[Federal Register: July 25, 2001 (Volume 66, Number 143)]
[Rules and Regulations]
[Page 38523-38526]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25jy01-1]
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Rules and Regulations
Federal Register
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[[Page 38523]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 831 and 842
RIN 3206-AJ39
Law Enforcement Officer and Firefighter Retirement
AGENCY: Office of Personnel Management.
ACTION: Interim rule.
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SUMMARY: The Office of Personnel Management (OPM) is issuing interim
rules that permit certain police officers with the Metropolitan
Washington Airports Authority (MWAA) to elect coverage under the
special retirement provisions for law enforcement officers. OPM is also
amending the regulations governing special retirement provisions for
law enforcement officers and firefighters employed under the Civil
Service Retirement System (CSRS) and the Federal Employees Retirement
System (FERS). These changes are intended to clarify and interpret
previously promulgated regulations.
DATES: Effective Date: This interim rule is effective July 25, 2001.
Comment: We must receive your comments by August 24, 2001.
ADDRESSES: Send comments on this interim regulation to Mary Ellen
Wilson, Director, Retirement Policy Center, Office of Personnel
Management, Washington, DC 20415-3200. You may also submit comments by
sending electronic mail (E-mail) to: combox@opm.gov.
FOR FURTHER INFORMATION CONTACT: Patrick Jennings (202) 606-0299.
SUPPLEMENTARY INFORMATION:
Coverage Elections for Metropolitan Washington Airports Authority
Police Officers Under CSRS or FERS
On December 21, 2000, Congress enacted the Consolidated
Appropriations Act, 2001 (Public Law 106-554, 114 Stat. 2763). The
Consolidated Appropriations Act, 2001 incorporated the Treasury and
General Government Appropriations Act, 2001 (H.R. 5658) by reference
(published as Appendix C to Pub. L. 106-554 at 114 Stat. 2763A-125).
Section 636 of H.R. 5658 allows certain members of the police force of
the Metropolitan Washington Airports Authority (MWAA) to elect to be
treated as law enforcement officers for the purpose of retirement. Only
MWAA police officers employed as of December 21, 2000, who are subject
to CSRS or FERS retirement by virtue of section 49107(b) of title 49,
United States Code, may make such an election. An election by an MWAA
police officer to be treated as a law enforcement officer for
retirement purposes must be made either before the police officer
separates from the MWAA or within 1 year from the effective date of
these regulations, whichever is earlier.
An MWAA police officer covered by CSRS or FERS who elects to be
treated as a law enforcement officer will receive law enforcement
officer service credit for his or her past service as a police officer
with the Federal Aviation Administration and the MWAA, subject to a
deposit of retirement deductions plus interest. The MWAA must pay the
agency's share of retirement contributions for the employee's service,
plus interest.
Delegation of Authority To Deny Coverage
Under the CSRS and FERS law enforcement officer and firefighter
regulations a department headquarters-level official who is the sole
such representative for the entire department must make law enforcement
officer or firefighter coverage-approval decisions for position-based
retirement coverage. Due to cost and consistency of decision
considerations, the authority to approve law enforcement officer or
firefighter coverage must be made by the agency head or, in the case of
an executive department, the designated representative of the head of
the executive department. The regulations do not expressly provide that
an agency head can delegate the authority to deny enhanced retirement
coverage to any level within an agency. Although the regulations did
not address the issue, delegation by the agency head of his or her
authority to deny enhanced coverage was discussed in the supplementary
information published with previous CSRS and FERS regulations. The
supplementary comments published with the FERS law enforcement and
firefighter regulations indicate that an agency head can delegate the
authority to deny enhanced coverage to any level within the agency.
Specifically, the supplementary information states that:
Section 842.804(c) allows an individual to request a
determination as to whether his or her position qualifies as a law
enforcement officer, firefighter, or air traffic controller
position. Of course, any affirmative determination must be made by
the agency head in accordance with Sec. 842.803. However, a denial
of an individual request for position approval may be made by the
agency head's designated representative, in accordance with agency
delegations of authority. Any final agency decision denying an
individual's request for position approval may be appealed to the
Merit Systems Protection Board.
We are amending Sec. 842.807 to clarify that (1) only agency
denial decisions made in response to individual requests under
Sec. 842.804(c) are subject to appeal and (2) agency denial
decisions may be made by officials below the level of agency head *
* *. (57 FR 32,685, 32,689 (1992)) (emphasis added).
