H. Rept. 113-128 - 113th Congress (2013-2014)

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House Report 113-128 - ELECTRONIC MESSAGE PRESERVATION ACT

[House Report 113-128]
[From the U.S. Government Publishing Office]


113th Congress      }                               {         Report
                    }   HOUSE OF REPRESENTATIVES    {
 1st Session                                                 113-128
======================================================================
 
                  ELECTRONIC MESSAGE PRESERVATION ACT

                                _______
                                

 June 25, 2013.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

   Mr. Issa, from the Committee on Oversight and Government Reform, 

                        submitted the following


                              R E P O R T

                        [To accompany H.R. 1234]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Oversight and Government Reform, to whom 
was referred the bill (H.R. 1234) to amend title 44, United 
States Code, to require preservation of certain electronic 
records by Federal agencies, to require a certification and 
reports relating to Presidential records, and for other 
purposes, having considered the same, report favorably thereon 
with amendment and recommend that the bill as amended do pass.

                                CONTENTS

                                                                   Page
Committee Statement and Views....................................     3
Section-by-Section...............................................     5
Explanation of Amendments........................................     6
Committee Consideration..........................................     6
Application of Law to the Legislative Branch.....................     6
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................     6
Statement of General Performance Goals and Objectives............     6
Duplication of Federal Programs..................................     6
Disclosure of Directed Rule Makings..............................     6
Federal Advisory Committee Act...................................     7
Unfunded Mandate Statement.......................................     7
Earmark Identification...........................................     7
Committee Estimate...............................................     7
Budget Authority and Congressional Budget Office Cost Estimate...     7
Changes in Existing Law Made by the Bill as Reported.............     9
    The amendments (stated in terms of the page and line 
numbers of the introduced bill) are as follows:

  Page 4, before line 16, insert the following new subsection 
(and redesignate the subsequent subsection accordingly):

  (b) Disclosure Requirement for Official Business Conducted Using Non-
official Electronic Messaging Account.--
          (1) Amendment.--Chapter 29 of title 44, United States Code, 
        as amended by subsection (a)(1), is further amended by adding 
        at the end the following new section:

``Sec. 2912. Disclosure requirement for official business conducted 
                    using non-official electronic messaging accounts

  ``(a) In General.--An officer or employee of an executive agency may 
not create or send a record using a non-official electronic messaging 
account unless such officer or employee--
          ``(1) copies an official electronic messaging account of the 
        officer or employee in the original creation or transmission of 
        the record; or
          ``(2) forwards a complete copy of the record to an official 
        electronic messaging account of the officer or employee within 
        five days after the original creation or transmission of the 
        record.
  ``(b) Adverse Actions.--The intentional violation of subsection (a) 
(including any rules, regulations, or other implementing guidelines), 
as determined by the appropriate supervisor, shall be a basis for 
disciplinary action in accordance with subchapter I, II, or V of 
chapter 75 of title 5, as the case may be.
  ``(c) Definitions.--In this section:
          ``(1) Electronic messages.--The term `electronic messages' 
        has the meaning given that term in section 2901.
          ``(2) Electronic messaging account.--The term `electronic 
        messaging account' means any account that sends electronic 
        messages.
          ``(3) Executive agency.--The term `executive agency' has the 
        meaning given that term in section 105 of title 5.''.
          (2) Clerical amendment.--The table of sections at the 
        beginning of chapter 29 of title 44, United States Code, as 
        amended by subsection (a)(2), is further amended by adding at 
        the end the following new item:

``2912. Disclosure requirement for official business conducted using 
          non-official electronic messaging accounts.''.

  Page 7, beginning on line 17, strike ``, as amended'' and all 
that follows through ``is further amended'' on line 18, and 
inserting ``is amended''.

  Page 8, line 13, strike ``this section'' and insert 
``subsections (a), (b), and (c)''.

