[Federal Register Volume 66, Number 196 (Wednesday, October 10, 2001)]
[Proposed Rules]
[Pages 51740-51743]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24783]



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Part II





National Archives and Records Administration





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36 CFR Part 1234



Records Management; Electronic Text Documents; Proposed Rule

  Federal Register / Vol. 66, No. 196 / Wednesday, October 10, 2001 / 
Proposed Rules  

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NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

36 CFR Part 1234

RIN 3095-AB05


Records Management; Electronic Text Documents

AGENCY: National Archives and Records Administration (NARA).

ACTION: Advance notice of proposed rulemaking; request for comment.

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SUMMARY: NARA is seeking comments from Federal agencies and the public 
on a petition for rulemaking we received from the Public Citizen 
Litigation Group (Public Citizen). The petition requested that the 
Archivist amend NARA rules concerning the management, scheduling and 
preservation of text documents created in electronic form. This advance 
notice of proposed rulemaking (ANPRM) seeks comments on the issues 
raised in the first and third proposals in the petition. The comments 
will assist NARA in determining whether a regulatory amendment should 
be proposed, whether some other action should be taken (e.g., issuance 
of guidance to Federal agencies in a NARA Bulletin), or whether no 
changes should be made to NARA's regulations and other issuances.

DATES: Comments are due by January 8, 2002.

ADDRESSES: Comments must be sent to Regulation Comments Desk (NPOL), 
Room 4100, Policy and Communications Staff, National Archives and 
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001. 
They may be faxed to 301-713-7270. You may also comment via the 
Internet to [email protected]. Please submit Internet comments within 
the body of your email message or attach comments as an ASCII file 
avoiding the use of special characters and any form of encryption. 
Please also include ``Attn: 3095-AB05'' and your name and return 
address in your email message. If you do not receive a confirmation 
that we have received your email message, contact the Regulation 
Comment Desk at 301-713-7360, ext. 226.
    An electronic copy of the Public Citizen petition for rulemaking is 
available for review at http:www.nara.gov/nara/petition.html. A paper 
copy of the petition is available by contacting the person listed in 
FOR FURTHER INFORMATION CONTACT. The exhibits submitted with the 
petition for rulemaking are available for review at the Textual 
Research Room, National Archives at College Park (Archives II), 8601 
Adelphi Rd., College Park, MD 20740-6001 during hours that the research 
room is open (see 36 CFR 1253.2).

FOR FURTHER INFORMATION CONTACT: Nancy Allard at telephone number 301-
713-7360, ext. 226, or fax number 301-713-7270.

SUPPLEMENTARY INFORMATION:

Background on Petition

    Public Citizen submitted a petition for rulemaking under 5 U.S.C. 
553(e) to the Archivist of the United States on October 31, 2000, 
requesting that the Archivist amend NARA regulations in 36 CFR Part 
1234, Electronic Records Management. The petition proposed three 
amendments and suggested regulatory text to accomplish these 
amendments.
    NARA responded formally in writing to the petition on January 18, 
2001. That response stated NARA's intent to solicit the views of other 
Federal agencies and the public on two of Public Citizen's proposals 
contained in the petition prior to determining further action. The NARA 
response declined to act on the second proposal in the petition to 
phase out the application of General Records Schedule 20 to agency 
program records. As we explained in the response to Public Citizen, we 
are evaluating alternatives to GRS 20 for disposition authority as part 
of a comprehensive review of the policies and procedures for scheduling 
and appraisal of records in all formats. NARA has concluded that acting 
on Public Citizen's second proposal now would be inconsistent with our 
consideration of other alternatives as part of our study.

