[Federal Register Volume 75, Number 190 (Friday, October 1, 2010)]
[Proposed Rules]
[Pages 60643-60651]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-24496]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 75, No. 190 / Friday, October 1, 2010 / 
Proposed Rules

[[Page 60643]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 831, 841, and 842

RIN 3206-AL69


Customs and Border Protection Officer Retirement

AGENCY: Office of Personnel Management.

ACTION: Proposed rule.

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SUMMARY: The Office of Personnel Management (OPM) proposes to amend its 
regulations, to reflect changes in the retirement benefits available to 
customs and border protection officers under the Civil Service 
Retirement System (CSRS) and the Federal Employees' Retirement System 
(FERS). These proposed rules incorporate amendments to CSRS and FERS 
retirement law pursuant to section 535 of the Department of Homeland 
Security Appropriations Act, 2008. The Act provides early retirement 
and enhanced annuity benefits for customs and border protection 
officers employed by the United States Department of Homeland Security 
under CSRS and FERS; requires an increase in the percentage rate of 
withholdings from the basic pay of customs and border protection 
officers; and establishes mandatory retirement of customs and border 
protection officers at age 57.

DATES: We must receive your comments by November 1, 2010.

ADDRESSES: You may submit comments, identified by docket number or RIN 
number 3206-AL69, by any of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#0665696b64697e4669766b28616970"><span class="__cf_email__" data-cfemail="99faf6f4fbf6e1d9f6e9f4b7fef6ef">[email protected]</span></a>. Include RIN number 3206-AL69 in 
the subject line of the message.
    <bullet> Mail: Patrick Jennings, Retirement Policy, Office of 
Personnel Management, 1900 E Street NW., Washington, DC 20415-3200.

FOR FURTHER INFORMATION CONTACT: Patrick Jennings, (202) 606-0299.

SUPPLEMENTARY INFORMATION: Section 535 of the Department of Homeland 
Security Appropriations Act, 2008 (the Act), Division E of the 
Consolidated Appropriations Act, 2008, Public Law 110-161 (approved 
December 26, 2007), 112 Stat. 1844, enacts new human resource 
management provisions applicable to specified Customs and Border 
Protection employees. It provides that individuals defined as ``customs 
and border protection officers'' will be prospectively added as a new 
group with special human resource management provisions essentially 
similar to those applicable to other special retirement groups 
including law enforcement officers, nuclear materials couriers, and 
firefighters. The principal elements of those structures include: (1) A 
maximum entry age (to permit a career to be completed by mandatory 
retirement age); (2) Early optional retirement eligibility; (3) 
Enhanced annuity provisions (to make a shorter career economically 
feasible); (4) Mandatory retirement (generally at age 57, but with 
agency authority to extend to age 60), and (5) Higher employer and 
employee retirement contribution rates. The effective date of section 
535 is July 6, 2008.
    In addition to the provisions that will be continuing and that will 
apply to individuals employed as customs and border protection officers 
on its effective date, section 535 of the Act also includes unique 
provisions applicable to individuals who are customs and border 
protection officers on its effective date. These incumbents will not be 
subject to mandatory retirement, but are eligible for partial annuity 
computation credit for future service as a customs and border 
protection officer.

Who Is Covered

    The same definition is applicable to both FERS and CSRS:

    The term ``customs and border protection officer'' means an 
employee in the Department of Homeland Security (A) who holds a 
position within the GS-1895 job series (determined applying the 
criteria in effect as of September 1, 2007) or any successor 
position, and (B) whose duties include activities relating to the 
arrival and departure of persons, conveyances, and merchandise at 
ports of entry, including any such employee who is transferred 
directly to a supervisory or administrative position in the 
Department of Homeland Security after performing such duties (as 
described in subparagraph (B)) in 1 or more positions (as described 
in subparagraph (A)) for at least 3 years.

This definition, while similar to the statutory definition of ``law 
enforcement officer,'' contains important differences that distinguish 
it from that definition. For the first time in special retirement 
coverage definitions, there is specific reference to a Federal 
occupational series--the Customs and Border Protection job series (GS-
1895). Two points are significant in this regard. First, only positions 
in this series are eligible for ``primary'' coverage. Second, in 
addition to position classification, there is an additional requirement 
that the duties of the specific position must include specified 
activities. Thus, not all positions in the GS-1895 job series will meet 
the requirements for primary coverage, although it is probable that 
those that are not eligible for primary coverage will generally meet 
the requirements for secondary (supervisory or administrative) 
coverage.
    The provision for extending coverage to ``any successor position'' 
is also novel. Primary coverage is based upon the GS-1895 series as of 
September 1, 2007, and it is possible that position classification 
standards and/or the manner in which positions are described may be 
changed in the future. The logical interpretation is that this is 
intended to provide authority for coverage should positions with the 
same elements currently classified in the GS-1895 series be assigned to 
another series at some time in the future so long as they would have 
been covered under the GS-1895 series as it existed on September 1, 
2007.
    Secondary coverage is not limited to positions in the GS-1895 
series. However, section 535 of the Act permits secondary coverage 
using language equivalent to that applicable to other special 
retirement groups (i.e., law enforcement officers, firefighters, etc.). 
Thus, as in the law enforcement officer retirement regulations, 
secondary coverage will generally be limited to continuous employment 
in supervisory and/or administrative positions that could not be 
performed by individuals without prior experience in a customs and 
border protection officer primary position.
    As with other special retirement groups, the final authority on 
position coverage for retirement purposes is OPM, although coverage 
determinations are delegated to the Department of

[[Page 60644]]

Homeland Security. Statutorily, OPM is also the final authority on 
position classification, the other aspect of retirement coverage 
eligibility.

Incumbent Employees

    Section 535 of the Act has provisions concerning mandatory 
retirement and annuity computation that are applicable to individuals 
who, depending upon the provision, were first appointed as a customs 
and border protection officer prior to the effective date, or are 
customs and border protection officers on the effective date.
    Mandatory retirement: Sections 831.1608(c) and 842.1006(d) of the 
proposed rule address the provisions of section 535(e)(2)(A) of the 
Act, which provide that mandatory retirement ``shall not apply to an 
individual first appointed as a customs and border protection officer 
before the effective date'' of July 6, 2008. Unlike another provision 
of section 535, this does not specify that the individual has to be a 
customs and border protection officer on the effective date. Thus, an 
individual previously appointed as a customs and border protection 
officer before July 6, 2008, but not employed on that date would not be 
subject to mandatory retirement upon returning to customs and border 
protection officer employment following that break in service.
    Prior service and secondary coverage: Sections 831.1604(b) and 
842.1003(c) of the proposed rule address the provisions of section 
535(e)(2)(B) of the Act, which provide special rules for treatment of 
pre-enactment customs and border protection officer service. These 
special rules are relevant to secondary customs and border protection 
officer coverage determinations. Section 535 of the Act is explicit 
that its provisions are prospective, stating in section 535(e)(2)(B)--

    (B) TREATMENT OF PRIOR CBPO SERVICE.--
    (i) GENERAL RULE.--Except as provided in clause (ii), nothing in 
this section or any amendment made by this section shall be 
considered to apply with respect to any service performed as a 
customs and border protection officer before the effective date 
under paragraph (1).
    (ii) EXCEPTION.--Service described in section 8331(31) or 
8401(36) of title 5, United States Code (as amended by this section) 
rendered before the effective date under paragraph (1) may be taken 
into account to determine if an individual who is serving on or 
after such effective date then qualifies as a customs and border 
protection officer by virtue of holding a supervisory or 
administrative position in the Department of Homeland Security.

