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[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5170 Referred in Senate (RFS)]

113th CONGRESS
  2d Session
                                H. R. 5170

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

           September 17 (legislative day, September 16), 2014

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

_______________________________________________________________________

                                 AN ACT

 
      To improve Federal employee compliance with the Federal and 
    Presidential recordkeeping requirements, and for other purposes.

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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) In General.--This Act may be cited as the ``Federal Records 
Accountability Act of 2014''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Removal for deliberate destruction of Federal records.
Sec. 3. Use of non-official electronic messaging accounts.
Sec. 4. Reporting of the loss or potential loss of records.
Sec. 5. Senior Agency Official for Records Compliance.
Sec. 6. Preservation of electronic messages and other records.
Sec. 7. Presidential records.
Sec. 8. Retention of electronic correspondence.

SEC. 2. REMOVAL FOR DELIBERATE DESTRUCTION OF FEDERAL RECORDS.

    (a) In General.--Chapter 75 of title 5, United States Code, is 
amended by adding after subchapter V the following:

                    ``SUBCHAPTER VI--FEDERAL RECORDS

``Sec. 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) Suspension.--The term `suspension' has the meaning 
        given that term in section 7501 of this title.
``Sec. 7552. Suspension and removal
    ``(a) Inspector General Finding.--If the Inspector General of an 
agency determines an employee of the agency has 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 verifies a violation under 
section 2208 or 2911 of title 44, the Inspector General shall promptly 
inform the head of the agency of that determination in writing.
    ``(b) Suspension.--Notwithstanding any other provision of law, 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 2208 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.''.
    (b) Technical and Conforming Amendments.--
            (1) 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 vi--federal records

``7551. Definitions.
``7552. Suspension and removal.''.
            (2) Subchapter ii applicability.--Section 7512 of such 
        title is amended--
                    (A) in subparagraph (D), by striking ``or'' at the 
                end;
                    (B) in subparagraph (E), by striking the period at 
                the end and inserting ``, or''; and
                    (C) 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.

    (a) Presidential Records Act.--Chapter 22 of title 44, United 
States Code is amended by adding at the end the following new section:
``Sec. 2208. 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 fifteen 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 fifteen 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.''.
    (b) Federal Records.--Chapter 29 of title 44, United States Code is 
amended by adding at the end the following new section:
``Sec. 2911. Disclosure requirement for official business conducted 
              using non-official electronic messaging accounts
    ``(a) In General.--An officer or employee of a Federal 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 fifteen 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 Federal 
        agency within fifteen 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 a Federal 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.''.
    (c) Technical and Conforming Amendments.--
            (1) Chapter 22.--The table of sections at the beginning of 
        chapter 22 of title 44, United States Code, is amended by 
        adding at the end the following new item:

``2208. Disclosure requirement for official business conducted using 
                            non-official electronic messaging 
                            accounts.''.
            (2) Chapter 29.--The table of sections at the beginning of 
        chapter 29 of title 44, United States Code, is amended by 
        adding at the end the following new item:

``2911. Disclosure requirement for official business conducted using 
                            non-official electronic messaging 
                            accounts.''.

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:
``Sec. 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 an agency comes to the attention of the head 
        of the Federal agency, the head of the agency shall--
                    ``(A) notify the Archivist; and
                    ``(B) publish a general description of the records 
                at risk or that have been lost on the website of the 
                agency.
            ``(2) 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 an agency comes to the attention of a Senior Agency 
        Official for Records Management, such official shall 
        immediately notify the head of the 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 such head.
    ``(c) Action by the Archivist.--In any case in which the head of 
the 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 COMPLIANCE.

    (a) Senior Agency Official.--Chapter 31 of title 44, United States 
Code, is amended by adding at the end the following new section:
``Sec. 3108. Senior Agency Official for Records Compliance
    ``(a) Designation.--Not later than November 15, 2014, 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.''.
    (b) 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:

``3108. Senior Agency Official for Records Compliance.''.

SEC. 6. PRESERVATION OF ELECTRONIC MESSAGES AND OTHER RECORDS.

    (a) Requirement for Preservation of Electronic Messages.--Chapter 
29 of title 44, United States Code, as amended by section 3(b), is 
further amended by adding at the end the following new section:
``Sec. 2912. 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 2 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 3 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).''.
    (b) Clerical Amendment.--The table of sections at the beginning of 
chapter 29 of title 44, United States Code, as amended by section 
3(c)(2), is further amended by adding after the item relating to 
section 2911 the following new item:

``2912. Preservation of electronic messages and other records.''.
    (c) Definitions.--Section 2901 of title 44, United States Code, is 
amended--
            (1) by striking ``and'' at the end of paragraph (14); and
            (2) by striking paragraph (15) and inserting the following 
        new paragraphs:
            ``(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. 7. 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 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).''.
            (2) Definitions.--Section 2201 of title 44, United States 
        Code, is amended by adding at the end the following new 
        paragraphs:
            ``(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.''.
    (b) Certification of President's Management of Presidential 
Records.--
            (1) Certification required.--Chapter 22 of title 44, United 
        States Code, as amended by section 3(a), is further amended by 
        adding at the end the following new section:
``Sec. 2209. 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.''.
            (2) Clerical amendment.--The table of sections at the 
        beginning of chapter 22 of title 44, United States Code, as 
        amended by section 3(c)(1), is further amended by adding at the 
        end the following new item:

``2209. 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 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 subsection (a) and 
        section 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.

SEC. 8. RETENTION OF ELECTRONIC CORRESPONDENCE.

    (a) Retention of Records of High Level Officials.--Section 3102 of 
title 44, United States Code, is amended--
            (1) in paragraph (2), by striking ``; and'' and inserting a 
        semicolon;
            (2) in paragraph (3), by striking the period at the end and 
        inserting ``; and''; and
            (3) 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, 
        and 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.''.
    (b) Review by the Comptroller General of the United States.--
Section 3107 of title 44, United States Code, is amended--
            (1) by striking ``Chapters 21'' and inserting ``(a) In 
        General.--Chapters 21''; and
            (2) by adding at the end the following:
    ``(b) Comptroller General Evaluation.--The Comptroller General 
shall evaluate and report to Congress not less than every two years on 
agency management of electronic mail records required under paragraphs 
(4) and (5) of section 3102.''.
    (c) Review by Inspector General.--Section 4(a) of the Inspector 
General Act (5 U.S.C. App) is amended--
            (1) in paragraph (4), by striking ``; and'' and inserting a 
        semicolon;
            (2) in paragraph (5), by striking the period at the end and 
        inserting ``; and''; and
            (3) 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.''.
    (d) Effective Date.--This section and the amendments made by this 
section shall take effect on December 31, 2016.

            Passed the House of Representatives September 16, 2014.

            Attest:

                                                 KAREN L. HAAS,

                                                                 Clerk.
```