```

[House Report 110-709]
[From the U.S. Government Publishing Office]

110th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     110-709

======================================================================

 
                  ELECTRONIC MESSAGE PRESERVATION ACT

                                _______
                                

 June 11, 2008.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

  Mr. Waxman, from the Committee on Oversight and Government Reform, 
                        submitted the following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                        [To accompany H.R. 5811]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Oversight and Government Reform, to whom was 
referred the bill (H.R. 5811) 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 an 
amendment and recommend that the bill as amended do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     3
Background and Need for Legislation..............................     4
Legislative History..............................................     4
Section-by-Section...............................................     5
Explanation of Amendments........................................     6
Committee Consideration..........................................     6
Rollcall Votes...................................................     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............     7
Constitutional Authority Statement...............................     7
Federal Advisory Committee Act...................................     7
Unfunded Mandates 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............    10
Additional Views.................................................    14

    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Electronic Message Preservation Act''.

SEC. 2. PRESERVATION OF ELECTRONIC MESSAGES.

  (a) Requirement for Preservation of Electronic Messages.--
          (1) In general.--Chapter 29 of title 44, United States Code, 
        is amended by adding at the end the following new section:

``Sec. 2911. Electronic messages

  ``(a) Regulations Required.--Not later than 18 months after the date 
of the enactment of this section, the Archivist shall promulgate 
regulations governing agency preservation of electronic messages that 
are records. 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 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 this section.
  ``(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 this section.''.
          (2) Clerical amendment.--The table of sections for chapter 29 
        of title 44, United States Code, is amended by adding after the 
        item relating to section 2910 the following new item:

``2911. Electronic messages.''.

  (b) Definitions.--Section 2901 of title 44, United States Code, is 
amended--
          (1) by striking ``and'' at the end of paragraph (14);
          (2) by striking the period at the end of paragraph (15) and 
        inserting a semicolon; and
          (3) by adding at the end the following new paragraphs:
          ``(16) the term `electronic messages' means electronic mail 
        and other electronic messaging systems that are used for 
        purposes of communicating between individuals; and
          ``(17) the term `electronic records management system' means 
        a software system designed to manage electronic records within 
        an information technology system, 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) the storage, retrieval, and disposition of 
                records.''.

SEC. 3. PRESIDENTIAL RECORDS.

  (a) Additional Regulations Relating to Presidential Records.--
          (1) In general.--Section 2206 of title 44, United States 
        Code, is amended--
                  (A) by striking ``and'' at the end of paragraph (3);
                  (B) by striking the period at the end of paragraph 
                (4) and inserting ``; and''; and
                  (C) by adding at the end the following:
          ``(5) provisions for establishing standards necessary for the 
        economical and efficient management of 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).''.
          (2) Definition.--Section 2201 of title 44, United States 
        Code, is amended by adding at the end the following new 
        paragraphs:
          ``(5) The term `electronic messages' has the meaning provided 
        in section 2901(16) of this title.
          ``(6) The term `electronic records management system' has the 
        meaning provided in section 2901(17) of this title.''.
  (b) Certification of President's Management of Presidential 
Records.--
          (1) Certification required.--Chapter 22 of title 44, United 
        States Code, is amended by adding at the end the following new 
        section:

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

  ``(a) Annual Certification.--The Archivist shall annually certify 
whether the 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.''.
          (2) Clerical amendment.--The table of sections for chapter 22 
        of title 44, United States Code, is amended by adding at the 
        end the following new item:

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

  (c) Report to Congress.--Section 2203(f) of title 44, United States 
Code, is amended by adding at the end the following:
  ``(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 Presidential records deposited 
        into that President's Presidential archival depository; and
          ``(B) whether the records management controls of that 
        President met the requirements under sections 2203(a) and 
        2206(5) of this title.''.
  (d) Effective Date.--The amendments made by this section shall take 
effect one year after the date of the enactment of this Act.

                          Purpose and Summary

    H.R. 5811, the Electronic Message Preservation Act of 2007, 
was introduced by Rep. Henry A. Waxman, Rep. William Lacy Clay, 
the Chairman of the Subcommittee on Information Policy, the 
Census, and the National Archives, and Rep. Paul Hodes on April 
15, 2008. H.R. 5811 modernizes the requirements of the Federal 
Records Act and the Presidential Records Act to ensure the 
preservation of e-mails and other electronic messages.

