[Federal Register Volume 70, Number 166 (Monday, August 29, 2005)]
[Rules and Regulations]
[Pages 50980-50988]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-17097]


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NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

36 CFR Part 1228

RIN 3095-AB31


Records Center Facility Standards

AGENCY: National Archives and Records Administration (NARA).

ACTION: Final rule.

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SUMMARY: This final rule modifies NARA facility standards for records 
storage facilities that house Federal records to clarify requirements 
relating to design or certification of multiple story facilities and 
fire detection and protection systems; to revise certain requirements 
relating to fire-ratings of roofs, building columns, and fire barrier 
walls; and to clarify the application of

[[Page 50981]]

other requirements. The rule addresses records center industry concerns 
identified in the 2003 Report to Congress on Costs and Benefits of 
Federal Regulations. This rule affects commercial records storage 
facilities that store Federal records and applies to all agencies, 
including NARA, that establish and operate records centers, and to 
agencies that contract for the services of commercial records storage 
facilities.

DATES: This rule is effective September 28, 2005. The incorporation by 
reference of certain publications in this rule is approved by the 
Director of the Federal Register as of September 28, 2005.

FOR FURTHER INFORMATION CONTACT: Nancy Allard at telephone number 301-
837-1477, or fax number 301-837-0319.

SUPPLEMENTARY INFORMATION: NARA published a proposed rule on September 
7, 2004 (69 FR 54091) outlining proposed changes to our regulations 
governing facilities that store Federal records (records storage 
facilities). We received comments from eight Federal agencies, seven 
private sector records storage facilities, Professional Records and 
Information Services Management (PRISM) International (a records center 
industry association), ARMA International (a professional organization 
for persons in the field of records and information management), the 
International Code Council (an association dedicated to building 
safety), and 11 individuals. Fourteen respondents generally supported 
the proposed rule or had no comments; the remaining respondents had 
concerns with one or more of the proposed provisions. A detailed 
discussion of the substantive comments follows.
    As we discussed extensively in the 1999 rulemaking and restated in 
the 2004 proposed 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. This rulemaking 
continues to reflect that belief.

Discussion of Comments

Section 1228.224 (Incorporation by Reference)

    We received two comments on this section, which was modified in the 
proposed rule to add new standards proposed in that rulemaking. One 
individual commented that NARA should update paragraph (c) to reflect 
the latest editions of all of the National Fire Protection Association 
(NFPA) standards cited in the regulation. We did not adopt this 
comment. The International Code Council (ICC) ICC requested that NARA 
modify the proposed rule to adopt by reference the 2003 edition of six 
ICC Codes in lieu of the NFPA Fuel Code and Uniform Mechanical Code. As 
we explain elsewhere in this Supplementary Information in response to 
another ICC comment, all jurisdictions have not adopted the ICC Codes 
in lieu of other voluntary consensus standards. Moreover, the NFPA Fuel 
Code and Uniform Mechanical Code are American National Standards 
Institute (ANSI) approved standards, which reflect that ANSI principles 
of openness and due process have been followed and that a consensus of 
all interested stakeholder groups has been reached in development of 
the standards. Not all ICC Codes have that designation. Therefore, we 
have not adopted this ICC comment.

Section 1228.226 (Definitions)

    Two commenters objected to the proposed change to the definition of 
records storage area. One individual stated that our replacement of the 
term ``fire wall'' with the term ``fire barrier wall'' severely lessens 
the level of protection provided. The ICC commented that there is a 
difference in the definitions of ``firewall'' and ``fire barrier wall'' 
and that NARA should delete the definition of ``fire barrier wall.'' 
ICC further stated that the problem ICC identified would be resolved by 
the adoption of the IBC, ICC International Fire Code (IFC) and ICC 
Existing Buildings Code (IEBC) as a minimum baseline. We did not accept 
these comments. When NARA published the original 1999 final rule, we 
changed ``fire wall'' to ``fire barrier wall'' throughout the 
regulation. At that time, we inadvertently overlooked the reference to 
``fire wall'' in the definition of records storage area. This change to 
the definition brings it into conformance with the intent of the 
regulation.
    PRISM requested clarification of the definition of auxiliary space, 
which was not modified in the proposed rule. We confirm that NARA does 
not consider loading docks (including the adjacent document processing 
areas) as ``auxiliary spaces,'' and, therefore, this regulation does 
not require the construction of fire barrier walls between such areas 
and records storage areas.

Section 1228.228(a) (Roof Requirement)

    Two commenters opposed changing Sec.  1228.228(a) to allow roof 
elements to be constructed with combustible materials if installed in 
accordance with local building codes and if roof elements are protected 
by a properly installed, properly maintained automatic sprinkler 
system. One objector stated that if the sprinkler system is tied to the 
roof, the loss of the roof would render the sprinkler system useless. 
The other objector stated that the National Fire Protection Association 
(NFPA) 232 (2000 ed.), Standard for the Protection of Records, required 
a non-combustible roof because of a higher level of risk of involvement 
of the roof in fire in these types of facilities. PRISM, in supporting 
the provision stated that no basis for concluding that a wood roof has 
less structural integrity than one with steel members, noting that 
steel (a noncombustible product) would begin to fail at 1000[deg] F. 
NARA's fire tests have shown that in an uncontrolled fire the 
temperature at the roof level can quickly exceed 1000[deg] F. We also 
note that under the 1999 rule, existing facilities may already obtain a 
waiver to have wood roof construction under the conditions that the 
proposed rule would extend to all facilities.
    In this final rule, we have modified Sec.  1228.228(a) slightly. To 
improve clarity, we have separated the provisions of the paragraph into 
subparagraphs. Paragraph (a) introductory text states the basic 
requirement for use of non-combustible materials. Paragraph (a)(1) 
states the conditions under which roof elements constructed with 
combustible materials are allowed, and we have added a reference to the 
appropriate NFPA standard for sprinkler systems (NFPA 13, Installation 
of Sprinkler Systems, 2002 edition) that must be followed. Paragraph 
(a)(2) restates the steps to be taken to request a waiver for an 
existing records storage facility with combustible building elements 
other than the roof to continue to operate until October 1, 2009.

