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Federal Register: October 2, 2009 (Volume 74, Number 190)

DOCID: fr02oc09-5 FR Doc E9-23613

NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

Wage and Hour Division

CFR Citation: 36 CFR Chapter XII, Subchapter B

RIN ID: RIN 3095-AB16

FDM ID: [FDMS Docket NARA-08-0004]

NOTICE: Part II

DOCID: fr02oc09-5

DOCUMENT ACTION: Final rule.

SUBJECT CATEGORY:

Federal Records Management; Revision

DATES: This rule is effective on November 2, 2009. The incorporation by reference of the publications listed in the rule is approved by the Director of the Federal Register as of November 2, 2009.

DOCUMENT SUMMARY:

As part of its initiative to redesign Federal records management, NARA is revising and reorganizing the existing regulations on Federal records management to update records management strategies and techniques and to make the regulations easier to read, understand, and use. This rule will affect Federal agencies.

SUMMARY:

National Archives and Records Administration

SUPPLEMENTAL INFORMATION

Background

On August 4, 2008, at 73 FR 45274, NARA published a proposed rule to revise and reorganize the Federal records management regulations contained in 36 CFR Chapter XII, Subchapter B. We received timely comments from 12 Federal agencies, four agency records officers who did not identify their comments as agency responses, one former Federal agency records management professional, and one records management consultant and practitioner. We also considered a late comment submitted by a professional organization.
Discussion of Comments

General Overview

Two agencies concurred without further comment. Several agencies and records officers offered their support for most of the revisions, noting that the new regulations are easier to use and understand, while also addressing specific issues that caused them concern. The comments from the former agency records management official recommended that the regulation be ``fundamentally rethought in light of the borndigital, enduser environment in which agencies operate today'' and offered suggestions for doing so. Specific issues raised in the comments and how we address them in this final rule follow.

Use of ISO 15489

Several comments addressed use of ISO 154891:2001, Records ManagementPart 1: General in the regulation. Most supported its use and several suggested additional clauses to reference in specific parts, which we have adopted. The former agency records management official recommended a greater emphasis in the regulations on the ISO 154891 concepts of risk and business need. We believe that these concepts are implicit in the regulations. NARA guidance and training emphasize how to apply these concepts.

ARMA International advised against citing the standard because it is undergoing transformation into an ISO Management System Standard for Records Management and has not been adopted as an American National Standard in the United States. We did not accept this comment. NARA guidance and training for some time has emphasized the principles contained in ISO 154891. NARA is a participant with ARMA in the international standards (ISO) committee responsible for the standard and we believe that it is useful to records managers. We recognize that when the standard is replaced some time in the future by a new Management System Standard, the regulations will have to be modified. The records management consultant suggested that it wasn't necessary to cite the ISO standard in each part; we did not adopt this comment based on the responses from the agencies and recognition that users frequently consult one or more specific Code of Federal Regulations (CFR) parts and not the whole subchapter, when looking for specific information.
Updating Agency Guidance To Reflect Subchapter B Restructuring

Two comments noted that while the revisions were helpful and much needed, the renumbering and reorganization of the regulations will require agencies that reference specific CFR sections in their internal policies to update their citations. We have added a Derivation Table as an appendix to this preamble to assist agencies in performing that update. We note that agencies should review their agency internal policies, in any case, to incorporate changes in the regulations. Record/Nonrecord Confusion

One commenter advised that NARA focused too strongly on the distinction between record/nonrecord status of documentary materials and expressed a view that virtually all documentary materials meet the definition of a Federal record and need to be managed using records management principles. While we have clarified some sections in response to specific comments, we note that 44 U.S.C. 3301 defines what is a Federal record and 44 U.S.C. 3101 assigns to Federal agencies the responsibility to determine what records must be made and preserved for adequate and proper documentation.

Definition of Terms in Sec. 1220.18

Several comments concerned the definitions, or omissions of definitions, from Sec. 1220.18, which provides definitions of terms used throughout subchapter B.

In response to one comment on the definition of Adequate and proper documentation, we note that the definition is unchanged from the previous definition.

Two comments suggested that the definition of Electronic records belongs here rather than only in part 1236, Electronic Records Management; in response to these comments, we have moved the definition to Sec. 1220.18.

We modified the definition of Nonrecord materials to use the term ``documentary materials'' instead of ``informational materials,'' as suggested by one comment.

One agency recommended that the definition of Records maintenance and use be restored because agencies may misinterpret the meaning of the term. We have added a new definition that emphasizes that the term covers management and handling of records after creation or receipt and before final disposition.

One agency suggested that we use a simpler definition of Records management provided by the Society of American Archivists. We have retained the statutory definition from 44 U.S.C. 2901.

We modified the introduction of the definition of Records schedule or schedule to clarify that the definition could mean any of the three subitems, since this was not clear to a couple of reviewers. We did not adopt a recommendation that we add ``or equivalent'' to the first subitem to allow for future changes in process using the Electronic Records Archives; at this time we do not anticipate such a need.

Finally, we did not move the definition of Vital records from Sec. 1223.2, as suggested by one comment, because the term is used primarily in part 1223 and the few other references in other
[[Page 51005]]
sections clearly associate the term with part 1223.

Other General Comments

Two comments suggested that NARA provide a section in part 1220 that lists the NARA offices and common acronyms referenced throughout the CFR Subchapter B. We agree and have added Sec. 1220.20, What NARA acronyms are used in this subchapter?

One comment applauded the reference to industry (i.e., voluntary consensus) standards that are relevant to records management, but expressed concern over the expense to agencies of purchasing these standards. We note that this final rule specifies in each part that incorporates a standard by reference where the standard may be inspected or purchased. We also note that most of the standards were also incorporated by reference in the previous NARA regulations.

