371 FW 3, Certification of Required Occupancy 

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A. After-hours service, protection of Service property or resources, or lack of available suitable housing.

B. Lack of available suitable housing includes remoteness (30+ miles from nearest established community of 1,500+ with doctor and dentist) and scarcity during periods of high housing demand caused by a short tourist or harvest season. Local hires (employees who resided within 30 miles of the duty station when hired) do not qualify for required occupancy based on the lack of available suitable housing.

3.2 Personnel Action. An employee's status as a required occupant must be properly documented in the SF-50, Notification of Personnel Action. A position's occupancy requirement must be included in its position description and any vacancy announcement.

3.3 Exemption from Federal Taxes. For a tenant who is a required occupant to qualify for his or her rent to be exempt from Federal taxes, all the following Internal Revenue Service (IRS) criteria in 26 United States Code 119 (see Exhibit 2) must be met:

A. The lodging is furnished for the convenience of the employer;

B. The employee is required to accept such lodging as a condition of employment; and

C. The lodging is furnished on the business premises of the employer.

D. Certification of IRS eligibility on the Bureau of Reclamation, Division of Payroll Operations Deduction Input Form 7-2209 will result in all rental payments being exempt from income and OASDI/Medicare taxes.

3.4 Documentation of Required Occupancy Determinations. When a position necessitates required occupancy as a condition of employment and a DI 1872, Certification of Required Occupancy, has been approved, an employee's status as a required occupant or the need for required occupancy must be documented as follows:

A. Official Personnel Folder.

(1) The GFQ status of an employee occupying GFQ must be documented on an SF-50, Notification of Personnel Action, and filed in the employee's Official Personnel Folder (OPF). The approved DI 1872 is also filed as a permanent document in the OPF, and copies of this form are filed with and retained by the Regional and National Quarters Offices.

(2) When an employee assumes or vacates GFQ that meet the IRS criteria for tax exempt lodging, the immediate supervisor must notify the servicing personnel office and the Regional Quarters Officer (RQO) within the same pay period the action becomes effective. Notification will be in the form of an SF-52, Request for Personnel Action, requesting an appropriate personnel action (e.g., reassignment or transfer) and indicating a change in the employee's quarters status. The remarks section of the SF-50 will include a statement that appropriately reflects the employee's current GFQ status. For example, "Employee occupies GFQ on Federal premises as a condition of employment." or "Employee is no longer required to occupy GFQ."

(3) When an employee assumes or vacates GFQ that do not meet the IRS criteria, the immediate supervisor must submit an SF-52 through established supervisory channels to the servicing personnel office requesting appropriate personnel action and indicating a change in the employee's quarters status. The remark on the SF-50 should indicate, for example, the "Employee occupies GFQ that do not meet IRS criteria for tax exempt lodging." or "Employee no longer occupies nontax exempt lodging."

(4) When an employee currently occupies GFQ, the immediate supervisor must initiate an SF-52 to correct any existing SF-50 by adding a remark that appropriately indicates the employee's GFQ status as of the date he/she assumed or vacated GFQ.

(5) Established distribution and filing procedures will be followed for all SF-52s and SF-50s.

B. Position Classification. When the duties of a position require the incumbent to occupy GFQ, this condition of employment as it relates to the duties to be performed must be specified in the position description.

(1) New Positions. When a new position having required occupancy as a condition of employment is established, this requirement must be appropriately included in the text of the position description.

(2) Established Positions. Servicing personnel offices must amend the position description of any employee who occupies GFQ as a condition of employment and in conjunction with the IRS criteria for tax exempt lodging to indicate such a requirement and to specify the duties to which it applies.

(3) Other Situations. It is not appropriate to amend the position description when required occupancy is merely an ad hoc assignment and is not a position requirement.

C. Vacancy Announcements. An applicant for vacant positions is entitled to advance knowledge of any condition of employment potentially affecting him/her upon selection for a position. When announcing positions for which required occupancy is or may be a condition of employment, this requirement or potential requirement must be included in the vacancy announcement.

D. Written Offers of Employment/Confirmation Letters. As a follow-up to position requirements indicated in the vacancy announcement, letters to individuals offering employment or confirming selections for employment should also state that required occupancy is a condition of employment.

3.5 Notifying Employees of Changes in Required Occupancy Determinations. When a supervisor intends to amend the position description of an occupied position to establish or eliminate required occupancy as a new condition of employment, the supervisor will notify the employee in writing of the reasons precipitating the planned management action, of the right to request a reconsideration of the required occupancy determination and/or to appeal such a determination, and of the procedures for initiating such action.

3.6 Reconsideration and/or Appeal of the Effect of a Required Occupancy Determination. An employee affected by a required occupancy determination has the right to request a reconsideration and/or to appeal a required occupancy determination under provisions contained in (400 DM 17.4), or in accordance with the terms of an applicable collective bargaining agreement (see Sec. 3.7 B. below) and is entitled to be notified of this right. Service Grievance Procedures, 227 FW 3, will not be used to appeal a required occupancy determination or rental rates if the when aforementioned avenues of appeal are available for use by the employee.

