IB 

Union Calendar No. 237 

111TH CONGRESS 

2D SESSION H. R. 1387 

[Report No. 111–406] 

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. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 9, 2009 

Mr. HODES (for himself, Mr. TOWNS, and Mr. CLAY) introduced the following 

bill; which was referred to the Committee on Oversight and Government 

Reform 

JANUARY 27, 2010 

Reported with an amendment, committed to the Committee of the Whole 

House on the State of the Union, and ordered to be printed 

[Insert the part printed in italic] 

A BILL 

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.— 

12 ‘‘Not later than 18 months after the date of the 

13 enactment of this section, the Archivist shall promul14 gate regulations governing agency preservation of 

15 electronic messages that are records. Such regula16 tions shall, at a minimum— 

17 ‘‘(1) require the electronic capture, manage18 ment, and preservation of such electronic records in 

19 accordance with the records disposition requirements 

20 of chapter 33 of this title; 

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

22 readily accessible for retrieval through electronic 

23 searches; 

24 ‘‘(3) establish mandatory minimum functional 

25 requirements for electronic records management sysVerDate Nov 24 2008 21:05 Jan 27, 2010 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H1387.RH H1387

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1 tems to ensure compliance with the requirements in 

2 paragraphs (1) and (2); 

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

4 agencies’ electronic records management systems 

5 meet the functional requirements established under 

6 paragraph (3); and 

7 ‘‘(5) include timelines for agency compliance 

8 with the regulations that ensure compliance as expe9 ditiously as practicable but not later than four years 

10 after the date of the enactment of this section. 

11 ‘‘(b) COVERAGE OF OTHER ELECTRONIC

12 RECORDS.—To the extent practicable, the regulations pro13 mulgated under subsection (a) shall also include require14 ments for the capture, management, and preservation of 

15 other electronic records. 

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

17 Federal agency shall comply with the regulations promul18 gated under subsection (a). 

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

20 Archivist shall periodically review and, as necessary, 

21 amend the regulations promulgated under this section. 

22 ‘‘(e) REPORTS ON IMPLEMENTATION OF REGULA23 TIONS.— 

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

25 later than four years after the date of the enactment 


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

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

3 compliance with the regulations promulgated under 

4 this section. 

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

6 later than 90 days after receipt of all reports re7 quired by paragraph (1), the Archivist shall submit 

8 to the Committee on Homeland Security and Gov9 ernmental Affairs of the Senate and the Committee 

10 on Oversight and Government Reform of the House 

11 of Representatives a report on Federal agency com12 pliance with the regulations promulgated under this 

13 section.’’. 

14 (2) CLERICAL AMENDMENT.—The table of sec15 tions for chapter 29 of title 44, United States Code, 

16 is amended by adding after the item relating to sec17 tion 2910 the following new item: 

‘‘2911. Electronic messages.’’. 

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

19 States Code, is amended— 

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

21 (14); 

22 (2) by striking the period at the end of para23 graph (15) and inserting a semicolon; and 

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

25 paragraphs: 


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

2 electronic mail and other electronic messaging sys3 tems that are used for purposes of communicating 

4 between individuals; and 

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

6 system’ means a software system designed to man7 age electronic records within an information tech8 nology system, including by— 

9 ‘‘(A) categorizing and locating records; 

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

11 long as necessary; 

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

13 disposition; and 

14 ‘‘(D) the storage, retrieval, and disposition 

15 of records.’’. 

16 SEC. 3. PRESIDENTIAL RECORDS. 

17 (a) ADDITIONAL REGULATIONS RELATING TO PRESI18 DENTIAL RECORDS.— 

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

20 United States Code, is amended— 

21 (A) by striking ‘‘and’’ at the end of para22 graph (3); 

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

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

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


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1 ‘‘(5) provisions for establishing standards nec2 essary for the economical and efficient management 

3 of Presidential records during the President’s term 

4 of office, including— 

5 ‘‘(A) records management controls nec6 essary for the capture, management, and pres7 ervation of electronic messages; 

8 ‘‘(B) records management controls nec9 essary to ensure that electronic messages are 

10 readily accessible for retrieval through elec11 tronic searches; and 

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

13 records management system to be used by the 

14 President for the purposes of complying with 

15 the requirements in subparagraphs (A) and 

16 (B).’’. 

