[Federal Register Volume 76, Number 137 (Monday, July 18, 2011)]
[Rules and Regulations]
[Pages 41993-42003]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-18006]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 76, No. 137 / Monday, July 18, 2011 / Rules
and Regulations
[[Page 41993]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 831, 841 and 842
RIN 3206-AL69
Customs and Border Protection Officer Retirement
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The Office of Personnel Management (OPM) is amending its
regulations, to reflect changes in the retirement benefits available to
customs and border protection officers under the Civil Service
Retirement System (CSRS) and the Federal Employees' Retirement System
(FERS). These rules incorporate amendments to CSRS and FERS retirement
law pursuant to section 535 of the Department of Homeland Security
Appropriations Act, 2008. The Act provides early retirement and
enhanced annuity benefits for customs and border protection officers
employed by the United States Department of Homeland Security under
CSRS and FERS; requires an increase in the percentage rate of
withholdings from the basic pay of customs and border protection
officers; and establishes mandatory retirement of customs and border
protection officers at age 57.
DATES: Effective July 18, 2011.
FOR FURTHER INFORMATION CONTACT: Patrick Jennings, (202) 606-0299.
SUPPLEMENTARY INFORMATION: On October 1, 2010, after consultation with
the Department of Homeland Security, OPM published (at 75 FR 60645)
proposed regulations and requested comments concerning section 535 of
the Department of Homeland Security Appropriations Act, 2008 (the Act),
Division E of the Consolidated Appropriations Act, 2008, Public Law
110-161 (approved December 26, 2007), 112 Stat. 1844, at 2075, which
enacted new human resource management provisions applicable to
specified Customs and Border Protection employees. Section 535 of the
Act provides that individuals defined as ``customs and border
protection officers'' will be prospectively added as a new group with
special human resource management provisions essentially similar to
those applicable to other special retirement groups including law
enforcement officers, nuclear materials couriers, and firefighters. The
principal elements of those structures include: (1) A maximum entry age
(to maintain a young and vigorous workforce and to permit a career to
be completed by mandatory retirement age); (2) early optional
retirement eligibility; (3) enhanced annuity provisions (to make a
shorter career economically feasible); (4) mandatory retirement
(generally at age 57, but with agency authority to extend to age 60),
and (5) higher employer and employee retirement contribution rates. The
effective date of section 535 is July 6, 2008.
In addition to the provisions that will be continuing and that
apply to individuals employed as customs and border protection
officers, section 535 of the Act also includes unique provisions
applicable to individuals who are customs and border protection
officers on its effective date. These incumbents will not be subject to
mandatory retirement, but are eligible for partial annuity computation
credit for future service as a customs and border protection officer.
Covered Individuals
The same definition is applicable to both FERS and CSRS:
[T]he term ``customs and border protection officer'' means an
employee in the Department of Homeland Security (A) who holds a
position within the GS-1895 job series (determined applying the
criteria in effect as of September 1, 2007) or any successor
position, and (B) whose duties include activities relating to the
arrival and departure of persons, conveyances, and merchandise at
ports of entry, including any such employee who is transferred
directly to a supervisory or administrative position in the
Department of Homeland Security after performing such duties (as
described in subparagraph (B)) in 1 or more positions (as described
in subparagraph (A)) for at least 3 years.
This definition, while similar to the statutory definition of ``law
enforcement officer,'' contains important differences that distinguish
it from that definition. For the first time in a special retirement
coverage definition, there is specific reference to a Federal
occupational series--the Customs and Border Protection job series (GS-
1895). Two points are significant in this regard. First, only positions
in this series are eligible for ``primary'' coverage. Second, in
addition to position classification, there is an additional requirement
that the duties of the specific position must include specified
activities. Thus, not all positions in the GS-1895 job series will meet
the requirements for primary coverage, although it is probable that
those that are not eligible for primary coverage will generally meet
the requirements for secondary (supervisory or administrative)
coverage.
The provision for extending coverage to ``any successor position''
is also novel. Primary coverage is based upon the GS-1895 series as of
September 1, 2007, and it is possible that position classification
standards and/or the manner in which positions are described may be
changed in the future. The logical interpretation is that this is
intended to provide authority for coverage should positions with the
same elements currently classified in the GS-1895 series be assigned to
another series at some time in the future so long as they would have
been covered under the GS-1895 series as it existed on September 1,
2007.
Secondary coverage is not limited to positions in the GS-1895
series. However, section 535 of the Act permits secondary coverage
using language equivalent to that applicable to other special
retirement groups (i.e., law enforcement officers, firefighters, etc.).
Thus, as in the law enforcement officer retirement regulations,
secondary coverage will generally be limited to continuous employment
in supervisory and/or administrative positions that could not be
performed by individuals without prior experience in a customs and
border protection officer primary position.
As with other special retirement groups, the final authority on
position coverage for retirement purposes is OPM, although coverage
determinations are delegated to the Department of Homeland Security.
Statutorily, OPM is
[[Page 41994]]
also the final authority on position classification, the other aspect
of retirement coverage eligibility.
Incumbent Employees
Section 535 of the Act has provisions concerning mandatory
retirement and annuity computation that are applicable to individuals
who, depending upon the provision, were first appointed as a customs
and border protection officer prior to the effective date, or are
customs and border protection officers on the effective date.
Mandatory retirement: Sections 831.1608(c) and 842.1006(d) of the
rule address the provisions of section 535(e)(2)(A) of the Act, which
provide that mandatory retirement ``shall not apply to an individual
first appointed as a customs and border protection officer before the
effective date'' of July 6, 2008. Unlike another provision of section
535 (i.e., section 535(e)(2)(C)), section 535(e)(2)(A) does not specify
that the individual has to be a customs and border protection officer
on the effective date. Thus, an individual previously appointed as a
customs and border protection officer before July 6, 2008, but not so
employed on that date would not be subject to mandatory retirement upon
returning to customs and border protection officer employment following
that break in service.
Prior service and secondary coverage: Sections 831.1604(b) and
842.1003(c) of the rule address the provisions of section 535(e)(2)(B)
of the Act, which provide special rules for treatment of pre-enactment
customs and border protection officer service. These special rules are
relevant to secondary customs and border protection officer coverage
determinations. Section 535 of the Act is explicit that its provisions
are prospective, stating in section 535(e)(2)(B)--
(B) TREATMENT OF PRIOR CBPO SERVICE.--
(i) GENERAL RULE.--Except as provided in clause (ii), nothing in
this section or any amendment made by this section shall be
considered to apply with respect to any service performed as a
customs and border protection officer before the effective date
under paragraph (1).
(ii) EXCEPTION.--Service described in section 8331(31) or
8401(36) of title 5, United States Code (as amended by this section)
rendered before the effective date under paragraph (1) may be taken
into account to determine if an individual who is serving on or
after such effective date then qualifies as a customs and border
protection officer by virtue of holding a supervisory or
administrative position in the Department of Homeland Security.
The meaning of clause (ii) is that if an individual is in a
secondary (supervisory or administrative) position on July 6, 2008,
that individual's eligibility to be a customs and border protection
officer will be determined by looking back at the individual's
employment history to determine whether the requirements for coverage
would have been met if the provisions of 535 had been in effect during
the earlier employment history.
There is one potential issue in this regard resulting from the fact
that the GS-1895 series dates back only to July of 2004, and that
standard is the one in effect on September 1, 2007. Thus, a cursory
reading of this provision could be interpreted to mean that only if
there has been three years of post-July 2004 primary service actually
classified in the GS-1895 series followed by a direct transfer to a
secondary position can an individual in a secondary position be found
to be a customs and border protection officer on July 6, 2008. This
would permit such coverage only if an individual transferred into a
secondary position on or after July 1, 2007. This would mean that some
customs and border protection officers in secondary supervisory and
administrative customs and border protection officer positions on July
6, 2008, would not be entitled to retirement coverage under the law
when the law went into effect.
