[Federal Register: January 18, 2000 (Volume 65, Number 11)]
[Rules and Regulations]               
[Page 2521-2526]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18ja00-1]                         

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SUMMARY:  The Office of Personnel Management (OPM) is issuing interim 
rules applicable to nuclear materials couriers employed under the Civil 
Service Retirement System (CSRS) and the Federal Employees' Retirement 
System (FERS). These interim rules are pursuant to the Strom Thurmond 
National Defense Authorization Act for Fiscal Year 1999 enacted on 
October 17, 1998. The Act provides early retirement and enhanced 
annuity benefits for nuclear materials couriers employed by the United 
States Department of Energy under CSRS and FERS; requires an increase 
in the percentage rate of withholdings from the basic pay of nuclear 
material couriers; and establishes mandatory retirement of nuclear 
materials couriers at age 57. These regulations are necessary to put 
the new retirement provisions into effect.

DATES:  Interim rules effective January 18, 2000; comments must be 
received on or before March 20, 2000.

ADDRESSES:  Send comments to Mary Ellen Wilson; Office of Personnel 
Management; RIS/RPD, Room 4351; 1900 E Street, N.W.; Washington, DC 
20415-3200; or deliver to OPM, Room 4351, 1900 E Street, NW., 
Washington, DC. Comments may also be submitted by electronic mail to 
combox@opm.gov.

FOR FURTHER INFORMATION CONTACT:  Kenneth R. Brown, (202) 606-0299.

SUPPLEMENTARY INFORMATION:  Sections 8336(c) and 8412(d) of title 5, 
U.S. Code have been amended by section 3154 of the Strom Thurmond 
National Defense Authorization Act for Fiscal Year 1999, Public Law 
105-261, 112 Stat. 1920, to authorize immediate retirement benefits at 
age 50 for Federal employees who have completed 20 years of Federal 
civilian service as a nuclear materials courier with the United States 
Department of Energy. Section 8412(d) of title 5, U.S. Code has also 
been amended by Public Law 105-261 to authorize immediate retirement at 
any age for Federal employees who have completed 25 years of service as 
a nuclear materials courier with the United States Department of 
Energy. These amendments apply only to individuals who are employed as 
a nuclear materials courier after October 17, 1998, the date of 
enactment of Public Law 105-261.
    Under Public Law 105-261 the enhanced basic annuity computations 
provided by sections 8339(d) (CSRS) and 8415(d) (FERS) of title 5, U.S. 
Code are now applicable to nuclear materials couriers. Beginning with 
the first pay period that began after October 17, 1998, nuclear 
material couriers became subject to the same percentage rate of 
withholdings from basic pay applicable to law enforcement officers and 
firefighters. Effective October 17, 1999, nuclear materials couriers 
are also subject to the mandatory separation (at age 57) provisions of 
sections 8335(b) (CSRS) and 8425(b) (FERS) of title 5, U.S. Code.
    For purposes of the Civil Service Retirement System and the Federal 
Employees' Retirement System, nuclear materials courier means an 
employee of the Department of Energy, the duties of whose position are 
primarily to transport, and provide armed escort and protection during 
transit of, nuclear weapons, nuclear weapon components, strategic 
quantities of special nuclear materials or other materials related to 
national security; and includes an employee who is transferred directly 
to a supervisory or administrative position within the same Department 
of Energy organization, after performing the above-described duties for 
at least 3 years.
    Section 3154 of Public Law 105-261, 112 Stat. 1920, establishes a 
separate class of employees who can earn enhanced basic annuity 
computations provided by sections 8339(d) (CSRS) and 8415(d) (FERS) of 
title 5, U.S. Code. Although a ``nuclear materials courier'' is not a 
``law enforcement officer,'' the procedure that the Secretary of Energy 
must follow to make a ``nuclear materials courier'' coverage 
determination is similar to the procedures currently used by an agency 
head in a ``law enforcement officer'' coverage determination under 5 
C.F.R. part 831, subpart I.

