This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

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new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

52533 

Vol. 76, No. 163 

Tuesday, August 23, 2011 

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 Tanya.Bennett@opm.gov. 

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: 

• In § 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. 

• In § 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. 

• In § 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). 

• In § 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. 

• In § 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. 

• In § 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 


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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 thirdparty 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 costrecovery, 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 costshifting. 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 

§ 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. 


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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 § 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 

§ 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 § 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 § 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 § 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 § 293.303. In this 

rule, § 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 

§ 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 § 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 § 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 § 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. 


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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 § 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 § 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, § 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 

§ 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 

§ 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 

§ 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 § 293.101(b), it 

applies only to subpart A, not subpart 

C. Therefore, the exclusionary language 

of § 293.101(b), as written, does not 

affect § 293.301. The current language of 

§ 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 

§ 293.301 more broadly then intended 

by reinserting the original, pre-1985 

exclusionary language at the end of the 

current § 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 


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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 

■ 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. 

■ 2. Revise § 293.301 to read as follows: 

§ 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. 

■ 3. Revise § 293.303 to read as follows: 

§ 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. 

■ 4. Amend § 293.307 by adding new 

paragraphs (c) and (d) as follows: 

§ 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 

OFFICE OF PERSONNEL 

MANAGEMENT 

5 CFR Parts 532 and 550 

RIN 3206–AM08 

Pay for Sunday Work 

AGENCY: Office of Personnel 

Management. 

ACTION: Final rule. 

SUMMARY: The U.S. Office of Personnel 

Management is issuing final regulations 

to implement the ruling in the case of 

Fathauer v. United States, 566 F.3d 

1352 (Fed. Cir. 2009). In this decision, 

the United States Court of Appeals for 

the Federal Circuit ruled that part-time 

employees are covered under the 

provisions of 5 U.S.C. 5546(a), the 

statute governing the payment of 

Sunday premium pay for work 

performed on Sundays. The revised 

Sunday premium pay regulations 

eliminate references to ‘‘full-time’’ 

employees, which will permit Sunday 

premium payments to part-time 

employees, in accordance with 5 U.S.C. 

5546(a). Consistent with the reasoning 

in the Fathauer decision, OPM has 

determined that part-time prevailing 

rate employees are also entitled to 

payment of Sunday premium pay, 

pursuant to 5 U.S.C. 5544(a). 

Intermittent employees continue to be 

excluded from earning Sunday premium 

pay because of the nature of their 

appointment. 

DATES: This rule is effective September 

22, 2011. 

FOR FURTHER INFORMATION CONTACT: 

David Barash by telephone at (202) 606– 

2858; by fax at (202) 606–0824; or by 

e-mail at pay-leave-policy@opm.gov. 

SUPPLEMENTARY INFORMATION: On April 

9, 2010, the U.S. Office of Personnel 

Management (OPM) issued proposed 

regulations at 75 FR 18133 to implement 

the decision in Fathauer v. United 

States, 566 F.3d 1352 (Fed. Cir. 2009), 

in which the court determined that parttime employees are covered under the 

Sunday premium pay statute at 5 U.S.C. 

5546(a). 

Background 

Under the Fathauer decision, the 

United States Court of Appeals for the 

Federal Circuit held that the definition 


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