[Federal Register Volume 69, Number 212 (Wednesday, November 3, 2004)]
[Proposed Rules]
[Pages 63980-63981]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-24403]



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NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

36 CFR Part 1234

RIN 3095-AB39


Records Management; Electronic Mail; Electronic Records; 
Disposition of Records

AGENCY: National Archives and Records Administration (NARA).

ACTION: Proposed rule.

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SUMMARY: NARA is seeking comments from Federal agencies and the public 
on a proposed revision to our regulations to provide for the 
appropriate management and disposition of very short-term temporary e-
mail, by allowing agencies to manage these records within the e-mail 
system.

DATES: Submit comments on or before January 3, 2005.

ADDRESSES: NARA invites interested persons to submit comments on this 
proposed rule. Please include ``Attn: RIN 3095-AB39'' and your name and 
mailing address in your comments. Comments may be submitted by any of 
the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: Send comments to [email protected]. If you do not 
receive a confirmation that we have received your e-mail message, 
contact Cheryl Stadel-Bevans at 301-837-3021.
     Fax: Submit comments by facsimile transmission to (301) 
837-0319.
     Mail: Send comments to Regulations Comments Desk (NPOL), 
Room 4100, Policy and Communications Staff, National Archives and 
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001.
     Hand Delivery or Courier: Deliver comments to 8601 Adelphi 
Road, College Park, MD.

FOR FURTHER INFORMATION CONTACT: Cheryl Stadel-Bevans at telephone 
number (301) 837-3021 or fax number (301) 837-0319.

SUPPLEMENTARY INFORMATION:

Background on Proposed Regulation Changes

    As part of NARA's Records Management Initiatives to redesign 
Federal records management, NARA has determined that Federal agencies 
should be allowed to dispose of short-term temporary electronic mail 
(e-mail) records (e.g., those with a retention period of 90, 120, or 
180 days), without requiring the creation of a separate paper or 
electronic recordkeeping copy. Rather, such short-term e-mail records 
could reside on a live e-mail system, provided that (1) users do not 
delete the messages before the expiration of the NARA-approved 
retention period, and (2) the system's automatic deletion rules ensure 
preservation of the records until the expiration of the NARA-approved 
retention period. Agencies are reminded that disposition authorities 
for records, including e-mail records, that have been requested under 
FOIA or that are the subject of current or imminent audit, 
investigation, or litigation may need to be placed in suspense or 
``frozen'' until the matter is resolved. In such cases, an agency 
always should obtain appropriate legal advice tailored to the 
circumstances before proceeding with disposition.
    Allowing agencies to dispense with creating separate recordkeeping 
copies of such documents will reduce the records management burden on 
agencies and will serve to encourage agency staff to create 
recordkeeping copies of the relatively small proportion of e-mail 
records that warrant longer-term or permanent retention. The records 
covered by this change are limited to transitory Federal records 
covered by GRS 23, Item 7, or Federal records scheduled on a NARA-
approved agency records schedule with a very short-term retention 
(e.g., 90, 120, or 180 days).
    Minor changes to General Record Schedule (GRS) 23, Records Common 
to Most Offices within Agencies, will be necessary. GRS 23, Item 7 will 
be changed to read:

Transitory Records

    Records of short-term interest, including those in electronic form 
(e.g., e-mail messages), which have minimal or no documentary or 
evidential value. Included are such records as:
     Routine requests for information or publications and 
copies of replies which require no administrative action, no policy 
decision, and no special compilation or research for reply;
     Originating office copies of letters of transmittal that 
do not add any information to that contained in the transmitted 
material, and receiving office copy if filed separately from 
transmitted material;
     Quasi-official notices including memoranda and other 
records that do not serve as the basis of official actions, such as 
notices of holidays or charity and welfare fund appeals, bond 
campaigns, and similar records;
     Records documenting routine activities containing no 
substantive information, such as routine notifications of meetings, 
scheduling of work-related trips and visits, and other scheduling 
related activities;
     Suspense and tickler files or ``to-do'' and task lists 
that serve as a reminder that an action is required on a given date or 
that a reply to action is expected, and if not received, should be 
traced on a given date.
    Destroy immediately, or when no longer needed for reference, or 
according to a predetermined time period or business rule (e.g., 
implementing the auto-delete feature of electronic mail systems).
    In a Federal Register notice appearing elsewhere in this edition, 
we invite comment on the proposed GRS 23 change.
    NARA proposes to implement this change in advance of developing the 
final revised regulatory framework that was proposed in 60 FR 12100 
(March 15, 2004). We have determined that this approach to managing 
transitory e-mail will greatly assist agencies and should not wait for 
development of the regulations implementing the revised framework.
    This proposed rule is a significant regulatory action for the 
purposes of Executive Order 12866 and has been reviewed by the Office 
of Management and Budget (OMB). As required by the Regulatory 
Flexibility Act, it is hereby certified that this proposed rule will 
not have a significant impact on a substantial number of small entities 
because this rule applies to Federal agencies. This proposed rule does 
not have any federalism implications.

List of Subjects in 36 CFR Part 1234

    Archives and records, Computer technology.

    For the reasons set forth in the preamble, NARA proposes to amend 
chapter XII of title 36 of the Code of Federal Regulations as follows:

PART 1234--ELECTRONIC RECORDS MANAGEMENT

    1. The authority citation for Part 1234 is revised to read as 
follows:

    Authority: 44 U.S.C. 2904, 3101, 3102, 3105, and 3303.

    2. Amend Sec.  1234.24 by revising paragraph (b)(2) and adding 
paragraph (b)(3) to read as follows:


Sec.  1234.24  Standards for managing electronic mail records.

* * * * *
    (b) * * *
    (2) Agencies may elect to manage electronic mail records with very 
short-term NARA-approved retention periods (transitory records covered 
by GRS 23, Item 7, or records scheduled on a

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NARA-approved agency records schedule with a very short-term retention) 
on the electronic mail system itself, without the need to copy the 
record to a paper or electronic recordkeeping system, provided that:
    (i) Users do not delete the messages before the expiration of the 
NARA-approved retention period, and
    (ii) The system's automatic deletion rules ensure preservation of 
the records until the expiration of the NARA-approved retention period.
    (3) Except for those electronic mail records within the scope of 
paragraph (b)(2) of this section,
    (i) Agencies must 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.
    (ii) If the electronic mail system is not designed to be a 
recordkeeping system, agencies must instruct staff on how to copy 
Federal records from the electronic mail system to a recordkeeping 
system.
* * * * *
    3. Amend Sec.  1234.32 by revising paragraph (d) 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).
    (1) Electronic mail records with very short-term (transitory) 
value. Agencies may use the disposition authority in General Records 
Schedule 23, Item 7 for electronic mail records that have very short-
term retention periods (e.g., 90, 120, or 180 days). (see 36 CFR 
1234.24(b)(2)).
    (2) Other records on the electronic mail system. When an agency has 
taken the necessary steps to retain the record in a scheduled 
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. If the records in the 
recordkeeping system are not scheduled, the agency must follow the 
procedures at 36 CFR part 1228.
    (3) 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 recordkeeping system 
are not scheduled, the agency must follow the procedures at 36 CFR part 
1228.

    Dated: July 29, 2004.
John W. Carlin,
Archivist of the United States.
[FR Doc. 04-24403 Filed 11-2-04; 8:45 am]
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