Waiver of General Notice of Proposed Rulemaking

    Under 5 U.S.C. 553(b)(3)(B), I find that good cause exists for 
waiving the general notice of proposed rulemaking, and for making these 
rules effective in less than 30 days. These regulations will affect the 
eligibility for immediate retirement, the computation of annuity, 
employee deductions from basic pay, agency contributions, and mandatory 
separation for nuclear materials couriers under the Civil Service 
Retirement System and the Federal Employees' Retirement System on and 
after October 17, 1998. Publication of a general notice on proposed 
rulemaking would be contrary to the public interest because it would 
delay the retirement of nuclear materials couriers under the provisions 
of Public Law 105-261 and would hinder the Department of Energy's 
effective management of the nuclear materials courier workforce.

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 benefits of retired nuclear materials 
couriers and their survivors.

Executive Order 12866, Regulatory Review

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

List of Subjects in 5 CFR Parts 831 and 842

    Administrative practice and procedure, Air traffic controllers, 
Alimony, Claims, Disability benefits, Firefighters, Government 
employees, Income taxes, Intergovernmental

[[Page 2522]]

relations, Law enforcement officers, Pensions, Reporting and 
recordkeeping requirements, Retirement.

U.S. Office of Personnel Management.
Janice R. Lachance,
Director.
    Accordingly, OPM is amending 5 CFR parts 831 and 842 as follows:

PART 831--RETIREMENT

    1. The authority citation for part 831 is revised to read as 
follows:

    Authority:  5 U.S.C. 8347; Sec. 831.102 also issued under 5 
U.S.C. 8334; Sec. 831.106 also issued under 5 U.S.C. 552a; 
Sec. 831.114 also issued under 5 U.S.C. 8336(d)(2) and section 7001 
of Pub. L. 105-174, 112 Stat. 58, as amended by section 651 of Pub. 
L. 106-58, 113 Stat. 430; Sec. 831.201(b)(1) also issued under 5 
U.S.C. 8347(g); Sec. 831.201(b)(6) also issued under 5 U.S.C. 
7701(b)(2); Sec. 831.201(g) also issued under sections 11202(f), 
11232(e), and 11246(b) of Pub. L. 105-33, 111 Stat. 251; 
Sec. 831.201(g) also issued under sections 7(b) and 7(e) of Pub. L. 
105-274, 112 Stat. 2419; Sec. 831.201(i) also issued under sections 
3 and 7(c) of Pub. L. 105-274, 112 Stat. 2419; Sec. 831.204 also 
issued under section 102(e) of Pub. L. 104-8, 109 Stat. 102, as 
amended by section 153 of Pub. L. 104-134, 110 Stat. 1321; 
Sec. 831.303 also issued under 5 U.S.C. 8334(d)(2); Sec. 831.502 
also issued under section 1(3), E.O. 11228, 3 CFR 1964-1965 Comp. p. 
317; Sec. 831.663 also issued under 5 U.S.C. 8339(j) and (k)(2); 
Secs. 831.663 and 831.664 also issued under section 11004 (c)(2) of 
Pub. L. 103-66, 107 Stat. 412; Sec. 831.682 also issued under 
section 201(d) of Pub. L. 99-251, 100 Stat. 23; subpart L also 
issued under 5 U.S.C. 8337; subpart V also issued under 5 U.S.C. 
8343a and section 6001 of Pub. L. 100-203, 101 Stat. 1330-275; 
Sec. 831.2203 also issued under section 7001(a)(4) of Pub. L. 101-
508, 104 Stat. 1388-328.

    2. Section 831.502 is amended by revising paragraph (b)(1) and the 
introductory text to paragraph (c) to read as follows:


Sec. 831.502  Automatic separation; exemption.

