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Proposed Rule2026-02233

Civil Service Retirement System and Federal Employees' Retirement System: Secondary Position Definitions

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Published

February 4, 2026

Issuing agencies

Personnel Management Office

Abstract

The Office of Personnel Management (OPM) proposes to amend its retirement regulations to revise the definition of secondary position for law enforcement officers, firefighters, nuclear materials couriers, and customs and border protection officers. The changes remove the requirement that experience in a primary position is a mandatory prerequisite for an executive level position. This change will provide agencies with greater flexibility when recruiting for executive positions. Agencies retain the discretion to require experience in a primary position as a mandatory prerequisite to their secondary positions.

Full Text

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<title>Federal Register, Volume 91 Issue 23 (Wednesday, February 4, 2026)</title>
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[Federal Register Volume 91, Number 23 (Wednesday, February 4, 2026)]
[Proposed Rules]
[Pages 5095-5103]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-02233]

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Proposed Rules
Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 91, No. 23 / Wednesday, February 4, 2026 /
Proposed Rules

[[Page 5095]]

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 831 and 842

[Docket ID: OPM-2024-0020]
RIN 3206-AO72

Civil Service Retirement System and Federal Employees' Retirement
System: Secondary Position Definitions

AGENCY: Office of Personnel Management.

ACTION: Proposed rule.

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SUMMARY: The Office of Personnel Management (OPM) proposes to amend its
retirement regulations to revise the definition of secondary position
for law enforcement officers, firefighters, nuclear materials couriers,
and customs and border protection officers. The changes remove the
requirement that experience in a primary position is a mandatory
prerequisite for an executive level position. This change will provide
agencies with greater flexibility when recruiting for executive
positions. Agencies retain the discretion to require experience in a
primary position as a mandatory prerequisite to their secondary
positions.

DATES: Comments must be received on or before March 6, 2026.

ADDRESSES: You may submit comments, identified by the Regulation
Identifier Number (RIN) ``3206-AO72'' using the following method:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Follow the instructions for sending comments.
The general policy for comments and other submissions from members
of the public is to make these submissions available for public viewing
at <a href="https://www.regulations.gov">https://www.regulations.gov</a> without change, including any personal
identifiers or contact information. This rule is limited to the
definition of secondary positions. Comments on other matters are out of
scope and will not be considered. Before finalizing this rule, OPM will
consider all comments within the scope of the rule received on or
before the closing date for comments. OPM may make changes to the final
rule after considering the comments received.
In accordance with 5 U.S.C. 553(b)(4), a summary of this rulemaking
may be found in the docket for this rulemaking at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.

FOR FURTHER INFORMATION CONTACT: Cynthia Reinhold, (202) 606-0299.
Email: <a href="/cdn-cgi/l/email-protection#9bc9feeff2e9fef6fef5efcbf4f7f2f8e2dbf4ebf6b5fcf4ed">[email&#160;protected]</a>, with Attn: Secondary Position
Definition Regulations in the subject line.

SUPPLEMENTARY INFORMATION:

Background

OPM has government-wide responsibility and oversight for two
federal employment retirement systems: the Civil Service Retirement
System (CSRS) and the Federal Employees' Retirement System (FERS).
These systems provide retirement and disability benefits to the
majority of the civilian federal workforce. Retirement plan
participation (or coverage) is generally determined by the employee's
date of entrance into federal service. Most federal employees who
entered federal service prior to January 1, 1984, are covered under the
CSRS, while employees who entered federal service on and after January
1, 1984, are covered under the FERS. OPM and its predecessor, the Civil
Service Commission, have the statutory authority to prescribe the
necessary regulations to administer the CSRS and FERS retirement
programs.
Federal civilians who participate in CSRS and FERS contribute 7%
for CSRS and between 0.8% and 4.4% for FERS and, with 5 years of
service, are eligible to receive their retirement annuity benefit
beginning at age 62. Retiring earlier is possible, but the retirement
benefit may be reduced if the employee is under age 62 and/or has less
than 30 years of service. The annuity benefit is based on a percentage
of the high-three average salary multiplied by the years of service.

Enhanced Retirement Benefits for Certain Employee Groups

The Civil Service Retirement Act was amended in 1947 to permit
agents of the Federal Bureau of Investigation to retire earlier with a
more generous retirement benefit. Over the years, these enhanced
retirement benefit provisions were modified to expand to other federal
law enforcement officers and other employee groups. Currently, under
both CSRS and FERS an employee who is considered a law enforcement
officer for retirement benefits purposes is eligible to retire at the
age of 50 after serving at least 20 years as a law enforcement officer.
Under FERS, a law enforcement officer can retire at age 50 with 20
years, but also at any age after serving at least 25 years as a law
enforcement officer. This is earlier than the age at which most Federal
employees can qualify for voluntary immediate retirement benefits and
is based on shorter service requirements. However, law enforcement
officers, unlike most Federal employees, are subject to mandatory age
separation requirements. In addition to earlier and mandatory
retirement, law enforcement officers receive a larger retirement
benefit through a more generous calculation formula. Law enforcement
officers contribute a larger employee retirement deduction during
employment, half a percent more than other employees. The agency share
of the cost of the enhanced retirement benefit is much greater.
The enhanced benefit provisions for law enforcement officers were
enacted to enable the Government to retain employees in physically
challenging occupations while also providing retirement before the
demands of the job became too physically strenuous for continued
employment. Comparable retirement benefit provisions exist for
firefighters, air traffic controllers, and other demanding occupations
that require career service from young and vigorous employees. The
enhanced annuity calculation makes it economically feasible for
employees in these occupations to retire earlier with less service.
The current statutory definition of law enforcement officer was
enacted in 1974 and covers both an employee whose duties are primarily
the investigation, apprehension, or detention of individuals suspected
of criminal offenses (primary or rigorous positions) and employees
engaged in those activities for at least 3 years who transfer directly
to a supervisory or administrative position (secondary positions). For
retirement benefit purposes, the definition of law enforcement officer
has a narrow meaning. In general, police officers, building guards, and
inspectors are

