authorized under section 8340 of title 5, United States Code, between the termination and resumption of annuity, will be applied to increase the resumed rate.

[42 FR 6793, Feb. 4, 1977; 48 FR 38787, Aug. 26, 1983. Redesignated at 53 FR 35295, Apr. 21, 1988]

Subpart I-Law Enforcement Officers and Firefighters

SOURCE: 52 FR 47894, Dec. 17, 1987, unless otherwise noted.

§ 831.901 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 law enforcement officers and firefighters employed under the Civil Service Retirement System; 5 U.S.C. 8331(3) (C) and (D), 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 administer and prescribe regulations to carry out subchapter III of chapter 83, United States Code.

Detention duties means duties that require frequent direct contact in the detention, direction, supervision, inspection, training, employment, care, transportation, or rehabilitation of individuals suspected or convicted of offenses against the criminal laws of the United States or the District of Columbia or offenses against the punitive articles of the Uniform Code of Military Justice (chapter 47 of title 10, United States Code). (See 5 U.S.C. 8331(20).)

Firefighter means an employee, whose duties are primarily to perform work directly connected with the control and extinguishment of fires or the maintenance and use of firefighting apparatus and equipment. Also includ

ed in this definition is an employee engaged in this activity who is transferred to a supervisory or administrative position. (See 5 U.S.C. 8331(21).) An employee whose primary duties are the performance of routine fire prevention inspection is excluded from this definition.

Frequent direct contact means personal, immediate, and regularly-assigned contact with detainees while performing detention duties, which is repeated and continual over a typical work cycle.

Law enforcement officer means an employee, the duties of whose position are primarily the investigation, apprehension, or detention of individuals suspected or convicted of offenses against the criminal laws of the United States, including an employee engaged in this activity who is transferred to a supervisory or administrative position. (See 5 U.S.C. 8331(20).) The definition does not include an employee whose primary duties involve maintaining law and order, protecting life and property, guarding against or inspecting for violations of law, or investigating persons other than persons who are suspected or convicted of offenses against the criminal laws of the United States.

Primary duties means those duties of a position that

(a) Are paramount in influence or weight; that is, constitute the basic reasons for the existence of the position;

(b) Occupy a substantial portion of the individual's working time over a typical work cycle; and

(c) Are assigned on a regular and recurring basis.

Duties that are of an emergency, incidental, or temporary nature cannot be considered "primary" even if they meet the substantial portion of time criterion. In general, if an employee spends as average of at least 50 percent of his or her time performing a duty or group of duties, they are his or her primary duties.

Primary position means a position whose primary duties are (a) to perform work directly connected with controlling and extinguishing fires or maintaining and using firefighter apparatus and equipment; or (b) investi

gating, apprehending, or detaining individuals suspected or convicted of offenses against the criminal laws of the United States.

Secondary position means a position that (a) is clearly in the law enforcement or firefighting field; (b) is in an organization having a law enforcement or firefighting mission; and (c) is either

(1) Supervisory; i.e., a position whose primary duties are as a first-level supervisor of law enforcement officers or firefighters in primary positions; or

(2) Administrative; i.e., an executive, managerial, technical, semiprofessional, or professional position for which experience in a primary law enforcement or fire-fighting position, or equivalent experience outside the Federal government, is a mandatory prerequisite.

[52 FR 47894, Dec. 17, 1987, as amended at 55 FR 50154, Dec. 5, 1990]

§ 831.903 Conditions for coverage in primary positions.

An employee's service in a position that has been approved as a primary position by OPM or its predecessor, the U.S. Civil Service Commission, is automatically covered under the provisions of 5 U.S.C. 8336(c). An employee who is not in a primary or secondary position and is detailed to a primary position is not covered under the provisions of 5 U.S.C. 8336(c).

§ 831.904 Conditions for coverage in secondary positions.

(a) An employee's service in a secondary position is covered under the provisions of 5 U.S.C. 8336(c) if the employee meets the following criteria:

(1) Employee is transferred directly (i.e., without a break in service exceeding 3 days) from a primary position to a secondary position; and

(2) 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 section 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) This requirement for continuous employment in a secondary position applies only to voluntary breaks in service beginning after January 19, 1988.

(c) An employee who is not in a primary or secondary position and is detailed to a secondary position is not covered under the provisions of 5 U.S.C. 8336(c).

(d) The service of an employee who is in a position on January 19, 1988 that has been approved as a secondary position by OPM or its predecessor, the U.S. Civil Service Commission, will continue to be covered under the provisions of 5 U.S.C. 8336(c) as long as the employee remains in that position without a voluntary break in service and coverage is not revoked by OPM under § 831.909(c).