  At the end of the bill, add the following:

  (e) Disclosure Requirement for Official Business Conducted 
Using Non-official Electronic Messaging Account.--
          (1) Amendment.--Chapter 22 of title 44, United States 
        Code, as amended by subsection (b)(1), is further 
        amended by adding at the end the following new section:

``Sec. 2209. Disclosure requirement for official business conducted 
                    using non-official electronic messaging accounts

  ``(a) In General.--An officer or employee of an executive 
agency may not create or send a Presidential record using a 
non-official electronic messaging account unless such officer 
or employee--
          ``(1) copies an official electronic messaging account 
        of the officer or employee in the original creation or 
        transmission of the Presidential record; or
          ``(2) forwards a complete copy of the Presidential 
        record to an official electronic messaging account of 
        the officer or employee within five days after the 
        original creation or transmission of the Presidential 
        record.
  ``(b) Adverse Actions.--The intentional violation of 
subsection (a) (including any rules, regulations, or other 
implementing guidelines), as determined by the appropriate 
supervisor, shall be a basis for disciplinary action in 
accordance with subchapter I, II, or V of chapter 75 of title 
5, as the case may be.
  ``(c) Definitions.--In this section:
          ``(1) Electronic messages.--The term `electronic 
        messages' has the meaning given that term in section 
        2901.
          ``(2) Electronic messaging account.--The term 
        `electronic messaging account' means any account that 
        sends electronic messages.
          ``(3) Executive agency.--The term `executive agency' 
        has the meaning given that term in section 105 of title 
        5.''.
          (2) Clerical amendment.--The table of sections at the 
        beginning of chapter 22 of title 44, United States 
        Code, as amended by subsection (b)(2), is further 
        amended by adding at the end the following new item:

``2209. Disclosure requirement for official business conducted using 
          non-official electronic messaging accounts.''.

                     Committee Statement and Views


                          PURPOSE AND SUMMARY

    H.R. 1234, the Electronic Message Preservation Act was 
introduced on March 18, 2013, by Ranking Minority Member Elijah 
E. Cummings (D-MD). As amended, this legislation would require 
federal agencies to preserve electronic messages that are 
determined to be records, require preservation and 
certification of electronic messages that are presidential 
records, and make additional changes to improve the Federal 
Government's ability to capture and archive electronic federal 
records created or sent by personal electronic messaging 
accounts of federal employees.

                  BACKGROUND AND NEED FOR LEGISLATION

    Congress first addressed federal recordkeeping in the 
1930s, when the combination of growing public concern over poor 
agency recordkeeping practices and an expanding federal 
bureaucracy necessitated recordkeeping solutions for a larger 
volume of records. In 1934, Congress established the National 
Archives and the position of Archivist of the United States as 
the primary, central agent of records preservation for the 
Federal Government.\1\ In 1950, Congress followed up the 
establishment of the National Archives with the Federal Records 
Act (FRA), which established basic records management authority 
for federal agencies and set basic records management 
standards, including standards for the disposal of records. The 
intent was that agencies would manage their own records 
internally, while the National Archives would filter and 
preserve those records that were transferred to the National 
Archives for posterity.
---------------------------------------------------------------------------
    \1\See generally National Archives Act, 48 Stat. 1122 (1934).
---------------------------------------------------------------------------
    In 1978, in the wake of Watergate, Congress also passed the 
Presidential Records Act (PRA), intended to be a comprehensive 
answer to the general issue of presidential records 
preservation and maintenance. The PRA defined what did and did 
not qualify as a presidential record,\2\ clarified the 
ownership of presidential records,\3\ detailed guidelines for 
the management and custody of presidential records,\4\ 
established procedures for restricting access to Presidential 
records under certain circumstances,\5\ and granted the 
Archivist the ability to promulgate regulations enforcing the 
PRA.\6\
---------------------------------------------------------------------------
    \2\See id. at Sec. 2201.
    \3\ See id. at Sec. 2202.
    \4\ See id. at Sec. 2203.
    \5\ See id. at Sec. Sec. 2204 and 2205.
    \6\ See id. at Sec. 2206. The PRA also provides that the same rules 
governing the collection, storage, and preservation of presidential 
records govern the collection, storage, and preservation of vice 
presidential records. See id. at Sec. 2207.
---------------------------------------------------------------------------
    Unfortunately, the rapid migration over the last several 
decades toward electronic communication and recordkeeping has 
rendered antiquated aspects of both the FRA and the PRA. This 
legislation will begin to address the deficiencies of current 
law in three ways. First, it will require the electronic 
capture, management, and preservation of electronic federal 
records by agencies. To ensure the success of this requirement, 
the National Archives will be required to establish mandatory 
minimum function requirements for electronic records management 
systems and to establish a process to certify that agencies' 
systems meet those requirements. Second, it will require the 
Archivist to issue regulations that establish standards 
necessary for the economical and efficient management of 
electronic Presidential records during the President's term of 
office. Similar to the standard for federal agencies, records 
management controls must be established and the Archivist will 
be required to annually certify whether the President's 
electronic records management controls meet the requirements of 
the Archivist. Finally, the legislation will also explicitly 
codify a requirement that federal employees who create or 
transmit a federal or presidential record through a non-
governmental electronic messaging account file an electronic 
copy of that record with their agency.

