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LAW ENFORCEMENT OFFICERS AND FIREFIGHTERS

DAO 202-958: LAW ENFORCEMENT OFFICERS AND FIREFIGHTERS
Number: DAO 202-958
Effective Date: 2016-05-10

SECTION 1.  POLICY.

.01     This Order prescribes the Department of Commerce’s (the Department’s) policies and procedures to foster and maintain a vigorous workforce of individuals who are assigned to physically arduous law enforcement officer (LEO) and firefighter (FF) positions, and to ensure that the Department remains competitive in attracting and retaining a qualified workforce of men and women who are physically capable of meeting the rigorous demands and dynamic challenges of law enforcement and FF activities.

.02    This revision updates: the delegation of authority in regards to the Inspector General Reform Act of 2008; the maximum-entry age waiver procedures for veterans’ preference eligible candidates; brings the Order into compliance with the Department’s current Drug Free Work Place Program drug testing requirements; and establishes a deadline for establishing annual testing requirements, procedures for annual evaluations, and procedures for compliance reporting regarding medical standards and physical requirements.

SECTION 2.  BACKGROUND.

.01       Heads of operating units (or their designee) shall designate employees to occupy positions of LEOs and FFs.  These employees may be eligible for special retirement coverage under Title 5, United States Code (U.S.C.) 8336(c) for the Civil Service Retirement System (CSRS) and under 5 U.S.C. 8412(d) for the Federal Employees’ Retirement System (FERS).  This coverage is known as LEO/FF retirement coverage.

.02       Special retirement provisions may apply to LEOs and FFs covered by either FERS or CSRS, but different definitions are used in determining whether the special retirement provisions are applicable.  Consequently, an employee occupying one of the designated positions who has CSRS coverage may come under the special provisions while another employee who occupies the same position but who has FERS coverage may not.  

SECTION 3.  DEFINITIONS.

.01       CSRS Definitions.

a.         LEO is defined as an employee in a position where duties are primarily the investigation, apprehension, or detention of individuals suspected or convicted of offenses against the criminal laws of the United States.  This definition includes an employee engaged in LEO activity who moves directly to a supervisory or administrative position (i.e., a secondary position, as defined under Title 5, Code of Federal Regulations (CFR) 831.902); but 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 those who are suspected or convicted of offenses against the criminal laws of the United States.

b.         FF is defined as 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.  Employees whose primary duties are the performance of routine fire prevention inspections are excluded from this definition.  An employee engaged in covered FF activities who moves directly to a supervisory or administrative position (i.e., a secondary position, as defined under 5 CFR 831.902) is included in this definition.

c.         A Primary Position is defined as a position where the primary duties are investigating, apprehending, or detaining individuals suspected or convicted of offenses against the criminal laws of the United States; or performing work directly connected with controlling and extinguishing fires or maintaining and using FF apparatus and equipment.

d.         A Secondary Position is defined as a position that is clearly in the law enforcement or firefighting field; in an organization having a law enforcement or firefighting mission; and is either supervisory, meaning a position whose primary duties are those of a first-level supervisor of LEOs or FFs in primary positions; or administrative, meaning an executive, managerial, technical, semiprofessional, or professional position for which experience in a primary law enforcement or firefighting position, or equivalent experience outside the Federal Government, is a prerequisite. 

.02       FERS Definitions.

a.         LEO is defined as an employee occupying a rigorous position, whose primary duties are the investigation, apprehension, or detention of individuals suspected or convicted of offenses against the criminal laws of the United States, or the protection of officials of the United States against threats to personal safety (as defined under 5 CFR 842.802).

1.         This definition also includes an employee occupying a rigorous LEO position who moves directly to a supervisory or administrative position (i.e., a secondary position as defined under 5 CFR 842.803) after completing three years of service in a rigorous position.

2.         This definition does not include an employee whose primary duties involve maintaining 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.

b.         FF is defined as an employee occupying a rigorous position, whose primary duties are to perform work directly connected with the control and extinguishment of fires.  Also included in this definition is an employee occupying a rigorous FF position who moves directly to a supervisory or administrative position (i.e., a secondary position as defined in 5 CFR 842.802) after performing the duties described above for three years. 

c.         A Rigorous Position for purposes of this Section is defined as a position in which the duties are so rigorous that employment opportunities should be limited (through establishment of a maximum entry age and physical qualifications) to young and physically vigorous individuals.  The condition in this definition that employment opportunities be limited does not apply with respect to any employee who moves directly (i.e., without a break in service exceeding three days) from one rigorous LEO position to another or from one rigorous FF position to another.

d.         A Secondary Position is defined as a position that:

1.         Is clearly in the law enforcement or firefighting fields;

2.         Is in the organization having a law enforcement or firefighting mission; and

3.         Is either supervisory, that is, a position whose primary duties are those of a first-level supervisor of LEOs or FFs in rigorous positions; or administrative, that is, an executive, managerial, technical, semiprofessional, or professional position for which experience in a rigorous law enforcement or firefighting position, or equivalent experience outside the Federal Government, is a mandatory prerequisite. 

.03       Primary Duties under CSRS and FERS:

a.         Generally, if an employee spends an average of at least 50 percent of his or her time performing a duty or group of duties, they are deemed to be his or her "primary duties," without the need for further evidence or support.  Duties that are of an emergency, incidental, or temporary nature, cannot be considered primary even if they meet the substantial portion of time criterion.  The primary duties of a position are those that:

1.         Are paramount in influence or weight; that is, constitute the basic reason for the existence
of the position;

2.         Occupy a substantial portion of the individual’s working time over a typical work cycle;
and

3.         Are assigned on a regular and recurring basis.

b.         Office of Personnel Management (OPM) guidance in applying the 50-percent rule to LEO or FF positions are as follows:

1.         The 50-percent standard is a "shortcut method" and is considered a general, not an absolute requirement.  Therefore, if the duties of a position are within the definition of LEO or FF duties and are performed at least 50 percent of the time, then the primary duty requirement has been met and no further inquiry is required.  If the position fails the 50-percent standard, then a further inquiry must be made to determine whether the duties of the position meet the primary duty requirement under the regulations.

