[Federal Register Volume 65, Number 125 (Wednesday, June 28, 2000)]
[Rules and Regulations]
[Pages 39817-39818]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-16308]


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NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

36 CFR Part 1228

RIN 3095-AA81


Agency Records Centers

AGENCY: National Archives and Records Administration (NARA).

ACTION: Summary of comments received on final rule.

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SUMMARY: This document describes the comments that the National 
Archives and Records Administration (NARA) received in response to the 
invitation for public comment on three sections of our final rule on 
agency records center storage standards, published December 2, 1999. We 
are publishing this document to inform the public of the comments and 
our disposition of the comments.

DATES: The final rule was effective January 3, 2000, except 
Secs. 1228.234, 1228.236, and 1228.238 which were effective March 2, 
2000.

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

SUPPLEMENTARY INFORMATION: NARA published its final rule, Agency 
Records Centers, on December 2, 1999 (64 FR 67634). In that final rule, 
we delayed the effective date of three new provisions concerning 
exceptions and waivers to the facility standards to allow a 60-day 
public comment period. These three new provisions are intended to make 
it easier for facilities to gain certification. We received timely 
comments from two offices in the Veterans Administration, an 
individual, Iron Mountain, United Mine Workers of America (UMWA), 
Contract Services Association of America (CSA), and PRISM International 
(PRISM). We also considered late comments from the Deputy Under 
Secretary of Defense for Acquisition Reform (DoD) and the Coalition for 
Government Procurement (Coalition).
    One of the agencies stated that they had no comment and the 
individual commented that the reasoning behind the waiver is 
understandable. A discussion of the other major comments follows, 
organized by subject. Most of these comments reiterated comments raised 
earlier in the rulemaking and addressed in the final rule.

Timing of Approvals of Waivers

    The UMWA endorsed the three sections with one recommended 
modification to Sec. 1228.238(c). That provision applies to waiver of 
roof requirements for underground storage facilities. It states that 
NARA will normally grant the waiver and notify the requesting agency 
within 10 work days if the agency has not also requested a waiver of a 
different requirement under Sec. 1228.236. If the agency has another 
waiver request pending for the same facility, NARA will respond to all 
of the waiver requests at the same time and within the longest time 
limits.
    UMWA argued that approval of one waiver for a facility should not 
be delayed because another waiver is received unless the initial waiver 
would be impacted by the new filing for a waiver. While a waiver of 
roof requirements can be considered independently from waivers 
addressed by Sec. 1228.236, a facility that requires a waiver of 
another NARA requirement cannot be approved to store Federal records 
until the requested waiver of the other provision(s) is approved. We 
would prefer to make one notification when all waivers are approved and 
we expect that agencies will submit all waiver requests for a facility 
at one time.

Limit the Scope of the Regulation to Permanent/Archival Records

    Iron Mountain, PRISM, CSA, and the Coalition recommended revising 
Sec. 1228.222(a) to limit the entire regulation to permanent archival 
Federal records. We rejected this proposal because (1) recommendations 
to change other sections of the regulation were outside the scope of 
the request for comment on Sec. 1228.234, 1228.236, and 1228.238, and 
(2) NARA had previously addressed comments on our position that all 
Federal records, not just permanent records, require a minimum level of 
protection (see 64 FR 67634). We also note that permanent archival 
records are those records that have been transferred to NARA's legal 
custody, not records still in the creating agency's custody. The 
regulation covers permanent and temporary records that are in the 
creating agency's custody.
    As we stated in the preamble to the proposed rule (64 FR 23504), in 
our initial regulatory flexibility analysis (64 FR 50028), and again in 
the final rule, Federal records provide essential documentation of the 
Federal Government's policies and transactions and protect rights of 
individuals. The Government has an obligation to protect and preserve 
these records for their entire retention period, even if that retention 
period is only a few years, as is the case with IRS income tax returns 
or invoice payments. NARA believes that records storage facilities 
should be structurally sound, protect against unauthorized access, and 
protect against fire and water damage to the records, whether the 
records are temporary or permanent. Only in the area of environmental 
conditions is the length of time the records are retained a significant 
consideration in setting standards.