Section 1228.228(b) (Certification--Multi-Story Facilities)

    There were two comments that specifically addressed the proposed 
change to this provision. One comment

[[Page 50982]]

suggested that we define ``certify'' in the definitions (Sec.  
1228.226) and not modify the language here or in later sections. The 
other comment objected to the change, misunderstanding the change to 
mean that NARA would only be requiring the fire protection engineer and 
civil/structural engineer to state whether the facility meets the local 
building code. A third comment, from ARMA International, noted that the 
role of the professional engineer in the inspection of such facilities 
is a key to the protection of records and that relying on local 
building codes will inevitably result in great variances in the levels 
of protection the records actually receive.
    We did not make any changes to this provision. The nature of the 
activity required under this provision is the same as previously 
required `` reviews by a licensed fire protection engineer (FPE) and 
licensed civil/structural engineer that the fire resistance of 
separating floors is at least 4 hours and that there are no obvious 
structural weaknesses that would indicate a high potential for 
structural catastrophic collapse under fire conditions. Our change to 
paragraph (b) more accurately reflects our intention that the 
engineer(s) provide a professional opinion under seal. We did not 
accept the suggestion to define ``certify'' in Sec.  1228.226 because 
we believe it is better to describe the requirement accurately where it 
occurs than to define a term that is open to misinterpretation and then 
use that term in the requirements.

Section 1228.228(d) (Building Code Protection Against Natural Disaster)

    The proposed rule modified Sec.  1228.228(d), which requires 
designing the records center facility to provide protection from 
building collapse or failure of essential equipment from earthquake 
hazards, tornadoes, hurricanes and other potential natural disasters. 
The 1999 rule only cited regional building codes. At the suggestion of 
PRISM, we added local or state building codes, since these codes may 
address a specific local common natural disaster that the regional code 
does not.
    We received three comments on this provision. One Federal agency 
commented that ``* * * ordinarily, Federal agencies are exempt from 
such requirements [to meet local and state building and fire codes] 
although they usually meet or exceed such codes. It is difficult to 
prescribe rules when there are so many state and local variances and I 
recommend that the Federal exemption continue.'' We did not adopt this 
comment. Although buildings built on Federal property are exempt from 
state and local building codes, GSA's policy, as articulated in P100, 
The Facilities Standards for the Public Buildings Service, is to comply 
with state and local building codes to the maximum extent practicable. 
Moreover, the NARA standards apply to commercial facilities that 
agencies use for the storage of their records.
    The International Code Council (ICC) stated that the ICC codes have 
replaced the three regional model codes that were in existence in 1999 
when the original NARA rule was issued. ICC urged that NARA replace 
references to regional, state and local codes with reference to the ICC 
model codes. We have added a reference to the ICC model (i.e., 
national) code, but not removed the references to the other codes. 
Newly adopted building codes apply to new construction and renovation 
that take place after the new code is adopted. This regulation covers 
both existing and new facilities that are covered by a variety of 
editions of codes. Thus, it would not be appropriate to cite only the 
ICC codes.
    The third commenter, PRISM, believes that the balance struck by 
NARA will not create undue confusion, and represents a significantly 
better balance than the previous rule.

Section 1228.228(i) (Storage Shelving)

    The proposed rule added racking systems as an acceptable form of 
records storage shelving and added state and local building code 
requirements for seismic bracing. We received two comments on this 
provision. One individual requested that we modify the text to prohibit 
double or triple stacking boxes on the individual shelves. We did not 
adopt this comment. The basic requirement in the proposed revision to 
paragraph (i)(2) provides adequate protection. If a facility's practice 
is to double or triple stack boxes of records on a shelf, the shelf 
would have to be rated for 100 or 150 pounds, respectively. NARA is 
setting performance requirements, not specifying how a storage facility 
must shelve its records.
    The other commenter expressed a concern with racking systems, which 
are designed to go to heights in excess of 50 feet, and recommended the 
requirement for seismic bracing should extended to racking, if a 
facility desires to use this type of shelving. The commenter noted that 
when these large volumes of records are exposed to water, either during 
a fire or in the event of an accidental discharge of a sprinkler 
system, the weight bearing on the racking system is severe. We note 
that this requirement already existed in the proposed rule and have 
retained it in this final rule.

Section 1228.228(n)(3) (Requirement for Backup Power Source)

    We received a comment from ICC on Sec.  1228.228(n)(3), which was 
not proposed for revision. ICC stated that the provision, as currently 
wording, is not mandatory. If a backup power source is determined 
necessary, NARA should require one. We did not modify this section as 
the comment was out of scope.

Section 1228.228(n)(4) (Requirement for Positive Air Pressure)

    In the 1999 rule, Sec.  1228.228(n)(4) required that all new 
facilities must be kept under positive air pressure and loading docks 
must have an air supply and exhaust system that is separate from the 
remainder of the facility. The proposed rule would limit this provision 
to new facilities that store permanent Federal records. (It is not 
practicable to impose this retroactively on existing facilities.) We 
received two comments opposing the proposed change and one comment 
supporting the change. One non-Federal records manager and one Federal 
agency opposed this provision, noting that long-term temporary records 
would be adversely affected. The records manager proposed that it be 
required for facilities storing 20-year records. PRISM supported the 
change, stating that literature shows that other factors, such as the 
acid in the paper and exposure to UV light prior to being placed in 
storage, are the principal causes of records degradation.
    This final rule retains the proposed rule language limiting the 
provision to new facilities that store permanent records. While there 
may be a potential for degradation of records from exposure to exhaust 
fumes (the reason for positive air pressure), such exposure is not 
constant. Paper-based records are further protected from direct 
exposure by their enclosure in folders within closed boxes.

