5 U.S.C. 1302, 3301, 3302, 7301; E.O. 10577, 3 CFR,1954-1958 Comp., p. 218; E.O. 11222, 3 CFR, 1964-1965 Comp., p. 306.
This subpart applies to separation actions requested by employees in theexecutive departments and independent establishments of the Federal Government,including Government-owned or controlled corporations, and in those portions ofthe legislative and judicial branches of the Federal Government and thegovernment of the District of Columbia having positions in the competitiveservice.
(a)
(b)
5 U.S.C. 7201; 42 U.S.C. 2000e, unless otherwise noted.
44 FR 22031, Apr. 13, 1979, unless otherwise noted.
This section incorporates the statutory requirements for establishing andconducting an equal opportunity recruitment program consistent with law withinthe Federal civil service. The policy in 5 U.S.C. 7201(b) reads as follows:“It is the policy of the United States to insure equal employmentopportunities for employees without discrimination because of race, color,religion, sex, or national origin. The President shall use his existingauthority to carry out this policy.” 5 U.S.C. 7201(c) requires underregulations prescribed by the Office of Personnel Management:
“(1) That each Executive agency conduct a continuing programfor the recruitment of members of minorities for positions in the agency tocarry out the [anti-discrimination] policy set forth in subsection (b) in amanner designed to eliminate underrepresentation of minorities in the variouscategories of civil service employment within the Federal service, with specialefforts directed at recruiting in minority communities, in educationalinstitutions, and from other sources from which minorities can be recruited; and
“(2) That the Office conduct a continuing program of—
“(A) Assistance to agencies in carrying out programs under paragraph(1) of this subsection; and
“(B) Evaluation and oversight of such recruitment programs to determinetheir effectiveness in eliminating such minorityunderrepresentation.”
This subpart contains the regulations of the Office of Personnel Managementwhich implement the above provisions of title 5, United States Code, and areprescribed by the Office under authority of 5 U.S.C. 7201.
For the purposes of this subpart:
(a)
(b)
(c)
(d)
(e)
(f)
(a) The Office of Personnel Management will provide appropriate data toassist Federal agencies in making determinations of underrepresentation. Theprocess for making such determinations is described in sections II and III (c)of the “Guidelines for the Development of a Federal Recruitment Program toImplement 5 U.S.C. 7201, as amended” (See appendix to this part). TheOffice will develop and publish more specific criteria for statisticalmeasurements to be used by individual agencies, and will develop furtherguidance on—
(1) Agency employment statistics and civilian labor force statistics to beused in making determinations of underrepresentation, on a national, regional orother geographic basis as appropriate;
(2) Groupings of grades and/or other occupational categories to be used inimplementing agency programs;
(3) Occupational categories and job series for which expanded externalrecruitment efforts are most appropriate, and those for which expanded andinnovative internal recruitment is appropriate; and
(4) Other factors which may be considered by the agency, in consultation withOffice of Personnel Management, to make determinations of underrepresentationand to develop recruitment programs focused on specific occupational categories.
(b) The Office will assist agencies in carrying out their programs by—
(1) Identifying major recruitment sources of women and members of minoritygroups and providing guidance on internal and external recruitment activitiesdirected toward the solution of specific underrepresentation problem;
(2) Supplementing agency recruitment efforts, utilizing existing networks fordissemination of job information, and involving the participation of minoritygroup and women's organizations where practicable;
(3) Examining existing Federal personnel procedures to identify those which(i) may serve as impediments to innovative internal and external recruitment and(ii) are within the administrative control of the Office or the Federalagencies;
(4) Determining whether applicant pools used in filling jobs in a category ofemployment where underrepresentation exists include sufficient candidates fromany underrepresentated groups, except where the agency controls such pools (see§ 720.204(c));
(5) Providing such other support, as the Office deems appropriate.
(c) The Office will monitor and, in conjunction with the personnel managementevaluation program of the Office, evaluate agency programs to determine theireffectiveness in eliminating underrrepresentation.
(d) The Office will work with agencies to develop effective mechanisms forproviding information on Federal job opportunities targeted to reach candidatesfrom underrepresented groups.
(e) The Office will conduct a continuing program of guidance and instructionto supplement these regulations.
(f) The Office will coordinate further activities to implement equalopportunity recruitment programs under this subpart with the Equal EmploymentOpportunity Commission consistent with law, Executive Order 12067, andReorganization Plan No. 1 of 1978.