One comment asked what reports, if any, NARA must make to Congress and the Office of Management and Budget (OMB), since the revised regulation does not include the information contained in the previous Sec. 1220.16. NARA makes the reports specified under 44 U.S.C. 2904(c)(8) as part of our Performance and Accountability Act and other special reports. In response to a comment from another individual, we did add a reference in Sec. 1239.20 to the reporting that NARA will make to Congress and OMB on the results of inspections.

We did not adopt one comment that suggested we include a section that provides minimum qualifications for records officers and a process that would promote direct communication between the designated records officer and the head of the agency. We believe that these issues can and should be addressed outside the regulatory process. We note, for example, that NARA has established a records management training certification program and meets regularly with senior agency officials on records management issues, emphasizing the role of the records officer.

Comments on Part 1220Federal Records; General

One comment suggested revising the wording of Sec. 1220.12(c) to emphasize that the appraisal process and Archivist's determination involve both temporary and permanent records. We have clarified the paragraph, although we did not use the suggested wording.

The title and text of Sec. 1220.16 referred to both recorded information and documentary materials. Since ``documentary materials'' are defined in Sec. 1220.18 as recorded information, we accepted a comment to drop ``documentary materials'' from the title of the section. We also struck the reference to ``recorded information'' in the text of the section.

Discussion of the comments on the definitions in Sec. 1220.18 were addressed earlier in this SUPPLEMENTARY INFORMATION.

Three comments were received on Sec. 1220.32. One records officer asked for definitions of the terms ``authentic,'' ``reliable,'' and ``useable'' when applied to records; paragraphs (a) through (f) explain how agencies create and maintain such records. In response to an agency comment, we have deleted from Sec. 1220.32(a) a requirement for specifying the form or format of each record, which is not necessary with medianeutral records scheduling. In response to another agency comment, we amended paragraph (b) of this section to incorporate a requirement for ensuring the integrity of records.

One agency asked for more guidance on Sec. 1220.34(c), which requires agencies to issue a records management directive, to disseminate it throughout the agency, and to send a copy to NARA. This is an existing requirement; NARA expects to receive the agency wide directive. Another agency recommended that we specify in Sec. 1220.34(j) that agencies must audit their records management program to keep it up to date. We accepted this comment, modifying the proposed wording slightly.
Comments on Part 1222Creation and Maintenance of Federal Records

We received several comments on the terms explained in Sec. 1222.10(b). In response to two comments that the discussion of ``documentary materials'' did not match our earlier definition, we revised the wording to state that it has the meaning provided in the definition in Sec. 1220.18. One comment on ``made'' asked that we define ``official duties'' to distinguish them from other types of duties that would not result in the creation of records; we do not think that such a definition is needed.

We also received two comments on ``preserved.'' One agency suggested that we clarify the discussion by indicating that it covers documentary materials in any medium; we agree and have made the change. One agency asked if the phrase ``maintaining documentary materials'' should be stated as ``maintaining record material''; since this paragraph is addressing only one of the criteria for determining that documentary material meets the definition of Federal record, ``documentary materials'' is the correct wording.

A former agency records management official asked a series of questions about application of the discussion, but did not offer suggestions for change. He also asked whether information that an agency does not deem ``appropriate for preservation'' is a temporary (disposable) record or nonrecord material. The discussion of the meaning of ``appropriate for preservation'' makes the point that documentary material that the agency believes should be filed, stored or otherwise systematically maintained is a record even if the materials are not covered by the current filing or maintenance procedures.

Three agencies expressed serious concern with the change in the specification in Sec. 1222.12(c) of conditions for determining that working files are records. The previous regulations specified that both of two conditions must be met; the proposed rule changed this to an ``or.'' As two of the agencies pointed out, the revision would require retention as a record of even nonsubstantive editorial changes to preliminary drafts made by anyone other than the creator. In response to these comments, this final rule restores the requirement that both conditions be met.

One agency suggested that we reference the Sec. 1220.18 definition of record in Sec. 1222.12(b). We do not believe this is needed as the reference is contained in Sec. 1222.12(a).

Another agency felt the proposed change to the second sentence in Sec. 1222.12(d) relating to multiple copies was confusing. We have restored the wording used in the previous regulation.

One agency commended NARA for the clarity of the guidance on identification and management of nonrecord material in Sec. 1222.14, while a former agency records professional recommended removing the reference to the volume of nonrecord materials because in his view, this cannot be proven and it leads people to suspect that much of their documentary materials are nonrecord. We did not remove the reference. However, we agreed with this commenter and another agency comment that the examples of extra copies of documents (Sec. 1222.12(b)(1)(4)) should be removed because the examples were confusing and difficult to interpret; we have removed that item from Sec. 1222.12.

One comment asked that we emphasize in Sec. 1222.16 that nonrecord materials be organized, accessible and usable (the same as records) for as long as needed. We do not agree; if the
[[Page 51006]]
agency has documentary materials that must be organized and available for use in conducting agency business, it is likely that the materials meet the definition of Federal record. Another comment suggested that we not use the term nonrecord materials but refer to them as documentary materials that can generally be purged; we do not find this suggestion helpful.

A third comment asked for clarification on what needs to be done to separate electronic records and nonrecords. We note that Sec. 1222.16(b)(2) requires that electronic nonrecord materials be readily identified and segregable from records; agencies have discretion to specify how that should be accomplished in their working environment. The proposed wording of Sec. 1222.20(b)(2) limited its applicability to electronic nonrecord materials maintained in an electronic repository. In the course of reviewing this comment, we determined that it should be applicable to all electronic nonrecord materials.

One agency stated that Sec. 1222.18(d) might be confusing because agencies have specific program requirements for telework and information dissemination. The comment suggested that NARA should elaborate with instructions for following agency program requirements. We did not adopt this comment. Agency records management requirements relating to telework and authorized information dissemination should be addressed in the agency controls over creation, maintenance and use of records in the conduct of current business (see Sec. Sec. 1220.30(c)(1) and 1220.32).