Despite the lack of relevant legislative history, such a rigid
interpretation would be inconsistent with the statutory scheme. There
is however an alternative interpretation yielding a reasonable result,
which OPM has adopted for this rule. Prior to the establishment of the
GS-1895 series, it was preceded by three precursor position series; GS-
1816, Immigration Inspection, GS-1890, Customs Inspection, and GS-1801,
Canine Enforcement Officer. Most positions classified under those
series would now be classified under the GS-1895 series.
Accordingly, for purposes of evaluating whether pre-July 2004
service is qualifying as primary service, positions classified prior to
July 2004 in the GS-1816, GS-1890, or GS-1901 series should be
considered as meeting the requirement of being a ``position within the
GS-1895 job series (determined applying the criteria in effect as of
September 1, 2007).'' However, merely being in one of those three
series does not mean that the position was a primary position. The
additional requirements relating to the type of work performed must
also be satisfied.
Proportional Annuity Computation
Sections 831.1612(c) and 842.1009(c) of the rule address the unique
provisions of section 535(e)(2)(C) of the Act, which provide for
proportional annuity computations that are applicable only to
individuals who are customs and border protection officers on July 6,
2008, based on an appointment to a customs and border protection
officer prior to that date. Unlike the mandatory retirement exemption,
the provisions of section 535(e)(2)(C) of the Act do not apply to a
previously appointed customs and border protection officer who is not
employed as a customs and border protection officer on July 6, 2008. A
previously employed customs and border protection officer who returns
after July 6, 2008, would not be eligible, nor would a U.S. Customs and
Border Protection employee not in a customs and border protection
officer position on July 6, 2008. Under the provisions of section
535(e)(2)(C), individuals do not receive credit for pre-July 6, 2008,
service counted towards special retirement eligibility or computation.
However, they are eligible to have post-July 5, 2008 customs and border
protection officer service credited in their annuity computation at a
higher rate even though they may not meet the requirements for special
customs and border protection officer retirement. Service in other
special retirement categories such as law enforcement officer or
firefighter cannot be added to customs and border protection officer
service for use in a proportional annuity computation.
Thus, a customs and border protection officer employed on July 6,
2008, and covered by CSRS would have all full months of customs and
border protection officer service computed using an annual multiplier
of 2.5 percent per year of such service up to 20 years. A customs and
border protection officer employed on July 6, 2008, and covered by FERS
would have all full months of customs and border protection officer
service computed using an annual multiplier of 1.7 percent per year of
such service up to 20 years.
Elections
Sections 831.1612(a) and 842.1009(a) of the rule address the
provisions of section 535(e)(3) of the Act, which require that
individuals who are customs and border protection officers on December
26, 2007, must be given the right to elect to be covered by or excluded
from its provisions when it becomes effective on July 6, 2008. For such
incumbents, section 535 provides a substantial lifetime annuity
increase in return for a small increase in retirement contributions
deducted from
[[Page 41995]]
pay. Incumbents on July 6, 2008, are exempt from mandatory retirement.
Although the Department of Homeland Security has already provided
affected employees with the opportunity to elect to be excluded from
the customs and border protection officer provisions, the proposed rule
describes the terms of the election opportunity provided by the
Department of Homeland Security in the event that there is any question
about an employee's election opportunity in the future.
Current Law Enforcement Officers
Sections 831.1612(b) and 842.1009(b) of the rule address the
provisions of section 535(e)(5) of the Act, which specifies that
nothing in section 535 or any amendment made by it shall be considered
to afford any election or to otherwise apply with respect to anyone who
as of December 25, 2007, was a law enforcement officer employed by U.S.
Customs and Border Protection.
Technical and Conforming Amendments to Existing Regulations
The rule makes various technical and conforming amendments to 5 CFR
Sec. Sec. 831.502, 841.403, 841.503, 842.208, 842.403, 842.801, and
842.901 to add references to customs and border protection officers.
Section 831.502 is also being reissued in its entirety to correct
typographical errors in the existing paragraph designations.
Comments
We received several comments regarding the proposed rule and they
are addressed below. We have not addressed comments we received that
were aimed at substantive benefit and procedural issues outside the
scope of the regulations.
One commenter asked for an extension until November 3, 2010, to
submit comments on the proposed rule because he had not immediately
known that the proposed rule had been published. The proposed rule,
with a request for comments, was published in the Federal Register and
posted on Regulations.gov. This process provided adequate notice to the
public of the proposed rule and of OPM's request for comments on the
rule. The reasons provided by the commenter for asking for an extension
are insufficient and would unnecessarily delay the publication of the
final rule. The same commenter noted that the regulations make a
distinction between primary and secondary positions. This commenter
asked why the distinction is being made since ``previous experience in
a primary position is required.'' This commenter also asked that the
provisions of Sec. 831.1607 be waived or phased-in over a period of
time for current officers. Section 831.1607(a) provides in part that
the Department of Homeland Security deduct and withhold an additional
0.5% an employee's base pay, as required under 5 U.S.C. 8334(a), when
the employee is entitled to retirement coverage as a customs and border
protection officer. With regard to primary and secondary positions, the
regulations follow the general structure of the retirement regulations
of other special groups such as law enforcement officers, firefighters,
and nuclear materials couriers. All of these regulations draw a
distinction between primary (or rigorous) positions and secondary
positions, and the proposed rule incorporates substantially similar
provisions. The distinction between primary and secondary provisions is
based on the statutory distinction between front-line positions and
secondary positions in all of the definitions for special groups. With
regard to 5 U.S.C. 8334(a), OPM has no authority to waive or phase-in
the statute.
Several commenters objected to the requirement at Sec.
831.1604(a)(2) and Sec. 842.1003(b)(2) of the proposed rule which
provides that an employee have at least three years of experience in a
primary customs and border protection officer position to continue to
be covered as a customs and border protection officer upon direct
transfer to a secondary supervisory or administrative position (the 3-
year experience requirement). This requirement is included in the
statutory definition of ``customs and border protection officer'' at 5
U.S.C. 8331(31) and Sec. 8401(36). OPM has permitted as much
flexibility as possible under the law in permitting prior service in
occupational series that were precursor series to the GS-1895 series to
count toward the 3-year experience requirement at Sec. 831.1604(a)(2)
and Sec. 842.1003(b)(2). These special rules are provided at
Sec. Sec. 831.1604(b) and 842.1003(c) of the rules (see Prior service
and secondary coverage above).