(a) Each Executive agency having positions in the pay systems covered by thisprogram must conduct a continuing program for the recruitment of minorities andwomen for positions in the agency and its components to carry out the policy ofthe United States to insure equal employment opportunities withoutdiscrimination because of race, color, religion, sex or national origin. Thehead of each agency must specifically assign responsibility for program
(b) Programs established under this subpart must be designed to coverrecruitment for all positions in pay plans covered by this program includingpart-time and temporary positions.
(c) Where an agency or the Office of Personnel Management has determined thatan applicant pool does not adequately provide for consideration of candidatesfrom any underrepresented group, the agency or agency component must take one ormore of the following actions:
(1) Expand or otherwise redirect their recruitment activities in waysdesigned to increase the number of candidates from underrepresented groups inthat applicant pool;
(2) Use selection methods involving other applicant pools which includesufficient numbers of members of underrepresented groups;
(3) Notify the office responsible for administering that applicant pool, andrequest its reopening of application receipt in support of expanded recruitmentactivities or certifying from equivalent registers existing in other geographicareas; and/or
(4) Take such other action consistent with law which will contribute to theelimination of underrepresentation in the category of employment involved.
(d) Agencies must notify and seek advice and assistance from the Office ofPersonnel Management in cases where their equal opportunity recruitment programsare not making measurable progress in eliminating identified underrepresentationin the agency work force.
(a) Each agency must have an up-to-date equal opportunity recruitment programplan covering recruitment for positions at various organizational levels andgeographic locations within the agency. Such plans must be available for reviewin appropriate offices of the agency and must be submitted to the Office ofPersonnel Management on request. In accordance with agreement reached betweenthe Office and the Equal Employment Opportunity Commission, such plans must beincorporated in the agency's equal employment opportunity plans required undersection 717 of the Civil Rights Act of 1964, as amended, pursuant to regulationsand instructions of the Commission, provided they are separable parts of thoseplans for purposes of review by and submission to the Office of PersonnelManagement. Agency organizational and geographical components which are requiredto develop and submit Equal Employment Opportunity plans, under instructionsissued by the Equal Employment Opportunity Commission, must also have up-to-datespecial recruitment program plans. On a determination by the Office of PersonnelManagement, in consultation with EEOC, that additional component plans areneeded to implement an agency's program effectively, the Office will instructthe agency to develop additional plans. Agencies must comply with suchinstructions.
(b) Agency plans must include annual specific determinations ofunderrepresentation for each group and must be accompanied by quantifiableindices by which progress toward eliminating underrepresentation can bemeasured.
(c) Where an agency or agency component is located in a geographical areawhere the percentage of underrepresented groups in the area civilian labor forceis higher than their percentage in the national labor force, the agency orcomponent must base its plans on the higher level of representation in therelevant civilian labor force.
(d) Where an agency or agency component is located in a geographical areawhere participation of a particular underrepresented group is significantlylower than its participation in the national labor force, the agency orcomponent may, in consultation with the Office of Personnel Management, use thelower percentage in determining underrepresentation. An agency may not use afigure lower than the relevant regional or nationwide labor force percentagewhere recruitment on a regional or nationwide basis is feasible for particularcategories of employment. Factors such as size of
(e) In addition to the underrepresentation determinations described inparagraphs (b), (c) and (d) of this section, agency plans must, at a minimum,include:
(1) An assessment of grades or job categories and numbers of jobs in suchcategories expected to be filled in the current year, and on a longer term basis(based on anticipated turnover, expansion, hiring limits and other relevantfactors) identification of those occupational categories and positions suitablefor external recruitment, and description of special targeted recruitmentprograms for such jobs and positions;
(2) A similar assessment for job categories and positions likely to be filledby recruitment from within the agency and/or the Federal civil service systemand a description of recruitment programs developed to increase minority andfemale candidates from internal sources for such positions;
(3) A further assessment of internal availability of candidates fromunderrepresentated groups for higher job progressions by identifying job-relatedskills, knowledges and abilities which may be obtained at lower levels in thesame or similar occupational series, or through other experience;
(4) A description of methods the agency intends to use to locate and developminority and female candidates for each category of underrepresentation and anindication of how such methods differ from and expand upon the recruitmentactivities of the agency prior to establishment of the special recruitmentprogram or the last revision to the agency's plans;
(5) A description of specific, special efforts planned by the agency (oragency component) to recruit in communities, educational institutions, and otherlikely sources of qualified minority and female candidates;
(6) A description of efforts which will be undertaken by the agency toidentify jobs which can be redesigned so as to improve opportunities forminorities and women, including jobs requiring bilingual or biculturalcapabilities or not requiring English fluency.