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

18 United States Code, is amended by adding at the 

19 end the following new paragraphs: 

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

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

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

23 system’ has the meaning provided in section 

24 2901(17) of this title.’’. 


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1 (b) CERTIFICATION OF PRESIDENT’S MANAGEMENT

2 OF PRESIDENTIAL RECORDS.— 

3 (1) CERTIFICATION REQUIRED.—Chapter 22 of 

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

5 at the end the following new section: 

6 ‘‘§ 2208. Certification of the President’s management 

7 of Presidential records 

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

9 annually certify whether the records management controls 

10 established by the President meet requirements under sec11 tions 2203(a) and 2206(5) of this title. 

12 ‘‘(b) REPORT TO CONGRESS.—The Archivist shall re13 port annually to the Committee on Homeland Security and 

14 Governmental Affairs of the Senate and the Committee 

15 on Oversight and Government Reform of the House of 

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

17 (2) CLERICAL AMENDMENT.—The table of sec18 tions for chapter 22 of title 44, United States Code, 

19 is amended by adding at the end the following new 

20 item: 

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

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

22 44, United States Code, is amended by adding at the end 

23 the following: 

24 ‘‘(4) One year following the conclusion of a Presi25 dent’s term of office, or if a President serves consecutive 


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

2 the Archivist shall submit to the Committee on Homeland 

3 Security and Governmental Affairs of the Senate and the 

4 Committee on Oversight and Government Reform of the 

5 House of Representatives a report on— 

6 ‘‘(A) the volume and format of Presidential 

7 records deposited into that President’s Presidential 

8 archival depository; and 

9 ‘‘(B) whether the records management controls 

10 of that President met the requirements under sec11 tions 2203(a) and 2206(5) of this title.’’. 

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

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

14 the enactment of this Act. 

15 SEC. 4. PROCEDURES TO PREVENT UNAUTHORIZED RE16 MOVAL OF CLASSIFIED RECORDS FROM NA17 TIONAL ARCHIVES. 

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

19 shall prescribe internal procedures to prevent the unauthor20 ized removal of classified records from the National Ar21 chives and Records Administration or the destruction or 

22 damage of such records, including when such records are 

23 accessed or searched electronically. The procedures shall in24 clude the following prohibitions: 


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1 (1) No person, other than personnel of the Na2 tional Archives and Records Administration (in this 

3 section hereafter referred to as ‘‘NARA personnel’’), 

4 shall view classified records in any room that is not 

5 secure except in the presence of NARA personnel or 

6 under video surveillance. 

7 (2) No person, other than NARA personnel, shall 

8 at any time be left alone with classified records, un9 less that person is under video surveillance. 

10 (3) No person, other than NARA personnel, shall 

11 conduct any review of documents while in the posses12 sion of any cell phone or other personal communica13 tion device. 

14 (4) All persons seeking access to classified 

15 records, as a precondition to such access, must con16 sent to a search of their belongings upon conclusion 

17 of their records review. 

18 (5) All notes and other writings prepared by per19 sons during the course of a review of classified records 

20 shall be retained by the National Archives and 

21 Records Administration in a secure facility. 

22 (b) DEFINITION OF RECORDS.—In this section, the 

23 term ‘‘records’’ has the meaning provided in section 3301 

24 of title 44, United States Code. 


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1 SEC. 5. RESTRICTIONS ON ACCESS TO PRESIDENTIAL 

2 RECORDS. 

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

4 to restrictions on access to presidential records) is amended 

5 by adding at the end the following new subsection: 

6 ‘‘(f) The Archivist shall not make available any origi7 nal presidential records to any individual claiming access 

8 to any presidential record as a designated representative 

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

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

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


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Union Calendar No. 237 

111TH CONGRESS 

2D SESSION H. R. 1387 

[Report No. 111–406] 

A BILL 

To amend title 44, United States Code, to require 

other purposes. ports relating to Presidential records, and for eral agencies, to require a certification and represervation of certain electronic records by FedJANUARY 27, 2010 

Reported with an amendment, committed to the Comand ordered to be printed mittee of the Whole House on the State of the Union, 


jlentini on DSKJ8SOYB1PROD with BILLS