[Federal Register Volume 72, Number 220 (Thursday, November 15, 2007)]
[Rules and Regulations]
[Pages 64153-64155]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-22376]


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NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

36 CFR Part 1228

[FDMS Docket NARA-07-0004]
RIN 3095-AB43


Federal Records Management; Media Neutral Schedules

AGENCY: National Archives and Records Administration

ACTION: Final rule.

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SUMMARY: The National Archives and Records Administration (NARA) is 
revising its regulations on scheduling Federal records to make future 
records schedules and certain existing approved records schedules 
applicable to series of records regardless of the medium in which the 
records are created and maintained. Both the agency (in submitting the 
schedule) and NARA (in approving the schedule) would be able to specify 
that certain disposition authorities are valid only for the current 
media/format of the records. Although agencies currently are permitted 
to submit ``media-neutral'' records schedules, most existing records 
schedules were developed for hard-copy (usually paper) recordkeeping 
systems and do not state that they apply to records in other formats. 
Therefore, agencies have been required to submit new schedules when 
they convert from a hard-copy system of records, including special 
media records (such as still pictures, aerial photography, maps, 
charts, drawings, motion picture film, analog videotape, and analog 
sound recordings), to an electronic system. This rule makes all new 
schedules media neutral unless otherwise specified and allows schedules 
previously approved for hard copy records to be applied to electronic 
versions of the files if certain conditions are met. The new rule will 
reduce the workload for both agencies and NARA, allowing them to focus 
resources on critical records management needs.

DATES: This rule is effective December 17, 2007.

FOR FURTHER INFORMATION CONTACT: Laurence Brewer, Director, Life Cycle 
Management Division, at 301-837-1539 or via fax at 301-837-3697.

SUPPLEMENTARY INFORMATION:

Background

    On November 19, 2004, at 69 FR 67692, NARA published a proposed 
rule making schedules media neutral. In response, we received comments 
from five Federal agencies and from a private firm that does records 
management work for Federal agencies. Four public interest groups 
submitted comments on a related proposed records disposition schedule 
modifying the General Records Schedules (GRS) to implement the proposed 
rule insofar as the rule applies to previously approved schedules. The 
notice inviting public comment on the proposed disposition schedule N1-
GRS-05-1 was published on November 16, 2004 (69 FR 67182). We 
considered the comments on both the proposed rule and the proposed 
disposition schedule in developing this final rule.

Discussion of Comments Received on the Proposed Rule

    All five agencies and the consulting firm generally endorsed NARA's 
proposals regarding media neutrality. However, three of the agencies 
and the consulting firm felt that the new regulations should allow 
agencies more than 45 days to notify NARA when they convert previously 
scheduled permanent records to an electronic format. One of these 
agencies suggested allowing agencies up to 90 days, while another 
agency suggested that NARA require annual updates. The third agency 
that addressed this issue suggested that the regulation require 
notification ``as soon as possible.'' The

[[Page 64154]]

consulting firm suggested that notifying NARA be done as part of annual 
or other periodic reviews conducted by agency records managers to 
identify new or modified recordkeeping systems. NARA agrees that 45 
days is probably not sufficient. Consequently, the final regulation 
allows agencies up to 90 days to notify NARA when permanent records are 
converted to an electronic format.
    One agency commented on the wording in the regulation regarding 
records maintained on agency web sites. This agency thought the term 
``web version,'' which NARA used in the proposed rule, was not 
sufficiently clear. In response to this comment, NARA has used the 
expression ``copies of records that are maintained on an agency web 
site.'' We believe that this wording clarifies NARA's intent.
    The agency which commented on web site records also questioned why 
the proposed regulations did not allow previously approved schedules to 
be applied to temporary program records with retention periods of 20 
years or more or to records containing observational and social science 
raw data. (The consulting firm which submitted comments also questioned 
these exclusions.) This agency suggested instead that ``the provisions 
for media neutral schedules [in 36 CFR 1228.24(b)(3)] should be 
grandfathered to include all previously approved records schedules and 
not limited to those approved after the final date of this ruling.'' We 
did not adopt either suggestion. Based on our analysis of all comments 
on the proposed rule and disposition schedule, instead, the regulations 
now allow retrospective media neutrality for temporary program records 
only when the records are converted to scanned images or, in the case 
of temporary audiovisual records, from traditional media to any digital 
format. This matter is addressed in more detail in the following 
discussion of the comments NARA received from several public interest 
organizations.

