(a) The authorities for this part are 44 U.S.C. 3101; Executive Orders 12656, Assignment of Emergency Preparedness Responsibilities, and 13231, Critical Infrastructure Protection in the Information Age; and National Security Presidential Directive (NSPD 51)/Homeland Security Presidential Directive (HSPD-20) or applicable successor directives. These authorities require the head of each agency to make and preserve records that contain adequate and proper documentation of the organization and to perform national security emergency preparedness functions.

(b) These regulations are in conformance with guidance provided in Federal Continuity Directive (FCD) 1, Federal Executive Branch National Continuity Program and Requirements, and FCD 2, Federal Executive Branch Mission Essential Function and Primary Mission Essential Function Identification and Submission Process.

(a) See § 1220.18 of this subchapter for definitions of terms used throughout Subchapter B, including part 1223.

(b) As used in part 1223—

Cycle means the periodic removal of obsolete copies of vital records and their replacement with copies of current vital records. This may occur daily, weekly, quarterly, annually or at other designated intervals.

Disaster means an unexpected occurrence inflicting widespread destruction and distress and having long-term adverse effects on agency operations. Each agency defines what a long-term adverse effect is in relation to its most critical program activities.

Emergency means a situation or an occurrence of a serious nature, developing suddenly and unexpectedly, and demanding immediate action. This is generally of short duration, for example, an interruption of normal agency operations for a week or less. It may involve electrical failure or minor flooding caused by broken pipes.

Emergency operating records are those types of vital records essential to the continued functioning or reconstitution of an organization during and after an emergency. Included are emergency plans and directive(s), orders of succession, delegations of authority, staffing assignments, selected program records needed to continue the most critical agency operations, as well as related policy or procedural records that assist agency staff in conducting operations under emergency conditions and for resuming normal operations after an emergency.

Legal and financial rights records are that type of vital records essential to protect the legal and financial rights of the Government and of the individuals directly affected by its activities. Examples include accounts receivable records, social security records, payroll records, retirement records, and insurance records. These records were formerly defined as “rights-and-interests” records.

National security emergency means any occurrence, including natural disaster, military attack, technological emergency, or other emergency, that seriously degrades or threatens the national security of the United States, as defined in Executive Order 12656.

Off-site storage means a facility other than an agency's normal place of business where records are kept until eligible for final disposition. Vital records may be kept at off-site storage to ensure that they are not damaged or destroyed should an emergency occur in an agency's normal place of business.

Vital records means essential agency records that are needed to meet operational responsibilities under national security emergencies or other emergency conditions (emergency operating records) or to protect the legal and financial rights of the Government and those affected by Government activities (legal and financial rights records).

Vital records program means the policies, plans, and procedures developed and implemented and the resources needed to identify, use, and protect the essential records needed to meet operational responsibilities under national security emergencies or other emergency conditions or to protect the Government's rights or those of its citizens. This is a program element of an agency's emergency management function.

These regulations conform with guidance provided in ISO 15489-1:2001. Paragraphs 4 (Benefits of records management), Paragraphs 7.1 (Principles of records management programmes) and 9.6 (Storage and handling) apply to vital records.

(a) NARA incorporates certain material by reference into this part with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other than that specified in this section, NARA must publish a document in the Federal Register and the material must be available to the public. You may inspect all approved material incorporated by reference at NARA's textual research room, located at National Archives and Records Administration; 8601 Adelphi Road; Room 2000; College Park, MD 20740-6001. To arrange to inspect this approved material at NARA, contact NARA's Regulation Comments Desk (Strategy and Performance Division (MP)) by email at [email protected] or by telephone at 301.837.3151. All approved material is also available from the sources listed below. You may also inspect approved material at the Office of the Federal Register (OFR). For information on the availability of this material at the OFR, call 202.741.6000 or go to http://www.archives.gov/federal_register/cfr/ibr-locations.html.