One agency recommended that the regulation retain the examples of personal files rather than direct users to NARA publications that provide more detailed discussion. The agency suggested that employees needed to see this in the regulation itself. We did not adopt this comment. The examples are not regulatory, and the NARA publication Documenting Your Public Service has been used by a number of agencies to brief their personnel on the issue. We also note that the regulation contains the definition of personal files in Sec. 1220.18, which is referenced in Sec. 1220.20(a).

Another agency expressed concern with Sec. 1220.20(b)(2), which allows agencies to redact information about private matters on a copy of the document and treat that copy as the agency record if it was improperly mixed with agency business in a received document that is a Federal record. The agency stated that redacting the original affects its authenticity; private papers and Federal records should always be separate and clearly marked. We did not delete this provision, which has been contained in the NARA regulation on personal papers for a number of years. Agencies have the discretion to require the retention of the original document containing the private matters as the agency record or to do as Sec. 1220.20(b)(2) allows.

One agency suggested adding three additional types of records to the list in Sec. 1222.22 that must be created and maintained. Two itemsdocumenting the National experience and contributing
substantially to scientific knowledgeare criteria that NARA uses in appraising records, and not separate categories of adequate documentation of agency business. The third itemdocumenting data on the observation of natural phenomenais specific to a subset of agencies and covered, we believe, in paragraph (a) on documenting the persons, places, things or matters dealt with by the agency.

An individual asked for clarification of a number of items, including the relationship of Sec. Sec. 1222.22 and 1222.24 to the requirement in Sec. 1220.30 to document essential transactions, whether there are agency activities that aren't included in the list in Sec. 1222.22, and whether all employees are agency officials. He suggested that agencies be required to identify essential transactions and that NARA recommend that agencies take a risk management approach to determine what is needed to ensure adequate and proper
documentation. Section 1222.22 specifies in broad terms the types of records that agencies must create and maintain in order to carry out their statutory responsibility (44 U.S.C. 3101, as cited in Sec. 1220.30) to ``make and preserve adequate and proper documentation of the organization, functions, policies, decisions, procedures and essential transactions of the agency * * *.'' We believe that the wording of Sec. 1222.22 is sufficient to identify essential transactions as well as the other categories of information specified in 44 U.S.C. 3101. Section 1222.24 states how agencies are to carry out the responsibilities in Sec. 1220.30.

One agency recommended incorporating language from Sec. 1224.10(d) relating to addressing records management requirements during the planning stages of an information technology system in Sec. Sec. 1222.24 or 1222.26, or both. We did not adopt this comment. The provision is explicitly addressed in Sec. 1220.34(d) and (e) and Sec. 1236.12.

One commenter suggested adding a requirement to Sec. 1222.28 to create documentation of email, phone calls, etc. We believe that Sec. 1222.26, when taken in conjunction with Sec. 1222.28, provides this requirement. Section 1222.26 is focused on maintenance requirements. The commenter also suggested that Sec. 1222.28(e) should focus on determining and standardizing the retention of working files for specific types of transactions rather than determining which working files are records; we did not adopt this suggestion. We agree with his premise that working files necessary to conduct the work of the agency should meet the definition of a record; this paragraph is requiring agencies to identify what working files meet the conditions in Sec. 1222.12(c) to be a record. Determining and standardizing the retention of working files for specific types of transactions should be done in conjunction with the scheduling process prescribed in part 1225.

Two agencies and one individual commented on Sec. 1222.32. One agency stated that the language is clear and unambiguous, while the other agency asked for additional stronger language in several areas, including regarding when contractor records belong to the government, the authority of record managers to determine whether contract records belong to the government, and that contractors must follow agency records management requirements. We believe that these issues are clearly addressed in Sec. Sec. 1222.32(b), (a)(3), and (a)(2), respectively. The agency also asked for a statement that all records created or stored on government networks are the property of the government and to have a sample list of the types of contractor records the government has no interest in. We also did not adopt these comments. As we noted previously with the comment on telework policy, policies relating to storing records on government networks should be addressed in the agency controls over creation, maintenance and use of records in the conduct of current business (see Sec. Sec. 1220.30(c)(1) and 1220.32). There is no single list of examples of contractor records that would be applicable to all contracts.

The individual recommended that we modify the language of Sec. 1222.32(a)(4) to read ``* * * sufficient technical documentation to permit understanding and use of the records and data,'' because ``use'' alone could be very narrowly interpreted. We have made this change.

One agency commented that Sec. 1222.34(d) should include a requirement to ensure that electronic records are migrated to future technology to ensure their readability.
[[Page 51007]]
We did not adopt this comment. Paragraph (b) of this section requires agencies to maintain electronic records in accordance with 36 CFR part 1236; one of the requirements in part 1236 addresses migration. In response to a comment from an individual, we have modified Sec. 1222.34(f) to reference Sec. 1222.16, which calls for electronic nonrecord material to be segregable from electronic records. Comments on Part 1223Managing Vital Records

One comment noted that this part makes no reference to records safety procedures that should be followed in the daytoday operations of an agency. Such procedures are addressed in other parts; part 1223 concerns the agency vital records program that is part of the agency's continuity of operations program (COOP). Two agencies noted that Federal Preparedness Circular (FPC) 65 has been superseded by Federal Continuity Directives (FCD) 1 and 2 in February 2008. We have updated the references in Sec. Sec. 1223.1 and 1223.14.

One agency suggested adding to the definition of legal and financial rights records in Sec. 1223.2 such examples as memorandums of understanding and host tenant agreements. We believe that the additional examples are not required.

