[Federal Register: January 17, 1995 (Volume 60, Number 10)] [Rules and Regulations] [Page 3337-3340] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr17ja95-1] ======================================================================== Rules and Regulations Federal Register ________________________________________________________________________ This section of the FEDERAL REGISTER contains regulatory documents having general applicability and legal effect, most of which are keyed to and codified in the Code of Federal Regulations, which is published under 50 titles pursuant to 44 U.S.C. 1510. The Code of Federal Regulations is sold by the Superintendent of Documents. Prices of new books are listed in the first FEDERAL REGISTER issue of each week. ======================================================================== [[Page 3337]] OFFICE OF PERSONNEL MANAGEMENT 5 CFR Parts 831 and 842 RIN 3206-AF67 Law Enforcement Officers and Firefighters AGENCY: Office of Personnel Management. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Office of Personnel Management (OPM) is issuing final rules amending the regulations covering special retirement provisions for law enforcement officers and firefighters employed under the Civil Service Retirement System (CSRS). These changes, and conforming changes under the Federal Employees Retirement System (FERS), are intended to improve efficiency by delegating to the employing agencies responsibility for deciding who is entitled to coverage under the special retirement provisions. EFFECTIVE DATE: February 16, 1995. FOR FURTHER INFORMATION CONTACT: John E. Landers (202) 606-0299. SUPPLEMENTARY INFORMATION: On December 7, 1993, OPM published (at 58 FR 64366) interim regulations and requested comments concerning the delegation to employing agencies of the Office of Personnel Management's (OPM) authority to make determinations of eligibility for law enforcement officer and firefighter retirement coverage. The delegation of authority from OPM to agency heads will streamline the processing of law enforcement officer and firefighter coverage determinations, and place responsibility for those determinations with the employing agencies that have the most direct personnel management interest in them. Section 8336(c) of title 5, U.S. Code, authorizes immediate retirement benefits at age 50 for Federal employees who have completed 20 years of Federal civilian service as a law enforcement officer or firefighter. Prior to publication of the interim regulations, OPM retained sole authority to determine whether service met the retirement law's definitions of law enforcement officer or firefighter (5 U.S.C. Sec. 8331(20) and 5 U.S.C. Sec. 8331(21), respectively), and therefore qualified for special retirement benefits. The interim regulations authorized heads of employing agencies, subject to OPM oversight, to decide which of their CSRS employees qualify for law enforcement officer or firefighter coverage in the same manner as those determinations had previously been made for law enforcement officers and firefighters under FERS. (See subpart H of 5 CFR part 842.) The interim rules were intended to make substantive changes only with regard to the delegation of authority to make coverage determinations (with OPM retaining an oversight role); the criteria for making coverage determinations were not changed. We received several comments on the interim regulations and they are addressed below. We have not addressed the many comments we received that were aimed at substantive benefit and procedural provisions outside the scope of the interim regulations. Two comments also revealed the need for nonsubstantive changes to the interim regulations, and these changes, which have been incorporated into the final rules, are explained below. One commenter stated that the level of delegation to agency heads is too high. The interim regulations, in Sec. 831.902, allow limited redelegation of the coverage-approval authority to the designated representative of an executive department head. The representative must be a department headquarters-level official who reports directly to the executive department head and must be the sole such representative for the entire department. The level of delegation reflects the high, on- going cost of the special benefits and the need for department-wide consistency in making these determinations. It has come to our attention, however, that the requirement that the representative be an official who reports directly to the department head is unnecessarily restrictive in a situation where the appropriate representative, who has department-wide responsibility, does not report directly to the department head, but rather to the deputy department head. Accordingly, we are amending this provision to allow the department head to designate as his or her representative for this purpose an official who reports directly to the deputy department head. The existing requirement that the representative be a department headquarters-level official who is the sole such representative for the entire department is unchanged. We are making a similar amendment to the FERS regulations. We have also made an editorial change in the definition of agency head in Sec. 831.902, deleting in the second sentence the unnecessary phrase for provisions dealing with law enforcement officers and firefighters. Another commenter pointed out an inconsistency between the interim regulations and