[Federal Register Volume 66, Number 143 (Wednesday, July 25, 2001)]
[Rules and Regulations]
[Pages 38523-38526]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-18530]



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  Federal Register / Vol. 66, No. 143 / Wednesday, July 25, 2001 / 
Rules and Regulations  

[[Page 38523]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 831 and 842

RIN 3206-AJ39


Law Enforcement Officer and Firefighter Retirement

AGENCY: Office of Personnel Management.

ACTION: Interim rule.

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SUMMARY: The Office of Personnel Management (OPM) is issuing interim 
rules that permit certain police officers with the Metropolitan 
Washington Airports Authority (MWAA) to elect coverage under the 
special retirement provisions for law enforcement officers. OPM is also 
amending the regulations governing special retirement provisions for 
law enforcement officers and firefighters employed under the Civil 
Service Retirement System (CSRS) and the Federal Employees Retirement 
System (FERS). These changes are intended to clarify and interpret 
previously promulgated regulations.

DATES: Effective Date: This interim rule is effective July 25, 2001.
    Comment: We must receive your comments by August 24, 2001.

ADDRESSES: Send comments on this interim regulation to Mary Ellen 
Wilson, Director, Retirement Policy Center, Office of Personnel 
Management, Washington, DC 20415-3200. You may also submit comments by 
sending electronic mail (E-mail) to: [email protected].

FOR FURTHER INFORMATION CONTACT: Patrick Jennings (202) 606-0299.

SUPPLEMENTARY INFORMATION:

Coverage Elections for Metropolitan Washington Airports Authority 
Police Officers Under CSRS or FERS

    On December 21, 2000, Congress enacted the Consolidated 
Appropriations Act, 2001 (Public Law 106-554, 114 Stat. 2763). The 
Consolidated Appropriations Act, 2001 incorporated the Treasury and 
General Government Appropriations Act, 2001 (H.R. 5658) by reference 
(published as Appendix C to Pub. L. 106-554 at 114 Stat. 2763A-125). 
Section 636 of H.R. 5658 allows certain members of the police force of 
the Metropolitan Washington Airports Authority (MWAA) to elect to be 
treated as law enforcement officers for the purpose of retirement. Only 
MWAA police officers employed as of December 21, 2000, who are subject 
to CSRS or FERS retirement by virtue of section 49107(b) of title 49, 
United States Code, may make such an election. An election by an MWAA 
police officer to be treated as a law enforcement officer for 
retirement purposes must be made either before the police officer 
separates from the MWAA or within 1 year from the effective date of 
these regulations, whichever is earlier.
    An MWAA police officer covered by CSRS or FERS who elects to be 
treated as a law enforcement officer will receive law enforcement 
officer service credit for his or her past service as a police officer 
with the Federal Aviation Administration and the MWAA, subject to a 
deposit of retirement deductions plus interest. The MWAA must pay the 
agency's share of retirement contributions for the employee's service, 
plus interest.

Delegation of Authority To Deny Coverage

    Under the CSRS and FERS law enforcement officer and firefighter 
regulations a department headquarters-level official who is the sole 
such representative for the entire department must make law enforcement 
officer or firefighter coverage-approval decisions for position-based 
retirement coverage. Due to cost and consistency of decision 
considerations, the authority to approve law enforcement officer or 
firefighter coverage must be made by the agency head or, in the case of 
an executive department, the designated representative of the head of 
the executive department. The regulations do not expressly provide that 
an agency head can delegate the authority to deny enhanced retirement 
coverage to any level within an agency. Although the regulations did 
not address the issue, delegation by the agency head of his or her 
authority to deny enhanced coverage was discussed in the supplementary 
information published with previous CSRS and FERS regulations. The 
supplementary comments published with the FERS law enforcement and 
firefighter regulations indicate that an agency head can delegate the 
authority to deny enhanced coverage to any level within the agency. 
Specifically, the supplementary information states that:

