Federal Records Modernization Act of 2017
A BILL
To improve Federal employee compliance with Federal and Presidential recordkeeping requirements, and for other purposes.
Sec. 2 Removal for deliberate destruction of Federal records
In general— Chapter 75 of title 5, United States Code, is amended by adding after subchapter V the following:
“VI Federal Records
“7551. Definitions
“In this subchapter the following definitions apply:
“(1) Employee—The term employee means—
“(A) an individual in the competitive service who is not serving a probationary or trial period under an initial appointment or who has completed 1 year of current continuous employment in the same or similar positions under other than a temporary appointment limited to 1 year or less; or
“(B) a career appointee in the Senior Executive Service who—
“(i) has completed the probationary period prescribed under section 3393(d) of this title; or
“(ii) was covered by the provisions of subchapter II of this chapter immediately before appointment to the Senior Executive Service.
“(2) Record—The term “record” has the meaning given that term in section 3301 of title 44.
“(3) Suspension—The term suspension has the meaning given that term in section 7501 of this title.
“7552. Suspension and removal
“(a) Inspector General finding—If the Inspector General of an agency determines an employee of the agency has willfully and wrongfully concealed, removed, mutilated, obliterated, falsified, or destroyed any record, proceeding, map, book, document, paper, or other thing in the custody of such employee, or verifies a violation under section 2209 or 2911 of title 44, the Inspector General shall promptly inform the head of the agency of that determination in writing.
“(b) Suspension—The head of an agency shall suspend an employee of that agency who has been determined by the Inspector General under subsection (a) to have willfully and unlawfully concealed, removed, mutilated, obliterated, falsified, or destroyed any record, proceeding, map, book, document, paper, or other thing in the custody of such employee, or who has been verified by the Inspector General to be in violation of section 2209 or 2911 of title 44.
“(c) Requirements after suspension—An employee suspended under subsection (b) is entitled, after suspension and before removal, to—
“(1) be represented by an attorney or other representative;
“(2) a written statement of the charges against the employee within 15 days after suspension, which may be amended within 30 days thereafter;
“(3) an opportunity within 15 days after the receipt of the written statement under paragraph (2), plus an additional 15 days if the charges are amended, to answer the charges and submit affidavits;
“(4) a hearing, at the request of the employee, by an agency authority duly constituted for this purpose;
“(5) a review of the employee’s case by the head of the agency or a designee, before a decision adverse to the employee is made final; and
“(6) a written statement of the decision of the head of the agency.
“(d) Removal—Subject to subsection (c) of this section and after any investigation and review the head of the agency considers necessary, the head of an agency shall remove an employee suspended under subsection (b) if such head determines that the employee willfully and unlawfully concealed, removed, mutilated, obliterated, falsified, or destroyed any record, proceeding, map, book, document, paper, or other thing in the custody of such employee.
“(e) Appeal—An employee who is removed under subsection (d) is entitled to appeal to the Merit Systems Protection Board under section 7701 of this title.”
Technical and conforming amendments—
Table of sections— The table of sections for chapter 75 of title 5, United States Code, is amended by adding at the end the following new items:
Subchapter II applicability— Section 7512 of such title is amended—
in subparagraph (D), by striking “or” at the end;
in subparagraph (E), by striking the period at the end and inserting “, or”; and
by adding at the end the following:
“(F) a suspension or removal under section 7552 of this title.”
Sec. 3 Use of non-official electronic messaging accounts
Presidential records— Section 2209 of title 44, United States Code, is amended to read as follows:
“2209. Disclosure requirement for official business conducted using non-official electronic messaging accounts
“(a) In general—The President, Vice President, or covered employee may not create or send a Presidential or Vice Presidential record using a non-official electronic messaging account (in this section, referred to as “applicable electronic message”) unless the President, Vice President, or covered employee—
“(1) includes an official electronic messaging account of the President, Vice President, or covered employee, as applicable, as a recipient in the original creation or transmission of the applicable electronic message and identifies all recipients of the applicable electronic message in such message;
“(2) forwards a complete copy of the applicable electronic message, including a complete list of the recipients of such message, to an official electronic messaging account of the President, Vice President, or covered employee, as applicable, within twenty days after the original creation or transmission of the message; or
“(3) prints a complete copy of the applicable electronic message, including a complete list of the recipients of such message, and submits the message to the appropriate location or individual for appropriate archival storage by the Executive Office of the President within twenty days after the original creation or transmission of the message.
“(b) Adverse actions—An intentional violation of subsection (a) (including any rules, regulations, or other implementing guidelines) by a covered employee, as determined by the appropriate supervisor, shall be forwarded to the Inspector General of the agency for a verification of the violation, and upon verification, shall be subject to the suspension and removal provisions under section 7552 of title 5.