                  Background and Need for Legislation

    Investigations by the Oversight Committee have revealed 
significant deficiencies in the preservation of e-mail by the 
White House and federal agencies. Committee investigations have 
revealed that during the Bush Administration, numerous White 
House officials--including Senior Advisor Karl Rove--used e-
mail accounts maintained by the Republican National Committee, 
which regularly deleted the e-mails from its servers. E-mails 
sent by White House officials over these RNC accounts included 
e-mails concerning official government business. In addition, 
the White House cannot account for hundreds of days' worth of 
official White House e-mails sent and received between 2003 and 
2005. At the time of these losses, the White House used an e-
mail archiving system that a former White House information 
technology officer described as ``primitive.''
    While the problems have been particularly acute under the 
Bush Administration, other administrations, including President 
Clinton's, have encountered problems preserving e-mail records.
    To ensure the retention of these important records, H.R. 
5811 directs the archivist to establish standards for the 
capture, management, and preservation of White House e-mails 
and other electronic messages and to certify that the system 
meets the requirements established by the archivist.
    Under current law, federal agencies have broad discretion 
to determine how electronic records and electronic 
communications are preserved. Committee investigations and the 
Government Accountability Office have found that many agencies 
rely on unreliable ``print and file'' systems for preserving 
electronic records, including e-mails. As a result, many e-
mails that should be saved as federal records may be lost.
    H.R. 5811 directs the Archivist to issue regulations 
requiring agencies to preserve electronic messages that are 
records in an electronic format. These regulations must cover, 
at a minimum, the capture, management, preservation, and 
electronic retrieval of these electronic records, and must be 
implemented within four years of the enactment of the Act.

                          Legislative History

    H.R. 5811 was introduced by Reps. Waxman, Clay, and Hodes 
on April 15, 2008, and referred to the Committee on Oversight 
and Government Reform.
    The Subcommittee on Information Policy, the Census, and the 
National Archives held a hearing on H.R. 5811 on April 23, 
2008. The witnesses were Linda Koontz, Director, Information 
Management Issues, U.S. Government Accountability Office; Gary 
M. Stern, General Counsel, National Archives and Records 
Administration; Paul M. Wester, Director, Modern Records 
program, National Archives and Records Administration; and 
Patrice McDermott, Director, OpentheGovernment.org. The 
Subcommittee also received written testimony from Dr. Anna 
Nelson, Distinguished Historian in Residence at American 
University representing the National Coalition for History.
    The Committee on Oversight and Government Reform held a 
business meeting on May 1, 2008, to consider H.R. 5811 and 
ordered the bill to be reported as amended by voice vote.

                           Section-by-Section

Section 1: Short title

    The short title of the bill is the Electronic Message 
Preservation Act of 2008.

Section 2: Preservation of electronic messages

    Section 2(a) mandates the electronic preservation of 
electronic messages that are federal records. Subsection (a) of 
this new section directs the archivist to promulgate 
regulations governing agency preservation of these records no 
later than 18 months after the enactment of the act. These 
regulations would require, at a minimum, the electronic 
capture, management, and preservation of these records in 
accordance with the requirements of the Federal Records Act and 
the accessibility of these records through electronic searches. 
In addition, the regulations would need to establish mandatory 
minimum functional requirements for electronic records 
management systems to be used by federal agencies for these 
purposes and to establish a process to certify that agency 
systems meet these functional requirements. The Committee's 
intent is that the National Archives could conduct this 
certification on its own, or work with other entities that have 
developed expertise in this area. And finally, the regulations 
would need to establish timelines for agency compliance with 
the regulations within four years of the enactment of the Act.
    Subsection (b) of the new section directs the Archivist, to 
the extent practicable, to include requirements for the 
capture, management, and preservation of other electronic 
records in these regulations. The Committee recognizes that, at 
some future date, federal agencies will be managing all of 
their electronic records electronically. While this legislation 
focuses on electronic messages, agencies should be encouraged 
to implement records management systems that encompass a 
broader range of records where appropriate.
    Subsection (c) of the new section directs federal agencies 
to comply with the regulations promulgated by the Archivist. 
Subsection (d) directs the Archivist to periodically review and 
amend the regulations promulgated under the section. And 
subsection (e) directs each federal agency to report to the 
Archivist, and the Archivist to report to Congressional 
Committees, on agency compliance with the regulations four 
years after the enactment of the Act.
    Section 2(b) defines electronic messages and electronic 
records management systems.

Section 3: Presidential records

    This section directs the Archivist to establish standards 
for the management of presidential records during the 
president's term of office, including specific standards for 
the management and preservation of electronic messages. The 
Archivist is further directed to annually certify whether the 
records management controls put in place by the president meet 
the existing requirements of the Presidential Records Act as 
well as the standards developed by the Archivist.
