Federal Records Modernization Act of 2016

To improve Federal employee compliance with Federal and Presidential recordkeeping requirements, and for other purposes. 1. Short title; table of contents (a) In general This Act may be cited as the Federal Records Modernization Act of 2016 (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 Management. Sec. 6. Retention of electronic correspondence. Sec. 7. Federal Register modernization. Sec. 8. Statutory protection for National Archives and Records Administration volunteers. 2. Removal for deliberate destruction of Federal records (a) In general Chapter 75 VI Federal Records 7551. Definitions In this subchapter the following definitions apply: (1) Employee The term employee (A) an individual in the competitive service who is not serving a probationary or trial period under an initial appointment or who has completed 1 year of current continuous employment in the same or similar positions under other than a temporary appointment limited to 1 year or less; or (B) a career appointee in the Senior Executive Service who— (i) has completed the probationary period prescribed under section 3393(d) of this title; or (ii) was covered by the provisions of subchapter II of this chapter immediately before appointment to the Senior Executive Service. (2) Record The term record (3) Suspension The term suspension 7552. Suspension and removal (a) Inspector General finding If the Inspector General of an agency determines an employee of the agency has willfully and wrongfully concealed, removed, mutilated, obliterated, falsified, or destroyed any record, proceeding, map, book, document, paper, or other thing in the custody of such employee, or verifies a violation under section 2209 or 2911 of title 44, the Inspector General shall promptly inform the head of the agency of that determination in writing. (b) Suspension The head of an agency shall suspend an employee of that agency who has been determined by the Inspector General under subsection (a) to have willfully and unlawfully concealed, removed, mutilated, obliterated, falsified, or destroyed any record, proceeding, map, book, document, paper, or other thing in the custody of such employee, or who has been verified by the Inspector General to be in violation of section 2209 or 2911 of title 44. (c) Requirements after suspension An employee suspended under subsection (b) is entitled, after suspension and before removal, to— (1) be represented by an attorney or other representative; (2) a written statement of the charges against the employee within 15 days after suspension, which may be amended within 30 days thereafter; (3) an opportunity within 15 days after the receipt of the written statement under paragraph (2), plus an additional 15 days if the charges are amended, to answer the charges and submit affidavits; (4) a hearing, at the request of the employee, by an agency authority duly constituted for this purpose; (5) a review of the employee’s case by the head of the agency or a designee, before a decision adverse to the employee is made final; and (6) a written statement of the decision of the head of the agency. (d) Removal Subject to subsection (c) of this section and after any investigation and review the head of the agency considers necessary, the head of an agency shall remove an employee suspended under subsection (b) if such head determines that the employee willfully and unlawfully concealed, removed, mutilated, obliterated, falsified, or destroyed any record, proceeding, map, book, document, paper, or other thing in the custody of such employee. (e) Appeal An employee who is removed under subsection (d) is entitled to appeal to the Merit Systems Protection Board under section 7701 of this title. . (b) Technical and conforming amendments (1) Table of sections The table of sections for chapter 75 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 (B) in subparagraph (E), by striking the period at the end and inserting , or (C) by adding at the end the following: (F) a suspension or removal under section 7552 of this title. . 3. Use of non-official electronic messaging accounts (a) Presidential records Section 2209 of title 44, United States Code, is amended to read as follows: 2209. Disclosure requirement for official business conducted using non-official electronic messaging accounts (a) In general The President, Vice President, or covered employee may not create or send a Presidential or Vice Presidential record using a non-official electronic messaging account (in this section, referred to as applicable electronic message (1) includes an official electronic messaging account of the President, Vice President, or covered employee, as applicable, as a recipient in the original creation or transmission of the applicable electronic message and identifies all recipients of the applicable electronic message in such message; (2) forwards a complete copy of the applicable electronic message, including a complete list of the recipients of such message, to an official electronic messaging account of the President, Vice President, or covered employee, as applicable, within twenty days after the original creation or transmission of the message; or (3) prints a complete copy of the applicable electronic message, including a complete list of the recipients of such message, and submits the message to the appropriate location or individual for appropriate archival storage by the Executive Office of the President within twenty days after the original creation or transmission of the message. (b) Adverse actions An intentional violation of subsection (a) (including any rules, regulations, or other implementing guidelines) by a covered employee, as