[Federal Register Volume 60, Number 109 (Wednesday, June 7, 1995)]
[Rules and Regulations]
[Pages 29989-29992]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13951]
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NATIONAL ARCHIVES AND RECORDS ADMINISTRATION
36 CFR Part 1236
RIN 3095-AA51
Management of Vital Records
AGENCY: National Archives and Records Administration.
ACTION: Final rule.
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SUMMARY: This regulation revises NARA regulations on Federal agencies'
management of vital records in order to place the vital records program
in the context of agency emergency management responsibilities. The
vital records program is intended to ensure continuity of agency
operations and protect rights of citizens and the Government. The
regulation affects all Federal agencies.
EFFECTIVE DATE: This rule is effective June 7, 1995.
FOR FURTHER INFORMATION CONTACT: Mary Ann Hadyka or Nancy Allard at
301-713-6730.
SUPPLEMENTARY INFORMATION: NARA published a notice of proposed
rulemaking on May 31, 1994 (59 FR 28033) for a 60-day comment period.
The proposed rule expanded the vital records program to incorporate
contingency planning and records disaster mitigation and recovery.
Twenty written comments were received. It was clear that the extension
of the regulation on vital records to a broader context was perceived
by the agencies to be confusing, redundant, and burdensome.
Consequently, NARA has revised the regulation to limit its application
to vital records responsibilities, in the context of the larger
emergency management program. Additional information will be provided
in a forthcoming NARA management guide. The guide will provide more
detail on vital records program planning, identifying vital records,
training agency staff, and assessing records damaged in an emergency or
disaster to determine what steps, if any, should be taken to recover
the information in them. Its provisions will be advisory, rather than
mandatory.
Following is a section-by-section discussion of the major issues
raised in the written comments.
Section-by-Section Analysis
Section 1236.10 Purpose
One agency thought that vital records should be presented as part
of the disaster recovery program, rather than the reverse. Another
agency recommended that the rule clarify the relationship between
contingency planning, vital records, and records disaster mitigation
and recovery. This section has been modified to reflect the revised
scope of the regulation.
Section 1236.12 Authority
NARA reconsidered the authorities cited for this regulation and
deleted 44 U.S.C. 3105 because that section of the law relates to
unauthorized disposal. It supports the records disposition regulations
at 36 CFR 1228 and has no direct relationship to regulations on vital
records.
Section 1236.14 Definitions
One agency noted that the definition of contingency planning
actually described risk analysis. Another agency recommended that the
definition of emergency operating records be modified to clearly cover
records [[Page 29990]] needed to operate during and after an emergency
in addition to records containing procedures for operating during an
emergency. That agency also suggested that the definition of records
disaster mitigation and recovery was too broad and recommended that it
be clearly limited to emergency situations. The definitions of
contingency planning and emergency operating records have been revised.
In response to a third agency recommendation, the definition of off-
site was added. NARA changed rights-and-interests records to legal and
financial rights records because the latter term is more precise. The
definitions of emergency coordinator, hazard, and vital records
manager, were deleted because they are not used in the revised
regulation.
Sections 1236.20 through 1236.24
These sections, originally proposed to cover contingency planning,
have been deleted. Contingency planning for emergencies is adequately
covered in FEMA issuances such as the ``Federal Response Planning
Guide, Continuity of Operations (COOP) Planning Guidance (FRPG 01-
94).''
Section 1236.30 Vital Records Program
Six agencies questioned one or more of the elements of the vital
records program described in this section, including issuance of a
separate directive for the program, establishing a separate position
for the vital records manager, providing training, and conducting
annual reviews. NARA did not intend this section to require separate
directives, full-time positions, elaborate training, or burdensome
reviews. Management of vital records should be the responsibility of
the agency records manager. It is one of many records management
functions that should be addressed in agency records management
directives, training, and program reviews. This section was modified to
include only the basic requirements relating specifically to vital
records.