One agency noted confusion with the statement in Sec. 1223.16 that the information content determines which records series and electronic systems are vital records, and that only the most recent and complete sources of the information are vital records. Vital records are a subset of the agency's records that are needed for the agency to be able to operate in an emergency or under COOP conditions.

One agency recommended providing more explicit detail in Sec. 1223.22 for the requirement that vital records dispersal sites must be ``a sufficient distance away so as not to be subject to the same emergency.'' It is not feasible for NARA to establish more specific criteria, such as ``close enough for staff to access and retrieve records within 12 hours'' which the agency suggested. Agencies must determine what dispersal distances and retrieval requirements will address their needs, as identified in their continuity plans. Comments on Part 1224Records Disposition Programs

Two agencies commented on Sec. 1224.10. One agency suggested that records management program promotion activities should be given more emphasis, either here or in Sec. 1220.34; we did not adopt this suggestion. We note that Sec. 1224.10(e) and Sec. 1220.34(f) require agencies to provide training and guidance to all employees on records management responsibilities. Another agency asked that Sec. 1224.10(b) state the time frame for dissemination of records schedules and General Records Schedules (GRS), noting that Sec. 1226.12(a) gives a time limit of six months. We have added a reference to that section. Comments on Part 1225Scheduling Records

We received comments from three agencies and an editorial comment from an individual on Sec. 1225.12. One agency asked where additional NARA guidance could be found; we added the URL for the NARA Web site. One agency asked for additional step by step guidance for scheduling and how GRS 20, Electronic Records, applies; such guidance is available in the Disposition of Federal Records handbook and other NARA guidance referenced in the introductory paragraph. A third agency asked for clarification of the phrase ``flexible retention period'' in paragraph (d); the details of this are provided in the NARA guidance described in the introductory paragraph to the section. This agency also asked for clarification of the wording for media neutral schedules; in response to that comment we have made a minor edit. We also made a minor edit to paragraph (i) in response to an individual's comment.

We made two changes to Sec. 1225.14(b)(2) in response to agency comments. To reflect that new schedules are media neutral, unless the agency proposes otherwise, we modified Sec. 1225.14(b)(2)(ii) to read ``Physical type, if appropriate;'' and clarified what we meant by arrangement statement in Sec. 1225.14(b)(2)(iv).

We modified Sec. 1225.14(b)(3)(i) to add ``if appropriate, the time period for retiring inactive records to an approved records storage facility'' at the suggestion of an agency records officer. A similar statement is already provided for temporary records in Sec. 1225.16. The records officer also suggested adding the statement where a permanent records series is nonrecurring; we believe that the existing choices of immediate transfer to the National Archives of the United States or transfer at a set date in the future are sufficient.

We clarified the language in Sec. 1225.14(c) after reviewing a comment on the wording of subparagraph (c)(2). We did not adopt the comment to require submission of a revised Standard Form (SF) 115 within one year after an SF 115 item is withdrawn.

One agency expressed concern with the requirement to schedule agency Web sites in Sec. 1225.22(h), noting that the requirement creates a burden on NARA and agencies. We note that this requirement is consistent with both the Managing Web Records guidance issued in January 2005 and the NARA Bulletin 200602, which implemented section 207(e) of the EGovernment Act. Another agency asked how paragraph (h)(4) differs from the guidelines in GRS 20 regarding the applicability of GRS to electronic records and when an SF 115 must be submitted. Paragraph (h)(4) is the NARA policy. The revised GRS 20 is the specific disposition authority for agencies to use for specific types of records described in the individual GRS items.

Two agencies raised questions about the application of the notification requirement in Sec. 1225.24(a) for permanent records. One agency asked when the agency is required to notify NARA if only some electronic case files are permanent. The requirement is to notify NARA in writing that the series is now maintained electronically; we have clarified the wording. Another agency interpreted the requirement to notify NARA within 90 days of when an electronic recordkeeping system for permanent records becomes operational as being contrary to the guidance in NARA Bulletin 200602, which requires agencies to schedule previously unscheduled electronic systems and records by October 1, 2009. We have clarified with the agency that if the conditions in paragraph (a)(1) apply, the agency may notify NARA in accordance with that paragraph rather than submit a new SF 115.

An agency records officer suggested that we explicitly state in Sec. 1225.26 that a new SF 115 is not required as the form of written request to extend the time period that permanent record remain in agency custody. We have added a sentence to that effect. He also questioned the need to submit an SF 115 if the agency needs to increase the retention period for a series of temporary records, suggesting that a notification should be sufficient. While NARA has relaxed the requirements for NARA approval of temporary increases in retention to meet special circumstances (see Sec. 1226.18), we believe that ongoing application of a different retention period than what NARA approved on the SF 115 requires NARA review.

Comments on Part 1226Implementing Disposition

An agency records officer asked that we modify the time limit in Sec. 1226.12
[[Page 51008]]
for issuing new approved disposition authorities to allow 1 year for dissemination; we did not adopt this comment. The current 6 month requirement has been in effect for a number of years. Because the new disposition authorities go into effect on NARA approval, we believe that prompt dissemination to agency staff is necessary.

Two comments asked why an agency must inform NARA about the need to maintain records longer than the retention period in the case of legal holds. We have removed this notification requirement from Sec. 1226.20. We remind agencies that they must ensure that records in records storage facilities, including any NARA Federal records centers, are retained for the duration of the legal hold, as paragraph (c) of this section states.

Two comments addressed the requirements in Sec. 1226.24 for destroying temporary records through sale as waste paper or salvage. One comment asked that we explicitly identify the actions in paragraphs (a)(1) and (a)(2) as recycling; we do not believe this is necessary. One agency noted that this may not be feasible for overseas bases and that an agency may want its personnel to destroy security classified records. We have modified paragraph (b)(1) to clarify that the agency or its wastepaper contractor may be the responsible party.