(7) A list of priorities for special recruitment program activities based onagency identification of:
(i) Immediate and longer range job openings for each occupational/grade-levelgrouping for which underrepresentation has been determined;
(ii) Hiring authorities which may be used to fill such jobs;
(iii) The possible impact of its actions on underrepresentation.
(8) Identification of training and job development programs the agency willuse to provide skills, knowledge and abilities to qualify increased numbers ofminorities and women for occupational series and grade levels where they aresignificantly underrepresented.
(9) Identification of problems for which the assistance of the Office ofPersonnel Management is needed and will be requested.
(f) Equal opportunity recruitment program plans must be consistent withagency Upward Mobility program plans and should be developed with fullconsideration of the agency's overall recruiting and staffing planningobjectives.
(g) All plans required under this subpart must be developed not later thanOctober 1, 1979.
This subpart sets forth requirements for a recruitment program, not aselection program. Nevertheless, agencies are advised that all selectionprocesses including job qualifications, personnel procedures and criteria mustbe consistent with the Uniform Guidelines on Employee Selection Procedures (43FR 38290; August 25, 1978).
(a) Not later than November 1 of each year, agencies must submit an annualreport on their equal opportunity recruitment program to the Office of PersonnelManagement, in a form prescribed by the Office. The Office may requiresubmission of any additional
(b) The Office will report to Congress on the implementation and operation ofthe program on a Governmentwide basis not later than January 31 of each year, asrequired by law. Such reports will include assessments of agencies progress, orlack of progress, in meeting the objectives of the program.
5 U.S.C. 7201; 42 U.S.C. 2000e; 38 U.S.C. 101(2),2011(3), 2014; 5 U.S.C. 3112; 29 U.S.C. 791(b).
48 FR 193, Jan. 4, 1983, unless otherwise noted.
This subpart sets forth requirements for agency disabled veteran affirmativeaction programs (DVAAPs) designed to promote Federal employment and advancementopportunities for qualified disabled veterans. The regulations in this subpartare prescribed pursuant to responsibilities assigned to the Office of PersonnelManagement (OPM) under section 403 of the Vietnam Era Veterans ReadjustmentAssistance Act of 1974, as amended (38 U.S.C. 2014), and section 307 of theCivil Service Reform Act of 1978 (5 U.S.C. 3112).
As used in this subpart, the terms
(a)
(b)
(c)
(1) Annually, OPM will provide appropriate data on the employment of disabledveterans to each agency participating in the Central Personnel Data File (CPDF).These data will be taken from CPDF. For DVAAP purposes, CPDF data are consideredto be the offical record of the status of disabled veteran employment withineach participating agency. Each participating agency is responsible for assuringthat such records are timely, accurate, and complete.
(2) CPDF data must be analyzed by participating agencies to identify problemareas and deficiencies in the employment and advancement of disabled veterans.(OPM will establish with each agency not participating in CPDF, the nature andextent of data to be used in identifying problems and deficiencies.) Based onthis analysis, agencies shall develop methods to improve the recruitment,hiring, placement, and advancement of disabled veterans, or revise or redirectexisting methods, as necessary. These methods must then be translated intoaction items.
(a)
(1) Each agency must review its plan on an annual basis, together with itsaccomplishments for the previous fiscal year, updated employment data, and anychanges in agency mission or structure, and update the plan as necessary. Agencyoperating components and field installations required to develop separate plansunder paragraph (b) of this section, below, must perform the same type of annualreview and update of their plans.
(2) Plans shall cover a time period of not less than one year and may cover alonger period if concurrent with the
(3) Initial plans for fiscal year 1983 required under this subpart must bedeveloped by January 30, 1983 and must be in effect on that day.
(b)
(1) Each agency must have an agencywide plan covering all of its operatingcomponents and field installations. Agencywide plans shall include instructionsassigning specific responsibilities on affirmative actions to be taken by theagency's various operating components and field installations to promote theemployment and advancement of disabled veterans. OPM must be informed whenheadquarters offices require plans at the field or installation level.
