[Federal Register Volume 71, Number 34 (Tuesday, February 21, 2006)]
[Rules and Regulations]
[Pages 8806-8808]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-1545]


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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: Final rule.

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SUMMARY: NARA is revising 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: This rule is effective March 23, 2006.

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

SUPPLEMENTARY INFORMATION:

Background

    On November 3, 2004, at 69 FR 63980, NARA published a proposed rule 
pertaining to the disposition of electronic mail records with short 
retention periods. In response, we received comments from nine Federal 
agencies and two public interest groups.

Discussion of Comments Received

    Five of the Federal agencies concurred without further comment.
    One Federal agency concurred and requested that we not limit the 
definition of short-term to 180 days or less, but extend it to up to 3 
years. As this rule is meant to apply only to records of fleeting 
value, we will not amend the definition to include records retained 
beyond 180 days.
    Another Federal agency concurred and asked that we provide a 
definitive cut-off for short-term. We accepted this recommendation and 
have set the cut-off at 180 days.
    Two Federal agencies and both public interest groups disagreed with 
our proposed rule.
    One Federal agency and one public interest group raised the concern 
that this regulatory change could unintentionally result in the 
destruction of important e-mail records with long-term or permanent 
value. The commenters did not dispute that, in a perfect world, this 
rule is both legally permissible and potentially harmless. Their 
concern was that, in the words of one commenter, this new rule will 
``help foster the attitude that e-mail generally is a disposable, `off-
the-record' category of communication whose loss or destruction is of 
little concern to NARA or to the public.'' They pointed out, and NARA 
recognizes, that many agencies and their employees do not properly 
maintain all e-mail records for their prescribed retention period, such 
that valuable records are being lost prematurely. The solution, they 
believe, is that all Federal employees must be required to print and 
file or copy to an electronic recordkeeping system every e-mail record, 
to diminish the possibility that long-term records will be 
automatically deleted as transitory.
    NARA fully agrees with these commenters' objective of wanting to 
improve the Government's retention of e-mail records for their full 
duration. However, based on long consideration and experience, NARA 
does not believe that the commenters' recommended solution will have 
that result. To require the creation of a record copy of all of these 
e-mail messages is not only extremely costly and burdensome, but may 
also be partly responsible for any current non-compliance with existing 
e-mail retention requirements: i.e., the largely pointless exercise of 
expending significant time and effort to print and file hundreds of 
transitory e-mail messages every week may be a contributing factor to 
what leads many Government employees to forego printing any of their e-
mail messages.
    NARA has concluded that Government employees are more likely to 
take seriously their responsibility of retaining e-mail records of 
long-term or permanent value, either by printing and filing or by 
investing in electronic recordkeeping systems to retain a smaller 
percentage of e-mail records, if they do not have to spend time on the 
very high volume of transitory and very short-term e-mail records that 
cross their desktops every day. Accordingly, NARA believes that this 
regulation, as further modified, will serve to improve the Government's 
retention and preservation of important e-mail records.
    NARA wishes to emphasize, however, that this regulatory change is 
intended to be narrowly construed, i.e., the waiver of the requirement 
to print out or otherwise electronically save very short term e-mail 
records (with dispositions of 180 days or less) is to be limited to 
records covered under the categories listed in General Record Schedule 
(GRS) 23, Item 7, or in file series in agency schedules with similarly 
short term disposition periods. In other words, longer term temporary 
or permanent e-mail records on agency e-mail systems must still be 
printed out or saved electronically in accordance with current 
regulations. For the convenience of readers, the text of GRS 23, Item 
7, is reproduced at the end of this Supplementary Information.
    One Federal agency expressed concern that the proposed rule will 
place too much of a burden on Federal employees. Federal employees are 
currently responsible for maintaining these records. For the reasons 
given in the previous paragraphs, we believe that the new rule will 
ease the burden on Federal employees.
    One Federal agency stated that both e-mail and paper records of a 
transitory nature should be treated the same. We agree, and that is the 
basis for our revisions. General Record Schedule 23, Item 7, applies to 
a variety of transitory records, regardless of the media on which they 
were created, including paper records and, with the recent changes, 
electronic records. Agency records schedules may include other 
transitory records, which now may be managed similarly in both paper 
and electronic form.
    Two Federal agencies stated that the proposed rule will require a 
technology solution, such as a records management application (RMA). We 
disagree. This rule allows agencies to manage transitory e-mail 
messages within the e-mail system. It removes the requirement that 
transitory records be placed in a separate recordkeeping system 
(printed and filed or moved to an RMA). We believe that this rule 
allows greater flexibility. It reduces costs by not requiring that 
every e-mail message be printed and also reduces the amount of time 
spent filing.
    We received one comment from a Federal agency asking why these 
records needed to be kept under a freeze if they are truly transitory. 
Federal agencies have an ongoing obligation to comply with legal 
demands such as