We did not adopt a comment on Sec. 1226.26 to reduce the information required to request approval to donate disposable temporary records to appropriate recipients. NARA needs this information to make its determination. We note that the provisions of this section have been in place for more than 10 years.

Comments on Part 1227General Records Schedules

We received two comments on this part. One comment concerned whether NARA issues General Records Schedules (GRS) covering permanent records; we do. The other comment suggested that the time period for notifying NARA that an agency wishes to continue to use an agency specific records schedule in lieu of the GRS be changed from 90 days to 1 year. We extended the notification period to 4 months; the revised time frame will still enable the agency to disseminate the newly issued GRS to agency staff within the time limits specified in Sec. 1226.12 should a decision be made to no longer use the agencyspecific schedule item.
Comments on Part 1228Loan of Permanent and Unscheduled Records

One agency suggested that we specifically address loan of temporary records. We have added a new Sec. 1228.8, Do loans of temporary records require NARA approval? with a clear statement that NARA approval is not required for loan of temporary records, but that agencies must maintain their own controls over such loans.

We received two comments on Sec. 1228.14 regarding the time frames in which NARA will act on requests to loan permanent records. One agency suggested that NARA should be able to act on a request within 15 days; an individual suggested that we provide a time frame for denying requests. In this final rule, the time frames for approving or denying loans of original permanent or unscheduled records are set as within 30 days. Where NARA can act more quickly, we will.

One agency noted that it must loan medical records routinely to another agency; while these records are currently scheduled as temporary records, we recognize that there may be a few instances where agencies cannot provide copies in lieu of original permanent records. Therefore, we have modified this section by adding a new paragraph (b) to allow an agency to prepare an annual loan agreement covering multiple transfers from the same series of records to another single Federal agency.
Comments on Part 1229Emergency Authorization To Destroy Records

We received three comments on this part. We made two editorial revisions to Sec. 1229.10 in response to comments``the Archivist'' has been replaced by ``NARA'' and we made the references to ``continuing menace to human health or life, or to property'' consistent in the section title, introductory paragraph, and paragraph (a) of Sec. 1229.10. One agency nonconcurred with the introductory paragraph, which is taken directly from 44 U.S.C. 3310; the agency also asked that NARA impose a 72hour limit on responding to an agency request. NARA will respond quickly to urgent requests, as we have demonstrated with Hurricane Katrina records in the past, and we do not believe that the rule needs to include a specific short timeframe. We also did not adopt the suggestion from another agency that the wording of Sec. 1229.12 should specify ``scientific records'' as a category of records lacking sufficient value to warrant continued preservation when the space they occupy is urgently needed for military purposes. We believe that the current wording, taken from 44 U.S.C. 3311, would cover such scientific records under the category of ``other value.'' Comments on Part 1230Unlawful or Accidental Removal, Defacing, Alteration, or Destruction of Records

One agency noted that the language in Sec. 1230.10 more closely tracked 44 U.S.C. 3106 and asked if the new wording increased liability for agency heads and records officers. The regulation now more clearly states what have always been the agency responsibilities under 44 U.S.C. 3106. Another agency claimed that Sec. 1230.14 should require NARA Federal Records Center staff to report loss of records in Federal Records Center space to NARA (NWM). We did not modify the section. It is the responsibility of the agency to report all instances of accidental or unlawful removal, defacing, alteration or destruction of its records. If records are damaged (e.g., water leaks or fire) while in NARA Federal Records Center space, the records center will notify the customer agency which will in turn notify NWM.
Comments on Part 1232Transfer of Records to Records Storage Facilities

One agency raised concerns with Sec. 1232.18(h), which requires agencies to provide access to appropriate NARA staff to records in records storage facilities in order to conduct inspections or process SF 115s. Their concerns center on access to security classified records. No change is required in the regulation. The NARA staff would have the appropriate clearances and access would be requested and conducted in accordance with all regulations governing access to national security classified information or other restricted information (e.g., IRS or Census records). This is an existing requirement in 36 CFR 1228.154(e) and is based on the statutory authority in 44 U.S.C. 2906.
Comments on Part 1233Transfer, Use, and Disposition of Records in a NARA Federal Records Center

We have deleted a paragraph from Sec. 1233.10 in this final rule as unnecessary and potentially confusing. The paragraph in the proposed rule stated that NARA Federal Records Centers may accept contaminated records. Any decision on whether specific contaminated records may be transferred to a Federal Records Center will be addressed in the agency agreement with NARA.

One agency commented on Sec. 1233.14(b) that all active duty [[Page 51009]]
outpatient records are transferred to the VA Records Center at the time of the discharge of the member from active duty. We have modified paragraph (b) to reflect this exception.

One agency requested that Sec. 1233.16 provide additional detailed guidance on transferring Official Personnel Folders (OPFs) to the National Personnel Records Center (NPRC). The Office of Personnel Management is the agency responsible for OPFs and their transfer requirements. We updated the URL for the Guide to Personnel Recordkeeping. Another agency objected to the statement in Sec. 1233.20(a) that NPRC does not send a disposal notice to the transferring agency before destroying records covered in General Records Schedules (GRS) 1 and 2. The records addressed by paragraph (a) and GRS 1 and 2 belong to the Office of Personnel Management, not the transferring agency.
Comments on Part 1235Transfer of Records to the National Archives of the United States

One agency suggested that we add a section concerning pre accessioning (early physical transfer to NARA) of permanent electronic records. We did not adopt this comment because the cases where pre accessioning can be considered is currently limited and the nature of the program may change as the Electronic Records Archives (ERA) matures and the NARA Federal Records Center Program adds to its electronic records storage services.

