[Federal Register Volume 60, Number 10 (Tuesday, January 17, 1995)]
[Rules and Regulations]
[Pages 3337-3340]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-994]



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 Rules and Regulations
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  Federal Register / Vol. 60, No. 10 / Tuesday, January 17, 1995 / 
Rules and Regulations  
[[Page 3337]]

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 831 and 842

RIN 3206-AF67


Law Enforcement Officers and Firefighters

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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

SUMMARY: The Office of Personnel Management (OPM) is issuing final 
rules amending the regulations covering special retirement provisions 
for law enforcement officers and firefighters employed under the Civil 
Service Retirement System (CSRS). These changes, and conforming changes 
under the Federal Employees Retirement System (FERS), are intended to 
improve efficiency by delegating to the employing agencies 
responsibility for deciding who is entitled to coverage under the 
special retirement provisions.

EFFECTIVE DATE: February 16, 1995.

FOR FURTHER INFORMATION CONTACT:
John E. Landers (202) 606-0299.

SUPPLEMENTARY INFORMATION: On December 7, 1993, OPM published (at 58 FR 
64366) interim regulations and requested comments concerning the 
delegation to employing agencies of the Office of Personnel 
Management's (OPM) authority to make determinations of eligibility for 
law enforcement officer and firefighter retirement coverage. The 
delegation of authority from OPM to agency heads will streamline the 
processing of law enforcement officer and firefighter coverage 
determinations, and place responsibility for those determinations with 
the employing agencies that have the most direct personnel management 
interest in them.
    Section 8336(c) of title 5, U.S. Code, authorizes immediate 
retirement benefits at age 50 for Federal employees who have completed 
20 years of Federal civilian service as a law enforcement officer or 
firefighter. Prior to publication of the interim regulations, OPM 
retained sole authority to determine whether service met the retirement 
law's definitions of law enforcement officer or firefighter (5 U.S.C. 
Sec. 8331(20) and 5 U.S.C. Sec. 8331(21), respectively), and therefore 
qualified for special retirement benefits. The interim regulations 
authorized heads of employing agencies, subject to OPM oversight, to 
decide which of their CSRS employees qualify for law enforcement 
officer or firefighter coverage in the same manner as those 
determinations had previously been made for law enforcement officers 
and firefighters under FERS. (See subpart H of 5 CFR part 842.)
    The interim rules were intended to make substantive changes only 
with regard to the delegation of authority to make coverage 
determinations (with OPM retaining an oversight role); the criteria for 
making coverage determinations were not changed. We received several 
comments on the interim regulations and they are addressed below. We 
have not addressed the many comments we received that were aimed at 
substantive benefit and procedural provisions outside the scope of the 
interim regulations. Two comments also revealed the need for 
nonsubstantive changes to the interim regulations, and these changes, 
which have been incorporated into the final rules, are explained below.
    One commenter stated that the level of delegation to agency heads 
is too high. The interim regulations, in Sec. 831.902, allow limited 
redelegation of the coverage-approval authority to the designated 
representative of an executive department head. The representative must 
be a department headquarters-level official who reports directly to the 
executive department head and must be the sole such representative for 
the entire department. The level of delegation reflects the high, on-
going cost of the special benefits and the need for department-wide 
consistency in making these determinations. It has come to our 
attention, however, that the requirement that the representative be an 
official who reports directly to the department head is unnecessarily 
restrictive in a situation where the appropriate representative, who 
has department-wide responsibility, does not report directly to the 
department head, but rather to the deputy department head. Accordingly, 
we are amending this provision to allow the department head to 
designate as his or her representative for this purpose an official who 
reports directly to the deputy department head. The existing 
requirement that the representative be a department headquarters-level 
official who is the sole such representative for the entire department 
is unchanged. We are making a similar amendment to the FERS 
regulations.