Section 1228.230(a) (Certification--Fire Detection and Protection 
Systems)

    We received one comment from an individual objecting to the change 
in this paragraph. The commenter stated that it is imperative that the 
design and protection provided be reviewed and certified by a 
professional whose primary duties are related to the adequate 
protection of a facility from the hazards of a fire. Having the 
individual who designed and/or

[[Page 50983]]

installed the system stating it is adequate is akin to ``having the fox 
guarding the henhouse.''
    As we explained in the preamble to the proposed rule, the change 
made in this provision was to substitute for the word ``certify'' 
specific information that the licensed FPE must provide in the report 
furnished under seal. That information will be sufficient for NARA to 
evaluate whether the facility complies with the requirements in Sec.  
1228.230.

Section 1228.230(b) (Interior Walls)

    We received three comments from individuals opposing the proposed 
change to Sec.  1228.230(b) to require that interior walls separating 
records storage areas from each other and from other storage areas in 
the building be at least 3-hour fire resistant, instead of requiring 4-
hour fire barrier walls. We agree that there is a substantial 
difference in level of protection from fire between a 3-hour and 4-hour 
fire barrier wall; however, there is also a substantial difference in 
cost for records center owners. The data provided by PRISM stated that 
the cost of a 3-hour wall at 40 feet (the height of the typical 
commercial records center) is about $560 per linear foot; a 4-hour wall 
at 40 feet is $865 per linear foot. We have adopted the proposed rule 
wording in this final rule because we believe that the significant 
difference in the cost of a 4-hour wall does not justify the enhanced 
records protection.
    Additionally, the ICC commented that because ICC codes define, 
refer to and contain provisions for fire walls and fire barriers, a 
reference to the ICC codes would address the safety issue for NARA and 
the cost issue for the storage industry while maintaining consistency 
with state and local codes. We respectfully disagree with this comment. 
ICC did not identify a specific ICC code that addresses records 
centers. In general, the 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. NFPA 232 and 
NARA's regulation supplement the building codes to provide a safety 
level for the items stored.

Section 1228.230(b) (Compartment Size)

    In the preamble to the proposed rule, NARA noted that we did not 
modify the requirement that no more than 250,000 cubic feet of Federal 
records be stored in a single records storage area. ARMA commented 
that:

    ``Although the proposed rule maintains the maximum volume of 
250,000 cu. ft. of Federal records in a single compartment, it says 
nothing about the total capacity of the compartment. This has the 
impact of allowing virtually unlimited volumes of records to be 
stored in a single compartment, as long as no more than 250,000 cu. 
ft. of Federal records are stored there. While this limits the 
exposure of the Federal records, it could easily put other consumers 
at considerably more potential exposure * * *
    ``Before the rule is finalized, consideration should be given to 
using NFPA 13 Installation of Sprinkler Systems as a basis for 
calculating the storage capacity of a facility. NFPA 13 indicates 
that 40,000 sq. ft. is the maximum area covered by one sprinkler 
system. If one takes this as the maximum size of a compartment and 
uses the commercial industry standard of storage capacity within 
square footage, the result is approximately 1 million cubic feet of 
storage under control of one sprinkler system. This could be 
considered as the basis for providing some limitation on the loss of 
records. Such a limitation provides a secondary line of defense if a 
sprinkler system fails or is compromised.''

    NARA appreciates ARMA's concern for the holdings of other 
organizations, but our authority is limited to Federal records.

Section 1228.230(e) (Fire Resistive Rating of Roof)

    We received one comment supporting and three comments opposing the 
proposed change to paragraph (e). This change deletes the requirement 
that new facilities must have a roof with a maximum fire-resistive 
rating of one hour and to allow protection of the roof by an automatic 
sprinkler system designed, installed, and maintained in accordance with 
NFPA 13, Standard for the Installation of Sprinkler Systems, as an 
alternative to the requirement for a minimum fire resistive rating of 
\1/2\ hour.
    PRISM noted that the change brings the provision in line with the 
modern building codes. One commenter raised a general objection that 
``it would be a risk to both our intellectual heritage and to those who 
live near records centers to weaken the standards for fire-
retardance.'' Another individual asked whether NARA researched NFPA 13 
to make certain that by allowing roofs with lower fire-resistive 
ratings, NFPA 13 was not itself rendered non-viable, as it may well 
have depended on a certain level of fire resistance for the roof. A 
third individual stated that there is little if any logic behind 
lowering the fire-resistive rating of the roof from 1 hour to \1/2\ 
hour.
    This final rule retains the proposed rule language. Both the 1999 
rule and this revision require a minimum fire-resistive rating of \1/2\ 
hour for roofs for existing and new facilities. The revision removes a 
requirement for a maximum fire resistive rating of 1 hour for new 
facilities. We note that NFPA 13, Installation of Sprinkler Systems, 
2002 edition, provides for sprinkler systems to protect wood roofs.

Section 1228.230(i) (Building Columns)

    We received three comments opposing, for a variety of reasons, the 
proposed change in the fire resistance requirement for building columns 
in records storage areas from 2 hours for existing facilities and 4 
hours for new facilities to 1 hour or protected in accordance with NFPA 
13 for all facilities. One comment noted that the NARA proposal was 
less stringent than NFPA 232-2000; another asked about the value of the 
columns having an even lower fire-resistance rating than the walls; and 
the third suggested that the change would result in a significant 
lessening of the protection measures for storage of records with no 
additional benefit.
    This final rule retains the proposed rule language. We considered 
both the commenters' concerns and industry issues with impact of the 
provision on the records center industry, most of which are small 
businesses. As we noted in the preamble to the proposed rule, PRISM 
claimed that the 1999 rule imposes insurmountable costs on most 
commercial storage facilities, which, in general, use columns 
(including exposed steel) that are not fire rated. We have concluded, 
for the reasons stated in the proposed rule at 69 FR 54093, that it is 
appropriate to proceed with the change.