[[Page 5096]]

excluded from the definition of law enforcement officer because their
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 criminal offenses.
To administer the enhanced retirement benefits, OPM prescribed
detailed regulations that define the various duties law enforcement
officers may perform and how the enhanced retirement coverage applies
to primary and secondary positions. Because enhanced retirement
benefits are more costly to the government and advantageous to the
employees who receive them, OPM's regulations reserve the enhanced
retirement benefits to only those employees in the designated field,
i.e., law enforcement or firefighting.

Primary and Secondary Positions

By regulation, a primary position is one in which the duties are
primarily the investigation, apprehension, or detention of individuals
suspected of federal criminal offenses. These duties must also be
sufficiently rigorous that employment is limited to young and
physically vigorous individuals. A secondary position is a position
that: (1) is clearly in the law enforcement field; (2) is in an
organization having a law enforcement mission; and (3) is either
supervisory, such as a position whose primary duties are as a first-
level supervisor of other law enforcement officers, or administrative,
such as an executive, managerial position for which experience in a
rigorous primary position is a mandatory prerequisite. The primary
position experience requirement may be met with equivalent experience
outside the federal government. The employee is considered a law
enforcement officer in a secondary position if he or she transfers
directly to the secondary position after performing duties in a primary
position for at least 3 years. The break in service between primary and
secondary positions may not exceed 3 days and the law enforcement
officer's federal service must be continuous after transfer to the
secondary position. The mandatory experience requirement for secondary
positions corresponds to the statutory requirement that enhanced
retirement benefits apply only if the employee in the primary position
transfers directly to a secondary position and reserves the enhanced
retirement benefits for employees engaged in a specified field of work.
These statutory and regulatory requirements work together to meet
Congress' objectives in enacting the enhanced retirement benefits for
employees performing rigorous duties and positions that are directly
related. That objective is to provide a retirement benefits structure
that makes it possible for the Government to maintain a young and
vigorous workforce through youthful career entry, continuous service,
and early separation. The statutory and regulatory provisions work in
combination to accomplish these goals. Since the early and enhanced
retirement program is more costly to the government than the basic
retirement programs, the coverage is limited to a small group of
employees to meet the objectives of the program.
In addition to employees across the Federal Government who meet the
definition of law enforcement officer, comparable retirement benefits
exist for firefighters, air traffic controllers, park police, uniformed
Secret Service officers, Capitol police officers, nuclear materials
couriers, Supreme Court police officers, and customs and border
protection officers. The extension of enhanced retirement benefits to
new employee groups required legislative amendments to the statutory
retirement provisions. Although none of these additional employee
groups meet the narrow definition of law enforcement officer for
retirement purposes, the benefit structure is similar. Law enforcement
officers, firefighters, nuclear material couriers, and customs and
border protection officers share the primary and secondary position
structure, and OPM's regulations apply the same procedure for agencies
to follow in designating eligible employees.
Currently, OPM's regulations require that a secondary position
requires previous experience in a primary position (including
equivalent experience outside the Federal Government, where applicable)
to qualify for the secondary position. There are many secondary
positions in the Federal Government: first-line supervisors, upper-
level supervisors (GS 13s/14s/15s), non-supervisory administrative
positions, and senior management (GS 15/SES) positions. Enhanced
retirement benefits are reserved for employees remaining in the same
career track and many, if not most, supervisors, managers, and other
administrative positions are promoted from the ranks of experienced
employees in primary positions. The current benefits structure provides
for continued enhanced retirement benefits as an employee is promoted
within a specified field of work; however, an employee may encumber a
secondary position without enhanced retirement coverage. These would be
employees who held primary positions in the past and were able to meet
the mandatory prerequisite retirement, but either did not serve the
required three years in the primary rigorous position, had a break in
service between positions, or did not remain continuously employed in
the secondary position. Employees may and do hold secondary positions
without the enhanced retirement coverage.

Impact of Secondary Position Restrictions on Recruitment for Executive
Positions

To balance the interests of employees and the Government, and in
consideration of the increased cost of enhanced retirement benefits,
OPM's existing regulations require that service as a primary law
enforcement officer, firefighter, nuclear material courier or customs
and border protection officer (including equivalent service outside the
Federal Government, where applicable) be a mandatory prerequisite for a
position to qualify as a secondary position. Compared to primary
positions, secondary positions are not as physically demanding, and
therefore, do not necessarily require a youthful workforce. However, if
enhanced retirement benefits applied only to primary positions, then
employees would have limited incentives for advancing beyond those
primary positions. Furthermore, a benefits structure that excluded
employees from retaining enhanced retirement benefits when promoted to
a supervisory, managerial, or related administrative position would
discourage employees from seeking other positions, a result that would
be unfavorable to the concept of career service and to the interests of
the employer.
While requiring service in a primary position before promotion to a
managerial position encourages employees to remain on a career track
and reserves enhanced retirement benefits for employees in the field,
it also may limit an agency's ability to recruit candidates from varied
backgrounds, experiences, and perspectives for senior leadership
positions. Other experiences, skills and abilities could outweigh
front-line experience when recruiting for executive leadership
positions. Because recruiting critical talent is a driver of long-term
organizational success, OPM was asked to re-evaluate its regulations
against the statutory provisions.
The Department of Homeland Security, U.S. Customs and Border
Protection (CBP) asked OPM to review its regulations that define
secondary

