[Federal Register Volume 87, Number 237 (Monday, December 12, 2022)]
[Rules and Regulations]
[Pages 75930-75932]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-26450]


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NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

36 CFR Parts 1220 and 1222

[FDMS No. NARA-22-0020; NARA-2022-067]
RIN 3095-AC08


Federal Records Management: Managing Electronic Records, 
Including Electronic Messages

AGENCY: National Archives and Records Administration (NARA).

ACTION: Final rule.

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SUMMARY: We are amending our regulations on creating and maintaining 
Federal records to explicitly include record-keeping requirements for 
electronic records. On January 1, 2021, the Federal Records Act was 
amended. It now requires the Archivist of the United States to 
promulgate regulations governing Federal agency preservation of 
electronic messages that are determined to be records. We are amending 
our regulations to define electronic messages and to expressly state 
records management requirements for electronic records, including 
electronic messages.

DATES: This rule is effective on January 11, 2023.

ADDRESSES: Regulatory and External Policy Program (MP); Suite 4100; 
National Archives and Records

[[Page 75931]]

Administration; 8601 Adelphi Road; College Park, MD 20740-6001.

FOR FURTHER INFORMATION CONTACT: Edward Germino, Strategy and 
Performance Division, by email at [email protected], or by 
telephone at 301-837-3758. Contact [email protected] with any 
questions on electronic records management.

SUPPLEMENTARY INFORMATION:

Background

    On January 1, 2021, Public Law 116-283 amended the Federal Records 
Act at 44 U.S.C. 2912 to require the Archivist of the United States to 
promulgate regulations governing Federal agency preservation of 
electronic messages that are records. The law states that the 
regulations must require agencies to electronically capture, manage, 
and preserve electronic message records, and must require that they can 
readily access such records through electronic searches. Additionally, 
the regulations should include timelines for Federal agencies to 
implement the resulting regulatory requirements as expeditiously as 
practicable.
    We are amending 36 CFR part 1220, Federal Records; General, to 
define electronic messages and incorporate them into all existing 
requirements governing Federal records. We are also modifying 36 CFR 
part 1222, Creation and Maintenance of Federal Records, to specifically 
restate that the capture, management, and preservation of electronic 
records, including electronic messages, is an essential part of a 
Federal records management program.
    These changes incorporate electronic messages into existing 
regulations on electronic records management. The current regulations 
in 36 CFR part 1236, Electronic Records Management, already state that 
records management controls are needed to ensure that Federal records 
in electronic information systems can provide adequate and proper 
documentation of agency business for as long as the information is 
needed. Part 1236 also requires agencies to ensure all records in 
electronic information systems are retrievable and usable for as long 
as they need the records to conduct agency business. In addition, 36 
CFR 1222.22 currently specifies requirements for adequate documentation 
of agency business. These existing regulations apply to all electronic 
records, including electronic messages.
    We are not providing agencies with a timeline for implementing 
these requirements. The Archivist of the United States has previously 
promulgated regulations that cover the requirements set forth in Public 
Law 116-283, and agencies have been required to implement them for some 
time already. These requirements are effective on the effective date of 
this final rule.

Regulatory Analysis

Executive Order 12866, Regulatory Planning and Review, and Executive 
Order 13563, Improving Regulation and Regulation Review

    The Office of Management and Budget (OMB) has reviewed this 
rulemaking and determined it is not ``significant'' under section 3(f) 
of Executive Order 12866. It is not significant because it applies only 
to Federal agencies, updates the regulations due to a statutory 
requirement, the new requirements are being added to clarify ones that 
agencies have already been required to follow, and is not establishing 
a new program. The requirements are necessary to comply with statute 
and to ensure agencies are appropriately preserving records.

Regulatory Flexibility Act (5 U.S.C. 601, et seq.)

    This review requires an agency to prepare an initial regulatory 
flexibility analysis and publish it when the agency publishes the 
proposed rule. This requirement does not apply if the agency certifies 
that the rulemaking will not, if promulgated, have a significant 
economic impact on a substantial number of small entities (5 U.S.C. 
603). We certify, after review and analysis, that this rulemaking will 
not have a significant adverse economic impact on small entities.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et seq.) 
requires that agencies consider the impact of paperwork and other 
information collection burdens imposed on the public and, under the 
provisions of PRA section 3507(d), obtain approval from OMB for each 
collection of information we conduct, sponsor, or require through 
regulations. This rulemaking does not impose additional information 
collection requirements on the public that are subject to the Paperwork 
Reduction Act.

Executive Order 13132, Federalism

    Executive Order 13132 requires agencies to ensure State and local 
officials have the opportunity for meaningful and timely input when 
developing regulatory policies that may have a substantial, direct 
effect on the states, on the relationship between the Federal 
Government and the states, or on the distribution of power and 
responsibilities among the various levels of government. If the effects 
of the rule on State and local governments are sufficiently 
substantial, the agency must prepare a Federal assessment to assist 
senior policy makers. This rulemaking will not have any effects on 
State and local governments within the meaning of the E.O. Therefore, 
no federalism assessment is required.

Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4; 2 U.S.C. 1532)

    The Unfunded Mandates Reform Act requires that agencies determine 
whether any Federal mandate in the rulemaking may result in State, 
local, and Tribal governments, in the aggregate, or the private sector, 
expending $100 million in any one year. NARA certifies that this 
rulemaking does not contain a Federal mandate that may result in such 
an expenditure.

List of Subjects in 36 CFR Parts 1220 and 1222

    Archives and records.

    For the reasons discussed in the preamble, NARA amends 36 CFR parts 
1220 and 1222 as follows:

PART 1220--FEDERAL RECORDS; GENERAL

0
1. The authority citation for part 1220 continues to read as follows:

    Authority:  44 U.S.C. Chapters 21, 29, 31, and 33.


0
2. In Sec.  1220.18, add a definition in alphabetical order for 
``Electronic messages'' to read as follows:


Sec.  1220.18  What definitions apply to the regulations in Subchapter 
B?

* * * * *
    Electronic messages means electronic mail and other electronic 
messaging systems that are used for purposes of communicating between 
individuals. Electronic messages that satisfy the definition of a 
Federal record under the Federal Records Act are electronic records.
* * * * *

PART 1222--CREATION AND MAINTENANCE OF FEDERAL RECORDS

0
3. The authority citation for part 1222 continues to read as follows:

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


0
4. In Sec.  1222.26:
0
a. Revise the section heading;

[[Page 75932]]

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b. Redesignate the introductory text as paragraph (a) introductory 
text;
0
c. Redesignate paragraphs (a) through (e) as paragraphs (a)(1) through 
(5); and
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d. Add a new paragraph (b).
    The revision and addition read as follows:


Sec.  1222.26  What are the general recordkeeping requirements for 
agencies?

* * * * *
    (b) Agencies must capture, manage, and preserve electronic records 
with appropriate metadata and must be able to access and retrieve 
electronic records, including electronic messages, through electronic 
searches.

Debra Steidel Wall,
Acting Archivist of the United States.
[FR Doc. 2022-26450 Filed 12-9-22; 8:45 am]
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