Another agency expressed concerns that the proposed Sec. 1235.16 would lessen the ability of agencies with national security classified information to exempt particularly sensitive classified information from transfer to NARA. The conditions for agency retention of records that are more than 30 years old have been in place since 1992 and remain unchanged. We did, however, add a section with timeframes for NARA action on agency requests. An individual recommended that we add a timeframe to Sec. 1235.22 for acting on submitted SF 258s; we did not adopt this comment because the timeframes needed will depend on the types and volumes of records transferred and whether we must clarify information with the transferring agency.

Another agency asked that we add to Sec. 1235.32(b)(1) examples of the restrictions on records; we did not adopt this comment because paragraph (c) of that section directs readers to 36 CFR part 1256, which covers restrictions that NARA imposes.

Several comments addressed the Subpart C provisions for transfer of records in electronic and other special media formats. We made editorial edits to refer consistently to ``digital geospatial data.'' We have clarified the use of DVDs for transfer of electronic sound recordings (Sec. 1235.42(e)) and when Tape Archive (TAR) utility can be used for transferring electronic records (Sec. Sec. 1235.46 and 1235.50). We also restored to Sec. 1235.46(b)(3) a table for the standards to be used in conjunction with DLT tape cartridges that was inadvertently omitted from the proposed rule. The table is the same as in the previous regulation at Sec. 1228.270(c)(1)(iii). We also added to Sec. 1235.50(d) the use of XML markup language.

One agency objected to the specifications in Sec. 1235.50 for electronic records, stating that this goes against NARA's ERA vision. The ERA vision statement accurately reflects NARA's view of the functionality of the system when ERA is fully deployed. This CFR provision reflects the reality of what NARA can accept today. As ERA is able to accept additional record formats in future increments, we will further revise this section.

Comments on Part 1236Electronic Records Management

One comment from the former agency records management official recommended that most of part 1236 should be combined with part 1222. He argued that this would provide the medianeutral approach that ISO 154891 has adopted and that most of the requirements of part 1236 apply to all recordkeeping systems. While we agree that the fundamental concepts applicable to managing records are the same regardless of media, we believe that specifying the requirements for electronic records management in a separate part is still helpful to agencies. We note that Sec. 1236.6 clearly requires agencies to incorporate management of electronic records into the records management activities required by parts 12201235.

Two agencies asked whether the requirements in Sec. Sec. 1236.10, 1236.20, 1236.22 and 1236.24 are applicable to all systems that maintain electronic records, including transitory email records. We have clarified Sec. 1236.24 to state that transitory email may be managed as specified in Sec. 1236.22(c). The agencies also asked about the difference between structured and unstructured records and whether a record created using an email system is always considered an unstructured record. Structured records, such as database records, have predetermined data types and understood relationships. The definition of ``unstructured record'' specifies that records created using electronic mail and other messaging applications are considered unstructured records; this is because email records may contain attachments that are unstructured in format. Finally, they asked how to manage transitory email records in accordance with Sec.
1236.22(c)(2). This provision has not changed since it was established in 2006 and allows agencies to maintain and delete transitory (i.e., with a retention period of 180day or less retention) email records from their live email systems without transferring these records to a recordkeeping system if certain conditions are met. The agency would use GRS 23, item 7 or a NARAapproved agency schedule that covers such email records as the disposition authority.

In response to one agency's concern that agencies may not consider the need to migrate electronic records that have been sent to offline or offsite storage areas, we have added a new Sec. 1236.14(c) to emphasize that this section applies to such records. Another agency expressed a view that it is not feasible for all agencies to continuously migrate electronic media to current formats. The section requires agencies to plan and take actions to ensure their electronic records are usable for their full agency retention period; agencies are given flexibility as to how they do this.

One agency suggested that NARA provide a list of metadata elements in both Sec. Sec. 1236.12 and 1237.28 pertaining to content, context, and structure of electronic information. We did not adopt this suggestion. While Sec. 1236.22(a)(1) specifies certain minimum metadata that must be preserved for email records, each agency must identify for itself what metadata is needed to meet agency business needs.

One agency argued that the printandfile method of recordkeeping cannot always capture a complete record; we agree and Sec. 1236.24(b) requires agencies to establish policies and issue instructions to ensure capture of any pertinent hidden text or structure relationships that the agency identifies as required for its business needs. We disagree with the agency's view that part 1236 should not apply to temporary records if an agency risk analysis supports using a method for managing electronic records that best meets its business needs even though it might not meet every records management requirement. [[Page 51010]]
Comments on Part 1237Audiovisual, Cartographic, and Related Records Management

One agency suggested adding ``orthophoto images'' to the list of cartographic records in Sec. 1237.3 and expanding paragraph (b) of that section to address aerial observations that are not filmbased. We adopted the first suggestion; we will consider specific coverage of other aerial observation records in a future rulemaking. Another agency asked if Sec. 1237.12 applies to only records created in the future. We note that the previous NARA regulations on permanent audiovisual records (36 CFR 1232.20(a) and 1228.266) already require agencies to be able to transfer the same record elements that are cited in this section. We added the elements to part 1237 so that agencies are aware of what they eventually will need to transfer to the National Archives of the United States.

In response to comments from two agencies, we corrected the wording in Sec. 1237.14 to state that disposition instructions should provide for early transfer of permanent audiovisual, cartographic, and related records. One agency asked for more guidance in Sec. Sec. 1237.22(f) and 1237.28(b); those sections advise agencies to contact specific NARA organizations for additional assistance.

Comments on Part 1239Program Assistance and Inspections

As noted earlier in this Supplementary Information, we added a new final sentence to Sec. 1239.20 addressing reporting to Congress and the Office of Management and Budget on inspections.