(2) Agency operating components and field installations must have a copy ofthe plan covering them, and must implement their responsibilities under it. OPMmay require operating components and field installations to develop separateplans in accordance with program guidance and/or instructions.
(c)
(d)
(e)
(1) A statement of the agency's policy with regard to the employment andadvancement of disabled veterans, especially those who are 30 percent or moredisabled.
(2) The name and title of the official assigned overall responsibility fordevelopment and implementation of the action plan.
(3) An assessment of the current status of disabled veteran employment withinthe agency, with emphasis on those veterans who are 30 percent or more disabled.
(4) A description of recruiting methods which will be used to seek outdisabled veteran applicants, including special steps to be taken to recruitveterans who are 30 percent or more disabled.
(5) A description of how the agency will provide or improve internaladvancement opportunities for disabled veterans.
(6) A description of how the agency will inform its operating components andfield installations, on a regular basis, of their responsibilities for employingand advancing disabled veterans.
(7) A description of how the agency will monitor, review, and evaluate itsplanned efforts, including implementation at operating component and fieldinstallation levels during the period covered by the plan.
(a) Not later than December 1 of each year, agencies must submit an annualaccomplishment report on their disabled veterans affirmative action program tothe Office of Personnel Management, covering the previous fiscal year.
(b) Agency annual accomplishment reports must describe:
(1) Methods used to recruit and employ disabled veterans, especially thosewho are 30 percent or more disabled.
(2) Methods used to provide or improve internal advancement opportunities fordisabled veterans.
(3) A description of how the activities of major operating components andfield installations were monitored, reviewed, and evaluated.
(4) An explanation of the agency's progress in implementing its affirmativeaction plan during the fiscal year. Where progress has not been shown, thereport will cite reasons for the lack of progress, along with specific plans forovercoming cited obstacles to progress.
(a)
(b)
(c)
(d)
The reports contained in this regulation have been cleared in accordance withFPMR 101-11.11 and assigned interagency report control number0305-OPM-AN.
(a)
(b)
I.
It is the policy of the United States to insure equal employmentopportunities for employees without discrimination because of race, color,religion, sex or national origin. [5 U.S.C. 7151]
In 1978, Congress reaffirmed and amended this policy as part of the CivilService Reform Act of 1978 [Sec. 310 of Pub. L. 95-454], requiringimmediate development of a recruitment program designed to eliminateunderrepresentation of minority groups in specific Federal job categories.Section 310 directs the Equal Employment Opportunity Commission:
1. To establish Guidelines proposed to be used for a program designed toeliminate such underrepresentation;
2. To make, in consultation with OPM, initial determinations ofunderrepresentation which are proposed to be used in this program; and
3. To transmit the determinations made under (2) above to the ExecutiveAgencies, the Office of Personnel Management and the Congress, within 60 days of enactment.
The Office of Personnel Management (OPM)
1. To issue regulations to implement a program under EEOC Guidelines within180 days after enactment, which shall provide that Executive agencies conductcontinuing recruitment programs to carry out the anti-
2. To provide continuing assistance to Federal agencies in carrying out suchprograms;
3. To conduct a continuing program of evaluation and oversight to determinethe effectiveness of such programs;
4. To establish occupational, professional and other groupings within whichappropriate recruitment will occur, based upon the determinations ofunderrepresentation pursuant to these Guidelines; and
5. To report annually to the Congress on this program, not later than January31 of each year.
Congress further directed that the recruitment program must be administeredconsistent with provisions of Reorganization Plan No. 1 of1978.
B. In framing these Guidelines and making its initial determinations ofunderrepresentation, the Equal Employment Opportunity Commission (Commission) isacting pursuant to its obligations and authority under 5 U.S.C. 7201, asamended; Section 717 of title VII of the Civil Rights Act of 1964, as amended;Reorganization Plan No. 1 of 1978 (issued pursuant to 5 U.S.C. 901 et seq.) andExecutive Order 12067, issued under this Plan (43 FR 28967, June 30, 1978). ThisCommission must develop and/or ensure the development of uniform, coherent andeffective standards for administration and enforcement of all Federal anti-discrimination and equal employment opportunity laws, policies and programs, andto ensure the elimination of duplication and inconsistency in such programs.