[[Page 5097]]

positions for customs and border protection officers. CBP explained
that they encounter challenges in recruiting candidates for senior
leadership positions that bring desirable skills and experience because
the candidate pool is limited to only employees with rigorous primary
position experience. Due to existing statutory provisions, candidates
for CBP's secondary leadership positions come primarily from one
occupational series. While efforts are underway to attract candidates
with varied professional experience to both primary and secondary
positions, the current regulations make it challenging to recruit
broadly for executive leadership positions.
Based on CBP's request, OPM reviewed the relevant statutory
provisions and determined that revising the definition of secondary
positions is within its authority to implement and could grant agencies
greater flexibility in recruiting for leadership positions. Because the
statutory and regulatory structure for enhanced retirement benefits for
customs and border protection officers is the same as the structure for
other groups with enhanced retirement benefits (i.e., law enforcement
officers, firefighters, and nuclear materials couriers), OPM proposes
to make corresponding adjustments to the definition of secondary
positions for each of these groups to allow the agencies that employ
them the same hiring flexibility.
Specifically, this rulemaking proposes changes to the primary
experience requirement for certain executive level, secondary positions
for law enforcement officers, firefighters, nuclear materials couriers,
and customs and border protection officers. If adopted, it will allow
(but not require) impacted agencies to recruit more broadly for these
senior leadership positions and possibly recruit candidates with the
desired skills and experience but not necessarily primary position
experience. A person recruited to a secondary position without primary
experience would not qualify for enhanced retirement coverage.
(Providing enhanced retirement benefits to individuals without primary
experience would require legislative change.) However, if the agency
does promote from within and an individual in a primary or secondary
position with enhanced retirement benefits coverage is selected for the
executive secondary position, they would retain their enhanced
retirement coverage.

Proposed Changes in This Rulemaking

Revised Definition of Secondary Position

OPM proposes to amend the definition of secondary position for law
enforcement officers, firefighters, nuclear materials couriers, and
customs and border protection officers to remove the mandatory
prerequisite of service in a primary position for certain executive
level secondary positions in Sec. Sec. 831.802, 831.902, 831.1602,
842.802, 842.902, and 842.1002. An executive position is one whose
principal duty is management of a Federal agency or any subdivision
thereof (including the lowest recognized organizational unit within
that Federal agency or subdivision). To qualify as a secondary
position, the executive position must be within the direct chain of
command of a lower-level operational unit whose primary mission is law
enforcement, firefighting, nuclear materials transport, or a mission
related to the arrival and departure of persons, conveyances and
merchandise at ports of entry, and where the majority of employees
within that lower-level operational unit are in primary or secondary
positions. This definition continues to reserve enhanced retirement
benefits to employees who continue to work in the specified field. An
executive position is not limited to positions in the Senior Executive
Service or the equivalent.
Currently, an employee in a primary or secondary position with
enhanced retirement benefits may be promoted to an executive position
with oversight over other employees in primary and secondary positions
and retain enhanced retirement benefits in that executive level
secondary position, provided all other requirements are met. That is,
the employee moving to a secondary executive position must have:
1. worked at least 3 years in a primary position, and
2. moved without a break in service from a primary or secondary
position to the executive level secondary position, and
3. have been continuously employed with no break in service since
moving to a secondary position.
The definition revised by this proposed rule does not change the
above requirements for employees currently in a primary or secondary
position but would also permit an individual without experience in a
primary position to occupy that secondary executive level position
without enhanced retirement benefits coverage. This change allows for
recruitment from other fields with relevant skills and experience.
This proposed change would provide agencies with additional
flexibility to select candidates for executive positions who best meet
their organizational needs. Agency heads may review their executive
level secondary positions under 5 CFR 831.811, 831.911, 831.1611,
842.808, 842.910, or 842.1008 and determine whether to retain the
mandatory requirement of experience in a primary position. This
proposal does not require any particular executive level position to be
designated as requiring primary position experience; agencies would
retain discretion to designate qualifying executive positions as
secondary positions.
For secondary positions for retirement purposes, an executive
position is defined as one whose principal duty is management of a
Federal agency or any subdivision thereof (including the lowest
recognized organizational unit with that Federal agency or
subdivision). The executive position must be within the direct chain of
command of a lower-level operational unit whose primary mission is law
enforcement, firefighting, nuclear material transport, or a mission
related to the arrival and departure of persons, conveyances and
merchandise at ports of entry, and where the majority of the employees
within that lower-level operational until are in primary or secondary
positions.
``Executive'' for secondary position designations is defined by the
role, not the title of the position. This definition can include
qualifying positions within the Senior Executive Service (SES), or SES
equivalents, and include non-SES management positions such as division
directors, branch chiefs (if the branch is the lowest recognized
organization unit) and other managing positions whose duties are
directing mission-related operations, supervising subordinate managers
and staff, allocating resources, and ensuring mission execution and
compliance with law and policy. Positions that exercise significant
authority over programs, personnel and resources can meet the
definition of ``executive'' for secondary position designations within
these proposed rules.
Law enforcement officers, firefighters, nuclear materials couriers,
and customs and border protection officers in primary or secondary
positions who advance to a qualifying executive position do not lose
their enhanced retirement benefits, provided all regulatory transfer
requirements are met. Agency decisions on coverage under the new
definition would continue to be appealable to the Merit Systems
Protection Board.