determined by the appropriate supervisor, shall be forwarded to the Inspector General of the agency for a verification of the violation, and upon verification, shall be subject to the suspension and removal provisions under section 7552 of title 5. (c) Definitions In this section: (1) Covered employee The term covered employee (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 (3) Electronic messaging account The term electronic messaging account . (b) Federal records Section 2911 of title 44, United States Code is amended to read as follows: 2911. Disclosure requirement for official business conducted using non-official electronic messaging accounts (a) In general An officer or employee of an executive agency may not create or send a record using a non-official electronic messaging account (in this section, referred to as applicable electronic message (1) includes an official electronic messaging account of the officer or employee as a recipient in the original creation or transmission of the applicable electronic message and identifies all recipients of the applicable electronic message in such message; (2) forwards a complete copy of the applicable electronic message, including a complete list of the recipients of such message, to an official electronic messaging account of the officer or employee within twenty days after the original creation or transmission of the record; or (3) prints a complete copy of the applicable electronic message, including a complete list of the recipients of such message, and submits it to the appropriate location or individual for appropriate archival storage by the executive agency within twenty days after the original creation or transmission of the message. (b) Adverse actions An intentional violation of subsection (a) (including any rules, regulations, or other implementing guidelines) by an officer or employee of an executive agency, as determined by the appropriate supervisor, shall be forwarded to the Inspector General of the agency for a verification of the violation, and upon verification, shall be subject to the suspension and removal provisions under section 7552 of title 5. (c) Definitions In this section: (1) Electronic message The term electronic message (2) Electronic messaging account The term electronic messaging account . (c) Technical correction Section 2204(b)(2)(A) of title 44, United States Code, is amended by striking section 2203(d)(1) section 2203(g)(1) 4. Reporting of the loss or potential loss of records Section 3106 of title 44, United States Code, is amended to read as follows: 3106. Unlawful removal, destruction of records (a) Notification (1) Archivist and public notification Whenever the actual, impending, or threatened unlawful concealment, removal, mutilation, obliteration, falsification, or destruction of any record, proceeding, map, book, document, paper, or other thing in the custody of a Federal agency comes to the attention of the head of the Federal agency, the head shall— (A) notify the Archivist; and (B) publish a general description of the records at risk or that have been lost on the website of the Federal agency. (2) Federal agency notification Whenever the actual, impending, or threatened unlawful concealment, removal, mutilation, obliteration, falsification, or destruction of any record, proceeding, map, book, document, paper, or other thing in the custody of a Federal agency comes to the attention of a Senior Agency Official for Records Management, such official shall immediately notify the head of the Federal agency. (b) Reclamation of records With the assistance of the Archivist, the head of a Federal agency shall initiate action through the Attorney General for the recovery of records the head knows or has reason to believe have been unlawfully removed from the agency, or from another Federal agency whose records have been transferred to the legal custody of the head. (c) Action by the Archivist In any case in which the head of the Federal agency does not initiate an action for the recovery of records described in subsection (b) or other redress within a reasonable period of time after being notified of any such unlawful removal, the Archivist shall request the Attorney General to initiate an action described in subsection (b), and shall notify the Congress not later than 5 days after the date on which such a request has been submitted to the Attorney General. . 5. Senior Agency Official for Records Management (a) Senior agency official Chapter 31 3108. Senior Agency Official for Records Management (a) Designation Not later than October 1, 2016, 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 3108. Senior Agency Official for Records Compliance. . 6. 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 (2) in paragraph (3), by striking the period at the end and inserting ; 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, or administrative assistant), each career Federal employee, each political appointee, and each member of the Armed Forces serving in equivalent or comparable positions; and (5) electronic capture, management, and preservation of the electronic messaging accounts (as defined in section 2911) described in paragraph (4), in accordance with the records disposal requirements of chapter 33 of this title such that— (A) electronic records are readily accessible for retrieval through electronic searches; and (B) there are mandatory minimum functional requirements for electronic records management systems to ensure compliance with this section. . (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 (a) In general.