2.         A position can fail the 50-percent standard and still meet the primary duty requirement if the LEO duties of a position are paramount in influence or weight (i.e., constitute the basic reasons for the existence of the position), occupy a substantial portion of the individual's working time over a typical work cycle, and are assigned on a regular and recurring basis.  Thus, if an employee meets all other primary duty requirements and performs LEO or FF duties for a substantial portion of his or her working time over a typical work cycle, but less than 50 percent of the time, then the primary duty requirement would be met.  E.g., a position that would fail the 50-percent test, but could still pass the primary duty requirement, would be a position that clearly exists to investigate and apprehend individuals suspected or convicted of offenses against the criminal laws of the United States.  An example would be a Federal criminal investigator position with criminal investigation as the paramount reason for the existence of the position), with LEO duties regularly assigned and performed a substantial portion of the time, but less than 50 percent of the time.

SECTION 4.  SCOPE.

.01       LEO and FF Coverage Under CSRS.  These policies cover LEO positions as defined in 5 U.S.C. 8331(20) and 5 CFR 831.902 and approved by the Department; and FF positions as defined in 5 U.S.C. 8331(21) and 5 CFR 831.902 and approved by the Department.

.02       LEO and FF Coverage Under FERS.  These policies cover LEO positions as defined in 5 U.S.C. 8401(17) and 5 CFR 842.802 and approved by the Department; and FF positions as defined in 5 U.S.C. 8401(14) and 5 CFR 842.802 and approved by the Department.

.03       Within the Department of Commerce, the National Oceanic and Atmospheric Administration, the Bureau of Industry and Security, the Office of the Inspector General, the International Trade Administration, and the Office of Security under the Office of the Secretary have LEO positions.  The National Institute of Standards and Technology has FF positions. 

SECTION 5.  REFERENCES.   

.01       CSRS References 5 U.S.C. 8331(20)-(21); 5 U.S.C. 8335(b); 5 U.S.C.  8336(c); 5 CFR Part 831, Subpart I.

.02       FERS References 5 U.S.C. 8401(14), (17); 5 U.S.C. 8412(d); 5 U.S.C. 8425(b), (d); 5 CFR Part 842, Subpart H, 5 CFR 842.208.

.03       Reference the U.S. Office of Personnel Management’s (OPM’s) CSRS/FERS Handbook for Personnel and Payroll Offices, Chapter 46 for guidance on the special LEO/FF retirement coverage.  This handbook is available at https://www.opm.gov/retirement-services/publications-forms/csrsfers-handbook/.

SECTION 6.  DELEGATION OF AUTHORITY.

.01       Under applicable OPM regulations, the Secretary of Commerce (the Secretary) is authorized to determine LEO or FF coverage under CSRS and FERS for all Departmental operating units except the Office of the Inspector General.  Pursuant with the Inspector General Reform Act of 2008, each Office of Inspector General (OIG) shall be considered a separate agency, and the Inspector General shall have the functions, powers, and duties of an agency head or appointing authority.  Thus, the Inspector General will act as the Department head for LEO positions in that office, retaining full authority to establish, classify, select, and fill LEO positions which are established by and report to the Inspector General.  The Inspector General will also act as the Department head with respect to authorities related to separation, retirement, and reemployment of LEO positions in the OIG office. Consequently, any approval authorities or oversight responsibilities specifically retained by the Department do not apply to LEO positions in the OIG.

.02       The definition of "agency head" for purposes of approval of coverage also includes a Department headquarters-level official, who reports directly to the Secretary or the Deputy Secretary, and is the sole such representative for the entire Department.

.03       Pursuant to DOO 10-5, the Chief Financial Officer and Assistant Secretary for Administration (CFO/ASA), who reports directly to the Deputy Secretary, has been delegated the authority of the Secretary on all administrative management matters of the Department.  Accordingly, the CFO/ASA is responsible for approving coverage under the special LEO/FF retirement provisions.

SECTION 7.  OVERSIGHT AND ACCOUNTABILITY.

The Department retains approval authority for all new and redescribed law enforcement and fire protection positions.  Each operating unit has the responsibility of ensuring that positions are classified appropriately and that retirement coverage is properly implemented.  The Department retains oversight of this policy and will periodically request information and statistical reports from the operating units to ensure adherence to Departmental policy and procedures.

SECTION 8.  CONDITIONS FOR EMPLOYEE COVERAGE.

.01       Eligibility for LEO/FF Coverage under CSRS.  To establish whether a CSRS employee’s service is covered under the special LEO/FF retirement provisions, a determination must be made as to whether the employee occupies a primary or secondary position.  If the employee occupies a secondary position, he or she must also meet certain conditions to qualify for coverage.

a.         Primary Position

1.         An employee’s service in a position that has been determined by the agency head to be a primary LEO or FF position is covered under the special LEO/FF retirement provisions of CSRS.

2.         An employee who is neither in a primary position, nor a covered position, while in a secondary position, who is detailed or temporarily promoted to a primary position, is not covered under the special LEO/FF retirement provisions of CSRS.

b.         Secondary Position

1.         An employee’s service in a position determined by the agency head to be a secondary law enforcement or FF position is covered under the special LEO/FF retirement provisions of CSRS if all of the following criteria are met:

(a)        The employee, while covered under the special LEO/FF provisions, moves directly (i.e., without a break in service exceeding three days) from a primary position to a secondary position; and

(b)        If applicable, the employee has been continuously employed in secondary positions since transferring from a primary position without a break in service exceeding three days, except that a break in employment in secondary positions which begins with an involuntary separation (not for cause), is not considered in determining whether the service in secondary positions is continuous for this purpose.