(b) Federal Emergency Management Agency (FEMA), Department of Homeland Security (DHS); P.O. Box 2012; 8231 Stayton Drive; Jessup, MD 20794-2012, phone number (800) 480-2520; https://www.fema.gov/guidance-directives.

(1) Federal Continuity Directive 1 (“FCD 1”): Federal Executive Branch National Continuity Program and Requirements, February 2008, IBR approved for § 1223.14.

(2) [Reserved]

Part 1223 specifies policies and procedures needed to establish a program to identify, protect, and manage vital records as part of an agency's continuity of operation plan designed to meet emergency management responsibilities.

A vital records program has two objectives:

(a) It provides an agency with the information it needs to conduct its business under other than normal operating conditions and to resume normal business afterward; and

(b) It enables agency officials to identify and protect the most important records dealing with the legal and financial rights of the agency and of persons directly affected by the agency's actions.

To achieve compliance with this section, an agency's vital records program must contain all elements listed in FCD 1, Annex I (incorporated by reference, see § 1223.4). In carrying out a vital records program, agencies must:

(a) Specify agency staff responsibilities;

(b) Appropriately inform all staff about vital records;

(c) Ensure that the designation of vital records is current and complete; and

(d) Ensure that vital records are adequately protected, accessible, and immediately usable.

Agencies identify vital records in the context of the emergency management function. Vital records are those that are needed to perform the most critical functions of the agency and those needed to protect legal and financial rights of the Government and of the persons affected by its actions. Vital records also include emergency plans and related records that specify how an agency will respond to an emergency. The informational content of records series and electronic records systems determines which are vital records. Only the most recent and complete sources of the information are vital records.

(a) Vital records can be original records or copies of records. Consult NARA records management guidance on vital records at http://www.archives.gov/records-mgmt/vital-records/index.html for further information.

(b) Records may be maintained on a variety of media including paper, magnetic tape, optical disk, photographic film, and microform. In selecting the media, agencies must ensure that equipment needed to read the specific media will be available following an emergency or disaster.

Agencies must establish retrieval procedures for vital records that are easily implemented, especially since individuals unfamiliar with the records may need to use them in an emergency. For electronic records systems, agencies must also ensure that appropriate hardware, software, and system documentation adequate to operate the system and access the records will be available in case of an emergency.

Agencies must take appropriate measures to ensure the survival of the vital records or copies of vital records in case of an emergency.

(a) Duplication. Agencies may choose to duplicate vital records as the primary protection method. Duplication can be to the same medium as the original record or to a different medium. When agencies choose duplication as a protection method, the copy of the vital record stored off-site is normally a duplicate of the original record. The agency may store the original records off-site if their protection is necessary, or if it does not need to keep the original records at its normal place of business.

(b) Dispersal. Once records are duplicated, they must be dispersed to sites a sufficient distance away to avoid being subject to the same emergency. Dispersal sites may be other office locations of the same agency or some other site.

(c) Storage considerations. Copies of emergency operating vital records must be accessible in a very short period of time for use in the event of an emergency. Copies of legal and financial rights records may not be needed as quickly. In deciding where to store vital record copies, agencies must treat records that have the properties of both categories, that is, emergency operating and legal and financial rights records, as emergency operating records.

(1) The off-site copy of legal and financial rights vital records may be stored at an off-site agency location or, in accordance with § 1233.12 of this subchapter, at a records storage facility.

(2) When using a NARA records storage facility for storing vital records that are duplicate copies of original records, the agency must specify on the SF 135, Records Transmittal and Receipt, that they are vital records (duplicate copies) and the medium on which they are maintained. The agency must also periodically cycle (update) them by removing obsolete items and replacing them with the most recent version.

The disposition of vital records that are original records is governed by records schedules approved by NARA (see part 1225, Scheduling Records, of this subchapter). Agencies must not destroy original records that are not scheduled. Duplicate copies created and maintained for vital records purposes only may be destroyed when superseded or obsolete during the routine vital records cycle process.