Section 1236.32 Identifying, Using and Protecting Vital Records
This section has been divided into three sections, now designated
Sec. 1236.22, Sec. 1236.24, and Sec. 1236.26. One agency recommended
that the inventory of vital records be integrated into the records
scheduling process. NARA did not intend that this inventory necessarily
duplicate inventorying for scheduling. Section 1236.22 clarifies that
point, and further explanation will be provided in the forthcoming
guide. Another agency suggested that common vital records be so
designated in the General Records Schedules. NARA declines to accept
this suggestion because many vital records common to many agencies are
permanent and therefore not in the General Records Schedules (GRS).
Many other vital records are unique to individual agencies. As vital
records are identified in the course of contingency planning, NARA
believes it inappropriate to mandate that specific series in the GRS be
treated as vital records.
One agency recommended that this section more clearly address
electronic records and security backup copies. In particular, the
agency asked if electronic records could be regarded as the vital
record copy, even if it is not an exact duplicate. In Sec. 1236.22,
NARA modified the regulation to clarify that it is the informational
content, not the form, of the records that must be considered. Also,
Sec. 1236.26 indicates that copies of electronic records created for
security purposes are adequate for protecting vital information, even
if the copies include records not containing vital information.
Additional guidance on electronic records will be provided in the
forthcoming guide.
Two agencies raised questions about copies of vital records, and
one recommended a risk analysis to determine whether duplication is
necessary. Section 1236.24 clarifies that agencies determine when
copies are needed.
Several agencies questioned the restriction on use of Federal
Records Centers (FRC's) to copies of legal and financial rights
records. We have modified the rule at Sec. 1236.26(c) to allow agencies
to store emergency operating records at FRC's under certain conditions.
One agency pointed out that not all vital record copies are cycled,
and two agencies stated that the disposition of the copies may not be
the same as the originals. This rule was clarified on these points.
Sections 1236.40 and 1236.42 Records Disaster Mitigation and Recovery
Program
Three agencies found Sec. 1236.40, Records protection, confusing in
relation to the scope of the records protection plan. Three agencies
raised questions about the scope of Sec. 1236.42, Elements of a records
disaster mitigation and recovery program. One recommended that the
program be integrated with information security plans and contingency
of operations plans. Another objected to the requirement that agencies
test records recovery programs for all offices. The third asked if a
plan was required for each series or for records in each medium. NARA
reconsidered the propriety of including this level of detail about the
broader emergency management program in its regulations on vital
records and deleted the entire section. NARA concluded that the
proposed regulation was confusing to agencies, duplicative of
requirements imposed by FEMA on emergency management and by GSA on
computer security, and unnecessarily burdensome.
The Administrative Procedures Act (5 U.S.C. 553(d)) provides that
the effective date of a final rule may be less than 30 days after
publication in the Federal Register when the rule relieves a
restriction. This rule will allow agencies to store their emergency
operating vital records in the Federal Records Centers. Previously,
only legal and financial rights vital records could be transferred to a
records center. Accordingly, we are making this final rule effective
immediately.
This rule is not a significant regulatory action for purposes of
Executive Order 12866 of September 30, 1993, and has not been reviewed
under the Order by the Office of Management and Budget. As required by
the Regulatory Flexibility Act, it is hereby certified that this rule
will not have a significant impact on small entities.
List of Subjects in 36 CFR 1236
Archives and records.
For the reasons set forth in the preamble, 36 CFR chapter XII is
amended by revising part 1236 to read as follows:
PART 1236--MANAGEMENT OF VITAL RECORDS
Subpart A--General
Sec.
1236.10 Purpose.
1236.12 Authority.
1236.14 Definitions.
Subpart B--Vital Records
1236.20 Vital records program objectives.
1236.22 Identification of vital records.
1236.24 Use of vital records and copies of vital records.
1236.26 Protection of vital records.
1236.28 Disposition of original vital records.
Authority: 44 U.S.C. 2104(a), 2904(a), 3101; E. O. 12656, 53 FR
47491, 3 CFR, 1988 Comp., p. 585.
Subpart A--General
Sec. 1236.10 Purpose.
