CFR Subpart A

CFR Subpart A
in effect

36 C.F.R. § 1222.1 What are the authorities for Part 1222?

The statutory authorities for this part are 44 U.S.C. 2904, 3101, 3102, and 3301.

36 C.F.R. § 1222.2 What definitions apply to this part?

See § 1220.18 of this subchapter for definitions of terms used in part 1222.

36 C.F.R. § 1222.3 What standards are used as guidance for this part?

These regulations conform with guidance provided in ISO 15489-1:2001, Information and documentation—Records management. Paragraphs 7.1 (Principles of records management programmes), 7.2 (Characteristics of a record), 8.3.5 (Conversion and migration), 8.3.6 (Access, retrieval and use), and 9.6 (Storage and handling) apply to records creation and maintenance.

36 C.F.R. § 1222.10 How should agencies apply the statutory definition of Federal records?

(a) The statutory definition of Federal records is contained in 44 U.S.C. 3301 and provided in § 1220.18 of this subchapter. (b) Several key terms, phrases, and concepts in the statutory definition of a Federal record are further explained as follows: (1) Documentary materials has the meaning provided in § 1220.18 of this subchapter. (2) Regardless of physical form or characteristics means that the medium may be paper, film, disk, or other physical type or form; and that the method of recording may be manual, mechanical, photographic, electronic, or any other combination of these or other technologies. (3) Made means the act of creating and recording information by agency personnel in the course of their official duties, regardless of the method(s) or the medium involved. (4) Received means the acceptance or collection of documentary materials by or on behalf of an agency or agency personnel in the course of their official duties regardless of their origin (for example, other units of their agency, private citizens, public officials, other agencies, contractors, Government grantees) and regardless of how transmitted (in person or by messenger, mail, electronic means, or by any other method). In this context, the term does not refer to misdirected materials. It may or may not refer to loaned or seized materials depending on the conditions under which such materials came into agency custody or were used by the agency. Advice of legal counsel should be sought regarding the “record” status of loaned or seized materials. (5) Preserved means the filing, storing, or any other method of systematically maintaining documentary materials in any medium by the agency. This term covers materials not only actually filed or otherwise systematically maintained but also those temporarily removed from existing filing systems. (6) Appropriate for preservation means documentary materials made or received which, in the judgment of the agency, should be filed, stored, or otherwise systematically maintained by an agency because of the evidence of agency activities or information they contain, even if the materials are not covered by its current filing or maintenance procedures.

36 C.F.R. § 1222.12 What types of documentary materials are Federal records?

(a) General. To ensure that complete and accurate records are made and retained in the Federal Government, agencies must distinguish between records and nonrecord materials by applying the definition of records (see 44 U.S.C. 3301 and 36 CFR 1220.18 and 1222.10 of this subchapter) to agency documentary materials in all formats and media. (b) Record status. Documentary materials are records when they meet the conditions specified in § 1222.10(b). (c) Working files and similar materials. Working files, such as preliminary drafts and rough notes, and other similar materials, are records that must be maintained to ensure adequate and proper documentation if: (1) They were circulated or made available to employees, other than the creator, for official purposes such as approval, comment, action, recommendation, follow-up, or to communicate with agency staff about agency business; and (2) They contain unique information, such as substantive annotations or comments that adds to a proper understanding of the agency's formulation and execution of basic policies, decisions, actions, or responsibilities. (d) Record status of copies. The determination as to whether a particular document is a record does not depend upon whether it contains unique information. Multiple copies of the same document and documents containing duplicative information may each have record status depending on how they are used in conducting agency business.

36 C.F.R. § 1222.14 What are nonrecord materials?

Nonrecord materials are U.S. Government-owned documentary materials that do not meet the conditions of records status (see § 1222.12(b)) or that are specifically excluded from the statutory definition of records (see 44 U.S.C. 3301). An agency's records management program also needs to include managing nonrecord materials. There are three specific categories of materials excluded from the statutory definition of records: (a) Library and museum material (but only if such material is made or acquired and preserved solely for reference or exhibition purposes), including physical exhibits, artifacts, and other material objects lacking evidential value. (b) Extra copies of documents (but only if the sole reason such copies are preserved is for convenience of reference). (c) Stocks of publications and of processed documents. Catalogs, trade journals, and other publications that are received from other Government agencies, commercial firms, or private institutions and that require no action and are not part of a case on which action is taken. (Stocks do not include serial or record sets of agency publications and processed documents, including annual reports, brochures, pamphlets, books, handbooks, posters and maps.)

36 C.F.R. § 1222.16 How are nonrecord materials managed?

(a) Agencies must develop recordkeeping requirements to distinguish records from nonrecord materials. (b) The following guidelines should be used in managing nonrecord materials: (1) If a clear determination cannot be made, the materials should be treated as records. Agencies may consult with NARA for guidance. (2) Nonrecord materials must be physically segregated from records or, for electronic non-record materials, readily identified and segregable from records; (3) Nonrecord materials should be purged when no longer needed for reference. NARA's approval is not required to destroy such materials.

36 C.F.R. § 1222.18 Under what conditions may nonrecord materials be removed from Government agencies?

(a) Nonrecord materials, including extra copies of unclassified or formally declassified agency records kept only for convenience of reference, may be removed by departing employees from Government agency custody only with the approval of the head of the agency or the individual(s) authorized to act for the agency on records issues. (b) National security classified information may not be removed from Government custody, except for a removal of custody taken in accordance with the requirements of the National Industrial Security Program established under Executive Order 12829, as amended, or a successor Order. (c) Information which is restricted from release under the Privacy Act of 1974 (5 U.S.C. 552a), as amended, or other statutes may not be removed from Government custody except as permitted under those statutes. (d) This section does not apply to use of records and nonrecord materials in the course of conducting official agency business, including telework and authorized dissemination of information.

36 C.F.R. § 1222.20 How are personal files defined and managed?

(a) Personal files are defined in § 1220.18 of this subchapter. This section does not apply to agencies and positions that are covered by the Presidential Records Act of 1978 (44 U.S.C. 2201-2207) (see 36 CFR part 1270 of this chapter). (b) Personal files must be clearly designated as such and must be maintained separately from the office's official records. (1) Information about private (non-agency) matters and agency business must not be mixed in outgoing agency documents, such as correspondence and messages. (2) If information about private matters and agency business appears in a received document, the document is a Federal record. Agencies may make a copy of the document with the personal information deleted or redacted, and treat the copy as the Federal record. (3) Materials labeled “personal,” “confidential,” or “private,” or similarly designated, and used in the transaction of public business, are Federal records. The use of a label such as “personal” does not affect the status of documentary materials in a Federal agency.

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