[Federal Register Volume 76, Number 163 (Tuesday, August 23, 2011)]
[Rules and Regulations]
[Pages 52533-52537]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-21395]



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Rules and Regulations
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Federal Register / Vol. 76, No. 163 / Tuesday, August 23, 2011 / 
Rules and Regulations

[[Page 52533]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 293

RIN 3206-AM05


Personnel Records

AGENCY: U.S. Office of Personnel Management.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The U.S. Office of Personnel Management (OPM) is amending the 
regulations governing disposition of Official Personnel Folders of 
Federal employees to clarify the roles and responsibilities of OPM and 
Federal agencies.

DATES: Effective September 22, 2011.

FOR FURTHER INFORMATION CONTACT: Tanya Bennett, at (202) 606-4054, by 
facsimile at (202) 606-1719, or by e-mail at <a href="/cdn-cgi/l/email-protection#a4f0c5caddc58ae6c1cacac1d0d0e4cbd4c98ac3cbd2"><span class="__cf_email__" data-cfemail="c793a6a9bea6e985a2a9a9a2b3b387a8b7aae9a0a8b1">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: The U.S. Office of Personnel Management is 
amending subpart C of part 293 of title 5, Code of Federal Regulations 
(Personnel Records) to clarify agency responsibilities concerning 
Official Personnel Folders (OPFs) of current and former Federal 
employees in the civil service.

Background

    Generally, OPM and the other agencies share responsibility for 
personnel management in the Executive Branch. OPM functions as a 
government-wide regulator of personnel management. Agencies, on the 
other hand, are required to maintain and establish their own personnel 
office within their agency, and the head of each agency, in accordance 
with applicable statutes, Executive orders and rules, is responsible 
for personnel management in their agency. The OPF is a critical tool 
for personnel management. An OPF is a file containing records 
reflecting an employee's appointment, employment history and benefits 
information. OPFs contain long-term records that serve to protect the 
legal and financial rights of the Government and the employee. Pursuant 
to Executive Order 12107 (December 28, 1978), OPFs are designated as 
records of OPM, and the President has delegated authority to the 
Director of OPM to regulate the establishment, maintenance, and 
transfer of OPFs.
    Although OPFs are designated as records of OPM, agencies have 
significant responsibilities related to OPFs. OPM regulations require 
agencies to establish OPFs for most employees. OPM's regulations also 
specify the content of the OPF, which each agency must maintain. 
Moreover, agencies are generally required to retain the OPF of a 
separated employee for 30 working days after separation and to transfer 
that OPF thereafter to the National Personnel Records Center (NPRC). 
Further, if an employee's OPF is lost or destroyed, the current (or 
former) employing agency must reconstruct the OPF.
    The transfer of an OPF from the NPRC can be the result of an agency 
initially submitting the OPF to the NPRC improperly, an activity such 
as amending or correcting the OPF of a current or former employee, the 
rehiring of a former Federal employee, or a need to produce the 
document for litigation. The return of the OPF to the NPRC produces a 
subsequent and additional transfer expense.

Purpose and Summary of Changes

    The purpose of this rule is to clarify the roles and 
responsibilities of OPM and other agencies with respect to OPFs by 
articulating, delineating, and differentiating the responsibilities of 
OPM as regulator of OPFs and the responsibilities of other agencies, 
who have a variety of reasons to use OPFs in connection with the 
appointment and employment of Federal employees. To clarify these roles 
and responsibilities, this rule makes the following changes to subpart 
C of 5 CFR part 293:
    <bullet> In Sec.  293.301, inserting language excluding agencies 
from the application of subpart C when they are exempt from OPM 
recordkeeping requirements by statute, regulation, or formal agreement 
with OPM. Further, inserting a sentence stating that OPM's Guide to 
Personnel Recordkeeping will list the excluded agencies. These changes 
clarify which agencies are or are not bound by subpart C.
    <bullet> In Sec.  293.303, amending the heading from ``Ownership of 
the folder'' to ``The roles of the Office, agencies, and custodians'' 
and revising and clarifying the text of the section. These changes 
clarify the intent of the section.
    <bullet> In Sec.  293.303, removing the phrase ``under the 
jurisdiction and control of''' to eliminate confusion about the meaning 
of this clause. Also, adding the phrase ``each former employee'' to 
recognize that this section also covers OPFs of former employees. The 
remaining language has been designated paragraph (a).
    <bullet> In Sec.  293.303, adding paragraph (b) to clarify the role 
and responsibilities of OPM; paragraph (c) to clarify the roles and 
responsibilities of agencies, generally; paragraph (d)(1) to establish 
the definition of the term ``custodian'' for purposes of this section; 
and paragraphs (d)(2) through (d)(5) to establish the roles and 
responsibilities of custodians.
    <bullet> In Sec.  293.303. adding paragraph (e) to clarify that 
agencies and custodians will carry out their roles and responsibilities 
for OPFs pursuant to this subpart and OPM's Guide to Personnel 
Recordkeeping.
    <bullet> In Sec.  293.307, adding paragraphs (c) and (d) to specify 
that agencies are responsible for costs associated with transferring 
OPFs to and from the NPRC.