Another commenter indicated that the proposed rule improperly
limited precursor series to the Customs and Border Protection Series
(GS-1895) only to the Immigration Inspector Series (GS-1816), Customs
Inspector Series (GS-1890), and Canine Enforcement Officer Series (GS-
1801). This commenter also stated that given the similarity between the
statutory definition of customs and border protection officer and the
statutory definitions for other special groups such as law enforcement
officers and firefighters, that only the duties of a position (i.e.,
activities relating to the arrival and departure of persons,
conveyances, and merchandise at ports of entry) should be considered
when the 3-year experience requirement is applied. First, the
regulations do not limit precursor series to the Customs and Border
Protection Series (GS-1895) to only the Immigration Inspector Series
(GS-1816), Customs Inspector Series (GS-1890), and Canine Enforcement
Officer Series (GS-1801). Sections 831.1604(b)(1)(i) and
842.1003(c)(1)(i) provide that in addition to the Immigration Inspector
Series (GS-1816), Customs Inspector Series (GS-1890), and Canine
Enforcement Officer Series (GS-1801), a precursor series to the GS-1895
series includes ``any other series which the agency head determines
were predecessor series to the Customs and Border Protection Series
(GS-1895), and that would have been classified under the GS-1895 series
had it then existed.'' Second, OPM cannot adopt an approach to the 3-
year experience requirement that disregards the statutory reference to
the GS-1895 series in favor of an approach which considers only the
duties performed by an employee. The statutory definition of customs
and border protection officer clearly requires that customs and border
protection officer retirement coverage in a supervisory or
administrative position in the Department of Homeland Security is only
permitted when an employee is transferred directly to such a position
after performing duties relating to the arrival and departure of
persons, conveyances, and merchandise at ports of entry in one or more
positions classified within the GS-1895 job series. Thus, work
experience in a position classified within the GS-1895 job series is
one of the conditions that must be satisfied for an employee to
continue customs and border protection officer retirement coverage in a
supervisory or administrative position. As discussed above, the
inclusion of the reference to the GS-1895 job series in the customs and
border protection officer definition is the first time in history of
special retirement coverage definitions that a specific reference to a
Federal occupational series has been included in a definition. Although
the regulations are flexible in that they permit service in precursor
series to the Customs and Border Protection Series (GS-1895) to be used
to satisfy the 3-year experience requirement, the requirement that an
employee have experience in the GS-1895 job series to continue customs
and border protection officer retirement coverage in a supervisory or
[[Page 41996]]
administrative position cannot be disregarded.
Two commenters asked that the proposed rule be changed to allow
service as a law enforcement officer to be used to satisfy the
requirements for special coverage in a customs and border protection
officer position. One commenter, noted that 5 U.S.C. 8336(c) and
8412(d) provide that ``any combination'' of service as a law
enforcement officer, firefighter, nuclear materials courier, customs
and border protection officer, etc., can be used to meet the service
requirements for entitlement to an immediate retirement under those
sections. This commenter stated that service as a law enforcement
officer, firefighter, nuclear materials courier, customs and border
protection officer, etc., is therefore interchangeable for other
purposes as well. This commenter also asked whether a 38-year-old
employee with 10 years of service as a customs and border protection
officer could transfer to a law enforcement officer position. Law
enforcement officer, firefighter, nuclear materials courier, customs
and border protection officer, and other types of special service are
each defined by the different duties. The duties of a law enforcement
officer (investigation, apprehension, or detention of individuals
suspected or convicted of offenses against the criminal laws of the
United States) and the duties of a customs and border protection
officer (activities relating to the arrival and departure of persons,
conveyances, and merchandise at ports of entry) are entirely different.
Each type of special group service is a unique career field and
positions within each group are classified under a separate
occupational series. Experience in one occupation is not equivalent
with experience in another occupation. In fact, one policy goal of
special retirement coverage is to encourage career service by an
employee in the particular occupation chosen by the employee. However,
it is possible for an employee to move, within certain limits, from one
of the special group occupations to another without a loss of special
retirement coverage. Changing careers is easier for an employee to do
early in his or her career, and there should be no obstacle to a 38-
year-old employee with 10 years of service as a customs and border
protection officer moving to a primary law enforcement officer
position. In this situation, an agency would be within its discretion
to adjust the usual law enforcement officer maximum entry age (age 37)
for the employee by 10 years (i.e., to age 47) because the employee
already has 10 years of service creditable towards entitlement under 5
U.S.C. 8412(d) (assuming the employee is covered by FERS). If the
employee remained continuously employed as a law enforcement officer,
he would have 29 years of combined customs and border protection
officer service and law enforcement officer service when he reached age
57, and would be subject to mandatory separation by virtue of the ``any
combination of such service'' clause of Sec. 8412(d). The second
commenter asked that service in a ``CBPO (Enforcement) (CBPOE)
position, or in the predecessor Senior Immigration Inspector position''
be considered as service in a primary customs and border protection
officer for purposes of transferring to a secondary position because
employees in these positions were law enforcement officers under
subchapter III of chapter 83 and chapter 84 of title 5, United States
Code, before the enactment of section 535 of the Act. As discussed
above, the duties of a law enforcement officer and customs and border
protection officer are not equivalent. Furthermore, section 535(e)(5)
of the Act clearly provides that nothing in section 535 or any
amendment made by it shall be considered to afford any election or to
otherwise apply with respect to anyone who as of December 25, 2007, was
a law enforcement officer employed by U.S. Customs and Border
Protection. Law enforcement officer experience cannot be used to meet
the 3-year customs and border protection officer experience requirement
under Sec. 831.1604 and Sec. 842.1003(b) of the regulations.
One commenter asserted that Sec. 831.1605 of the proposed rule is
inconsistent with the existing CSRS law enforcement officer regulations
at 5 CFR 831.906(e) and the court's decision in Hall v. Department of
the Treasury, 264 F.3d 1050 (Fed. Cir. 2001). This commenter also
asserted that Sec. 831.1605 of the proposed rule ``engraft the more
restrictive FERS regulations [at 5 CFR 842.906]'' onto the CSRS customs
and border protection officer regulations. Section Sec. 831.1605 of
the proposed rule is not inconsistent with the court's decision in
Hall. In the section of the court's decision where it discussed 5 CFR
831.906(e), it merely cited the provisions at Sec. 831.906(e) and
determined that the Treasury had waived its timeliness defense under
Sec. 831.906(e) when it decided the merits of Mr. Hall's complaint
without addressing the question of timeliness. Hall, 264 F.3d at 1061.
The court's decision in Hall does not require OPM to use the rule at
Sec. 831.906(e) for other special groups. The rule at Sec. 831.1605
of the proposed rule is based on Sec. 831.805(c) of subpart H of title
5, Code of Federal Regulations--the regulations pertaining to CSRS
nuclear materials courier retirement coverage. Although Sec. 831.1605
of the proposed rule is different from 5 CFR 831.906(e), it provides a
reasonable amount of flexibility for the consideration of untimely
requests. If an employee in a position not subject to the one-half
percent higher withholding rate of 5 U.S.C. 8334(c) fails to seek a
determination from the Department of Homeland Security within 6 months
after entering the position, or after any significant change in the
position, that his or her position is properly covered by the higher
withholding rate, the agency head's determination that the service was
not so covered at the time of the service is presumed to be correct.
This presumption may be rebutted by a preponderance of the evidence
that the employee was unaware of his or her status or was prevented by
cause beyond his or her control from requesting that the official
status be changed at the time the service was performed. Furthermore,
because the presumption is a defense to an untimely request, the
Department of Homeland Security may decide not to assert the
presumption of correctness as a defense. In other words, the Department
of Homeland Security may waive the defense by addressing the merits of
the employee's claim, as occurred in Hall.
One commenter asked that the deadline for past service credit
requests at Sec. 831.1606(c) be changed to after the date of
publication of the final rule. We agree. The date at Sec. 831.1606(c)
was arrived at during the drafting of the proposed rule. At the time,
the June 30, 2011 date was in the future. We have changed the date to
June 30, 2012.
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 retirement payments to retired employees, spouses,
former spouses, and insurable interest survivors.
List of Subjects in 5 CFR Parts 831, 841 and 842
Administrative practice and procedure, Air traffic controllers,
[[Page 41997]]
Alimony, Claims, Disability benefits, Firefighters, Government
employees, Income taxes, Intergovernmental relations, Law enforcement
officers, Pensions, Reporting and recordkeeping requirements,
Retirement.
Office of Personnel Management.
John Berry,
Director.
For the reasons discussed in the preamble, OPM is amending 5 CFR
parts 831, 841, and 842, as set forth below:
PART 831--RETIREMENT
0
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 Sec. 1313(b)(5) of Pub. L.