Description of Proposal 1

    Public Citizen's first proposal was:

    1. The regulations should make explicit that recordkeeping 
systems that preserve electronic text documents must preserve the 
entire content, structure and context of the electronic original, a 
requirement that the Archivist's attorneys have stated is already 
part of GRS 20, although the text of GRS 20 contains no such 
language. [Bold in petition document.]
    We suggest that this be accomplished by amending 36 C.F.R. 
Sec. 1234.30 to establish requirements for all recordkeeping systems 
that maintain text documents and include, as the first of these 
requirements, the requirement that the recordkeeping system preserve 
the content, structure and context of the original text document:

The Public Citizen proposal laid out the proposed wording of 
Sec. 1234.22 (incorrectly cited as Sec. 1234.30 in the Public Citizen 
petition) with strike-out of text proposed for removal and highlighting 
of new text. For ease of reading, this document sets forth the language 
in the following chart, with the current Sec. 1234.22 provided in the 
left column and Public Citizen's proposed wording in the right column.

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[GRAPHIC] [TIFF OMITTED] TP10OC01.000

Discussion of Proposal 1

    The Public Citizen proposal would expand current requirements for 
electronic recordkeeping systems to all recordkeeping systems and 
specifically require agencies to capture the content, structure, and 
context of the original electronic text document in the copy filed in 
the recordkeeping system.
    To assist NARA in evaluating this Public Citizen proposal, we 
invite your comments on the following points:

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1A. Definitions

    The first paragraph of Public Citizen's proposed CFR text uses the 
term ``electronic information system.'' In 36 CFR 1234.2, NARA defines 
this term as ``A system that contains and provides access to 
computerized Federal records and other information.'' In 36 CFR 1234.2, 
NARA defines ``Text documents'' as ``narrative or tabular documents, 
such as letters, memorandums, and reports, in loosely prescribed form 
and format.''
    Questions for comment: 1A1. Is NARA's definition of electronic 
information system still adequate? Should it explicitly include (or 
exclude) any types of office applications or other type of software 
such as the network operating system? Is the definition of ``text 
documents'' sufficiently broad enough to cover documents produced by 
products other than word processing software, e.g. PowerPoint 
presentations or desktop publishing files? Should the definition of 
``text documents'' be amended to include presentations and other 
specific files? Please consider the issues raised relating to both this 
proposal 1 and proposal 3 found later in this ANPRM.
    1A2. If we determine that the section should be amended to reflect 
Public Citizen's proposed requirements, would coverage of the section 
be clearer if the term ``electronic information systems'' is replaced 
in Sec. 1234.22 by a delineation of specific applications that may 
produce original electronic text documents such as office suite 
application packages (e.g., Office 2000, Lotus Notes), or word 
processing or other office automation applications not integrated with 
the agency email or office suite?