Other Changes in This Final Rule From the Proposed Rule

In addition to the changes to the proposed rule discussed in previous sections of this SUPPLEMENTARY INFORMATION, we have revised language relating to the incorporation by reference (IBR) of standards throughout to meet the Office of the Federal Register's requirements; corrected erroneous cross references to other sections; and, as announced in the proposed rule, added as part 1234, Facility Standards for Records Storage Facilities, the regulatory text of the previous 36 CFR part 1228, subpart K and the two appendixes to the previous 36 CFR part 1228. We also made other minor, nonsubstantive editorial corrections.

Regulatory Impact

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 (OMB). 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 this regulation will affect Federal agencies. 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.

Appendix to the PreambleDerivation Table

The following derivation table is provided as a convenience to readers to assist them in locating where each piece of the revised material in this final rule comes from. This table will not be published in the Code of Federal Regulations. It will be available on NARA's Web site at http://www.archives.gov/about/regulations/ subchapter/b.html.
Notes on significant New section Old section policy changes Part 1220 Part 1220
1220.1........................ 1220.1...........
1220.2........................ 1220.10..........
1220.3........................
1220.10....................... 1220.2...........
1220.12....................... ................. New summary of NARA responsibilities. 1220.14....................... 1220.12..........
1220.16....................... ................. New explicit statement that the regulations cover Federal records. 1220.18....................... 1220.14.......... Terms that were added:
Disposition authority. Electronic record. Information system. Personal files. Retention period. Terms that were substantively revised: Documentary materials. Records schedule. 1220.30....................... 1220.30; 1222.10
(b) and (c).
1220.32....................... 1220.341220.38.. Added reference to continuity of operations. 1220.34....................... ................. Comprehensive high level list of responsibilities across the records lifecycle drawn from old Sec. Sec. 1220.40, 1228.42, 1222.20, and 1228.12. Part 1222 Part 1222
1222.1........................ 1222.10..........
1222.2........................
1222.3........................
1222.10....................... 1222.12..........
1222.12....................... 1222.34(a)(d)...
1222.14....................... 1222.34(f).......
1222.16(a).................... 1222.30(b).......
1222.16(b).................... ................. New; previous covered in NARA guidance. 1222.18....................... 1222.42.......... Substantive change in policy. 1222.20....................... 1222.36..........
1222.22....................... 1222.38..........
1222.24....................... 1222.32..........
[[Page 51011]]
1222.26....................... ................. New; previous covered in NARA guidance. 1222.28....................... ................. New; previous covered in NARA guidance. 1222.30....................... 1222.46..........
1222.32....................... 1222.48.......... Substantively expanded. 1222.34....................... 1222.50..........
Part 1223 Part 1236
1223.1........................ 1236.12.......... Updated references. 1223.2........................ 1236.14..........
1223.3........................
1223.10....................... 1236.10..........
1223.12....................... 1236.20
Introductory
paragraph.
1223.14....................... 1236.20(a)(d)...
1223.16....................... 1236.22..........
1223.18.......................
1223.20....................... 1236.24..........
1223.22....................... 1236.26..........
1223.24....................... 1236.28..........
Part 1224 Part 1228 Subpart
A
1224.1........................ 1228.10..........
1224.2........................
1224.3........................
1224.10....................... 1228.12..........
Part 1225 Part 1228 Subpart
B
1225.1........................
1225.2........................
1225.3........................
1225.10....................... ................. New statement of long standing policy that all records must be scheduled. 1225.12....................... 1228.22.......... Updated with NARA guidance on conducting functional or work process analysis and flexible scheduling. 1225.14....................... 1228.28..........
1225.16....................... 1228.30..........
1225.18....................... 1228.22 and
1228.24.
1225.20....................... 1228.22(f).......
1225.22....................... 1228.31(a)....... Comprehensive listing of situations when new SF 115 is needed drawn from multiple other sections. 1225.24....................... 1228.31(b).......
1225.26....................... 1228.32..........
Part 1226 Part 1228 Subpart
B
1226.1........................
1226.2........................
1226.3........................
1226.10....................... 1228.50
introductory
paragraph.
1226.12....................... 1228.50(a)(1)(4) Substantive change in and (d). policy. 1226.14....................... 1228.50 (c)...... Substantive change in policy. 1226.16....................... 1228.52..........
1226.18....................... 1228.54(a).......
1226.20....................... 1228.54(c).......
1226.22....................... 1228.56..........
1226.24....................... 1228.58 (b) and
(c).
1226.26....................... 1228.60..........
Part 1227 Part 1228,
Subpart C
1227.1........................
1227.2........................
1227.3........................
1227.10....................... 1228.40..........
1227.12....................... 1228.42.......... Deadlines changed. 1227.14....................... 1228.46..........
Part 1228 Part 1228,
Subpart E
1228.1........................
1228.2........................
1228.10....................... 1228.72.......... Substantive change in policy. 1228.12....................... 1228.74..........
[[Page 51012]]
1228.14....................... 1228.76..........
1228.16....................... 1228.78..........
Part 1229 Part 1228,
Subpart F
1229.1........................
1229.2........................
1229.3........................
1229.10....................... 1228.92(a).......
1229.20....................... 1228.94..........
Part 1230 Part 1228,
Subpart G
1230.1........................
1230.2........................
1230.3........................ ................. Added definitions Alteration, Deface, Removal and Unlawful or Accidental Destruction. 1230.10....................... 1228.100.........
1230.12....................... 1228.102.........
1230.14....................... 1228.104(a)......
1230.16....................... ................. New section on NARA actions. 1230.18....................... 1228.104(c)......
Part 1231 Part 1228,
Subpart H
1231.1........................ 1228.120.........
1231.2........................
