§7004 — Title 15 Commerce and Trade | U.S. Code

Summary

Federal and State agencies can still require that certain records be filed in particular formats, but they must still follow the Government Paperwork Elimination Act. Agencies that make rules under other laws may explain how section 7001 applies by issuing public regulations, orders, or guidance. Any rule they make must match section 7001, not add extra requirements, have a good reason, be about as protective as the rules for paper records, and not create unreasonable costs. Agencies generally may not require or give special legal weight to a specific technology for making, storing, or signing electronic records. Agencies may set performance standards under section 7001(d) to keep retained records accurate, intact, and accessible, and in narrow cases an important government interest may justify a rule that otherwise seems to favor a technology. A rule may force paper retention only when there is a compelling law-enforcement or national-security need. Procurement rules are exempt from the ban on specifying technologies. Agencies may exempt whole categories of records from the consent rule in section 7001(c) if needed to remove a big burden on e-commerce and not harm consumers. Within 30 days after June 30, 2000, the SEC had to issue such an exemption for certain investment company advertising records. The FCC cannot declare a telecom contract or carrier-change letter invalid just because an electronic record or signature was used, if the contract otherwise follows its rules.

Title 15, §7004

Commerce and Trade — Source: USLM XML via OLRC

(a)Subject to subsection (c)(2), nothing in this subchapter limits or supersedes any requirement by a Federal regulatory agency, self-regulatory organization, or State regulatory agency that records be filed with such agency or organization in accordance with specified standards or formats.

(b)(1)Subject to paragraph (2) and subsection (c), a Federal regulatory agency or State regulatory agency that is responsible for rulemaking under any other statute may interpret section 7001 of this title with respect to such statute through—

(A)the issuance of regulations pursuant to a statute; or

(B)to the extent such agency is authorized by statute to issue orders or guidance, the issuance of orders or guidance of general applicability that are publicly available and published (in the Federal Register in the case of an order or guidance issued by a Federal regulatory agency).

(2)Notwithstanding paragraph (1), a Federal regulatory agency shall not adopt any regulation, order, or guidance described in paragraph (1), and a State regulatory agency is preempted by section 7001 of this title from adopting any regulation, order, or guidance described in paragraph (1), unless—

(A)such regulation, order, or guidance is consistent with section 7001 of this title;

(B)such regulation, order, or guidance does not add to the requirements of such section; and

(C)such agency finds, in connection with the issuance of such regulation, order, or guidance, that—

(i)there is a substantial justification for the regulation, order, or guidance;

(ii)the methods selected to carry out that purpose—

(I)are substantially equivalent to the requirements imposed on records that are not electronic records; and

(II)will not impose unreasonable costs on the acceptance and use of electronic records; and

(iii)the methods selected to carry out that purpose do not require, or accord greater legal status or effect to, the implementation or application of a specific technology or technical specification for performing the functions of creating, storing, generating, receiving, communicating, or authenticating electronic records or electronic signatures.

(3)(A)Notwithstanding paragraph (2)(C)(iii), a Federal regulatory agency or State regulatory agency may interpret section 7001(d) of this title to specify performance standards to assure accuracy, record integrity, and accessibility of records that are required to be retained. Such performance standards may be specified in a manner that imposes a requirement in violation of paragraph (2)(C)(iii) if the requirement (i) serves an important governmental objective; and (ii) is substantially related to the achievement of that objective. Nothing in this paragraph shall be construed to grant any Federal regulatory agency or State regulatory agency authority to require use of a particular type of software or hardware in order to comply with section 7001(d) of this title.

(B)Notwithstanding subsection (c)(1), a Federal regulatory agency or State regulatory agency may interpret section 7001(d) of this title to require retention of a record in a tangible printed or paper form if—

(i)there is a compelling governmental interest relating to law enforcement or national security for imposing such requirement; and

(ii)imposing such requirement is essential to attaining such interest.

(4)Paragraph (2)(C)(iii) shall not apply to the statutes, regulations, or other rules of law governing procurement by the Federal or any State government, or any agency or instrumentality thereof.

(c)(1)Nothing in subsection (b) (other than paragraph (3)(B) thereof) shall be construed to grant any Federal regulatory agency or State regulatory agency authority to impose or reimpose any requirement that a record be in a tangible printed or paper form.

(2)Nothing in subsection (a) or (b) relieves any Federal regulatory agency of its obligations under the Government Paperwork Elimination Act (title XVII of Public Law 105–277).

(d)(1)A Federal regulatory agency may, with respect to matter within its jurisdiction, by regulation or order issued after notice and an opportunity for public comment, exempt without condition a specified category or type of record from the requirements relating to consent in section 7001(c) of this title if such exemption is necessary to eliminate a substantial burden on electronic commerce and will not increase the material risk of harm to consumers.

(2)Within 30 days after June 30, 2000, the Securities and Exchange Commission shall issue a regulation or order pursuant to paragraph (1) exempting from section 7001(c) of this title any records that are required to be provided in order to allow advertising, sales literature, or other information concerning a security issued by an investment company that is registered under the Investment Company Act of 1940 [15 U.S.C. 80a–1 et seq.], or concerning the issuer thereof, to be excluded from the definition of a prospectus under section 77b(a)(10)(A) of this title.

(e)The Federal Communications Commission shall not hold any contract for telecommunications service or letter of agency for a preferred carrier change, that otherwise complies with the Commission’s rules, to be legally ineffective, invalid, or unenforceable solely because an electronic record or electronic signature was used in its formation or authorization.

Notes & Related Subsidiaries

Editorial Notes

References in Text

The Government Paperwork Elimination Act, referred to in subsec. (c)(2), is title XVII of Pub. L. 105–277, div. C, Oct. 21, 1998, 112 Stat. 2681–749, which amended section 3504 of Title 44, Public Printing and Documents, and enacted provisions set out as a note under section 3504 of Title 44. For complete classification of this Act to the Code, see Tables. The Investment Company Act of 1940, referred to in subsec. (d)(2), is title I of act Aug. 22, 1940, ch. 686, 54 Stat. 789, which is classified generally to subchapter I (§ 80a–1 et seq.) of chapter 2D of this title. For complete classification of this Act to the Code, see section 80a–51 of this title and Tables.

Statutory Notes and Related Subsidiaries

Effective Date

Section effective Oct. 1, 2000, with exceptions relating to record retention and certain loans, see section 107 of Pub. L. 106–229, set out as a note under section 7001 of this title.

§7004 Applicability to Federal and State governments