    We have also made an editorial change in the definition of agency 
head in Sec. 831.902, deleting in the second sentence the unnecessary 
phrase for provisions dealing with law enforcement officers and 
firefighters.
    Another commenter pointed out an inconsistency between the interim 
regulations and the FERS rules regarding the level of authority to 
issue denials of requests for special benefits coverage. To remedy this 
inconsistency, Sec. 831.910 is being amended to conform to the FERS 
rule. An agency's final denial of coverage to an individual is 
appealable to the Merit Systems Protection Board, but authority to 
issue the denial is not subject to the restriction on redelegations 
discussed above, and may be issued at any level considered appropriate 
by the employing agency.
    A number of individual commenters asked that we impose a time limit 
on agencies to make coverage determinations. The purpose of these 
regulations is to allow agencies to make their determinations as 
efficiently as possible without having to seek an additional approval 
by OPM. Therefore, we believe that the final determinations should take 
less time. However, OPM does not generally place time limits on 
internal decision-making by agencies--we cannot control the agencies' 
resources or workload--and we do not consider it to be administratively 
feasible to do so with respect to agency actions under this delegated 
authority.
    Other commenters, who agreed with OPM's decision to delegate the 
authority to make these determinations, stated that agencies should re-
open requests for special benefits coverage that OPM denied--and the 
employee had not appealed--before publication of the 
[[Page 3338]] interim regulations. The interim regulations allow 
agencies to re-open a claim only if the agency head determines that new 
and material evidence is available that, despite due diligence, was not 
available before the decision was issued. Therefore, if an employee has 
new, previously unavailable evidence bearing on his or her case, the 
employee should address the matter to the agency where the service was 
performed. However, the interim regulations made no substantive change 
in the criteria that must be used to evaluate claims, and we therefore 
believe that the delegation of authority to agencies does not justify 
re-opening denials of coverage that the individual did not appeal 
within the time limits established by the Merit Systems Protection 
Board.
    Other commenters suggested eliminating or limiting OPM's oversight 
role. Oversight under these regulations--like the delegation of 
authority itself--is designed to parallel the oversight role given to 
OPM under the FERS regulations since 1987. We believe that oversight of 
a delegatee's use of an authority is an inherent element in the process 
of delegation, which necessarily assumes that the delegation can be 
withdrawn in the event that the authority is misapplied.
    Another commenter suggested that OPM rescind its regulations 
altogether and allow each unit of the Government to interpret the 
special benefits statute. However, section 8347(a) of title 5, United 
States Code, requires OPM to prescribe regulations that are necessary 
and proper to carry out the Civil Service Retirement law. This 
commenter suggested that, after rescinding its regulations, OPM should 
then be responsible for monitoring each agency's compliance with the 
statute. However, the existing regulations set out OPM's interpretation 
of the statute and provide minimal Government-wide procedures. 
Therefore, if OPM is to continue to monitor the agencies' 
implementation of the law, we believe our interpretation of the law, 
and minimal implementing procedures, should be set out in uniform, 
published form in the Code of Federal Regulations, which is open to 
both agencies and affected employees, as well as the general public.
    The same commenter asked for clarification about claims for special 
benefits coverage filed before October 1, 1989, because claims filed 
after that date are subject to a limitation: except in the case of an 
individual who shows good cause for a late request, the employing 
agency will not consider service performed more than 1 year before the 
individual's request is received. Old claims, those filed before 
October 1, 1989, are not subject to this limitation.
    Another commenter suggested that the regulations allow for blanket 
determinations that a position is a law enforcement officer position. 
The regulations do this in Secs. 831.903 and 831.904. The commenter 
also suggested that the regulations allow a group of employees, through 
a representative, to request a blanket approval of their position and 
that a denial of the request should be appealable to the Merit Systems 
Protection Board. The interim regulations basically adopted the FERS 