    The meaning of clause (ii) is that if an individual is in a 
secondary (supervisory or administrative) position on July 6, 2008, 
that individual's eligibility to be a customs and border protection 
officer will be determined by looking back at the individual's 
employment history to determine whether the requirements for coverage 
would have been met if the provisions of 535 had been in effect during 
the earlier employment history.
    There is one potential issue in this regard resulting from the fact 
that the GS-1895 series dates back only to July of 2004, and that 
standard is the one in effect on September 1, 2007. Thus, a cursory 
reading of this provision could be interpreted to mean that only if 
there has been three years of post-July 2004 primary service actually 
classified in the GS-1895 series followed by a direct transfer to a 
secondary position can an individual in a secondary position be found 
to be a customs and border protection officer on July 6, 2008. This 
would permit such coverage only if an individual transferred into a 
secondary position on or after July 1, 2007. This would mean that some 
customs and border protection officers in secondary supervisory and 
administrative customs and border protection officer positions on July 
6, 2008, would not be entitled to retirement coverage under the law 
when the law went into effect.
    Despite the lack of relevant legislative history, such a rigid 
interpretation would be inconsistent with the statutory scheme. There 
is however an alternative interpretation yielding a reasonable result, 
which OPM has adopted for this proposed rule. Prior to the 
establishment of the GS-1895 series, it was preceded by two precursor 
position series, GS-1816, Immigration Inspection, and GS-1890, Customs 
Inspection. Most positions classified under those series would now be 
classified under the GS-1895 series. Accordingly, for purposes of 
evaluating whether pre-July 2004 service is qualifying as primary 
service, positions classified prior to July 2004 in either the GS-1816 
or GS-1890 series should be considered as meeting the requirement of 
being a ``position within the GS-1895 job series (determined applying 
the criteria in effect as of September 1, 2007).'' However, merely 
being in one of those two series does not mean that the position was a 
primary position. The additional requirements relating to the type of 
work performed must also be satisfied.

Proportional Annuity Computation

    Sections 831.1612(c) and 842.1009(c) of the proposed rule address 
the unique provisions of section 535(e)(2)(C) of the Act, which provide 
for proportional annuity computations that are applicable only to 
individuals who are customs and border protection officers on July 6, 
2008. Unlike the mandatory retirement exemption, the provisions of 
section 535(e)(2)(C) of the Act do not apply to a previously appointed 
customs and border protection officer who is not employed as a customs 
and border protection officer on July 6, 2008. A previously employed 
customs and border protection officer who returns after July 6, 2008, 
would not be eligible, nor would a U.S. Customs and Border Protection 
employee not in a customs and border protection officer position on 
July 6, 2008. Under the provisions of section 535(e)(2)(C), individuals 
do not receive credit for pre-July 6, 2008, service counted towards 
special retirement eligibility or computation. However, they are 
eligible to have post-July 5, 2008 customs and border protection 
officer service credited in their annuity computation at a higher rate 
even though they may not meet the requirements for special customs and 
border protection officer retirement. Service in other special 
retirement categories such as law enforcement officer or firefighter 
cannot be added to customs and border protection officer service for 
use in a proportional annuity computation.
    Thus, a customs and border protection officer employed on July 6, 
2008, and covered by CSRS would have all full months of customs and 
border protection officer service computed using an annual multiplier 
of 2.5 percent per year of such service up to 20 years. A customs and 
border protection officer employed on July 6, 2008, and covered by FERS 
would have all full months of customs and border protection officer 
service computed using an annual multiplier of 1.7 percent per year of 
such service up to 20 years.

Elections

    Sections 831.1612(a) and 842.1009(a) of the proposed rule address 
the provisions of section 535(e)(3) of the Act, which require that 
individuals who are customs and border protection officers on December 
26, 2007, must be given the right to elect to be covered by or excluded 
from its provisions when it becomes effective on July 6, 2008. For such 
incumbents, section 535 provides a substantial lifetime annuity 
increase in return for a small increase in retirement contributions 
deducted from pay. Incumbents on July 6, 2008, are exempt from 
mandatory retirement. Although the Department of Homeland

[[Page 60645]]

Security has already provided affected employees with the opportunity 
to elect to be subject to the customs and border protection officer 
provisions, the proposed rule describes the terms of the election 
opportunity provided by the Department of Homeland Security in the 
event that there is any question about an employee's election 
opportunity in the future.

Current Law Enforcement Officers

    Sections 831.1612(a) and 842.1009(a) of the proposed rule address 
the provisions of section 535(e)(5) of the Act, which specifies that 
nothing in section 535 or any amendment made by it shall be considered 
to afford any election or to otherwise apply with respect to anyone who 
as of December 25, 2007, was a law enforcement officer employed by U.S. 
Customs and Border Protection.

Technical and Conforming Amendments to Existing Regulations

    The proposed rule makes various technical and conforming amendments 
to 5 CFR 831.502, 841.403, 841.503, 842.208, 842.403, 842.801, and 
842.901 to add references to customs and border protection officers. 
Section 831.502 is also being reissued in its entirety to correct 
typographical errors in the existing paragraph designations.

Executive Order 12866, Regulatory Review

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

Regulatory Flexibility Act

    I certify that this regulation will not have a significant economic 
impact on a substantial number of small entities because the regulation 
will only affect retirement payments to retired employees, spouses, 
former spouses, and insurable interest survivors.

List of Subjects in 5 CFR Parts 831, 841 and 842

    Administrative practice and procedure, Air traffic controllers, 
Alimony, Claims, Disability benefits, Firefighters, Government 
employees, Income taxes, Intergovernmental relations, Law enforcement 
officers, Pensions, Reporting and recordkeeping requirements, 
Retirement.

