This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

2521

Vol. 65, No. 11

Tuesday, January 18, 2000

OFFICE OF PERSONNEL

MANAGEMENT

5 CFR Parts 831 and 842

RIN 3206–AI66

Retirement Eligibility for Nuclear

Materials Couriers Under CSRS and

FERS

AGENCY: Office of Personnel

Management.

ACTION: Interim rule with request for

comments.

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

2522 Federal Register / Vol. 65, No. 11 / Tuesday, January 18, 2000 / Rules and Regulations

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; § 831.102 also

issued under 5 U.S.C. 8334; § 831.106 also

issued under 5 U.S.C. 552a; § 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; § 831.201(b)(1) also issued

under 5 U.S.C. 8347(g); § 831.201(b)(6) also

issued under 5 U.S.C. 7701(b)(2); § 831.201(g)

also issued under sections 11202(f), 11232(e),

and 11246(b) of Pub. L. 105–33, 111 Stat.

251; § 831.201(g) also issued under sections

7(b) and 7(e) of Pub. L. 105–274, 112 Stat.

2419; § 831.201(i) also issued under sections

3 and 7(c) of Pub. L. 105–274, 112 Stat. 2419;

§ 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; § 831.303 also issued under 5 U.S.C.

8334(d)(2); § 831.502 also issued under

section 1(3), E.O. 11228, 3 CFR 1964–1965

Comp. p. 317; § 831.663 also issued under 5

U.S.C. 8339(j) and (k)(2); §§ 831.663 and

831.664 also issued under section 11004

(c)(2) of Pub. L. 103–66, 107 Stat. 412;

§ 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;

§ 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:

§ 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

§ 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.

§ 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.

§ 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

Federal Register / Vol. 65, No. 11 / Tuesday, January 18, 2000 / Rules and Regulations 2523

primary position is not covered under

the provisions of 5 U.S.C. 8336(c).

§ 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).

§ 831.805 Evidence.

(a) The Secretary of Energy’s

determination under § 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 § 831.802.

(b) A determination under § 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.

§ 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.

§ 831.807 Withholdings and contributions.

(a) During the service covered under

the conditions established by § 831.803

and § 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.

§ 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.

2524 Federal Register / Vol. 65, No. 11 / Tuesday, January 18, 2000 / Rules and Regulations

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.

§ 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).

§ 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 § 831.806;

and

(b) The final decision of the

Department of Energy that a break in

service referred to in § 831.804(a)(2) did

not begin with an involuntary

separation within the meaning of 5

U.S.C. 8336(d)(1).

§ 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 § 831.803 and § 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); §§ 842.104

and 842.106 also issued under 5 U.S.C.

8461(n); § 842.104 also issued under sections

3 and 7(c) of Pub. L. 105–274, 112 Stat. 2419;

§ 842.105 also issued under 5 U.S.C.

8402(c)(1) and 7701(b)(2); § 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; § 842.107

also issued under sections 11202(f), 11232(e),

and 11246(b) of Pub. L. 105–33, 111 Stat.

251; § 842.107 also issued under section 7(b)

of Pub. L. 105–274, 112 Stat. 2419; § 842.108

also issued under section 7(e) of Pub. L. 105–

274, 112 Stat. 2419; § 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; §§ 842.604 and 842.611 also

issued under 5 U.S.C. 8417; § 842.607 also

issued under 5 U.S.C. 8416 and 8417;

§ 842.614 also issued under 5 U.S.C. 8419;

§ 842.615 also issued under 5 U.S.C. 8418;

§ 842.703 also issued under section

7001(a)(4) of Pub. L. 101–508, 104 Stat. 1388;

§ 842.707 also issued under section 6001 of

Pub. L. 100–203, 101 Stat. 1300; § 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:

§ 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:

§ 842.405 Air traffic controllers,

firefighters, law enforcement officers, and

nuclear materials couriers.

The annuity of an air traffic controller

retiring under § 842.207 or a law

enforcement officer, firefighter or

nuclear materials courier retiring under

§ 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

§ 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.

§ 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

Federal Register / Vol. 65, No. 11 / Tuesday, January 18, 2000 / Rules and Regulations 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.

§ 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).

§ 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).

§ 842.905 Evidence.

(a) The Secretary of Energy’s

determination under § 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 § 842.902.

(b) A determination under § 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.

§ 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.

§ 842.907 Withholding and contributions.

(a) During service covered under the

conditions established by § 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

2526 Federal Register / Vol. 65, No. 11 / Tuesday, January 18, 2000 / Rules and Regulations

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.

§ 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.

§ 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 § 842.906;

and

(b) The final decision of the

Department of Energy that a break in

service referred to in § 842.904(a)(2) did

not begin with an involuntary

separation within the meaning of 5

U.S.C. 8414(b)(1)(A).

§ 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 § 842.903 and § 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

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 959

[Docket No. FV00–959–1 FR]

Onions Grown in South Texas;

Decreased Assessment Rate

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Final rule.

SUMMARY: This rule decreases the

assessment rate established for the

South Texas Onion Committee

(Committee) for the 1999–2000 and

subsequent fiscal periods from $0.05 to

$0.04 per 50-pound container or

equivalent of onions handled. The

Committee is responsible for local

administration of the marketing order

which regulates the handling of onions

grown in South Texas. Authorization to

assess onion handlers enables the

Committee to incur expenses that are

reasonable and necessary to administer

the program. The fiscal period began

August 1 and ends July 31. The

assessment rate will remain in effect

indefinitely unless modified,

suspended, or terminated.

EFFECTIVE DATE: January 19, 2000.

FOR FURTHER INFORMATION CONTACT:

Cynthia Cavazos, Marketing Assistant,

McAllen Marketing Field Office, Fruit

and Vegetable Programs, AMS, USDA,

1313 E. Hackberry; telephone: (956)

682–2833, Fax: (956) 682–5942; or

George Kelhart, Technical Advisor,

Marketing Order Administration

Branch, Fruit and Vegetable Programs,

AMS, USDA, room 2525–S, P.O. Box

96456, Washington, DC 20090–6456;

telephone: (202) 720–2491, Fax: (202)

720–5698.

Small businesses may request

information on complying with this

regulation by contacting Jay Guerber,

Marketing Order Administration

Branch, Fruit and Vegetable Programs,

AMS, USDA, P.O. Box 96456, room

2525–S, Washington, DC 20090–6456;

telephone (202) 720–2491, Fax: (202)

720–5698, or E-mail:

Jay.Guerber@usda.gov.

SUPPLEMENTARY INFORMATION: This rule

is issued under Marketing Agreement

No. 143 and Order No. 959, both as

amended (7 CFR part 959), regulating

the handling of onions grown in South

Texas, hereinafter referred to as the

‘‘order.’’ The marketing agreement and

order are effective under the

Agricultural Marketing Agreement Act

of 1937, as amended (7 U.S.C. 601–674),

hereinafter referred to as the ‘‘Act.’’