approach to individual rights where an agency determines that the 
official position description does not show that the position satisfies 
the definition of law enforcement officer or firefighter. In this case, 
any individual may request the employing agency to review his or her 
actual primary duties to determine whether they meet the definition. 
The employee may appeal a denial to the Merit Systems Protection Board. 
We believe that this system adequately protects individual rights, 
whereas blanket determinations based on actual duties of individuals 
would not be conducive to a full review of each individual employee's 
actual duties where the position description is claimed to be 
inaccurate. If one or more employees believe that their position 
description (for which the employing agency or OPM has denied coverage) 
is accurate, but that it should be considered to meet the definition of 
law enforcement officer or firefighter, we believe that the 
administrative approach should be determined by the employing agency 
head, depending on the circumstances, to provide for efficient 
administration without sacrificing individual rights to review of an 
agency decision that denies special benefits coverage.
    This commenter also suggested that OPM's oversight authority should 
be limited so as to make any reversal of a coverage approval 
determination prospective only. Under a statutory benefits program, 
such as the CSRS, the right to benefits flows from an individual's 
meeting the statutory criteria for benefits. Therefore, OPM is not 
limited to prospective-only corrections of coverage approval errors, 
just as corrections of coverage denial errors are not prospective only, 
subject to certain limits that require individuals to make timely 
claims. In any event, if OPM were limited to prospective-only denials 
of coverage in its exercise of oversight, the result would in most 
cases be harmful to the employees involved, because the statute does 
not provide special benefits unless the employee completes 20 years of 
special-category service. If, as suggested, a correction to show that 
an employee was not a firefighter, for example, could be effected 
prospectively only, the employee would be considered a firefighter for 
past service for which he or she would have been subject to the 
additional salary withholding, but by law would not qualify for a 
refund of that additional amount, even if he or she had completed less 
than 20 years of service and therefore qualified for no additional 
benefits as a firefighter.
    The same commenter also suggested that we amend the regulations to 
establish that, in exercising oversight, OPM will accept additional 
evidence from the employee and his or her collective bargaining 
representative. The regulations require each agency to establish a file 
on each coverage determination, which must include all background 
material used in making the determination. See Sec. 831.911(b). This 
file is the subject of OPM's oversight and we do not see any need for 
additional evidence for OPM to use in determining whether the file 
adequately documents that the decision made by the employing agency was 
correct. If OPM makes a decision, or instructs the employing agency 
head to issue a new decision affecting an individual's rights under the 
CSRS or FERS, that decision would be subject to de novo review by the 
Merit Systems Protection Board.
    Another commenter correctly pointed out that Sec. 831.907(c) of the 
interim regulations, and Sec. 842.805(d) of the FERS regulations, 
should not bar an employing agency from paying interest in cases 
involving overwithholding of salary. When an employing agency finds 
that it has erroneously withheld from an employee's salary the 
additional 1/2 percent of basic pay required for law enforcement 
officers and firefighters, the agency must retroactively correct its 
records and refund the erroneous withholdings to the individual. The 
interim regulations stated that the refund is to be paid without 
interest. However, the Back Pay Act provides authority (see subpart H 
of part 550 of title 5, Code of Federal Regulations) for the employing 
agency to pay interest on the erroneous withholdings under certain 
circumstances. Accordingly, the restriction on interest payments by 
employing agencies stated in Sec. 831.907(c) and Sec. 842.805(d) is 
being eliminated. These paragraphs have also been rewritten to clarify 
that the employing agency or former employing agency is responsible for 
refunding the erroneous additional withholding. In the case of a refund 
of the erroneous [[Page 3339]] additional 1/2 percent of salary that 
was included in the computation of a deposit or redeposit to the 
retirement fund--for nondeduction or refunded service, respectively--
OPM has no authority to add interest.