Office of Personnel Management.
John Berry,
Director.
    Accordingly, the Office of Personnel Management is proposing to 
amend parts 831, 841, and 842 of title 5 of the Code of Federal 
Regulations 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. 
831.108 also issued under 5 U.S.C. 8336(d)(2); Sec. 831.114 also 
issued under 5 U.S.C. 8336(d)(2), and Sec. 1313(b)(5) of Pub. L. 
107-296, 116 Stat. 2135; Secs. 831.115 and 831.116 also issued under 
5 U.S.C. 8346(a); Sec. 831.201(b)(1) also issued under 5 U.S.C. 
8347(g); Sec. 831.201(b)(6) also issued under 5 U.S.C. 7701(b)(2); 
Sec. 831.201(g) also issued under Secs. 11202(f), 11232(e), and 
11246(b) of Pub. L. 105-33, 111 Stat. 251; Sec. 831.201(g) also 
issued under Sec. 7(b) and (e) of Pub. L. 105-274, 112 Stat. 2419; 
Sec. 831.201(i) also issued under Secs. 3 and 7(c) of Pub. L. 105-
274, 112 Stat. 2419; Sec. 831.204 also issued under Sec. 102(e) of 
Pub. L. 104-8, 109 Stat. 102, as amended by Sec. 153 of Pub. L. 104-
134, 110 Stat. 1321; Sec. 831.205 also issued under Sec. 2207 of 
Pub. L. 106-265, 114 Stat. 784; Sec. 831.301 also issued under Sec. 
2203 of Pub. L. 106-265, 114 Stat. 780; Sec. 831.303 also issued 
under 5 U.S.C. 8334(d)(2) and Sec. 2203 of Pub. L. 106-235, 114 
Stat. 780; Sec. 831.502 also issued under 5 U.S.C. 8337, and section 
1(3), E.O. 11228, 3 CFR 1965-1965 Comp. p. 317; Sec. 831.663 also 
issued under section 8339(j) and (k)(2); Secs. 831.663 and 831.664 
also issued under Sec. 11004(c)(2) of Pub. L. 103-66, 107 Stat. 412; 
Sec. 831.682 also issued under Sec. 201(d) of Pub. L. 99-251, 100 
Stat. 23; Sec. 831.912 also issued under Sec. 636 of Appendix C to 
Pub. L. 106-554, 114 Stat. 2763A-164; Subpart P also issued under 
Sec. 535(d) of Title V of Division E of Pub. L. 110-161, 121 Stat. 
2042; Subpart V also issued under 5 U.S.C. 8343a and Sec. 6001 of 
Pub. L. 100-203, 101 Stat. 1330-275; Sec. 831.2203 also issued under 
Sec. 7001(a)(4) of Pub. L. 101-508, 104 Stat. 1388-328.

    2. Revise 831.502 to read as follows:


Sec.  831.502  Automatic separation; exemption.

    (a) When an employee meets the requirements for age retirement on 
any day within a month, he is subject to automatic separation at the 
end of that month. The department or agency shall notify the employee 
of the automatic separation at least 60 days in advance of the 
separation. If the department or agency fails through error to give 
timely notice, the employee may not be separated without his consent 
until the end of the month in which the notice expires.
    (b) The head of the agency, when in his or her judgment the public 
interest so requires, may exempt a law enforcement officer, 
firefighter, nuclear materials courier, or customs and border 
protection officer from automatic separation until that employee 
becomes 60 years of age.
    (c) The Secretary of Transportation and the Secretary of Defense, 
under such regulations as each may prescribe, may exempt an air traffic 
controller having exceptional skills and experience as a controller 
from automatic separation until that controller becomes 61 years of 
age.
    (d) When a department or agency lacks authority and wishes to 
secure an exemption from automatic separation for one of its employees 
other than a Presidential appointee, beyond the age(s) provided by 
statute, i.e., age 60 for a law enforcement officer, firefighter, 
nuclear materials courier, or customs and border protection officer, 
and age 61 for an air traffic controller, the department or agency head 
shall submit a recommendation to that effect to OPM.
    (1) The recommendation shall contain:
    (i) A statement that the employee is willing to remain in service;
    (ii) A statement of facts tending to establish that his/her 
retention would be in the public interest;
    (iii) The period for which the exemption is desired, which period 
may not exceed 1 year; and,
    (iv) The reasons why the simpler method of retiring the employee 
and immediately reemploying him or her is not being used.
    (2) The recommendation shall be accompanied by a medical 
certificate showing the physical fitness of the employee to perform his 
or her work.
    (e) OPM may approve an exemption only before the automatic 
separation date applicable to the employee. For this reason, the 
department or agency shall forward the recommendation to OPM at least 
30 days before this separation date.
    3. Add subpart P to part 831 to read as follows:
Subpart P--Customs and Border Protection Officers
Sec.
831.1601 Applicability and purpose.
831.1602 Definitions.
831.1603 Conditions for coverage in primary positions.
831.1604 Conditions for coverage in secondary positions.
831.1605 Evidence.
831.1606 Requests from individuals.
831.1607 Withholdings and contributions.
831.1608 Mandatory separation.
831.1609 Reemployment.
831.1610 Review of decisions.
831.1611 Oversight of coverage determinations.
831.1612 Elections of Retirement Coverage, exclusions from 
retirement coverage, and proportional annuity computations.

[[Page 60646]]

Subpart P--Customs and Border Protection Officers


Sec.  831.1601  Applicability and purpose.

    (a) This subpart contains regulations of the Office of Personnel 
Management (OPM) to supplement 5 U.S.C. 8336(c), which establishes 
special retirement eligibility for customs and border protection 
officers employed under the Civil Service Retirement System; 5 U.S.C. 
8331(3)(C) and (G), pertaining to basic pay; 5 U.S.C. 8334(a)(1) and 
(c), pertaining to deductions, contributions, and deposits; 5 U.S.C. 
8335(b), pertaining to mandatory retirement; and 5 U.S.C. 8339(d), 
pertaining to computation of annuity.
    (b) The regulations in this subpart are issued pursuant to the 
authority given to OPM in 5 U.S.C. 8347 to prescribe regulations to 
carry out subchapter III of chapter 83 of title 5 of the United States 
Code, and in 5 U.S.C. 1104 to delegate authority for personnel 
management to the heads of agencies, and pursuant to the authority 
given the Director of OPM in Section 535(d) of the Department of 
Homeland Security Appropriations Act, 2008, Division E of Public Law 
110-161, 121 Stat. 1844.


Sec.  831.1602  Definitions.

