E7-22376. Federal Records Management; Media Neutral Schedules

AGENCY:

National Archives and Records Administration

ACTION:

Final rule.

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 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 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

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

1. The authority citation for part 1228 continues to read as follows:

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

2. Amend § 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:

§ 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.

* * * * *

3. Add § 1228.31 to read as follows:

§ 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 § 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 § 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.