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January 18, 2001

NARA's Response to Public Citizen's Petition to Amend GRS 20 and Electronic Records Regulations

National Archives and Records Administration
8601 Adelphi Road
College Park, MD 20740-6001

Mr. Michael E. Tankersley
Public Citizen Litigation Group
1600 20th Street NW
Washington, DC 20009

Dear Mr. Tankersley:

This letter provides our formal response to your petition for rulemaking dated October 31, 2000. Your petition requested that the Archivist amend the National Archives and Records Administration (NARA) rules concerning the management, scheduling and preservation of text documents created in electronic form, including the provisions of General Records Schedule (GRS) 20 concerning word processing and electronic mail.

NARA appreciates Public Citizen's interest in these matters. As I explain below, NARA will address the issues that you have raised in your first and third proposals by soliciting the views of other Federal agencies and the public through the issuance of an Advanced Notice of Proposed Rulemaking. With respect to your second proposal, NARA believes that the actions that the petition proposes are unnecessary, in light of NARA's ongoing activities and the reasons that NARA outlined when it issued Bulletin 2000-02 a year ago.

Your first proposal concerns the requirement that recordkeeping systems need to preserve the content, structure and context of a record. This has been a requirement under GRS 20, as the Government has previously explained. Public Citizen v. Carlin, 184 F.3d 900. 910-11 (D.C. Cir. 1999). You have requested that NARA amend 36 CFR 1234.22 by adding regulatory language regarding this requirement, and you have offered suggested language to implement this amendment. Your third proposal requested that NARA amend 36 CFR 1234.30 to mandate early appraisal of text documents and mandate that agencies incorporate disposition instructions in the design of new electronic information systems.

After carefully reviewing these two proposals, NARA believes that the issues you have raised merit further consideration. To obtain the views of other Federal agencies and of other interested members of the public, NARA will issue an advance notice of proposed rulemaking (ANPRM) to seek comments on the issues that you have raised, including your proposed wording and other clarifications of these sections that may be necessary or appropriate. The comments that the agencies and the public submit in response to the ANPRM will assist NARA in determining whether a regulatory amendment should be proposed, whether some other action should be taken (e.g., issuance of guidance in a NARA Bulletin), or whether no changes should be made to NARA's

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regulations and other issuances. In light of the resource demands associated with NARA's ongoing activities and previously-planned initiatives (see NARA's 2000 revision to its strategic plan, "Ready Access to Essential Evidence"), as well as the upcoming Presidential transition, NARA plans on issuing the ANPRM within the next twelve months. NARA will notify you when the notice is published in the Federal Register.

Your second proposal requested that the Archivist phase out the application of GRS 20 to program records by adding language to GRS 20 itself or to 36 CFR 1234.32(a). You recommended withdrawing GRS 20 as authority for destroying electronic copies of permanent records effective on the date of the rule and withdrawing GRS 20 as authority for destroying electronic copies of temporary records effective one year from the date of the rule. After carefully reviewing your proposal, NARA believes that the reasons NARA outlined in NARA Bulletin 2000-02 for retaining GRS 20 as disposition authority for electronic copies of scheduled records are still appropriate. Bulletin 2000-02, which was issued on December 27, 1999, states in part:

    On August 6, 1999, a three-judge panel of the U.S. Court of Appeals for the District of Columbia unanimously upheld General Records Schedule 20 (GRS 20). We believe there may be better alternatives to GRS 20 for disposition authority for electronic copies of program records and expect to develop those alternatives as part of a comprehensive review of the policies and procedures for scheduling and appraisal of records in all formats. The Court decision provides the Government time to include electronic copies in this overall review. Our review may result in significant changes in the way that agencies schedule their records in the future. When we have completed this review, we will promulgate new guidance.

At that time, we stated our expectation that the review would extend beyond FY 2000, and it has. NARA has concluded that acting on your second proposal now would be inconsistent with our consideration of other alternatives as part of our study.

The Bulletin also stated our concern that agency resources that would be expended to develop and submit schedules for electronic copies of program records under NARA Bulletin 99-04 are needed to schedule previously unscheduled records and to plan for the implementation of electronic recordkeeping in support of Government Paperwork Elimination Act (GPEA) requirements. Your proposal would give NARA and the agencies even less time than the suspended Bulletin 99-04 to schedule their electronic copies of program records.

I also note that NARA Bulletin 99-05 remains in effect. That Bulletin notifies agencies that they must continue to follow NARA guidance that schedules for new and revised series must provide for the disposition of both the copy of a record that resides on electronic mail or other office automation application, and the copy maintained in the recordkeeping system.

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For these reasons, I do not intend to act upon the second proposal. I want to assure you, however, that NARA remains committed to developing practical methods for managing and preserving records in the electronic era and ensuring ready access to them. NARA's commitment to these objectives is illustrated by the Fast Track and GPEA guidance that NARA has developed for Executive Branch agencies, by NARA's endorsement of the DOD records management application certification process, and by NARA's progress on the Electronic Records Archives initiative.


John W. Carlin
Archivist of the United States

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