    In this subpart--
    Agency head means the Secretary of the U.S. Department of Homeland 
Security. For purposes of an approval of coverage under this subpart, 
agency head is also deemed to include the designated representative of 
the Secretary of U.S. Department of Homeland Security (DHS), except 
that the designated representative must be a DHS Headquarters official 
who reports directly to the Secretary of the U.S. Department of 
Homeland Security, or to the Deputy Secretary of the U.S. Department of 
Homeland Security, and who is the sole such representative for the 
entire department. For the purposes of a denial of coverage under this 
subpart, agency head is also deemed to include the designated 
representative of the Secretary of the U.S. Department of Homeland 
Security at any level within the U.S. Department of Homeland Security.
    Customs and border protection officer means an employee in the U.S. 
Department of Homeland Security occupying a position within the Customs 
and Border Protection Officer (GS-1895) job series (determined applying 
the criteria in effect as of September 1, 2007) or any successor 
position, and whose duties include activities relating to the arrival 
and departure of persons, conveyances, and merchandise at ports of 
entry. Also included in this definition is an employee engaged in this 
activity who is transferred directly to a supervisory or administrative 
position in the Department of Homeland Security after performing such 
duties in 1 or more positions within the GS-1895 job series (determined 
applying the criteria in effect as of September 1, 2007), or any 
successor position, for at least 3 years.
    First-level supervisors are employees classified as supervisors who 
have direct and regular contact with the employees they supervise. 
First-level supervisors do not have subordinate supervisors. A first-
level supervisor may occupy a primary position or a secondary position 
if the appropriate definition is met.
    Primary position means a position classified within the Customs and 
Border Protection Officer (GS-1895) job series (determined applying the 
criteria in effect as of September 1, 2007) or any successor position 
whose duties include the performance of work directly connected with 
activities relating to the arrival and departure of persons, 
conveyances, and merchandise at ports of entry.
    Secondary position means a customs and border protection officer 
position that is either--
    (1) Supervisory; i.e., a position whose primary duties are as a 
first-level supervisor of customs and border protection officers in 
primary positions; or
    (2) Administrative; i.e., an executive, managerial, technical, 
semiprofessional, or professional position for which experience in a 
primary customs and border protection officer position is a 
prerequisite.


Sec.  831.1603  Conditions for coverage in primary positions.

    (a) An employee's service in a position that has been determined by 
the employing agency head to be a primary customs and border protection 
officer position is covered under the provisions of 5 U.S.C. 8336(c).
    (b) An employee who is not in a primary position, nor covered while 
in a secondary position, and who is detailed or temporarily promoted to 
a primary position is not covered under the provisions of 5 U.S.C. 
8336(c) for any purpose under this subpart.


Sec.  831.1604  Conditions for coverage in secondary positions.

    (a) An employee's service in a position that has been determined by 
the employing agency head to be a secondary position is covered under 
the provisions of 5 U.S.C. 8336(c) if all of the following criteria are 
met:
    (1) The employee is transferred directly (i.e., without a break in 
service exceeding 3 days) from a primary position to a secondary 
position; and
    (2) The employee has completed 3 years of service in a primary 
position, including a position for which no CSRS deductions were 
withheld; and
    (3) If applicable, the employee has been continuously employed in 
secondary positions since transferring from a primary position without 
a break in service exceeding 3 days, except that a break in employment 
in secondary positions which begins with an involuntary separation (not 
for cause), within the meaning of 8336(d)(1) of title 5, United States 
Code, is not considered in determining whether the service in secondary 
positions is continuous for this purpose.
    (b) For the purpose of applying the criteria at paragraphs (a)(1) 
through (3) of this section to evaluate transfers, service, and 
employment periods that occurred before September 1, 2007--
    (1) A primary position is deemed to include:
    (i) A position whose duties included the performance of work 
directly connected with activities relating to the arrival and 
departure of persons, conveyances, and merchandise at ports of entry 
that was classified within the Immigration Inspector Series (GS-1816), 
Customs Inspector Series (GS-1890), or any other series which the 
agency head determines were predecessor series to the Customs and 
Border Protection Series (GS-1895) series, and that would have been 
classified under the GS-1895 series had it then existed; and
    (ii) A position within the Customs and Border Protection Series 
(GS-1895) series whose duties included the performance of work directly 
connected with activities relating to the arrival and departure of 
persons, conveyances, and merchandise at ports of entry.
    (2) A secondary position is deemed to include:
    (i) A first-level supervisor of an employee in a position described 
at paragraph (b)(1)(i) or (b)(1)(ii) of this section; or
    (ii) An executive, managerial, technical, semiprofessional, or 
professional position for which experience in a position described at 
paragraph (b)(1)(i) or (b)(1)(ii) of this section is a mandatory 
prerequisite.
    (c) An employee who is not in a primary position, nor covered while 
in a secondary position, and who is detailed or temporarily promoted to 
a secondary position is not covered under the provisions of 5 U.S.C. 
8336(c) for any purpose under this subpart.

[[Page 60647]]

Sec.  831.1605  Evidence.

    (a) An agency head's determination under Sec. Sec.  831.1603(a) and 
831.1604(a) must be based solely on the official position description 
of the position in question and any other official description of 
duties and qualifications.
    (b) If an employee is in a position not subject to the one-half 
percent higher withholding rate of 5 U.S.C. 8334(c), and the employee 
does not, within 6 months after entering the position or after any 
significant change in the position, formally and in writing seek a 
determination from the employing agency that his position is properly 
covered by the higher withholding rate, the agency head's determination 
that the service was not so covered at the time of the service is 
presumed to be correct. This presumption may be rebutted by a 
preponderance of the evidence that the employee was unaware of his or 
her status or was prevented by cause beyond his or her control from 
requesting that the official status be changed at the time the service 
was performed.


Sec.  831.1606  Requests from individuals.

    (a) An employee who requests credit for service under 5 U.S.C. 
8336(c) bears the burden of proof with respect to that service, and 
must provide the employing agency with all pertinent information 
regarding duties performed.
    (b) An employee who is currently serving in a position that has not 
been approved as a primary or secondary position, but who believes that 
his or her service is creditable as service in a primary or secondary 
position may request the agency head to determine whether or not the 
employee's current service should be credited and, if it qualifies, 
whether it should be credited as service in a primary or secondary 
position. A written request for current service must be made within 6 
months after entering the position or after any significant change in 
the position.
    (c) A current or former employee (or the survivor of a former 
employee) who believes that a period of past service in an unapproved 
position qualifies as service in a primary or secondary position and 
meets the conditions for credit may request the agency head to 
determine whether or not the employee's past service should be credited 
and, if it qualifies, whether it should be credited as service in a 
primary or secondary position. A written request for past service must 
be made no later than June 30, 2011.
    (d) The agency head may extend the time limit for filing under 
paragraph (b) or (c) of this section when, in the judgment of such 
agency head, the individual shows that he or she was prevented by 
circumstances beyond his or her control from making the request within 
the time limit.


Sec.  831.1607  Withholdings and contributions.

