IIB 

111TH CONGRESS 

2D SESSION H. R. 1387 

IN THE SENATE OF THE UNITED STATES 

MARCH 18, 2010 

Received; read twice and referred to the Committee on Homeland Security and 

Governmental Affairs 

AN ACT 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Electronic Message 

3 Preservation Act’’. 

4 SEC. 2. PRESERVATION OF ELECTRONIC MESSAGES. 

5 (a) REQUIREMENT FOR PRESERVATION OF ELEC6 TRONIC MESSAGES.— 

7 (1) IN GENERAL.—Chapter 29 of title 44, 

8 United States Code, is amended by adding at the 

9 end the following new section: 

10 ‘‘§ 2911. Electronic messages 

11 ‘‘(a) REGULATIONS REQUIRED.—Not later than 18 

12 months after the date of the enactment of this section, 

13 the Archivist shall promulgate regulations governing agen14 cy preservation of electronic messages that are records. 

15 Such regulations shall, at a minimum— 

16 ‘‘(1) require the electronic capture, manage17 ment, and preservation of such electronic records in 

18 accordance with the records disposition requirements 

19 of chapter 33 of this title; 

20 ‘‘(2) require that such electronic records are 

21 readily accessible for retrieval through electronic 

22 searches; 

23 ‘‘(3) establish mandatory minimum functional 

24 requirements for electronic records management sys25 tems to ensure compliance with the requirements in 

26 paragraphs (1) and (2); 


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1 ‘‘(4) establish a process to certify that Federal 

2 agencies’ electronic records management systems 

3 meet the functional requirements established under 

4 paragraph (3); and 

5 ‘‘(5) include timelines for agency compliance 

6 with the regulations that ensure compliance as expe7 ditiously as practicable but not later than four years 

8 after the date of the enactment of this section. 

9 ‘‘(b) COVERAGE OF OTHER ELECTRONIC

10 RECORDS.—To the extent practicable, the regulations pro11 mulgated under subsection (a) shall also include require12 ments for the capture, management, and preservation of 

13 other electronic records. 

14 ‘‘(c) COMPLIANCE BY FEDERAL AGENCIES.—Each 

15 Federal agency shall comply with the regulations promul16 gated under subsection (a). 

17 ‘‘(d) REVIEW OF REGULATIONS REQUIRED.—The 

18 Archivist shall periodically review and, as necessary, 

19 amend the regulations promulgated under this section. 

20 ‘‘(e) REPORTS ON IMPLEMENTATION OF REGULA21 TIONS.— 

22 ‘‘(1) AGENCY REPORT TO ARCHIVIST.—Not 

23 later than four years after the date of the enactment 

24 of this section, the head of each Federal agency shall 

25 submit to the Archivist a report on the agency’s 


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1 compliance with the regulations promulgated under 

2 this section. 

3 ‘‘(2) ARCHIVIST REPORT TO CONGRESS.—Not 

4 later than 90 days after receipt of all reports re5 quired by paragraph (1), the Archivist shall submit 

6 to the Committee on Homeland Security and Gov7 ernmental Affairs of the Senate and the Committee 

8 on Oversight and Government Reform of the House 

9 of Representatives a report on Federal agency com10 pliance with the regulations promulgated under this 

11 section.’’. 

12 (2) CLERICAL AMENDMENT.—The table of sec13 tions for chapter 29 of title 44, United States Code, 

14 is amended by adding after the item relating to sec15 tion 2910 the following new item: 

‘‘2911. Electronic messages.’’. 