[[Page 5098]]

If this proposal is adopted, agency heads may review their
secondary position determinations and remove the mandatory prerequisite
of service in a primary position from the position descriptions of
qualifying executive level positions designated as secondary positions.
If an individual in a primary position moves into an executive level
secondary position, he or she may retain enhanced retirement benefits
because the position is still a secondary position. Alternatively, the
agency may select a candidate with a different background and skillset
who would make a great leader without the primary experience; however,
that individual would not have enhanced retirement benefits because
they never served in a primary position and did not transfer from
another primary or secondary position and meet all the transfer
requirements.
The amended definition would not be retroactively applied to any
occupied secondary position. Consider the following example. An
individual has 10 years of experience in a primary position. In 2023,
the individual transferred, without a break in service, into an
executive position whose primary duty is management of a subdivision of
a Federal agency in the direct chain of command of a lower-level
organizational unit that has a primary mission of law enforcement and
in which the majority of employees within that operational unit are in
primary or secondary law enforcement officer positions; however, the
position was not identified by the agency as a secondary position at
that time because the position did not require experience in a primary
position as a prerequisite. With this new flexibility, an agency may
determine that, going forward, the executive position will be
considered a secondary (executive) position. Nonetheless, the incumbent
will not be entitled to enhanced benefits even though the individual
has primary experience because the position was not designated as a
secondary position at the time the individual moved into the executive
position. In other words, the individual did not move into an executive
position that was designated as a secondary position without a break in
service because the position was not designated as a secondary position
at the time of the movement.

Administrative Corrections and Clarifications

In Sec. Sec. 831.811(a), 831.911(a), 831.1611(a), 842.808(a),
842.710(a) and 842.1008(a), OPM proposes to amend the text to provide
that agency coverage determinations and required documentation may be
sent electronically to OPM.
In Sec. 831.902, OPM proposes to revise the definition of agency
head to reduce redundancy and clarify the meaning of the term.
In Sec. 842.802, OPM proposes to correct the definition of agency
head by removing an erroneous reference to the Secretary of State. The
text would be corrected to refer to the Secretary of the Senate. The
text would also be revised to reduce redundancy and clarify the meaning
of the term.
In Sec. 842.802, OPM is also republishing the definitions for
primary duties and rigorous position without change to the text,
changing only the paragraph levels for the current text and adding a
paragraph level for an undesignated paragraph in each definition. For
the convenience of the reader, these definitions are republished in
their entirety.
OPM proposes to revise the Authority citations for parts 831 and
842 to comply with 1 CFR part 21, subpart B. OPM also proposes to
remove redundant part 831 authority citations to individual sections
within 5 U.S.C. Chapter 83, Subchapter III, as 5 U.S.C. 8347 provides
the regulatory authority for the subchapter. Similarly, OPM proposes to
remove redundant part 842 authority citations to individual sections
within 5 U.S.C. chapter 84, as 5 U.S.C. 8461(g) provides the regulatory
authority for the chapter.

Denied Rulemaking Petition

On August 15, 2024, OPM received a petition for rulemaking
requesting formal review of OPM's regulations that implemented the
retirement eligibility and calculation provisions for Customs and
Border Protection Officers (CBPO). See 76 FR 41993 (July 18, 2011). The
petitioner noted that CBPO retirement coverage provisions do not apply
to primary CBPO (GS-1895 series) service performed prior to July 6,
2008. This effective date was set by statute. See sec. 535(e)(2)(B) of
Public Law 110-161, 121 Stat. 2077 (2007). As a result of the effective
date, some senior CBPO do not meet the years of primary service
requirement while younger CBPO do.
Congress explicitly provided that enhanced benefits do not ``apply
with respect to any service performed as a customs and border
protection officer before the effective date,'' which Congress set as
July 6, 2008. The petitioner noted that Congress has allowed
``retroactive buy backs'' through supplemental legislation for a
variety of other types of law enforcement positions; however, Congress
has not done so with respect to CBPO. Accordingly, OPM lacks authority
to modify its regulations to address the concern raised by the
petitioner.

Expected Impact of This Rulemaking

Statement of Need

Senior management positions for law enforcement officers,
firefighters, nuclear materials couriers, and customs and border
protection officers have long required front-line experience as a
prerequisite. As a result, executives in these fields typically have
similar professional experiences since, in accordance with OPM's
existing retirement regulations, they are required to have the same or
similar backgrounds. OPM's retrospective review of the existing
regulations suggests that the requirements for secondary positions are
more restrictive than the law intended and unintentionally limited
recruitment options for senior positions with law enforcement,
firefighting, nuclear materials transport, and border patrol missions.
Some agencies have indicated that their organizations would benefit
from senior leaders with more varied professional backgrounds and work
experiences and, thus, are hampered by the requirement to hire only
from a pool of individuals with experience in primary positions.
Removing the primary experience restrictions, as proposed, would allow
agencies to recruit from a broader applicant pool for executive level
positions, permitting selection of Federal executives from varied
professional experiences to meet their needs, while continuing to
provide the enhanced retirement benefits to promote career advancement
for those with primary experience.