Waiver of General Notice of Proposed Rulemaking

    Under section 553(b)(3)(B) of title 5, United States Code, I find 
that good cause exists for waiving the general notice of proposed 
rulemaking for the changes to 5 CFR part 842. These changes conform to 
the changes we are making to part 831. The notice of interim rulemaking 
in part 831 stated that the changes were designed to conform the 
delegation of authority under CSRS (part 831) to the delegation under 
FERS (part 842) and the changes we are now making to part 842 will 
accomplish that purpose. Another notice of rulemaking is unnecessary, 
because we have already requested comments on the underlying issue as 
part of this rulemaking.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant economic 
impact on a substantial number of small entities because the regulation 
will only affect Federal employees and agencies and retirement payments 
to retired Government employees and their survivors.

List of Subjects in 5 CFR Parts 831 and 842

    Administrative practice and procedure, Air traffic controllers, 
Alimony, Claims, Disability benefits, Firefighters, Government 
employees, Income taxes, Intergovernmental relations, Law enforcement 
officers, Pensions, Reporting and recordkeeping, Retirement.

U.S. Office of Personnel Management.
James B. King,
Director.

    Accordingly, OPM is adopting its interim regulations under 5 CFR 
part 831 published at 58 FR 64366 on December 7, 1993, as final with 
the following changes, and is amending 5 CFR part 842, as follows:

PART 831--RETIREMENT

    1. The authority citation for part 831 of title 5, United States 
Code, continues to read as follows:

    Authority: 5 U.S.C. 8347; Sec. 831.102 also issued under 5 
U.S.C. 8334; Sec. 831.106 also issued under 5 U.S.C. 552a; 
Sec. 831.108 also issued under 5 U.S.C. 8336(d)(2); 
Sec. 831.201(b)(6) also issued under 5 U.S.C. 7701(b)(2); 
Sec. 831.204 also issued under section 7202(m)(2) of the Omnibus 
Budget Reconciliation Act of 1990, Pub. L. 105-508, 104 Stat. 1388-
339; Sec. 831.303 also issued under 5 U.S.C. 8334(d)(2); 
Sec. 831.502 also issued under 5 U.S.C. 8337; Sec. 831.502 also 
issued under section 1(3), E.O. 11228, 3 CFR 1964-1965 Comp.; 
Sec. 831.621 also issued under section 201(d) of the Federal 
Employees Benefits Improvement Act of 1986, Pub. L. 99-251, 100 
Stat. 23; subpart S also issued under 5 U.S.C. 8345(k); subpart V 
also issued under 5 U.S.C. 8343a and section 6001 of the Omnibus 
Budget Reconciliation Act of 1987, Pub. L. 100-203, 101 Stat. 1330-
275; Sec. 831.2203 also issued under section 7001(a)(4) of the 
Omnibus Budget Reconciliation Act of 1990, Pub. L. 101-508; 104 
Stat. 1388-328.

Subpart I--Law Enforcement Officers and Firefighters

    2. In Sec. 831.902, the definition of agency head is revised to 
read as follows:


Sec. 831.902  Definitions.

* * * * *
    Agency head means, for the executive branch agencies, the head of 
an executive agency as defined in 5 U.S.C. 105; for the legislative 
branch, the Secretary of the Senate, the Clerk of the House of 
Representatives, or the head of any other legislative branch agency; 
for the judicial branch the Director of the Administrative Office of 
the U.S. Courts; for the Postal Service, the Postmaster General; and 
for any other independent establishment that is an entity of the 
Federal Government, the head of the establishment. For purposes of this 
subpart, agency head is also deemed to include the designated 
representative of the head of an executive department as defined in 5 
U.S.C. 101, except that the designated representative must be a 
department headquarters-level official who reports directly to the 
executive department head, or to the deputy department head, and who is 
the sole such representative for the entire department.
* * * * *
    3. In section 831.907 paragraph (c) is revised to read as follows:


Sec. 831.907  Withholdings and contributions.

* * * *
    (c) Upon proper application from an employee, former employee or 
eligible survivor of a former employee, an employing agency or former 
employing agency will pay a refund of erroneous additional withholdings 
for service that is found not to have been covered service. If an 
individual has paid to OPM a deposit or redeposit, including the 
additional amount required for covered service, and the deposit or 
redeposit is later determined to be erroneous because the service was 
not covered service, OPM will pay the refund, upon proper application, 
to the individual, without interest.
* * * * *
    4. Section 831.910 is revised to read as follows:


Sec. 831.910  Review of decisions.

