[Federal Register Volume 84, Number 69 (Wednesday, April 10, 2019)]
[Rules and Regulations]
[Pages 14265-14267]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-06916]


=======================================================================
-----------------------------------------------------------------------

NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

36 CFR Part 1236

[FDMS No. NARA-18-0003; NARA-2019-018]
RIN 3095-AB98


Electronic Records Management

AGENCY: National Archives and Records Administration (NARA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: We are revising our electronic records management regulation 
to include standards for digitizing temporary Federal records so that 
agencies may dispose of the original source records, where appropriate 
and in accordance with the Federal Records Act amendments of 2014.

DATES: This regulation is effective on May 10, 2019.

ADDRESSES: Regulatory and External Policy Program, Strategy & 
Performance Division (MP); Suite 4100; National Archives and Records 
Administration; 8601 Adelphi Road; College Park, MD 20740-6001.

FOR FURTHER INFORMATION CONTACT: Kimberly Keravuori, by email at 
[email protected], or by telephone at 301.837.3151. Contact 
[email protected] with any questions on records management and 
digitization.

SUPPLEMENTARY INFORMATION: 

Background

    In 2014, the Federal Records Act at 44 U.S.C. 3302 was amended by 
Public Law 113-87 to require NARA to issue standards for reproducing 
records digitally `with a view toward the disposal of original 
records.' The amendment applies to both temporary and permanent 
records. This rule sets standards for digitizing temporary records so 
that agencies may establish appropriate processes. Temporary records 
constitute the majority of Federal records; agencies retain them for a 
specific period of time, as established by records schedules. At the 
end of the scheduled retention period, agencies then destroy the 
temporary records. Digitization standards for temporary records ensure 
that agencies can continue to use the digital versions for the same 
purposes as the original records for the duration of that time period.
    In this rulemaking, in addition to issuing digitization standards 
for temporary records, we are also removing 36 CFR 1236.1 because it 
restates the authorities already cited in the authority line.

Proposed Rule and Public Comments

    We published this rulemaking in the Federal Register as a proposed 
rule on September 10, 2018 (83 FR 45587) with a 60-day public comment 
period. We received 19 comments on the proposed rule. Several of them 
involved questions and requests for clarification regarding digitizing 
permanent Federal and Presidential records or asking about specific 
technical standards. However, this regulation does not cover such 
records. It covers only temporary Federal records. One comment asked 
that we specifically state that the new Subpart D does not apply to 
permanent records, but we feel that the title, ``Digitizing Temporary 
Federal Records,'' is sufficient to make that clear.
    For temporary records, the standards will be as they are stated in 
this regulation. While permanent records require more rigorous quality 
standards for archival reasons, most temporary records do not need to 
meet those standards. Because the needs and uses for temporary records 
differ vastly across the Government, it is not reasonable to set a 
single baseline image quality or other similar standards; different 
standards will serve to meet the business needs for different records. 
As a result, this regulation focuses on the uses of the digitized 
records as the benchmark for effective digitization and requires that 
agencies ensure the digitized records can be used for all the purposes 
of the original source records. In some cases, that may involve higher 
image quality than in other cases. We will be issuing FAQs and guidance 
to agencies on applying the requirements to certain categories of 
records, as appropriate.
    Several other comments asked us to clarify the validation 
requirements and process, whether agencies may develop their own 
process, and whether validation requires submitting to NARA for 
approval. We have revised the validation section to clarify that 
agencies must validate that the digitized versions are able to be used 
for all the purposes of the original records, and may use their own 
process or a third-party process to check the validity of the digitized 
versions. We also clarified that agencies do not need to seek NARA 
approval as part of validation. NARA may, however, review agency 
documentation of the validation process.
    In the course of responding to the comments, we realized there was 
confusion about records schedule retention periods and disposing of 
original source records. Original source records do not become non-
record copies when they have been digitized. As a result, they must 
still be treated as Federal records. They become intermediary records 
and may then be destroyed or retained according to the appropriate 
records schedule (either General Records Schedule 5.2 for intermediary 
records or an agency-specific records schedule governing the digitized 
records). We have noted this in the revised regulation as well.
    A commenter asked if we would be addressing Employee Medical File 
System documents and setting digitization standards for these 
documents, including x-rays. The Employee Medical Folder (EMF) for the 
majority of agencies is under the recordkeeping authority of the Office 
of Personnel Management (OPM), not NARA. The Civilian Personnel Records 
Center/National Personnel Records Center (CPR/NPRC) stores and services 
the EMF for the owner of the record (OPM) and responds to requests for 
the documents. The EMF is currently retired to CPR/NPRC in paper form.

[[Page 14266]]

OPM created a system in approximately 2007 to support an electronic 
Official Personnel Folder (OPF) but only the OPF is supported through 
that system. Because NARA will no longer accept paper/analog records 
for storage at a Federal records center after December 31, 2022, NARA 
has reached out to OPM to identify the impact to the paper EMF and 
recommend OPM consider the timeline needed to create an electronic EMF 
by that deadline. The x-ray will need to be addressed as part of the 
EMF. The dialogue continues with OPM concerning the electronic EMF 
under their recordkeeping authority. NARA will continue to store and 
service paper/analog records received by Federal records centers 
through December 31, 2022, until their scheduled disposition date. As a 
result, this regulation does not address EMFs or how NPRC would accept 
digital records. NARA will, of course, work with OPM on updating OPM/
GOVT-10 EMFs as appropriate.
    Another commenter asked that we clarify that the rule does not 
authorize an agency to destroy after digitization any records with a 
legal hold or that are subject to civil, criminal, or administrative 
proceedings. We have added clarifying language to address this comment. 
One commenter asked that we add a definition of ``information,'' and 
another asked for a definition of ``digitizing.'' We feel there is no 
need for a definition of ``information''; it has already been defined 
in many contexts, and we do not feel an additional one would be 
helpful. However, we have added a definition of ``digitizing,'' because 
it is a new term within the records management arena. We have also made 
editorial revisions to make the revised rule easier to read and use.