— (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 Federal 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 (2) in paragraph (5), by striking the period at the end and inserting ; 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, 2017. 7. Federal Register modernization (a) References to printing Chapter 15 (1) in section 1502— (A) in the heading, by striking printing publishing (B) by striking printing and distribution publishing (2) in section 1507 is amended— (A) by striking the duplicate originals or certified copies of the document have the document has (B) in paragraph (2), by striking printed published (3) in section 1509, in subsections (a) and (b) of, by striking printing, reprinting, wrapping, binding, and distributing publishing (b) Publish defined Section 1501 of title 44, United States Code, is amended— (1) by striking ; and person (2) by inserting after the definition for person publish . (c) Filing documents with Office amendment Section 1503 of title 44, United States Code, is amended to read as follows: 1503. Filing documents with Office; notation of time; public inspection; transmission for publishing The original document required or authorized to be published by section 1505 of this title shall be filed with the Office of the Federal Register for publication at times established by the Administrative Committee of the Federal Register by regulation. The Archivist of the United States shall cause to be noted on the original of each document the day and hour of filing. Upon filing, the document shall be immediately available for public inspection in the Office. The original shall be retained by the National Archives and Records Administration and shall be available for inspection under regulations prescribed by the Archivist, unless such original is disposed of in accordance with disposal schedules submitted by the Administrative Committee and authorized by the Archivist pursuant to regulations issued under chapter 33 of this title; however, originals of proclamations of the President and executive orders shall be permanently retained by the Administration as part of the National Archives of the United States. The Office shall transmit to the Government Publishing Office, as provided by this chapter, each document required or authorized to be published by section 1505 of this title. Every Federal agency shall cause to be transmitted for filing the original of all such documents issued, prescribed, or promulgated by the agency. . (d) Federal Register amendment Section 1504 of title 44, United States Code, is amended to read as follows: 1504. Federal Register Documents required or authorized to be published by section 1505 of this title shall be published immediately by the Government Publishing Office in a serial publication designated the Federal Register . (e) Documents To be published in Federal Register Section 1505 of title 44, United States Code, is amended— (1) in subsection (b)— (A) in the heading, by striking comments news commentary (B) by striking comments news commentary (2) in subsection (c), in the matter following paragraph (2)— (A) by inserting telecommunications, the Internet, the press, the radio, (B) by striking and two duplicate originals or two certified copies document (f) Administrative Committee of the Federal Register amendment Section 1506 of title 44, United States Code, is amended to read as follows: 1506. Administrative Committee of the Federal Register; establishment and composition; powers and duties The Administrative Committee of the Federal Register shall consist of the Archivist of the United States or Acting Archivist, who shall chair the committee, an officer of the Department of Justice designated by the Attorney General, and the Director of the Government Publishing Office or Acting Director of the Government Publishing Office. The Director of the Federal Register shall act as secretary of the committee. The committee shall prescribe, with the approval of the President, regulations for carrying out this chapter. The regulations shall provide for, among other things— (1) the documents which shall be authorized under section 1505(b) of this title to be published in the Federal Register; (2) the manner and form in which the Federal Register shall be published; (3) the manner of distribution to Members of Congress, officers and employees of the United States, or Federal agency, for official use, and the number which shall be available for distribution to the public; (4) the prices to be charged for individual copies of, and subscriptions to, the Federal Register and any reprints and bound volumes of it; (5) the manner and form by which the Federal Register may receive information and comments from the public, if practicable and efficient; and (6) special editions of the Federal Register. . (g) Code of Federal Regulations amendment Section 1510 of title 44, United States Code, is amended to read as follows: 1510. Code of Federal Regulations (a) Special edition for codification of agency documents The Administrative Committee of the Federal Register, with the approval of the President, may require, from time to time as it considers necessary, the preparation and publication in a special edition of the Federal Register a complete codification of the documents of each agency of the Government having general applicability and legal effect, issued or promulgated by the agency by publication in the Federal Register or by filing with the Administrative Committee, and which are relied upon by the agency as authority for, or are invoked or used by it in the discharge of, its activities or functions, and are in effect as to facts arising on or after dates specified by the Administrative Committee. (b) Code of Federal Regulations A codification prepared under subsection (a) of this