The CSRS regulations also allow an agency head to delegate the
authority to deny law enforcement officer and firefigher coverage to
any level within the agency. Further, the U.S. Merit Systems Protection
Board has held that supplementary information published with the FERS
law enforcement and firefighter regulations makes it clear that an
agency head can delegate the authority to deny enhanced coverage to any
level within the agency. See Streeter v. Department of Defense, 80
M.S.P.R. 481, 484 (1998) (citing 57 FR 32685, 32688 (July 23, 1992)).
OPM is incorporating into the body of the regulations the information
regarding an agency head's authority to delegate denial decisions to
any level within the agency.
Waiver of General Notice of Proposed Rulemaking
Under section 553(b)(3)(A) and (B), and (d)(2) and (3) of title 5,
United States Code, I find that these regulations contain interpretive
rules and statements of policy, and that good
[[Page 38524]]
cause exists for waiving the general notice of proposed rulemaking and
for making these rules effective in less than 30 days. Elections of law
enforcement coverage by qualifying members of the Metropolitan
Washington Airports Authority police force under these regulations will
affect qualifying employees' retirement coverage retroactive to their
entry on duty with the Metropolitan Washington Airports Authority.
Publication of a general notice on proposed rulemaking would be
contrary to the public interest because it would delay the election
opportunity for eligible individuals.
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 a small number of employees of the Metropolitan
Washington Airports Authority.
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 requirements,
Retirement.
U.S. Office of Personnel Management.
Steven R. Cohen,
Acting Director.
For the reasons stated in the preamble, the Office of Personnel
Management amends 5 CFR parts 831 and 842 as follows:
PART 831--RETIREMENT
1. The authority citation for part 831 is revised to read as
follows:
Authority: 5 U.S.C. 8347; 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 section 7001 of Pub. L. 105-
174, 112 Stat. 58; 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 sections 11202(f), 11232(e), and
11246(b) of Pub. L. 105-33, 111 Stat. 251; Sec. 831.201(g) also
issued under sections 7(b) and 7(e) of Pub. L. 105-274, 112 Stat.
2419; Sec. 831.201(i) also issued under sections 3 and 7(c) of Pub.
L. 105-274, 112 Stat. 2419; Sec. 831.204 also issued under section
102(e) of Pub. L. 104-8, 109 Stat. 102, as amended by section 153 of
Pub. L. 104-134, 110 Stat. 1321; Sec. 831.205 also issued under
section 2207 of Pub. L. 106-265, 114 Stat. 784; Sec. 831.301 also
issued under section 2203 of Pub. L. 106-265, 114 Stat. 780; Sec.
831.303 also issued under 5 U.S.C. 8334(d)(2) and section 2203 of
Pub. L. 106-235, 114 Stat. 780; 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. p. 317; Sec. 831.663 also issued under
5 U.S.C. 8339(j) and (k)(2); Secs. 831.663 and 831.664 also issued
under section 11004 (c)(2) of Pub. L. 103-66, 107 Stat. 412; Sec.
831.682 also issued under section 201(d) of Pub. L. 99-251, 100
Stat. 23; Sec. 831.912 also issued under section 636 of H.R. 5658,
incorporated by reference in Pub. L. 106-554, 114 Stat. 2763, and
published as Appendix C to Pub. L. 106-554 at 114 Stat. 2763A-125;
subpart V also issued under 5 U.S.C. 8343a and section 6001 of Pub.
L. 100-203, 101 Stat. 1330-275; Sec. 831.2203 also issued under
section 7001(a)(4) of Pub. L. 101-508, 104 Stat. 1388-328.
Subpart I--Law Enforcement Officers and Firefighters
2. Amend Sec. 831.902 by revising the definition of agency head 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 the purpose of
an approval of coverage under 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, and who is the sole
such representative for the entire department. For the purpose of a
denial of coverage under this subpart, agency head is also deemed to
include the designated representative of the agency head, as defined in
the first sentence of this definition, at any level within the agency.
* * * * *
3. Amend Sec. 831.908 by revising paragraph (a) to read as follows:
Sec. 831.908 Mandatory separation.
(a) The mandatory separation provisions of 5 U.S.C. 8335(b) apply
to all law enforcement officers and firefighters 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.
* * * * *
4. Revise Sec. 831.910 to read as follows:
Sec. 831.910 Review of decisions.