                          LEGISLATIVE HISTORY

    H.R. 1234, the Electronic Message Preservation Act, was 
introduced on March 18, 2013, and referred to the House 
Committee on Oversight and Government Reform. In the 112th 
Congress, the provisions contained within the introduced 
version were among a number of provisions included in H.R. 1144 
and in the amended version of H.R. 3071, which was itself 
ordered favorably reported by the Oversight and Government 
Reform Committee.
    At a business meeting on March 20, 2013, the Committee 
considered H.R. 1234 and, after the adoption by voice vote of 
an amendment offered by Chairman Issa (R-CA), H.R. 1234 was 
ordered to be favorably reported from the Committee, also by 
voice vote.

                           Section-by-Section


Section 1. Short title

    Section 1 establishes the bill's title as the, ``Electronic 
Message Preservation Act.''

Section 2. Records management

    Subsection (a) creates 44 U.S.C. 2911 which requires the 
Archivist, within 18 months of enactment, to promulgate 
regulations governing Federal agency preservation of electronic 
federal records which must ensure: (1) the electronic capture, 
management, and preservation of electronic records; (2) that 
electronic records are readily accessible through electronic 
searches; (3) mandatory minimum functional requirements 
necessary to comply with electronic storage and retrieval 
guidelines; (4) a process is created to certify agency 
electronic records management systems meet the necessary 
functional requirements; and (5) agency compliance with the 
regulations not later than four years after enactment.
    Subsection (b) creates 44 U.S.C. 2912 which requires 
federal employees who create or send a federal record from a 
non-official electronic messaging account to forward a complete 
copy of the record to an official electronic messaging account 
within five days. In cases of intentional violation of this 
disclosure requirement, the section authorizes disciplinary 
action as determined by the appropriate supervisor, in 
accordance with subchapter I, II, or V of chapter 75 of title 
5, U.S. Code.
    Subsection (c) adds definitions of ``electronic messages'' 
and ``electronic records management system'' to 44 U.S.C. 2901.