    The section calls on the Archivist to report annually to 
congressional committees on the status of the certification. In 
addition, one year following the end of a president's term, the 
Archivist is directed to report to these same congressional 
committees on the volume and format of presidential records 
provided by that president to the National Archives, and 
whether the records management controls of the president met 
the requirements of the Presidential Records Act as well as the 
standards developed by the Archivist. The one year delay in 
filing this report is intended to give the Archivist the 
opportunity to review the records received and make an 
independent determination of whether the law and the standards 
governing records preservation were met.

                       Explanation of Amendments

    Mr. Waxman offered an amendment in the nature of a 
substitute. The amendment clarified that the legislation 
applies to electronic messages rather than electronic 
communications and provided a definition of electronic 
messages. Similarly, based on comments from the National 
Archives that the term ``electronic records management 
applications'' may limit agencies' ability to adapt to changing 
technologies, the amendment clarified that agencies and the 
White House should rely on broadly defined electronic records 
management systems to manage records. In addition, the 
amendment corrected a drafting error in the bill as introduced; 
it revised Section 2(a) of the bill to add a new section to 
Chapter 29 of Title 44, rather than Chapter 31.
    The Waxman amendment in the nature of a substitute passed 
by voice vote.

                        Committee Consideration

    On Thursday, May 1, 2008, the Committee met in open session 
and favorably ordered H.R. 5811 as amended to be reported to 
the House by a voice vote.

                             Rollcall Votes

    No rollcall votes were held.

              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 terms and conditions of 
employment or access to public services and accommodations. The 
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, including the fact that the e-mail archiving 
system was described as ``primitive'' by a former White House 
information technology officer.

         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, including the need to ensure the preservation 
of government e-mails and other electronic messages.

                   Constitutional Authority Statement

    Under clause 3(d)(1) of rule XIII of the Rules of the House 
of Representatives, the Committee must include a statement 
citing the specific powers granted to Congress to enact the law 
proposed by H.R. 5811. Article I, Section 8, Clause 18 of the 
Constitution of the United States grants the Congress the power 
to enact this law.

                     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 Mandates Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandates Reform Act, P.L. 104-4) requires a statement on 
whether the provisions of the report 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. 5811 does not include any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9(d), 9(e), or 9(f) 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. 5811. 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. 5811 from the Director of 
the Congressional Budget Office:

                                                     June 10, 2008.
Hon. Henry A. Waxman,
Chairman, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 5811, 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,
                                                   Peter R. Orszag.
    Enclosure.

H.R. 5811--Electronic Message Preservation Act

    Summary: H.R. 5811 would amend federal law regarding the 
preservation and storage of electronic communications. 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. The bill also would require federal agencies 
to manage and preserve their e-mail records electronically. 
Finally, H.R. 5811 would amend the Presidential Records Act to 
give NARA additional oversight of electronic Presidential 
records.
    CBO estimates that implementing H.R. 5811 would cost $13 
million in 2009 and about $155 million over the 2009-2013 
period, assuming appropriation of the necessary amounts. The 
legislation could also affect direct spending by agencies not 
funded through annual appropriations (such as the Tennessee 
Valley Authority) or by agencies considered off-budget (such as 
the U.S. Postal Service). CBO estimates, however, that any net 
increase in spending by those agencies would not be 
significant.
    H.R. 5811 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would not affect the budgets of state, local, or tribal 
governments.
    Estimated cost to the Federal Government: The estimated 
budgetary impact of H.R. 5811 is shown in the following table. 
The costs of this legislation fall within all budget functions 
that contain salaries and expenses.

----------------------------------------------------------------------------------------------------------------
                                                               By fiscal year, in millions of dollars--
                                                     -----------------------------------------------------------
                                                                                                          2009-
                                                        2009      2010      2011      2012      2013      2013
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated Authorization Level.......................        15        25        35        45        40       160
Estimated Outlays...................................        13        24        34        44        40       155
----------------------------------------------------------------------------------------------------------------

    Basis of Estimate: For this estimate, CBO assumes that the 
bill will be enacted near the start of fiscal year 2009 and 
that spending would follow historical patterns for similar 
activities.
    Most of the provisions of H.R. 5811 would expand the 
current practices of the federal government. Under the Federal 
Records Act, each federal agency is required to make and 
preserve records of its activities. To accomplish this, 
agencies are required to develop programs to ensure that they 
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 specifically 
require that e-mails be stored electronically, NARA allows 
agencies to print and file paper copies of e-mail records. H.R. 
5811 would require agencies over the next four years to move 
exclusively to a system that would electronically manage all e-
mail records.