the FERS rules regarding the level of authority to issue denials of requests for special benefits coverage. To remedy this inconsistency, Sec. 831.910 is being amended to conform to the FERS rule. An agency's final denial of coverage to an individual is appealable to the Merit Systems Protection Board, but authority to issue the denial is not subject to the restriction on redelegations discussed above, and may be issued at any level considered appropriate by the employing agency. A number of individual commenters asked that we impose a time limit on agencies to make coverage determinations. The purpose of these regulations is to allow agencies to make their determinations as efficiently as possible without having to seek an additional approval by OPM. Therefore, we believe that the final determinations should take less time. However, OPM does not generally place time limits on internal decision-making by agencies--we cannot control the agencies' resources or workload--and we do not consider it to be administratively feasible to do so with respect to agency actions under this delegated authority. Other commenters, who agreed with OPM's decision to delegate the authority to make these determinations, stated that agencies should re- open requests for special benefits coverage that OPM denied-- and the employee had not appealed--before publication of the [[Page 3338]] interim regulations. The interim regulations allow agencies to re-open a claim only if the agency head determines that new and material evidence is available that, despite due diligence, was not available before the decision was issued. Therefore, if an employee has new, previously unavailable evidence bearing on his or her case, the employee should address the matter to the agency where the service was performed. However, the interim regulations made no substantive change in the criteria that must be used to evaluate claims, and we therefore believe that the delegation of authority to agencies does not justify re-opening denials of coverage that the individual did not appeal within the time limits established by the Merit Systems Protection Board. Other commenters suggested eliminating or limiting OPM's oversight role. Oversight under these regulations--like the delegation of authority itself--is designed to parallel the oversight role given to OPM under the FERS regulations since 1987. We believe that oversight of a delegatee's use of an authority is an inherent element in the process of delegation, which necessarily assumes that the delegation can be withdrawn in the event that the authority is misapplied. Another commenter suggested that OPM rescind its regulations altogether and allow each unit of the Government to interpret the special benefits statute. However, section 8347(a) of title 5, United States Code, requires OPM to prescribe regulations that are necessary and proper to carry out the Civil Service Retirement law. This commenter suggested that, after rescinding its regulations, OPM should then be responsible for monitoring each agency's compliance with the statute. However, the existing regulations set out OPM's interpretation of the statute and provide minimal Government-wide procedures. Therefore, if OPM is to continue to monitor the agencies' implementation of the law, we believe our interpretation of the law, and minimal implementing procedures, should be set out in uniform, published form in the Code of Federal Regulations, which is open to both agencies and affected employees, as well as the general public. The same commenter asked for clarification about claims for special benefits coverage filed before October 1, 1989, because claims filed after that date are subject to a limitation: except in the case of an individual who shows good cause for a late request, the employing agency will not consider service performed more than 1 year before the individual's request is received. Old claims, those filed before October 1, 1989, are not subject to this limitation. Another commenter suggested that the regulations allow for blanket determinations that a position is a law enforcement officer position. The regulations do this in Secs. 831.903 and 831.904. The commenter also suggested that the regulations allow a group of employees, through a representative, to request a blanket approval of their position and that a denial of the request should be appealable to the Merit Systems Protection Board. The interim regulations basically adopted the FERS approach to individual rights where an agency determines that the official position description does not show that the position satisfies the definition of law enforcement officer or firefighter. In this case, any individual may request the employing agency to review his or her actual primary duties to determine whether they meet the definition. The employee may appeal a denial to the Merit Systems Protection Board. We believe that this system adequately protects individual rights, whereas blanket determinations based on actual duties of individuals would not be conducive to a full review of each individual employee's actual duties where the position description is claimed to be inaccurate. If one or more employees believe that their position description (for which the employing agency or OPM has denied coverage) is accurate, but that it should be considered to meet the definition of law enforcement officer or firefighter, we believe that the administrative approach should be