Comments and Responses

    OPM published its proposed rule with request for comments on 
January 19, 2010. 75 FR 2821 (Jan. 19, 2010). OPM received comments 
from two individuals, four different components of the Department of 
Defense, and two other Federal agencies, including the NPRC. Below is a 
summary of the comments received, which is followed by OPM's responses.

1. Storage Costs

    Two commenters opposed the amendment to 5 CFR 293.307, which adds 
paragraphs (c) and (d) to clarify the OPF-related costs for which 
agencies are responsible, because the commenters believe these 
provisions will shift the cost of storing OPFs with NARA to other 
agencies.
    OPM believes these commenters misconstrued the rule. Nothing in 
this rule shifts the cost of storing OPFs with

[[Page 52534]]

NARA from OPM to other agencies. Under the rule, OPM remains 
responsible for the cost of storing OPFs. In addition, OPM remains 
responsible under the Privacy Act for all costs associated with 
responding to a former employee's request for a review or a copy of her 
or his OPF, and under the Freedom of Information Act for responses to 
third party (public) requests for information from OPFs (although, as 
noted below, OPM may seek reimbursement from such third-party 
requesters). The change made by the rule is that transfer of custody 
for storage of OPFs is now predicated on OPFs being accepted for 
storage by NARA.
    Another commenter requested that the rule specify the NARA actual 
costs that OPM will be responsible for and those that will be the 
responsibility of the other agencies for storage, transfers, 
references, interfile, and disposition (destruction or accessioning 
into the Archives of the United States) of OPFs.
    As clarified by the rule, agencies will be responsible for the 
costs associated with transferring OPFs to NPRC, requesting OPFs from 
NPRC, and for any other service initiated by an agency. OPM will be 
responsible for the storage charges of OPFs that have been accepted by 
the NPRC and placed into storage, and for all charges associated with 
responding to requests from former employees and the public under the 
Privacy Act and Freedom of Information Act (subject to possible 
reimbursement from such third-party requesters). OPM will be charged in 
the same manner as other agencies for the OPFs of its own current and 
former employees.
    OPM has chosen not to specify in the rule the actual costs charged 
by the NPRC for services because such costs will be established 
pursuant to the NPRC's revolving fund authority. OPM has an interagency 
agreement with the NPRC that specifies the services provided to OPM and 
the corresponding costs. This interagency agreement is regularly 
updated.

2. Requests for Copies of OPFs From Former Employees or OPF Information 
From the Public

    A commenter stated that this rule would allow OPM to charge another 
agency for costs associated with a request by a former employee for a 
copy of the employee's OPF or a request for OPF information by a member 
of the public.
    OPM may well seek to recover the costs of some of these requests 
from third-party requesters (pursuant to FOIA, for example), but 
whether or not OPM undertakes that sort of cost-recovery, this rule is 
not intended to enable OPM to shift the costs of such third-party 
requests to another agency and will not effectuate such a cost-
shifting. Once an OPF has been accepted by the NPRC, OPM becomes the 
custodian until and unless another agency requests the OPF. OPM will 
not charge agencies for the costs associated with responding to 
requests from former Federal employees or members of the public for 
records currently stored at the NPRC.