* * * * *
    (b)(1) The head of the agency, when in his or her judgment the 
public interest so requires, may exempt a law enforcement officer, 
firefighter or nuclear materials courier from automatic separation 
until that employee becomes 60 years of age.
* * * * *
    (c) 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 or 
nuclear materials courier, age 61 for an air traffic controller, and 
age 62 for an employee of the Alaska Railroad in Alaska or an employee 
who is a citizen of the United States employed on the Isthmus of Panama 
by the Panama Canal Commission, the department or agency head shall 
submit a recommendation to that effect to OPM.
* * * * *

    3. Subpart H--is added to read as follows:
Subpart H--Nuclear Materials Couriers
831.801  Applicability and purpose.
831.802  Definitions.
831.803  Conditions for coverage in primary positions.
831.804  Conditions for coverage in secondary positions.
831.805  Evidence.
831.806  Requests from individuals.
831.807  Withholdings and contributions.
831.808  Mandatory separation.
831.809  Reemployment.
831.810  Review of decisions.
831.811  Oversight of coverage determinations.

Subpart H--Nuclear Materials Couriers


Sec. 831.801  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 nuclear materials couriers employed 
under the Civil Service Retirement System; 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 5 U.S.C., chapter 83, subchapter III, and in 5 U.S.C. 1104 to 
delegate authority for personnel management to the heads of agencies.


Sec. 831.802  Definitions.

    In this subpart--
    Agency head means the Secretary of Energy. For purposes of this 
subpart, agency head is also deemed to include the designated 
representative of the Secretary of Energy, except that the designated 
representative must be a department headquarters-level official who 
reports directly to the Secretary of Energy, or to the Deputy Secretary 
of Energy, and who is the sole such representative for the entire 
department.
    Nuclear materials courier means an employee of the Department of 
Energy, the duties of whose position are primarily to transport, and 
provide armed escort and protection during transit of, nuclear weapons, 
nuclear weapon components, strategic quantities of special nuclear 
materials or other materials related to national security, including an 
employee engaged in this activity who is transferred directly to a 
supervisory or administrative position within the same Department of 
Energy organization, after performing this activity for at least 3 
years. (See 5 U.S.C. 8331(27).)
    Primary duties are those duties of a position that--
    (1)(i) Are paramount in influence or weight; that is, constitute 
the basic reasons for the existence of the position;
    (ii) Occupy a substantial portion of the individual's working time 
over a typical work cycle; and
    (iii) Are assigned on a regular and recurring basis.
    (2) Duties that are of an emergency, incidental, or temporary 
nature cannot be considered primary even if they meet the substantial 
portion of time criterion. In general, if an employee spends an average 
of at least 50 percent of his or her time performing a duty or group of 
duties, they are his or her primary duties.
    Primary position means a position that is in an organization of the 
Department of Energy and whose primary duties are to transport, and 
provide armed escort and protection during transit of, nuclear weapons, 
nuclear weapon components, strategic quantities of special nuclear 
materials or other materials related to national security.
    Secondary position means a position that:
    (1) Is clearly in the nuclear materials transportation field;
    (2) Is in an organization of the Department of Energy having a 
nuclear materials transportation mission; and
    (3) Is either--
    (i) Supervisory; i.e., a position whose primary duties are as a 
first-level supervisor of nuclear materials couriers in primary 
positions; or
    (ii) Administrative; i.e., an executive, managerial, technical, 
semiprofessional, or professional position for which experience in a 
primary nuclear materials courier position is a prerequisite.


Sec. 831.803  Conditions for coverage in primary positions.

    (a) An employee's service in a position that has been determined by 
the Secretary of the Department of Energy to be a primary nuclear 
materials courier 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

[[Page 2523]]

primary position is not covered under the provisions of 5 U.S.C. 
8336(c).


Sec. 831.804  Conditions for coverage in secondary positions.