§ 831.905 Agency requests for OPM determination of primary positions.

(a) After its analysis of the evidence required under § 831.907(a) (1) though (7) for a current position, an agency will submit a request to OPM for a determination that the duties of the position qualify the position as a primary position. The request for OPM approval must include the required evidence and a detailed statement of the agency's reasons why it believes the position meets the statutory and regulatory requirements.

are

(b) If the agency request is based on a finding that the primary duties of the position detention duties which require the incumbent to have frequent direct contact with detainees, the agency will submit the information listed in § 831.907(a) (1) through (6) and (b) (1) through (5) and also a statement supporting its initial determination of "frequent direct contact" for OPM's concurrence in the determination of "frequent direct contact" and for OPM's determination that the position otherwise meets the criteria for a primary position.

§ 831.906 Agency requests for OPM determination of secondary positions.

After its analysis of the evidence listed under § 831.907(c) (1) through

(a) When an agency makes a request to OPM for a determination that a position is a primary position, the request must be signed by the agency head or his or her representative. In no instance, however, may a person below the level of the agency personnel director be designated as the agency head's representative. A request from a statutory Inspector General must go through the agency head but must be submitted to OPM by the agency. The following documentation must be included in the request:

(1) The official position description annotated to show the percentage of time spent performing the various duties; or, if a position description is not required for the position or the position description is not current, a detailed narrative description of the duties and responsibilities including the knowledges, skills, and abilities required to perform the duties, and all other current agency documents describing the official duties of the position. In addition, if the position description is not current, an explanation as to why the position description has not been revised as well as a timetable for the proposed revision;

(2) The functional statement for the organization where the position is located and the organizational chart showing at least two levels above and below the level of the position;

(3) The critical and non-critical elements and performance standards for the position established by the agency under part 430 of this chapter (or, if the position is not subject to part 430, a statement of the effect);

(4) The evaluation statement, if any, explaining the classification of the position;

(5) The agency qualification and medical standards for entry and reten

tion, or a statement that the standards are the same as the X-118 handbook standards;

(6) A statement concerning the current or proposed maximum entry age, if any; and

(7) For law enforcement officers, a list of the provisions of Federal criminal laws the incumbent is responsible for enforcing.

(b) If the agency request for an OPM determination as to whether a position is a primary position is based on an agency finding that the primary duties of the position are detention duties, the agency will include a statement supporting its initial determination of "frequent direct contact" and request OPM concurrence with its determination. This statement must include

(1) The incumbent's worksite and official duty station, with a description of where contact with Federal detainees occurs;

(2) The frequency of contact with Federal detainees over a daily, weekly, monthly, or quarterly work cycle;

(3) The average duration of these contacts;

(4) The nature of the assigned duties which require the contacts (training, care, rehabilitation, etc.); and

(5) Any other pertinent information.

(c) When an agency makes a request for a determination that a position is a secondary position, the request must be signed by the agency head or his or her representative. In no instance, however, may a person below the level of the agency personnel director be designated as the agency head's representative. A request from a statutory Inspector General must go through the agency head but must be submitted to OPM by the agency. The following documentation must be included in the request: (1) The documentation required under paragraphs (a) (1) through (7) of this section; and

(2) For an administrative position, certification that the position requires experience equivalent to that of a primary law enforcement or firefighting position; and

(3) For supervisory positions, certification that the position meets the requirements for a first-level supervisor.

(d) When OPM notifies the agency that official documentation is lacking or insufficient to meet the requirements under paragraphs (a), (b), and (c) of this section, agencies will submit the requested information and may submit any other material deemed appropriate (e.g., awards certificates, job applications, affidavits, job announcements, etc.). If the information requested is not received by OPM in a timely manner, OPM will make a decision based on the information contained in the file.

§ 831.908 Requests from individuals.

(a) The employee bears the burden of proof with respect to credit under 5 U.S.C. 8336(c). The employee must provide the agency, or OPM, with all pertinent information regarding duties performed to include, for law enforcement officers, a list of the provisions of Federal criminal law the incumbent is responsible for enforcing and arrests made; and, for firefighters, number of fires fought, names of fires fought, dates of fires, and position occupied while on firefighting duty.