C. A review of the legislative history of Federal equal employmentopportunity policy provides further guidance on the scope and nature ofdeterminations and guidelines to be issued for this program.
The basic policy statement on Federal equal employment policy enacted by theCongress in 1964 (5 U.S.C. 7151, redesignated as section 7201) gave thePresident authority for implementation. Executive Order 11246 (1966), expandedand superseded by Executive Order 11478 (1969) with respect to Federalemployment, required Federal agencies to develop affirmative action programsdesigned to eliminate discrimination and assure equal employment opportunity.
In 1972, Congress found that serious discrimination persisted in Federalemployment. It found that minorities and women were significantly absent athigher levels in Federal employment, and severely underrepresented in someFederal agencies and in some geographic areas where they constituted significantproportions of the population. After a detailed review of Federal employmentpractices and statistics, the Congress concluded that:
The disproportionate distribution of minorities and women throughout theFederal bureaucracy and their exclusion from higher level policy-making andsupervisory positions indicates the government's failure to pursue its policy ofequal employment opportunity.
Congress found that this exclusion resulted from overt and“systemic” discriminatory practices.
These findings, among others, led Congress to extend title VII coverage toFederal employment in Section 717 of the Equal Employment Opportunity Act of1972.
The Civil Service Reform Act of 1978 clearly states, for the first time, that“it is the policy of the United States * * * to provide* * * a Federal workforce reflective of the Nation's diversity* * *”
It is clear from the legislative history of Federal equal employment policythat the legal standards of title VII must be applied to Federal employment.Thus, guidelines for a recruitment program designed to eliminateunderrepresentation in Federal agency employment must be developed consistentwith the framework of affirmative action programs.
D. Guided by the review of the legislative history, and the responsibilitiesand authorities cited in I(B) of this appendix, the Commission is issuing theseGuidelines to provide a framework for development of recruitment programregulations by OPM. The Commission may later provide more detailed guidance,through consultation with OPM, designed to achieve an overall Federal equalemployment program which is consistent with, and which effectively implementstitle VII requirements.
II.
B. The Commission has examined existing data on Federal employment and thecivilian labor force and has made initial determinations of underrepresentationof groups by race, national origin and sex in specific grades of the majorFederal pay systems, under the legal authorities cited in I(B), of thisappendix.
C. The Table which follows shows the grades at which the percentage of eachgroup in the Federal workforce falls below its percentage in the civilian laborforce. The table covers four major Federal pay systems which account for morethan 95 percent of Federal employees, excluding the PostalService.
D. The initial determinations of underrepresentation were based uponaverage 1977 labor force data from the Current Population Survey published bythe Bureau of Labor Statistics
The labor force figures are published annually; the Federal employmentstatistics semiannually. These measures, and any modifications agreed upon bythe Commission and OPM, will be updated annually.
Regional and area Federal employment statistics are available from the Officeof Personnel Management. The latest reliable local labor force data by race,national origin, and sex is from the 1970 Census. The Commission and OPM willconsult on appropriate labor force measures to be used for local analyses.
E. These initial determinations are based upon a preliminary analysis of thedata, and may be further refined by the Commission, in consultation with OPM, toinclude geographic and occupational underrepresentation. It is furtherrecognized that for the purpose of developing regulations, the OPM, inconsultation with the Commission, will undertake more specific analyses of datause and applicability necessary to develop programs for the Federal agenciespursuant to
III.
B. In establishing groupings for determining underrepresentation, OPM shouldutilize broad occupational categories to the extent possible.
C. The Commission recognizes that OPM's regulations should allow flexibilityin development and design of each Federal agency's recruitment program. However,all statistical comparisons must be computed in a manner consistent with themethod utilized in II C of this appendix.
The Commission recommends that each agency program meet several minimumrequirements. The program should be based on a determination ofunderrepresentation in the agency's total workforce, in appropriate geographiccomponents; by grade; by broad occupational, professional and other groupings incomparison to the national civilian labor force, according to the criteriadeveloped by OPM under these guidelines.
Where an agency or major component thereof (such as Headquarters and RegionalOffices) is located in a geographic area where the percentage ofunderrepresented groups in the area civilian labor force is
Where an agency or major component thereof is located in a geographic areawhere participation of a particular underrepresented group in the area laborforce is significantly
IV.