    (a) An employee's service in a position that has been determined by 
the Secretary of the Department of Energy to be a secondary nuclear 
materials courier position following 3 years of service in a primary 
nuclear materials courier 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) 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 5 U.S.C. 8336(d)(1), is not 
considered in determining whether the service in secondary positions is 
continuous for this purpose.
    (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 secondary position is not covered under the provisions of 5 U.S.C. 
8336(c).


Sec. 831.805  Evidence.

    (a) The Secretary of Energy's determination under Sec. 831.803 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. 831.802.
    (b) A determination under Sec. 831.804 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. 8334(a)(1), 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 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. 831.806  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 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 December 31, 2000.
    (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. 831.807  Withholdings and contributions.

    (a) During the service covered under the conditions established by 
Sec. 831.803 and Sec. 831.804, the Department of Energy 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, 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 Energy 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 Energy 
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 Energy 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. 831.808  Mandatory separation.

    (a) Effective on and after October 17, 1999, the mandatory 
separation provisions of 5 U.S.C. 8335(b) apply to all nuclear 
materials couriers in primary and secondary positions. A mandatory 
separation under 5 U.S.C. 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.

[[Page 2524]]

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.


Sec. 831.809  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. 831.810  Review of decisions.

    The following decisions may be appealed to the Merit Systems 
Protection Board under procedures prescribed by the Board:
    (a) The final decision of the Department of Energy issued to an 
employee, former employee, or survivor as the result of a request for 
determination filed under Sec. 831.806; and
    (b) The final decision of the Department of Energy that a break in 
service referred to in Sec. 831.804(a)(2) did not begin with an 
involuntary separation within the meaning of 5 U.S.C. 8336(d)(1).


Sec. 831.811  Oversight of coverage determinations.

    (a) Upon deciding that a position is a nuclear materials courier 
position, the agency head must notify OPM (Attention: Associate 
Director for Retirement and Insurance) stating the title of each 
position, 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, or that an individual's service in any other position is 
creditable under 5 U.S.C. 8336(c).
    (b) The Department of Energy must establish a file containing each 
coverage determination made by the agency head under Sec. 831.803 and 
Sec. 831.804, and all background material used in making the 
determination.
    (c) Upon request by OPM, the Department of Energy 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 Energy must submit to 
OPM a list of all covered positions and any other pertinent information 
requested.

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

    4. The authority citation for Part 842 is revised to read to read 
as follows:

    Authority:  5 U.S.C. 8461(g); Secs. 842.104 and 842.106 also 
issued under 5 U.S.C. 8461(n); Sec. 842.104 also issued under 
sections 3 and 7(c) of Pub. L. 105-274, 112 Stat. 2419; Sec. 842.105 
also issued under 5 U.S.C. 8402(c)(1) and 7701(b)(2); Sec. 842.106 
also issued under section 102(e) of Pub. L. 104-8, 109 Stat. 102, as 
amended by section 153 of Pub. L. 104-134, 110 Stat. 1321; 
Sec. 842.107 also issued under sections 11202(f), 11232(e), and 
11246(b) of Pub. L. 105-33, 111 Stat. 251; Sec. 842.107 also issued 
under section 7(b) of Pub. L. 105-274, 112 Stat. 2419; Sec. 842.108 
also issued under section 7(e) of Pub. L. 105-274, 112 Stat. 2419; 
Sec. 842.213 also issued under 5 U.S.C. 8414(b)(1)(B) and section 
7001 of Pub. L. 105-174, 112 Stat. 58, as amended by section 651 of 
Pub. L. 106-58, 113 Stat. 430; Secs. 842.604 and 842.611 also issued 
under 5 U.S.C. 8417; Sec. 842.607 also issued under 5 U.S.C. 8416 
and 8417; Sec. 842.614 also issued under 5 U.S.C. 8419; Sec. 842.615 
also issued under 5 U.S.C. 8418; Sec. 842.703 also issued under 
section 7001(a)(4) of Pub. L. 101-508, 104 Stat. 1388; Sec. 842.707 
also issued under section 6001 of Pub. L. 100-203, 101 Stat. 1300; 
Sec. 842.708 also issued under section 4005 of Pub. L. 101-239, 103 
Stat. 2106 and section 7001 of Pub. L. 101-508, 104 Stat. 1388; 
subpart H also issued under 5 U.S.C. 1104.