    The following decisions may be appealed to the Merit Systems 
Protection Board under procedures prescribed by the Board:
    (a) The final decision of an agency or OPM issued to an employee, 
former employee, or survivor as the result of a request for 
determination filed under Sec. 831.906; and
    (b) The final decision of an agency that a break in service 
referred to in Sec. 831.904(a)(2) did not begin with an involuntary 
separation within the meaning of 5 U.S.C. Sec. 8336(d)(1).

PART 842--FEDERAL EMPLOYEES RETIREMENT SYSTEM--BASIC ANNUITY

    5. The authority citation for part 842 of title 5, United States 
Code, continues to read as follows:

    Authority: 5 U.S.C. 8461(g); Secs. 842.104 and 842.106 also 
issued under 5 U.S.C. 8461(n); Sec. 842.105 also issued under 5 
U.S.C. 8402(c)(1) and 7701(b)(2); Sec. 842.106 also issued under 
section 7202(m)(2) of the Omnibus Budget Reconciliation Act of 1990, 
Pub. L. 101-508 and 5 U.S.C. 8402(c)(1); Secs. 842.604 and 842.611 
also issued under 5 U.S.C. 8417; Sec. 842.607 also issued under 5 
U.S.C. 8416 and 8417; Sec. 842.614 also issued under 5 U.S.C. 8419; 
Sec. 842.615 also issued under 5 U.S.C. 8418; Sec. 842.703 also 
issued under section 7001(a)(4) of the Omnibus Budget Reconciliation 
Act of 1990, Pub. L. 101-508; Sec. 842.707 also issued under section 
6001 of the Omnibus Budget Reconciliation Act of 1987, Pub. L. 100-
203; Sec. 842.708 also issued under section 4005 of the Omnibus 
Budget Reconciliation Act of 1989, Pub. L. 101-239 and section 7001 
of the Omnibus Budget Reconciliation Act of 1990, Pub. L. 101-508; 
subpart H also issued under 5 U.S.C. 1104.

Subpart H--Law Enforcement Officers, Firefighters, and Air Traffic 
Controllers

    6. In Sec. 842.802, the definition of agency head is revised to 
read as follows:


Sec. 842.802  Definitions.

* * * * *
    Agency head means, for the executive branch agencies, the head of 
an executive agency as defined in 5 U.S.C. Sec. 105; for the 
legislative branch, the Secretary of the Senate, the Clerk of the House 
of Representatives, or the head of any other legislative branch agency; 
for the judicial branch, the Director of the 
[[Page 3340]] Administrative Office of the U.S. Courts; for the Postal 
Service, the Postmaster General; and for any other independent 
establishment that is an entity of the Federal Government, the head of 
the establishment. For purposes of this subpart, agency head is also 
deemed to include the designated representative of the head of an 
executive department as defined in 5 U.S.C. Sec. 101, except that, for 
provisions dealing with law enforcement officers and firefighters, the 
designated representative must be a department headquarters-level 
official who reports directly to the executive department head, or to 
the deputy department head, and who is the sole such representative for 
the entire department.
* * * * *
    7. In section 842.805 paragraph (d) is revised to read as follows:


Sec. 842.805  Withholding and contributions.

* * * * *
    (d) Upon proper application from an employee, former employee or 
eligible survivor of a former employee, an employing agency or former 
employing agency will pay a refund or erroneous additional withholdings 
for service that is found not to have been covered service. If an 
individual has paid to OPM a deposit or redeposit, including the 
additional amount required for covered service, and the deposit is 
later determined to be erroneous because the service was not covered 
service, OPM will pay the refund, upon proper application, to the 
individual, without interest.
* * * * *
[FR Doc. 95-994 Filed 1-13-95; 8:45 am]
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