2.         An employee who is neither in a primary position, nor covered while in a secondary position, who is detailed or temporarily promoted to a secondary position is not covered under the special LEO/FF retirement provisions of CSRS.

.02       Eligibility for LEO/FF Coverage under FERS.  To establish whether a FERS employee’s service is covered under the special LEO/FF retirement provisions, a determination must be made as to whether the employee occupies a rigorous or secondary position.  If the employee occupies a “secondary” position, he or she must also meet certain conditions to qualify for coverage.

a.         Rigorous Position

1.         An employee’s service in a position that has been determined by the agency head to be a rigorous LEO or FF position is covered under the special LEO/FF retirement provisions of FERS.

2.         An employee who is neither in a rigorous position, nor a covered position while in a secondary position, who is detailed or temporarily promoted to a rigorous position, is not covered under the special LEO/FF retirement provisions of FERS.

b.         Secondary Position

1.         An employee’s service in a position determined by the agency head to be a secondary law enforcement or FF position is covered under the special LEO/FF retirement provisions of FERS if all of the following criteria are met:

(a)        The employee, while covered under the special LEO/FF provisions, moves directly (i.e., without a break in service exceeding three days) from a rigorous position to a secondary position; and

(b)        The employee has completed three years of service in a rigorous position, including any such service during which no FERS deductions were withheld; and 

(c)        The employee has been continuously employed in secondary positions since transferring from a rigorous position without a break in service exceeding three days, except that a break in employment in secondary positions which begins with an involuntary separation (not for cause), is not considered in determining whether the service in secondary positions is continuous for this purpose. 

2.         An employee who is neither in a rigorous position, nor a covered position while in a secondary position, who is detailed or temporarily promoted to a secondary position, is not covered under the special LEO/FF retirement provisions of FERS.

SECTION 9.  DEPARTMENT OF COMMERCE MAXIMUM ENTRY AGE.

.01       Title 5 U.S.C. 3307 authorizes the head of an agency to establish a maximum entry age for the original appointment of individuals to positions of LEO or FF which fall under the special retirement provisions of CSRS or FERS.

.02       For purposes of coverage under the special LEO/FF retirement provisions of CSRS or FERS, the day immediately preceding an individual’s 37th birthday is the last date for original appointment to a position as a LEO or a FF.

.03       Candidates will be considered eligible if they have not attained age 37 at the time of certification from an OPM register or from the servicing human resources office, regardless of whether the age limit is subsequently passed during the selection process prior to actual entry on duty.

.04       The maximum entry age does not apply with respect to an employee who moves directly (i.e., without a break in service exceeding three days) from one primary LEO position to another; from one primary FF position to another; directly from a primary law enforcement or FF position to a secondary position; from one rigorous LEO position to another; or from one rigorous FF position to another; directly from a rigorous law enforcement or FF primary position to a secondary position and has completed three years of service in a rigorous position, including any such service during which no FERS deductions were withheld, or from a secondary law enforcement or FF position to another secondary law enforcement or FF position without a break in service exceeding three days where coverage requirements for secondary positions as described above are met.

.05       Exceptions to the maximum entry age.

a.         For Preference Eligibiles

1.         Hiring managers are responsible for analyzing the duties of the position to determine whether age is essential to the performance of the position.  If it is determined that age is not essential to a position, the maximum entry-age requirement for veterans’ preference eligibiles must be waived.  Servicing human resources offices are still required to apply suitability, occupational qualifications standards, and medical determinations when waiving the maximum entry-age requirement for veterans’ preference eligibiles.  All LEO and FF position vacancy announcements must contain language stating that the maximum entry-age may be waived. 

b.  For Non-Preference Eligibles

1.         Exceptions to the Department’s maximum entry age policy are allowed in rare situations involving especially qualified individuals and the unique needs of the operating units, or where documented skills shortages arise in specific law enforcement or FF positions, or in certain areas of the country.  In these cases, the day immediately preceding an individual’s 40th birthday will be the last date for original appointment.

2.         The same policy applicable to passing the age limit during the referral process (see Section 9.03) applies to approved exceptions, i.e., an individual must not have reached age 40 at the time of referral, and subsequent attainment of age 40 during the selection process or prior to entry on duty will not be cause for rejection based on age.

3.         Operating units must establish procedures to document exceptions granted under this Section.  At a minimum, documentation must include:  location, title, series, and grade of each position, a brief summary of the duties of the position and the labor markets, recruitment efforts, etc., which resulted in the determination that a skills shortage existed or that the selectee possessed qualifications justifying the exception.

4.         Each operating unit head is responsible for approving exceptions and for ensuring that documentation is maintained for each exception made.

.06       Reporting Requirements for Exceptions.  A report is required annually on the exceptionsto the maximum age level requirements that are granted by the operating unit head during the preceding year.  The report must be submitted to the Director for Human Resources Management (the Director), by December 1 of each year and include the documentation outlined in Section 9.05.b.3. of this Order.

SECTION 10.  REENTRY INTO COVERED PRIMARY OR RIGOROUS POSITIONS.

.01       An individual who has passed the maximum entry age limit, but previously served in a covered LEO or FF position, may in some cases be reinstated to coverage in a primary or rigorous position, as defined in the regulations at 5 CFR Parts 831 and 842, if the individual:

a.         Meets the applicable qualification requirements for the position; and

b.         Will be able to complete a total of 20 years of covered law enforcement or FF service by the time he/she reaches the mandatory retirement age of 57.  For example, an individual who, after original appointment to a covered primary or rigorous position, works seven years as a LEO or FF, then accepts appointment to a non-covered job, may not be older than 44 (37 entry age plus seven years of service, actually computed to the nearest day) to be eligible for reentry into a primary or rigorous position.

