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

■ 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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52538 Federal Register / Vol. 76, No. 163 / Tuesday, August 23, 2011 / Rules and Regulations 

of ‘‘employee’’ in 5 U.S.C. 5546(a) is 

unambiguous under the plain language 

of the statute and concluded that parttime employees are covered under the 

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

5546(a). Consequently, we have revised 

the Sunday premium pay regulations to 

provide that part-time employees are 

entitled to premium pay for Sunday 

work. 

OPM issued a compensation policy 

memorandum (CPM–2009–21, 

December 8, 2009) to inform 

departments and agencies of the 

Fathauer decision and to provide 

guidance for processing administrative 

claims for back pay. The guidance 

covers General Schedule and other 

employees covered by 5 U.S.C. 5546(a) 

and 5 CFR 550.171(a) and prevailing 

rate employees (wage grade employees) 

covered by 5 U.S.C. 5544(a) and 5 CFR 

532.509. Based on the Fathauer 

decision, eligible part-time employees 

are entitled to Sunday premium pay 

under 5 U.S.C. 5546(a), effective as of 

May 26, 2009. 

Eliminate Restriction for Sunday 

Premium Pay to Full-Time Employees 

Only 

OPM’s final regulations amend 

§§ 550.103 and 550.171(a) to remove 

references to ‘‘full-time’’ employee, 

which eliminate the restriction on the 

payment of Sunday premium pay to 

full-time employees only. The final 

regulations clarify, in accordance with 

the Fathauer decision, that part-time 

employees who are regularly scheduled 

to perform work on a Sunday are 

entitled to Sunday premium pay for the 

non-overtime hours worked. However, 

intermittent employees will continue to 

be excluded from earning Sunday 

premium pay because of the nature of 

their appointment and irregular work 

schedule. Sunday premium pay may be 

paid only to full-time and part-time 

employees who have Sundays as part of 

their non-overtime regularly scheduled 

tour of duty. 

Prevailing Rate Employees 

OPM applied the reasoning in the 

Fathauer decision to determine that 

part-time prevailing rate employees are 

covered under the Sunday premium pay 

provisions of 5 U.S.C. 5544(a) (also 

effective as of May 26, 2009). While 

OPM’s regulation at § 532.509 does not 

reference either part-time or full-time 

employees, we are making a clarifying 

amendment to this section. Currently 

§ 532.509 states that a wage employee 

whose regular work schedule includes 

an 8-hour period of service which is not 

overtime work, a part of which is on 

Sunday, is entitled to additional pay 

under the provisions of 5 U.S.C. 5544. 

We are amending § 532.509 to clarify 

that a wage employee is entitled to 

Sunday pay for a period of service, a 

part of which is on Sunday, of up to 8 

hours. This clarification is based on a 

Comptroller General opinion (46 Comp. 

Gen. 337 (1966)), that the period of 

service entitling an employee to Sunday 

premium pay may be less than 8 hours. 

Discussion of Comments 

The 60-day comment period for the 

proposed regulations ended on June 8, 

2010. We received five comments in 

response to the proposed regulations, 

one from a national union organization 

and four from individual commenters. 

As explained below, OPM is adopting 

the proposed regulations as final 

regulations without further changes. 

Two of the commenters questioned 

the use of Sunday premium pay and 

questioned the cost to taxpayers. These 

two comments are beyond the scope of 

this regulation. Sunday premium pay is 

authorized by statute. We are merely 

altering the Sunday premium pay 

regulations to ensure part-time 

employees are not excluded from 

receiving this entitlement pursuant to 

the statute at 5 U.S.C. 5546(a), 

consistent with a decision of the United 

States Court of Appeals for the Federal 

Circuit. 

Administrative Claims 

The union organization supported the 

proposed rules, but expressed concern 

that agencies may not notify employees 

in a timely manner of their right to file 

administrative pay claims. The union 

urged OPM to take more aggressive 

action by requiring agencies to advise 

part-time employees promptly of their 

right to file claims. While agencies are 

responsible for notifying their 

employees regarding actions that affect 

them, OPM took a proactive role in 

advising agencies in CPM 2009–21 that 

they should inform employees of the 

holding by the Court of Appeals in order 

to give notice to potential claimants. 

OPM provided thorough guidance in its 

memorandum and advised on the 

effective date of the decision and the 

time limitations for back pay claims 

permitted by the Barring Act of 1940, 

and noted that agencies could use the 

memorandum to inform employees of 

the Fathauer decision. OPM also 

provided notification to employees 

through its Web site and list server, 

published the proposed Sunday 

premium pay rule changes in the 

Federal Register as official notice to the 

public, and required agencies to post a 

notice of the rule change in a prominent 

place for employees to view. 