107-296, 116 Stat. 2135; 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 Secs. 11202(f),
11232(e), and 11246(b) of Pub. L. 105-33, 111 Stat. 251; Sec.
831.201(g) also issued under Sec. 7(b) and (e) of Pub. L. 105-274,
112 Stat. 2419; Sec. 831.201(i) also issued under Secs. 3 and 7(c)
of Pub. L. 105-274, 112 Stat. 2419; Sec. 831.204 also issued under
Sec. 102(e) of Pub. L. 104-8, 109 Stat. 102, as amended by Sec. 153
of Pub. L. 104-134, 110 Stat. 1321; Sec. 831.205 also issued under
Sec. 2207 of Pub. L. 106-265, 114 Stat. 784; Sec. 831.206 also
issued under Sec. 1622(b) of Pub. L. 104-106, 110 Stat. 515; Sec.
831.301 also issued under Sec. 2203 of Pub. L. 106-265, 114 Stat.
780; Sec. 831.303 also issued under 5 U.S.C. 8334(d)(2) and Sec.
2203 of Pub. L. 106-235, 114 Stat. 780; Sec. 831.502 also issued
under 5 U.S.C. 8337, and Sec. 1(3), E.O. 11228, 3 CFR 1965-1965
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 Sec. 11004(c)(2)
of Pub. L. 103-66, 107 Stat. 412; Sec. 831.682 also issued under
Sec. 201(d) of Pub. L. 99-251, 100 Stat. 23; Sec. 831.912 also
issued under Sec. 636 of Appendix C to Pub. L. 106-554, 114 Stat.
2763A-164; Subpart P also issued under Sec. 535(d) of Title V of
Division E of Pub. L. 110-161, 121 Stat. 2042; Subpart V also issued
under 5 U.S.C. 8343a and Sec. 6001 of Pub. L. 100-203, 101 Stat.
1330-275; Sec. 831.2203 also issued under Sec. 7001(a)(4) of Pub. L.
101-508, 104 Stat. 1388-328.
0
2. Revise 831.502 to read as follows:
Sec. 831.502 Automatic separation; exemption.
(a) When an employee meets the requirements for age retirement on
any day within a month, he is subject to automatic separation at the
end of that month. The department or agency shall notify the employee
of the automatic separation at least 60 days in advance of the
separation. If the department or agency fails through error to give
timely notice, the employee may not be separated without his consent
until the end of the month in which the notice expires.
(b) The head of the agency, when in his or her judgment the public
interest so requires, may exempt a law enforcement officer,
firefighter, nuclear materials courier, or customs and border
protection officer from automatic separation until that employee
becomes 60 years of age.
(c) The Secretary of Transportation and the Secretary of Defense,
under such regulations as each may prescribe, may exempt an air traffic
controller having exceptional skills and experience as a controller
from automatic separation until that controller becomes 61 years of
age.
(d) When a department or agency lacks authority and wishes to
secure an exemption from automatic separation for one of its employees
other than a Presidential appointee, beyond the age(s) provided by
statute, i.e., age 60 for a law enforcement officer, firefighter,
nuclear materials courier, or customs and border protection officer,
and age 61 for an air traffic controller, the department or agency head
shall submit a recommendation to that effect to OPM.
(1) The recommendation shall contain:
(i) A statement that the employee is willing to remain in service;
(ii) A statement of facts tending to establish that his/her
retention would be in the public interest;
(iii) The period for which the exemption is desired, which period
may not exceed 1 year; and,
(iv) The reasons why the simpler method of retiring the employee
and immediately reemploying him or her is not being used.
(2) The recommendation shall be accompanied by a medical
certificate showing the physical fitness of the employee to perform his
or her work.
(e) OPM may approve an exemption only before the automatic
separation date applicable to the employee. For this reason, the
department or agency shall forward the recommendation to OPM at least
30 days before this separation date.
0
3. Add subpart P to part 831 to read as follows:
Subpart P--Customs and Border Protection Officers
Sec.
831.1601 Applicability and purpose.
831.1602 Definitions.
831.1603 Conditions for coverage in primary positions.
831.1604 Conditions for coverage in secondary positions.
831.1605 Evidence.
831.1606 Requests from individuals.
831.1607 Withholdings and contributions.
831.1608 Mandatory separation.
831.1609 Reemployment.
831.1610 Review of decisions.
831.1611 Oversight of coverage determinations.
831.1612 Elections of Retirement Coverage, exclusions from
retirement coverage, and proportional annuity computations.
Subpart P--Customs and Border Protection Officers
Sec. 831.1601 Applicability and purpose.
(a) This subpart contains regulations of the Office of Personnel
Management (OPM) to supplement 5 U.S.C. 8336(c), which establishes
special retirement eligibility for customs and border protection
officers employed under the Civil Service Retirement System; 5 U.S.C.
8331(3)(C) and (G), pertaining to basic pay; 5 U.S.C. 8334(a)(1) and
(c), pertaining to deductions, contributions, and deposits; 5 U.S.C.
8335(b), pertaining to mandatory retirement; and 5 U.S.C. 8339(d),
pertaining to computation of annuity.
(b) The regulations in this subpart are issued pursuant to the
authority given to OPM in 5 U.S.C. 8347 to prescribe regulations to
carry out subchapter III of chapter 83 of title 5 of the United States
Code, and in 5 U.S.C. 1104 to delegate authority for personnel
management to the heads of agencies, and pursuant to the authority
given the Director of OPM in Section 535(d) of the Department of
Homeland Security Appropriations Act, 2008, Division E of Public Law
110-161, 121 Stat. 1844, at 2075.
Sec. 831.1602 Definitions.
In this subpart--
Agency head means the Secretary of the Department of Homeland
Security. For purposes of an approval of coverage under this subpart,
agency head is also deemed to include the designated representative of
the Secretary of the Department of Homeland Security (DHS), except that
the designated representative must be a department headquarters-level
official who reports directly to the Secretary of the Department of
Homeland Security, or to the Deputy Secretary of the Department of
Homeland Security, and who is the sole such representative for the
entire department. For the purposes of a denial of coverage under this
subpart, agency head is also deemed to include the designated
representative of the Secretary of the Department of Homeland Security
at any level within the Department of Homeland Security.
Customs and border protection officer means an employee in the
Department
[[Page 41998]]
of Homeland Security occupying a position within the Customs and Border
Protection Officer (GS-1895) job series (determined applying the
criteria in effect as of September 1, 2007) or any successor position,
and whose duties include activities relating to the arrival and
departure of persons, conveyances, and merchandise at ports of entry.
Also included in this definition is an employee engaged in this
activity who is transferred directly to a supervisory or administrative
position in the Department of Homeland Security after performing such
duties in 1 or more positions within the GS-1895 job series (determined
applying the criteria in effect as of September 1, 2007), or any
successor position, for at least 3 years.
First-level supervisors are employees classified as supervisors who
have direct and regular contact with the employees they supervise.
First-level supervisors do not have subordinate supervisors. A first-
level supervisor may occupy a primary position or a secondary position
if the appropriate definition is met.
Primary position means a position classified within the Customs and
Border Protection Officer (GS-1895) job series (determined applying the
criteria in effect as of September 1, 2007) or any successor position
whose duties include the performance of work directly connected with
activities relating to the arrival and departure of persons,
conveyances, and merchandise at ports of entry.
Secondary position means a position within the Department of
Homeland Security that is either--
(1) Supervisory; i.e., a position whose primary duties are as a
first-level supervisor of customs and border protection officers in
primary positions; or
(2) Administrative; i.e., an executive, managerial, technical,
semiprofessional, or professional position for which experience in a
primary customs and border protection officer position is a
prerequisite.
Sec. 831.1603 Conditions for coverage in primary positions.