Section 1228.230(l) (Use of Open Flame Equipment)

    We received four comments opposing the proposal to allow open flame 
oil and gas unit heaters or equipment in storage areas if they are 
installed and used in accordance with NFPA 54, National Fuel Gas Code 
and the International Association of Plumbing and Mechanical Officials 
(IAPMO) Uniform Mechanical Code. Three of the comments expressed fire-
safety concerns; one of these comments noted a higher risk to the 
records in high seismic risk zones where a fuel line might rupture. 
Installation in accordance with the applicable code will ensure a safe 
installation. Seismic safety requirements are met by designing the 
equipment and installation in accordance with the appropriate seismic 
zones as called for in local building codes, which dictate

[[Page 50984]]

design requirements for attachment and bracing of piping.
    ICC commented that the National Fuel Gas Code and the Uniform 
Mechanical Code both cover gas-heating equipment and may not have the 
same requirements. To require compliance with both documents could 
create a conflict for the designer, contractor and building owner. In 
addition, state and local codes would also address such equipment; as 
do two ICC codes. ICC also suggested that the requirements for positive 
air pressure and environmental controls conflict with this provision, 
rendering it moot. ICC believes that reliance on the ICC codes would 
eliminate such conflicts and provide a baseline upon which NARA could 
address any unique issues associated with the control of the 
environment in which Federal records are stored. We did not accept 
these comments. Both the National Fuel Gas Code and the Uniform 
Mechanical Code are approved American National Standards (ANSI 
standards), while the two ICC codes proposed as alternatives are not.

Section 1228.232 (Environmental Controls)

    The proposed rule modified paragraphs (b) on non-textual temporary 
records and (c) on permanent and certain other paper-based records to 
revise the effective date for new records centers to be the effective 
date of this final rule instead of January 3, 2000, the effective date 
set by the 1999 rule. We did not propose to change the substance of the 
requirements themselves.
    We received one comment from an agency on paragraph (b) and a 
comment from the ICC on paragraph (c). The agency representative stated 
that the best environment for long term storage of paper records is not 
the same as the comfort requirements for office space, and recommended 
revising the wording `` * * * equivalent to that required for office 
space'' to read `` * * * that will meet the long-term preservation 
requirements of paper-based permanent records.'' We did not accept this 
comment. We decided as part of the 1999 rulemaking that it is not 
reasonable to require more stringent environmental conditions for paper 
records stored off-site than what they would have in office space.
    The ICC commented that the American Society of Heating, 
Refrigerating and Air Conditioning Engineers (ASHRE) standards 
referenced in paragraph (c) had been replaced by more recent editions, 
and suggested that NARA either reference the newer editions or 
reference comparable ICC codes. We declined to act on this comment at 
this final rule stage. Except for extreme circumstances, new versions 
are not retroactive to existing buildings (until they are substantially 
modified). Based on the PRISM and small business records center 
operators' comments, most commercial records centers are existing 
buildings.

Section 1228.236 (Waivers)

    The proposed rule set forth text to amend paragraph (a)(2) to 
update the effective date of new standards that previously compliant 
agency records centers must meet. That effective date is the effective 
date of this final rule. One commenter suggested that this action was 
creating an unintended loophole for commercial records centers that 
fell out of compliance with the NARA standards after January 2, 2000. 
The commenter misinterpreted the paragraph, which applies only to 
records centers owned or operated by Federal agencies. We have retained 
this change in the final rule.
    This same commenter suggested that NARA should retain the 1999 
language ``NARA may grant * * *'' rather than automatically grant 
waivers. While NARA intends to grant waivers to specific requirements 
in the NARA regulation in all cases where our review of the waiver 
request (see Sec.  1228.238) determines that the supporting 
documentation confirms that the condition(s) for the waiver have been 
met, the existing Sec. Sec.  1228.238(a)(2) and (b)(2) clearly show 
that NARA may deny the waiver request if the conditions are not met to 
NARA's satisfaction. We have withdrawn the proposed change to the 
introductory text of Sec.  1228.236(a). It will continue to read: ``(a) 
Types of waivers that may be approved. NARA may approve exceptions to 
one or more of the standards in this subpart for:''

Section 1228.242(a) (Certifying Fire Safety Detection and Suppression 
Systems)

    The proposed rule modified Sec.  1228.242(a) by adding Southwest 
Research Institute as a provider of independent live fire testing; 
removing a requirement for computer modeling as part of the report 
furnished by a licensed FPE in lieu of live fire testing or use of a 
NARA-certified system; and providing the specific details required in 
such a report. We received two comments on this section.
    One comment from an individual objected to removing the requirement 
for computer modeling. The commenter stated ``* * * there is no data 
that supports the removal of the use of computer modeling as an 
accurate method of determining the potential loss in the event of a 
fire. In the absence of the possibility of live testing, computer 
modeling has proven to be a qualified method for ensuring the adequate 
protection of a facility.'' We did not accept this comment. As stated 
in the preamble to the proposed rule: ``While we continue to see the 
value of computer modeling as a supplement to live fire testing, we 
acknowledge that the costs of such modeling may not always be justified 
in the records center environment.'' The new language in revised Sec.  
1228.242(a)(3) on the detailed information to be provided by the FPE 
will allow NARA to evaluate the adequacy of the fire protection.
    ICC pointed out that retaining ``or equivalent'' in the listing of 
organizations that perform independent fire testing raised questions 
about NARA's basis for determining equivalency and felt that the basis 
should be part of the rules so that other third parties can understand 
the criteria under which they will be evaluated. Alternatively, ICC 
recommended that the text in paragraph (a)(2) be modified to read ``a 
report of the results of independent fire testing conducted by a 
testing laboratory deemed as meeting the criteria of International 
Organization for Standardization (ISO) Standard 17025 by an agency 
accredited as meeting ISO Guide 65.'' To meet ICC's concerns, we have 
removed the words ``or equivalent'' from Sec.  1228.242(a)(2). We 
considered ICC's alternative language, but believe that listing the 
specific organizations will better serve small businesses who wish to 
take advantage of this alternative.