The union organization also believes 

that OPM should issue regulations 

directing agencies to pay employees 

Sunday premium pay retroactive to May 

26, 2009, without the need to file an 

administrative claim. It asserts that no 

administrative claim is necessary, 

which it believes would be consistent 

with the approach OPM used in issuing 

regulations to implement agency 

reimbursement provisions of Title II of 

the Notification and Federal Employee 

Antidiscrimination and Retaliation Act 

of 2002 (No FEAR Act). However, Title 

II of the No FEAR Act contains 

provisions for agency reimbursement of 

the Judgment Fund for payment made to 

employees because of violations of 

antidiscrimination and whistleblower 

protection laws, and/or retaliation 

claims arising from the assertion of 

rights under those laws. Unlike the 

compensation claims process, the No 

FEAR reimbursement rules are not 

subject to the provisions of the Barring 

Act or the Back Pay Act of 1966 (as 

amended) and apply specifically to one 

Government agency reimbursing 

another. Therefore, the administrative 

claims process is the appropriate means 

for employees to recover any unpaid 

Sunday premium pay owed them as a 

result of the Fathauer decision. 

Employee Coverage 

One commenter thought OPM 

diverged from the analysis of the 

Fathauer decision by limiting Sunday 

premium pay only to full-time and parttime employees in which Sundays are 

part of their regularly scheduled tour of 

duty. The commenter asserted that the 

proposed regulations do not reflect the 

Court of Appeals conclusions regarding 

the definition of ‘‘employee,’’ (i.e., 

generally, ‘‘those who work for pay’’), 

and ‘‘full-time and part-time’’ workers 

do not encompass all types of 

employees who should be eligible to 

earn Sunday premium pay. The 

commenter also stated that the statutory 

requirement in which an employee 

performs work during a ‘‘regularly 

scheduled’’ period of service is unduly 

restrictive. 

Another commenter also 

recommended that intermittent 

employees should receive Sunday 

premium pay. The individual reasoned 

that since intermittent employees may 

earn overtime pay under 5 U.S.C. 

5542(a), they should also be permitted 

to earn Sunday premium pay. The 

commenter further noted that Sunday 

work imposes an inconvenience on all 

employees, and referred to the Court of 

Appeals conclusion regarding the 

definition of an ‘‘employee.’’ 


rmajette on DSK89S0YB1PROD with RULES
Federal Register / Vol. 76, No. 163 / Tuesday, August 23, 2011 / Rules and Regulations 52539 

OPM disagrees with the commenters’ 

recommendations. Employees, within 

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

entitled to Sunday premium pay when 

they work a ‘‘regularly scheduled’’ 

8 hour period of service which is not 

overtime work, a part of which falls on 

Sunday. OPM, by regulation, has 

defined ‘‘intermittent employment’’ as 

‘‘employment without a regularly 

scheduled tour of duty.’’ (See 5 CFR 

340.401(b)). Accordingly, employees 

who are correctly classified as 

intermittent employees may not receive 

Sunday premium pay because, by 

definition, they do not perform regularly 

scheduled work. 

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. 

Regulatory Flexibility Act 

I certify that these regulations will not 

have a significant economic impact on 

a substantial number of small entities 

because they will apply only to Federal 

agencies and employees. 

List of Subjects 

5 CFR Part 532 

Administrative practice and 

procedure, Freedom of information, 

Government employees, Reporting and 

recordkeeping requirements. 

5 CFR Part 550 

Administrative practice and 

procedure, Claims, Government 

employees, Wages. 

U.S. Office of Personnel Management. 

John Berry, 

Director. 

Accordingly, OPM amends 5 CFR 

parts 532 and 550 as follows: 

PART 532—PREVAILING RATE 

SYSTEMS 

■ 1. The authority citation for part 532 

continues to read as follows: 

Authority: 5 U.S.C. 5343, 5346; § 532.707 

also issued under 5 U.S.C. 552. 

■ 2. Revise § 532.509 to read as follows: 

§ 532.509 Pay for Sunday work. 

A wage employee whose regular work 

schedule includes a period of service of 

up to 8 hours which is not overtime 

work, a part of which is on Sunday, is 

entitled to additional pay under the 

provisions of section 5544 of title 5, 

United States Code. 