(a) An employee's service in a position that has been determined by
the employing agency head to be a primary customs and border protection
officer position is covered under the provisions of 5 U.S.C. 8336(c).
(b) An employee who is not in a primary position, nor covered while
in a secondary position, and who is detailed or temporarily promoted to
a primary position is not covered under the provisions of 5 U.S.C.
8336(c) for any purpose under this subpart.
Sec. 831.1604 Conditions for coverage in secondary positions.
(a) An employee's service in a position that has been determined by
the employing agency head to be a secondary position is covered under
the provisions of 5 U.S.C. 8336(c) if all of the following criteria are
met:
(1) The employee is transferred directly (i.e., without a break in
service exceeding 3 days) from a primary position to a secondary
position; and
(2) The employee has completed 3 years of service in a primary
position, including a position for which no CSRS deductions were
withheld; and
(3) If applicable, the employee has been continuously employed in
secondary positions since transferring from a primary position without
a break in service exceeding 3 days, except that a break in employment
in secondary positions which begins with an involuntary separation (not
for cause), within the meaning of 8336(d)(1) of title 5, United States
Code, is not considered in determining whether the service in secondary
positions is continuous for this purpose.
(b) For the purpose of applying the criteria at paragraphs (a)(1)
through (3) of this section to evaluate transfers, service, and
employment periods that occurred before September 1, 2007--
(1) A primary position is deemed to include:
(i) A position whose duties included the performance of work
directly connected with activities relating to the arrival and
departure of persons, conveyances, and merchandise at ports of entry
that was classified within the Immigration Inspector Series (GS-1816),
Customs Inspector Series (GS-1890), Canine Enforcement Officer Series
(GS-1801), or any other series which the agency head determines were
predecessor series to the Customs and Border Protection Series (GS-
1895), and that would have been classified under the GS-1895 series had
it then existed; and
(ii) A position within the Customs and Border Protection Series
(GS-1895) whose duties included the performance of work directly
connected with activities relating to the arrival and departure of
persons, conveyances, and merchandise at ports of entry.
(2) A secondary position is deemed to include:
(i) A first-level supervisor of an employee in a position described
at paragraph (b)(1)(i) or (b)(1)(ii) of this section; or
(ii) An executive, managerial, technical, semiprofessional, or
professional position for which experience in a position described at
paragraph (b)(1)(i) or (b)(1)(ii) of this section is a mandatory
prerequisite.
(c) An employee who is not in a primary position, nor covered while
in a secondary position, and who is detailed or temporarily promoted to
a secondary position is not covered under the provisions of 5 U.S.C.
8336(c) for any purpose under this subpart.
Sec. 831.1605 Evidence.
(a) An agency head's determination under Sec. Sec. 831.1603(a) and
831.1604(a) must be based solely on the official position description
of the position in question and any other official description of
duties and qualifications.
(b) If an employee is in a position not subject to the one-half
percent higher withholding rate of 5 U.S.C. 8334(c), and the employee
does not, within 6 months after entering the position or after any
significant change in the position, formally and in writing seek a
determination from the employing agency that his position is properly
covered by the higher withholding rate, the agency head's determination
that the service was not so covered at the time of the service is
presumed to be correct. This presumption may be rebutted by a
preponderance of the evidence that the employee was unaware of his or
her status or was prevented by cause beyond his or her control from
requesting that the official status be changed at the time the service
was performed.
Sec. 831.1606 Requests from individuals.
(a) An employee who requests credit for service under 5 U.S.C.
8336(c) bears the burden of proof with respect to that service, and
must provide the employing agency with all pertinent information
regarding duties performed.
(b) An employee who is currently serving in a position that has not
been approved as a primary or secondary position, but who believes that
his or her service is creditable as service in a primary or secondary
position may request the agency head to determine whether or not the
employee's current service should be credited and, if it qualifies,
whether it should be credited as service in a primary or secondary
position. A written request for current service must be made within 6
months after entering the position or after any significant change in
the position.
(c) A current or former employee (or the survivor of a former
employee) who believes that a period of past service in an unapproved
position qualifies as service in a primary or secondary position and
meets the conditions for credit may request the agency head to
determine whether or not the
[[Page 41999]]
employee's past service should be credited and, if it qualifies,
whether it should be credited as service in a primary or secondary
position. A written request for past service must be made no later than
June 30, 2012.
(d) The agency head may extend the time limit for filing under
paragraph (b) or (c) of this section when, in the judgment of such
agency head, the individual shows that he or she was prevented by
circumstances beyond his or her control from making the request within
the time limit.
Sec. 831.1607 Withholdings and contributions.
(a) During the service covered under the conditions established by
Sec. 831.1603 and Sec. 831.1604, the Department of Homeland Security
will deduct and withhold from the employee's base pay the amount
required under 5 U.S.C. 8334(a) for such positions and submit that
amount, together with agency contributions required by 5 U.S.C.
8334(a), to OPM in accordance with payroll office instructions issued
by OPM.
(b) If the correct withholdings and/or Government contributions are
not submitted to OPM for any reason whatsoever, the Department of
Homeland Security must correct the error by submitting the correct
amounts (including both employee and agency shares) to OPM as soon as
possible. Even if the Department of Homeland Security waives collection
of the overpayment of pay under any waiver authority that may be
available for this purpose, such as 5 U.S.C. 5584, or otherwise fails
to collect the debt, the correct amount must still be submitted to OPM
without delay as soon as possible.
(c) Upon proper application from an employee, former employee or
eligible survivor of a former employee, the Department of Homeland
Security 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.
(d) The additional employee withholding and agency contribution for
covered or creditable service properly made as required under 5 U.S.C.
8334(a)(1) or deposited under 5 U.S.C. 8334(c) are not separately
refundable, even in the event that the employee or his or her survivor
does not qualify for a special annuity computation under 5 U.S.C.
8339(d).
(e) While an employee who does not hold a primary or secondary
position is detailed or temporarily promoted to a primary or secondary
position, the additional withholdings and agency contributions will not
be made. While an employee who does hold a primary or secondary
position is detailed or temporarily promoted to a position which is not
a primary or secondary position, the additional withholdings and agency
contributions will continue to be made.
Sec. 831.1608 Mandatory separation.
(a) Except as provided in paragraph (c) of this section, the
mandatory separation provisions of 5 U.S.C. 8335(b) apply to customs
and border protection officers appointed 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.
(b) In the event an employee is separated mandatorily under 5
U.S.C. 8335(b), or is separated for optional retirement under 5 U.S.C.
8336(c), and OPM finds that all or part of the minimum service required
for entitlement to immediate annuity was in a position which did not
meet the requirements of a primary or secondary position and the
conditions set forth in this subpart, such separation will be
considered erroneous.
(c) The customs and border protection officer mandatory separation
provisions of 5 U.S.C. 8335(b) do not apply to an individual first
appointed as a customs and border protection officer before July 6,
2008.
Sec. 831.1609 Reemployment.
An employee who has been mandatorily separated under 5 U.S.C.
8335(b) is not barred from reemployment in any position except a
primary position after age 60. Service by a reemployed annuitant is not
covered by the provisions of 5 U.S.C. 8336(c).
Sec. 831.1610 Review of decisions.
(a) The final decision of the agency head issued to an employee as
the result of a request for determination filed under Sec. 831.1606
may be appealed to the Merit Systems Protection Board under procedures
prescribed by the Board.
(b) The final decision of the agency head denying an individual
coverage while serving in an approved secondary position because of
failure to meet the conditions in Sec. 831.1604(a) may be appealed to
the Merit Systems Protection Board under procedures prescribed by the
Board.
Sec. 831.1611 Oversight of coverage determinations.