    (a) During the service covered under the conditions established by 
Sec.  831.1603 and Sec.  831.1604, the U.S. Department of Homeland 
Security will deduct and withhold from the employee's base pay the 
amount required under 5 U.S.C. 8334(a) for such positions and submit 
that amount, together with agency contributions required by 5 U.S.C. 
8334(a), to OPM in accordance with payroll office instructions issued 
by OPM.
    (b) If the correct withholdings and/or Government contributions are 
not submitted to OPM for any reason whatsoever, the U.S. Department of 
Homeland Security must correct the error by submitting the correct 
amounts (including both employee and agency shares) to OPM as soon as 
possible. Even if the U.S. Department of Homeland Security waives 
collection of the overpayment of pay under any waiver authority that 
may be available for this purpose, such as 5 U.S.C. 5584, or otherwise 
fails to collect the debt, the correct amount must still be submitted 
to OPM without delay as soon as possible.
    (c) Upon proper application from an employee, former employee or 
eligible survivor of a former employee, the U.S. Department of Homeland 
Security 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 or 
redeposit is later determined to be erroneous because the service was 
not covered service, OPM will pay the refund, upon proper application, 
to the individual, without interest.
    (d) The additional employee withholding and agency contribution for 
covered or creditable service properly made as required under 5 U.S.C. 
8334(a)(1) or deposited under 5 U.S.C. 8334(c) are not separately 
refundable, even in the event that the employee or his or her survivor 
does not qualify for a special annuity computation under 5 U.S.C. 
8339(d).
    (e) While an employee who does not hold a primary or secondary 
position is detailed or temporarily promoted to a primary or secondary 
position, the additional withholdings and agency contributions will not 
be made. While an employee who does hold a primary or secondary 
position is detailed or temporarily promoted to a position which is not 
a primary or secondary position, the additional withholdings and agency 
contributions will continue to be made.


Sec.  831.1608  Mandatory separation.

    (a) Except as provided in paragraph (c), the mandatory separation 
provisions of 5 U.S.C. 8335(b) apply to customs and border protection 
officers appointed in primary and secondary positions. A mandatory 
separation under section 8335(b) is not an adverse action under part 
752 of this chapter or a removal action under part 359 of this chapter. 
Section 831.502 provides the procedures for requesting an exemption 
from mandatory separation.
    (b) In the event an employee is separated mandatorily under 5 
U.S.C. 8335(b), or is separated for optional retirement under 5 U.S.C. 
8336(c), and OPM finds that all or part of the minimum service required 
for entitlement to immediate annuity was in a position which did not 
meet the requirements of a primary or secondary position and the 
conditions set forth in this subpart, such separation will be 
considered erroneous.
    (c) The customs and border protection officer mandatory separation 
provisions of 5 U.S.C. 8335(b) do not apply to an individual first 
appointed as a customs and border protection officer before July 6, 
2008.


Sec.  831.1609  Reemployment.

    An employee who has been mandatorily separated under 5 U.S.C. 
8335(b) is not barred from reemployment in any position except a 
primary position after age 60. Service by a reemployed annuitant is not 
covered by the provisions of 5 U.S.C. 8336(c).


Sec.  831.1610  Review of decisions.

    (a) The final decision of the agency head issued to an employee as 
the result of a request for determination filed under Sec.  831.1606 
may be appealed to the Merit Systems Protection Board under procedures 
prescribed by the Board.
    (b) The final decision of the agency head denying an individual 
coverage while serving in an approved secondary position because of 
failure to meet the conditions in Sec.  831.1604(a) may be appealed to 
the Merit Systems Protection Board under procedures prescribed by the 
Board.


Sec.  831.1611  Oversight of coverage determinations.

    (a) Upon deciding that a position is a customs and border 
protection officer position, the agency head must notify

[[Page 60648]]

OPM (Attention: Director, Planning and Policy Analysis, or such other 
official as may be designated) stating the title of each position, 
occupational series, position description number (or other unique 
identifier), the number of incumbents, and whether the position is 
primary or secondary. The Director of OPM retains the authority to 
revoke the agency head's determination that a position is a primary or 
secondary position.
    (b) The Department of Homeland Security must establish and maintain 
a file containing all coverage determinations made by the agency head 
under Sec.  831.1603 and Sec.  831.1604, and all background material 
used in making the determination.
    (c) Upon request by OPM, the U.S. Department of Homeland Security 
will make available the entire coverage determination file for OPM to 
audit to ensure compliance with the provisions of this subpart.
    (d) Upon request by OPM, the Department of Homeland Security must 
submit to OPM a list of all covered positions and any other pertinent 
information requested.


Sec.  831.1612  Elections of Retirement Coverage, exclusions from 
retirement coverage, and proportional annuity computations.

    (a) Elections of coverage. (1) The U.S. Department of Homeland 
Security must provide an employee who is a customs and border 
protection officer on December 26, 2007, the opportunity to elect to be 
treated as a customs and border protection officer under section 535(a) 
and (b) of the Department of Homeland Security Appropriations Act, 
2008, Public Law 110-161, 121 Stat. 2042).
    (2) An election under this paragraph (a) is valid only if made on 
or before June 22, 2008.
    (3) An individual eligible to make an election under this paragraph 
who fails to make such an election on or before June 22, 2008, is 
deemed to have elected to be treated as a customs and border protection 
officer for retirement purposes.
    (b) Exclusion from coverage. The provisions of this subpart and any 
other specific reference to customs and border protection officers in 
this part do not apply to employees who on December 25, 2007, were law 
enforcement officers under subpart I of this part or subpart H of part 
842 within U.S. Customs and Border Protection. These employees cannot 
elect to be treated as a customs and border protection officer under 
paragraph (a) of this section, nor can they be deemed to have made such 
an election.
    (c) Proportional annuity computation. The annuity of an employee 
serving in a primary or secondary customs and border protection officer 
position on July 6, 2008, must, to the extent that its computation is 
based on service rendered as a customs and border protection officer on 
or after that date, be at least equal to the amount that would be 
payable--
    (1) To the extent that such service is subject to the Civil Service 
Retirement System, by applying section 8339(d) of title 5, United 
States Code, with respect to such service; and
    (2) To the extent such service is subject to the Federal Employees' 
Retirement System, by applying section 8415(d) of title 5, United 
States Code, with respect to such service.

PART 841--FEDERAL EMPLOYEES RETIREMENT SYSTEM--GENERAL 
ADMINISTRATION

    4. The authority citation for part 841 is revised to read as 
follows:

    Authority:  5 U.S.C. 8461; Sec. 841.108 also issued under 5 
U.S.C. 552a; Secs. 841.110 and 841.111 also issued under 5 U.S.C. 
8470(a); subpart D also issued under 5 U.S.C. 8423; Sec. 841.504 
also issued under 5 U.S.C. 8422; Sec. 841.507 also issued under 
section 505 of Pub. L. 99-335; subpart J also issued under 5 U.S.C. 
8469; Sec. 841.506 also issued under 5 U.S.C. 7701(b)(2); Sec. 
841.508 also issued under section 505 of Pub. L. 99-335; Sec. 
841.604 also issued under Title II, Pub. L. 106-265, 114 Stat. 780.

    5. Revise 841.403(c) to read as follows:

Sec.  841.403  Categories of employees for computation of normal cost 
percentages.

* * * * *
    (c) Law enforcement officers, firefighters, nuclear materials 
couriers, customs and border protection officers, members of the 
Supreme Court Police.
* * * * *
    6. Revise 841.503(b) to read as follows:


Sec.  841.503  Amounts of employee deductions.