Impact

This proposed rule would apply only to applicants for certain
executive level positions designated as secondary positions after this
rulemaking becomes effective. Primary and secondary position
designations apply only to agencies that employ individuals whose
duties meet the statutory definition of law enforcement officer,
firefighter, nuclear materials courier, or customs and border
protection officer. We anticipate that this rulemaking will allow
agencies with law enforcement, firefighting, nuclear materials
transport, or border patrol missions to consider individuals for
executive level positions from a broader pool of eligible candidates,
while simultaneously preserving enhanced retirement benefits for
current employees who are promoted through the chain of command. This
proposed rule does not

[[Page 5099]]

extend enhanced retirement benefits to a new class of employees.
This rulemaking would affect Federal agencies that employ law
enforcement officers, firefighters, nuclear materials couriers, and
customs and border protection officers. Most department-level and
independent agencies employ a small number of criminal investigators
who perform law enforcement officer duties in Inspector General offices
and are also covered in this rulemaking. The Departments of Defense,
Justice, and Homeland Security employ the largest number of law
enforcement officers or customs and border protection officers. The
Departments of Agriculture and Interior employ the largest number of
firefighters. Nuclear materials couriers work in the Department of
Energy.
As of October 2020, there are approximately 3,206 employees serving
in GS-15 or above positions in the Executive branch with enhanced
retirement coverage. We estimate that these are the positions
potentially affected by this rulemaking. This rulemaking removes the
restrictions on who can qualify for executive level secondary
positions. Agencies may, based on their organizational needs, review
the position descriptions for qualifying senior management positions
and determine if experience in a primary position is a mandatory
requirement to encumber the position. Prior experience is only one of
the criteria agencies evaluate when filling positions and agencies, as
a matter of practice, typically review and revise position descriptions
before recruitment actions. This means that agencies may, at the time
they prepare to recruit for an executive position, determine if
experience in a primary position should continue to be a mandatory
prerequisite and amend the position description accordingly.

Costs

Agencies impacted by this rulemaking would be allowed to modify the
position description for qualifying executive level positions
designated as secondary positions. We estimate that the costs
associated with this proposed rule are minimal and include: the costs
associated with the resources needed to review position descriptions in
instances where the agency would not have otherwise reviewed the
position description before recruiting for the position; and the costs
associated with the resources needed to process a potentially higher
volume of job applicants. Most agencies review a position description
prior to recruiting for a position, so OPM estimates that any change in
cost associated with review would be de minimis. The decision to modify
the requirements of a secondary position would be left to the agencies
if this rulemaking is finalized. This means that agencies may retain
the mandatory requirement of service in a primary position, resulting
in no change to recruiting efforts.
Because the potential volume of increased applicants could vary for
the agencies that remove the mandatory requirement of service in a
primary position, OPM cannot estimate the total monetary cost of this
proposed rule; however, we do not believe this proposed rule will
substantially increase the ongoing administrative costs to agencies.
For example, assuming an announcement for a supervisory criminal
investigator position in the Senior Executive Service (SES) on average
receives 75 applicants and this proposed rule generates a 20 percent
increase in the total resumes/applications received, this rule could
result in 15 more resumes. Those resumes/applications would typically
be reviewed by a Human Resources Specialist at a GS-12 or GS-13 level.
In the Washington, DC metro area, the average yearly salary for a GS-12
or GS-13 is $126,000 or $60.37 per hour. We assume the total dollar
value of labor, which includes wages, benefits, and overhead, is equal
to 200 percent of the wage rate, resulting in an assumed labor cost of
$120.74 per hour.
Assuming a review rate of 4-5 resumes per hour, it will take an
average of 3.375 hours to review 15 additional resumes/applications at
a cost of $407.50. If an agency advertises four SES secondary position
vacancies per year, this rulemaking could potentially increase the
average cost of reviewing the additional resumes/applications generated
by $1,630 per year (3.375 hours x 120.74/hr. x 4 vacancy
announcements). OPM welcomes comments on this analysis and other
potential monetary costs not included in this analysis.
OPM also considered the potential impact of this rulemaking on
employees in primary positions. Since removing the restrictions on
secondary positions may increase competition for senior-level
positions, the odds of employees in primary positions being selected
for an opening would decrease. This, in turn, could have an impact on
employee morale. While OPM acknowledges these concerns, we believe that
an agency would more likely choose to remove the restrictions based on
its organizational needs. If an agency determines that it needs senior
leaders with more varied professional experiences in senior management,
it can choose to widen the pool of candidates for secondary positions.
It can also increase the future competitiveness of current employees in
primary positions by providing training and/or rotational assignments
in the competencies that it needs.

Benefits

This proposed rule would enable the agencies with a law
enforcement, firefighting, nuclear materials transport, or border
patrol mission to recruit from a wider pool of applicants for senior
leadership positions. If implemented, agencies will have more
flexibility to build high-performing and effective senior leadership
teams by looking beyond traditional talent pools for skilled
candidates. By removing the requirement that a candidate must have
primary experience in the field, agencies may consider candidates with
varying professional backgrounds and skillsets and select the best
qualified individuals.
This proposed change would also provide additional opportunities
for current Senior Executive Service members to transfer to positions
previously unavailable to them. The Senior Executive Service is a
national asset and is intended to encompass a mobile corps of
executives. Mobility involves using a full range of assignment
authorities to leverage the skills of executives for greater mission
accomplishment and to prepare them for higher-levels of service,
whether within the agency, or elsewhere in Government. These newly
available positions would enable current or new Senior Executive
Service members to build their career development and enable agile
agency response to critical staffing requirements and demands.