.02       There is no maximum age for reentry to a position in which the individual will be ineligible for law enforcement or FF retirement coverage.  For example, the reentry age formula is not applied to an individual who is excluded from law enforcement or FF retirement coverage because of a break in secondary position service.

.03       Persons who retired under the special provisions for LEOs and FFs may not, after reaching age 60, be re-employed in primary or rigorous positions involving the actual performance of law enforcement or firefighting duties.

SECTION 11.  MEDICAL AND PHYSICAL REQUIREMENTS.

.01       Title 5 CFR Part 339, "Medical Qualification Determinations," contains OPM's basic guidance on the establishment of medical standards and physical requirements for Federal civilian positions.  OPM has established minimum medical standards for certain Government-wide occupations.  Generally, when medical requirements have been established by OPM for all positions in an occupational series, they are included in the individual qualification standards or individual occupational requirements mandated by OPM.  OPM has established minimum medical requirements for GS-081, Fire Protection and Prevention Series; and GS-1811, Criminal Investigating Series.  Appendix A provides an example for the development of medical requirements for individual positions.  Each operating unit must conduct a functional analysis of each covered position to establish medical requirements consistent with the functions of the position.

.02       The Department is authorized to establish physical requirements for individual positions when such requirements are considered essential for successful job performance.  The requirements must be clearly supported by the actual duties of the position and documented in the position description.  Each operating unit must conduct a functional analysis of each primary or rigorous position to establish physical requirements consistent with the functions of the position.  The Department has provided generic physical requirements for Security and Protection Specialists, GS-080, FFs GS-081, and Criminal Investigators, GS-1811.  Appendix B provides an example from which operating units should develop their physical requirements for each position.  The physical requirements developed by the operating unit for each position must be included in the position description.

.03       Department policy dictates that vacancy announcements must contain all position medical standards and physical requirements. 

.04       Following the initial appointment to a rigorous position, each LEO, security and protection specialist, and FF will complete annual testing to assess whether he or she continues to meet the medical and physical requirements of the position.

.05       No later than January 1st of each year, each operating unit cited in Section 4. will establish any annual testing requirements applicable to their rigorous LEO, security and protection specialist, or FF positions; the procedures by which their incumbent employees will be evaluated on an annual basis, and the procedures for reporting compliance to the servicing human resources office.

SECTION 12.  DRUG TESTING REQUIREMENTS.

.01       Consistent with Executive Order 12564 and 5 U.S.C. § 7301, the Department's Drug Free Workplace Plan (2009) implements the policy for random drug testing of employees in testing designated positions (TDP).  A TDP is a position that meets the latest mandatory guidance issued by Interagency Coordinating Group Executive Committee (ICGEC), Department of Health and Human Services and has been approved by the ICGEC.  A LEO position, defined in 5 U.S.C. §§ 8331(20) and 8401(17) that is required to carry firearms on a daily/regular basis; other positions authorized to carry firearms; and other positions that meet the criteria set forth in the ICGEC’s Mandatory Guidance are considered a TDP.

.02       Pre-employment drug testing shall be required of all individuals tentatively selected for employment with the Department in LEO positions that are designated TDP.  Incumbents of these positions are also subject to random drug testing per the Department’s Drug Free Workplace Plan.

.03       Every vacancy announcement for a TDP shall state: “Except as prohibited by law, all applicants tentatively selected for this position will be required to submit to pre-employment testing to screen for illegal drug use prior to appointment and random drug testing thereafter.”

.04       In addition, the applicant will be notified that appointment to the position will be contingent upon a negative drug test result.

.05       Failure of the vacancy announcement to contain this statement notice will not preclude applicant testing if advance written notice is provided applicants in some other manner. (See Drug Testing Procedures in Department’s Plan for a Drug-Free Workforce.)

SECTION 13.  LEO AND FF RETIREMENT ELIGIBILITY.

.01       An employee may retire at an early age with entitlement to a special annuity computation if all of the following conditions are met: age and service requirements (at age 50 with 20 years as a LEO or FF); separation from a position subject to CSRS coverage; and fulfillment of the "one-out-of-two requirement" (covered by CSRS for at least one year, which does not have to be continuous, within the two-year period immediately preceding the separation on which the annuity is based).

a.         The employee does not have to be in a LEO or FF position at the time of separation.

.02       LEO/FF Retirement Eligibility under FERS.  FERS employees covered by the special LEO/FF retirement provisions may retire voluntarily or involuntarily at an early age with entitlement to a special annuity computation if the following conditions are met:  Age and service requirements (at any age after 25 years of covered service, or at age 50 with 20 years of covered service); and separation from a position subject to FERS coverage.

SECTION 14.  MANDATORY SEPARATION OF LEOs AND FFs.

.01       In general, all LEOs and FFs are subject to mandatory separation based on age under CSRS or FERS.  However, mandatory separation does not apply to employees who are eligible
for retirement under the special provisions, but who are not currently occupying a LEO or FF position.  For retirement purposes, an employee is considered to reach a year of age on the day before his or her birthday.  A mandatory separation is considered an involuntary separation for purposes of other CSRS or FERS provisions.

.02       The mandatory separation age for LEOs is age 57.

.03       The mandatory separation age for FFs is age 57. 

.04       Except as provided under paragraph .05 of this Section, the mandatory separation is effective as follows:

a.         If the LEO or FF has completed 20 years of service under the special provisions, he or she must be separated on the last day of the month in which he or she reaches the standard mandatory separation age.

b.         If the LEO or FF attains the standard mandatory separation age and has not yet completed the required 20 years of service under the special provisions, he or she must be separated on the last day of the month in which he or she completes the 20 years of service.

.05       Once the date of mandatory separation is determined for a LEO or FF, the servicing human resources office must notify the employee in writing of the date of separation at least 60 days in advance of the date.  The action to separate the employee is not effective, without the consent of the employee, until the last day of the month in which the 60-day notice expires.