Other Provisions of the Proposed Rule

    No comments were received on the other proposed rule provisions and 
they have been adopted without change in this final rule.

Impact on NFPA 232

    Three individuals raised concerns with the impact of NARA's 
regulatory changes on NFPA 232, Standard for the Protection of Records. 
That standard is independently undergoing review within the NFPA. The 
individuals expressed concern that the ``weakening'' of the NARA 
regulation would have a ripple effect on NFPA 232. ARMA noted that the 
proposed rule is not in compliance with NFPA 232 and is likely to 
increase the vulnerability of public and private records stored in off-
site facilities. ARMA urged NARA to survey other international 
standards, such as the National Archives of Australia and the British 
Standards Institute standards, as a point of comparison. We appreciate 
the comments and concerns

[[Page 50985]]

but, as a Federal agency, we must consider the impact of our 
regulations on the regulated industry as well as the Federal user.

Impact on Small Business

    In our initial regulatory flexibility analysis (IRFA) that was 
published with the proposed rule, we invited comments on the impact on 
small businesses. We asked small businesses to comment on other 
alternatives, if any, NARA should consider, as well as the costs and 
benefits of those alternatives to small business. We received comments 
from seven companies and from PRISM International supporting the 
regulation. There comments are discussed in greater depth in the 
following final regulatory flexibility analysis (FRFA) statement.

Final Regulatory Flexibility Analysis

    As required by the 5 U.S.C. 604, NARA has prepared this final 
regulatory flexibility analysis.

Background

    In the proposed rule published on September 7, 2004 (69 FR 54091), 
NARA stated its belief that the rule will affect small businesses that 
are records storage providers and provided an initial regulatory 
flexibility analysis (IRFA) in accordance with the Regulatory 
Flexibility Act and Executive Order 13272. We specifically invited 
comments on the IRFA in addition to comments on the proposed rule.
1. Succinct Statement of the Need for and Objectives of the Rule
    NARA's records center regulations specify the minimum structural, 
environmental, property, security, and fire safety standards that a 
records storage facility must meet when the facility is used for the 
storage of Federal records. Because Federal records provide essential 
documentation of the Federal Government's policies and transactions and 
protect rights of individuals, they must be stored in appropriate space 
to ensure that they remain available for their scheduled life. The 2003 
Report to Congress on Costs and Benefits of Federal Regulations 
identified the NARA regulations as a candidate for reform because of an 
identified adverse impact on small businesses.
    The objective of this regulation is to clarify the records center 
facility standards and modify them, where appropriate, to better enable 
records centers, particularly those that are small businesses, to be 
able to offer their services to Federal agencies while ensuring the 
continued appropriate protection of Federal records stored in off-site 
facilities.
2a. Summary of the Significant Issues Raised by the Public Comments in 
Response to the Initial Regulatory Flexibility Analysis
    We received 8 comments specifically noting the impact of the 
proposed rule on small businesses. Seven comments were from records 
center providers, 5 of which specifically identified themselves as 
small businesses. The eighth comment was from PRISM International, 
which identified itself as the not-for-profit trade association 
representing the records and information management services (RIMS) 
industry, representing 590 RIMS businesses in the United States, 99 
percent of which are small businesses.
    All eight comments supported the proposed rule, noting that it 
would improve their ability to compete equitably for Federal contracts 
for records storage services. Only one comment specifically commented 
on the issues raised in the initial regulatory flexibility analysis. 
That small business strongly favored a relaxed waiver process outlined 
as alternative 2, noting that it believes the benefits to small 
businesses of such a process vastly outweigh the minor disadvantage of 
increased complexity of the Records Center Facility Standards. 
Alternative 2 was to allow records centers that qualify as small 
businesses to apply for a waiver from Sec.  1228.228(a)'s requirement 
for noncombustible roofs, and to have two tiers of requirements in 
Sec.  1228.230 relating to the fire-resistive rating of building 
elements. The existing (January 2000) requirements would be retained 
for NARA records centers, agency records centers, and commercial 
records centers that are other than small businesses.
    No comments provided detailed information on the costs and benefits 
of the regulation.
2b. Summary of NARA's Assessment of the Issues Raised
    The initial regulatory flexibility analysis noted that we rejected 
alternative 2 because we felt that this approach would merely add an 
additional step and paperwork for small businesses, and the two-tier 
approach may be confusing to them. The proposed rule and this final 
rule allow small businesses to meet the roof requirement without 
submitting a waiver request. The commenter did not provide any details 
on the benefits from alternative 2 that would be derived by small 
businesses.
2c. Statement of Any Changes Made in the Proposed Rule as a Result of 
Such Comments
    As noted in the earlier discussion of the comments received on the 
proposed rule, NARA clarified some provisions but did not accept 
comments that would have restored the burdensome provisions in the 1999 
regulation.
3. Description of the Number of Small Entities to Which the Rule Will 
Apply and Explanation of Why No Estimate Is Available
    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.
    We explained in the initial regulatory flexibility analysis at 69 
FR 54096 why we were not able to provide an estimate of the number of 
small entities to which the rule will apply. We did not obtain any more 
precise data during the rulemaking that would enable us to develop such 
an estimate.
4. Description of the Projected Reporting, Record Keeping and Other 
Compliance Requirements for Small Entities
    All reporting requirements are placed on Federal agencies, which 
must secure NARA approval before moving Federal records to a commercial 
records center. However, we expect that a substantial portion of the 
reporting requirements would ``flow down'' to commercial records center 
operators. To demonstrate compliance with requirements in Sec. Sec.  
1228.228(b) and 1228.230(a) relating to design of facilities with two 
or more stories and the fire detection and protection system, 
respectively, the rule offers the records centers an option of 
obtaining a report under professional seal by a licensed fire 
protection engineer (both sections) and a licensed civil/structural 
engineer (Sec.  1228.228(b)). We received no comment refuting our 
assumption that documentation requirements relating to multi-story 
facilities would apply to a relatively small percentage of small 
business records centers.
    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