16 (b) DEFINITIONS.—Section 2901 of title 44, United 

17 States Code, is amended— 

18 (1) by striking ‘‘and’’ at the end of paragraph 

19 (14); 

20 (2) by striking the period at the end of para21 graph (15) and inserting a semicolon; and 

22 (3) by adding at the end the following new 

23 paragraphs: 

24 ‘‘(16) the term ‘electronic messages’ means 

25 electronic mail and other electronic messaging sysVerDate Nov 24 2008 23:51 Mar 18, 2010 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H1387.RFS H1387

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1 tems that are used for purposes of communicating 

2 between individuals; and 

3 ‘‘(17) the term ‘electronic records management 

4 system’ means software designed to manage elec5 tronic records, including by— 

6 ‘‘(A) categorizing and locating records; 

7 ‘‘(B) ensuring that records are retained as 

8 long as necessary; 

9 ‘‘(C) identifying records that are due for 

10 disposition; and 

11 ‘‘(D) ensuring the storage, retrieval, and 

12 disposition of records.’’. 

13 SEC. 3. PRESIDENTIAL RECORDS. 

14 (a) ADDITIONAL REGULATIONS RELATING TO PRESI15 DENTIAL RECORDS.— 

16 (1) IN GENERAL.—Section 2206 of title 44, 

17 United States Code, is amended— 

18 (A) by striking ‘‘and’’ at the end of para19 graph (3); 

20 (B) by striking the period at the end of 

21 paragraph (4) and inserting ‘‘; and’’; and 

22 (C) by adding at the end the following: 

23 ‘‘(5) provisions for establishing standards nec24 essary for the economical and efficient management 


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1 of electronic Presidential records during the Presi2 dent’s term of office, including— 

3 ‘‘(A) records management controls nec4 essary for the capture, management, and pres5 ervation of electronic messages; 

6 ‘‘(B) records management controls nec7 essary to ensure that electronic messages are 

8 readily accessible for retrieval through elec9 tronic searches; and 

10 ‘‘(C) a process to certify the electronic 

11 records management system to be used by the 

12 President for the purposes of complying with 

13 the requirements in subparagraphs (A) and 

14 (B).’’. 

15 (2) DEFINITION.—Section 2201 of title 44, 

16 United States Code, is amended by adding at the 

17 end the following new paragraphs: 

18 ‘‘(5) The term ‘electronic messages’ has the 

19 meaning provided in section 2901(16) of this title. 

20 ‘‘(6) The term ‘electronic records management 

21 system’ has the meaning provided in section 

22 2901(17) of this title.’’. 

23 (b) CERTIFICATION OF PRESIDENT’S MANAGEMENT

24 OF PRESIDENTIAL RECORDS.— 


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1 (1) CERTIFICATION REQUIRED.—Chapter 22 of 

2 title 44, United States Code, is amended by adding 

3 at the end the following new section: 

4 ‘‘§ 2208. Certification of the President’s management 

5 of Presidential records 

6 ‘‘(a) ANNUAL CERTIFICATION.—The Archivist shall 

7 annually certify whether the electronic records manage8 ment controls established by the President meet require9 ments under sections 2203(a) and 2206(5) of this title. 

10 ‘‘(b) REPORT TO CONGRESS.—The Archivist shall re11 port annually to the Committee on Homeland Security and 

12 Governmental Affairs of the Senate and the Committee 

13 on Oversight and Government Reform of the House of 

14 Representatives on the status of the certification.’’. 

15 (2) CLERICAL AMENDMENT.—The table of sec16 tions for chapter 22 of title 44, United States Code, 

17 is amended by adding at the end the following new 

18 item: 

‘‘2208. Certification of the President’s management of Presidential records.’’. 

19 (c) REPORT TO CONGRESS.—Section 2203(f) of title 

20 44, United States Code, is amended by adding at the end 

21 the following: 

22 ‘‘(4) One year following the conclusion of a Presi23 dent’s term of office, or if a President serves consecutive 

24 terms one year following the conclusion of the last term, 

25 the Archivist shall submit to the Committee on Homeland 


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1 Security and Governmental Affairs of the Senate and the 

2 Committee on Oversight and Government Reform of the 

3 House of Representatives a report on— 

4 ‘‘(A) the volume and format of electronic Presi5 dential records deposited into that President’s Presi6 dential archival depository; and 

7 ‘‘(B) whether the electronic records manage8 ment controls of that President met the require9 ments under sections 2203(a) and 2206(5) of this 

10 title.’’. 

