**Guidelines for a Submitting Position Description for Special
Retirement Coverage**

When developing new positions descriptions that include firefighter (FF)
and/or law enforcement officer (LEO) duties, a key position management
issue the Human Resources Specialist should discuss with the
manager/supervisor is whether the position should be recommended for
special retirement coverage under the Civil Service Retirement System
(CSRS) 5 U.S.C. § 8336(c) and/or the Federal Employees Retirement System
(FERS) 5 U.S.C. § 8412(d). Position descriptions (PDs) having
firefighter and/or law enforcement duties should be submitted to the
Firefighter and Law Enforcement Retirement Team (FLERT) for a review and
recommendation. The PD is then processed for a final Department of the
Interior (DOI) determination. The procedures outlined below must be
used. The servicing personnel office should submit a recommendation for
coverage to the FLERT office. All PDs (e.g., temporary or permanent)
should be submitted for a review and coverage determination. However,
temporary (non-deduction) appointments, under FERS rules, are not
subject to retirement provisions[^1]; as such, approved temporary/
non-deduction service cannot be used for annuity computation or
retirement eligibility. Nonetheless, if the PD receives LE coverage, the
individual may be entitled to the special LEO pay. **PDs that have not
received a coverage determination are not "officially" covered. A
listing of approved DOI positions can be found at:
<http://flert.nifc.gov/position_descriptions.htm>.**

**Definitions:**

**[Firefighter]{.underline}** - Under CSRS[^2] rules, firefighter means
an employee, whose duties are primarily to perform work directly
connected with the control and extinguishment of fires *or* the
maintenance and use of firefighting apparatus and equipment. However,
under FERS[^3] rules, firefighter means an employee occupying a rigorous
position, whose primary/rigorous duties are to perform work directly
connected with the control and extinguishment of fires. **[Law
Enforcement Officer]{.underline}** - Under CSRS rules a Law Enforcement
Officer (LEO) means an employee occupying a primary position, whose
primary duties are the investigation, apprehension, or detention of
individuals suspected or convicted of offenses against the criminal laws
of the United States. A FERS employee must meet the same LEO definition
as previously stated, but primary/rigorous duties can also include the
protection of officials of the United States against threats to personal
safety.

The duties of the position must be so rigorous that employment
opportunities are limited to young and physically vigorous individuals.
Furthermore, the term "**investigation**" refers to "criminal
investigation" which involves unusual physical hazards for the
investigator, deriving from frequent contacts with criminals and
suspected criminals and their desire to avoid criminal prosecution.

A LEO covered by this special retirement program commonly: (1) has
frequent direct contact with criminal suspects; (2) is authorized to
carry a firearm; (3) interrogates witnesses and suspects, giving Miranda
warnings when appropriate; (4) works for long periods without a break;
(5) is on call 24 hours a day; and (6) is required to posses a Type I
Law Enforcement Commission as well as meet the physical fitness
standards to maintain that commission. The definition of LEO duties does
not include an employee whose primary duties involve maintaining order,
protecting life and property, guarding against or inspecting for
violations of law, or investigating persons other than persons who are
suspected or convicted of offenses against the criminal laws of the
United States.

Current guidance for meeting the definition and eligibility requirements
as a LEO can be found in [Watson v. Dept. of the Navy]{.underline}, 262
F.3d 1292 (Fed.Cir.2001). In [Watson]{.underline} the Court held that
the position-oriented approach used by the Merit Systems Protection
Board (the Board) is consistent with the statutes and regulations of the
FF/LEO retirement coverage program. The Office of Personnel Management
regulations require assessment of the "basic reasons for the existence
of the position". Individuals seeking FF/LEO retirement coverage bear
the burden of proving entitlement by preponderant evidence. Eligibility
for FF/LEO retirement coverage must be "strictly construed" because the
FF/LEO retirement program is more costly to the government than regular
retirement plans and often results in the retirement of important people
at a time when they would otherwise have continued to work for a number
of years. In assessing why the position exists, factors such as an early
mandatory retirement age and maximum entry age should be considered in
determining whether the "basic reasons for the existence of the
position" consists of duties that will make the employee FF/LEO
eligible.

