[Federal Register Volume 76, Number 137 (Monday, July 18, 2011)]
[Rules and Regulations]
[Pages 41993-42003]
From the Federal Register Online via the Government Printing 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.

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

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