    5. In section 842.208 the heading and paragraph (a) are revised to 
read as follows:


Sec. 842.208  Firefighters, law enforcement officers, and nuclear 
materials couriers.

    (a) An employee who separates from service, except by removal for 
cause on charges of delinquency or misconduct, is entitled to an 
annuity--
    (1) After completing any combination of service as a firefighter, 
law enforcement officer or nuclear materials courier totaling 25 years; 
or
    (2) After becoming age 50 and completing any combination of service 
as a firefighter, law enforcement officer or nuclear materials courier 
totaling 20 years.
* * * * *

    6. Section 842.405 is revised to read as follows:


Sec. 842.405  Air traffic controllers, firefighters, law enforcement 
officers, and nuclear materials couriers.

    The annuity of an air traffic controller retiring under 
Sec. 842.207 or a law enforcement officer, firefighter or nuclear 
materials courier retiring under Sec. 842.208 is--
    (a) One and seven-tenths percent of average pay multiplied by 20 
years; plus
    (b) One percent of average pay multiplied by the years of service 
exceeding 20 years.

    7. Subpart I is added to read as follows:
Subpart I--Nuclear Materials Couriers
842.901   Applicability and purpose.
842.902   Definitions.
842.903   Conditions for coverage in primary positions.
842.904   Conditions for coverage in secondary positions.
842.905   Evidence.
842.906   Requests from individuals.
842.907   Withholding and contributions.
842.908   Mandatory separation.
842.909   Review of decisions.
842.910   Oversight of coverage determinations.

Subpart I--Nuclear Materials Couriers


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 for law enforcement officers, firefighters, air traffic 
controllers, and nuclear materials couriers 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 and in 5 U.S.C. 1104 to 
delegate authority for personnel management to the heads of agencies.


Sec. 842.902  Definitions.

    Agency head means the Secretary of Energy. For purposes of this 
subpart, agency head is also deemed to include the designated 
representative of the Secretary of Energy, except that the designated 
representative must be a department headquarters-level official who 
reports directly to the Secretary of Energy, or to the Deputy Secretary 
of Energy, and who is the sole such representative for the entire 
department.
    Employee means an employee as defined by 5 U.S.C. 8401(11).
    Nuclear materials courier means an employee of the Department of 
Energy, the duties of whose position are primarily to transport, and 
provide armed escort and protection during transit of, nuclear weapons, 
nuclear weapon components, strategic quantities of special nuclear 
materials or other materials related to national

[[Page 2525]]

security, including an employee engaged in this activity who is 
transferred directly to a supervisory or administrative position within 
the same Department of Energy organization, after performing this 
activity for at least 3 years. (See 5 U.S.C. 8331(27).)
    Primary duties means those duties of a position that--
    (1)(i) Are paramount in influence or weight; that is, constitute 
the basic reasons for the existence of the position;
    (ii) Occupy a substantial portion of the individual's working time 
over a typical work cycle; and
    (iii) Are assigned on a regular and recurring basis.
    (2) Duties that are of an emergency, incidental, or temporary 
nature cannot be considered ``primary'' even if they meet the 
substantial portion of time criterion. In general, if an employee 
spends an average of at least 50 percent of his or her time performing 
a duty or group of duties, they are his or her primary duties.
    Primary position means a position that is in an organization of the 
Department of Energy and whose primary duties are to transport, and 
provide armed escort and protection during transit of, nuclear weapons, 
nuclear weapon components, strategic quantities of special nuclear 
materials or other materials related to national security.
    Secondary position means a position that--
    (1) Is clearly in the nuclear materials transportation field;
    (2) Is in an organization of the Department of Energy having a 
nuclear materials transportation mission; and
    (3) Is either--
    (i) Supervisory; that is, a position whose primary duties are as a 
first-level supervisor of nuclear materials couriers in primary 
positions; or
    (ii) Administrative; that is, an executive, managerial, technical, 
semiprofessional, or professional position for which experience in a 
primary nuclear materials courier position is a prerequisite.