B. Prior to developing regulations, the Office should review data onpersonnel actions and other information, to identify those job categories forwhich internal recruitment and external recruitment is most appropriate andfeasible, and to provide guidance to the Federal agencies for targeting theirrecruitment programs, based on this information. OPM should advise all agenciesthat all job qualifications, personnel procedures and criteria must beconsistent with the
1.
Recruitment programs also should include a review of job functions todetermine those jobs that may be better performed by persons who are biculturaland who have bilingual capabilities, and those jobs that can be performed bypersons not fluent in English.
b. Where eligibility lists are used for filling jobs, it is recommended thatthe regulations require, an analysis by race, national origin and sex, todetermine whether the list contains sufficient candidates from groupsunderrepresented in those jobs. OPM should require that where the list does nothave such representation, expanded recruitment procedures be designed to assurethat members of underrepresented groups qualified to perform the job(s) areincluded in the pool of applicants from which the selecting official makes theselection. Such expanded recruitment procedures may include additional externalrecruitment or various actions (such as described in 2. below) to reach membersof these groups within the Federal workforce who are qualified or qualifiablefor these jobs.
2.
b. Further, OPM should work with Federal agencies to develop effectivemechanisms for providing information on Federal job opportunities, targeted toreach Federal employees from underrepresented groups in all agencies in order tobroaden the applicant pool.
V.
B. Procedures shall be established by OPM and the Commission to assureappropriate consultation in development of the regulations.
C. Pursuant to Reorganization Plan No. 1 and to Executive Order 12067 issuedthereunder, the Commission will establish procedures to provide appropriateconsultation and review of the program on a continuing basis, to maximize itseffectiveness and eliminate any duplication, conflict or inconsistency inrequirements for equal opportunity programs in the Federal agencies.
D. In preparing its annual report to the Congress pursuant to the Act, OPMshould do so in consultation with the Commission.
29 U.S.C. 794.
53 FR 25880 and 25885, July 8, 1988, unless otherwisenoted.
The purpose of this regulation is to effectuate section 119 of theRehabilitation, Comprehensive Services, and Developmental DisabilitiesAmendments of 1978, which amended section 504 of the Rehabilitation Act of 1973to prohibit discrimination on the basis of handicap in programs or activitiesconducted by Executive agencies or the United States Postal Service.
This regulation (§§ 723.101-723.170) applies to allprograms or activities conducted by the agency, except for programs oractivities conducted outside the United States that do not involve individualswith handicaps in the United States.
For purposes of this regulation, the term—
As used in this definition, the phrase:
(1)
(i) Any physiological disorder or condition, cosmetic disfigurement, oranatomical loss affecting one or more of the following body systems:Neurological; musculoskeletal; special sense organs; respiratory, includingspeech organs; cardiovascular; reproductive; digestive; genitourinary; hemic andlymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental retardation,organic brain syndrome, emotional or mental illness, and specific learningdisabilities. The term
(2)
(3)
(4)
(i) Has a physical or mental impairment that does not substantially limitmajor life activities but is treated by the agency as constituting such alimitation;
(ii) Has a physical or mental impairment that substantially limits major lifeactivities only as a result of the attitudes of others toward such impairment;or
(iii) Has none of the impairments defined in paragraph (1) of this definitionbut is treated by the agency as having such an impairment.
(1) With respect to preschool, elementary, or secondary education servicesprovided by the agency, an individual with handicaps who is a member of a classof persons otherwise entitled by statute, regulation, or agency policy toreceive education services from the agency;
(2) With respect to any other agency program or activity under which a personis required to perform services or to achieve a level of accomplishment, anindividual with handicaps who meets the essential eligibility requirements andwho can achieve the purpose of the program or activity without modifications inthe program or activity that the agency can demonstrate would result in afundamental alteration in its nature;
(3) With respect to any other program or activity, an individual with
(4)
(a) The agency shall, by September 6, 1989, evaluate its current policies andpractices, and the effects thereof, that do not or may not meet the requirementsof this regulation and, to the extent modification of any such policies andpractices is required, the agency shall proceed to make the necessarymodifications.
(b) The agency shall provide an opportunity to interested persons, includingindividuals with handicaps or organizations representing individuals withhandicaps, to participate in the self-evaluation process by submitting comments(both oral and written).
(c) The agency shall, for at least three years following completion of theself-evaluation, maintain on file and make available for public inspection:
(1) A description of areas examined and any problems identified; and
(2) A description of any modifications made.