1B. Content, Structure, and Context

    The Public Citizen proposal does not place any limit on the 
content, structure, and context information to be preserved. Indeed, in 
several places in the petition Public Citizen cites the need for 
agencies that rely on paper recordkeeping systems to preserve (e.g., 
print out for a paper recordkeeping copy) the entire content, 
structure, and context that is available in the original electronic 
documents generated with an office automation application. Neither the 
Public Citizen petition nor current NARA CFR regulations define 
``content'', ``structure'', and ``context'' explicitly. NARA has 
provided definitions of the terms in its October 2000 Records 
Management Guidance for Agencies Implementing Electronic Signature 
Technologies (NARA GPEA guidance), which is available at http://www.nara.gov/records/policy/gpea.html, as follows:
    Content: The information that a document is meant to convey 
(Society of American Archivists Glossary). Words, phrases, numbers, or 
symbols comprising the actual text of the record that were produced by 
the record creator.
    Structure: The physical and logical format of a record and the 
relationships between the data elements.\3\
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    \3\ While this definition is appropriate for the types of 
electronic records covered in the GPEA guidance, it may not be 
clearly applicable to all electronic records. Textual records, such 
as word processing files, may not contain any defined data elements. 
In the discussion following these definitions of ``content'', 
``structure'', and ``context'' we use a broader definition.
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    Context: The organizational, functional, and operational 
circumstances in which documents are created and/or received and used 
(Society of American Archivists Glossary). The placement of records 
within a larger records classification system providing cross-
references to other related records.
    To evaluate the Public Citizen proposed Sec. 1234.22(a)(1)--
``Preserve the content, structure and context of the original text 
documents''--we need to be sure that there is a common understanding of 
how those terms apply to text documents.
    For text documents, NARA considers ``content'' to be the 
information contained in the record that was used to conduct agency 
business. For example, the content of a letter would include the text 
of the letter, the signature, and any other markings (annotations, date 
stamp received, etc.). A draft circulated for comment might show 
special editing features, such as highlighting, different color fonts, 
strike-over, or comment fields, to draw the reviewer's attention to 
specific points. (We note that if a text document is saved as an ASCII 
file, special editing features including basic italics and underline 
are lost.)
    For text documents, NARA considers ``structure'' to be the ordering 
or relationships of the parts of a record. In narrative text, this 
would include the ordering of the narrative in sentences, paragraphs, 
sections, chapters, etc. and the designation of certain elements of 
content as title, author, document date, etc. In a letter, the 
signature is structurally related to the closing and signature block. 
In a table, structure would determine the arrangement of content in 
rows and columns.
    For text documents, NARA considers ``context'' to be information 
that places the record in the business context in which the record was 
created, received, and/or used. Context may include the drafter or 
source of the document (if different from the signer), the user(s), the 
filing code marked on the document or the placement of the document in 
a case file. Context also may be provided by an associated record, such 
as a routing slip that shows the levels of review of a final document.
    Questions for comment: 1B1. Are the definitions of ``content,'' 
``structure,'' and ``context'' contained in the NARA GPEA guidance 
adequate for all types of records? Do you agree with NARA's 
understanding of the terms ``content,'' ``structure,'' and ``context'' 
as they apply to text documents in the Federal Government? If not, what 
is your understanding of the terms? Do these concepts need to be 
defined in NARA regulations?
    1B2. What information about the content, structure, and context 
must be maintained as part of the record for the agency to conduct its 
business and for accountability purposes? Can we define the minimum 
metadata needed for text documents to provide adequate documentation, 
as we do for email messages (see 36 CFR 1234.24(a)(1)-(a)(3))? Are the 
minimum metadata different for permanent and temporary records? Do 
specific types of text documents require different minimum metadata? 
What relationship do you see between ``content, structure, and 
context'' and metadata requirements? Specifically addressing the Public 
Citizen proposed CFR wording, does compliance with the metadata and 
other requirements in its proposed Sec. 1234.22(a)(5) meet the 
requirements for content, structure, and context in its proposed 
Sec. 1234.22(a)(1)?
    1B3. We request comments specifically on the need to retain with 
the recordkeeping copy the following types of information for text 
documents:
     Hidden information: NARA's view is that hidden information 
(such as comments) in text records must be preserved as part of the 
record when the author intends to share the information with others, 
e.g., notes added to explain or comment on a draft report. Is it 
essential or even misleading to require it when the document is viewed/
printed from a system that does not indicate that there is hidden text? 
What types of text documents besides word processing have hidden 
comments/text capability, e.g., spreadsheets with formulas?
     Document summaries: What elements of document summary 
information are commonly available from all major word processing 
applications? What other office applications that produce text 
documents have a similar feature? Is the

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document summary feature used in your agency and, if so, how widely? 
Does any agency require staff to complete the document summary 
routinely? Is a default normally used? How does the agency use the 
information if they retain the document in a non-electronic 
recordkeeping system?

1C. Requirement for Standard Interchange Format for Electronic 
Recordkeeping Systems

    Public Citizen proposed to strike the current paragraph (a)(3), 
which is applicable only to electronic recordkeeping systems. This 
paragraph requires agencies to provide a standard interchange format 
when necessary to permit the exchange of documents on electronic media 
between agency computers using different software/operating systems and 
the conversion or migration of documents on electronic media from one 
system to another. NARA believes the interchange requirements are 
needed for the survival of all but the most short-term electronic 
records, and critical for long-term and permanent electronic records.
    Question for comment: If we determine that Sec. 1234.22 should be 
amended to reflect Public Citizen's proposed requirements, should we 
retain the current paragraph (a)(3) for electronic recordkeeping 
systems only?

