Introduction
The Office of Personnel Management (OPM) issued a proposed rule on February 4, 2026, to amend definitions of secondary positions under the Civil Service Retirement System (CSRS) and Federal Employees' Retirement System (FERS). This rule targets law enforcement officers, firefighters, nuclear materials couriers, and customs and border protection officers. It removes the requirement that experience in a primary position must be a mandatory prerequisite for certain executive-level secondary positions. The change, published in the Federal Register Volume 91, Number 23, pages 5095-5103, responds to agency needs for greater flexibility in recruiting senior leaders. Comments are due by March 6, 2026. This adjustment could allow agencies to hire executives with diverse backgrounds, while ensuring that employees promoted from primary roles retain their enhanced retirement benefits. The proposal balances career progression incentives with organizational demands, potentially affecting thousands of federal positions.
Background on Enhanced Retirement Benefits
Enhanced retirement benefits for certain federal employees originated in 1947 with amendments to the Civil Service Retirement Act, initially for FBI agents. Over time, Congress expanded these provisions to include law enforcement officers, firefighters, air traffic controllers, and others in physically demanding roles. Under CSRS and FERS, these employees can retire at age 50 with 20 years of service or, under FERS, at any age with 25 years. They receive a more generous annuity calculation but face mandatory retirement ages and higher contribution rates.
The statutory definition of law enforcement officer, enacted in 1974, distinguishes primary positions involving direct investigation or apprehension from secondary supervisory or administrative roles. OPM's regulations have historically required at least three years in a primary position for secondary coverage, with no more than a three-day break in service. This structure aims to maintain a young and vigorous workforce in rigorous duties, as noted in the proposed rule: 'The enhanced benefit provisions... enable the Government to retain employees in physically challenging occupations while also providing retirement before the demands of the job became too physically strenuous.'
Key players include OPM, which administers CSRS and FERS, and agencies like the Department of Homeland Security's Customs and Border Protection (CBP), which requested the review. CBP highlighted recruitment challenges for senior roles limited to one occupational series, prompting OPM to evaluate statutory authority under 5 U.S.C. 8347 and 8461.
Key Changes in the Proposed Rule
The rule proposes revising definitions in 5 CFR Parts 831 and 842 to eliminate the primary experience prerequisite for executive secondary positions. An executive position is defined as one whose principal duty is managing a federal agency or subdivision, within the direct chain of command of an operational unit where most employees hold primary or secondary roles in law enforcement, firefighting, nuclear transport, or border protection.
This applies to positions like division directors or branch chiefs, not limited to the Senior Executive Service. Agencies retain discretion to keep the prerequisite if desired. As the rule states, 'Agency heads may review their executive level secondary positions... and determine whether to retain the mandatory requirement of experience in a primary position.' Employees promoted from primary positions would keep enhanced benefits if transfer rules are met, but new hires without such experience would not qualify for them.
The proposal also includes administrative updates, such as allowing electronic notifications to OPM and clarifying agency head definitions. It denies a separate petition for retroactive CBP officer benefits, citing statutory limits from Public Law 110-161.
Legal Precedents and Political Forces
OPM's authority draws from 5 U.S.C. 8347(a) and 8461(b), requiring regulations to implement CSRS and FERS. Precedents include expansions like the 2007 addition of CBP officers under Public Law 110-161, and earlier inclusions for nuclear couriers. The rule aligns with congressional intent to limit enhanced benefits to rigorous roles while supporting career ladders, as seen in 1974 amendments.
Political forces include agency advocacy for flexibility amid workforce challenges. CBP's request reflects broader federal efforts to diversify leadership, echoing initiatives like Executive Order 13985 on advancing equity, though not directly cited. Perspectives vary: supporters see it as enabling innovative leadership, while critics might argue it dilutes field expertise in oversight roles. The rule notes that without this change, 'agencies... may limit an agency's ability to recruit candidates from varied backgrounds.'
Implications and Perspectives
Short-term implications include easier recruitment for about 3,206 GS-15 and above positions with enhanced coverage as of 2020. Agencies like Justice, Homeland Security, and Energy could benefit most. Costs are minimal, involving position description reviews and potential application increases, estimated at de minimis levels.
Long-term, this could foster diverse leadership, improving mission outcomes through varied skills. However, it might reduce promotion odds for primary employees, affecting morale. Perspectives include agency views favoring broader talent pools and employee concerns over competition. The rule preserves benefits for internal promotions, balancing interests without expanding eligibility, which would require legislation.
Forward-Looking Conclusion
This proposed rule offers agencies tools to adapt leadership recruitment to modern needs, potentially setting a model for other federal benefits. Next steps include public comments and possible finalization, with agencies reviewing positions post-adoption. Ongoing debates may focus on benefit equity and whether Congress should address retroactive issues. Challenges involve ensuring designations remain tied to mission needs, avoiding unintended expansions.