(a) The final decision of an agency head or OPM issued to an
employee, former employee, or survivor as the result of a request for
determination filed under Sec. 831.906 may be appealed to the Merit
Systems Protection Board under procedures prescribed by the Board.
(b) The final decision of an agency head 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. 8336(d)(1) may be appealed to
the Merit Systems Protection Board under procedures prescribed by the
Board.
5. Add an undesignated center heading and a new Sec. 831.912 to
subpart I to read as follows:
Regulations Pertaining to Noncodified Statutes
Sec. 831.912 Elections to be deemed a law enforcement officer for
retirement purposes by certain police officers employed by the
Metropolitan Washington Airports Authority (MWAA).
(a) Who may elect. Metropolitan Washington Airports Authority
(MWAA) police officers employed as members of the MWAA police force as
of December 21, 2000, who are covered by the provisions of the Civil
Service Retirement System by 49 U.S.C. 49107(b) may elect to be deemed
a law enforcement officer for retirement purposes and have past service
as a member of the MWAA and Federal Aviation Administration police
forces credited as law enforcement officer service.
(b) Procedure for making an election. Elections by an MWAA police
officer to be treated as a law enforcement officer for retirement
purposes must be made in writing to the MWAA and filed in the
employee's personnel file in accordance with procedures established by
OPM in consultation with the MWAA.
(c) Time limit for making an election. An election under paragraph
(a) of this section must be made either before the
[[Page 38525]]
MWAA police officer separates from service with the MWAA or July 25,
2002.
(d) Effect of an election. An election under paragraph (a) of this
section is effective on the beginning of the first pay period following
the date of the MWAA police officer's election.
(e) Irrevocability. An election under paragraph (a) of this section
becomes irrevocable when received by the MWAA.
(f) Employee payment for past service. (1) An MWAA police officer
making an election under this section must pay an amount equal to the
difference between law enforcement officer retirement deductions and
retirement deductions actually paid by the police officer for the
police officer's past police officer service with the Metropolitan
Washington Airports Authority and Federal Aviation Administration. The
amount paid under this paragraph shall be computed with interest in
accordance with 5 U.S.C. 8334(e) and paid to the MWAA prior to
separation.
(2) Starting with the effective date under paragraph (d) of this
section, the MWAA must make deductions and withholdings from the
electing MWAA police officer's base pay in accordance with 5 CFR
831.907.
(g) Employer contributions. (1) Upon the police officer's payment
for past service credit under paragraph (f) of this section, the MWAA
must, in accordance with procedures established by OPM, pay into the
Civil Service Retirement and Disability Fund the additional agency
retirement contribution amounts required for the police officer's past
service, plus interest.
(2) Starting with the effective date under paragraph (d) of this
section, the MWAA must make agency contributions for the electing
police officer in accordance with 5 CFR 831.907.
(h) Mandatory Separation. (1) An MWAA police officer who elects to
be treated as a law enforcement officer for CSRS retirement purposes is
subject to the mandatory separation provisions of 5 U.S.C. 8335(b) and
5 CFR 831.502(a).
(2) The President and Chief Operating Officer of the MWAA is deemed
to be the head of an agency for the purpose of exempting an MWAA police
officer from mandatory separation in accordance with the provisions of
5 U.S.C. 8335(b) and 5 CFR 831.502.
(i) Reemployment. An MWAA police officer who has been mandatorily
separated under 5 U.S.C. 8335(b) is not barred from reemployment after
age 60 in any position except a CSRS primary or secondary law
enforcement officer position or a FERS rigorous law or secondary
enforcement officer position. Service by a reemployed former MWAA
police officer who retired under 5 U.S.C. 8336(c) is not covered by the
provisions of 5 U.S.C. 8336(c).
PART 842--FEDERAL EMPLOYEES RETIREMENT SYSTEM--BASIC ANNUITY
6. 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; Sec.
842.107 also issued under sections 11202(f), 11232(e), and 11246(b)
of Pub. L. 105-33, 111 Stat. 251; Sec. 842.107 also issued under
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.
842.213 also issued under 5 U.S.C. 8414(b)(1)(B) and section 7001 of
Pub. L. 105-174, 112 Stat. 58, as amended by section 651 of Pub. L.
106-58, 113 Stat. 430; 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 H.R. 5658, incorporated by reference in Pub. L. 106-
554, 114 Stat. 2763, and published as Appendix C to Pub. L. 106-554
at 114 Stat. 2763A-125.