* * * * *
    (b) The rate of employee deductions from basic pay for FERS 
coverage for a Member, law enforcement officer, firefighter, nuclear 
materials courier, customs and border protection officer, air traffic 
controller, member of the Supreme Court Police, Congressional employee, 
or employee under section 302 of the Central Intelligence Agency Act of 
1964 for Certain Employees is seven and one-half percent of basic pay, 
minus the percent of tax which is (or would be) in effect for the 
payment, for the employee cost of social security.
* * * * *

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

    7. The authority citation for part 842 is revised to read as 
follows:

    Authority:  5 U.S.C. 8461(g); Secs. 842.104 and 842.106 also 
issued under 5 U.S.C. 8461(n); Sec. 842.104 also issued under 
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. 1321-102; Sec. 
842.107 also issued under sections 11202(f), 11232(e), and 11246(b) 
of Pub. L. 105-33, 111 Stat. 251, and 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. 842.208 also issued under 
section 535(d) of Title V of Division E of Pub. L. 110-161, 121 
Stat. 2042; Sec. 842.213 also issued under 5 U.S.C. 8414(b)(1)(B) 
and section 1313(b)(5) of Pub. L. 107-296, 116 Stat. 2135; Secs. 
842.304 and 842.305 also issued under section 321(f) of Pub. L. 107-
228, 116 Stat. 1383, Secs. 842.604 and 842.611 also issued under 5 
U.S.C. 8417; Sec. 842.607 also issued under 5 U.S.C. 8416 and 8417; 
Sec. 842.614 also issued under 5 U.S.C. 8419; Sec. 842.615 also 
issued under 5 U.S.C. 8418; Sec. 842.703 also issued under 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; Sec. 842.810 also issued under 
section 636 of Appendix C to Pub. L. 106-554 at 114 Stat. 2763A-164; 
Sec. 842.811 also issued under section 226(c)(2) of Public Law 108-
176, 117 Stat. 2529; Subpart J also issued under section 535(d) of 
Title V of Division E of Pub. L. 110-161, 121 Stat. 2042.

    8. In Sec.  842.208, revise the section heading and paragraphs 
(a)(1) and (2) to read as follows:


Sec.  842.208  Firefighters, customs and border protection officers, 
law enforcement officers, members of the Capitol or Supreme Court 
Police, and nuclear materials couriers.

    (a) * * *
    (1) After completing any combination of service as a firefighter, 
customs and border protection officer, law enforcement officer, member 
of the Capitol or Supreme Court Police, or nuclear materials courier 
totaling 25 years; or
    (2) After becoming age 50 and completing any combination of service 
as a firefighter, customs and border protection officer, law 
enforcement

[[Page 60649]]

officer, member of the Capitol or Supreme Court Police, or nuclear 
materials courier totaling 20 years.
* * * * *
    9. Revise the section heading, and paragraph (b)(2)(ii) in Sec.  
842.403 to read as follows:


Sec.  842.403  Computation of basic annuity.

* * * * *
    (b) * * *
    (2) * * *
    (ii) Is not a customs and border protection officer, a Member, 
Congressional employee, military reserve technician, law enforcement 
officer, firefighter, nuclear materials courier, or air traffic 
controller.
    10. Revise 842.801 to read as follows:


Sec.  842.801  Applicability and purpose.

    (a) This subpart contains regulations of the Office of Personnel 
Management (OPM) to supplement--
    (1) 5 U.S.C. 8412(d) and (e), which establish special retirement 
eligibility for law enforcement officers, members of the Capitol Police 
and Supreme Court Police, firefighters, nuclear materials couriers, 
customs and border protection officers, and air traffic controllers 
employed under the Federal Employees Retirement System (FERS);
    (2) 5 U.S.C. 8422(a), pertaining to deductions;
    (3) 5 U.S.C. 8423(a), pertaining to Government contributions; and
    (4) 5 U.S.C. 8425, pertaining to mandatory retirement.
    (b) The regulations in this subpart are issued pursuant to the 
authority given to OPM in 5 U.S.C. 8461(g) to prescribe regulations to 
carry out the provisions of 5 U.S.C. chapter 84, in 5 U.S.C. 1104 to 
delegate authority for personnel management to the heads of agencies 
and pursuant to the authority given the Director of OPM in section 
535(d) of the Department of Homeland Security Appropriations Act, 2008, 
Public Law 110-161, 121 Stat. 2042.
    11. Revise 842.901 to read as follows:


Sec.  842.901  Applicability and purpose.

    (a) This subpart contains regulations of the Office of Personnel 
Management (OPM) to supplement--
    (1) 5 U.S.C. 8412(d) and (e), which establish special retirement 
eligibility for law enforcement officers, members of the Capitol Police 
and Supreme Court Police, firefighters, nuclear materials couriers, 
customs and border protection officers, and air traffic controllers 
employed under the Federal Employees Retirement System (FERS);
    (2) 5 U.S.C. 8422(a), pertaining to deductions;
    (3) 5 U.S.C. 8423(a), pertaining to Government contributions; and
    (4) 5 U.S.C. 8425, pertaining to mandatory retirement.
    (b) The regulations in this subpart are issued pursuant to the 
authority given to OPM in 5 U.S.C. 8461(g) to prescribe regulations to 
carry out the provisions of 5 U.S.C. chapter 84, in 5 U.S.C. 1104 to 
delegate authority for personnel management to the heads of agencies 
and pursuant to the authority given the Director of OPM in section 
535(d) of the Department of Homeland Security Appropriations Act, 2008, 
Division E of Public Law 110-161, 121 Stat. 1844.
    12. Add subpart J to part 842 to read as follows:
Subpart J--Customs and Border Protection Officers
Sec.
 842.1001 Applicability and purpose.
 842.1002 Definitions.
 842.1003 Conditions for coverage.
 842.1004 Evidence.
 842.1005 Withholding and contributions.
 842.1006 Mandatory separation.
 842.1007 Review of decisions.
 842.1008 Oversight of coverage determinations.
 842.1009 Elections of Retirement Coverage, exclusions from 
retirement coverage, and proportional annuity computations.

Subpart J--Customs and Border Protection Officers


Sec.  842.1001  Applicability and purpose.

    (a) This subpart contains regulations of the Office of Personnel 
Management (OPM) to supplement--
    (1) 5 U.S.C. 8412(d) and (e), which establish special retirement 
eligibility for law enforcement officers, members of the Capitol Police 
and Supreme Court Police, firefighters, nuclear materials couriers, 
customs and border protection officers, and air traffic controllers 
employed under the Federal Employees Retirement System (FERS);
    (2) 5 U.S.C. 8422(a), pertaining to deductions;
    (3) 5 U.S.C. 8423(a), pertaining to Government contributions; and
    (4) 5 U.S.C. 8425, pertaining to mandatory retirement.
    (b) The regulations in this subpart are issued pursuant to the 
authority given to OPM in 5 U.S.C. 8461(g) to prescribe regulations to 
carry out the provisions of 5 U.S.C. chapter 84, in 5 U.S.C. 1104 to 
delegate authority for personnel management to the heads of agencies 
and pursuant to the authority given the Director of OPM in section 
535(d) of the Department of Homeland Security Appropriations Act, 2008, 
Division E of Public Law 110-161, 121 Stat. 1844.


