies with respect 
to the storage of their records in commercial records storage 
facilities. See 44 U.S.C. 2104(a), 2904 and 3102.
    Description of and, where feasible, an estimate of the number of 
small entities to which the proposed rule will apply. The proposed rule 
will apply to NARA, to Federal agencies that operate their own records 
centers, and to any individual commercial records center facilities 
that a Federal agency uses to store its records. The proposed rule will 
apply to both aboveground and underground facilities. NARA is unable to 
estimate the number of small entities to which the proposed rule will 
apply for the following reasons:
     Under current regulations, agencies do not report to NARA 
or obtain NARA approval to store their records in commercial records 
storage facilities. Therefore, NARA has no information on the number of 
current or past agency contracts with small business records centers. 
We specifically invite comments from agencies that have such contracts 
and from records centers that are small businesses on this point.
     At present, the General Services Administration's Multiple 
Award Schedule (MAS) for Records Center Services (FSS-36-IV sin 51 504) 
has listed only two qualified companies, both of which are large 
businesses. The procurement process that an agency must follow when 
using an MAS or when entering into an interagency agreement with NARA 
or another Federal agency to provide records center services is much 
simpler than the process it must use when seeking open market services. 
For this reason, NARA cannot estimate the volume of records center 
contracts that agencies may consider awarding to small businesses. We 
specifically invite comments from agencies on any plans that they have 
to contract with small businesses for records center services in the 
next 2 years.
    Although we are unable to provide an estimate of the number of 
small entities to which the proposed rule will apply, we do have 
estimates of the universe of small entities. NARA considered records 
center vendors to be small entities if they met the Small Business 
Administration (SBA) definition of a small business under Standard 
Industrial Code (SIC) 4226, Special Warehousing and Storage, Not 
Elsewhere Classified. For SIC 4226, an SBA small business must have 
annual gross receipts of $18.5 million or less. According to census 
figures furnished to NARA by SBA, there are 1,230 firms in SIC 4226. 
Most of these firms do not have multiple establishments (the number of 
SIC 4226 establishments is 1,547).
    Description of the projected reporting, recordkeeping and other 
compliance requirements of the proposed rule, including an estimate of 
the classes of small entities which will be subject to the requirement 
and the type of professional skills necessary for preparation of the 
report or record.
    Reporting/recordkeeping requirements: The proposed rule does not 
directly mandate reporting or recordkeeping within the meaning of the 
Paperwork Reduction Act. All reporting requirements are placed on 
Federal agencies, which must secure NARA approval before moving Federal 
records to a commercial records center. NARA anticipates that the 
Federal agencies would include 36 CFR part 1228, subpart K (the 
facility standards) in their contracts with commercial records centers. 
Proposed Sec. 1228.240(e) states that agency may submit to NARA ``a 
copy of the agency's contract that incorporates this subpart in its 
provisions or a statement from the agency records officer that 
certifies that the facility meets the standards in this subpart.''
    Other compliance requirements: All records centers that store 
Federal records, including commercial records centers operated by small 
businesses, must comply with the facility requirements in the proposed 
rule. Certain specific requirements differ for newly constructed 
facilities and existing facilities. Also, existing facilities are 
allowed a 10-year period to become compliant with some of these 
requirements. The facility compliance requirements are found in the 
proposed Secs. 1228.228, 1228.230, and 1228.236. (See 64 FR 23506-
23510.)
    Professional skills necessary for preparation of report or record: 
If the records center owner has maintained the facility design records, 
no special professional skills would be necessary to provide 
documentation to the contracting agency that the facility meets the 
NARA standards. If the design records are not available, the center 
would have need for the services of a licensed Fire Protection Engineer 
to inspect the facility and prepare a report on a one-time basis. We 
estimate that the inspection and preparation of a report would take no 
more than 8 hours total.
    An identification, to the extent practicable, of all relevant 
Federal rules which may duplicate, overlap or conflict with the 
proposed rule. At the June 18, 1999, public meeting, attendees pointed 
out that underground storage facilities are subject to regulations 
issued by the Mine Safety and Health Administration in 30 CFR Chapter I 
for any working mine. We intend to add a provision to our final rule 
that if any of the provisions of NARA's regulation conflict with 
mandatory life safety or ventilation requirements imposed on 
underground storage facilities by 30 CFR chapter I, 30 CFR chapter I 
applies.
    Also at the public meeting, attendees pointed out that the proposed 
NARA regulations might conflict with local or regional building codes 
with which commercial facilities must comply. We stated at the meeting 
that we intend to add a provision to our final rule that resolves such 
conflicts by specifying that, following normal rules of precedence, the 
more stringent fire protection and life-safety provision will apply. If 
a mandatory NARA requirement cannot be reconciled with a mandatory 
local or regional requirement, the local or regional code will apply.
    Description of any significant alternatives to the proposed rule 
which accomplish the stated objectives of applicable statutes and which 
minimize any significant economic impact of the proposed rule on small 
entities. Consistent with the stated objectives of applicable statutes, 
the analysis shall discuss significant alternatives such as--(1) the 
establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance and reporting requirements under the rule for such small 
entities; (3) the use of performance rather than design standards; (4) 
any exemption from coverage of the rule, or any part thereof, for such 
small entities. To the extent possible, the proposed rule specifies 
performance standards and incorporates by reference industry consensus 
standards. NARA chose this alternative over the other possible 
regulatory approach--extending the coverage of the existing regulation 
that governed agency records centers--to provide as much flexibility as 
possible to all