    Section 842.804(c) allows an individual to request a 
determination as to whether his or her position qualifies as a law 
enforcement officer, firefighter, or air traffic controller 
position. Of course, any affirmative determination must be made by 
the agency head in accordance with Sec. 842.803. However, a denial 
of an individual request for position approval may be made by the 
agency head's designated representative, in accordance with agency 
delegations of authority. Any final agency decision denying an 
individual's request for position approval may be appealed to the 
Merit Systems Protection Board.
    We are amending Sec. 842.807 to clarify that (1) only agency 
denial decisions made in response to individual requests under 
Sec. 842.804(c) are subject to appeal and (2) agency denial 
decisions may be made by officials below the level of agency head * 
* *. (57 FR 32,685, 32,689 (1992)) (emphasis added).

    The CSRS regulations also allow an agency head to delegate the 
authority to deny law enforcement officer and firefigher coverage to 
any level within the agency. Further, the U.S. Merit Systems Protection 
Board has held that supplementary information published with the FERS 
law enforcement and firefighter regulations makes it clear that an 
agency head can delegate the authority to deny enhanced coverage to any 
level within the agency. See Streeter v. Department of Defense, 80 
M.S.P.R. 481, 484 (1998) (citing 57 FR 32685, 32688 (July 23, 1992)). 
OPM is incorporating into the body of the regulations the information 
regarding an agency head's authority to delegate denial decisions to 
any level within the agency.

Waiver of General Notice of Proposed Rulemaking

    Under section 553(b)(3)(A) and (B), and (d)(2) and (3) of title 5, 
United States Code, I find that these regulations contain interpretive 
rules and statements of policy, and that good

[[Page 38524]]

cause exists for waiving the general notice of proposed rulemaking and 
for making these rules effective in less than 30 days. Elections of law 
enforcement coverage by qualifying members of the Metropolitan 
Washington Airports Authority police force under these regulations will 
affect qualifying employees' retirement coverage retroactive to their 
entry on duty with the Metropolitan Washington Airports Authority. 
Publication of a general notice on proposed rulemaking would be 
contrary to the public interest because it would delay the election 
opportunity for eligible individuals.

Executive Order 12866, Regulatory Review

    This rule has been reviewed by the Office of Management and Budget 
in accordance with Executive Order 12866.

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 a small number of employees of the Metropolitan 
Washington Airports Authority.

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 requirements, 
Retirement.

U.S. Office of Personnel Management.
Steven R. Cohen,
Acting Director.

    For the reasons stated in the preamble, the Office of Personnel 
Management amends 5 CFR parts 831 and 842 as follows:

PART 831--RETIREMENT

    1. The authority citation for part 831 is revised 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. 831.114 also 
issued under 5 U.S.C. 8336(d)(2) and section 7001 of Pub. L. 105-
174, 112 Stat. 58; Sec. 831.201(b)(1) also issued under 5 U.S.C. 
8347(g); Sec. 831.201(b)(6) also issued under 5 U.S.C. 7701(b)(2); 
Sec. 831.201(g) also issued under sections 11202(f), 11232(e), and 
11246(b) of Pub. L. 105-33, 111 Stat. 251; Sec. 831.201(g) also 
issued under sections 7(b) and 7(e) of Pub. L. 105-274, 112 Stat. 
2419; Sec. 831.201(i) also issued under sections 3 and 7(c) of Pub. 
L. 105-274, 112 Stat. 2419; Sec. 831.204 also issued under section 
102(e) of Pub. L. 104-8, 109 Stat. 102, as amended by section 153 of 
Pub. L. 104-134, 110 Stat. 1321; Sec. 831.205 also issued under 
section 2207 of Pub. L. 106-265, 114 Stat. 784; Sec. 831.301 also 
issued under section 2203 of Pub. L. 106-265, 114 Stat. 780; Sec. 
831.303 also issued under 5 U.S.C. 8334(d)(2) and section 2203 of 
Pub. L. 106-235, 114 Stat. 780; 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. p. 317; Sec. 831.663 also issued under 
5 U.S.C. 8339(j) and (k)(2); Secs. 831.663 and 831.664 also issued 
under section 11004 (c)(2) of Pub. L. 103-66, 107 Stat. 412; Sec. 
831.682 also issued under section 201(d) of Pub. L. 99-251, 100 
Stat. 23; Sec. 831.912 also issued under section 636 of H.R. 5658, 
incorporated by reference in Pub. L. 106-554, 114 Stat. 2763, and 
published as Appendix C to Pub. L. 106-554 at 114 Stat. 2763A-125; 
subpart V also issued under 5 U.S.C. 8343a and section 6001 of Pub. 
L. 100-203, 101 Stat. 1330-275; Sec. 831.2203 also issued under 
section 7001(a)(4) of Pub. L. 101-508, 104 Stat. 1388-328.