The most probative factors, the Court holds, are: (1) whether the
officers are merely guarding life and property or whether the officers
are instead more frequently pursuing or detaining criminals; (2) whether
there is an early mandatory retirement age; (3) whether there is a
youthful maximum entry age; (4) whether the job is physically demanding
so as to require a youthful workforce; and (5) whether the officer is
exposed to hazard or danger. **The Court and the Board have held that
first responder duties are not LEO duties. Likewise, performing
preliminary investigations and looking for possible criminal activity
are not LEO duties.** *See also*: [Fagergren v. Dept. of the
Interior]{.underline}, 98 M.S.P.R. 649 (2005) [aff'd]{.underline} 2006
U.S. App. Lexis 771 (Fed Cir 2006); [Crowley v. U.S.]{.underline}, 398
F.3d 1329 (Fed.Cir.2005); [Bingaman v. Dept. of the
Treasury]{.underline}, 127 F.3d 1431 (1997); [Lott & Robillard v. Gen.
Services Administration]{.underline}, 84 M.S.P.R. 324 (1999); and [Ayres
v. Dept. of Defense]{.underline}, 86 M.S.P.R. 593 (2000). Since
firefighters and law enforcement officers are evaluated under the same
statutory provisions, similar factors/standards can be applied.

**Primary Duties -** The "**primary duties**" of a position are those
duties that: (a) are paramount in influence or weight; that is,
constitute the basic reasons for the existence of the position; (b)
occupy a substantial portion of the individual's working time over a
typical work cycle; and (c) are assigned on a regular and recurring
basis. Primary duties do not include duties of an emergency, incidental,
or temporary nature, even if those duties occupy a substantial portion
of the employee's time over a typical work cycle. In general, if an
employee spends an average of a least 50% of his/her time performing a
duty or group of duties, they are his/her primary duties.

The fact that the position requires a law enforcement commission and the
employee is authorized to carry a firearm is **not** sufficient evidence
that their position is a primary LEO position. As previously stated, to
meet the eligibility requirements, FF/LE duties **[must]{.underline}**
be: paramount in influence or weight; performed at least 50% or more of
one's working time; and assigned on a regular and recurring basis.

**Submitting Position Descriptions (PDs) for Coverage**

All submittals must contain the following:

1.  • a complete copy of the position description including the OF-8
    (signed by the classifier);

    • a breakdown of the percentage of time spent in each major duty (to
    equal 100%);

    • classifier\'s evaluation statement (if available);

    • performance standards (if available);

    • organization chart indicating the location of the position;

    • functional statement, if not included in the Introduction of the
    PD; and

    • DOI checklist for recommendation of special CSRS/FERS coverage for
    law enforcement or firefighter positions. This should be completed
    by the Human Resources Officer or HR Specialist). The checklist can
    be found at: <http://flert.nifc.gov/forms/pd_checklist.pdf> .

**Positions being submitted for primary/rigorous coverage
[must]{.underline}:**

1.  

> • meet the definition of a primary/rigorous firefighter or LEO (as
> defined above); and
>
> • show in Factor 8, **Physical Demands** that the duties of the
> position are rigorous and *include the requirement to meet the
> physical fitness*/*qualifications for arduous positions.*

**Positions being submitted for secondary coverage [must]{.underline}:**

> • contain evidence that the position meets the requirements for
> secondary positions (***i.e.*** position is clearly in the FF or LE
> field; in an organization having a FF or LE mission; and is either:
> (a) supervisory (first-level supervisor of primary firefighters or
> LEOs) or (b) administrative, of which prior FF or LE experience is a
> requirement).

**Submit Completed Position Packages To:**

Department of the Interior,

Office of the Secretary

Firefighter/Law Enforcement Officer Retirement Team (FLERT)

300 E. Mallard Drive, Suite 170

Boise, ID 83706-6648.

(Complete PD package (with transmittal letter) may be faxed to
208-334-1558). Please refer to the DOI checklist. Incomplete packages
may be returned without review or held up until the required information
is submitted.

**What happens after a position description has been approved for
coverage?**

Once FLERT receives an approved PD package from the Department, the
FLERT HR Specialist will stamp and sign the OF-8 and attach it to the
\"Certification of Approval for Special Retirement Coverage". A copy of
the certification sheet and OF-8 is then sent to the Servicing Personnel
Office. If a PD is not covered or denied coverage, a letter signed by
the Secretary's Designee explaining the decision ***is sent to the
servicing personnel office with instructions for processing.***

When the SPO receives the certification and PD with appropriate
annotation on the OF-8 from FLERT, copies of the PD (including the
certification/letter) should be made and distributed as follows: OPF, PD
book, supervisor copy, employee copy, and position file copy.

**What to do if position is encumbered?**

PD's must have a coverage determination **BEFORE** they are used for
placement; otherwise, you run the risk of having to remove an individual
if he/she doesn't meet the regulatory requirements (e.g., Maximum Entry
Age (MEA) for primary/rigorous positions only, transitional provisions,
etc...). Check to see if the incumbent is eligible for coverage as
follows:

(a) **Primary/rigorous position** - Assure that the incumbent meets the
    MEA requirements. If not, contact the FLERT office for information
    on corrective action, which may include removal. If incumbent is
    already in the appropriate retirement code, no processing action is
    required; just document the Work History Form that should be on top
    of the right side of the OPF.