.06       A mandatory separation is not an adverse action under 5 CFR Part 752 or a removal action under 5 CFR Part 359.  In other words, a mandatory separation is not an appealable action.

.07       Exemption From Mandatory Separation Until Age 60.  Agency heads are authorized to exempt LEOs and FFs from mandatory separation under CSRS or FERS until age 60, if it is in the public interest. 

a.         In the Department, the authority to exempt LEOs and FFs from mandatory separation is vested in the Secretary.

b.         Operating units may request an exemption by forwarding a recommendation for an exemption, along with a justification as to why such exemption is in the public interest, to the Department’s Office of Human Resources Management at least 90 days before the employee's mandatory separation date.

.08       Exemption From Mandatory Separation After Age 60

a.         Exemption under CSRS.  If the Department wishes to secure an exemption from mandatory separation under CSRS for one of its employees (other than a Presidential appointee) beyond the employee's 60th birthday, the Secretary must submit a recommendation to that effect to the Chief of the Retirement Policy Division at OPM.  The recommendation must contain:

1.         A statement that the employee is willing to remain in service;

2.         A statement of facts that tend to establish that his or her retention would be in the public interest;

3.         The period (which may not exceed one year) for which the exemption is desired;

4.         The reasons why the simpler method of retiring the employee and immediately rehiring the employee is not being used.

5.         A medical certificate showing the physical fitness of the employee to perform his or her
work.  OPM may approve an exemption only before the mandatory separation date applicable to the employee.  For this reason, the operating unit must forward its recommendation to the Department at least 120 days before the employee's mandatory separation date in order to allow time for sufficient review by OPM.

b.         Exemption under FERS.  The President, by Executive Order, may exempt an employee from mandatory separation after age 60, if the President determines it is in the public interest to do so.  Unlike CSRS, the President's authority to exempt an employee from mandatory separation has not been delegated to OPM.

SECTION 15.  SUITABILITY, SECURITY, AND CONDUCT:  MANDATORY REMOVAL OF CONVICTED LEOs FROM EMPLOYMENT.

.01       Title 5, Chapter 73, Section 7371 provides for the mandatory removal of LEOs convicted of felonies from employment.

.02       Definitions:

a.   Conviction notice date is defined as the date on which an agency that employs a LEO has notice that the officer has been convicted of a felony that is entered by a federal or state court, regardless of whether that conviction is appealed or is subject to appeal; and

b.         LEO has the meaning given that term under 5 U.S.C. 8331(20) or 8401(17).

.03       Any LEO who is convicted of a felony shall be removed from employment as a LEO on the last day of the first applicable pay period following the conviction notice date.

.04       This does not prohibit the removal of an individual from employment as a LEO before a conviction notice date if the removal is properly effected under another Section of title 5, U.S.C.

.05       This does not prohibit the employment of any individual in any position other than that of A LEO.

.06       If the conviction is overturned on appeal, the removal shall be set aside retroactively to the date on which the removal occurred, with back pay under 5 U.S.C. 5596 for the period during which the removal was in effect, unless the removal was properly effected under another Section of title 5, U.S.C.

.07       If removal is required under 5 U.S.C. 7371, the operating unit shall deliver written notice to the employee as soon as practicable, and not later than five calendar days after the conviction notice date.

.08       The notice shall include a description of the specific reasons for the removal, the date of removal, and the procedures made applicable under Section 15.09 below.

.09       The procedures under 5 U.S.C. 7513(b)(2), (3), and (4), (c), (d), and (e) shall apply to any removal under 5 U.S.C. 7371.  The employee may use the procedures to contest or appeal a removal, but only with respect to whether the employee is a LEO, the employee was convicted of a felony; or conviction was overturned on appeal.

.10       A removal required under 5 U.S.C. 7371 shall occur on the date specified in paragraph 15.03 above, regardless of whether the notice required under paragraph 15.08 and the procedures made applicable under paragraph 15.09 have been provided or completed by that date.

 

SECTION 16.  PROCEDURE FOR REQUESTING SPECIAL RETIREMENT COVERAGE FOR LEOs AND FFs.

.01       On behalf of the Secretary, the CFO/ASA has been delegated authority to approve:

a.         any position that meets the requirements for coverage as a LEO or FF under 5 U.S.C. 8336(c) and 8412(d); and

b.         individual requests from current or former employees for credit toward special retirement provisions of past service they performed with the Department of Commerce in an unapproved LEO or FF position.

.02       Management Requests for Approval of LEO/FF Retirement Coverage.

a.         All management requests for approval of LEO/FF retirement coverage for new or redescribed LEO and for FF positions must be submitted by the principal or servicing human resources manager through the Director to the CFO/ASA.

b.         The following documents must be included in each management request submitted for approval of LEO or FF coverage under CSRS and FERS provisions:

1.         The numbered official position description annotated to show the percentage of time spent performing the various duties;

2.         The functional statement for the organization;

3.         The critical elements and performance standards;

4.         The classification evaluation statement;

5.         The qualification and medical standards for entry and retention, or a statement that the standards are the same as the OPM Operating Manual, Qualification Standards for General Schedule Positions.

6.         The physical requirements statement or standards;

7.         A statement concerning the maximum entry age for primary positions under CSRS and rigorous positions under FERS;

8.         For LEO positions only, a list of provisions of federal criminal laws for which the incumbents are responsible for enforcing and for which arrests can be made;

9.         For FF positions only, a list of the number of fires fought, names of fires fought, and dates of fires; and,

10.       Certification by the principal or servicing human resources manager that the position meets the requirements for coverage under 5 U.S.C. 8336(c) and 8412(d).

c.         Denial of Requests for Coverage.

1.         The Director will review all requests for LEO/FF coverage.  The Director has the Authority to deny a request for LEO/FF coverage.