(a) Upon deciding that a position is a customs and border
protection officer position, the agency head must notify OPM
(Attention: Associate Director, Retirement Services, or such other
official as may be designated) stating the title of each position,
occupational series, position description number (or other unique
identifier), the number of incumbents, and whether the position is
primary or secondary. The Director of OPM retains the authority to
revoke the agency head's determination that a position is a primary or
secondary position.
(b) The Department of Homeland Security must establish and maintain
a file containing all coverage determinations made by the agency head
under Sec. 831.1603 and Sec. 831.1604, and all background material
used in making the determination.
(c) Upon request by OPM, the Department of Homeland Security will
make available the entire coverage determination file for OPM to audit
to ensure compliance with the provisions of this subpart.
(d) Upon request by OPM, the Department of Homeland Security must
submit to OPM a list of all covered positions and any other pertinent
information requested.
Sec. 831.1612 Elections of Retirement Coverage, exclusions from
retirement coverage, and proportional annuity computations.
(a) Elections of coverage. (1) The Department of Homeland Security
must provide an employee who is a customs and border protection officer
on December 26, 2007, the opportunity to elect not to be treated as a
customs and border protection officer under section 535(a) and (b) of
the Department of Homeland Security Appropriations Act, 2008, Public
Law 110-161, 121 Stat. 2042.
(2) An election under this paragraph (a) is valid only if made on
or before June 22, 2008.
(3) An individual eligible to make an election under this paragraph
who fails to make such an election on or before June 22, 2008, is
deemed to have elected to be treated as a customs and border protection
officer for retirement purposes.
(b) Exclusion from coverage. The provisions of this subpart and any
other
[[Page 42000]]
specific reference to customs and border protection officers in this
part do not apply to employees who on December 25, 2007, were law
enforcement officers under subpart I of this part or subpart H of part
842 within U.S. Customs and Border Protection. These employees cannot
elect to be treated as a customs and border protection officer under
paragraph (a) of this section, nor can they be deemed to have made such
an election.
(c) Proportional annuity computation. The annuity of an employee
serving in a primary or secondary customs and border protection officer
position on July 6, 2008, must, to the extent that its computation is
based on service rendered as a customs and border protection officer on
or after that date, be at least equal to the amount that would be
payable--
(1) To the extent that such service is subject to the Civil Service
Retirement System, by applying section 8339(d) of title 5, United
States Code, with respect to such service; and
(2) To the extent such service is subject to the Federal Employees'
Retirement System, by applying section 8415(d) of title 5, United
States Code, with respect to such service.
PART 841--FEDERAL EMPLOYEES RETIREMENT SYSTEM--GENERAL
ADMINISTRATION
0
4. The authority citation for part 841 continues to read as follows:
Authority: 5 U.S.C. 8461; Sec. 841.108 also issued under 5
U.S.C. 552a; subpart D also issued under 5 U.S.C. 8423; Sec. 841.504
also issued under 5 U.S.C. 8422; Sec. 841.507 also issued under
section 505 of Pub. L. 99-335; subpart J also issued under 5 U.S.C.
8469; Sec. 841.506 also issued under 5 U.S.C. 7701(b)(2); Sec.
841.508 also issued under section 505 of Pub. L. 99-335; Sec.
841.604 also issued under Title II, Pub. L. 106-265, 114 Stat. 780.
0
5. Revise Sec. 841.403(c) to read as follows:
Sec. 841.403 Categories of employees for computation of normal cost
percentages.
* * * * *
(c) Law enforcement officers, members of the Supreme Court Police,
firefighters, nuclear materials couriers, customs and border protection
officers, and employees under section 302 of the Central Intelligence
Agency Retirement Act of 1964 for Certain Employees.
* * * * *
0
6. Revise Sec. 841.503(b) to read as follows:
Sec. 841.503 Amounts of employee deductions.
* * * * *
(b) The rate of employee deductions from basic pay for FERS
coverage for a Member, law enforcement officer, firefighter, nuclear
materials courier, customs and border protection officer, air traffic
controller, member of the Supreme Court Police, Congressional employee,
or employee under section 302 of the Central Intelligence Agency Act of
1964 for Certain Employees is seven and one-half percent of basic pay,
minus the percent of tax which is (or would be) in effect for the
payment, for the employee cost of social security.
* * * * *
PART 842--FEDERAL EMPLOYEES RETIREMENT SYSTEM--BASIC ANNUITY
0
7. 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 Secs.
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 Sec. 102(e) of Pub. L. 104-8, 109 Stat. 102, as amended
by Sec. 153 of Pub. L. 104-134, 110 Stat. 1321-102; Sec. 842.107
also issued under Secs. 11202(f), 11232(e), and 11246(b) of Pub. L.
105-33, 111 Stat. 251, and Sec. 7(b) of Pub. L. 105-274, 112 Stat.
2419; Sec. 842.108 also issued under Sec. 7(e) of Pub. L. 105-274,
112 Stat. 2419; Sec. 842.109 also issued under Sec. 1622(b) of
Public Law 104-106, 110 Stat. 515; Sec. 842.208 also issued under
Sec. 535(d) of Title V of Division E of Pub. L. 110-161, 121 Stat.
2042; Sec. 842.213 also issued under 5 U.S.C. 8414(b)(1)(B) and Sec.
1313(b)(5) of Pub. L. 107-296, 116 Stat. 2135; Secs. 842.304 and
842.305 also issued under Sec. 321(f) of Pub. L. 107-228, 116 Stat.
1383, 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 Sec. 7001(a)(4) of Pub.
L. 101-508, 104 Stat. 1388; Sec. 842.707 also issued under Sec. 6001
of Pub. L. 100-203, 101 Stat. 1300; Sec. 842.708 also issued under
Sec. 4005 of Pub. L. 101-239, 103 Stat. 2106 and Sec. 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 Sec. 636 of Appendix C to Pub.
L. 106-554 at 114 Stat. 2763A-164; Sec. 842.811 also issued under
Sec. 226(c)(2) of Public Law 108-176, 117 Stat. 2529; Subpart J also
issued under Sec. 535(d) of Title V of Division E of Pub. L. 110-
161, 121 Stat. 2042.
0
8. Revise the section heading, and paragraphs (a)(1) and (2) of Sec.
842.208 to read as follows:
Sec. 842.208 Firefighters, customs and border protection officers,
law enforcement officers, members of the Capitol or Supreme Court
Police, and nuclear materials couriers.
(a) * * *
(1) After completing any combination of service as a firefighter,
customs and border protection officer, law enforcement officer, member
of the Capitol or Supreme Court Police, or nuclear materials courier
totaling 25 years; or
(2) After becoming age 50 and completing any combination of service
as a firefighter, customs and border protection officer, law
enforcement officer, member of the Capitol or Supreme Court Police, or
nuclear materials courier totaling 20 years.
* * * * *
0
9. Revise Sec. 842.403 (b)(2)(ii) to read as follows:
Sec. 842.403 Computation of basic annuity.
* * * * *
(b) * * *
(2) * * *
(ii) Is not a customs and border protection officer, a Member,
Congressional employee, military reserve technician, law enforcement
officer, firefighter, nuclear materials courier, or air traffic
controller.
0
10. Revise 842.801 to read as follows:
Sec. 842.801 Applicability and purpose.
(a) This subpart contains regulations of the Office of Personnel
Management (OPM) to supplement--
(1) 5 U.S.C. 8412(d) and (e), which establish special retirement
eligibility for law enforcement officers, members of the Capitol Police
and Supreme Court Police, firefighters, nuclear materials couriers,
customs and border protection officers, and air traffic controllers
employed under the Federal Employees Retirement System (FERS);
(2) 5 U.S.C. 8422(a), pertaining to deductions;
(3) 5 U.S.C. 8423(a), pertaining to Government contributions; and
(4) 5 U.S.C. 8425, pertaining to mandatory retirement.