Discussion of Comments Received on the Disposition Schedule

    Four public interest groups also addressed NARA's media neutral 
proposals. These organizations did not comment on the regulations 
directly but provided comments on the NARA-prepared disposition 
schedule (Disposition Job N1-GRS-05-1) that modified GRS 20 to reflect 
the proposed regulations. Their comments on the proposed GRS 20 
revisions concerning retrospective media neutrality as they relate to 
the provisions of the proposed rule are discussed below.
    None of the public interest groups commented on NARA's proposal to 
make previously approved schedule items media neutral in the case of 
permanent records. However, all of these groups were critical of 
retrospective media neutrality as it relates to temporary program 
records, arguing that the enhanced search capabilities and 
manipulability of electronic records might increase the value of 
records that were appropriately temporary if maintained in paper form. 
In their view, if the proposed GRS modifications and regulations 
pertaining to media neutrality were implemented, records warranting 
permanent retention or a longer temporary retention period if 
maintained electronically could be destroyed without NARA review.
    Both this final rule and the approved schedule modifying GRS 20 now 
allow for retrospective media neutrality for temporary program records 
only if records are converted to scanned images in the case of textual 
records or to digital media in the case of sound recordings, moving 
images, and still photography. We note that this action reflects long-
standing NARA policy on conversion to scanned images. Since the 1990s, 
NARA has authorized agencies to dispose of scanned images of temporary 
hard copy records in accordance with previously approved schedules so 
long as the basic content and function of the records remain the same.
    While scanned images of hard copy records can with proper indexing 
be searched more easily than the original documents, the information in 
the records cannot be manipulated in the same fashion as a database. It 
is this manipulability that renders some databases of historical value 
even if the related paper records are temporary. Hence, the final rule 
and the related changes to GRS 20 now mandate the submission of a new 
schedule to NARA when an agency converts temporary program records that 
are textual in nature to an electronic format other than scanned image. 
This will afford NARA the opportunity to assess the value of the 
electronic records to determine if their manipulability renders them 
potentially permanent. This consideration, enhanced manipulability, 
does not apply if an agency uses a digital format for its still 
pictures or other temporary audiovisual records. In all instances, 
therefore, where an agency converts temporary audiovisual records to a 
digital format, the previously approved retention period may be 
applied.
    The GRS and the regulations, as initially proposed, would have 
allowed agencies to apply retrospectively previously approved schedules 
to electronic systems that merge information drawn from more than one 
previously scheduled temporary record series so long as the electronic 
records are maintained for the longest retention period specified in 
the previously approved schedules. Two of the public interest groups 
took issue with this, arguing that electronic systems that merge 
information from multiple hard copy files are likely to be more 
valuable than the component hard copy series considered individually. 
NARA agrees and has revised the final rule to allow agencies to apply 
previously approved schedules to electronic records drawn from multiple 
temporary series only if the records are housekeeping in nature and are 
either covered by temporary items in the GRS or by agency schedules for 
administrative records. In the case of temporary program records, 
agencies must submit a new schedule if an electronic system is drawn 
from multiple previously scheduled series.
    One public interest group commented that NARA's proposals did not 
take into account that converting hard copy records to an electronic 
format, by decreasing storage costs and increasing search capabilities 
and manipulability might justify retaining the electronic versions 
longer than the previously approved hard copy documents. NARA is well 
aware that how long temporary records should be retained may change 
over time, even absent a change in the recordkeeping medium. NARA 
expects agencies to re-evaluate their needs periodically. If agencies 
determine that a series of records warrants a longer retention period 
for any reason, they should submit a schedule to NARA. Even though the 
General Records Schedules are mandatory, agencies can submit schedules 
requesting an exception if the retention periods specified in the GRS 
do not meet their needs.
    We have modified the provisions of the proposed rule and the 
disposition schedule to address the comments. NARA published a notice 
for the revised NARA-prepared disposition schedule on August 9, 2007 
(72 FR 44875), and approved the schedule on September 26, 2007.
    This rule is a significant regulatory action for the purposes of 
Executive Order 12866 and has been reviewed by the Office of Management 
and Budget. As required by the Regulatory Flexibility Act, I certify 
that this rule will not have a significant impact on a substantial 
number of small entities because it affects Federal agencies. This 
regulation does not have any federalism

[[Page 64155]]

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.