Alternatives

OPM's current regulations implement the enhanced retirement
benefits for law enforcement officers, firefighters, nuclear materials
couriers, and customs and border protection officers employed under the
CSRS and FERS. One alternative would be to retain the existing
mandatory requirement that all incumbents in executive level secondary
positions have experience in a primary position (including relevant
non-federal experience) to qualify for the position. This would
continue to limit an agency's ability to consider other potentially
qualified candidates for executive level positions.
Another regulatory alternative is to address this issue through
OPM-issued guidance. Because the current regulation states that primary
experience is a mandatory prerequisite,

[[Page 5100]]

OPM could not provide guidance that is contrary to its regulatory
requirements.
OPM could repeal its regulations that define secondary positions.
Sections 8347(a) and 8461(b) of title 5, United States Code, require
OPM to prescribe regulations that are necessary and proper to carry out
CSRS and FERS provisions, which Congress clearly intended to apply to
both frontline, primary positions and, when certain criteria are met,
to secondary positions to provide career ladder opportunities for these
vital roles. OPM's existing regulations set out our interpretation of
the statute. If OPM is to continue to implement the enhanced retirement
provisions and limit the enhanced coverage to those employees Congress
intended to receive the enhanced benefit, OPM must provide clear
regulations defining the scope of those enhanced benefits.
Finally, CBP could revoke the secondary position designations for
its executive level positions. If CBP were to make these positions
ineligible for enhanced retirement benefits coverage without a
corresponding significant change to the duties of the positions, it
would jeopardize the enhanced retirement benefits coverage of the
employees encumbering those positions since 2008. OPM's regulations
require that secondary position determinations be based on the official
position description and any other evidence deemed appropriate by the
agency head. Unless the primary duties of the position change to duties
that no longer qualify for secondary position coverage, it would be
inappropriate for the agency head to change the designation of the
position to one that is not eligible for enhanced retirement benefits
coverage.

Regulatory Review

OPM has examined the impact of this rulemaking as required by
Executive Orders 12866 (Sept. 30, 1993) and 13563 (Jan. 18, 2011),
which direct agencies to assess all costs and benefits of available
regulatory alternatives and, if regulation is necessary, to select
regulatory approaches that maximize net benefits. A regulatory impact
analysis must be prepared for major rules with effects of $100 million
or more in any one year. This rulemaking does not reach that threshold
but has otherwise been designated as a ``significant regulatory
action'' under section 3(f) of Executive Order 12866, as supplemented
by Executive Order 13563. This rule is not expected to be an Executive
Order 14192 regulatory action because it imposes no more than de
minimis costs.

Regulatory Flexibility Act

The Director of the Office of Personnel Management certifies that
this proposed rule would not have a significant economic impact on a
substantial number of small entities because it applies only to Federal
agencies and employees.

Federalism

This rulemaking will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, this rulemaking does not have sufficient federalism
implications to warrant preparation of a Federalism Assessment.

Civil Justice Reform

OPM has reviewed this rulemaking and has determined that this
action conforms to the applicable standards set forth in section 3(a)
and (b)(2) of Executive Order 12988.

Unfunded Mandates Reform Act of 1995

This proposed rule will not result in the expenditure by state,
local, and tribal governments, in the aggregate, or by the private
sector, of $100 million or more in any year and it will not
significantly or uniquely affect small governments. Therefore, no
actions were deemed necessary under the provisions of the Unfunded
Mandates Reform Act of 1995.

Paperwork Reduction Act

This regulatory action will not impose any reporting or
recordkeeping requirements under the Paperwork Reduction Act.

List of Subjects

5 CFR Part 831

Firefighters, Government employees, Income taxes, Intergovernmental
relations, Law enforcement officers, Pensions, Reporting and
recordkeeping requirements, Retirement.

5 CFR Part 842

Air traffic controllers, Alimony, Firefighters, Law enforcement
officers, Pensions, Retirement.

The Director of OPM, Scott Kupor, reviewed and approved this
document and has authorized the undersigned to electronically sign and
submit this document to the Office of the Federal Register for
publication.

Office of Personnel Management.
Jerson Matias,
Federal Register Liaison.

For reasons stated in the preamble, OPM proposes to amend 5 CFR
parts 831 and 842 as follows:

PART 831--RETIREMENT

0
1. The authority citation for part 831 is revised to read as follows:

Authority: 5 U.S.C. 8347. Sec. 831.106 also issued under 5
U.S.C. 552a. Sec. 831.114 also issued under sec. 1313(b)(5), Pub. L.
107-296, 116 Stat. 2296. Sec. 831.201(b)(6) also issued under 5
U.S.C. 7701(b)(2). Sec. 831.201(g) also issued under secs. 11202(f),
11232(e), and 11246(b), Pub. L. 105-33, 111 Stat. 251; sec. 7(e),
Pub. L. 105-274, 112 Stat. 2427. Sec. 831.201(i) also issued under
secs. 3 and 7(c), Pub. L. 105-274, 112 Stat. 2419. Sec. 831.202 also
issued under sec. 111, Pub. L. 99-500, 100 Stat. 1783; sec. 1, Pub.
L. 110-279, 122 Stat. 2604. Sec. 831.204 also issued under sec.
102(e), Pub. L. 104-8, 109 Stat. 102, as amended by sec. 153, Pub.
L. 104-134, 110 Stat. 1321. Sec. 831.205 also issued under sec.
2207, Pub. L. 106-265, 114 Stat. 784. Sec. 831.206 also issued under
sec. 1622(b), Pub. L. 104-106, 110 Stat. 521. Sec. 831.301 also
issued under sec. 2203, Pub. L. 106-265, 114 Stat. 780. Sec. 831.303
also issued under sec. 2203, Pub. L. 106-235, 114 Stat. 780. Sec.
831.502 also issued under E.O. 11228, 78 FR 7739, 3 CFR, 1965 Comp.
p. 317. Sec. 831.682 also issued under sec. 201(d), Pub. L. 99-251,
100 Stat. 23. Sec. 831.912 also issued under app. C, tit. VI, sec.
636, Pub. L. 106-554, 114 Stat. 2763A-164. Subpart P also issued
under div. E, title V, sec. 535, Pub. L. 110-161, 121 Stat. 2075.
Subpart V also issued under tit. VI, sec. 6001, Pub. L. 100-203, 101
Stat. 1330-275. Sec. 831.2203 also issued under sec. 7001(a)(4),
Pub. L. 101-508, 104 Stat. 1388-328.