Subpart I--Law Enforcement Officers and Firefighters

    2. Amend Sec. 831.902 by revising the definition of agency head 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 the purpose of 
an approval of coverage under 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, and who is the sole 
such representative for the entire department. For the purpose of a 
denial of coverage under this subpart, agency head is also deemed to 
include the designated representative of the agency head, as defined in 
the first sentence of this definition, at any level within the agency.
* * * * *
    3. Amend Sec. 831.908 by revising paragraph (a) to read as follows:


Sec. 831.908  Mandatory separation.

    (a) The mandatory separation provisions of 5 U.S.C. 8335(b) apply 
to all law enforcement officers and firefighters in primary and 
secondary positions. A mandatory separation under section 8335(b) is 
not an adverse action under part 752 of this chapter or a removal 
action under part 359 of this chapter. Section 831.502 provides the 
procedures for requesting an exemption from mandatory separation.
* * * * *
    4. Revise Sec. 831.910 to read as follows:


Sec. 831.910  Review of decisions.

    (a) The final decision of an agency head or OPM issued to an 
employee, former employee, or survivor as the result of a request for 
determination filed under Sec. 831.906 may be appealed to the Merit 
Systems Protection Board under procedures prescribed by the Board.
    (b) The final decision of an agency head 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. 8336(d)(1) may be appealed to 
the Merit Systems Protection Board under procedures prescribed by the 
Board.

    5. Add an undesignated center heading and a new Sec. 831.912 to 
subpart I to read as follows:

Regulations Pertaining to Noncodified Statutes


Sec. 831.912  Elections to be deemed a law enforcement officer for 
retirement purposes by certain police officers employed by the 
Metropolitan Washington Airports Authority (MWAA).

    (a) Who may elect. Metropolitan Washington Airports Authority 
(MWAA) police officers employed as members of the MWAA police force as 
of December 21, 2000, who are covered by the provisions of the Civil 
Service Retirement System by 49 U.S.C. 49107(b) may elect to be deemed 
a law enforcement officer for retirement purposes and have past service 
as a member of the MWAA and Federal Aviation Administration police 
forces credited as law enforcement officer service.
    (b) Procedure for making an election. Elections by an MWAA police 
officer to be treated as a law enforcement officer for retirement 
purposes must be made in writing to the MWAA and filed in the 
employee's personnel file in accordance with procedures established by 
OPM in consultation with the MWAA.
    (c) Time limit for making an election. An election under paragraph 
(a) of this section must be made either before the

[[Page 38525]]