0
For the reasons set forth in the preamble, NARA amends part 1228 of 
title 36, Code of Federal Regulations, 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
2. Amend Sec.  1228.24 by redesignating paragraphs (b)(3) and (b)(4) as 
paragraphs (b)(4) and (b)(5) respectively, and adding new paragraph 
(b)(3) to read as follows:


Sec.  1228.24  Formulation of agency records schedules.

    (b) * * *
    (3) Records schedules submitted to NARA for approval on or after 
[the effective date of the final rule] are media neutral, i.e., the 
disposition instructions apply to the described records in all media, 
unless the schedule identifies a specific medium for a specific series.
* * * * *
0
3. Add Sec.  1228.31 to read as follows:


Sec.  1228. 31  Applying previously approved schedules to electronic 
records.

    (a) When must an agency submit a new schedule for electronic 
versions of previously scheduled hard copy records? Agencies must 
submit a new schedule to NARA for electronic versions of previously 
scheduled records if:
    (1) The content and function of the records have changed 
significantly (e.g., the electronic records contain information that is 
substantially different from the information included in the hard copy 
series or are used for different purposes).
    (2) The previously approved schedule explicitly excludes electronic 
records.
    (3) The electronic records consist of program records maintained on 
an agency web site.
    (4) The electronic records consist of program records maintained in 
a format other than scanned image AND the previously approved schedule 
is not media neutral.
    (b) When can an agency apply a previously approved schedule to 
electronic versions of the records? If the conditions specified in 
paragraph (a) of this section do not apply, the conditions in paragraph 
(b) apply:
    (1) Permanent records. (i) The agency may apply a previously 
approved schedule for hard copy records to electronic versions of the 
permanent records when the electronic records system replaces a single 
series of hard copy permanent records or the electronic records consist 
of information drawn from multiple previously scheduled permanent 
series. Agencies must notify NARA (NWM) in writing of records that have 
been previously scheduled as permanent in hard copy form, including 
special media records as described in 36 CFR 1228.266 and 36 CFR 
1228.268. The notification must be submitted within 90 days of when the 
electronic recordkeeping system becomes operational and must contain 
the:
    (A) Name of agency;
    (B) Name of the electronic system;
    (C) Organizational unit(s) or agency program which records support;
    (D) Current disposition authority reference; and
    (E) Format of the records (e.g., database, scanned images, digital 
photographs, etc.).
    (ii) If the electronic records include information drawn from both 
temporary and permanent hard copy series, an agency either may apply a 
previously approved permanent disposition authority, after submitting 
the notification required by paragraph (b)(1)(i) or may submit a new 
schedule if the agency believes the electronic records do not warrant 
permanent retention.
    (2) Temporary still pictures, sound recordings, motion picture 
film, and video recordings. The agency must apply the previously 
approved schedule to digital versions. If changes in the approved 
schedule are required, follow Sec.  1228.32.
    (3) Scanned images of temporary records, including temporary 
program records. The agency must apply the previously approved 
schedule. If changes in the approved schedule are required, follow 
Sec.  1228.32.
    (4) Other temporary records maintained in an electronic format 
other than scanned images. (i) For temporary records that are covered 
by an item in a General Records Schedule or an agency-specific schedule 
that pertains to administrative/housekeeping activities, apply the 
previously approved schedule. If the electronic records consist of 
information drawn from multiple hard copy series, apply the previously 
approved schedule item with the longest retention period.
    (ii) For temporary program records covered by a NARA-approved media 
neutral schedule item (i.e., the item appears on a schedule approved 
before December 17, 2007 that is explicitly stated to be media neutral, 
or it appears on any schedule approved on or after December 17, 2007 
that is not explicitly limited to a specific recordkeeping medium), 
apply the previously approved schedule.

    Dated: September 27, 2007.
Allen Weinstein,
Archivist of the United States.
 [FR Doc. E7-22376 Filed 11-14-07; 8:45 am]
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