determined by the employing agency head, depending on the circumstances, to provide for efficient administration without sacrificing individual rights to review of an agency decision that denies special benefits coverage. This commenter also suggested that OPM's oversight authority should be limited so as to make any reversal of a coverage approval determination prospective only. Under a statutory benefits program, such as the CSRS, the right to benefits flows from an individual's meeting the statutory criteria for benefits. Therefore, OPM is not limited to prospective-only corrections of coverage approval errors, just as corrections of coverage denial errors are not prospective only, subject to certain limits that require individuals to make timely claims. In any event, if OPM were limited to prospective-only denials of coverage in its exercise of oversight, the result would in most cases be harmful to the employees involved, because the statute does not provide special benefits unless the employee completes 20 years of special-category service. If, as suggested, a correction to show that an employee was not a firefighter, for example, could be effected prospectively only, the employee would be considered a firefighter for past service for which he or she would have been subject to the additional salary withholding, but by law would not qualify for a refund of that additional amount, even if he or she had completed less than 20 years of service and therefore qualified for no additional benefits as a firefighter. The same commenter also suggested that we amend the regulations to establish that, in exercising oversight, OPM will accept additional evidence from the employee and his or her collective bargaining representative. The regulations require each agency to establish a file on each coverage determination, which must include all background material used in making the determination. See Sec. 831.911(b). This file is the subject of OPM's oversight and we do not see any need for additional evidence for OPM to use in determining whether the file adequately documents that the decision made by the employing agency was correct. If OPM makes a decision, or instructs the employing agency head to issue a new decision affecting an individual's rights under the CSRS or FERS, that decision would be subject to de novo review by the Merit Systems Protection Board. Another commenter correctly pointed out that Sec. 831.907(c) of the interim regulations, and Sec. 842.805(d) of the FERS regulations, should not bar an employing agency from paying interest in cases involving overwithholding of salary. When an employing agency finds that it has erroneously withheld from an employee's salary the additional 1/2 percent of basic pay required for law enforcement officers and firefighters, the agency must retroactively correct its records and refund the erroneous withholdings to the individual. The interim regulations stated that the refund is to be paid without interest. However, the Back Pay Act provides authority (see subpart H of part 550 of title 5, Code of Federal Regulations) for the employing agency to pay interest on the erroneous withholdings under certain circumstances. Accordingly, the restriction on interest payments by employing agencies stated in Sec. 831.907(c) and Sec. 842.805(d) is being eliminated. These paragraphs have also been rewritten to clarify that the employing agency or former employing agency is responsible for refunding the erroneous additional withholding. In the case of a refund of the erroneous [[Page 3339]] additional 1/2 percent of salary that was included in the computation of a deposit or redeposit to the retirement fund--for nondeduction or refunded service, respectively-- OPM has no authority to add interest. Waiver of General Notice of Proposed Rulemaking Under section 553(b)(3)(B) of title 5, United States Code, I find that good cause exists for waiving the general notice of proposed rulemaking for the changes to 5 CFR part 842. These changes conform to the changes we are making to part 831. The notice of interim rulemaking in part 831 stated that the changes were designed to conform the delegation of authority under CSRS (part 831) to the delegation under FERS (part 842) and the changes we are now making to part 842 will accomplish that purpose. Another notice of rulemaking is unnecessary, because we have already requested comments on the underlying issue as part of this rulemaking. 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 Federal employees and agencies and retirement payments to retired Government employees and their survivors. List of Subjects in 5 CFR Parts 831 and 842 Administrative practice and procedure, Air traffic controllers, Alimony, Claims, Disability benefits, Firefighters, Government employees, Income taxes, Intergovernmental relations, Law enforcement officers, Pensions, Reporting and recordkeeping, Retirement. U.S. Office of Personnel Management. James B. King, Director. Accordingly, OPM is adopting its interim regulations under 5 CFR part 831 published at 58 FR 64366 on December 7, 1993, as final with the following changes, and is amending 5 CFR part 842, as follows: PART 831--RETIREMENT 1. The authority citation for part 831 of title 5, United States Code, continues 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. 