3. Requests for OPF Information From Federal Agencies

    A commenter stated that the rule would allow OPM to charge other 
agencies that are requesting OPF information.
    OPM believes that the commenter has slightly confused requesting 
information from an OPF and requesting the actual OPF. Currently, the 
NPRC does not charge for OPF information. For requests from agencies to 
the NPRC for an actual OPF, however, the NPRC charges a handling fee 
associated with transferring the file to and receiving it from an 
agency. Fees charged by the NPRC associated with handling OPFs as part 
of transferring OPFs will now be the responsibility of the agencies 
under this rule.

4. Effect on Electronic OPFs

    Several commenters expressed concern that the amended rule may be 
construed to include electronic OPFs (eOPFs). One commenter mentioned 
that the migration to eOPF was required by 2012 and recommended that 
OPM not implement the changes to this rule until that time to alleviate 
any financial impact on agencies. Another commenter stated that the 
OPM's Enterprise Human Resource Integration (EHRI) had already factored 
NPRC transactions into maintenance costs for eOPFs. Three commenters 
recommended that the rule specify it applies only to paper OPFs and/or 
include a statement excluding eOPFs.
    OPM agrees that a distinction should be made between the roles and 
responsibilities for paper OPFs and eOPFs. OPM has added language to 
Sec.  293.303 to distinguish between paper OPFs and eOPFs. OPM 
acknowledges that it has already factored NPRC transactions into 
maintenance costs for eOPFs with respect to EHRI.

5. Data Calls, Cost Studies and Statistical Analysis

    A commenter wanted to know what data calls were issued to collect 
information in preparation for this regulation and which specific 
agencies provided feedback to OPM in this process. The same commenter 
wanted OPM to provide the cost studies, statistical analysis, and raw 
data used to justify the rule and the human capital cost increase to 
implement and track agency transactions.
    OPM did not call for data from other agencies or conduct cost 
studies and statistical analysis in preparing this rule. The purpose of 
the rule is to correct a misunderstanding of the roles and 
responsibilities of OPM and the other agencies with respect to the 
transfer of OPFs to NPRC. This misunderstanding has resulted in 
agencies avoiding part of the cost of administering their own 
responsibilities with respect to OPFs. The commenter appears to 
misconstrue the rule as simply seeking a more beneficial cost 
arrangement for OPM; instead, the purpose is to differentiate the 
activities that are properly considered functions of agency human 
resources offices and thus ensure that an agency that initiates the 
transfer of an OPF assumes the costs associated with that action (just 
as that agency bears the costs associated with establishing and 
maintaining OPFs for its appointees and employees).

6. Employee Medical Folders and Employee Performance Files

    A commenter asked that OPM address how this rule will affect 
Employee Medical Folders (EMFs) and Employee Performance Files (EPFs).
    EMFs contain information determined by an agency's medical staff to 
be occupational medical records, which can follow the employee from 
agency to agency or be sent to NPRC if the employee separates from 
Federal service. The rule for disposition of EMFs, 5 CFR 293.510, which 
is not amended by this rule, instructs agencies to follow the same 
procedures established for disposition of OPFs, 5 CFR 293.307. Because 
this rule amends 5 CFR 293.307 to clarify that agencies are responsible 
for the costs associated with the transfer of OPFs to NPRC, the same 
requirements will apply to transferring EMFs to NPRC. As for EPFs, 
there is no separate cost associated with transferring EPFs because any 
information transferred is contained in the OPF as part of the left 
(temporary) side of the OPF (See 5 CFR 293.402 and 5 CFR 293.404).

7. Other Agency's Records Management Policies

    Three commentators suggested that this rule might cause other 
agencies to amend their records management policies in order to charge 
agencies for use of their records.

[[Page 52535]]

    OPM is not in a position to predict what other agencies might do in 
terms of their own records management policies in response to this rule 
or to comment on the position other agencies adopt or may adopt 
regarding records for which they are the custodian but that are not 
maintained in the OPF.

8. Change to the Title of Section 293.303

    One commenter stated that the existing title of Sec.  293.303, 
``Ownership of the Folder,'' is not confusing and, therefore, need not 
be changed.
    OPM disagrees with the commenter. In OPM's experience, the use of 
the word ``ownership'' in the title of Sec.  293.303 has resulted in 
disagreements over the meaning and scope of the word. In particular, it 
has created ambiguity in delineating the responsibilities of OPM and 
the other agencies with regard to the cost of transferring OPFs to and 
from the NPRC. The new title for Sec.  293.303, ``The roles and 
responsibilities of the Office, agencies, and custodians,'' provides a 
clearer statement of the purpose of the section and its new content.