This part prescribes policies and procedures for establishing a
program for the identification and protection of vital records, those
records needed by [[Page 29991]] agencies for continuity of operations
before, during, and after emergencies, and those records needed to
protect the legal and financial rights of the Government and persons
affected by Government activities. The records may be maintained on a
variety of media including paper, magnetic tape or disk, photographic
film, and microfilm. The management of vital records is part of an
agency's continuity of operations plan designed to meet emergency
management responsibilities.
Sec. 1236.12 Authority.
Heads of agencies are responsible for the vital records program
under the following authorities:
(a) To make and preserve records containing adequate and proper
documentation of the agency's organization, functions, policies,
procedures, decisions, and essential transactions, and to furnish
information to protect the legal and financial rights of the Government
and of persons directly affected by the agency's activities (44 U.S.C.
3101).
(b) To perform national security emergency preparedness functions
and activities (Executive Order 12656).
Sec. 1236.14 Definitions.
Basic records management terms are defined in 36 CFR 1220.14. As
used in part 1236:
Contingency planning means instituting policies and procedures to
mitigate the effects of potential emergencies or disasters on an
agency's operations and records. Contingency planning is part of the
continuity of operations planning required under Federal Preparedness
Circulars and other guidance issued by the Federal Emergency Management
Agency (FEMA) and Executive Order 12656.
Cycle means the periodic removal of obsolete copies of vital
records and their replacement with copies of current vital records.
This may occur daily, weekly, quarterly, annually or at other
designated intervals.
Disaster means an unexpected occurrence inflicting widespread
destruction and distress and having long-term adverse effects on agency
operations. Each agency defines what a long-term adverse effect is in
relation to its most critical program activities.
Emergency means a situation or an occurrence of a serious nature,
developing suddenly and unexpectedly, and demanding immediate action.
This is generally of short duration, for example, an interruption of
normal agency operations for a week or less. It may involve electrical
failure or minor flooding caused by broken pipes.
Emergency operating records are that type of vital records
essential to the continued functioning or reconstitution of an
organization during and after an emergency. Included are emergency
plans and directive(s), orders of succession, delegations of authority,
staffing assignments, selected program records needed to continue the
most critical agency operations, as well as related policy or
procedural records that assist agency staff in conducting operations
under emergency conditions and for resuming normal operations after an
emergency.
Legal and financial rights records are that type of vital records
essential to protect the legal and financial rights of the Government
and of the individuals directly affected by its activities. Examples
include accounts receivable records, social security records, payroll
records, retirement records, and insurance records. These records were
formerly defined as ``rights-and-interests'' records.
National security emergency means any occurrence, including natural
disaster, military attack, technological emergency, or other emergency,
that seriously degrades or threatens the national security of the
United States, as defined in Executive Order 12656.
Off-site storage means a facility other than an agency's normal
place of business where vital records are stored for protection. This
is to ensure that the vital records are not subject to damage or
destruction from an emergency or disaster affecting an agency's normal
place of business.
Vital records mean essential agency records that are needed to meet
operational responsibilities under national security emergencies or
other emergency or disaster conditions (emergency operating records) or
to protect the legal and financial rights of the Government and those
affected by Government activities (legal and financial rights records).
Vital records program means the policies, plans, and procedures
developed and implemented and the resources needed to identify, use,
and protect the essential records needed to meet operational
responsibilities under national security emergencies or other emergency
or disaster conditions or to protect the Government's rights or those
of its citizens. This is a program element of an agency's emergency
management function.
Subpart B--Vital Records
Sec. 1236.20 Vital records program objectives.
The vital records program is conducted to identify and protect
those records that specify how an agency will operate in case of
emergency or disaster, those records vital to the continued operations
of the agency during and after an emergency or disaster, and records
needed to protect the legal and financial rights of the Government and
of the persons affected by its actions. An agency identifies vital
records in the course of contingency planning activities carried out in
the context of the emergency management function. In carrying out the
vital records program agencies shall:
(a) Specify agency staff responsibilities;
(b) Ensure that all concerned staff are appropriately informed
about vital records;
(c) Ensure that the designation of vital records is current and
complete; and
(d) Ensure that vital records and copies of vital records are
adequately protected, accessible, and immediately usable.
Sec. 1236.22 Identification of vital records.