“(c) Definitions—In this section:
“(1) Covered employee—The term covered employee means—
“(A) the immediate staff of the President;
“(B) the immediate staff of the Vice President;
“(C) an individual of the Executive Office of the President whose function is to advise and assist the President; or
“(D) an individual of the Office of the Vice President whose function is to advise and assist the Vice President.
“(2) Electronic message—The term electronic message means electronic mail and all other means by which individuals and groups may communicate with each other electronically.
“(3) Electronic messaging account—The term electronic messaging account means any account that sends an electronic message.”
Federal records— Section 2911 of title 44, United States Code, is amended to read as follows:
“2911. 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 (in this section, referred to as “applicable electronic message”) unless such officer or employee—
“(1) includes an official electronic messaging account of the officer or employee as a recipient in the original creation or transmission of the applicable electronic message and identifies all recipients of the applicable electronic message in such message;
“(2) forwards a complete copy of the applicable electronic message, including a complete list of the recipients of such message, to an official electronic messaging account of the officer or employee within twenty days after the original creation or transmission of the record; or
“(3) prints a complete copy of the applicable electronic message, including a complete list of the recipients of such message, and submits it to the appropriate location or individual for appropriate archival storage by the executive agency within twenty days after the original creation or transmission of the message.
“(b) Adverse actions—An intentional violation of subsection (a) (including any rules, regulations, or other implementing guidelines) by an officer or employee of an executive agency, as determined by the appropriate supervisor, shall be forwarded to the Inspector General of the agency for a verification of the violation, and upon verification, shall be subject to the suspension and removal provisions under section 7552 of title 5.
“(c) Definitions—In this section:
“(1) Electronic message—The term electronic message means electronic mail and all other means by which individuals and groups may communicate with each other electronically.
“(2) Electronic messaging account—The term electronic messaging account means any account that sends an electronic message.”
Technical correction— Section 2204(b)(2)(A) of title 44, United States Code, is amended by striking “section 2203(d)(1)” and inserting “section 2203(g)(1)”.
Sec. 4 Reporting of the loss or potential loss of records
Section 3106 of title 44, United States Code, is amended to read as follows:
“3106. Unlawful removal, destruction of records
“(a) Notification
“(1) Archivist and public notification—Whenever the actual, impending, or threatened unlawful concealment, removal, mutilation, obliteration, falsification, or destruction of any record, proceeding, map, book, document, paper, or other thing in the custody of a Federal agency comes to the attention of the head of the Federal agency, the head shall—
“(A) notify the Archivist; and
“(B) publish a general description of the records at risk or that have been lost on the Web site of the Federal agency.
“(2) Federal agency notification—Whenever the actual, impending, or threatened unlawful concealment, removal, mutilation, obliteration, falsification, or destruction of any record, proceeding, map, book, document, paper, or other thing in the custody of a Federal agency comes to the attention of a Senior Agency Official for Records Management, such official shall immediately notify the head of the Federal agency.
“(b) Reclamation of records—With the assistance of the Archivist, the head of a Federal agency shall initiate action through the Attorney General for the recovery of records the head knows or has reason to believe have been unlawfully removed from the agency, or from another Federal agency whose records have been transferred to the legal custody of the head.
“(c) Action by the Archivist—In any case in which the head of the Federal agency does not initiate an action for the recovery of records described in subsection (b) or other redress within a reasonable period of time after being notified of any such unlawful removal, the Archivist shall request the Attorney General to initiate an action described in subsection (b), and shall notify the Congress not later than 5 days after the date on which such a request has been submitted to the Attorney General.”
Sec. 5 Senior Agency Official for Records Management
Senior agency official— Chapter 31 of title 44, United States Code, is amended by adding at the end the following new section:
“3108. Senior Agency Official for Records Management
“(a) Designation—Not later than October 1, 2017, the head of each Federal agency shall designate a Senior Agency Official for Records Management, and not later than November 15 of each year thereafter the head of each Federal agency shall reaffirm or designate a new Senior Agency Official for Records Management.
“(b) Authorities and responsibilities—The Senior Agency Official for Records Management shall—
“(1) be at least at the level of an Assistant Secretary or the equivalent; and
“(2) be responsible for the coordinating with the appropriate Agency Records Officer and appropriate agency officials to ensure compliance with all applicable records management statutes, regulations, and any guidance issued by the Archivist.
“(c) Federal agency coordination—In addition to the designation made pursuant to subsection (a), the head of a Federal agency may designate additional Senior Agency Officials for Records Management as the head of the agency determines to be necessary.”