[[Page 50986]]

the inspection and preparation of a report would take no more than 16 
hours total.
    All records centers that store Federal records, including 
commercial records centers operated by small businesses, must comply 
with the facility requirements in the rule. Certain specific 
requirements differ for newly constructed facilities and existing 
facilities. Also, existing facilities have until October 1, 2009, to 
become compliant with some of these requirements. The facility 
compliance requirements are found in Sec. Sec.  1228.228, 1228.230, and 
1228.236.
5. Steps Taken To Minimize Significant Economic Impact on Small 
Entities
    NARA's records center regulations specify the minimum structural, 
environmental, property, security, and fire safety standards that a 
records storage facility must meet when the facility is used for the 
storage of Federal records. The objective of this regulation is to 
clarify the records center facility standards and modify them, where 
appropriate, to better enable records centers, particularly those that 
are small businesses, to be able to offer their services to Federal 
agencies while ensuring the continued appropriate protection of Federal 
records stored in off-site facilities. As discussed in the preamble to 
the proposed rule, NARA worked with PRISM International to develop the 
revised rule. In evaluating the comments received on the proposed rule, 
NARA carefully considered the impact of those comments on the ability 
of small business records centers to comply with the regulation.
    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.
    NARA considered, but did not adopt the following alternatives to 
this rule:
    1. No regulation. One alternative would be to replace the existing 
regulation with a single requirement that agencies must use a records 
center that complies with NFPA/ANSI 232-2000, Standard for the 
Protection of Records. This is the voluntary consensus standard that 
applies to records storage facilities (we note that other NFPA 
standards apply to other types of warehousing). Office of Management 
and Budget (OMB) Circular A-119 Circular directs agencies to use 
voluntary consensus standards in lieu of government-unique standards 
except where inconsistent with law or otherwise impractical. We 
rejected this alternative as it would be more stringent with regard to 
fire protection issues than the existing NARA records center facility 
standards (which incorporate most but not all of the NFPA 232 
provisions), while not including the environmental and pest control 
portions of our existing regulation. Based on the industry comments 
made on the draft 2003 Report to Congress on Costs and Benefits of 
Federal Regulations and subsequent dialog with PRISM International, we 
believe that this alternative would not minimize the economic impact on 
small business records centers that want to provide records storage 
services for Federal agencies. We are unable to quantify the economic 
impact of this alternative on small business.
    2. Relax the waiver process for small businesses. This alternative 
would (A) allow records centers that qualify as small businesses to 
apply for a waiver from Sec.  1228.228(a)'s requirement for 
noncombustible roofs but retain the requirement for records centers 
that are not small businesses, and (B) reduce the requirements in Sec.  
1228.230 relating to the fire-resistive rating of building elements for 
small businesses only. The existing (January 2000) requirements would 
be retained for NARA records centers, agency records centers, and 
commercial records centers that are other than small businesses. We 
rejected this alternative because it would not provide a distinct 
advantage to small businesses, given our research that the majority of 
records centers would qualify as small businesses (see 69 FR 54096).

Other Information Pertaining to This Rule

    This final rule is a significant regulatory action for the purposes 
of Executive Order 12866 and has been reviewed by the Office of 
Management and Budget. This regulation does not have any federalism 
implications. This rule is not a major rule as defined in 5 U.S.C. 
Chapter 8, Congressional Review of Agency Rulemaking.

List of Subjects in 36 CFR Part 1228

    Archives and records, Incorporation by reference.


0
For the reasons set forth in the preamble, NARA amends Part 1228 of 
Title 36 of the CFR as follows:

PART 1228--DISPOSITION OF FEDERAL RECORDS

0
1. The authority citation for part 1228 continues to read as follows:

    Authority: 44 U.S.C. chs. 21, 29, and 33.


0
1. Revise paragraph (b) of Sec.  1228.222 to read:


Sec.  1228.222  What does this subpart cover?

* * * * *
    (b) Except where specifically noted, this subpart applies to all 
records storage facilities. Certain noted provisions apply only to new 
records storage facilities established or placed in service on or after 
September 28, 2005.

0
3. Amend Sec.  1228.224 by revising the entry for ``NFPA 13'' and 
adding a new entry for ``NFPA 54'' in numerical order in paragraph (c) 
and adding paragraph (g) to read as follows:


Sec.  1228.224  Publications incorporated by reference.

* * * * *
    (c) * * *
    NFPA 13, Standard for Installation of Sprinkler Systems (2002 
Edition), IBR approved for Sec. Sec.  1228.228(a)(1), 1228.230(e), and 
1228.230(i)
* * * * *
    NFPA 54, National Fuel Gas Code (2002 Edition), IBR approved for 
Sec.  1228.230
* * * * *
    (g) International Association of Plumbing and Mechanical Officials 
(IAPMO) standards. The following IAPMO standard is available from the 
International Association of Plumbing and Mechanical Officials, 5001 E. 
Philadelphia Street, Ontario, CA 91761: IAPMO, Uniform Mechanical Code 
(2003 Edition), IBR approved for Sec.  1228.230.