9. Definition of Custodian

    Four commenters submitted comments about adding a definition of the 
term ``custodian'' to Sec.  293.102. Two commenters sought general 
clarification about the definition. A commenter contended that the 
definition was beyond OPM's authority under Executive Order 12107 and 
inconsistent with prior use of the term in OPM's Guide to Personnel 
Recordkeeping. Another commenter wanted the definition to be revised in 
order to make clear that the NPRC, although in physical possession of 
OPFs, is not responsible for the cost associated with the maintenance 
and disposition of the OPF once it arrives at NPRC.
    Rather than amending Sec.  293.102, the definitions section for all 
of 5 CFR part 293, OPM has decided to include the definition solely in 
the regulations for OPFs by amending Sec.  293.303. In this rule, Sec.  
293.303 replaces the ``jurisdiction and control'' language that was 
introduced in 1954 by Executive Order 10561 (September 13, 1954) and 
included in Civil Service Commission regulations implementing that 
order (19 FR 6899 (October 28, 1954)), with the concept of custodian in 
order to more clearly articulate the responsibilities of OPM and the 
other agencies. Although Executive Order 10561 was revoked by Executive 
Order 12107 (December 28, 1978), OPM continued to use the 
``jurisdiction and control'' language that was borrowed from it. The 
notion of jurisdiction and control has led to confusion about the 
delineation of responsibilities and costs associated with carrying out 
those responsibilities.
    The purpose of this concept was to recognize that although other 
agencies are often in possession of the OPFs, the authority for the 
establishment, maintenance and transfer of them resides with OPM. The 
same purpose is reflected in this rule's revision in Sec.  293.303 by 
creating paragraph (a), which keeps much of the original language from 
the section but eliminates the phrase ``jurisdiction and control.'' 
Further, this rule revises Sec.  293.303 by introducing several 
additional paragraphs that define the term custodian and specify the 
responsibilities of OPM, agencies, and custodians pertaining to 
establishing, maintaining, and transferring OPFs.
    Executive Order 12107 grants OPM authority to promulgate 
regulations pertaining to the establishment, maintenance, and transfer 
of OPFs. Defining a term to be used by OPM within those regulations is 
consistent with this authority. Moreover, regulating the activities and 
responsibilities of agencies in physical possession of OPFs is 
inherently part of the maintenance and transfer of OPFs.
    OPM does not agree that the definition of custodian contained in 
this rule is inconsistent with OPM's use of the term in the Guide to 
Personnel Recordkeeping. However, to the extent that an inconsistency 
arises, the definition of custodian in this rule is controlling for 
purpose of implementing these regulations. The Guide to Personnel 
Recordkeeping will be revised to resolve any inconsistency that comes 
to OPM's attention.
    Instead of revising the definition of custodian to ensure that the 
NPRC is not responsible for costs associated with the maintenance and 
disposition of OPFs once they arrive at NPRC, OPM has added paragraph 
(d)(5) to Sec.  293.303 to clarify that OPM is the custodian once the 
NPRC approves the transfer of an OPF from an agency.

10. When an Agency Is No Longer a Custodian

    Three commenters noted that the proposed definition of custodian 
seemed to indicate that agencies no longer have responsibility for the 
cost of transferring OPFs to NPRC after an individual separates from 
Federal service because an agency is the legal custodian of an 
employee's OPF during the period of the employee's employment at that 
agency. The argument was that because agencies are required to hold the 
folders for a minimum of 30 days after an employee separates, and 
because the agency is responsible only during the period of employment, 
the agency is not responsible for transfer costs.
    OPM agrees that an agency is the custodian during the period of an 
employee's employment. An agency remains the custodian, however, even 
after an employee separates, while it performs its personnel management 
responsibilities, which typically take 30 days. Agencies complete 
actions such as resignation, termination, or retirement after an 
employee separates from the losing agency. In addition, in the case of 
some actions outlined in Chapter 7 of the Guide to Personnel 
Recordkeeping, the OPF may remain in the possession of an agency for 
longer than 30 days. In order to accomplish these vital actions; ensure 
the accuracy, completeness, necessity, timeliness, and relevance of the 
actions; and ensure the fairness of decisions involving the subject of 
the OPF, as required by 5 U.S.C. 552a(e)(1), the folder remains in the 
physical possession of the agency for some time after separation. To 
clarify when an agency is no longer the custodian of an OPF, the rule 
amends Sec.  293.303 by adding paragraphs (d)(4) and (d)(5).