Digitizing Permanent Records and Electronic Records Rulemaking

    We are currently developing standards for digitizing permanent 
records, which we will publish as an upcoming rulemaking. Until these 
standards are published as a rule, we recommend that agencies discuss 
digitization projects with their general counsel before disposing of 
any original permanent records.
    While we develop the standards necessary for digitizing permanent 
Federal records, agencies should continue to follow the process in the 
General Records Schedule, 36 CFR 1225.24, and NARA Bulletin 2010-04, 
Guidance Concerning Notifications for Previously Scheduled Permanent 
Records (https://www.archives.gov/records-mgmt/bulletins/2010/2010-04.html).
    We are also working on revisions to the rest of 36 CFR 1236, 
regarding electronic records management, which will be reflected in 
future rulemakings.

Regulatory Review Information

    This rule is not a significant regulatory action for the purposes 
of E.O. 12866 and a significance determination was requested from the 
Office of Management and Budget (OMB). As a result, this rule is also 
not subject to deregulatory requirements contained in E.O. 13771. It is 
also not a major rule as defined in 5 U.S.C. Chapter 8, Congressional 
Review of Agency Rulemaking. As required by the Regulatory Flexibility 
Act, we certify that this rule will not have a significant impact on a 
substantial number of small entities; it applies only to agency efforts 
to digitize temporary records. This rule also does not have any 
Federalism implications and does not contain any collections of 
information under the Paperwork Reduction Act.

List of Subjects in 36 CFR Part 1236

    Archives and records, Electronic records, Records management.

    For the reasons stated in the preamble, NARA amends 36 CFR part 
1236 as follows:

PART 1236--ELECTRONIC RECORDS MANAGEMENT

0
1. Revise the authority citation for part 1236 to read as follows:

    Authority: 44 U.S.C. 2904, 3101, 3102, 3105, 3301, 3302, and 
3312.


Sec.  1236.1  [Removed]

0
2. Remove Sec.  1236.1.

0
3. In Sec.  1236.2, in paragraph (b), add a definition of 
``Digitizing'' in alphabetical order to read as follows:


Sec.  1236.2  What definitions apply to this part?

* * * * *
    (b) * * *
    Digitizing is the process of converting paper or analog records 
into electronic records.
* * * * *

0
4. Add subpart D to read as follows:

Subpart D--Digitizing Temporary Federal Records

Sec.
1236.30 Requirements for digitizing temporary records.
1236.32 Digitization standards.
1236.34 Validating digitization.
1236.36 Disposing of original source records.


Sec.  1236.30   Requirements for digitizing temporary records.

    (a) If an agency intends to digitally reproduce (digitize) 
temporary records in order to designate the digitized version as the 
recordkeeping copy and destroy the original source records, the agency 
must: (1) Digitize the record to the standards in Sec.  1236.32; and 
(2) validate the digitization according to Sec.  1236.34.
    (b) When the agency designates the digitized version as the 
recordkeeping copy, the original source record becomes an intermediary 
record. Agencies may dispose of intermediary records according to Sec.  
1236.36.


Sec.  1236.32   Digitization standards.

    When digitizing temporary records, agencies must meet the following 
standards:
    (a) Capture all information contained in the original source 
records;
    (b) Include all the pages or parts from the original source 
records;
    (c) Ensure the agency can use the digitized versions for all the 
purposes the original source records serve, including the ability to 
attest to transactions and activities;
    (d) Protect against unauthorized deletions, additions, or 
alterations to the digitized versions; and
    (e) Ensure the agency can locate, retrieve, access, and use the 
digitized versions for the records' entire retention period.


Sec.  1236.34   Validating digitization.

    (a) Agencies must validate that the digitized versions are of 
suitable quality to replace original source records.
    (b) Agencies may establish their own validation process or make use 
of third-party processes to validate that the digitized versions comply 
with Sec.  1236.32. The process may be project-based or agency-wide 
policy.
    (c) Agencies must document the validation process and retain that 
documentation for the life of the process or the life of any records 
digitized using that process, whichever is longer.
    (d) NARA may review validation documentation as needed.


Sec.  1236.36   Disposing of original source records.

    (a) When an agency has validated that the digitized versions meet 
the standards in Sec.  1236.32, the agency may destroy the original 
source records pursuant to General Records Schedule (GRS) 5.2 
(intermediary records) or an agency-specific records schedule that 
addresses disposition after digitization, subject to any pending legal 
constraint on the agency, such as a litigation hold.

[[Page 14267]]

    (b) The agency must treat the digitized versions, now the 
recordkeeping versions, in the same way it would have treated the 
original source records. The agency must retain the digitized versions 
for the remaining portion of any retention period established by the 
applicable records schedule.
    (c) Agencies do not need to obtain NARA approval to destroy 
scheduled temporary records they have digitized according to this part.

David S. Ferriero,
Archivist of the United States.
[FR Doc. 2019-06916 Filed 4-9-19; 8:45 am]
 BILLING CODE 7515-01-P