Sec.  842.1002  Definitions.

    As used in this subpart:
    Agency head means the Secretary of the U.S. Department of Homeland 
Security. For purposes of an approval of coverage under this subpart, 
agency head is also deemed to include the designated representative of 
the Secretary of U.S. Department of Homeland Security, except that the 
designated representative must be a department headquarters-level 
official who reports directly to the Secretary of Homeland Security, or 
to the Deputy Secretary of Homeland Security, and who is the sole such 
representative for the entire department. For the purposes of a denial 
of coverage under this subpart, agency head is also deemed to include 
the designated representative of the Secretary of U.S. Department of 
Homeland Security at any level within the U.S. Department of Homeland 
Security.
    Employee means an employee as defined by 5 U.S.C. 8401(11).
    Customs and border protection officer means an employee in the 
Department of Homeland Security occupying a position within the Customs 
and Border Protection Officer (GS-1895) job series (determined applying 
the criteria in effect as of September 1, 2007) or any successor 
position and whose duties include activities relating to the arrival 
and departure of persons, conveyances, and merchandise at ports of 
entry. Also included in this definition is an employee engaged in this 
activity who is transferred directly to a supervisory or administrative 
position in the Department of Homeland Security after performing such 
duties in 1 or more positions within the GS-1895 job series (determined 
applying the criteria in effect as of September 1, 2007), or any 
successor position, for at least 3 years.
    First-level supervisors are employees classified as supervisors who 
have direct and regular contact with the employees they supervise. 
First-level supervisors do not have subordinate supervisors. A first-
level supervisor may occupy a primary position or a secondary position 
if the appropriate definition is met.
    Primary position means a position classified within the Customs and 
Border Protection Officer (GS-1895) job series (determined applying the 
criteria in effect as of September 1, 2007) or any successor position 
whose duties include the performance of work directly connected with 
activities relating to the arrival and departure of persons, 
conveyances, and merchandise at ports of entry.
    Secondary position means a customs and border protection officer 
position that is either--
    (1) Supervisory; i.e., a position whose primary duties are as a 
first-level supervisor of customs and border

[[Page 60650]]

protection officers in primary positions; or
    (2) Administrative; i.e., an executive, managerial, technical, 
semiprofessional, or professional position for which experience in a 
primary customs and border protection officer position is a 
prerequisite.


Sec.  842.1003  Conditions for coverage.

    (a) Primary positions. (1) An employee's service in a position that 
has been determined by the employing agency head to be a primary 
customs and border protection officer position is covered under the 
provisions of 5 U.S.C. 8412(d).
    (2) An employee who is not in a primary position, nor covered while 
in a secondary position, and who is detailed or temporarily promoted to 
a primary position is not covered under the provisions of 5 U.S.C. 
8412(d) for any purpose under this subpart.
    (3) A first-level supervisor position may be determined to be a 
primary position if it satisfies the conditions set forth in Sec.  
842.1002.
    (b) Secondary positions. An employee's service in a position that 
has been determined by the employing agency head to be a secondary 
position is covered under the provisions of 5 U.S.C. 8412(d) if all of 
the following criteria are met:
    (1) The employee, while covered under the provisions of 5 U.S.C. 
8412(d) as a customs and border protection officer, is transferred 
directly (i.e., without a break in service exceeding 3 days) from a 
primary position to a secondary position; and
    (2) The employee has completed 3 years of service in a primary 
position, including service for which no FERS deductions were withheld; 
and
    (3) If applicable, the employee has been continuously employed in 
secondary positions since transferring from a primary position without 
a break in service exceeding 3 days, except that a break in employment 
in secondary positions which begins with an involuntary separation (not 
for cause), within the meaning of 8414(b)(1)(A), is not considered in 
determining whether the service in secondary positions is continuous 
for this purpose.
    (c) For the purpose of applying the criteria at paragraphs (b)(1) 
through (3) of this section to evaluate transfers, service, and 
employment periods that occurred before September 1, 2007--
    (1) A primary position, covered under the provisions of 5 U.S.C. 
8412(d), is deemed to include:
    (i) A position whose duties included the performance of work 
directly connected with activities relating to the arrival and 
departure of persons, conveyances, and merchandise at ports of entry 
that was classified within the Immigration Inspector Series (GS-1816), 
Customs Inspector Series (GS-1890), or any other series which the 
agency head determines were predecessor series to the Customs and 
Border Protection Series (GS-1895) series, and that would have been 
classified under the GS-1895 series had it then existed; and
    (ii) A position within the Customs and Border Protection Series 
(GS-1895) series whose duties included the performance of work directly 
connected with activities relating to the arrival and departure of 
persons, conveyances, and merchandise at ports of entry.
    (2) A secondary position is deemed to include:
    (i) A first-level supervisor of an employee in a position described 
at paragraph (c)(1)(i) or (c)(1)(ii) of this section; or
    (ii) A executive, managerial, technical, semiprofessional, or 
professional position for which experience in a position described at 
paragraph (c)(1)(i) or (c)(1)(ii) of this section is a mandatory 
prerequisite.
    (d) An employee who is not in a primary position, nor covered while 
in a secondary position, and who is detailed or temporarily promoted to 
a secondary position is not covered under the provisions of 5 U.S.C. 
8412(d) for any purpose under this subpart.
    (e) Except as specifically provided in this subpart, an agency 
head's authority under this section cannot be delegated.


Sec.  842.1004  Evidence.

    (a) The agency head's determination under Sec.  842.1003(a) that a 
position is a primary position must be based solely on the official 
position description of the position in question, and any other 
official description of duties and qualifications. The official 
documentation for the position must establish that it satisfies the 
requirements defined in Sec.  842.1002.
    (b) A determination under Sec.  842.1003(b) must be based on the 
official position description and any other evidence deemed appropriate 
by the agency head for making the determination.
    (c) If an employee is in a position not subject to the one-half 
percent higher withholding rate of 5 U.S.C. 8422(a)(3), and the 
employee does not, within 6 months of entering the position formally 
and in writing seek a determination from the employing agency that his 
or her service is properly covered by the higher withholding rate, the 
agency head's determination that the service was not so covered at the 
time of the service is presumed to be correct. This presumption may be 
rebutted by a preponderance of the evidence that the employee was 
unaware of his or her status or was prevented by cause beyond his or 
her control from requesting that the official status be changed at the 
time the service was performed.