2.         Any such denial will be made in writing and a copy of the written denial provided to the CFO/ASA.

d.         Approval by the CFO/ASA.

1.         Upon written approval by the CFO/ASA, the Director will notify the servicing human resources office of the approval of the request.

2.         The servicing human resources office will enter the appropriate CSRS or FERS special retirement coverage code in the personnel/payroll database for the position.  The effective date of coverage will be specified in the decision letter.  Generally, for a new LEO or FF position, the coverage begins as of the date of the approval decision. 

.03       Individual Requests for Coverage of Past Service.

a.         An employee who is currently serving in a position that has not been approved as a LEO/FF position, but who believes that his or her service is creditable under the special LEO/FF retirement provisions, may request that a coverage determination be made by the CFO/ASA.  A former employee who believes that a period of past service in an unapproved position qualifies as LEO/FF service may also request a determination that the service is creditable.

b.         Individual Requests for Position Approval under CSRS.

1.         An employee may, at any time after entering the position he/she believes should be a LEO or FF position or after any significant change in the position, formally seek a determination regarding his or her position (5 CFR 831.906).  Credit, however, will be limited to one year before the date the request is received by the employee’s servicing human resources office.  

2.         If an employee does not request a position determination within one year, the agency head’s determination that the service was not covered under the LEO/FF provisions 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. 

3.         An employee who requests LEO/FF service credit bears the burden of proof with respect to that service.  The employee’s request must be made in writing to his or her servicing human resources office.  The employee must provide the Department with all pertinent information regarding duties performed including:

(a)        For LEOs, a list of the provisions of the federal criminal laws for which the incumbent is responsible for enforcing and for which arrests can be made.

(b)        For FFs, the number of fires fought, names of fires fought, dates of fires, and position occupied while on FF duty.

4.         The agency head may extend these time limits for filing when, in the judgment of the agency head, the employee shows that he or she was prevented by circumstances beyond his or her control from making the request within the time limit.   

c.         Individual Requests for Position Approval under FERS.

1.         A FERS employee who is not in an approved LEO/FF position (rigorous or secondary) may request within six months of entrance into the position, or within six months after any significant change in the position, a determination from the CFO/ASA regarding his or her position (5 CFR 842.804).  The individual request must be in writing to the servicing human resources office.

2.         If an employee does not request a position determination within six months, the agency head’s determination that the service was not covered under the LEO/FF provisions 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. 

d.         Processing of Requests for LEO/FF Coverage Approval by Servicing Human Resources Offices.

1.         If the principal or servicing human resources manager concludes that the position meets the requirements for coverage under 5 U.S.C. 8336(c) and 8412(d), he or she must submit the individual's request to the CFO/ASA through the Director.  Included in the request should be the documents referenced under Section 16.02.b.

2.         If the principal or servicing human resources manager concludes that the position does not meet the requirements for LEO or FF retirement coverage, he or she will forward to the Director the documents referenced under Section 16.02b, above, and an advisory opinion supporting the conclusion that the position does not meet the requirements for coverage.

e.         Denial of Requests for Position Approval.

1.         The Director will review all requests for LEO/FF position approval.  The Director has the authority to deny a request for LEO/FF position approval.

2.         Any such denial will be made in writing.  The Director’s decision to deny coverage is a final decision for the Department.

3.         An employee may appeal the final decision of the Department regarding a position determination to the Merit Systems Protection Board (MSPB).  The Director will advise the individual of his or her appeal rights in the decision letter.

f.          CFO/ASA Approval.

1.         If the Director believes a request for position approval is warranted, the Director will forward the request to the CFO/ASA.

2.         Upon approval by the CFO/ASA, the Director will notify the servicing human resources office and the employee of the approval of the request.  The position approval applies to all employees holding the same position.

3.         The servicing human resources office will enter the appropriate CSRS or FERS special retirement coverage code in the personnel/payroll database for the position.  The effective date of coverage will be specified in the decision letter. 

4.         If the CFO/ASA denies the position approval request, the denial will be in writing and will advise the requestor of his or her MSPB appeal rights.

g.         Individual Requests for Secondary Coverage Determination

1.         If an employee occupies an approved secondary position, but has been found ineligible for secondary coverage for failure to satisfy one of the requirements listed in Section 8.01b (for CSRS employees) or Section 8.02b (for FERS employees), he or she may request agency reconsideration of the coverage decision within the time limits provided in the initial agency decision. 

2.         Any request for reconsideration should be in writing to the Director for Human Resources Management.

3.         The Director will issue a written final decision regarding secondary coverage. 

4.         The final agency decision may be appealed to MSPB.

SECTION 17.  RECORD KEEPING.

.01       Decisions affecting an individual's coverage as a LEO or FF must be filed in the employee's Official Personnel Folder in accordance with OPM’s Guide to Personnel Record Keeping procedures.

.02       The Office of Human Resources Management will maintain the Department's official file of coverage decisions by the CFO/ASA made under the delegated authority.

SECTION 18.  AGENCY REVIEW OF APPROVED POSITIONS.

.01       Whenever there is a significant change in the duties of a currently approved LEO or FF position, the principal or servicing human resources manager must determine if the position retains coverage under the LEO or FF retirement provisions of CSRS or FERS.  If the position no longer qualifies as a LEO or FF position, its coverage under the special retirement provisions must be revoked.  The principal or servicing human resources manager must determine the effective date of the revocation and must inform each affected employee in writing of this action.  The notice to employees must include a full explanation of the basis for the determination that the position is no longer a LEO or FF position, and advise the employees of their appeal rights to the MSPB.  Appendices C and D are sample notices for use.

.02       Beginning with the date that the position no longer qualifies for coverage under LEO or FF retirement provisions, the servicing human resources office must stop withholding the additional retirement deductions for each affected employee.  If deductions are withheld from the employee’s salary beyond this date, they must be returned to the employee.