MWAA police officer separates from service with the MWAA or July 25, 
2002.
    (d) Effect of an election. An election under paragraph (a) of this 
section is effective on the beginning of the first pay period following 
the date of the MWAA police officer's election.
    (e) Irrevocability. An election under paragraph (a) of this section 
becomes irrevocable when received by the MWAA.
    (f) Employee payment for past service. (1) An MWAA police officer 
making an election under this section must pay an amount equal to the 
difference between law enforcement officer retirement deductions and 
retirement deductions actually paid by the police officer for the 
police officer's past police officer service with the Metropolitan 
Washington Airports Authority and Federal Aviation Administration. The 
amount paid under this paragraph shall be computed with interest in 
accordance with 5 U.S.C. 8334(e) and paid to the MWAA prior to 
separation.
    (2) Starting with the effective date under paragraph (d) of this 
section, the MWAA must make deductions and withholdings from the 
electing MWAA police officer's base pay in accordance with 5 CFR 
831.907.
    (g) Employer contributions. (1) Upon the police officer's payment 
for past service credit under paragraph (f) of this section, the MWAA 
must, in accordance with procedures established by OPM, pay into the 
Civil Service Retirement and Disability Fund the additional agency 
retirement contribution amounts required for the police officer's past 
service, plus interest.
    (2) Starting with the effective date under paragraph (d) of this 
section, the MWAA must make agency contributions for the electing 
police officer in accordance with 5 CFR 831.907.
    (h) Mandatory Separation. (1) An MWAA police officer who elects to 
be treated as a law enforcement officer for CSRS retirement purposes is 
subject to the mandatory separation provisions of 5 U.S.C. 8335(b) and 
5 CFR 831.502(a).
    (2) The President and Chief Operating Officer of the MWAA is deemed 
to be the head of an agency for the purpose of exempting an MWAA police 
officer from mandatory separation in accordance with the provisions of 
5 U.S.C. 8335(b) and 5 CFR 831.502.
    (i) Reemployment. An MWAA police officer who has been mandatorily 
separated under 5 U.S.C. 8335(b) is not barred from reemployment after 
age 60 in any position except a CSRS primary or secondary law 
enforcement officer position or a FERS rigorous law or secondary 
enforcement officer position. Service by a reemployed former MWAA 
police officer who retired under 5 U.S.C. 8336(c) is not covered by the 
provisions of 5 U.S.C. 8336(c).

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

    6. The authority citation for Part 842 is revised 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. 842.104 also issued under 
sections 3 and 7(c) of Pub. L. 105-274, 112 Stat. 2419; Sec. 842.105 
also issued under 5 U.S.C. 8402(c)(1) and 7701(b)(2); Sec. 842.106 
also issued under section 102(e) of Pub. L. 104-8, 109 Stat. 102, as 
amended by section 153 of Pub. L. 104-134, 110 Stat. 1321; Sec. 
842.107 also issued under sections 11202(f), 11232(e), and 11246(b) 
of Pub. L. 105-33, 111 Stat. 251; Sec. 842.107 also issued under 
section 7(b) of Pub. L. 105-274, 112 Stat. 2419; Sec. 842.108 also 
issued under section 7(e) of Pub. L. 105-274, 112 Stat. 2419; Sec. 
842.213 also issued under 5 U.S.C. 8414(b)(1)(B) and section 7001 of 
Pub. L. 105-174, 112 Stat. 58, as amended by section 651 of Pub. L. 
106-58, 113 Stat. 430; 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 Pub. L. 101-508, 104 Stat. 1388; Sec. 842.707 also 
issued under section 6001 of Pub. L. 100-203, 101 Stat. 1300; Sec. 
842.708 also issued under section 4005 of Pub. L. 101-239, 103 Stat. 
2106 and section 7001 of Pub. L. 101-508, 104 Stat. 1388; subpart H 
also issued under 5 U.S.C. 1104; Sec. 842.810 also issued under 
section 636 of H.R. 5658, incorporated by reference in Pub. L. 106-
554, 114 Stat. 2763, and published as Appendix C to Pub. L. 106-554 
at 114 Stat. 2763A-125.

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

    7. Amend Sec. 842.802 by revising the definition of agency head 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. 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 the purpose of 
an approval of coverage under 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, and who is the sole 
such representative for the entire department. For the purpose of a 
denial of coverage under this subpart, agency head is also deemed to 
include the designated representative of the agency head, as defined in 
the first sentence of this definition, at any level within the agency.
* * * * *

    8. Revise Sec. 842.807 to read as follows:


Sec. 842.807  Review of decisions.