1D. Alternatives to Public Citizen Proposal

    Question for comment: Do you see any other issues that should be 
considered as we evaluate the Public Citizen Proposal 1?

Proposal 2

    As noted in the Background on petition section of the SUPPLEMENTARY 
INFORMATION, NARA declined to act on the second proposal, and we are 
not inviting or considering comments on that proposal in this ANPRM.

Description of Proposal 3

    Public Citizen's third proposal was:

    3. The Archivist should mandate early appraisal of text 
documents and mandate that agencies incorporate disposition 
instructions in the design of new electronic information systems. 
[Bold in petition document.]
    The Archivist's current regulations require that electronic 
information systems ``shall be scheduled as soon as possible but no 
later than one year after implementation of the system,'' 36 C.F.R. 
Sec. 1234.32, but the regulations only require that disposition 
instructions be incorporated into system design for ``data files.'' 
Id. Sec. 1234.20. We urge that the following language be added to 36 
C.F.R. Sec. 1234.30 to mandate consideration of recordkeeping when 
systems for text documents are implemented:
    (b) Before approving new electronic information systems or 
enhancements to existing systems that produce, use, or store text 
documents, the agency shall conduct an initial appraisal of the 
records associated with the system and incorporate disposition 
instructions for such records into the electronic information 
system's design.

Discussion of Proposal 3

    Public Citizen states in its petition that records in electronic 
form have unique advantages, including wider and easier distribution, 
searching and indexing the records, and storage. Public Citizen further 
states that ``electronic records carry advantages for research, even if 
the records have not been maintained in a system that satisfies all of 
the attributes of an ideal electronic recordkeeping system.'' Public 
Citizen argues that it is important to address the disposition of both 
text documents and data files whenever new information systems are 
developed.
    NARA believes that the wording proposed by Public Citizen will need 
modification if we determine that we should incorporate the proposal in 
36 CFR part 1234. NARA, not the creating agency, appraises records and 
approves disposition instructions. As part of an agency's planning for 
a new or modified system, we think that the agency should consider 
records management issues including retention and disposal of the 
records and ensuring that the records can be maintained for their 
entire retention period. Additionally, the proposed placement of the 
new paragraph (b) in Sec. 1234.30 is not as appropriate as placing it 
in Sec. 1234.22 or in a new separate section.
    To assist NARA in evaluating this Public Citizen proposal, we 
invite your comments on the following points:

3A. Terminology Used in the Proposal

    Questions for comment: 3A1. Does (and should) ``electronic 
information system'' as used in this proposed paragraph include word 
processing applications? If so, does the word processing application 
technically ``store'' the text documents produced with the software?
    3.A.2. Should we distinguish systems that only produce or use 
electronic records from those that store them? If an agency sends all 
its electronic records to a records management application (RMA), NARA 
believes there is no need to build disposition functionality into its 
word processing application or into a web tool that can search and 
retrieve documents from the RMA. What do we do about systems used to 
produce electronic records that are only maintained in hard copy?
    3.A.3. How should ``enhancements to existing systems'' be defined 
or qualified to indicate that new or different records are being 
created? NARA has a general policy that agencies must reschedule their 
records when an agency program is reorganized or otherwise changed in a 
way that results in the creation of new or different records (see 36 
CFR 1228.26(a)(2)).
    3.A.4. What activities does the term ``produce'' cover? Is there a 
clearer way to state these activities?

3B. Alternatives to Public Citizen Proposal 3

    Question for comment: Do you see any other issues that should be 
considered as we evaluate Public Citizen proposal 3?

    Dated: August 21, 2001.
John W. Carlin,
Archivist of the United States.
[FR Doc. 01-24783 Filed 10-9-01; 8:45 am]
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