IB Union Calendar No. 93 113th CONGRESS 1st Session H. R. 1234 [Report No. 113–128] IN THE HOUSE OF REPRESENTATIVES March 18, 2013 Mr. Cummings introduced the following bill; which was referred to the Committee on Oversight and Government Reform June 25, 2013 Reported with amendments, committed to the Committee of the Whole House on the State of the Union, and ordered to be printed Omit the part struck through and 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. Short title This Act may be cited as the Electronic Message Preservation Act . 2. Records management (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: 2911. 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 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 subsection (a). (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 subsection (a). . (2) Clerical amendment The table of sections at the beginning of chapter 29 of title 44, United States Code, is amended by adding after the item relating to section 2910 the following new item: 2911. Preservation of electronic messages and other records. . (b) Disclosure requirement for official business conducted using non-official electronic messaging account (1) Amendment Chapter 29 of title 44, United States Code, as amended by subsection (a)(1), is further amended by adding at the end the following new section: 2912. 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 unless such officer or employee— (1) copies an official electronic messaging account of the officer or employee in the original creation or transmission of the record; or (2) forwards a complete copy of the record to an official electronic messaging account of the officer or employee within five days after the original creation or transmission of the record. (b) Adverse Actions The intentional violation of subsection (a) (including any rules, regulations, or other implementing guidelines), as determined by the appropriate supervisor, shall be a basis for disciplinary action in accordance with subchapter I, II, or V of chapter 75 of title 5, as the case may be. (c) Definitions In this section: (1) Electronic messages The term electronic messages has the meaning given that term in section 2901. (2) Electronic messaging account The term electronic messaging account means any account that sends electronic messages. (3) Executive agency The term executive agency has the meaning given that term in section 105 of title 5. . (2) Clerical amendment The table of sections at the beginning of chapter 29 of title 44, United States Code, as amended by subsection (a)(2), is further amended by adding at the end the following new item: 2912. Disclosure requirement for official business conducted using non-official electronic messaging accounts. . (b) (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. . 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 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, is amended by adding at the end the following new section: 2208. 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 subsection (a)(4), is further amended 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 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 sections 2203(a) and 2206(5) of this title. . (d) Effective date The amendments made by this section subsections (a), (b), and (c) shall take effect one year after the date of the enactment of this Act. (e) Disclosure requirement for official business conducted using non-official electronic messaging account (1) Amendment Chapter 22 of title 44, United States Code, as amended by subsection (b)(1), is further amended by adding at the end the following new section: 2209. 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 Presidential record using a non-official electronic messaging account unless such officer or employee— (1) copies an official electronic messaging account of the officer or employee in the original creation or transmission of the Presidential record; or (2) forwards a complete copy of the Presidential record to an official electronic messaging account of the officer or employee within five days after the original creation or transmission of the Presidential record. (b) Adverse actions The intentional violation of subsection (a) (including any rules, regulations, or other implementing guidelines), as determined by the appropriate supervisor, shall be a basis for disciplinary action in accordance with subchapter I, II, or V of chapter 75 of title 5, as the case may be. (c) Definitions In this section: (1) Electronic messages The term electronic messages has the meaning given that term in section 2901. (2) Electronic messaging account The term electronic messaging account means any account that sends electronic messages. (3) Executive agency The term executive agency has the meaning given that term in section 105 of title 5. . (2) Clerical amendment The table of sections at the beginning of chapter 22 of title 44, United States Code, as amended by subsection (b)(2), is further amended by adding at the end the following new item: 2209. Disclosure requirement for official business conducted using non-official electronic messaging accounts. .

June 25, 2013 Reported with amendments, committed to the Committee of the Whole House on the State of the Union, and ordered to be printed