[[Page 50031]]

commercial and agency records centers, including small businesses.
    We did not believe that we could adopt any of the other 
alternatives [(1), (2) or (4)] for minimizing the impact of the 
proposed rule on small entities, given the objective of ensuring 
appropriate protection for Federal records when they leave agency 
office space. We believe that the 10-year period we will provide for 
complying with certain requirements will moderate the impact on small 
businesses since they will be able to plan for the necessary 
modifications and implement them during normal maintenance, e.g., 
removing roof-mounted equipment when roof repairs or replacement is 
done. However, we do not believe that it is appropriate to exempt or 
delay small businesses' compliance with basic fire detection and 
suppression requirements. It is also not feasible to exempt or delay 
small businesses' compliance with requirements imposed by other 
authorities, e.g., DOJ building security requirements.

Questions for Comment To Assist Regulatory Flexibility Analysis

    1. Please provide comment on any or all of the provisions in the 
proposed rule with regard to
     The impact of the provision(s) including the benefits and 
costs, if any, on small entities, and
     Other alternatives, if any, NARA should consider, as well 
as the costs and benefits of those alternatives to small entities.
    2. Please identify any Federal rules, other than the MSHA 
regulations discussed in this notice, that may duplicate, overlap, or 
conflict with the proposed rule. In addition, please identify any 
industry standards not cited in NARA's proposed rule that would be more 
appropriate. Please identify such industry standards by name of the 
organization establishing the standard, formal title, and edition date, 
and state how the public can get copies of the standard.
    3. Please discuss the extent to which existing commercial records 
centers, especially those that qualify as a small business, have 
incorporated either the requirements of National Fire Protection 
Association (NFPA) 232, Standard for the Protection of Records (1995 
Edition) for facilities smaller than 50,000 c.f. or the guidance in 
NFPA 232A, Guide for Fire Protection of Archives and Records Centers 
(1995 Edition) for larger facilities.
    4. How many records centers that are small businesses presently 
store records for Federal agencies or would be interested in such 
future business opportunity? Please include the basis for your response 
to this question (e.g., industry survey).

    Dated: September 10, 1999.
John W. Carlin,
Archivist of the United States.
[FR Doc. 99-24013 Filed 9-14-99; 8:45 am]
BILLING CODE 7515-01-P