The agency shall make available to employees, applicants, participants,beneficiaries, and other interested persons such information regarding theprovisions of this regulation and its applicability to the programs oractivities conducted by the agency, and make such information available to themin such manner as the head of the agency finds necessary to apprise such personsof the protections against discrimination assured them by section 504 and thisregulation.
(a) No qualified individual with handicaps shall, on the basis of handicap,be excluded from participation in, be denied the benefits of, or otherwise besubjected to discrimination under any program or activity conducted by theagency.
(b)(1) The agency, in providing any aid, benefit, or service, may not,directly or through contractual, licensing, or other arrangements, on the basisof handicap—
(i) Deny a qualified individual with handicaps the opportunity to participatein or benefit from the aid, benefit, or service;
(ii) Afford a qualified individual with handicaps an opportunity toparticipate in or benefit from the aid, benefit, or service that is not equal tothat afforded others;
(iii) Provide a qualified individual with handicaps with an aid, benefit, orservice that is not as effective in affording equal opportunity to obtain thesame result, to gain the same benefit, or to reach the same level of achievementas that provided to others;
(iv) Provide different or separate aid, benefits, or services to individualswith handicaps or to any class of individuals with handicaps than is provided toothers unless such action is necessary to provide qualified individuals withhandicaps with aid, benefits, or services that are as effective as thoseprovided to others;
(v) Deny a qualified individual with handicaps the opportunity to participateas a member of planning or advisory boards;
(vi) Otherwise limit a qualified individual with handicaps in the enjoymentof any right, privilege, advantage, or opportunity enjoyed by others receivingthe aid, benefit, or service.
(2) The agency may not deny a qualified individual with handicaps theopportunity to participate in programs or activities that are not separate ordifferent, despite the existence of permissibly separate or different programsor activities.
(3) The agency may not, directly or through contractual or otherarrangements, utilize criteria or methods of administration the purpose oreffect of which would—
(i) Subject qualified individuals with handicaps to discrimination on thebasis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives of aprogram or activity with respect to individuals with handicaps.
(4) The agency may not, in determining the site or location of a facility,make selections the purpose or effect of which would—
(i) Exclude individuals with handicaps from, deny them the benefits of, orotherwise subject them to discrimination under any program or activity conductedby the agency; or
(ii) Defeat or substantially impair the accomplishment of the objectives of aprogram or activity with respect to individuals with handicaps.
(5) The agency, in the selection of procurement contractors, may not usecriteria that subject qualified individuals with handicaps to discrimination onthe basis of handicap.
(6) The agency may not administer a licensing or certification program in amanner that subjects qualified individuals with handicaps to discrimination onthe basis of handicap, nor may the agency establish requirements for theprograms or activities of licensees or certified entities that subject qualifiedindividuals with handicaps to discrimination on the basis of handicap. However,the programs or activities of entities that are licensed or certified by theagency are not, themselves, covered by this regulation.
(c) The exclusion of nonhandicapped persons from the benefits of a programlimited by Federal statute or Executive order to individuals with handicaps orthe exclusion of a specific class of individuals with handicaps from a programlimited by Federal statute or Executive order to a different class ofindividuals with handicaps is not prohibited by this regulation.
(d) The agency shall administer programs and activities in the mostintegrated setting appropriate to the needs of qualified individuals withhandicaps.
No qualified individual with handicaps shall, on the basis of handicap, besubject to discrimination in employment under any program or activity conductedby the agency. The definitions, requirements, and procedures of section 501 ofthe Rehabilitation Act of 1973 (29 U.S.C. 791), as established by the EqualEmployment Opportunity Commission in 29 CFR part 1613, shall apply to employmentin federally conducted programs or activities.
Except as otherwise provided in § 723.150, no qualified individualwith handicaps shall, because the agency's facilities are inaccessible to orunusable by individuals with handicaps, be denied the benefits of, be excludedfrom participation in, or otherwise be subjected to discrimination under anyprogram or activity conducted by the agency.