Technical and conforming amendment— The table of sections at the beginning of chapter 31 of title 44, United States Code, is amended by adding at the end the following new item:
Sec. 6 Retention of electronic correspondence
Retention of records of high-Level officials— Section 3102 of title 44, United States Code, is amended—
in paragraph (2), by striking “; and” and inserting a semicolon;
in paragraph (3), by striking the period at the end and inserting “; and”; and
by adding at the end the following:
“(4) the identification of electronic messaging accounts (as defined in section 2911) that should be preserved because such accounts are most likely to contain records that should be preserved as permanent Federal records and the automatic retention of those records, including the accounts of each head of a Federal agency, the deputies and assistants of such head, the head of each program office and staff office, each assistant secretary, each administrator, each commissioner, each director of an office, bureau, or the equivalent, each principal regional official, each staff assistant to such official (such as a special assistant, confidential assistant, or administrative assistant), each career Federal employee, each political appointee, and each member of the Armed Forces serving in equivalent or comparable positions; and
“(5) electronic capture, management, and preservation of the electronic messaging accounts (as defined in section 2911) described in paragraph (4), in accordance with the records disposal requirements of chapter 33 of this title such that—
“(A) electronic records are readily accessible for retrieval through electronic searches; and
“(B) there are mandatory minimum functional requirements for electronic records management systems to ensure compliance with this section.”
Review by the Comptroller General—
Evaluation and reports required— Not later than 2 years after the date of the enactment of this Act, and periodically thereafter, the Comptroller General of the United States shall evaluate and submit to Congress a report on Federal agency management of electronic mail records required under paragraphs (4) and (5) of section 3102 of title 44, United States Code, as added by subsection (a).
Sunset of evaluation and reporting requirement— The requirements described under paragraph (1) shall cease to be in effect 11 years after the date of the enactment of this Act.
Review by Inspector General— Section 4(a) of the Inspector General Act (5 U.S.C. App.) is amended—
in paragraph (4), by striking “; and” and inserting a semicolon;
in paragraph (5), by striking the period at the end and inserting “; and”; and
by adding at the end the following new paragraph:
“(6) to review existing and proposed legislation and regulations relating to records retention requirements under the chapters 21, 29, 31, and 33 of title 44, United States Code (commonly referred to as the Federal Records Act), for programs and operations of such establishment and to make recommendations in the semiannual reports required by section 5(a) concerning compliance with records retention requirements.”
Effective date— This section and the amendments made by this section shall take effect on December 31, 2018.
Sec. 7 Federal Register modernization
References to printing— Chapter 15 of title 44, United States Code, is amended—
in section 1502—
in the heading, by striking “printing” and inserting “publishing”; and
by striking “printing and distribution” and inserting “publishing”;
in section 1507 is amended—
by striking “the duplicate originals or certified copies of the document have” and inserting “the document has”; and
in paragraph (2), by striking “printed” and inserting “published”; and
in section 1509, in subsections (a) and (b) of, by striking “printing, reprinting, wrapping, binding, and distributing” and inserting “publishing”, each place it appears.
Publish defined— Section 1501 of title 44, United States Code, is amended—
by striking “; and” at the end of the definition for “person” and inserting a semicolon; and
by inserting after the definition for “person” the following:
“publish means to circulate for sale or distribution to the public; and”
Filing documents with Office amendment— Section 1503 of title 44, United States Code, is amended to read as follows:
“1503. Filing documents with Office; notation of time; public inspection; transmission for publishing
“The original document required or authorized to be published by section 1505 of this title shall be filed with the Office of the Federal Register for publication at times established by the Administrative Committee of the Federal Register by regulation. The Archivist of the United States shall cause to be noted on the original of each document the day and hour of filing. Upon filing, the document shall be immediately available for public inspection in the Office. The original shall be retained by the National Archives and Records Administration and shall be available for inspection under regulations prescribed by the Archivist, unless such original is disposed of in accordance with disposal schedules submitted by the Administrative Committee and authorized by the Archivist pursuant to regulations issued under chapter 33 of this title; however, originals of proclamations of the President and Executive orders shall be permanently retained by the Administration as part of the National Archives of the United States. The Office shall transmit to the Government Publishing Office, as provided by this chapter, each document required or authorized to be published by section 1505 of this title. Every Federal agency shall cause to be transmitted for filing the original of all such documents issued, prescribed, or promulgated by the agency.”
Federal Register amendment— Section 1504 of title 44, United States Code, is amended to read as follows:
“1504. Federal Register; publishing; contents; distribution; price
“Documents required or authorized to be published by section 1505 of this title shall be published immediately by the Government Publishing Office in a serial publication designated the Federal Register. The Director of the Government Publishing Office shall make available the facilities of the Government Publishing Office for the prompt publication of the Federal Register in the manner and at the times required by this chapter and the regulations prescribed under it. The contents of the daily issues shall constitute all documents, required or authorized to be published, filed with the Office of the Federal Register up to the time of the day immediately preceding the day of publication fixed by regulations under this chapter. There shall be published with each document a copy of the notation, required to be made by section 1503 of this title, of the day and hour when, upon filing with the Office, the document was made available for public inspection. Distribution shall be made at a time in the morning of the day of distribution fixed by regulations prescribed under this chapter. The prices to be charged for the Federal Register may be fixed by the Administrative Committee of the Federal Register established by section 1506 of this title without reference to the restrictions placed upon and fixed for the sale of Government publications by sections 1705 and 1708 of this title.”