Sec. 842.903  Conditions for coverage in primary positions.

    (a) An employee's service in a position that has been determined by 
the Secretary of the Department of Energy to be a primary nuclear 
materials courier position is covered under the provisions of 5 U.S.C. 
8412(d).
    (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. 
8412(d).


Sec. 842.904  Conditions for coverage in secondary positions.

    (a) An employee's service in a position that has been determined by 
the Secretary of the Department of Energy to be a secondary nuclear 
materials courier position following 3 years of service in a primary 
nuclear materials courier position is covered under the provisions of 5 
U.S.C. 8412(d) 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) 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 5 U.S.C. 8414(b)(1)(A), is not 
considered in determining whether the service in secondary positions is 
continuous for this purpose.
    (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 secondary position is not covered under the provisions of 5 U.S.C. 
8412(d).


Sec. 842.905  Evidence.

    (a) The Secretary of Energy's determination under Sec. 842.903 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. 842.902.
    (b) A determination under Sec. 842.904 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 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 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. 842.906  Requests from individuals.

    (a) An employee who requests credit for service under 5 U.S.C. 
8412(d) 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 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 December 31, 2000.
    (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. 842.907  Withholding and contributions.

    (a) During service covered under the conditions established by 
Sec. 842.903 (a) or (b), the Department of Energy will deduct and 
withhold from the employee's base pay the amounts required under 5 
U.S.C. 8422(a)(3) 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 
employing agency 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 withholding and/or Government contributions are 
not timely submitted to OPM for any reason

[[Page 2526]]

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 employing agency must 
correct the error by submitting the correct amounts (including both 
employee and agency shares) to OPM as soon as possible. Even if the 
agency 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, an employing agency or former 
employing agency will pay a refund of erroneous additional withholdings 
for service that is found not to have been covered service. If an 
individual has paid to OPM a deposit or redeposit, including the 
additional amount required for covered service, and the deposit 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. 842.908  Mandatory separation.

    (a) Effective on and after October 17, 1999, the mandatory 
separation provisions of 5 U.S.C. 8425 apply to all nuclear materials 
couriers 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.


Sec. 842.909  Review of decisions.

    The following decisions may be appealed to the Merit Systems 
Protection Board under procedures prescribed by the Board:
    (a) The final decision of the Department of Energy issued to an 
employee, former employee, or survivor as the result of a request for 
determination filed under Sec. 842.906; and
    (b) The final decision of the Department of Energy that a break in 
service referred to in Sec. 842.904(a)(2) did not begin with an 
involuntary separation within the meaning of 5 U.S.C. 8414(b)(1)(A).


Sec. 842.910  Oversight of coverage determinations.

    (a) Upon deciding that a position is a nuclear materials courier 
position, the agency head must notify OPM (Attention: Associate 
Director for Retirement and Insurance) stating the title of each 
position, 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, or that an individual's service in any other position is 
creditable under 5 U.S.C. 8412(d).
    (b) The Department of Energy must establish a file containing each 
coverage determination made by the agency head under Sec. 842.903 and 
Sec. 842.904, and all background material used in making the 
determination.
    (c) Upon request by OPM, the Department of Energy 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 Energy must submit to 
OPM a list of all covered positions and any other pertinent information 
requested.
[FR Doc. 00-1051 Filed 1-14-00; 8:45 am]
BILLING CODE 6325-01-P