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.

Proposed Rules Federal Register

60643 

Vol. 75, No. 190 

Friday, October 1, 2010 

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. 

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: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• E-mail: combox@opm.gov. Include 

RIN number 3206–AL69 in the subject 

line of the message. 

• 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 


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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 postJuly 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 


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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: 

§ 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. 


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Subpart P—Customs and Border 

Protection Officers 

§ 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. 

§ 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. 

§ 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. 

§ 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. 


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§ 831.1605 Evidence. 

(a) An agency head’s determination 

under §§ 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. 

§ 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. 

§ 831.1607 Withholdings and 

contributions. 

(a) During the service covered under 

the conditions established by § 831.1603 

and § 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. 

§ 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. 

§ 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). 

§ 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 § 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 § 831.1604(a) may be 

appealed to the Merit Systems 

Protection Board under procedures 

prescribed by the Board. 

§ 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 


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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 § 831.1603 and § 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. 

§ 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: 

§ 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: 

§ 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 § 842.208, revise the section 

heading and paragraphs (a)(1) and (2) to 

read as follows: 

§ 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 


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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 § 842.403 to read 

as follows: 

§ 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: 

§ 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: 

§ 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 

§ 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. 

§ 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 


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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. 

§ 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 § 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. 

§ 842.1004 Evidence. 

(a) The agency head’s determination 

under § 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 § 842.1002. 

(b) A determination under 

§ 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. 

§ 842.1005 Withholding and contributions. 

(a) During service covered under the 

conditions established by § 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 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
Federal Register / Vol. 75, No. 190 / Friday, October 1, 2010 / Proposed Rules 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. 

§ 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. 

§ 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 § 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 § 842.1003(b) may be 

appealed to the Merit Systems 

Protection Board under procedures 

prescribed by the Board. 

§ 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 § 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. 

§ 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 

NATIONAL CREDIT UNION 

ADMINISTRATION 

12 CFR Part 704 

RIN 3133–AD80 

Corporate Credit Unions 

AGENCY: National Credit Union 

Administration (NCUA). 

ACTION: Proposed Interpretive Ruling 

and Policy Statement 10–XX. 

SUMMARY: The NCUA Board is 

proposing to adopt an Interpretive 

Ruling and Policy Statement (IRPS) 

setting forth the requirements and 

process for chartering corporate federal 

credit unions. 

DATES: Comments must be received on 

or before November 1, 2010. 

ADDRESSES: You may submit comments 

by any of the following methods (Please 

send comments by one method only): 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• NCUA Web site: http:// 

www.ncua.gov/Resources/ 

RegulationsOpinionsLaws/ 

ProposedRegulations.aspx. Follow the 

instructions for submitting comments. 

• E-mail: Address to 

regcomments@ncua.gov. Include ‘‘[Your 


jlentini on DSKJ8SOYB1PROD with PROPOSALS