Section 3. Presidential records

    Subsection (a) amends 44 U.S.C. 2206 to require the 
Archivist to promulgate provisions for the economical and 
efficient management of electronic Presidential records during 
the President's term of office.
    Subsection (b) creates 44 U.S.C. 2208 which requires the 
Archivist to certify whether a presidential administration's 
electronic records management system is sufficient to meet the 
electronic records management requirements of the Presidential 
Records Act.
    Subsection (c) requires the Archivist to submit a report to 
Congress one year after a President leaves office detailing the 
volume and format of the electronic Presidential records 
deposited into that President's archival depository.
    Subsection (d) provides an effective date for subsection 
(a), (b), and (c) of one year after date of enactment.
    Subsection (e) creates 44 U.S.C. 2209 which requires 
federal employees who create or send a Presidential record from 
a non-official electronic messaging account to forward a 
complete copy of the record to an official electronic messaging 
account within five days. In cases of intentional violation of 
this disclosure requirement, the section authorizes 
disciplinary action as determined by the appropriate 
supervisor, in accordance with subchapter I, II, or V of 
chapter 75 of title 5, U.S. Code.

                       Explanation of Amendments

    The provisions of the adopted amendments are explained in 
this report.

                        Committee Consideration

    On March 20, 2013, the Committee met in open session and 
ordered reported favorably the bill, H.R. 1234, as amended, by 
voice vote, a quorum being present.

              Application of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of this bill to the legislative 
branch where the bill relates to the terms and conditions of 
employment or access to public services and accommodations. 
This bill requires federal agencies to preserve electronic 
messages that are determined to be records, requires 
preservation and certification of electronic messages that are 
presidential records, and makes additional changes to improve 
the Federal Government's ability to capture and archive 
electronic federal records created or sent by personal 
electronic messaging accounts of federal employees. As such 
this bill does not relate to employment or access to public 
services and accommodations.

  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
(2)(b)(1) of rule X of the Rules of the House of 
Representatives, the Committee's oversight findings and 
recommendations are reflected in the descriptive portions of 
this report.

         Statement of General Performance Goals and Objectives

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the Committee's performance 
goals and objectives are reflected in the descriptive portions 
of this report.

                    Duplication of Federal Programs

    No provision of H.R. 1234 establishes or reauthorizes a 
program of the Federal Government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                  Disclosure of Directed Rule Makings

    H.R. 1234 requires the Archivist to develop and issue a 
number of regulations related to electronic messaging. With 
regard to federal records, the Archivist is required to issue 
regulations within 18 months of enactment of the legislation 
to: (1) require the electronic capture, management, and 
preservation of electronic records; (2) require that such 
electronic records are readily accessible for retrieval by 
elections searches; (3) establish mandatory minimum functional 
requirements for electronic records management systems; (4) 
establish a process to certify agency compliance with 
electronic records management system functional requirements; 
and (5) provide timelines for agency compliance with the 
aforementioned requirements, not to exceed four years from 
enactment. The Archivist is also directed to update these 
regulations as necessary. With regard to Presidential records, 
the Archivist is required to establish standards necessary for 
the economical and efficient management of electronic 
Presidential Records, including through a process to annually 
certify a President's compliance with such regulations.

                     Federal Advisory Committee Act

    The Committee finds that the legislation does not establish 
or authorize the establishment of an advisory committee within 
the definition of 5 U.S.C. App., Section 5(b).

                       Unfunded Mandate Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandate Reform Act, P.L. 104-4) requires a statement as to 
whether the provisions of the reported include unfunded 
mandates. In compliance with this requirement the Committee has 
received a letter from the Congressional Budget Office included 
herein.

                         Earmark Identification

    H.R. 1234 does not include any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of rule XXI.

                           Committee Estimate

    Clause 3(d)(2) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison by the 
Committee of the costs that would be incurred in carrying out 
H.R. 1234. However, clause 3(d)(3)(B) of that rule provides 
that this requirement does not apply when the Committee has 
included in its report a timely submitted cost estimate of the 
bill prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act.

