The National Archives and Records Administration Federal Records Management Regulations Laura McCarthy, NARA

NARA’s Federal Records Management Regulations NARA’s Revisions to the Federal Records Management Regulations found at 36 CFR Chapter XII, Subchapter B. 2

NARA’s Federal Records Management Regulations So where does all this begin and how does it happen? NARA revises or amends its regulations according to the procedures found in the the Administrative Procedures Act (APA), 1946, and other procedural statutes. Specifically found at 5 U.S.C. § 553 For our purposes , NARA’s rulemaking is “informal,” or “notice-and-comment” rulemaking 3

NARA’s Federal Records Management Regulations Additional requirements for rulemaking concerning Office of Management and Budget oversight: Paperwork Reduction Act originally created the Office of Information and Regulatory Affairs (OIRA) within OMB May be imposed by Executive Order (see Executive Order 12,866) 4

NARA’s Federal Records Management Regulations Where does it say NARA has the authority to do all this? Enabling Regulatory statute: 44 U.S.C. 2104: The Archivist shall prescribe such regulations as the Archivist deems necessary to effectuate the functions of the Archivist. Also the Federal Records Act of 1950, as amended, establishes the basis for records management programs in Federal agencies.  See 44 U.S.C. chapters 21, 29, 31, and 33. 5

NARA’s Federal Records Management Regulations NARA Statutory Authority: 44 U.S.C. Chapter 21, National Archives and Records Administration 44 U.S.C. Chapter 29, Records Management by the Archivist of the United States and by the Administrator of General Services 44 U.S.C. Chapter 31, Records Management by Federal Agencies 44 U.S.C. Chapter 33, Disposal of Records. 6

NARA’s Federal Records Management Regulations NARA’s Process for Revising Subchapter B Initial Advanced Notice of Public Rulemaking (ANPRM) in 2004 Federal Register (69 FR 12100) 3/15/2004 Open for comments until 5/14/2004 Provided Table of Contents with the proposed reorganization of the current regs and proposed headings for new sections 7

NARA’s Federal Records Management Regulations In the ANPRM, NARA identified several reasons for revising the regulations: Challenges of a changing recordkeeping environment Incorporate current standards and practices Reflect the lifecycle of records Re-write in accordance with plain language principles Make it easier for Federal agencies and records management contractors to follow our regulations 8

NARA’s Federal Records Management Regulations In response to the ANPRM, NARA received both specific and general comments Overall, the comments were in favor, including it was time for an update and the regulations “needed to incorporate changes to address the evolution of technology.” Recommended that NARA reference ISO 15489 throughout regs, not just part on electronic records management. 9

NARA’s Federal Records Management Regulations NARA’s Proposed Rule on Revisions to the Federal Records Management Published on 8/4/2008 (73 FR 45274) Identified the same reasons as in the ANPRM Also indicated the Strategic Directions for Federal Records Management (7/31/03) laid out the goals, strategies, and tactics for 21st century RM. Interagency review (under E.O. 12866) before proposed rule was published. 10

NARA’s Federal Records Management Regulations Final Rule published 10/2/09, effective 11/2/09. 60 day public comment period. 192 timely comments received (42 pages). NARA review and analysis of all comments to develop draft final rule. Then coordination of comment handling with agencies. Interagency review, again, of final rule with Obama Administration before publication 11

NARA’s Federal Records Management Regulations Some comments about the general layout of the revised regulations: Consistent format: at the beginning of each part—Authorities, definitions, standards, and if incorporation by reference, also in the first sections . If there are subparts within the parts, move from the general to the more detailed. 12

NARA’s Federal Records Management Regulations Part 1220, Federal Records, General: Provides the statutory basis for Federal records management Role of NARA—new summary in 1220.12 Other oversight agencies, e.g., GSA Responsibilities of every Federal Agency in carrying out RM Added definitions. (Most definitions unchanged.) Added NARA acronyms 13

Part 1222, Creation and Maintenance of Federal Records: NARA’s Federal Records Management Regulations Part 1222, Creation and Maintenance of Federal Records: Records, personal files, and nonrecord materials. Prescribes recordkeeping responsibilities for agencies, Federal employees, and contractors. § 1222.16(b): New to regulations, formerly covered in guidance for managing nonrecord materials. 14

NARA’s Federal Records Management Regulations Part 1222 (cont.) § 1222.18: conditions under which classified nonrecord materials may be removed have been updated. Creation and maintenance of records by contractors in Nat'l Industrial Security Program § § 1222.26 and 1222.28- NEW- on recordkeeping requirements formerly covered in guidance 15

NARA’s Federal Records Management Regulations Part 1223, Management of Vital Records: Necessary action that each agency must take to ensure proper and adequate documentation for continuing agency operations in the event of an emergency or disaster. In conformance with FCD 1 and FCD 2 16