0
2. In Sec. 831.802, revise and republish the definition of secondary
position to read as follows:

Sec. 831.802 Definitions.

[[Page 5101]]

or any subdivision thereof (including the lowest recognized
organizational unit within that Federal agency or subdivision), and
whose position is within the direct chain of command of a lower-level
operational unit that has a primary mission related to nuclear
materials transportation, and where the majority of employees within
that lower-level operational unit are primary or secondary nuclear
materials couriers.
0
3. In Sec. 831.811, revise paragraph (a) to read as follows:
(a) Upon deciding that a position is a nuclear materials courier
position, the agency head must notify OPM electronically at
<a href="/cdn-cgi/l/email-protection#2744484a45485f6748574a09404851">[email&#160;protected]</a> stating the title of each position, the number of
incumbents, and whether the position is primary or secondary. The
Director of OPM retains the authority to revoke the agency head's
determination that a position is a primary or secondary position, or
that an individual's service in any other position is creditable under
5 U.S.C. 8336(c).
* * * * *
0
4. In Sec. 831.902, revise and republish the definitions of agency
head and secondary position to read as follows:

Sec. 831.902 Definitions.

Sec. 831.1602 Definitions.

* * * * *
Secondary position means a position within the Department of
Homeland Security that is either--
(1) Supervisory--a position whose primary duties are as a first-
level supervisor of customs and border protection officers in primary
positions; or
(2) Administrative--
(i) a managerial, technical, semiprofessional, or professional
position for which experience in a primary customs and border
protection officer position is a prerequisite; or
(ii) An executive, whose principal duty is management of a Federal
agency or any subdivision thereof (including the lowest recognized
organizational unit within that Federal agency or subdivision), and
whose position is within the direct chain of command of a lower-level
operational unit that has a primary mission related to the arrival and
departure of persons, conveyances and merchandise at ports of entry,
and where the majority of employees within that lower-level operational
unit are primary or secondary customs and border protection officer
positions.
0
7. In Sec. 831.1611, revise paragraph (a) to read as follows:
(a) Upon deciding that a position is a customs and border
protection officer position, the agency head must notify OPM
electronically at <a href="/cdn-cgi/l/email-protection#0c6f63616e63744c637c61226b637a">[email&#160;protected]</a> stating the title of each position,
occupational series, position description number (or other unique
identifier), the number of incumbents, and whether the position is
primary or secondary. The Director of OPM retains the authority to
revoke the agency head's determination that a position is a primary or
secondary position.

PART 842--FEDERAL EMPLOYEES RETIREMENT SYSTEM--BASIC ANNUITY

0
8. The authority citation for part 842 is revised to read as follows:

Authority: 5 U.S.C. 8461(g). 4 Sec. 842.104 also issued under
sec. 3, Pub. L. 105-274, 112 Stat. 2423. Sec. 842.105 also issued
under 7701(b)(2). Sec. 842.106 also issued under sec. 102(e), Pub.
L. 104-8, 109 Stat. 102, as amended by sec. 153, Pub. L. 104-134,
110 Stat. 1321-102. Sec. 842.107 also issued under secs. 11202(f),
11232(e), and 11246(b), Pub. L. 105-33, 111 Stat. 251; sec. 7(e),
Pub. L. 105-274, 112 Stat. 2427. Sec. 842.108 also issued under sec.
7(e), Pub. L. 105-274, 112 Stat. 2427. Sec. 842.109 also issued
under sec. 1622, Pub. L. 104-106, 110 Stat. 521. Sec. 842.110 also
issued under tit. VIII, sec. 111, Pub. L. 99-500, 100 Stat. 1783-
348; sec. 1, Pub. L. 110-279, 122 Stat. 2604. Sec. 842.208 also
issued under div. E., title V, sec. 535, Pub. L. 110-161, 121 Stat.
2075. Sec. 842.213 also issued under 5 U.S.C. 8414(b)(1)(B). Secs.
842.304 and 842.305 also issued under div A, tit. III, sec. 321 of
Pub. L. 107-228, 116 Stat. 1380. Sec. 842.707 also issued under tit.
VI, sec. 6001, Pub. L. 100-203, 101 Stat. 1300-275. Sec. 842.703
also issued under sec. 7001 of Pub. L. 101-508, 104 Stat. 1388-328.
Sec. 842.708 also issued under tit. IV, sec. 4005, Pub. L. 101-239,
103 Stat. 235, and sec. 7001 of Pub. L. 101-508, 104 Stat. 1388-328.
Sec. 842.808 also issued under 5 U.S.C. 1104. Sec. 842.810 also
issued under Appendix C, tit. VI, sec. 636, Pub. L. 106-554 at 114
Stat. 2763A-164. Sec. 842.811 also issued under tit. II, sec.
226(c)(2), Pub. Law 108-176, 117 Stat. 2530. Subpart J also issued
under div. E, tit. V, sec. 535 Pub. L. 110-161, 121 Stat. 2075.