> If the incumbent is not already in the appropriate retirement code,
> personnel actions will need to be processed to correct the retirement
> code back to the date the position was classified, or the date the
> employee entered the position, as appropriate. See processing special
> retirement covered service information. You also need to check special
> pay eligibility. File the PD on right side of OPF (it supports
> retirement benefit) as required by CSRS & FERS Handbook, Chapter 46,
> Section 46A3.2-1A. Section 46B3.2-1A.
>
> **(b) Secondary Position** - If a position is secondary, check to see
> if incumbent is eligible for coverage in a secondary position (i.e.,
> made proper transition under either CSRS and FERS rules). **That is,
> the PD may be covered as secondary, but an individual may not be
> eligible for special retirement**. If employee does not meet the
> transfer requirements, he/she may not be eligible for coverage. In
> this instance, get a "Statement of Understanding" (for individuals
> selected for secondary positions, but not eligible for coverage-form
> attached) signed by the employee, and put the signed copy in the
> employee's OPF. If the incumbent is eligible for coverage but not
> currently in the correct retirement code, personnel actions will need
> to be processed to correct the retirement code retroactive to the date
> the position was classified or the date the employee entered the
> position, as appropriate.

**For additional information on submitting PDs and processing PD
information as well as other special retirement information, please
visit our website at: [http://flert.nifc.gov](http://flert.nifc.gov/).
In the left-hand side of the website, go the link titled "FLERT Training
Resource Materials". Then go to link titled "Firefighter and Law
Enforcement Officer Special Retirement Training for HR Specialists,
Managers, and Supervisors". If you have any questions, please contact
Toni Orth, HR Specialist at 208-334-1554.**

**Statement of Understanding (Individuals not in a covered position)**

I understand that if I am in a position description that is **NOT**
covered by special retirement and I feel it should be under 5 U.S.C. §
8336(c) or 5 U.S.C. § 8412(d), I can file a claim for coverage with the
Department of the Interior.

I also understand that time limits apply to a claim for current position
coverage and claims for past service. Procedures for filing claims may
be obtained from the Human Resource Office or the Firefighter and Law
Enforcement Retirement Team.

**Individuals under the Civil Service Retirement System**

Individuals in the Civil Service Retirement System (5 U.S.C. § 8336(c)),
coverage in a position or credit for past service will not be granted
for a period greater than **1 year prior** to the date the individual
claim is received by the Firefighter and Law Enforcement Officer
Retirement Team.

If service is prior to the 1 year limitation, the agency head may extend
this time limit for filing when, in the judgment of such agency head, or
OPM, documentation is provided that the employee was prevented by
circumstances beyond his/her control from making the request within the
time limit. If the employee meets this criteria, he/she must submit a
letter to the Firefighter and Law Enforcement Officer Retirement Team
within **35 calendar days of the date of this statement**, stating
his/her intent to file a claim and include in the letter an explanation
of why he/she did not meet the time limit.

**Individuals under the Federal Employees Retirement System**

Individuals in the Federal Employee Retirement System (5 USC § 8412(d)),
who are in a position that is not subject to the 1/2% higher
withholding, but feel the position should be covered, must within 6
months of entering a position, or any significant change to that
position, initiate formally, and in writing, a request for an agency
determination that his/her position should be granted coverage. The
agency head may extend this time limit when the individual provides
sufficient evidence that he/she was unaware of his/her status or was
prevented by circumstances beyond his/her control from requesting a
determination of position coverage. If the individual's service falls
within this category, he/she must submit a letter to the Firefighter and
Law Enforcement Officer Retirement Team within **35 calendar days of the
date of this statement**, stating why he/she did not meet the regulatory
time limit.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Individual's Name as shown on the SF-50 (Typed or printed)

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Individual's Signature Date

The original statement must be filed in the employee's OPF and a copy
given to the employee.

*Revised February 22, 2007*

[^1]: Under FERS, temporary service (non-deduction service) after
    December 31, 1988, for which no retirement deductions were made, is
    not creditable for retirement purposes. See CSRS/FERS Handbook,
    Chapter 20, Part 20B2, Section 20B2.1-1C and Part 20B3, Nondeduction
    Service. See also 5 U.S.C. § 8411.

[^2]: For further clarification see 5 C.F.R. § 831 Subpart I.

[^3]: For further clarification see 5 C.F.R. § 842 Subpart H.