NARA’s Federal Records Management Regulations Part 1224, Disposition of Federal Records; General Specifies elements of a records disposition program 17

NARA’s Federal Records Management Regulations Part 1225, Scheduling Records: Outlines the process for developing records schedules and obtaining records disposition authorities. § 1225.10 Statement of policy that all records must be scheduled; based on longstanding policy. 1225.12: Conducting functional or work processes analysis and flexible scheduling 18

NARA’s Federal Records Management Regulations Part 1225 (cont.) § 1225.14: Scheduling permanent records § 1225.16: Scheduling temporary records § 1225.22: When new SF 115 is needed: media neutral (see 1225.12(e)) 19

NARA’s Federal Records Management Regulations Part 1226, Implementing Disposition: § 1226.12 No longer need to submit hard copies to NARA; send electronic copy via link or file. § 1226.14 No need to notify NARA if court-ordered expungement of temporary records. If court ordered extension of retention, no need to contact NARA (still need to contact records storage provider). 20

NARA’s Federal Records Management Regulations Part 1227, General Records Schedules: Same for most part, however, no longer include list of schedules. Link to website is provided. § 1227.12 Agency must notify NARA within 120 days (change from 90 days) if using agency schedule instead of GRS. 21

NARA’s Federal Records Management Regulations Part 1228, Loan of Permanent and Unscheduled Records § 1228.10 Added requirement that agencies must obtain NARA approval prior to loaning permanent or unscheduled records. 22

NARA’s Federal Records Management Regulations Part 1229, Emergency Authorization to Destroy Records Change from former regulation that details procedures for destroying nitrocellulose base; procedures for this are now rolled into general procedures. 23

NARA’s Federal Records Management Regulations Part 1230, Unlawful or Accidental Removal, Defacing, Alteration, or Destruction of Records Title changed to reflect wording used in 44 U.S.C. 3106 Criminal penalties are revised and readers are referred to 44 U.S.C. 641 and 2071 § 1230.16 now includes the steps NARA will take when it receives credible information of action covered by part 1230. 24

NARA’s Federal Records Management Regulations Part 1231, Transfer of Records from the Custody of One Executive Agency to Another For the most part unchanged; two sections were eliminated—transfer of records storage equipment and cost of transfers. 25

NARA’s Federal Records Management Regulations Part 1232, Transfer of Records to Records Storage Facilities Substantively unchanged; the requirements section in the former regs have been broken out into requirements and necessary documentation in the current regulation. 26

NARA’s Federal Records Management Regulations Part 1233, Transfer, Use and Disposition of Records in a NARA Records Center Provision that agency use designated NARA FRC as cited in the Agency Agreement. Provides for the use of an electronic system for reference requests. 27

NARA’s Federal Records Management Regulations Part 1234, Facility Standards for Records Storage Facilities Move old 36 CFR part 1228, subpart K, to new Part 1234 without any changes. 28

NARA’s Federal Records Management Regulations Part 1235, Transfer of Records to the National Archives of the United States Elimination of descriptive information on the archival depositories where transferred records will be stored §§ 1235.14 and 1235.16 specification of timeframes for NARA approval or disapproval of agency requests to retain records beyond their expected transfer date. 29

NARA’s Federal Records Management Regulations Part 1225 (cont.) § 1235.42 Added digital photographic and geospatial data records to specifications and standards of transfers. § 1235.50 Added transfer specs and standards for electronic mail, scanned images of textual records, pdfs, digital photographic records, and Web content records

NARA’s Federal Records Management Regulations Part 1236, Electronic Records Management Update and reorganization of policies and procedures relating to electronic records management Explicitly state that all records management requirements found in Parts 1220-1235 also apply to electronic records Broadened coverage of text documents to include all unstructured records 31

NARA’s Federal Records Management Regulations Part 1237, Audiovisual, Cartographic, and Related Records Management Added definitions As with part 1236, reminds agencies that parts 1220-1235 pertain to part 1237, also. 32

NARA’s Federal Records Management Regulations Part 1238, Microforms Records Management Only substantive change is deletion of old § 1230.50 concerning non-regulatory information on centralized micrographic services from NARA. 33

NARA’s Federal Records Management Regulations Part 1239, Program Assistance and Inspections No substantive changes to former 36 CFR 1238 on program assistance. Added definition of inspection Changes to inspections: NARA will undertake inspections when an agency, or a series of agencies in a specific line of business, fails to address high-level records management risks or specific problems identified through NARA's risk-based resource allocation model or other means such as Government reports or the media The time frames for the inspection steps have been shortened, reflecting the more focused nature of inspections. 34