    CBO is unaware of any comprehensive information on the 
current status of the electronic recordkeeping capabilities of 
the federal government or the costs to create an e-mail records 
system. Information from the Office of Management and Budget 
(OMB), the Government Accountability Office (GAO), some federal 
agencies. and NARA suggests that very few federal agencies 
currently archive all e-mail messages electronically as the 
bill would require. Most agencies currently maintain a print 
and file system of e-mail records.
    While most government documents are created in a computer 
format, GAO has reported that financial constraints and 
technical challenges associated with electronic recordkeeping 
have hampered the development of electronic systems to archive 
records. GAO also reports that federal agencies generally have 
little experience with acquiring and operating an electronic 
filing system for e-mail records. The cost to create such a 
system would depend upon the current status of each agency's 
system, the size of the agency, and the volume of work it 
performs.
    Currently the federal government spends about $24 billion a 
year on information technology, including mission support, 
infrastructure, and enterprise architecture and planning. Using 
information from GAO, NARA, OMB. selected federal agencies, and 
private-sector vendors about the current status of government 
e-mail systems and the costs to enhance those systems to 
archive e-mail, CBO estimates that implementing H.R. 5811 would 
cost $13 million in 2009 and about $155 million over the 2009-
2013 period, assuming appropriation of the necessary amounts. 
Those amounts would cover the initial costs of purchasing 
software products for archiving and disk-storage devices, and 
conducting training. Those initial expenses would total $60 
million and would be incurred over the first four years. 
Ongoing costs (which would total about $40 million a year when 
the new systems would be fully implemented in 2013) would total 
about $95 million over the 2009-2013 period, mostly for renewal 
of software licenses and additional data storage.
    Electronically archiving e-mail could reduce the 
administrative costs agencies incur to print and file paper 
copies and to perform other retrieval-based tasks, such as 
Freedom of Information Act requests. CBO expects that any such 
savings over the next five years would be negligible.
    Intergovernmental and private-sector impact: H.R. 5811 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would not affect the budgets of state, 
local, or tribal governments.
    Estimate prepared by: Federal costs: Matthew Pickford; 
Impact on state, local, and tribal governments: Elizabeth Cove; 
Impact on the private-sector: Paige Piper/Bach.
    Estimate 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.

Sec. 2201. Definitions

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

           *       *       *       *       *       *       *

          (5) The term ``electronic messages'' has the meaning 
        provided in section 2901(16) of this title.
          (6) The term ``electronic records management system'' 
        has the meaning provided in section 2901(17) 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 Presidential records 
        deposited into that President's Presidential archival 
        depository; and
          (B) whether the 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 
        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 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.

           *       *       *       *       *       *       *

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

Sec.
2901. Definitions.
     * * * * * * *
2911. Electronic messages.

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[.];
          (16) the term ``electronic messages'' means 
        electronic mail and other electronic messaging systems 
        that are used for purposes of communicating between 
        individuals; and
          (17) the term ``electronic records management 
        system'' means a software system designed to manage 
        electronic records within an information technology 
        system, 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) the storage, retrieval, and disposition 
                of records.

           *       *       *       *       *       *       *

Sec. 2911. Electronic messages

  (a) Regulations Required.--Not later than 18 months after the 
date of the enactment of this section, the Archivist shall 
promulgate regulations governing agency preservation of 
electronic messages that are records. 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 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 this section.
  (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 this section.

           *       *       *       *       *       *       *

                            ADDITIONAL VIEWS

    I appreciate this opportunity to comment briefly on the 
topic of preserving our Nation's history. I could not agree 
more with Ms. Anna Nelson, Director of History from American 
University about having to rely on unreliable memoirs, 
scattered agency records and the New York Times to reconstruct 
the history of policymaking records. Our historians should not 
rely on events as reported by the New York Times or from 
memoirs, whose authors may embellish the facts.
    To make federal agencies comply, I believe this legislation 
should include enforceable repercussion language. Ms. Patricia 
McDermott of OpenTheGovernment.org suggests this is the only 
way to make federal agencies comply with the Federal Records 
Act. Ms. McDermott states that she does not ``think anyone has 
ever been prosecuted for destroying, much less failing to 
preserve federal records.'' Just ask former Clinton EPA 
Director Carol Browner. She supposedly oversaw the destruction 
of her computer files in violation of a judge's order requiring 
the agency to preserve its records.
    In this bill, however, we seem to be elevating actions by a 
small number of staffers, who allegedly deleted private email 
accounts years ago, to the level of the former EPA Director.
    The purpose of this legislation should be on preserving our 
nation's history and not on political gamesmanship. The 
American people deserve better from their Representatives.
                                                         Bill Sali.

                                  

```