Vital records include emergency plans and related records that
specify how an agency is to respond to an emergency as well as those
records that would be needed to continue operations and protect legal
and financial rights. Agencies should consider the informational
content of records series and electronic records systems when
identifying vital records. Only the most recent and complete source of
the vital information needs to be treated as vital records.
Sec. 1236.24 Use of vital records and copies of vital records.
Agencies shall ensure that retrieval procedures for vital records
require only routine effort to locate needed information, especially
since individuals unfamiliar with the records may need to use them
during an emergency or disaster. Agencies also shall ensure that all
equipment needed to read vital records or copies of vital records will
be available in case of emergency or disaster. For electronic records
systems, agencies also shall ensure that system documentation adequate
to operate the system and access the records will be available in case
of emergency or disaster.
Sec. 1236.26 Protection of vital records.
Agencies shall take appropriate measures to ensure the survival of
the vital records or copies of vital records in [[Page 29992]] case of
emergency or disaster. In the case of electronic records, this
requirement is met if the information needed in the event of emergency
or disaster is available in a copy made for general security purposes,
even when the copy contains other information.
(a) Duplication. Computer backup tapes created in the normal course
of system maintenance or other electronic copies that may be routinely
created in the normal course of business may be used as the vital
record copy. For hard copy records, agencies may choose to make
microform copies. Standards for the creation, preservation and use of
microforms are found in 36 CFR part 1230, Micrographic Records
Management. The Computer Security Act of 1987 (40 U.S.C. 759, Pub. L.
100-235), OMB Circular A-130, and 36 CFR part 1234, Electronic Records
Management, and 41 CFR part 201, subchapter B, Management and Use of
Information and Records, specify protective measures and standards for
electronic records.
(b) Storage. When agencies choose duplication as a protection
method, the copy of the vital record stored off-site is normally a
duplicate of the original record. Designating and using duplicate
copies of original records as vital records facilitates destruction or
deletion of obsolete duplicates when replaced by updated copies,
whereas original vital records must be retained for the period
specified in the agency records disposition schedule. The agency may
store the original records off-site if protection of original
signatures is necessary, or if it does not need to keep the original
record at its normal place of business.
(c) Storage considerations. Agencies need to consider several
factors when deciding where to store copies of vital records. Copies of
emergency operating vital records need to be accessible in a very short
period of time for use in the event of an emergency or disaster. Copies
of legal and financial rights records may not be needed as quickly. In
deciding where to store vital records copies, agencies shall treat
records that have the properties of both categories, that is, emergency
operating and legal and financial rights records, as emergency
operating records.
(1) Under certain circumstances, Federal records centers (FRC's)
may store copies of emergency operating vital records. FRC's will store
small volumes of such records, but may not be able to provide storage
for large collections or ones requiring constant recycling of the vital
records, except under reimbursable agreement. Prior to preparing the
records for shipment, the agency must contact the FRC to determine if
the center can accommodate the storage requirements and return copies
in an acceptable period of time.
(2) The off-site copy of legal and financial rights vital records
may be stored at an off-site agency location or, in accordance with
Sec. 1228.156 of this chapter, at an FRC.
(3) When using an FRC for storing vital records that are duplicate
copies of original records, the agency must specify on the SF 135,
Records Transmittal and Receipt, that they are vital records (duplicate
copies) and the medium on which they are maintained. The agency shall
also periodically cycle (update) them by removing obsolete items and
replacing them with the most recent version, when necessary.
(4) Agencies that transfer permanent, original vital records
maintained on electronic or microform media to the custody of the
National Archives may designate such records as their off-site copy.
That designation may remain in effect until the information in such
transferred records is superseded or becomes obsolete.
Sec. 1236.28 Disposition of original vital records.
The disposition of original vital records is governed by records
schedules approved by NARA (see part 1228, Disposition of Federal
Records). Original records that are not scheduled may not be destroyed
or deleted.
Dated: May 30, 1995.
Trudy Huskamp Peterson,
Acting Archivist of the United States.
[FR Doc. 95-13951 Filed 6-6-95; 8:45 am]
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