PART 550—PAY ADMINISTRATION 

(GENERAL) 

Subpart A—Premium Pay 

■ 3. The authority citation for subpart A 

of part 550 continues to read as follows: 

Authority: 5 U.S.C. 5304 note, 5305 note, 

5504(d), 5541(2)(iv), 5545a(h)(2)(B) and (i), 

5547(b) and (c), 5548, and 6101(c); sections 

407 and 2316, Pub. L. 105–277, 112 Stat. 

2681–101 and 2681–828 (5 U.S.C. 5545a); 

E.O. 12748, 3 CFR, 1992 Comp., p. 316. 

■ 4. In § 550.103, revise the definition of 

Sunday work to read as follows: 

§ 550.103 Definitions. 

* * * * * 

Sunday work means nonovertime 

work performed by an employee during 

a regularly scheduled daily tour of duty 

when any part of that daily tour of duty 

is on a Sunday. For any such tour of 

duty, not more than 8 hours of work are 

Sunday work, unless the employee is on 

a compressed work schedule, in which 

case the entire regularly scheduled daily 

tour of duty constitutes Sunday work. 

* * * * * 

■ 5. In § 550.171, revise paragraph (a) to 

read as follows: 

§ 550.171 Authorization of pay for Sunday 

work. 

(a) An employee is entitled to pay at 

his or her rate of basic pay plus 

premium pay at a rate equal to 25 

percent of his or her rate of basic pay 

for each hour of Sunday work (as 

defined in § 550.103). 

* * * * * 

[FR Doc. 2011–21397 Filed 8–22–11; 8:45 am] 

BILLING CODE 6325–39–P 

OFFICE OF PERSONNEL 

MANAGEMENT 

5 CFR Part 843 

RIN 3206–AM29 

Federal Employees’ Retirement 

System; Present Value Conversion 

Factors for Spouses of Deceased 

Separated Employees 

AGENCY: Office of Personnel 

Management. 

ACTION: Final rule. 

SUMMARY: The Office of Personnel 

Management (OPM) is issuing an 

interim rule to revise the table of 

reduction factors for early commencing 

dates of survivor annuities for spouses 

of separated employees who die before 

the date on which they would be 

eligible for unreduced deferred 

annuities, and to revise the annuity 

factor for spouses of deceased 

employees who die in service when 

those spouses elect to receive the basic 

employee death benefit in 36 

installments under the Federal 

Employees’ Retirement System (FERS) 

Act of 1986. These rules are necessary 

to ensure that the tables conform to the 

economic, demographic and mortality 

assumptions adopted by the Board of 

Actuaries and published in the Federal 

Register on June 3, 2011, as required by 

5 U.S.C. 8461(i). 

DATES: This rule is effective August 23, 

2011. 

FOR FURTHER INFORMATION CONTACT: 

Roxann Johnson, (202) 606–0299. 

SUPPLEMENTARY INFORMATION: OPM has 

published a notice in the Federal 

Register at 76 FR 32242 (June 3, 2011) 

to revise the normal cost percentages 

under the Federal Employees’ 

Retirement System (FERS) Act of 1986, 

Public Law 99–335, 100 Stat. 514, as 

amended, based on economic 

assumptions, new demographic factors 

and mortality assumptions adopted by 

the Board of Actuaries of the Civil 

Service Retirement System. By statute 

under 5 U.S.C. 8461(i), the demographic 

factors, economic and mortality 

assumptions require corresponding 

changes in factors used to produce 

actuarially equivalent benefits when 

required by the FERS Act. 

Section 843.309 of title 5, Code of 

Federal Regulations, regulates the 

payment of the basic employee death 

benefit. Under 5 U.S.C. 8442(b), the 

basic employee death benefit may be 

paid as a lump sum or as an equivalent 

benefit in 36 installments. These rules 

amend 5 CFR 843.309(b)(2) to conform 

the factor used to convert the lump sum 

to 36-installment payments with the 

revised economic assumptions. 

Section 843.311 of title 5, Code of 

Federal Regulations, regulates the 

benefits for the survivors of separated 

employees under 5 U.S.C. 8442(c). This 

section provides a choice of benefits for 

eligible current and former spouses. If 

the current or former spouse is the 

person entitled to the unexpended 

balance under the order of precedence 

under 5 U.S.C. 8424, he or she may elect 

to receive the unexpended balance 

instead of an annuity. 

Alternatively, an eligible current or 

former spouse may elect to receive an 

annuity commencing on the day after 

the employee’s death or on the deceased 

separated employee’s 62nd birthday. If 

the annuity commences on the deceased 

separated employee’s 62nd birthday, the 

annuity will equal 50 percent of the 

annuity that the separated employee 

would have received had he or she 


rmajette on DSK89S0YB1PROD with RULES