1231.10....................... 1228.122.........
1231.12....................... 1228.124 and
1228.126.
1231.14....................... 1228.128.........
1231.16....................... 1228.134.........
1231.18....................... 1228.136.........
Part 1232 Part 1228,
Subpart I
1232.1........................
1232.2........................
1232.3........................
1232.10....................... 1228.150.........
1232.12....................... 1228.152.........
1232.14(a).................... 1228.154(a)......
1232.14(b).................... 1228.154(b)......
1232.14(c).................... 1228.154(c)
introductory
paragraph.
1232.14(d).................... 1228.154(d)
introductory
paragraph.
1232.16....................... 1228.154(c)(1)(c
)(2) and (d)(1)
(d)(2).
1232.18....................... 1228.154(e)(f)
and 1228.156.
Part 1232 Part 1228,
Subpart J
1233.1........................
1233.2........................
1233.3........................
1233.10....................... 1228.160(a), (d),
(e).
1233.12....................... 1228.162.........
1233.14....................... 1228.164......... Added military medical treatment files.
1233.16....................... 1228.166......... Added military medical treatment files.
1233.18....................... 1228.168......... Significant updates. 1233.20....................... 1228.170.........
Part 1234 Part 1228, Note: The only Subpart K changes between the old and new sections are the section numbers and revised IBR language for Sec. 1234.3. 1234.1........................ 1228.220.........
1234.2........................ 1228.222.........
1234.3........................ 1228.224.........
1234.4........................ 1228.226.........
1234.10....................... 1228.228.........
1234.12....................... 1228.230.........
1234.14....................... 1228.232.........
1234.20....................... 1228.234.........
1234.22....................... 1228.236.........
1234.24....................... 1228.238.........
[[Page 51013]]
1234.30....................... 1228.240.........
1234.32....................... 1228.242.........
1234.34....................... 1228.244.........
Appendix A to Part 1234....... Appendix A to
Part 1228.
Appendix B to Part 1234....... Appendix B to
Part 1228.
Part 1235 Part 1228.
Subpart L
1235.1........................ 1228.260.........
1235.2........................
1235.3........................
1235.4........................
1235.10....................... 1228.262(a)
introductory
text.
1235.12....................... 1228.262 (a)(1)
(a)(2).
1235.14....................... 1228.264(a) NARA approval and(c)(1)(c)(6). requirement added. 1235.16....................... 1228.264(d)...... NARA approval requirement added. 1235.18....................... 1228.272(a)......
1235.20....................... 1228.274(a)......
1235.22....................... 1228.272(c)......
1235.30....................... 1228.280(a)......
1235.32....................... Tracks current
1228.274(b) and
(c).
1235.34....................... 1228.282.........
1235.40.......................
1235.42....................... 1228.266 and Added digital 1228.268. photographic and geospatial data records. 1235.44....................... 1228.270(b)......
1235.46....................... 1228.270(c)......
1235.48....................... 1228.270(e)......
1235.50....................... 1228.270(d)...... Significant updates. Part 1236 Part 1234
1236.1........................
1236.2........................ ................. Added definitions Unstructured electronic records, metadata. 1236.6........................ 1234.10..........
1236.10.......................
1236.12.......................
1236.14.......................
1236.20.......................
1236.22....................... 1234.24..........
1236.24.......................
1236.20(a).................... 1234.10(m).......
1236.26(b).................... 1234.20(b).......
1236.28....................... 1234.30.......... Significant updates. Part 1237 Part 1232
1237.1........................ ................. Includes cartographic records management. 1237.2........................
1237.3........................ ................. Added definitions: Aerial photographic records Architectural and engineering records Cartographic records. 1237.4........................
1237.10....................... 1232.20(a) and Added cartographic (d). records management. 1237.12....................... ................. Reflects transfer requirements from 1228.266. 1237.14.......................
1237.16....................... 1232.26(a), (c) Significant updates. (e).
1237.18....................... 1232.26(b)....... Significant updates. 1237.20....................... 1232.28..........
1237.22.......................
1237.24.......................
1237.26....................... 1232.30..........
1237.28.......................
1237.30....................... 1232.22 and
1232.24.
Part 1238 Part 1230
1238.1........................ 1230.1...........
1238.2........................ 1230.2...........
1238.3........................ 1230.4...........
1238.4........................
1238.5........................ 1230.3...........
1238.10....................... 1230.2(d)........
1238.12....................... 1230.12(a)(b)...
1238.14....................... 1230.14..........
[[Page 51014]]
1238.16....................... 1230.16..........
1238.20....................... 1230.20..........
1238.22....................... 1230.22..........
1238.24....................... 1230.24..........
1238.26....................... 1230.26..........
1238.28....................... 1230.28..........
1238.30....................... 1230.30..........
1238.32....................... 1230.10..........
Part 1239 Part 138 and Part
1220,
Subpart C.......
1239.1........................ 1220.50..........
1239.2........................
1239.3........................ ................. Added definition of Inspection. 1239.4........................
1239.10....................... 1238.1...........
1239.12....................... 1238.2...........
1239.20....................... 1220.5...........
1239.22....................... 1220.54.......... Substantive change in policy and procedures for conducting inspections. 1239.24....................... 1220.56..........
1239.26....................... 1220.58.......... Substantive change in policy and procedures. List of Subjects in 36 CFR Chapter XII, Subchapter B

Archives and records, Incorporation by reference. For the reasons set forth in the preamble, NARA revises Subchapter B of chapter XII, title 36, Code of Federal Regulations, to read as follows: Chapter XIINational Archives and Records Administration
Subchapter BRecords Management
Part
1220 Federal Records; General
1222 Creation and Maintenance of Federal Records
1223 Managing Vital Records
1224 Records Disposition Program
1225 Scheduling Records
1226 Implementing Disposition
1227 General Records Schedules
1228 Loan of Permanent and Unscheduled Records

FOR FURTHER INFORMATION CONTACT

Laura McCarthy at phone number 301- 8373023 or fax number 3018370319.