    (a) The final decision of an agency head denying an individual's 
request for approval of a position as a rigorous, secondary, or air 
traffic controller position made under Sec. 842.804(c) may be appealed 
to the Merit Systems Protection Board under procedures prescribed by 
the Board.
    (b) The final decision of an agency head denying an individual 
coverage while serving in an approved secondary position because of 
failure to meet the conditions in Sec. 842.803(b) may be appealed to 
the Merit Systems Protection Board under procedures prescribed by the 
Board.

    9. Add an undesignated center heading and new Sec. 842.810 to 
subpart H to read as follows:

Regulations Pertaining to Noncodified Statutes


Sec. 842.810  Elections to be deemed a law enforcement officer for 
retirement purposes by certain police officers employed by the 
Metropolitan Washington Airports Authority (MWAA).

    (a) Who may elect. Metropolitan Washington Airports Authority 
(MWAA) police officers employed as members of the MWAA police force as 
of December 21, 2000, who are covered by the provisions of the Federal 
Employees Retirement System by 49 U.S.C. 49107(b) may elect to be 
deemed a law enforcement officer for retirement purposes and have past 
service as a member of the MWAA and Federal Aviation Administration 
police forces credited as law enforcement officer service.
    (b) Procedure for making an election. Elections by an MWAA police 
officer to be treated as a law enforcement officer for retirement 
purposes must be made in writing to the MWAA and filed in the 
employee's personnel file in accordance with procedures established by 
OPM in consultation with the MWAA.

[[Page 38526]]

    (c) Time limit for making an election. An election under paragraph 
(a) of this section must be made either before the MWAA police officer 
separates from service with the MWAA or July 25, 2002, whichever occurs 
first.
    (d) Effect of an election. An election under paragraph (a) of this 
section is effective on the beginning of the first pay period following 
the date of the MWAA police officer's election.
    (e) Irrevocability. An election under paragraph (a) of this section 
becomes irrevocable when received by the MWAA.
    (f) Employee payment for past service. (1) An MWAA police officer 
making an election under this section must pay an amount equal to the 
difference between law enforcement officer retirement deductions and 
retirement deductions actually paid by the police officer for the 
police officer's past police officer service with the Metropolitan 
Washington Airports Authority and Federal Aviation Administration. The 
amount paid under this paragraph shall be computed with interest in 
accordance with 5 U.S.C. 8334(e) and paid to the MWAA prior to 
separation.
    (2) Starting with the effective date under paragraph (d) of this 
section, the MWAA must make deductions and withholdings from the 
electing MWAA police officer's base pay in accordance with 5 CFR 
832.805.
    (g) Employer contributions. (1) Upon the police officer's payment 
for past service credit under paragraph (f) of this section, the MWAA 
must, in accordance with procedures established by OPM, pay into the 
Civil Service Retirement and Disability Fund the additional agency 
retirement contribution amounts required for the police officer's past 
service, plus interest.
    (2) Starting with the effective date under paragraph (d) of this 
section, the MWAA must make agency contributions for the electing 
police officer in accordance with 5 CFR 842.805.
    (h) Mandatory Separation. (1) An MWAA police officer who elects to 
be treated as a law enforcement officer for FERS retirement purposes is 
subject to the mandatory separation provisions of 5 U.S.C. 8425(b) and 
5 CFR 831.502.
    (2) The President and Chief Operating Officer of the MWAA is deemed 
to be the head of an agency for the purpose of exempting an MWAA police 
officer from mandatory separation in accordance with the provisions of 
5 U.S.C. 8425(b) and 5 CFR 831.502(b)(1).
    (i) Reemployment. An MWAA police officer who has been mandatorily 
separated under 5 U.S.C. 8425(b) is not barred from reemployment in any 
position except a FERS rigorous or secondary law enforcement officer 
position after age 60. Service by a reemployed former MWAA police 
officer who retired under 5 U.S.C. 8412(d) is not covered by the 
provisions of 5 U.S.C. 8412(d).

[FR Doc. 01-18530 Filed 7-24-01; 8:45 am]
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