0
9. In Sec. 842.802, revise and republish the definitions of agency
head, primary duties, rigorous position, and secondary position to read
as follows:

[[Page 5102]]

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. 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, for
provisions dealing with law enforcement officers and firefighters, the
designated representative must be a department headquarters-level
official who reports directly to the executive department head, or to
the deputy department head, and who is the sole such representative for
the entire department. 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.
* * * * *
Primary duties means (1) those duties of a position that--
(i) Are paramount in influence or weight; that is, constitute the
basic reasons for the existence of the position;
(ii) Occupy a substantial portion of the individual's working time
over a typical work cycle; and
(iii) Are assigned on a regular and recurring basis.
(2) 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 an 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.
Rigorous position means (1) a position the duties of which 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 whose primary duties are--
(i) To perform work directly connected with controlling and
extinguishing fires; or
(ii) Investigating, apprehending, or detaining individuals
suspected or convicted of offenses against the criminal laws of the
United States or protecting the personal safety of United States
officials.
(2) The condition in this definition that employment opportunities
be limited does not apply with respect to an employee who moves
directly (i.e., without a break in service exceeding 3 days) from one
rigorous law enforcement officer position to another or from one
rigorous firefighter position to another. Rigorous position is also
deemed to include a position held by a law enforcement officer as
identified in 5 U.S.C. 8401(17)(B) (related to certain employees in the
Departments of the Interior and the Treasury). (Note: Certain affected
Secret Service employees formerly employed by the Department of the
Treasury are now employed by the Department of Homeland Security.)
Secondary position means a position that--
(1) Is clearly in the law enforcement or firefighting field;
(2) Is in an organization having a law enforcement or firefighting
mission; and
(3) Is either--
(i) Supervisory--a position whose primary duties are as a first-
level supervisor of law enforcement officers or firefighters in
rigorous positions; or
(ii) Administrative--
(A) a 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; or
(B) An executive, whose principal duty is management of a Federal
agency or any subdivision thereof (including the lowest recognized
organizational unit within that Federal agency or subdivision), and
whose position is within the direct chain of command of a lower-level
operational unit that has a primary mission related to law enforcement
and firefighting, and where the majority of employees within that
lower-level operational unit are primary or secondary law enforcement
officers or firefighters.
0
10. In Sec. 842.808, revise paragraph (a) to read as follows:
(a) Upon deciding that a position is a law enforcement officer or
firefighter position, each agency head must notify OPM electronically
at <a href="/cdn-cgi/l/email-protection#1774787a75786f5778677a39707861">[email&#160;protected]</a> stating the title of each position, the number of
incumbents, whether the position is rigorous or secondary, and, if the
position is rigorous, the established maximum entry age (or if no
maximum entry age has yet been established, the date by which it will
be established). The Director of OPM retains the authority to overrule
an agency head's determination that a position is a rigorous or
secondary position, except such a determination under 5 U.S.C.
8401(17)(B) (concerning certain employees in the Departments of the
Interior and the Treasury) (Note: Certain affected Secret Service
employees formerly employed by the Department of the Treasury are now
employed by the Department of Homeland Security.) or under 5 U.S.C.
8401(17)(D) (concerning certain positions primarily involved in
detention activities).
0
11. In Sec. 842.902, revise and republish the definition of secondary
position to read as follows:

Sec. 842.902 Definitions

* * * * *
Secondary position means a position that--
(1) Is clearly in the nuclear materials transportation field;
(2) Is in an organization of the Department of Energy having a
nuclear materials transportation mission; and
(3) Is either--
(i) Supervisory--a position whose primary duties are as a first-
level supervisor of nuclear materials couriers in primary positions; or
(ii) Administrative--
(A) a managerial, technical, semiprofessional, or professional
position for which experience in a primary nuclear materials courier
position is a prerequisite; or
(B) An executive, whose principal duty is management of a Federal
agency or any subdivision thereof (including the lowest recognized
organizational unit within that Federal agency or subdivision), and
whose position is within the direct chain of command of a lower-level
operational unit that has a primary mission related to nuclear
materials transportation, and where the majority of employees within
that lower-level operational unit are primary or secondary nuclear
materials couriers.
0
12. In Sec. 842.910, revise paragraph (a) to read as follows:
(a) Upon deciding that a position is a nuclear materials courier
position, the agency head must notify OPM electronically at
<a href="/cdn-cgi/l/email-protection#65060a08070a1d250a15084b020a13">[email&#160;protected]</a> stating the title of each position, the number of
incumbents, and whether the position is primary or secondary. The
Director of OPM retains the authority to revoke the agency head's
determination that a position is a primary or secondary position, or
that an individual's service in any other position is creditable under
5 U.S.C. 8412(d).
0
13. In Sec. 842.1002, revise and republish the definition of secondary
position to read as follows:

Sec. 842.1002 Definitions

* * * * *

[[Page 5103]]

Secondary position means a position within the Department of
Homeland Security that is either--
(1) Supervisory--a position whose primary duties are as a first-
level supervisor of customs and border protection officers in primary
positions; or
(2) Administrative--
(i) a managerial, technical, semiprofessional, or professional
position for which experience in a primary customs and border
protection officer position is a prerequisite; or
(ii) An executive, whose principal duty is management of a Federal
agency or any subdivision thereof (including the lowest recognized
organizational unit within that Federal agency or subdivision), and
whose position is within the direct chain of command of a lower-level
operational unit that has a primary mission related to the arrival and
departure of persons, conveyances and merchandise at ports of entry,
and where the majority of employees within that lower-level operational
unit are primary or secondary customs and border protection officer
positions.
0
14. In Sec. 842.1008, revise paragraph (a) to read as follows:
(a) Upon deciding that a position is a customs and border
protection officer, the Department of Homeland Security must notify OPM
electronically at <a href="/cdn-cgi/l/email-protection#3754585a55584f7758475a19505841">[email&#160;protected]</a> stating the title of each position,
the occupational series of the position, the number of incumbents,
whether the position is primary or secondary, and, if the position is a
primary position, the established maximum entry age, if one has been
established. The Director of OPM retains the authority to revoke the
agency head's determination that a position is a primary or secondary
position.

[FR Doc. 2026-02233 Filed 2-3-26; 8:45 am]
BILLING CODE 6325-38-P

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