(b) The regulations in this subpart are issued pursuant to the
authority given to OPM in 5 U.S.C. 8461(g) to prescribe regulations to
carry out the provisions of 5 U.S.C. chapter 84, in 5 U.S.C. 1104 to
delegate authority for personnel management to the heads of agencies
and pursuant to the authority given the Director of OPM in section
535(d) of the Department of Homeland Security Appropriations Act, 2008,
Public Law 110-161, 121 Stat. 2042.
0
11. Revise 842.901 to read as follows:
Sec. 842.901 Applicability and purpose.
(a) This subpart contains regulations of the Office of Personnel
Management (OPM) to supplement--
(1) 5 U.S.C. 8412(d) and (e), which establish special retirement
eligibility
[[Page 42001]]
for law enforcement officers, members of the Capitol Police and Supreme
Court Police, firefighters, nuclear materials couriers, customs and
border protection officers, and air traffic controllers employed under
the Federal Employees Retirement System (FERS);
(2) 5 U.S.C. 8422(a), pertaining to deductions;
(3) 5 U.S.C. 8423(a), pertaining to Government contributions; and
(4) 5 U.S.C. 8425, pertaining to mandatory retirement.
(b) The regulations in this subpart are issued pursuant to the
authority given to OPM in 5 U.S.C. 8461(g) to prescribe regulations to
carry out the provisions of 5 U.S.C. chapter 84, in 5 U.S.C. 1104 to
delegate authority for personnel management to the heads of agencies
and pursuant to the authority given the Director of OPM in section
535(d) of the Department of Homeland Security Appropriations Act, 2008,
Division E of Public Law 110-161, 121 Stat. 1844.
0
12. Add subpart J to part 842 to read as follows:
Subpart J--Customs and Border Protection Officers
842.1001 Applicability and purpose.
842.1002 Definitions.
842.1003 Conditions for coverage.
842.1004 Evidence.
842.1005 Withholding and contributions.
842.1006 Mandatory separation.
842.1007 Review of decisions.
842.1008 Oversight of coverage determinations.
842.1009 Elections of Retirement Coverage, exclusions from
retirement coverage, and proportional annuity computations.
Subpart J--Customs and Border Protection Officers
Sec. 842.1001 Applicability and purpose.
(a) This subpart contains regulations of the Office of Personnel
Management (OPM) to supplement--
(1) 5 U.S.C. 8412(d) and (e), which establish special retirement
eligibility for law enforcement officers, members of the Capitol Police
and Supreme Court Police, firefighters, nuclear materials couriers,
customs and border protection officers, and air traffic controllers
employed under the Federal Employees Retirement System (FERS);
(2) 5 U.S.C. 8422(a), pertaining to deductions;
(3) 5 U.S.C. 8423(a), pertaining to Government contributions; and
(4) 5 U.S.C. 8425, pertaining to mandatory retirement.
(b) The regulations in this subpart are issued pursuant to the
authority given to OPM in 5 U.S.C. 8461(g) to prescribe regulations to
carry out the provisions of 5 U.S.C. chapter 84, in 5 U.S.C. 1104 to
delegate authority for personnel management to the heads of agencies
and pursuant to the authority given the Director of OPM in section
535(d) of the Department of Homeland Security Appropriations Act, 2008,
Division E of Public Law 110-161, 121 Stat. 1844.
Sec. 842.1002 Definitions.
As used in this subpart:
Agency head means the Secretary of the Department of Homeland
Security. For purposes of an approval of coverage under this subpart,
agency head is also deemed to include the designated representative of
the Secretary of Department of Homeland Security, except that the
designated representative must be a department headquarters-level
official who reports directly to the Secretary of Homeland Security, or
to the Deputy Secretary of Homeland Security, and who is the sole such
representative for the entire department. For the purposes of a denial
of coverage under this subpart, agency head is also deemed to include
the designated representative of the Secretary of Department of
Homeland Security at any level within the Department of Homeland
Security.
Customs and border protection officer means an employee in the
Department of Homeland Security occupying a position within the Customs
and Border Protection Officer (GS-1895) job series (determined applying
the criteria in effect as of September 1, 2007) or any successor
position and whose duties include activities relating to the arrival
and departure of persons, conveyances, and merchandise at ports of
entry. Also included in this definition is an employee engaged in this
activity who is transferred directly to a supervisory or administrative
position in the Department of Homeland Security after performing such
duties in 1 or more positions within the GS-1895 job series (determined
applying the criteria in effect as of September 1, 2007), or any
successor position, for at least 3 years.
Employee means an employee as defined by 5 U.S.C. 8401(11).
First-level supervisors are employees classified as supervisors who
have direct and regular contact with the employees they supervise.
First-level supervisors do not have subordinate supervisors. A first-
level supervisor may occupy a primary position or a secondary position
if the appropriate definition is met.
Primary position means a position classified within the Customs and
Border Protection Officer (GS-1895) job series (determined applying the
criteria in effect as of September 1, 2007) or any successor position
whose duties include the performance of work directly connected with
activities relating to the arrival and departure of persons,
conveyances, and merchandise at ports of entry.
Secondary position means a position within the Department of
Homeland Security that is either--
(1) Supervisory; i.e., a position whose primary duties are as a
first-level supervisor of customs and border protection officers in
primary positions; or
(2) Administrative; i.e., an executive, managerial, technical,
semiprofessional, or professional position for which experience in a
primary customs and border protection officer position is a
prerequisite.
Sec. 842.1003 Conditions for coverage.
(a) Primary positions. (1) An employee's service in a position that
has been determined by the employing agency head to be a primary
customs and border protection officer position is covered under the
provisions of 5 U.S.C. 8412(d).
(2) An employee who is not in a primary position, nor covered while
in a secondary position, and who is detailed or temporarily promoted to
a primary position is not covered under the provisions of 5 U.S.C.
8412(d) for any purpose under this subpart.
(3) A first-level supervisor position may be determined to be a
primary position if it satisfies the conditions set forth in Sec.
842.1002.
(b) Secondary positions. An employee's service in a position that
has been determined by the employing agency head to be a secondary
position is covered under the provisions of 5 U.S.C. 8412(d) if all of
the following criteria are met:
(1) The employee, while covered under the provisions of 5 U.S.C.
8412(d) as a customs and border protection officer, is transferred
directly (i.e., without a break in service exceeding 3 days) from a
primary position to a secondary position; and
(2) The employee has completed 3 years of service in a primary
position, including service for which no FERS deductions were withheld;
and
(3) If applicable, the employee has been continuously employed in
secondary positions since transferring from a primary position without
a break in service exceeding 3 days, except that a break in employment
in secondary positions which begins with an involuntary separation (not
for cause), within the meaning of 8414(b)(1)(A), is not considered in
determining whether the service in secondary positions is continuous
for this purpose.
[[Page 42002]]
(c) For the purpose of applying the criteria at paragraph (b)(1)
through (3) of this section to evaluate transfers, service, and
employment periods that occurred before September 1, 2007--
(1) A primary position, covered under the provisions of 5 U.S.C.
8412(d), is deemed to include:
(i) A position whose duties included the performance of work
directly connected with activities relating to the arrival and
departure of persons, conveyances, and merchandise at ports of entry
that was classified within the Immigration Inspector Series (GS-1816),
Customs Inspector Series (GS-1890), Canine Enforcement Officer Series
(GS-1801), or any other series which the agency head determines were
predecessor series to the Customs and Border Protection Series (GS-
1895), and that would have been classified under the GS-1895 series had
it then existed; and
(ii) A position within the Customs and Border Protection Series
(GS-1895) whose duties included the performance of work directly
connected with activities relating to the arrival and departure of
persons, conveyances, and merchandise at ports of entry.