0
4. Amend Sec.  1228.226 by revising the definitions of ``Existing 
records storage facility'', ``New records storage facility'', and 
``Records storage area'' to read:


Sec.  1228.226  Definitions.

* * * * *
    Existing records storage facility means any records center or 
commercial records storage facility used to store records on September 
27, 2005, and that has stored records continuously since that date.
* * * * *
    New records storage facility means any records center or commercial 
records storage facility established or converted for use as a records 
center or commercial records storage facility on or after September 28, 
2005.
* * * * *

[[Page 50987]]

    Records storage area means the area intended for long-term storage 
of records that is enclosed by four fire barrier walls, the floor, and 
the ceiling.
* * * * *

0
5. Amend Sec.  1228.228 by revising paragraphs (a), (b), (d), (g)(1), 
(h)(1), (i) introductory text, (i)(1), (i)(2), (n)(1), and (n)(4) to 
read:


Sec.  1228.228  What are the facility requirements for all records 
storage facilities?

    (a) The facility must be constructed with non-combustible materials 
and building elements, including walls, columns and floors. There are 
two exceptions to this requirement:
    (1) Roof elements may be constructed with combustible materials if 
installed in accordance with local building codes and if roof elements 
are protected by a properly installed, properly maintained wet-pipe 
automatic sprinkler system, as specified in NFPA 13, Installation of 
Sprinkler Systems (incorporated by reference, see Sec.  1228.224).
    (2) An agency may request a waiver of the requirement specified in 
paragraph (a) from NARA for an existing records storage facility with 
combustible building elements to continue to operate until October 1, 
2009. In its request for a waiver, the agency must provide 
documentation that the facility has a fire suppression system 
specifically designed to mitigate this hazard and that the system meets 
the requirements of Sec.  1228.230(s). Requests must be submitted to 
the Director, Space and Security Management Division (NAS), National 
Archives and Records Administration, 8601 Adelphi Road, College Park, 
MD 20740-6001.
    (b) A facility with two or more stories must be designed or 
reviewed by a licensed fire protection engineer and civil/structural 
engineer to avoid catastrophic failure of the structure due to an 
uncontrolled fire on one of the intermediate floor levels. For new 
buildings the seals on the construction drawings serve as proof of this 
review. For existing buildings, this requirement may be demonstrated by 
a professional letter of opinion under seal by a licensed fire 
protection engineer that the fire resistance of the separating floor(s) 
is/(are) at least four hours, and a professional letter of opinion 
under seal by a licensed civil/structural engineer that there are no 
obvious structural weaknesses that would indicate a high potential for 
structural catastrophic collapse under fire conditions.
* * * * *
    (d) The facility must be designed in accordance with the applicable 
national, regional, state, or local building codes (whichever is most 
stringent) to provide protection from building collapse or failure of 
essential equipment from earthquake hazards, tornadoes, hurricanes and 
other potential natural disasters.
* * * * *
    (g) * * *
    (1) New records storage facilities must meet the requirements in 
this paragraph (g) beginning on September 28, 2005.
* * * * *
    (h) * * *
    (1) New records storage facilities must meet the requirements in 
this paragraph (h) beginning on September 28, 2005.
* * * * *
    (i) The following standards apply to records storage shelving and 
racking systems:
    (1) All storage shelving and racking systems must be designed and 
installed to provide seismic bracing that meets the requirements of the 
applicable state, regional, and local building code (whichever is most 
stringent);
    (2) Racking systems, steel shelving, or other open-shelf records 
storage equipment must be braced to prevent collapse under full load. 
Each racking system or shelving unit must be industrial style shelving 
rated at least 50 pounds per cubic foot supported by the shelf;
* * * * *
    (n) * * *
    (1) Do not install mechanical equipment, excluding material 
handling and conveyance equipment that have operating thermal breakers 
on the motor, containing motors rated in excess of 1 HP within records 
storage areas (either floor mounted or suspended from roof support 
structures).
* * * * *
    (4) A facility storing permanent records must be kept under 
positive air pressure, especially in the area of the loading dock. In 
addition, to prevent fumes from vehicle exhausts from entering the 
facility, air intake louvers must not be located in the area of the 
loading dock, adjacent to parking areas, or in any location where a 
vehicle engine may be running for any period of time. Loading docks 
must have an air supply and exhaust system that is separate from the 
remainder of the facility.

0
6. Amend Sec.  1228.230 by revising paragraphs (a), (b), (e), (i), (l), 
and (s) to read:


Sec.  1228.230  What are the fire safety requirements that apply to 
records storage facilities?

    (a) The fire detection and protection systems must be designed or 
reviewed by a licensed fire protection engineer. If the system was not 
designed by a licensed fire protection engineer, the review requirement 
is met by furnishing a report under the seal of a licensed fire 
protection engineer that describes the design intent of the fire 
detection and suppression system, detailing the characteristics of the 
system, and describing the specific measures beyond the minimum 
features required by code that have been incorporated to minimize loss. 
The report should make specific reference to appropriate industry 
standards used in the design, such as those issued by the National Fire 
Protection Association, and any testing or modeling or other sources 
used in the design.
    (b) All interior walls separating records storage areas from each 
other and from other storage areas in the building must be at least 
three-hour fire barrier walls. A records storage facility may not store 
more than 250,000 cubic feet total of Federal records in a single 
records storage area. When Federal records are combined with other 
records in a single records storage area, only the Federal records will 
apply toward this limitation.
* * * * *
    (e) The fire resistive rating of the roof must be a minimum of \1/
2\ hour for all records storage facilities, or must be protected by an 
automatic sprinkler system designed, installed, and maintained in 
accordance with NFPA 13 (incorporated by reference, see Sec.  
1228.224).
* * * * *
    (i) Building columns in the records storage areas must be at least 
1-hour fire resistant or protected in accordance with NFPA 13 
(incorporated by reference, see Sec.  1228.224).
* * * * *
    (l) Open flame (oil or gas) unit heaters or equipment, if used in 
records storage areas, must be installed or used in the records storage 
area in accordance with NFPA 54 (incorporated by reference, see Sec.  
1228.224), and the IAPMO/ANSI UMC 1-2003, Uniform Mechanical Code 
(incorporated by reference, see Sec.  1228.224).
* * * * *
    (s) All record storage and adjoining areas must be protected by a 
professionally-designed fire-safety detection and suppression system 
that is designed to limit the maximum anticipated loss in any single 
fire event

[[Page 50988]]

involving a single ignition and no more than 8 ounces of accelerant to 
a maximum of 300 cubic feet of records destroyed by fire. Section 
1228.242 specifies how to document compliance with this requirement.