section shall be published and shall be designated as the Code of Federal Regulations (c) Supplementation, collation, and republication The Administrative Committee shall regulate the supplementation and the collation and republication of the codification with a view to keeping the Code of Federal Regulations as current as practicable. Each unit of codification shall be supplemented and republished at least once each calendar year. The Office of the Federal Register may create updates of each unit of codification from time to time and make the same available electronically or may provide public access using an electronic edition that allows a user to select a specific date and retrieve the version of the codification in effect as of that date. (d) Preparation and publication by the Federal Register The Office of the Federal Register shall prepare and publish the codifications, supplements, collations, and user aids authorized by this section. (e) Prima facie evidence The codified documents of the several agencies published in the Code of Federal Regulations under this section, as amended by documents subsequently filed with the Office and published in the daily issues of the Federal Register, shall be prima facie evidence of the text of the documents and of the fact that they are in effect on and after the date of publication. (f) Regulations The Administrative Committee, with approval of the President, shall issue regulations for carrying out this section. (g) Exception This section does not require codification of the text of Presidential documents published and periodically compiled in supplements to title 3 of the Code of Federal Regulations. . (h) Technical and conforming amendments The table of sections for chapter 15 1502. Custody and publishing of Federal documents; appointment of Director. 1503. Filing documents with Office; notation of time; public inspection; transmission for publishing. 1504. Federal Register . 8. Statutory protection for National Archives and Records Administration volunteers Section 2105(d) of title 44, United States Code is amended by adding at the end the following new sentence: An individual who provides voluntary and uncompensated service under this subsection shall not be considered an employee, except for purposes of chapter 81 September 19, 2016 Committed to the Committee of the Whole House on the State of the Union and ordered to be printed

Summary: Federal Records Modernization Act of 2016 (Sec. 2) This bill creates a process for the suspension and removal of federal employees if an agency inspector general determines that they have: (1) willfully and unlawfully concealed, removed, mutilated, obliterated, falsified, or destroyed any record, proceeding, or other thing in their custody; or (2) violated prohibitions against creating or sending records using nonofficial electronic messaging accounts. (Sec. 3) The President, Vice President, or their staff or advisers may not create or send a presidential or vice presidential record using nonofficial electronic messaging accounts unless they: (1) include their official electronic messaging account as a recipient in the original creation or transmission of the electronic message (currently, the official account must only be copied on the message); (2) identify all recipients in such message; and (3) print a copy of the message, including a complete list of recipients, to submit for archival storage by the Executive Office of the President (currently, the message must only be forwarded electronically to their official electronic messaging account). Other executive agency officials or employees may not create or send records using nonofficial electronic messaging accounts unless they follow similar requirements to include their official account as a recipient, identify all recipients, and print a copy to submit for their agencies' archival storage. (Sec. 4) The bill modifies the categories of record removal or destruction that obligate federal agency heads to notify the National Archives and Records Administration (NARA) and initiate actions to recover removed records through the Department of Justice. Agencies must also: (1) notify NARA of concealments or falsifications of agency items, and (2) publish a general description of records at risk or that have been lost. (Sec. 5) Agencies must designate at least one senior records management official (and then reaffirm or designate new officials each year) to: (1) ensure compliance with records management requirements; and (2) immediately notify the agency whenever an actual or threatened destruction, removal, concealment, or falsification of records comes to their attention. (Sec. 6) Each agency's records management program must provide for the electronic capture and automatic retention of messaging accounts containing electronic records that should be: (1) preserved as permanent federal records, and (2) accessible for retrieval through electronic searches. The Government Accountability Office must report every two years on agency management of electronic mail records. The Inspector General Act is amended to require inspectors general to make semiannual recommendations for compliance with records retention requirements. (Sec. 7) The bill requires the Federal Register to be: (1) published (e.g., by electronic means), rather than printed; and (2) available for sale or distribution to the public in published form. It revises requirements for the filing of documents with the Office of the Federal Register and the publication of the Code of Federal Regulations. (Sec. 8) Volunteers serving at NARA may be considered employees for purposes of injury compensation, tort claims, and personal property damages.