(b) An employee who is currently serving in a position that has not been approved by OPM as a primary or secondary position, but who believes that his or her service is creditable as service in a primary or secondary position and that he or she satisfies the conditions for credit set forth above must be submitted to OPM through the current employing agency and the employing agency must submit an advisory opinion as to whether the position qualifies as a primary or secondary position. A request for a determination made directly to OPM by an employee, however, will not be accepted. The request will be returned by OPM to the employee for submission to the employee's agency for action. After its analysis of the evidence provided by the employee, the agency will submit a request to OPM for a determination and must include an advisory opinion to OPM as to whether it believes the individual's service in the position should or should not be credited and, if it qualifies, whether it should be a primary or secondary position. The agency's submission must include all evidence required under § 831.907 for a

determination of primary and secondary positions.

(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 must follow the procedures in paragraph (b) of this section. The request must be made to the agency where the claimed service was performed except as provided in paragraph (d) of this section. Based upon its analysis of official records and the individual's submissions, the agency will submit a request for a determination to OPM along with an advisory opinion as to whether the service should or should not be credited and, if credited, whether it qualifies as service in a primary or secondary position. The agency's submission must include all evidence required under § 831.907 for a determination of primary and secondary positions.

(d) For a current or former employee who performed service at an agency which is no longer in existence and for which there is no successor agency, OPM will accept, directly from the current or former employee (or the survivor of a former employee), a request for a determination as to whether a period of past service qualifies as service in a primary or secondary position and meets the conditions for credit.

(e) Requests received by the employing agency, the agency where past service as performed, or OPM, not later than September 30, 1989, may include any periods of previous service. After September 30, 1989, coverage in a position or credit for service will not be granted for a period greater than 1 year prior to the date that the request from an individual is received by the employing agency, the agency where past service was performed, or OPM. OPM may extend the time limits for filing when, in its judgment, the individual shows that he or she was prevented by circumstances beyond his or her control from making the request within the time limit.

(a) OPM's decision on an agency request for a determination under §§ 831.905 and 831.906 will be issued in writing to the agency following submission of all evidence required by § 831.907 and any other evidence requested by OPM. If OPM approves the position, it will be designated as a primary position or as a secondary position.

(b) OPM's decision on the request from an individual submitted under §§ 831.908 (b) or (c) will be issued in writing to the individual, the current employing agency and/or the agency in which the past service was performed following submission of all evidence requested by OPM.

(c) OPM may revoke approval of a position under paragraph (a) of this section if it determines, through an on-site evaluation, classification review, information provided by the agency, or from any other source, that the formerly approved position no longer meets the requisite definition.

(d) An adverse OPM decision will include an explanation of the basis for the decision and a statement of the applicable reconsideration rights. When OPM's decision is directed to the agency, the agency must inform each employee whose rights or interests under Subchapter III of chapter 83, United States Code, are affected, that the decision of OPM may be individually reconsidered by OPM in accordance with § 831.109. A request for reconsideration must follow the procedures in § 831.908. The notice to each affected employee must include a copy of OPM's written decision, must be duly dated, and a copy must be entered as a permanent record in the employee's official personnel file. If OPM's decision is later reversed, the copy in the official personnel file must be removed.

(e) Agencies may not represent in any way (e.g. position descriptions, vacancy announcements, etc.) that a position is a primary or secondary position if OPM has not so determined with respect to that position.

§ 831.910 Review of approved positions and certification to OPM.

(a) An agency must review a currently approved primary or secondary position wherever there is a significant change that may affect its designation to assess whether, in its opinion, the position continues to warrant approval. The agency must provide certification of the results of the review to OPM.

(b) If an agency finds that a currently approved primary or secondary position no longer warrants coverage, it must request that OPM revoke the approval. The request must fully explain the material change(s) in the position and state the date the change(s) occurred. The withdrawal of approval is effective 30 days after the date of OPM's notice to the agency. Beginning with the effective date of the revocation of approval, the agency must stop withholding the additional deductions and must inform each affected employee of OPM's action. The notice to the employee(s) must include a full explanation of the basis for OPM's determination, and state the right to request reconsideration of the determination and the time limits for requesting reconsideration in accordance with § 831.109. A request for reconsideration must follow the procedures in § 831.908. Any excess deductions must be refunded to the employee after the expiration of the time limits for requesting reconsideration or exhaustion of the administrative remedies, and upon proper application to OPM.

(c) If the agency abolishes a primary or secondary position, the agency must notify OPM.

§ 831.911 Withholdings and contributions.

(a) Prior to the receipt of OPM's decision that a position is a primary or secondary position, the additional employee withholding for the incumbent of such a position and the agency contribution required by 5 U.S.C. 8334(a)(1) must not be made. Upon receipt of OPM approval of the position, the effective date of the additional withholding and agency contribution is retroactive to the beginning date of covered service in the primary or secondary position.