0
7. Amend Sec.  1228.232 by revising the introductory text of paragraph 
(b) and paragraph (c) to read:


Sec.  1228.232  What are the requirements for environmental controls 
for records storage facilities?

* * * * *
    (b) Nontextual temporary records. Nontextual temporary records, 
including microforms and audiovisual and electronic records, must be 
stored in records storage space that is designed to preserve them for 
their full retention period. New records storage facilities that store 
nontextual temporary records must meet the requirements in this 
paragraph (b) beginning on September 28, 2005. Existing records storage 
facilities that store nontextual temporary records must meet the 
requirements in this paragraph (b) no later than October 1, 2009. At a 
minimum, nontextual temporary records must be stored in records storage 
space that meets the requirements for medium term storage set by the 
appropriate standard in this paragraph (b). In general, medium term 
conditions as defined by these standards are those that will ensure the 
preservation of the materials for at least 10 years with little 
information degradation or loss. Records may continue to be usable for 
longer than 10 years when stored under these conditions, but with an 
increasing risk of information loss or degradation with longer times. 
If temporary records require retention longer than 10 years, better 
storage conditions (cooler and drier) than those specified for medium 
term storage will be needed to maintain the usability of these records. 
The applicable standards are:
* * * * *
    (c) Paper-based permanent, unscheduled and sample/select records. 
Paper-based permanent, unscheduled, and sample/select records must be 
stored in records storage space that provides 24 hour/365 days per year 
air conditioning (temperature, humidity, and air exchange) equivalent 
to that required for office space. See ASHRAE Standard 55-1992, Thermal 
Environmental Conditions for Human Occupancy, and ASHRAE Standard 62-
1989, Ventilation for Acceptable Indoor Air Quality, for specific 
requirements. New records storage facilities that store paper-based 
permanent, unscheduled, and/or sample/select records must meet the 
requirement in this paragraph (c) beginning on September 28, 2005. 
Existing storage facilities that store paper-based permanent, 
unscheduled, and/or sample/select records must meet the requirement in 
this paragraph (c) no later than October 1, 2009.
* * * * *

0
8. Amend Sec.  1228.236 by revising paragraph (a)(2) to read:


Sec.  1228.236  How does an agency request a waiver from a requirement 
in this subpart?

    (a) * * *
    (2) Existing agency records centers that met the NARA standards in 
effect prior to January 3, 2000, but do not meet a new standard 
required to be in place on September 28, 2005; and
* * * * *

0
9. Amend Sec.  1228.240 by revising paragraph (c) to read as follows:


Sec.  1228.240  How does an agency request authority to establish or 
relocate records storage facilities?

* * * * *
    (c) Contents of requests for agency records centers. Requests for 
authority to establish or relocate an agency records center, or to use 
an agency records center operated by another agency, must be submitted 
in writing to the Director, Space and Security Management Division 
(NAS), National Archives and Records Administration, 8601 Adelphi Road, 
College Park, MD 20740-6001. The request must identify the specific 
facility and, for requests to establish or relocate the agency's own 
records center, document compliance with the standards in this subpart. 
Documentation requirements for Sec.  1228.230(s) are specified in Sec.  
1228.242.
* * * * *

0
10. Amend Sec.  1228.242 by revising paragraphs (a)(2) and (a)(3) to 
read:


Sec.  1228.242  What does an agency have to do to certify a fire-safety 
detection and suppression system?

    (a) * * *
    (2) A report of the results of independent live fire testing 
(Factory Mutual, Underwriters Laboratories or Southwest Research 
Institute); or
    (3) A report under seal of a licensed fire protection engineer 
that:
    (i) Describes the design intent of the fire suppression system to 
limit the maximum anticipated loss in any single fire event involving a 
single ignition and no more than 8 fluid ounces of petroleum-type 
hydrocarbon accelerant (such as, for example, heptanes or gasoline) to 
a maximum of 300 cubic feet of Federal records destroyed by fire. The 
report need not predict a maximum single event loss at any specific 
number, but rather should describe the design intent of the fire 
suppression system. The report may make reasonable engineering and 
other assumptions such as that the fire department responds within XX 
minutes (the local fire department's average response time) and 
promptly commences suppression actions. In addition, any report 
prepared under this paragraph should assume that the accelerant is 
saturated in a cotton wick that is 3 inches in diameter and 6 inches 
long and sealed in a plastic bag and that the fire is started in an 
aisle at the face of a carton at floor level. Assumptions must be noted 
in the report;
    (ii) Details the characteristics of the system; and
    (iii) Describes the specific measures beyond the minimum features 
required by the applicable building code that have been incorporated to 
limit destruction of records. The report should make specific 
references to industry standards used in the design, such as those 
issued by the National Fire Protection Association, and any testing or 
modeling or other sources used in the design.
* * * * *

    Dated: June 29, 2005.
Allen Weinstein,
Archivist of the United States.
[FR Doc. 05-17097 Filed 8-26-05; 8:45 am]
BILLING CODE 7515-01-P