(2) A secondary position is deemed to include:
(i) A first-level supervisor of an employee in a position described
at paragraph (c)(1)(i) or (c)(1)(ii) of this section; or
(ii) A executive, managerial, technical, semiprofessional, or
professional position for which experience in a position described at
paragraph (c)(1)(i) or (c)(1)(ii) of this section is a mandatory
prerequisite.
(d) An employee who is not in a primary position, nor covered while
in a secondary position, and who is detailed or temporarily promoted to
a secondary position is not covered under the provisions of 5 U.S.C.
8412(d) for any purpose under this subpart.
Sec. 842.1004 Evidence.
(a) The agency head's determination under Sec. 842.1003(a) that a
position is a primary position must be based solely on the official
position description of the position in question, and any other
official description of duties and qualifications. The official
documentation for the position must establish that it satisfies the
requirements defined in Sec. 842.1002.
(b) A determination under Sec. 842.1003(b) must be based on the
official position description and any other evidence deemed appropriate
by the agency head for making the determination.
(c) If an employee is in a position not subject to the one-half
percent higher withholding rate of 5 U.S.C. 8422(a)(3), and the
employee does not, within 6 months of entering the position formally
and in writing seek a determination from the employing agency that his
or her service is properly covered by the higher withholding rate, the
agency head's determination that the service was not so covered at the
time of the service is presumed to be correct. This presumption may be
rebutted by a preponderance of the evidence that the employee was
unaware of his or her status or was prevented by cause beyond his or
her control from requesting that the official status be changed at the
time the service was performed.
Sec. 842.1005 Withholding and contributions.
(a) During service covered under the conditions established by
Sec. 842.1003(a) or (c), the Department of Homeland Security will
deduct and withhold from the employee's base pay the amounts required
under 5 U.S.C. 8422(a) and submit that amount to OPM in accordance with
payroll office instructions issued by OPM.
(b) During service described in paragraph (a) of this section, the
Department of Homeland Security must submit to OPM the Government
contributions required under 5 U.S.C. 8423(a) in accordance with
payroll office instructions issued by OPM.
(c) If the correct withholdings and/or Government contributions are
not timely submitted to OPM for any reason whatsoever, including cases
in which it is finally determined that past service of a current or
former employee was subject to the higher deduction and Government
contribution rates, the Department of Homeland Security must correct
the error by submitting the correct amounts (including both employee
and agency shares) to OPM as soon as possible. Even if the Department
of Homeland Security waives collection of the overpayment of pay under
any waiver authority that may be available for this purpose, such as 5
U.S.C. 5584, or otherwise fails to collect the debt, the correct amount
must still be submitted to OPM as soon as possible.
(d) Upon proper application from an employee, former employee or
eligible survivor of a former employee, the Department of Homeland
Security 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 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.
(e) The additional employee withholding and agency contributions
for covered service properly made are not separately refundable, even
in the event that the employee or his or her survivor does not qualify
for a special annuity computation under 5 U.S.C. 8415(d).
(f) While an employee who does not hold a primary or secondary
position is detailed or temporarily promoted to such a position, the
additional withholdings and agency contributions will not be made.
(g) While an employee who holds a primary or secondary position is
detailed or temporarily promoted to a position that is not a primary or
secondary position, the additional withholdings and agency
contributions will continue to be made.
Sec. 842.1006 Mandatory separation.
(a) Except as provided in paragraph (d) of this section, the
mandatory separation provisions of 5 U.S.C. 8425 apply to customs and
border protection officers, including those in secondary positions. A
mandatory separation under 5 U.S.C. 8425 is not an adverse action under
part 752 of this chapter or a removal action under part 359 of this
chapter.
(b) Exemptions from mandatory separation are subject to the
conditions set forth under 5 U.S.C. 8425. An exemption may be granted
at the sole discretion of the head of the employing agency or by the
President in accordance with 5 U.S.C. 8425(c).
(c) In the event that an employee is separated mandatorily under 5
U.S.C. 8425, or is separated for optional retirement under 5 U.S.C.
8412(d) or (e), and OPM finds that all or part of the minimum service
required for entitlement to immediate annuity was in a position that
did not meet the requirements of a primary or secondary position and
the conditions set forth in this subpart or, if applicable, in part 831
of this chapter, such separation will be considered erroneous.
(d) The customs and border protection officer mandatory separation
provisions of 5 U.S.C. 8425 do not apply to an individual first
appointed as a customs and border protection officer before July 6,
2008.
Sec. 842.1007 Review of decisions.
(a) The final decision of the agency head denying an individual's
request for approval of a position as a primary or secondary customs
and border
[[Page 42003]]
protection officer position made under Sec. 842.1003(a) may be
appealed to the Merit Systems Protection Board under procedures
prescribed by the Board.
(b) The final decision of the agency head denying an individual
coverage while serving in an approved secondary position because of
failure to meet the conditions in Sec. 842.1003(b) may be appealed to
the Merit Systems Protection Board under procedures prescribed by the
Board.
Sec. 842.1008 Oversight of coverage determinations.
(a) Upon deciding that a position is a customs and border
protection officer, the Department of Homeland Security must notify OPM
(Attention: Associate Director, Retirement Services, or such other
official as may be designated) stating the title of each position, the
occupational series of the position, the number of incumbents, whether
the position is primary or secondary, and, if the position is a primary
position, the established maximum entry age, if one has been
established. The Director of OPM retains the authority to revoke the
agency head's determination that a position is a primary or secondary
position.
(b) The Department of Homeland Security must establish and maintain
a file containing all coverage determinations made by the agency head
under Sec. 842.1003(a) and (b), and all background material used in
making the determination.
(c) Upon request by OPM, the Department of Homeland Security will
make available the entire coverage determination file for OPM to audit
to ensure compliance with the provisions of this subpart.
(d) Upon request by OPM, the Department of Homeland Security must
submit to OPM a list of all covered positions and any other pertinent
information requested.
Sec. 842.1009 Elections of retirement coverage, exclusions from
retirement coverage, and proportional annuity computations.
(a) Election of coverage. (1) The Department of Homeland Security
must provide an individual who is a customs and border protection
officer on December 26, 2007, with the opportunity to elect not to be
treated as a customs and border protection officer under section 535(a)
and (b) of the Department of Homeland Security Appropriations Act,
2008, Public Law 110-161, 121 Stat. 2042.
(2) An election under this paragraph is valid only if made on or
before June 22, 2008.
(3) An individual eligible to make an election under this paragraph
who fails to make such an election on or before June 22, 2008, is
deemed to have elected to be treated as a customs and border protection
officer for retirement purposes.
(b) Exclusion from coverage. The provisions of this subpart and any
other specific reference to customs and border protection officers in
this part do not apply to employees who on December 25, 2007, were law
enforcement officers, under subpart H of this part or subpart I of part
831, within U.S. Customs and Border Protection. These employees cannot
elect to be treated as a customs and border protection officer under
paragraph (a) of this section, nor can they be deemed to have made such
an election.
(c) Proportional annuity computation. The annuity of an employee
serving in a primary or secondary customs and border protection officer
position on July 6, 2008, must, to the extent that its computation is
based on service rendered as a customs and border protection officer on
or after that date, be at least equal to the amount that would be
payable--
(1) To the extent that such service is subject to the Civil Service
Retirement System, by applying section 8339(d) of title 5, United
States Code, with respect to such service; and
(2) To the extent such service is subject to the Federal Employees'
Retirement System, by applying section 8415(d) of title 5, United
States Code, with respect to such service.
[FR Doc. 2011-18006 Filed 7-15-11; 8:45 am]
BILLING CODE 6325-63-P