831.201(b)(6) also issued under 5 U.S.C. 7701(b)(2); Sec. 831.204 also issued under section 7202(m)(2) of the Omnibus Budget Reconciliation Act of 1990, Pub. L. 105-508, 104 Stat. 1388- 339; Sec. 831.303 also issued under 5 U.S.C. 8334(d)(2); Sec. 831.502 also issued under 5 U.S.C. 8337; Sec. 831.502 also issued under section 1(3), E.O. 11228, 3 CFR 1964-1965 Comp.; Sec. 831.621 also issued under section 201(d) of the Federal Employees Benefits Improvement Act of 1986, Pub. L. 99-251, 100 Stat. 23; subpart S also issued under 5 U.S.C. 8345(k); subpart V also issued under 5 U.S.C. 8343a and section 6001 of the Omnibus Budget Reconciliation Act of 1987, Pub. L. 100-203, 101 Stat. 1330- 275; Sec. 831.2203 also issued under section 7001(a)(4) of the Omnibus Budget Reconciliation Act of 1990, Pub. L. 101-508; 104 Stat. 1388-328. Subpart I--Law Enforcement Officers and Firefighters 2. In Sec. 831.902, the definition of agency head is revised to read as follows: Sec. 831.902 Definitions. * * * * * Agency head means, for the executive branch agencies, the head of an executive agency as defined in 5 U.S.C. 105; for the legislative branch, the Secretary of the Senate, the Clerk of the House of Representatives, or the head of any other legislative branch agency; for the judicial branch the Director of the Administrative Office of the U.S. Courts; for the Postal Service, the Postmaster General; and for any other independent establishment that is an entity of the Federal Government, the head of the establishment. For purposes of this subpart, agency head is also deemed to include the designated representative of the head of an executive department as defined in 5 U.S.C. 101, except that the designated representative must be a department headquarters-level official who reports directly to the executive department head, or to the deputy department head, and who is the sole such representative for the entire department. * * * * * 3. In section 831.907 paragraph (c) is revised to read as follows: Sec. 831.907 Withholdings and contributions. * * * * (c) Upon proper application from an employee, former employee or eligible survivor of a former employee, an employing agency or former employing agency will pay a refund of erroneous additional withholdings for service that is found not to have been covered service. If an individual has paid to OPM a deposit or redeposit, including the additional amount required for covered service, and the deposit 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. * * * * * 4. Section 831.910 is revised to read as follows: Sec. 831.910 Review of decisions. The following decisions may be appealed to the Merit Systems Protection Board under procedures prescribed by the Board: (a) The final decision of an agency or OPM issued to an employee, former employee, or survivor as the result of a request for determination filed under Sec. 831.906; and (b) The final decision of an agency that a break in service referred to in Sec. 831.904(a)(2) did not begin with an involuntary separation within the meaning of 5 U.S.C. Sec. 8336(d)(1). PART 842--FEDERAL EMPLOYEES RETIREMENT SYSTEM--BASIC ANNUITY 5. The authority citation for part 842 of title 5, United States Code, continues 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. 842.105 also issued under 5 U.S.C. 8402(c)(1) and 7701(b)(2); Sec. 842.106 also issued under section 7202(m)(2) of the Omnibus Budget Reconciliation Act of 1990, Pub. L. 101-508 and 5 U.S.C. 8402(c)(1); 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 the Omnibus Budget Reconciliation Act of 1990, Pub. L. 101-508; Sec. 842.707 also issued under section 6001 of the Omnibus Budget Reconciliation Act of 1987, Pub. L. 100- 203; Sec. 842.708 also issued under section 4005 of the Omnibus Budget Reconciliation Act of 1989, Pub. L. 101-239 and section 7001 of the Omnibus Budget Reconciliation Act of 1990, Pub. L. 101-508; subpart H also issued under 5 U.S.C. 1104. Subpart H--Law Enforcement Officers, Firefighters, and Air Traffic Controllers 6. In Sec. 842.802, the definition of agency head is revised to read as follows: Sec. 842.802 Definitions. * * * * * Agency head means, for the executive branch agencies, the head of an executive agency as defined in 5 U.S.C. Sec. 105; for the legislative branch, the Secretary of the Senate, the Clerk of the House of Representatives, or the head of any other legislative branch agency; for the judicial branch, the Director of the [[Page 3340]] Administrative Office of the U.S. Courts; for the Postal Service, the Postmaster General; and for any other independent establishment that is an entity of the Federal Government, the head of the establishment. For purposes of this subpart, agency head is also deemed to include the designated representative of the head of an executive department as defined in 5 U.S.C. Sec. 101, except that, for provisions dealing with law enforcement officers and firefighters, the designated representative must be a department headquarters-level official who reports directly to the executive department head, or to the deputy department head, and who is the sole such representative for the entire department. * * * * * 7. In section 842.805 paragraph (d) is revised to read as follows: Sec. 842.805 Withholding and contributions. * * * * * (d) Upon proper application from an employee, former employee or eligible survivor of a former employee, an employing agency or former employing agency will pay a refund or 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. * * * * * [FR Doc. 95-994 Filed 1-13-95; 8:45 am] BILLING CODE 6325-01-M