     Budget Authority and Congressional Budget Office Cost Estimate

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of clause (3)(c)(3) of rule XIII of the Rules 
of the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the Committee has received 
the following cost estimate for H.R. 1234 from the Director of 
Congressional Budget Office:

                                                      May 23, 2013.
Hon. Darrell Issa,
Chairman, Committee on Oversight and Government Affairs,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1234, the 
Electronic Message Preservation Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

H.R. 1234--Electronic Message Preservation Act

    H.R. 1234 would amend federal law concerning the 
preservation, storage, and management of records by federal 
agencies. The legislation would direct the National Archives 
and Records Administration (NARA) to issue regulations 
governing the preservation of e-mail and other electronic 
records in electronic format and establish procedures for using 
nonfederal e-mail services for official government business. 
Finally, H.R. 1234 would amend the Presidential Records Act to 
authorize NARA to manage the electronic records of the 
President.
    Under the legislation, NARA would have 18 months to 
promulgate regulations on the preservation of electronic 
messages, and agencies would have four years to comply. Most of 
the provisions of H.R. 1234 would codify or expand current 
practices of the federal government. Under the Federal Records 
Act, each agency is required to make and preserve records of 
its activities. To accomplish this, agencies are required to 
have appropriate systems to manage and preserve their records. 
The act also gives NARA the responsibility to oversee and issue 
guidance on managing federal records, including e-mail 
messages. Although current NARA regulations require that 
government e-mail messages be stored electronically, NARA 
allows agencies to print and file paper copies of e-mail 
records. In addition, a 2012 Managing Government Records 
Directive (M-12-18) from the Office of Management and Budget 
requires that federal agencies manage all e-mail in an 
electronic format by 2016.
    CBO expects that not all agencies will meet the timeline 
specified in the directive for using electronic systems to 
manage e-mail records. Some agencies will probably have to 
acquire additional computer hardware and software to meet the 
new requirements. Based on information from NARA and selected 
agencies, CBO estimates that implementing H.R. 1234 would cost 
$15 million over the 2014-2018 period, assuming the 
availability of appropriated funds. CBO estimates that 
implementing other provisions of the bill regarding nonfederal 
e-mail and managing Presidential records would not have a 
significant impact on the federal budget. The legislation also 
could affect direct spending by agencies not funded through 
annual appropriations or by agencies considered to be off-
budget. Therefore, pay-as-you-go procedures apply. CBO 
estimates, however, that any net increase in spending by those 
agencies would not be significant. Enacting the bill would not 
affect revenues.
    Electronically archiving e-mail could reduce the 
administrative costs agencies incur to print and file paper 
copies and to perform other tasks, such as fulfilling Freedom 
of Information Act requests and retiring records for judicial 
proceedings. However, CBO expects that any such savings over 
the next five years would be small.
    H.R. 1234 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Matthew 
Pickford. The estimate was approved by Theresa Gullo, Deputy 
Assistant Director for Budget Analysis.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

TITLE 44, UNITED STATES CODE

           *       *       *       *       *       *       *



                    CHAPTER 22--PRESIDENTIAL RECORDS


Sec.
2201. Definitions.
     * * * * * * *
2208. Certification of the President's management of Presidential 
          records.
2209. Disclosure requirement for official business conducted using non-
          official electronic messaging accounts.

Sec. 2201. Definitions

  As used in this chapter--
          (1) * * *

           *       *       *       *       *       *       *

          (6) The term ``electronic messages'' has the meaning 
        given that term under section 2901(15) of this title.
          (7) The term ``electronic records management system'' 
        has the meaning given that term under section 2901(16) 
        of this title.

           *       *       *       *       *       *       *


Sec. 2203. Management and custody of Presidential records

  (a) * * *

           *       *       *       *       *       *       *

  (f)(1) * * *

           *       *       *       *       *       *       *

  (4) One year following the conclusion of a President's term 
of office, or if a President serves consecutive terms one year 
following the conclusion of the last term, the Archivist shall 
submit to the Committee on Homeland Security and Governmental 
Affairs of the Senate and the Committee on Oversight and 
Government Reform of the House of Representatives a report on--
          (A) the volume and format of electronic Presidential 
        records deposited into that President's Presidential 
        archival depository; and
          (B) whether the electronic records management 
        controls of that President met the requirements under 
        sections 2203(a) and 2206(5) of this title.