.03       Since the Department is required to inform OPM of any changes in approved LEO or FF positions, the principal or servicing human resources manager must notify the Director when a position no longer qualifies for LEO or FF coverage, is assigned a new position number, or is abolished by management.  The principal or servicing human resources manager must provide the effective date of the change in the position’s number or duties, or its abolishment.  A copy of any background documents (such as a position evaluation report), and the notice issued to employees affected by the loss of LEO or FF coverage of their position must also be included.

SECTION 19.  EFFECT ON OTHER ORDERS.

This Order supersedes Department Administrative Order 202-958 of June 24, 2003.

Signed by: Director for Human Resources Management

Approved by: Chief Financial Officer and Assistant Secretary for Administration

Office of Primary Interest: Office of Human Resources Management

 


APPENDIX A                                                                                                      DAO 202-958

 

MEDICAL REQUIREMENTS

 

The following information provides the OPM medical requirements for the Fire Protection and Prevention Series (GS-081), and the Criminal Investigating Series (GS-1811):

01.       Fire Protection and Prevention Series (GS-081)

a.         Applicants for positions having duties of an arduous or hazardous nature must meet the medical standards as established by the operating unit.  The standards described below are minimum OPM standards.  However, since individual positions may not include all such duties, a physical condition or impairment may be disqualifying for employment only if there is a direct relationship between the condition and the nature of the duties of the specific position to be filled. 

b.         Employees in positions involving firefighting duties or other duties involving arduous physical exertion will be subject to annual testing following appointment to determine fitness for continued performance of the duties of the position. (See 5 CFR Part 339). 

c.         A waiver of one or more medical requirements established by the operating unit may be granted for applicants and current employees where sufficient evidence exists that they can, with or without reasonable accommodation, perform the essential duties of the position without endangering the health and safety of themselves or others. 

1.         The head of the organizational unit of the prospective or current employee must certify in writing that even with the identified physical condition or impairment, the applicant or employee can, with or without reasonable accommodation, perform the essential duties of the position without endangering the health and safety of themselves or others.  The servicing human resources manager must concur and forward the waiver request to OHRM.

2.         The Director for Human Resources Management, in conjunction with the appropriate medical personnel, will either approve or deny the request in writing within fifteen business days.

d.         Any serious deviation from sound medical condition may be grounds for rejection of an applicant or removal or reassignment of a current employee regardless of whether the condition is named below.  Remediable defects or curable diseases will not exclude a person from consideration, but proof that such defects have been remedied or the disease cured must be received during the life of the eligible register before persons otherwise qualified may be considered for appointment under civil service rules.  Current employees must provide such proof within 30 days from the date of the medical finding or face removal or reassignment to a non-covered position. 

e.         Specific Medical Requirements

1.         Eyes: Corrected distant vision must be at least 20/30 in one eye and 20/70 in the other eye. Uncorrected distant vision is required only if it is likely that corrective lenses may be lost or broken.  If so, uncorrected distant vision must be at least 20/100 binocular.  Ability to distinguish basic colors is required.  Applicants must be free from acute or chronic eye disease.

2.         Ears: Using an audiometer for measurement, there should be no loss of 30 or more decibels in the unaided worst ear at the 500, 1000, and 2000 Hz levels.

3.         Nose, Mouth, and Throat: Applicants must be free from conditions that interfere with distinct speech, free breathing, or with the use of breathing apparatuses or protective equipment.

4.         Lungs: Applicants must be free from any pulmonary or chest wall disease or condition that results in not being able to perform the duties of the position.

5.         Heart and Blood Vessels: The following conditions may be cause for rejection: organic heart disease, valvular or vascular diseases, coronary heart disease, angina pectoris, recurrent syncope, or history of myocardial infarction.

6.         Abdomen: Acute or chronic disease or inflammation of the abdominal viscera, hernia, or significant enlargement of the liver or spleen that interferes with the performance of the duties of the position will be cause for rejection.

7.         Spine, Pelvic, Sacroiliac and Limbo-Sacral Joints: Applicants must have free movement of spine and pelvic joints.

8.         Neurological System: Degenerative neurological disease or disorder that results in documented evidence of neurological impairment that renders the applicant unable to perform the duties of the position will be cause for rejection. A history of serious mental disease may be disqualifying.

9.         Extremities: Individuals cannot have anomalies in the number, form, proportion, and movement of the extremities that interfere with function. This includes non-united fractures; nonreducible dislocations; united fractures and reduced dislocations with incomplete restoration of function; amputation of arm, hand, leg, or foot; loss of any skeletal portion of the thumb of either hand; loss of more than the two distal phalanges of the ring or little fingers of either hand; any lose joints; pes cavus, weak foot, or clubfoot; flatfoot with symptoms unresponsive to orthotics; loss or deformity of great toe or any two toes on the same foot; torn cartilage or loose foreign bodies within the knee joint; instability of the knee joint; or inadequately healed surgical procedure.

02.       Criminal Investigator (GS-1811). 

The following are the medical requirements established by OPM:

a.         The duties of positions in this series require moderate to arduous physical exertion involving walking and standing, use of firearms, and exposure to inclement weather.

b.         Manual dexterity with comparatively free motion of finger, wrist, elbow, shoulder, hip, and knee joints are required.

c.         Arms, hands, legs, and feet must be sufficiently intact and functioning in order that applicants may perform the duties satisfactorily.

d.         Sufficiently good vision in each eye, with or without correction, is required to perform the duties satisfactorily.   Near vision, corrective lenses permitted, must be sufficient to read printed material the size of typewritten characters.

e.         Hearing loss, as measured by an audiometer, must not exceed 35 decibels at 1000, 2000, and 3000 Hz levels.

f.          Since the duties of these positions are exacting and responsible, and involves activities under trying conditions, applicants must possess emotional and mental stability.

g.         Any physical condition that would cause the applicant to be a hazard to himself/herself, or others is disqualifying.