11. Potential Augmentation of OPM's Appropriation

    Three commenters suggested that the rule would result in an 
augmentation of OPM's appropriation because OPM receives appropriated 
funds for reimbursing the NPRC for costs associated with OPFs.
    Although OPFs are designated as records of OPM, some of the 
administrative expenses associated with OPFs flow logically from each 
agency's requirements of maintaining its own workforce, including 
compliance with OPM's regulations. Indeed, having OPFs is part and 
parcel of having employees. Each agency is responsible for its own 
personnel management, and establishing, maintaining, and transferring 
OPFs are necessary functions of each agency's personnel office. This 
includes remedying OPFs submitted improperly, as well as amending or 
correcting OPFs of current and former employees, rehiring former 
Federal employees, and utilizing OPFs in litigation. Therefore, each 
agency's general operating appropriation is available to reimburse the 
NPRC for expenses related to these functions. At the same time, OPM's 
appropriation is available for expenses necessary to carry out OPM's 
Governmentwide functions regarding OPFs, such as storage of OPFs and 
servicing OPFs that have been transferred and accepted by the NPRC.

[[Page 52536]]

OPM is also responsible for expenses related to its own employees' 
OPFs.
    Prior to Fiscal Year (FY) 2000, NARA financed the activities of the 
NPRC related to OPFs out of its own general operating appropriation. 
During this period, the NPRC paid the costs of transferring, storing, 
and providing other services associated with OPFs out of an 
appropriation to NPRC for this purpose. OPM did not reimburse the NPRC 
for costs associated with OPFs. (And agencies were--and still are--
responsible for costs associated with establishing and maintaining OPFs 
for their employees).
    Beginning with FY 2000, however, Congress changed the financing of 
the NPRC activities by establishing the Records Center Revolving Fund 
(Fund) and authorizing the NPRC to credit the Fund with fees charged to 
other agencies (Pub. L. 106-58, 113 Stat. 430, 460-61 (Sept. 29, 1999), 
codified at 44 U.S.C. 2901 note).
    Currently, each agency incurs the cost of establishing OPFs for its 
own employees as a necessary expense of maintaining its workforce. 
Similarly, each agency has incurred costs associated with maintaining 
OPFs for its own employees. Agencies do not seek, or receive, 
reimbursement from OPM for these costs. Rather, agencies understand 
that they are required by regulation to perform these tasks and incur 
costs associated with fulfilling their responsibilities as employing 
agencies. However, because of the confusion created by the title of 
Sec.  293.303, ``Ownership of the Folder,'' and its mention of 
``jurisdiction and control'' of OPFs, the costs of transferring OPFs to 
and from the NPRC have been avoided by the other agencies. By 
specifically providing that the costs associated with transferring OPFs 
are the responsibility of the transferring agencies, OPM has now 
eliminated this confusion.
    This rule reflects OPM's position that services the NPRC provides 
to agencies transferring OPFs to the NPRC are not services that benefit 
OPM, but rather are services that allow agencies to fulfill their 
responsibilities as employers (and under OPM's regulations). Similarly, 
the services the NPRC provides to agencies initiating requests for OPFs 
from the NPRC are also services that benefit agencies, not OPM. 
Although OPM has incurred these costs since FY 2000, it would not be 
appropriate to continue such an arrangement now that the roles and 
responsibilities of OPM and the other agencies have been clarified.

12. NPRC Billing and Business Practices

    A commenter stated that the implementation of this rule would have 
a negative impact on the NPRC's billing and business practices because 
it will have to initiate agreements with each agency for billing and 
services and it may be necessary to charge OPM by folder rather than by 
cubic foot.
    OPM appreciates the concern for the potential impact this rule may 
have for the NPRC. However, OPM does not control the NPRC's billing and 
business practices, or how it will adjust to this rule. As noted 
previously, this rule is being adopted in order to rectify the 
ambiguity of which responsibilities are OPM's and which are 
responsibilities of the other agencies. Resolving this ambiguity 
ultimately should help the NPRC determine the appropriate billing and 
business practices to adopt and implement.