Documents To be published in Federal Register— Section 1505 of title 44, United States Code, is amended—
in subsection (b)—
in the heading, by striking “comments” and inserting “news commentary”; and
by striking “comments” and inserting “news commentary”; and
in subsection (c), in the matter following paragraph (2)—
by inserting “telecommunications, the Internet,” after “the press, the radio,”; and
by striking “and two duplicate originals or two certified copies” and inserting “document”.
Administrative Committee of the Federal Register amendment— Section 1506 of title 44, United States Code, is amended to read as follows:
“1506. Administrative Committee of the Federal Register; establishment and composition; powers and duties
“The Administrative Committee of the Federal Register shall consist of the Archivist of the United States or Acting Archivist, who shall chair the committee, an officer of the Department of Justice designated by the Attorney General, and the Director of the Government Publishing Office or Acting Director of the Government Publishing Office. The Director of the Federal Register shall act as secretary of the committee. The committee shall prescribe, with the approval of the President, regulations for carrying out this chapter. The regulations shall provide for, among other things—
“(1) the documents which shall be authorized under section 1505(b) of this title to be published in the Federal Register;
“(2) the manner and form in which the Federal Register shall be published;
“(3) the manner of distribution to Members of Congress, officers and employees of the United States, or Federal agency, for official use, and the number which shall be available for distribution to the public;
“(4) the prices to be charged for individual copies of, and subscriptions to, the Federal Register and any reprints and bound volumes of it;
“(5) the manner and form by which the Federal Register may receive information and comments from the public, if practicable and efficient; and
“(6) special editions of the Federal Register.”
Code of Federal Regulations amendment— Section 1510 of title 44, United States Code, is amended to read as follows:
“1510. Code of Federal Regulations
“(a) Special edition for codification of agency documents—The Administrative Committee of the Federal Register, with the approval of the President, may require, from time to time as it considers necessary, the preparation and publication in a special edition of the Federal Register a complete codification of the documents of each agency of the Government having general applicability and legal effect, issued or promulgated by the agency by publication in the Federal Register or by filing with the Administrative Committee, and which are relied upon by the agency as authority for, or are invoked or used by it in the discharge of, its activities or functions, and are in effect as to facts arising on or after dates specified by the Administrative Committee.
“(b) Code of Federal Regulations—A codification prepared under subsection (a) of this section shall be published and shall be designated as the “Code of Federal Regulations”. The Administrative Committee shall regulate the manner and forms of publishing this codification.
“(c) Supplementation, collation, and republication—The Administrative Committee shall regulate the supplementation and the collation and republication of the codification with a view to keeping the Code of Federal Regulations as current as practicable. Each unit of codification shall be supplemented and republished at least once each calendar year. The Office of the Federal Register may create updates of each unit of codification from time to time and make the same available electronically or may provide public access using an electronic edition that allows a user to select a specific date and retrieve the version of the codification in effect as of that date.
“(d) Preparation and publication by the Federal Register—The Office of the Federal Register shall prepare and publish the codifications, supplements, collations, and user aids authorized by this section.
“(e) Prima facie evidence—The codified documents of the several agencies published in the Code of Federal Regulations under this section, as amended by documents subsequently filed with the Office and published in the daily issues of the Federal Register, shall be prima facie evidence of the text of the documents and of the fact that they are in effect on and after the date of publication.
“(f) Regulations—The Administrative Committee, with approval of the President, shall issue regulations for carrying out this section.
“(g) Exception—This section does not require codification of the text of Presidential documents published and periodically compiled in supplements to title 3 of the Code of Federal Regulations.”
Technical and conforming amendments— The table of sections for chapter 15 of title 44, United States Code, is amended by striking the items related to sections 1502, 1503, and 1504 and inserting the following:
Sec. 8 Statutory protection for National Archives and Records Administration volunteers
Section 2105(d) of title 44, United States Code, is amended by adding at the end the following new sentence: “An individual who provides voluntary and uncompensated service under this subsection shall not be considered an employee, except for purposes of chapter 81 of title 5 (relating to compensation for injury), sections 2671 through 2680 of title 28 (relating to tort claims), and section 3721 of title 31 (related to damage or loss of personal property incident to volunteer service).”.