 

APPENDIX B                                                                                                DAO 202-958

PHYSICAL REQUIREMENTS 

01.       Annual Testing. 

a.         Agencies must require candidates to undergo annual testing to demonstrate that they possess satisfactory physical abilities necessary to perform safely and efficiently the essential tasks of a particular position on at least an annual basis.

b.         A waiver of one or more of the physical requirements established by the operating unit and evaluated in the annual test may be granted for applicants and current employees where sufficient evidence exists that they can, with or without reasonable accommodation, perform the essential duties of the position without endangering the health and safety of themselves or others without meeting the particular physical requirement. 

1.         The head of the organizational unit of the applicant or employee must certify in writing that, even though the applicant or employee failed to meet one or more of the physical requirements, they can, with or without reasonable accommodation, perform the essential duties of the position without endangering the health and safety of themselves or others.  The servicing human resources manager must concur and forward the waiver request to OHRM.

2.         The Director, in conjunction with the appropriate medical personnel, will either approve or deny the request in writing within fifteen business days.

02.       Specific physical requirements are provided as examples of standards for individuals who are to be assigned to rigorous LEO (GS-1811), security and protection specialist (GS-0080), or FF (GS-081) positions under FERS.  Operating units must develop physical requirements for each position based on the functions of the position.  Individuals will provide evidence of the physical abilities established by the operating unit in the annual test.

a.         Moderate lifting, 15-44 pounds.
b.         Moderate carrying, 15-44 pounds.
c.         Straight pulling (intermittent).
d.         Reaching above the shoulder.
e.         Use of fingers.
f.          Both hands required.
g.         Walking (8 hours).
h.         Standing (8 hours).
i.          Repeated bending (intermittent).
j.          Climbing, use of legs and arms.
k.         Both legs required.
l.          Operation of motor vehicle.
m.        Near vision correctable at 13" to 16" to read Jaegar 1 to 4.
n.         Specific visual requirement (vision correctable to not less than 20/30 in one eye and 20/70 in the other eye).
o.         Ability to distinguish basic colors.
p.         Ability to distinguish shades of colors.
q.         Hearing (aid not permitted).
r.          Specific hearing requirement (able to hear conversational voice at 20 feet with both ears).

 

APPENDIX C                                                                                                      DAO 202-958

 

[Sample Notice for LEO Position]

[insert employee’s name and address]

Dear [insert employee’s name ]:

We recently found that the duties of the position, [insert position number, title, series and grade], to which you are currently assigned have significantly changed.  We determined that the primary duties of your position no longer meet the following definition of a LEO found in 5 United States Code (U.S.C.) [insert 5 U.S.C. 8331(20) or 8401(17)]:

[insert the appropriate 5 U.S.C. LEO definition for a CSRS employee or for a FERS employee].

As a result, your position no longer qualifies for LEO retirement coverage under 5 U.S.C. [insert 8336(c) for CSRS or 8412(d) for FERS].  Therefore, your service in this position is not covered by LEO retirement provisions beginning on [insert effective date]. In addition, we will stop the withholding of the additional ½ percent retirement deduction from your salary as of this date.  Any deductions made after the above-referenced date will be refunded to you.

The basis for this determination is [insert specific requirements that are no longer met...].

The decision to revoke law enforcement retirement coverage of your position may be appealed to the Merit Systems Protection Board (MSPB).  A copy of the MSPB's appeal form and regulations are enclosed for your use.  Your appeal must be filed with the MSPB by [insert the date that is 30 calendar days after the date of the revocation of the LEO retirement coverage.  However, if the effective date in paragraph three above is retroactive, or would not give the employee sufficient time to submit his or her appeal to MSPB, insert a date that is 30 calendar days following the date of the receipt of the notice.] at the following address:

[insert full mailing address for the appropriate MSPB office]

Sincerely,

[insert principal or servicing human resources manager’s name and title]

Enclosures

 

APPENDIX D                                                                                                      DAO 202-958

                                                                                                                                                              
[Sample Notice for FF Position]

[insert employee’s name and address]

Dear [insert employee’s name ]:       

We recently found that the duties of the position, [insert position number, title, series and grade], to which you are currently assigned have significantly changed.  We determined that the primary duties of your position no longer meet the following definition of a FF found in 5 United States Code (U.S.C.) [insert 8331(21) or 8401(14)]:

[insert the appropriate 5 U.S.C. FF definition for a CSRS employee or for a FERS employee].

As a result, your position no longer qualifies for FF retirement coverage under 5 U.S.C. [insert 8336(c) for CSRS or 8412(d) for FERS].  Therefore, your service in this position is not covered by FF retirement provisions beginning on [insert effective date].  In addition, we will stop the withholding of the additional ½ percent retirement deduction from your salary as of this date.  Any deductions made after the above-referenced date will be refunded to you.

The basis for this determination is [insert specific requirements that are no longer met].

The decision to revoke FF coverage of your position may be appealed to the Merit Systems Protection Board (MSPB).  A copy of the MSPB's appeal form and regulations are enclosed for your use.  Your appeal must be filed with the MSPB by [insert the date which is 30 calendar days after the date of the revocation of the FF retirement coverage.  However, if the effective date in paragraph three above is retroactive, or would not give the employee sufficient time to submit his or her appeal to MSPB, insert a date that is 30 days following the date of receipt of the notice.] at the following address:

[insert full mailing address for the appropriate MSPB office]

Sincerely,

[insert principal or servicing human resources manager’s name and title]

Enclosures

 

Questions and Comments

Send Questions or Comments on the Commerce Directives Management program to Directives@doc.gov.

Office of Privacy and Open Government
Office of the Chief Financial Officer and Assistant Secretary for Administration
U.S. Department of Commerce

 

Page last updated:February 2, 2010