           *       *       *       *       *       *       *


Sec. 2206. Regulations

  The Archivist shall promulgate in accordance with section 553 
of title 5, United States Code, regulations necessary to carry 
out the provisions of this chapter. Such regulations shall 
include--
          (1) * * *

           *       *       *       *       *       *       *

          (3) provisions for notice by the Archivist to the 
        former President when the disclosure of particular 
        documents may adversely affect any rights and 
        privileges which the former President may have; [and]
          (4) provisions for establishing procedures for 
        consultation between the Archivist and appropriate 
        Federal agencies regarding materials which may be 
        subject to section 552(b)(7) of title 5, United States 
        Code[.]; and

           *       *       *       *       *       *       *

          (5) provisions for establishing standards necessary 
        for the economical and efficient management of 
        electronic Presidential records during the President's 
        term of office, including--
                  (A) records management controls necessary for 
                the capture, management, and preservation of 
                electronic messages;
                  (B) records management controls necessary to 
                ensure that electronic messages are readily 
                accessible for retrieval through electronic 
                searches; and
                  (C) a process to certify the electronic 
                records management system to be used by the 
                President for the purposes of complying with 
                the requirements in subparagraphs (A) and (B).

           *       *       *       *       *       *       *


Sec. 2208. Certification of the President's management of Presidential 
                    records

  (a) Annual Certification.--The Archivist shall annually 
certify whether the electronic records management controls 
established by the President meet requirements under sections 
2203(a) and 2206(5) of this title.
  (b) Report to Congress.--The Archivist shall report annually 
to the Committee on Homeland Security and Governmental Affairs 
of the Senate and the Committee on Oversight and Government 
Reform of the House of Representatives on the status of the 
certification.

Sec. 2209. Disclosure requirement for official business conducted using 
                    non-official electronic messaging accounts

  (a) In General.--An officer or employee of an executive 
agency may not create or send a Presidential record using a 
non-official electronic messaging account unless such officer 
or employee--
          (1) copies an official electronic messaging account 
        of the officer or employee in the original creation or 
        transmission of the Presidential record; or
          (2) forwards a complete copy of the Presidential 
        record to an official electronic messaging account of 
        the officer or employee within five days after the 
        original creation or transmission of the Presidential 
        record.
  (b) Adverse Actions.--The intentional violation of subsection 
(a) (including any rules, regulations, or other implementing 
guidelines), as determined by the appropriate supervisor, shall 
be a basis for disciplinary action in accordance with 
subchapter I, II, or V of chapter 75 of title 5, as the case 
may be.
  (c) Definitions.--In this section:
          (1) Electronic messages.--The term ``electronic 
        messages'' has the meaning given that term in section 
        2901.
          (2) Electronic messaging account.--The term 
        ``electronic messaging account'' means any account that 
        sends electronic messages.
          (3) Executive agency.--The term ``executive agency'' 
        has the meaning given that term in section 105 of title 
        5.

           *       *       *       *       *       *       *


 CHAPTER 29--RECORDS MANAGEMENT BY THE ARCHIVIST OF THE UNITED STATES 
              AND BY THE ADMINISTRATOR OF GENERAL SERVICES


Sec.
2901. Definitions.
     * * * * * * *
2911. Preservation of electronic messages and other records.
2912. Disclosure requirement for official business conducted using non-
          official electronic messaging accounts.

