Records management: Agency records centers; storage standard update,

[Federal Register: September 15, 1999 (Volume 64, Number 178)]

[Proposed Rules]

[Page 50028-50031]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr15se99-37]

NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

36 CFR Part 1228

Agency Records Center Rule

AGENCY: National Archives and Records Administration.

ACTION: Initial Regulatory Flexibility Analysis.

SUMMARY: The National Archives and Records Administration (NARA) is publishing this initial regulatory flexibility analysis to aid the public in commenting upon the small business impact of its proposed rule revising and updating the standards that records center storage facilities must meet to store Federal records.

DATES: Written comments must be received at the address shown in the

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ADDRESSES section on or before October 15, 1999. Comments received after this date will not be considered.

ADDRESSES: Submit comments to Regulation Comment Desk (NPOL), Room 4100, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001. Alternatively, comments may be faxed to 301-713-7270.

FOR FURTHER INFORMATION CONTACT: Nancy Allard at (301) 713-7360, ext. 226.

SUPPLEMENTARY INFORMATION: This notice supplements NARA's initial notice of proposed rulemaking published on April 30, 1999, at 64 FR 23504, to revise and update records storage facility standards in 36 CFR part 1228, subpart K. NARA's notice of proposed rulemaking did not include an initial regulatory flexibility analysis pursuant to the Regulatory Flexibility Act (5 U.S.C. 603), based on a certification that the proposed rule will not have a significant economic impact on a substantial number of small entities (5 U.S.C. 605). See 64 FR at 23505. The certification statement in the proposed rule inadvertently omitted the phrase ``a substantial number of'', although NARA intended that phrase to be part of the statement.

Background

The proposed rule would apply to all records storage facilities Federal agencies use to store, service, and dispose of their records, including records centers operated by NARA and other Federal agencies and those commercial records storage facilities that Federal agencies use to store Federal records. NARA based its certification statement on the following unstated assumptions:

‹bullet› The proposed rule relies on voluntary industry standards and industry recommended practices as the basis for most of the requirements. NARA made a reasonable assumption that most commercial facilities that would be likely to store Federal records would already conform to the industry standards and recommended practices. Thus, there would not be a significant cost to existing small businesses to upgrade their facilities to meet the proposed general facility standards.

‹bullet› Environmental control requirements for storage of microfilm, audiovisual, and/or electronic permanent and unscheduled records have been in force elsewhere in NARA regulations for three or more years. Thus re-stating them in this proposed rule was not changing the existing burden on storage facilities. Moreover, at the time the proposed rule was developed, permanent records comprise only about five to six percent of the NARA's total records center holdings. Because only the specific records storage areas that contain permanent or unscheduled Federal records will require the NARA environmental controls, we assumed that it was unlikely that a significant number of commercial centers, small or large, would need to add air-conditioning equivalent to that required for office space to more than one storage module.

‹bullet› Certain proposed requirements are imposed by authorities outside NARA: The building security requirements are those established by the Department of Justice for Level III Federal facilities. Seismic safety provisions are required by Executive orders and an integrated pest management program is mandated for Federal agencies by the Food Protection Act of 1996. Any economic burden for complying with these requirements would exist independently of NARA's proposed rule.

‹bullet› NARA would continue to store Federal records for some agencies, although other agencies might choose private sector or other Federal agency centers to store their records after NARA's records center program becomes fully reimbursable in Fiscal Year 2000. Security classified records and IRS records containing restricted taxpayer information would continue to be stored in NARA or agency records centers, not commercial records storage facilities. As of the end of FY 1998, NARA centers held more than 6 million c.f. in these categories. NARA also expected that the National Personnel Records Center in St. Louis would retain 2.02 million c.f. of military personnel files and 1.4 million c.f. of civilian files, as evidenced in a related proposed rule published the same day (64 FR 23510), Storage of Federal Records.

‹bullet› Two commercial records storage companies, Iron Mountain and Pierce Leahy, are currently the predominant private sector providers of records storage services to Federal agencies. NARA had no evidence that a substantial number of records centers that qualify as small businesses store Federal records for agencies, or that storage of Federal records comprises a significant percentage of their business receipts.

Accordingly, NARA believed that its certification statement in the proposed rule was appropriate. In response to a request from PRISM International, a not-for-profit trade association that includes off- site storage company members, NARA published a June 7, 1999, notice of a public meeting on the proposed rule, and extended the comment period to July 7, 1999 (64 FR 30276). At that public meeting on June 18, 1999, several attendees questioned NARA's certification statement. NARA staff stated that NARA had not done any formal cost analysis to support this certification and invited attendees to provide comments on the adequacy of that statement. In response to this invitation, NARA received several comments that the regulation would have a significant impact on small business. Additionally, some records storage facilities wrote to their members of Congress stating that the proposed rule would have a significant impact on them, and those letters were forwarded to NARA for consideration.