13. Excluded Agencies

    While OPM was preparing the rule for publication and in discussions 
with the NPRC about the interagency agreement that governs the 
operating relationship between the NPRC and OPM, the NPRC brought to 
OPM's attention the potential for Sec.  293.301, the applicability 
provision for subpart C (OPF regulations), to be read more broadly than 
OPM intended.
    Section 293.301 states that the OPF regulations apply to ``each 
executive department and independent establishment of the Federal 
Government, each corporation wholly owned or controlled by the United 
States, and with respect to positions subject to civil service rules 
and regulations, the legislative and judicial branches of the Federal 
Government.'' Prior to 1985, Sec.  293.301 included a clause that 
exempted agencies from the OPF regulations if they were ``specifically 
excluded from [OPM] recordkeeping requirements by statute, Office 
regulation or formal agreement between the Office and the agency'' (5 
CFR 293.301 (1985)).
    However, the exclusionary language was subsequently removed from 
Sec.  293.301. On October 19, 1982, OPM issued a notice in the Federal 
Register proposing to amend part 293 in order to move the guidelines on 
accessing OPFs from 5 CFR part 294 to 5 CFR part 293 (See 47 FR 46513 
(Oct. 19, 1982)). As part of this proposed amendment, for reasons not 
stated, OPM amended Sec.  293.301 by removing the clause exempting 
agencies specifically excluded from OPM's recordkeeping requirements. 
The rule became final on January 24, 1985, with no mention in the final 
notice of why the exclusionary language was removed (See 50 FR 3307 
(Jan. 24, 1985)).
    Removal of the exclusionary language was probably due to the fact 
that Sec.  293.101(b) of 5 CFR 293, subpart A (Basic Policies on 
Maintenance of Personnel Records) contains similar language that may 
have been considered applicable to subpart C. Section 293.101(b) makes 
the basic policies on maintenance of personnel records applicable ``to 
any department or independent establishment in the Executive Branch of 
the Federal Government * * * except those specifically excluded from 
Office recordkeeping requirements by statute, Office regulation, or 
formal agreement between the Office and that agency.'' However, as 
stated in Sec.  293.101(b), it applies only to subpart A, not subpart 
C. Therefore, the exclusionary language of Sec.  293.101(b), as 
written, does not affect Sec.  293.301. The current language of Sec.  
293.301 appears to apply to agencies regardless of whether they are 
subject to OPM's basic policies on maintenance of personnel records.
    At any rate, in practice, OPM has continued to consider agencies 
that are specifically excluded from OPM recordkeeping requirements by 
statute, regulation or formal agreements between OPM and other agencies 
(i.e., exempt from subpart A) as exempt from OPM's OPF regulations 
(i.e., exempt from subpart C). This practice is reflected in Chapter 2, 
Section 2-A of OPM's Guide to Personnel Recordkeeping, which is 
entitled ``Employment Systems Outside the Office of Personnel 
Management's Recordkeeping Authority.''
    After consulting with the NPRC, OPM has addressed the potential to 
read Sec.  293.301 more broadly then intended by reinserting the 
original, pre-1985 exclusionary language at the end of the current 
Sec.  293.301. Moreover, OPM has added an additional sentence following 
this language that identifies OPM's Guide to Personnel Recordkeeping as 
the document where excluded agencies will be listed, which will allow 
for more efficient updates and revisions, rather than listing the 
agencies in the rule.

14. Need for an Effective Date

    A commenter requested the rule have an established effective date 
that is far enough in the future to allow agencies' human resource 
offices and the NPRC to prepare for the changes made by this rule.
    The proposed rule was published on January 19, 2010. Since that 
time, personnel offices have been on notice of the impending changes 
made by this rule and the NPRC has implemented a system that will 
permit it to bill individual agencies for the costs they incur. OPM is 
confident that agencies and the NPRC are capable of meeting

[[Page 52537]]

the requirements of this rule. Therefore, the effective date of these 
changes will be 30 days from the date of publication of this rule in 
the Federal Register.