NARA's Facility Standards are Inconsistent With Commercial 
Standards and Best Practices

    Iron Mountain, CSA, the Coalition, and DoD expressed concern that 
we did not ``baseline'' the standards against current commercial best 
practices and standards. These comments argued that adherence to local 
building codes and selected National Fire Protection Association (NFPA) 
standards provide sufficient protection for records in commercial 
records centers. We did not accept these comments, which also had been 
made in response to the proposed rule and initial regulatory 
flexibility analysis. In the preamble to the December 2, 1999, final 
rule, we discussed at some length why we did not share their views (see 
64 FR 67635 and 67639-67640). In brief, the local fire-safety 
components of building codes are designed to protect the life and 
safety of occupants, mitigate against the spread of a fire to adjacent 
structures, and to protect fire fighters, not to limit the loss of 
valuable contents. The NFPA standards cited by the industry comments 
pertain to the protection of facilities storing bulk quantities of 
blank or waste paper, not records. NARA's standards supplement the 
building codes to provide a safety level for the items stored.
    The commercial records storage industry does not currently have any 
widely accepted or ANSI-approved standards. Unfortunately, they do have 
a record of disastrous fires, each with

[[Page 39818]]

significant quantities of records destroyed. A fire in a commercial 
records storage facility in Chicago on October 29, 1996, resulted in 
the loss of over 220,000 boxes of records. The wet pipe sprinkler 
system was reported to be ordinary hazard, group II, with no sprinklers 
under the catwalks in 28 foot-high shelving. Preliminary estimates 
placed the loss at 50 million dollars or more. More than a million 
boxes of documents were destroyed in three March 1997 fires at a 
nationwide records storage company's two facilities in an industrial 
park in South Brunswick, New Jersey. And a May 6, 1997, fire near 
Scranton, PA destroyed another commercial center that stored 450,000 
cubic feet of paper and microfilm records. In comparison, the two 
recent fires at NARA's Washington National Records Center in Suitland, 
MD, demonstrated that NARA's fire protection and suppression system 
does provide the level of fire safety required by the NARA standard in 
Subpart K. The first fire resulted in loss of 50 or fewer cubic feet of 
records from fire. The loss from the second fire was limited to no more 
than 10 cubic feet of records.
    NARA fire safety requirements are based on extensive live fire 
testing conducted by nationally recognized independent laboratories. 
These tests demonstrate conclusively that the NARA standards are 
effective and practical. NARA has authorized the unlimited publication 
of the test reports. To our knowledge, no other U. S. provider of 
records storage services has conducted any such independent tests; at 
least no reports have been published. The NARA standards also reflect 
the National Fire Protection Association's advisory Guide for Fire 
Protection for Archives and Records Centers (NFPA/ANSI 232A-1995), the 
most widely accepted documentation of commercial best practices. (The 
National Fire Protection Association has recently voted to change the 
advisory guide to a mandatory standard.)
    The related Iron Mountain comment that NARA had conducted a fire 
test subsequent to the final rule that used the widely accepted 
industry fire suppression standards was misinformed. NARA's successful 
fire test of 28-foot high storage, conducted by the independent 
Southwest Research Institute, did not use the widely accepted industry 
practice of ceiling-only sprinklers. Instead, NARA used sprinklers at 
three levels: under the first catwalk at approximately 16 feet; under 
the second catwalk at approximately 24 feet, and at the ceiling. The 
test fire was controlled by the under-catwalk sprinklers and the 
ceiling sprinklers never activated.

NARA Regulation is Inconsistent With Acquisition Reform 
Inititatives

    DoD, CSA, and the Coalition also commented that the final rule is 
inconsistent with the Government's acquisition reform efforts to 
eliminate government unique standards, such as military specifications 
in favor of commercial standards and best practices. We do not view the 
records center regulation as contravening or impeding the Government's 
acquisition reform initiative. As discussed in the previous sections of 
this SUPPLEMENTARY INFORMATION, there is no clear ANSI-approved 
industry fire-safety standard for records centers that could be used in 
place of the NARA standard. It is important to realize that with regard 
to fire safety and security issues, the new regulation was written as a 
performance standard, rather than a prescriptive standard, and replaced 
Government-specific (MIL-SPEC and FED-STD) references with ANSI-
approved references. We also took extensive steps to assure full 
industry review and comment, as noted in the SUPPLEMENTARY INFORMATION 
section of the December 2, 1999, final rule.

Other Comments

    Several of the commenters either enclosed copies of comments that 
had been submitted in response to the proposed rule, or repeated their 
earlier comments. These comments generally concerned issues of cost and 
competition, and were addressed in the December 2, 1999, final rule. 
The DoD comment indicated a concern that NARA was both the arbiter of 
the standards and a competitor in the marketplace. While we appreciate 
the concern, NARA has taken action to assure that the two functions 
remain separate.

Conclusion

    After carefully reviewing the comments received in response to the 
invitation for public comment on Secs. 1228.234, 1228.236, and 
1228.238, we determined that these three provisions do not require 
further amendment to carry out their intended purpose: to allow Federal 
agencies and the commercial records storage industry more flexibility 
in meeting the NARA requirements.

    Dated: June 23, 2000.
John W. Carlin,
Archivist of the United States.
[FR Doc. 00-16308 Filed 6-27-00; 8:45 am]
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