Subpart H--Law Enforcement Officers, Firefighters, and Air Traffic
Controllers
7. Amend Sec. 842.802 by revising the definition of agency head 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. 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 the purpose of
an approval of coverage under 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, and who is the sole
such representative for the entire department. For the purpose of a
denial of coverage under this subpart, agency head is also deemed to
include the designated representative of the agency head, as defined in
the first sentence of this definition, at any level within the agency.
* * * * *
8. Revise Sec. 842.807 to read as follows:
Sec. 842.807 Review of decisions.
(a) The final decision of an agency head denying an individual's
request for approval of a position as a rigorous, secondary, or air
traffic controller position made under Sec. 842.804(c) may be appealed
to the Merit Systems Protection Board under procedures prescribed by
the Board.
(b) The final decision of an agency head denying an individual
coverage while serving in an approved secondary position because of
failure to meet the conditions in Sec. 842.803(b) may be appealed to
the Merit Systems Protection Board under procedures prescribed by the
Board.
9. Add an undesignated center heading and new Sec. 842.810 to
subpart H to read as follows:
Regulations Pertaining to Noncodified Statutes
Sec. 842.810 Elections to be deemed a law enforcement officer for
retirement purposes by certain police officers employed by the
Metropolitan Washington Airports Authority (MWAA).
(a) Who may elect. Metropolitan Washington Airports Authority
(MWAA) police officers employed as members of the MWAA police force as
of December 21, 2000, who are covered by the provisions of the Federal
Employees Retirement System by 49 U.S.C. 49107(b) may elect to be
deemed a law enforcement officer for retirement purposes and have past
service as a member of the MWAA and Federal Aviation Administration
police forces credited as law enforcement officer service.
(b) Procedure for making an election. Elections by an MWAA police
officer to be treated as a law enforcement officer for retirement
purposes must be made in writing to the MWAA and filed in the
employee's personnel file in accordance with procedures established by
OPM in consultation with the MWAA.
[[Page 38526]]
(c) Time limit for making an election. An election under paragraph
(a) of this section must be made either before the MWAA police officer
separates from service with the MWAA or July 25, 2002, whichever occurs
first.
(d) Effect of an election. An election under paragraph (a) of this
section is effective on the beginning of the first pay period following
the date of the MWAA police officer's election.
(e) Irrevocability. An election under paragraph (a) of this section
becomes irrevocable when received by the MWAA.
(f) Employee payment for past service. (1) An MWAA police officer
making an election under this section must pay an amount equal to the
difference between law enforcement officer retirement deductions and
retirement deductions actually paid by the police officer for the
police officer's past police officer service with the Metropolitan
Washington Airports Authority and Federal Aviation Administration. The
amount paid under this paragraph shall be computed with interest in
accordance with 5 U.S.C. 8334(e) and paid to the MWAA prior to
separation.
(2) Starting with the effective date under paragraph (d) of this
section, the MWAA must make deductions and withholdings from the
electing MWAA police officer's base pay in accordance with 5 CFR
832.805.
(g) Employer contributions. (1) Upon the police officer's payment
for past service credit under paragraph (f) of this section, the MWAA
must, in accordance with procedures established by OPM, pay into the
Civil Service Retirement and Disability Fund the additional agency
retirement contribution amounts required for the police officer's past
service, plus interest.
(2) Starting with the effective date under paragraph (d) of this
section, the MWAA must make agency contributions for the electing
police officer in accordance with 5 CFR 842.805.
(h) Mandatory Separation. (1) An MWAA police officer who elects to
be treated as a law enforcement officer for FERS retirement purposes is
subject to the mandatory separation provisions of 5 U.S.C. 8425(b) and
5 CFR 831.502.
(2) The President and Chief Operating Officer of the MWAA is deemed
to be the head of an agency for the purpose of exempting an MWAA police
officer from mandatory separation in accordance with the provisions of
5 U.S.C. 8425(b) and 5 CFR 831.502(b)(1).
(i) Reemployment. An MWAA police officer who has been mandatorily
separated under 5 U.S.C. 8425(b) is not barred from reemployment in any
position except a FERS rigorous or secondary law enforcement officer
position after age 60. Service by a reemployed former MWAA police
officer who retired under 5 U.S.C. 8412(d) is not covered by the
provisions of 5 U.S.C. 8412(d).
[FR Doc. 01-18530 Filed 7-24-01; 8:45 am]
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