Sec. 2901. Definitions

  As used in this chapter, and chapters 21, 25, 31, and 33 of 
this title--
          (1) * * *

           *       *       *       *       *       *       *

          (14) the term ``Federal agency'' means any executive 
        agency or any establishment in the legislative or 
        judicial branch of the Government (except the Supreme 
        Court, the Senate, the House of Representatives, and 
        the Architect of the Capitol and any activities under 
        the direction of the Architect of the Capitol); [and]
          [(15) the term ``Administrator'' means the 
        Administrator of General Services.]
          (15) the term ``electronic messages'' means 
        electronic mail and other electronic messaging systems 
        that are used for purposes of communicating between 
        individuals; and
          (16) the term ``electronic records management 
        system'' means software designed to manage electronic 
        records, including by--
                  (A) categorizing and locating records;
                  (B) ensuring that records are retained as 
                long as necessary;
                  (C) identifying records that are due for 
                disposition; and
                  (D) ensuring the storage, retrieval, and 
                disposition of records.

           *       *       *       *       *       *       *


Sec. 2911. Preservation of electronic messages and other records

  (a) Regulations Required.--Not later than 18 months after the 
date of the enactment of this section, the Archivist shall 
promulgate regulations governing Federal agency preservation of 
electronic messages that are determined to be records (as such 
term is defined under section 3301 of this title). Such 
regulations shall, at a minimum--
          (1) require the electronic capture, management, and 
        preservation of such electronic records in accordance 
        with the records disposition requirements of chapter 33 
        of this title;
          (2) require that such electronic records are readily 
        accessible for retrieval through electronic searches;
          (3) establish mandatory minimum functional 
        requirements for electronic records management systems 
        to ensure compliance with the requirements in 
        paragraphs (1) and (2);
          (4) establish a process to certify that Federal 
        agencies' electronic records management systems meet 
        the functional requirements established under paragraph 
        (3); and
          (5) include timelines for Federal agency compliance 
        with the regulations that ensure compliance as 
        expeditiously as practicable but not later than four 
        years after the date of the enactment of this section.
  (b) Coverage of Other Electronic Records.--To the extent 
practicable, the regulations promulgated under subsection (a) 
shall also include requirements for the capture, management, 
and preservation of other electronic records.
  (c) Compliance by Federal Agencies.--Each Federal agency 
shall comply with the regulations promulgated under subsection 
(a).
  (d) Review of Regulations Required.--The Archivist shall 
periodically review and, as necessary, amend the regulations 
promulgated under subsection (a).
  (e) Reports on Implementation of Regulations.--
          (1) Agency report to archivist.--Not later than four 
        years after the date of the enactment of this section, 
        the head of each Federal agency shall submit to the 
        Archivist a report on the agency's compliance with the 
        regulations promulgated under this section.
          (2) Archivist report to congress.--Not later than 90 
        days after receipt of all reports required by paragraph 
        (1), the Archivist shall submit to the Committee on 
        Homeland Security and Governmental Affairs of the 
        Senate and the Committee on Oversight and Government 
        Reform of the House of Representatives a report on 
        Federal agency compliance with the regulations 
        promulgated under subsection (a).

Sec. 2912. Disclosure requirement for official business conducted using 
                    non-official electronic messaging accounts

  (a) In General.--An officer or employee of an executive 
agency may not create or send a record using a non-official 
electronic messaging account unless such officer or employee--
          (1) copies an official electronic messaging account 
        of the officer or employee in the original creation or 
        transmission of the record; or
          (2) forwards a complete copy of the record to an 
        official electronic messaging account of the officer or 
        employee within five days after the original creation 
        or transmission of the record.
  (b) Adverse Actions.--The intentional violation of subsection 
(a) (including any rules, regulations, or other implementing 
guidelines), as determined by the appropriate supervisor, shall 
be a basis for disciplinary action in accordance with 
subchapter I, II, or V of chapter 75 of title 5, as the case 
may be.
  (c) Definitions.--In this section:
          (1) Electronic messages.--The term ``electronic 
        messages'' has the meaning given that term in section 
        2901.
          (2) Electronic messaging account.--The term 
        ``electronic messaging account'' means any account that 
        sends electronic messages.
          (3) Executive agency.--The term ``executive agency'' 
        has the meaning given that term in section 105 of title 
        5.

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