The comments on the economic impact appear to be based on two provisions of the proposed rule: A requirement in proposed Sec. 1228.230(b) that records storage areas not exceed 250,000 c.f. of records to protect against catastrophic files and a misinterpretation of Sec. 1228.234(a) that NARA would not allow commercial facilities to store records higher than 15 feet. (Section 1228.234 describes one optional alternative for an acceptable fire detection and suppression system, and is the alternative NARA uses in its own records centers. It is not a mandatory requirement. NARA intends to clarify this further in the final rule by moving the description of this alternative to an appendix and reiterating that other alternatives are acceptable.)

NARA has decided to publish this notice, which includes the following initial regulatory flexibility analysis, to provide further information and opportunity for public comment on the small business impact, if any, of the proposed rule.

Initial Regulatory Flexibility Analysis

Description of the reasons that action by the agency is being considered. Current records center standards were last issued in 1982. Based upon advancements in technical knowledge and experience gained over the past two decades, NARA believes it is time to update the standards for the storage of Federal records in the legal custody of Federal agencies. Moreover, as more agencies are turning to the private sector for off-site storage, NARA believes that it is necessary to require agencies to ensure that records in their legal custody are stored in appropriate space wherever the records are stored.

Succinct statement of the objectives of, and legal basis for, the proposed rule. Federal records provide essential

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documentation of the Federal Government's policies and transactions and protect rights of individuals. These records must be stored in appropriate space to ensure that they remain available for their scheduled life.

NARA is authorized, under 44 U.S.C. 2907, to establish, maintain and operate records centers for Federal agencies. NARA is authorized, under 44 U.S.C. 3103, to approve a records center that is maintained and operated by an agency. NARA is also authorized to promulgate standards, procedures, and guidelines to Federal agencies with respect to the storage of their records in commercial records storage facilities. See 44 U.S.C. 2104(a), 2904 and 3102.

Description of and, where feasible, an estimate of the number of small entities to which the proposed rule will apply. The proposed rule will apply to NARA, to Federal agencies that operate their own records centers, and to any individual commercial records center facilities that a Federal agency uses to store its records. The proposed rule will apply to both aboveground and underground facilities. NARA is unable to estimate the number of small entities to which the proposed rule will apply for the following reasons:

‹bullet› Under current regulations, agencies do not report to NARA or obtain NARA approval to store their records in commercial records storage facilities. Therefore, NARA has no information on the number of current or past agency contracts with small business records centers. We specifically invite comments from agencies that have such contracts and from records centers that are small businesses on this point.

‹bullet› At present, the General Services Administration's Multiple Award Schedule (MAS) for Records Center Services (FSS-36-IV sin 51 504) has listed only two qualified companies, both of which are large businesses. The procurement process that an agency must follow when using an MAS or when entering into an interagency agreement with NARA or another Federal agency to provide records center services is much simpler than the process it must use when seeking open market services. For this reason, NARA cannot estimate the volume of records center contracts that agencies may consider awarding to small businesses. We specifically invite comments from agencies on any plans that they have to contract with small businesses for records center services in the next 2 years.

Although we are unable to provide an estimate of the number of small entities to which the proposed rule will apply, we do have estimates of the universe of small entities. NARA considered records center vendors to be small entities if they met the Small Business Administration (SBA) definition of a small business under Standard Industrial Code (SIC) 4226, Special Warehousing and Storage, Not Elsewhere Classified. For SIC 4226, an SBA small business must have annual gross receipts of $18.5 million or less. According to census figures furnished to NARA by SBA, there are 1,230 firms in SIC 4226. Most of these firms do not have multiple establishments (the number of SIC 4226 establishments is 1,547).

Description of the projected reporting, recordkeeping and other compliance requirements of the proposed rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record.

Reporting/recordkeeping requirements: The proposed rule does not directly mandate reporting or recordkeeping within the meaning of the Paperwork Reduction Act. All reporting requirements are placed on Federal agencies, which must secure NARA approval before moving Federal records to a commercial records center. NARA anticipates that the Federal agencies would include 36 CFR part 1228, subpart K (the facility standards) in their contracts with commercial records centers. Proposed Sec. 1228.240(e) states that agency may submit to NARA ``a copy of the agency's contract that incorporates this subpart in its provisions or a statement from the agency records officer that certifies that the facility meets the standards in this subpart.''