[[Page 8807]]

court orders requiring the preservation of documents as evidence in a 
particular litigation; agencies must continue to take reasonable steps 
to freeze the disposition of any and all records as specified in court 
orders or other legal process.
    One public interest group asked if this rule pertains to private 
companies. NARA's regulations apply only to Federal executive branch 
agencies. Private companies must follow the regulations that are 
appropriate for their industry.
    We received one comment from a public interest group asking for the 
technical definition of e-mail for this rule. ``Electronic mail 
message'' is defined in 36 CFR 1234.2 as a ``document created or 
received on an electronic mail system including brief notes, more 
formal or substantive narrative documents, and any attachments, such as 
word processing and other electronic documents, which may be 
transmitted with the message.''
    One public interest group asked about the criteria needed to 
determine `` * * * special cases where e-mail is important to retain 
for some official purpose; for example, e-mails that require a receipt, 
or those that contain a digital signature, or where the function of e-
mail is to serve as a time stamp.'' This rule applies only to 
transitory e-mail messages, which, by definition, are required only for 
a minimal amount of time for business needs or accountability. 36 CFR 
1234.24(a) specifies that it is the responsibility of each agency to 
ensure that the proper metadata (e.g., receipt data) is captured as 
part of the record when it is required.
    One public interest group asked about attachments to messages. 
Attachments must also be managed as records. If the attachment meets 
the definition of transitory, then it too may be deleted from the e-
mail system without producing a recordkeeping copy. If it is not 
transitory, then the attachment must be copied to an RMA or printed and 
filed. E-mail messages and attachments must be considered together to 
determine if one provides context for the other before either is 
determined to be transitory.
    Only one substantial change was made between the proposed rule and 
the final rule. In the proposed rule, ``short-term'' was not a set 
period of time. The final rule defines ``short-term'' as 180 days or 
less. For clarity, minor wording changes were made to Sec. Sec.  
1234.24(b)(3)(i) and 1234.32(d)(1).
    NARA wishes to point out that this final rule is part of NARA's 
larger effort to assist agencies with proper management of their 
records in electronic and other forms. Through the Records Management 
Initiatives (RMI), NARA is developing strategies to support records 
management within agencies. As part of this effort, NARA has developed 
updated policies and strategies for a variety of topics, including 
flexible scheduling and pre-accessioning of permanent electronic 
records. More information may be found on NARA's Web site at http://www.archives.gov/records-mgmt/initiatives/rm-redesign-project.html.
    NARA also is continuing its work with the Office of Management and 
Budget (OMB) to implement the President's Management Agenda for 
expanding electronic government (E-Gov) through the Electronic Records 
Management (ERM) Initiative. As part of this project, NARA has issued 
guidance for the transfer of permanent electronic records to NARA in 
six electronic formats not previously accepted by NARA for 
preservation. In addition, NARA has released guidance for evaluating 
Capital Planning and Investment Control (CPIC) proposals and on 
developing agency-specific functional requirements for ERM systems and 
continues to work on further guidance. More information on NARA's E-Gov 
ERM Initiative and the completed products is available on NARA's Web 
site at http://www.archives.gov/records-mgmt/initiatives/erm-overview.html.

Text of General Records Schedule 23, Item 7

    As noted earlier in this preamble, we are setting out the text of 
the revised GRS 23, Item 7, for the convenience of readers. The 
revision was issued on September 1, 2005, and is available online at 
http://www.archives.gov/records-mgmt/ardor/grs23.html.

Transitory Records

    Records of short-term (180 days or less) interest, including 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).

Regulatory Analysis and Review

    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 (OMB). As required by the Regulatory Flexibility 
Act, it is hereby certified that this final rule will not have a 
significant impact on a substantial number of small entities because 
this rule applies to Federal agencies. This final rule 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 1234

    Archives and records, Computer technology.


0
For the reasons set forth in the preamble, NARA amends chapter XII of 
title 36 of the Code of Federal Regulations as follows:

PART 1234--ELECTRONIC RECORDS MANAGEMENT

0
1. The authority citation for part 1234 is revised to read as follows:

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


0
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 with a 
very short-term retention period of 180 days or less as provided by GRS 
23, Item 7, or by a NARA-approved agency records

[[Page 8808]]

schedule) 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 use an electronic mail system to store the 
recordkeeping copy of electronic mail messages identified as Federal 
records unless that 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.
* * * * *

0
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, or on a NARA-approved agency records schedule for 
electronic mail records that have very short-term retention periods of 
180 days or less. (See Sec.  1234.24(b)(2)).
    (2) Other records in an electronic mail system. When an agency has 
taken the necessary steps to retain a record in a scheduled 
recordkeeping system (whether electronic or paper), the identical 
version that remains on the user's screen or in the user's electronic 
mailbox has no continuing value. Therefore, NARA has authorized 
deletion of the version of the record in 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: September 14, 2005.
Allen Weinstein,
Archivist of the United States.

    Note: This document was received at the Office of the Federal 
Register on February 17, 2006.


[FR Doc. 06-1545 Filed 2-17-06; 8:45 am]
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