Regulatory Flexibility Act

    I certify that these regulations will not have a significant 
economic impact on a substantial number of small entities because they 
would apply only to Federal agencies and employees.

Executive Order 13563 and Executive Order 12866

    The Office of Management and Budget has reviewed this rule in 
accordance with E.O. 13563 and 12866.

List of Subjects in 5 CFR Part 293

    Government employees, Privacy, Records.

U.S. Office of Personnel Management.
John Berry,
Director.

    Accordingly, OPM amends 5 CFR part 293, subpart C as follows:

PART 293--PERSONNEL RECORDS

Subpart C--Official Personnel Folder

0
1. The authority citation for part 293, subpart C, is revised to read 
as follows:

    Authority:  5 U.S.C. 552; 5 U.S.C. 552a; 5 U.S.C. 1103; 5 U.S.C. 
1104; 5 U.S.C. 1302, 5 U.S.C. 2951(2), 5 U.S.C. 3301; 5 U.S.C. 4315; 
E.O. 12107 (December 28, 1978), 3 CFR 1954-1958 Compilation; E.O. 
9830 (February 24, 1947); 3 CFR 1943-1948 Compilation.


0
2. Revise Sec.  293.301 to read as follows:


Sec.  293.301  Applicability of regulations.

    Except for those agencies specifically excluded from Office of 
Personnel Management (OPM) recordkeeping requirements by statute, OPM 
regulation, or formal agreement between OPM and the agency, this 
subpart applies to--and within this subpart agency means--each 
executive department and independent establishment of the Federal 
Government; each corporation wholly owned or controlled by the United 
States; and, with respect to positions subject to civil service rules 
and regulations, the legislative and judicial branches of the Federal 
Government. OPM will list agencies to which this subpart does not apply 
in the Guide to Personnel Recordkeeping, and will amend the Guide from 
time to time to update that list.

0
3. Revise Sec.  293.303 to read as follows:


Sec.  293.303  The roles and responsibilities of the Office, agencies, 
and custodians.

    (a) The Official Personnel Folder (OPF) of each employee in a 
position subject to civil service rules and regulations and of each 
former employee who held such a position is part of the records of the 
Office of Personnel Management (Office).
    (b) The Office has Government-wide responsibility for developing 
regulations, practices and procedures for the establishment, 
maintenance, and transfer of OPFs.
    (c) Agencies shall be responsible for the following:
    (1) The establishment of the OPF for a new appointee or a new 
employee for whom no OPF has previously been established; and
    (2) The maintenance of a previously existing OPF during the period 
any new appointee or employee remains an agency's employee.
    (d)(1) Custodian means the agency in physical possession of an OPF. 
In the case of an electronic OPF (eOPF), the custodian is the agency 
that has primary access to an eOPF contained within a document 
management system approved by the Office.
    (2) A custodian shall be responsible for the maintenance and 
transfer of the OPF or eOPF, and the costs associated with these 
activities.
    (3) An agency is the custodian of an OPF it requests from the 
National Personnel Records Center (NPRC), for any temporary use, from 
the date that the OPF is transmitted by the NPRC to the agency until 
the date that the NPRC receives the OPF back from the agency.
    (4) An agency is no longer the custodian of an OPF once the OPF has 
been transferred to and accepted by the NPRC.
    (5) Once NPRC has approved the transfer, the Office is the 
custodian of the OPF until the destruction date established for the 
file pursuant to the National Archive and Records Administration's 
General Records Schedule, unless another agency requests the OPF from 
the NPRC in the interim.
    (e) Agencies and custodians shall carry out their responsibilities 
with respect to the OPF or eOPF in accordance with this subpart and the 
Office's Guide to Personnel Recordkeeping.

0
4. Amend Sec.  293.307 by adding new paragraphs (c) and (d) as follows:


Sec.  293.307  Disposition of folders of former Federal employees.

* * * * *
    (c) Agencies are responsible for all costs associated with the 
establishment and maintenance of OPFs and the transfer of OPFs to the 
National Personnel Records Center.
    (d) Agencies are responsible for all costs associated with agency-
initiated requests for OPFs or services from the National Personnel 
Records Center.

[FR Doc. 2011-21395 Filed 8-22-11; 8:45 am]
BILLING CODE 6325-47-P


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