11 (d) EFFECTIVE DATE.—The amendments made by 

12 this section shall take effect one year after the date of 

13 the enactment of this Act. 

14 SEC. 4. PROCEDURES TO PREVENT UNAUTHORIZED RE15 MOVAL OF CLASSIFIED RECORDS FROM NA16 TIONAL ARCHIVES. 

17 (a) IN GENERAL.—The Archivist of the United 

18 States shall prescribe internal procedures to prevent the 

19 unauthorized removal of classified records from the Na20 tional Archives and Records Administration or the de21 struction or damage of such records, including when such 

22 records are accessed or searched electronically. The proce23 dures shall apply to all National Archives and Records Ad24 ministration facilities authorized to store classified records 

25 and include the following prohibitions: 


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1 (1) No person, other than covered personnel, 

2 shall view classified records in any room that is not 

3 secure except in the presence of National Archives 

4 and Records Administration personnel or under 

5 video surveillance. 

6 (2) No person, other than covered personnel, 

7 shall at any time be left alone with classified 

8 records, unless that person is under video surveil9 lance. 

10 (3) No person, other than covered personnel, 

11 shall conduct any review of classified records while 

12 in the possession of any cell phone or other personal 

13 communication device. 

14 (4) All persons seeking access to review classi15 fied records, as a precondition to such access, must 

16 consent to a search of their belongings upon conclu17 sion of their records review. 

18 (5) All notes and other writings prepared by 

19 persons other than covered personnel during the 

20 course of a review of classified records shall be re21 tained by the National Archives and Records Admin22 istration in a secure facility until such notes and 

23 other writings are determined to be unclassified, are 

24 declassified, or are securely transferred to another 

25 secure facility. 


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1 (b) DEFINITIONS.—In this section: 

2 (1) The term ‘‘records’’ has the meaning pro3 vided in section 3301 of title 44, United States 

4 Code. 

5 (2) The term ‘‘covered personnel’’ means any 

6 individual— 

7 (A) who has an appropriate and necessary 

8 reason for accessing classified records, as deter9 mined by the Archivist; and 

10 (B) who is either— 

11 (i) an officer or employee of the Fed12 eral Government with appropriate security 

13 clearances; or 

14 (ii) any personnel with appropriate se15 curity clearances of a Federal contractor 

16 authorized in writing to act for purposes of 

17 this section by an officer or employee of 

18 the Federal Government. 

19 SEC. 5. RESTRICTIONS ON ACCESS TO PRESIDENTIAL 

20 RECORDS. 

21 Section 2204 of title 44, United States Code (relating 

22 to restrictions on access to presidential records) is amend23 ed by adding at the end the following new subsection: 

24 ‘‘(f) The Archivist shall not make available any origi25 nal presidential records to any individual claiming access 


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1 to any presidential record as a designated representative 

2 under section 2205(3) of this title if that individual has 

3 been convicted of a crime relating to the review, retention, 

4 removal, or destruction of records of the Archives.’’. 

5 SEC. 6. BUDGETARY EFFECTS OF PAYGO LEGISLATION FOR 

6 THIS ACT. 

7 The budgetary effects of this Act, for the purpose of 

8 complying with the Statutory Pay-As-You-Go-Act of 2010, 

9 shall be determined by reference to the latest statement 

10 titled ‘‘Budgetary Effects of PAYGO Legislation’’ for this 

11 Act, submitted for printing in the Congressional Record 

12 by the Chairman of the House Budget Committee, pro13 vided that such statement has been submitted prior to the 

14 vote on passage. 

Passed the House of Representatives March 17, 

2010. 

Attest: LORRAINE C. MILLER, 

Clerk. 


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