3.7 Procedures for Requesting Reconsideration and/or Appeal of Required Occupancy of Quarters

A. Initial Position Requirement.

(1) When a position description requires the incumbent to occupy GFQ as a condition of employment, the employee who is hired for the position generally has advance knowledge of this requirement and is usually obligated to continue as a tenant until he/she vacates the position.

(2) When an employee has been hired for a position for which a required occupancy determination has been approved, the immediate supervisor will provide the employee information concerning his/her right to appeal such a determination and will complete
the Supervisor/Employee Certification (Exhibit 3) to record that the employee has been so notified.

(3) However, if the employee for personal reasons does not want to occupy GFQ as required or feels that the occupancy requirement has no validity as a condition of employment, he/she may request in writing that the station manager:

(a) Reconsider the position's continued need for required occupancy and document the reasons why this remains or is no longer a valid requirement; and/or

(b) Survey other employees at the station who are not required occupants and who can perform the required after-hours duties to ascertain if one would be willing to assume required occupancy status and perform the duties assigned to the required occupant.

(4) The decision of the station manager, or his/her immediate supervisor if the required occupant is the station manager, is final except in a hardship case. If the employee claims hardship, the procedures outlined in paragraph 6C below will be followed.

B. Subsequent Position Requirement.

(1) When an employee's position description does not indicate that required occupancy is a condition of employment at the time the position is filled and a subsequent decision is made that required occupancy is essential to the operation of the position, the station manager must inform the position's incumbent in writing of his/her intention to submit Form DI 1872 to request approval of a required occupancy determination.

(2) The station manager's written notification to the employee must state the reasons for the determination and identify the duties the employee would be required to perform while occupying GFQ, including those that could be performed only by a required occupant. If the employee objects to this proposed new requirement, the employee has a right to state his objections in writing and attach his statement to Form DI 1872. The station manager should also attach to the DI 1872 a statement indicating that he/she has approached other employees who were qualified to perform the after-hour duties and has asked for volunteers for required occupancy. The DI 1872 is submitted to the Regional Director for review and appropriate action.

C. Reconsideration/Appeal.

(1) Before the Regional Director acts on a DI 1872, including an employee's Request for Reconsideration, the Regional Director convenes a panel composed of the RQO, a person employed in the same program area as the requesting station (e.g., Hatcheries, Refuges, etc.), and at least two disinterested persons from other program areas to review the matter in question and recommend appropriate action. The RQO attends meetings to serve as a technical advisor to the panel, has no vote in any of the proceedings, and presents the findings of the panel to the Director.

(2) If the Regional Director certifies the DI 1872, approving a required occupancy determination for a position for which the current incumbent has filed a Request for Reconsideration (objecting to such a determination), the employee has the right to file a written Request for Reconsideration with the Director. The RQO informs the employee of this right and of the procedures for exercising it.

(3) A Request for Reconsideration that is submitted to the Director represents the final administrative review within the Service. The employee submits the request through supervisory channels to the National Quarters Officer (NQO), who serves as the technical authority and liaison for the reconsideration/appeal process and who has responsibility for convening an advisory panel to review Requests for Reconsideration and submitting the panel's recommendation to the Director.

(4) The advisory panel will include a person from the same program area as the initiator of the request (e.g., Hatcheries, Refuges, etc.) and at least two individuals from unaffected program areas. The NQO will attend panel meetings and serve in an advisory capacity, but will not vote on any matter under review by the panel. The NQO prepares an appropriate transmittal to forward the panel's recommendations through proper channels to the Director for review and a final Service determination.

(5) If the Director reaffirms the Required Occupancy determination, the employee has the right to appeal this decision to the Office of Hearings and Appeals in accordance with provisions in Departmental Quarters Handbook, 400 DM, Chapter 17.4 B. The NQO will notify each affected employee in writing of any determination affecting him/her, and of his/her right to appeal through proper channels to a final administrative authority within the Department.

(6) An appeal of a reaffirmed reconsideration must be made in writing within 30 days of the receipt of a decision to the Office of Hearings and Appeals, 4015 Wilson Boulevard, Arlington, Virginia 22203. In the consideration of such appeals, the Office of Hearings and Appeals will give the fullest consideration to the personal desires of the employee subject only to the paramount requirements of the Federal Government.

(7) The employee is not required to move into the quarters until he/she is informed of the outcome of any Request for Reconsideration and/or appeal. The Service will pay the moving expenses of an employee from his/her nearby residence to quarters when the employee is designated a required quarters occupant in accordancw with GAO/OGC-89-9 Civilian Personnel Law Manual, Title 4-Relocation, Chapter 9-Transportation of Household Goods, K. Local Moves, 3.

3.8 Labor Management Impact.

A. Satisfying Labor Management Obligations. The Department's Office of Personnel has responsibility for satisfying National Consultation Rights obligations with Federal employee unions. Servicing personnel offices will contact local unions representing affected employees and satisfy impact and implementation obligations for collective bargaining.

B. Appealing Effect of Required Occupancy. Employees covered by a union have the right to appeal the effect of a required occupancy determination under the terms of a collective bargaining agreement. Appeals under the terms of a collective bargaining agreement will be addressed under normal labor management procedures.