Other compliance requirements: All records centers that store Federal records, including commercial records centers operated by small businesses, must comply with the facility requirements in the proposed rule. Certain specific requirements differ for newly constructed facilities and existing facilities. Also, existing facilities are allowed a 10-year period to become compliant with some of these requirements. The facility compliance requirements are found in the proposed Secs. 1228.228, 1228.230, and 1228.236. (See 64 FR 23506- 23510.)

Professional skills necessary for preparation of report or record: If the records center owner has maintained the facility design records, no special professional skills would be necessary to provide documentation to the contracting agency that the facility meets the NARA standards. If the design records are not available, the center would have need for the services of a licensed Fire Protection Engineer to inspect the facility and prepare a report on a one-time basis. We estimate that the inspection and preparation of a report would take no more than 8 hours total.

An identification, to the extent practicable, of all relevant Federal rules which may duplicate, overlap or conflict with the proposed rule. At the June 18, 1999, public meeting, attendees pointed out that underground storage facilities are subject to regulations issued by the Mine Safety and Health Administration in 30 CFR Chapter I for any working mine. We intend to add a provision to our final rule that if any of the provisions of NARA's regulation conflict with mandatory life safety or ventilation requirements imposed on underground storage facilities by 30 CFR chapter I, 30 CFR chapter I applies.

Also at the public meeting, attendees pointed out that the proposed NARA regulations might conflict with local or regional building codes with which commercial facilities must comply. We stated at the meeting that we intend to add a provision to our final rule that resolves such conflicts by specifying that, following normal rules of precedence, the more stringent fire protection and life-safety provision will apply. If a mandatory NARA requirement cannot be reconciled with a mandatory local or regional requirement, the local or regional code will apply.

Description of any significant alternatives to the proposed rule which accomplish the stated objectives of applicable statutes and which minimize any significant economic impact of the proposed rule on small entities. Consistent with the stated objectives of applicable statutes, the analysis shall discuss significant alternatives such as--(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; (4) any exemption from coverage of the rule, or any part thereof, for such small entities. To the extent possible, the proposed rule specifies performance standards and incorporates by reference industry consensus standards. NARA chose this alternative over the other possible regulatory approach--extending the coverage of the existing regulation that governed agency records centers--to provide as much flexibility as possible to all

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commercial and agency records centers, including small businesses.

We did not believe that we could adopt any of the other alternatives [(1), (2) or (4)] for minimizing the impact of the proposed rule on small entities, given the objective of ensuring appropriate protection for Federal records when they leave agency office space. We believe that the 10-year period we will provide for complying with certain requirements will moderate the impact on small businesses since they will be able to plan for the necessary modifications and implement them during normal maintenance, e.g., removing roof-mounted equipment when roof repairs or replacement is done. However, we do not believe that it is appropriate to exempt or delay small businesses' compliance with basic fire detection and suppression requirements. It is also not feasible to exempt or delay small businesses' compliance with requirements imposed by other authorities, e.g., DOJ building security requirements.

Questions for Comment To Assist Regulatory Flexibility Analysis

1. Please provide comment on any or all of the provisions in the proposed rule with regard to

   ‹bullet› The impact of the provision(s) including the benefits and costs, if any, on small entities, and

   ‹bullet› Other alternatives, if any, NARA should consider, as well as the costs and benefits of those alternatives to small entities.

2. Please identify any Federal rules, other than the MSHA regulations discussed in this notice, that may duplicate, overlap, or conflict with the proposed rule. In addition, please identify any industry standards not cited in NARA's proposed rule that would be more appropriate. Please identify such industry standards by name of the organization establishing the standard, formal title, and edition date, and state how the public can get copies of the standard.

3. Please discuss the extent to which existing commercial records centers, especially those that qualify as a small business, have incorporated either the requirements of National Fire Protection Association (NFPA) 232, Standard for the Protection of Records (1995 Edition) for facilities smaller than 50,000 c.f. or the guidance in NFPA 232A, Guide for Fire Protection of Archives and Records Centers (1995 Edition) for larger facilities.

4. How many records centers that are small businesses presently store records for Federal agencies or would be interested in such future business opportunity? Please include the basis for your response to this question (e.g., industry survey).

   Dated: September 10, 1999. John W. Carlin, Archivist of the United States.

   [FR Doc. 99-24013Filed9-14-99; 8:45 am]

   BILLING CODE 7515-01-P