Sec.  842.1005  Withholding and contributions.

    (a) During service covered under the conditions established by 
Sec.  842.1003(a) or (c), the U.S. Department of Homeland Security will 
deduct and withhold from the employee's base pay the amounts required 
under 5 U.S.C. 8422(a) and submit that amount to OPM in accordance with 
payroll office instructions issued by OPM.
    (b) During service described in paragraph (a) of this section, the 
U.S. Department of Homeland Security must submit to OPM the Government 
contributions required under 5 U.S.C. 8423(a) in accordance with 
payroll office instructions issued by OPM.
    (c) If the correct withholdings and/or Government contributions are 
not timely submitted to OPM for any reason whatsoever, including cases 
in which it is finally determined that past service of a current or 
former employee was subject to the higher deduction and Government 
contribution rates, the U.S. Department of Homeland Security must 
correct the error by submitting the correct amounts (including both 
employee and agency shares) to OPM as soon as possible. Even if the 
U.S. Department of Homeland Security waives collection of the 
overpayment of pay under any waiver authority that may be available for 
this purpose, such as 5 U.S.C. 5584, or otherwise fails to collect the 
debt, the correct amount must still be submitted to OPM as soon as 
possible.
    (d) Upon proper application from an employee, former employee or 
eligible survivor of a former employee, the U.S. Department of Homeland 
Security will pay a refund of erroneous additional withholdings for 
service that is found not to have been covered service. If an 
individual has paid to OPM a deposit or redeposit, including the 
additional amount required for covered service, and the deposit is 
later determined to be erroneous because the service was not covered 
service, OPM will pay the refund, upon proper application, to the 
individual, without interest.
    (e) The additional employee withholding and agency contributions 
for covered service properly made are not separately refundable, even 
in the event that the employee or his or her survivor does not qualify 
for a special

[[Page 60651]]

annuity computation under 5 U.S.C. 8415(d).
    (f) While an employee who does not hold a primary or secondary 
position is detailed or temporarily promoted to such a position, the 
additional withholdings and agency contributions will not be made.
    (g) While an employee who holds a primary or secondary position is 
detailed or temporarily promoted to a position that is not a primary or 
secondary position, the additional withholdings and agency 
contributions will continue to be made.


Sec.  842.1006  Mandatory separation.

    (a) Except as provided in paragraph (d) of this section, the 
mandatory separation provisions of 5 U.S.C. 8425 apply to customs and 
border protection officers, including those in secondary positions. A 
mandatory separation under 5 U.S.C. 8425 is not an adverse action under 
part 752 of this chapter or a removal action under part 359 of this 
chapter.
    (b) Exemptions from mandatory separation are subject to the 
conditions set forth under 5 U.S.C. 8425. An exemption may be granted 
at the sole discretion of the head of the employing agency or by the 
President in accordance with 5 U.S.C. 8425(c).
    (c) In the event that an employee is separated mandatorily under 5 
U.S.C. 8425, or is separated for optional retirement under 5 U.S.C. 
8412 (d) or (e), and OPM finds that all or part of the minimum service 
required for entitlement to immediate annuity was in a position that 
did not meet the requirements of a primary or secondary position and 
the conditions set forth in this subpart or, if applicable, in part 831 
of this chapter, such separation will be considered erroneous.
    (d) The customs and border protection officer mandatory separation 
provisions of 5 U.S.C. 8425 do not apply to an individual first 
appointed as a customs and border protection officer before July 6, 
2008.


Sec.  842.1007  Review of decisions.

    (a) The final decision of the agency head denying an individual's 
request for approval of a position as a rigorous, secondary, or air 
traffic controller position made under Sec.  842.1003(a) may be 
appealed to the Merit Systems Protection Board under procedures 
prescribed by the Board.
    (b) The final decision of the agency head denying an individual 
coverage while serving in an approved secondary position because of 
failure to meet the conditions in Sec.  842.1003(b) may be appealed to 
the Merit Systems Protection Board under procedures prescribed by the 
Board.


Sec.  842.1008  Oversight of coverage determinations.

    (a) Upon deciding that a position is a customs and border 
protection officer, the U.S. Department of Homeland Security must 
notify OPM (Attention: Director, Planning and Policy Analysis, or such 
other official as may be designated) stating the title of each 
position, the occupational series of the position, the number of 
incumbents, whether the position is primary or secondary, and, if the 
position is a primary position, the established maximum entry age, if 
one has been established. The Director of OPM retains the authority to 
revoke the agency head's determination that a position is a primary or 
secondary position.
    (b) The U.S. Department of Homeland Security must establish and 
maintain a file containing all coverage determinations made by the 
agency head under Sec.  842.1003(a) and (b), and all background 
material used in making the determination.
    (c) Upon request by OPM, the U.S. Department of Homeland Security 
will make available the entire coverage determination file for OPM to 
audit to ensure compliance with the provisions of this subpart.
    (d) Upon request by OPM, the U.S. Department of Homeland Security 
must submit to OPM a list of all covered positions and any other 
pertinent information requested.


Sec.  842.1009  Elections of Retirement Coverage, exclusions from 
retirement coverage, and proportional annuity computations.

    (a) Election of coverage. (1) The U.S. Department of Homeland 
Security must provide an individual who is a customs and border 
protection officer on December 26, 2007, with the opportunity to right 
to elect to be treated as a customs and border protection officer under 
section 535(a) and (b) of the Department of Homeland Security 
Appropriations Act, 2008, Public Law 110-161, 121 Stat. 2042).
    (2) An election under this paragraph (a) is valid only if made on 
or before June 22, 2008.
    (3) An individual eligible to make an election under this paragraph 
(a) who fails to make such an election on or before June 22, 2008, is 
deemed to have elected to be treated as a customs and border protection 
officer for retirement purposes.
    (b) Exclusion from coverage. The provisions of this subpart and any 
other specific reference to customs and border protection officers in 
this part do not apply to employees who on December 25, 2007, were law 
enforcement officers, under subpart H of this part or subpart I of part 
831, within U.S. Customs and Border Protection. These employees cannot 
elect to be treated as a customs and border protection officer under 
paragraph (a), nor can they be deemed to have made such an election.
    (c) Proportional annuity computation. The annuity of an employee 
serving in a primary or secondary customs and border protection officer 
position on July 6, 2008, must, to the extent that its computation is 
based on service rendered as a customs and border protection officer on 
or after that date, be at least equal to the amount that would be 
payable--
    (1) To the extent that such service is subject to the Civil Service 
Retirement System, by applying section 8339(d) of title 5, United 
States Code, with respect to such service; and
    (2) To the extent such service is subject to the Federal Employees' 
Retirement System, by applying section 8415(d) of title 5, United 
States Code, with respect to such service.

[FR Doc. 2010-24496 Filed 9-30-10; 8:45 am]
BILLING CODE 6325-39-P


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