(a)
(1) Necessarily require the agency to make each of its existing facilitiesaccessible to and usable by individuals with handicaps;
(2) In the case of historic preservation programs, require the agency to takeany action that would result in a substantial impairment of significant historicfeatures of an historic property; or
(3) Require the agency to take any action that it can demonstrate wouldresult in a fundamental alteration in the nature of a program or activity or inundue financial and administrative burdens. In those circumstances where agencypersonnel believe that the proposed action would fundamentally alter the programor activity or would result in undue financial and administrative burdens, theagency has the burden of proving that compliance with § 723.150(a)would result in such alteration or burdens. The decision that compliance wouldresult in such alteration or burdens must be made by the agency head or his orher designee after considering all agency resources available for use in thefunding and operation of the conducted program or activity, and must beaccompanied by a written statement of the reasons for reaching that conclusion.If an action would result in such an alteration or such burdens, the agencyshall take any other action that would not result in such an alteration or suchburdens but would nevertheless ensure that individuals with handicaps receivethe benefits and services of the program or activity.
(b)
(2)
(i) Using audio-visual materials and devices to depict those portions of anhistoric property that cannot otherwise be made accessible;
(ii) Assigning persons to guide individuals with handicaps into or throughportions of historic properties that cannot otherwise be made accessible; or
(iii) Adopting other innovative methods.
(c)
(d)
(1) Identify physical obstacles in the agency's facilities that limit theaccessibility of its programs or activities to individuals with handicaps;
(2) Describe in detail the methods that will be used to make the facilitiesaccessible;
(3) Specify the schedule for taking the steps necessary to achieve compliancewith this section and, if the time period of the transition plan is longer thanone year, identify steps that will be taken during each year of the transitionperiod; and
(4) Indicate the official responsible for implementation of the plan.
Each building or part of a building that is constructed or altered by, onbehalf of, or for the use of the agency shall be designed, constructed, oraltered so as to be readily accessible to and usable by individuals withhandicaps. The definitions, requirements, and standards of the ArchitecturalBarriers Act (42 U.S.C. 4151-4157), as established in 41 CFR101-19.600 to 101-19.607, apply to buildings covered by thissection.
(a) The agency shall take appropriate steps to ensure effective communicationwith applicants, participants, personnel of other Federal entities, and membersof the public.
(1) The agency shall furnish appropriate auxiliary aids where necessary toafford an individual with handicaps an equal opportunity to participate in, andenjoy the benefits of, a program or activity conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the agency shallgive primary consideration to the requests of the individual with handicaps.
(ii) The agency need not provide individually prescribed devices, readers forpersonal use or study, or other devices of a personal nature.
(2) Where the agency communicates with applicants and beneficiaries bytelephone, telecommunication devices for deaf persons (TDD's) or equallyeffective telecommunication systems shall be used to communicate with personswith impaired hearing.
(b) The agency shall ensure that interested persons, including persons withimpaired vision or hearing, can obtain information as to the existence andlocation of accessible services, activities, and facilities.
(c) The agency shall provide signage at a primary entrance to each of itsinaccessible facilities, directing users to a location at which they can obtaininformation about accessible facilities. The international symbol foraccessibility shall be used at each primary entrance of an accessible facility.
(d) This section does not require the agency to take any action that it candemonstrate would result in a fundamental alteration in the nature of a programor activity or in undue financial and administrative burdens. In thosecircumstances where agency personnel believe that the proposed action wouldfundamentally alter the program or activity or would result in undue financialand administrative burdens, the agency has the burden of proving that compliancewith § 723.160 would result in such alteration or burdens. Thedecision that compliance would result in such alteration or burdens must be madeby the agency head or his or her designee after considering all agency resourcesavailable for use in the funding and operation of the conducted program oractivity and must be accompanied by a written statement of the reasons forreaching that conclusion. If an action required to comply with this sectionwould result in such an alteration or such burdens, the agency shall take anyother action that would not result in such an alteration or such burdens butwould nevertheless ensure that, to the maximum extent possible, individuals withhandicaps receive the benefits and services of the program or activity.
(a) Except as provided in paragraph (b) of this section, this section appliesto all allegations of discrimination on the basis of handicap in programs andactivities conducted by the agency.
(b) The agency shall process complaints alleging violations of section 504with respect to employment according to the procedures established by the EqualEmployment Opportunity Commission in 29 CFR part 1613 pursuant to section 501 ofthe Rehabilitation Act of 1973 (29 U.S.C. 791).
(c) The Assistant Director for Personnel and EEO shall be responsible forcoordinating implementation of this section. Complaints may be sent to theAssistant Director for Personnel and EEO, Office of Personnel Management, Room1479, 1900 E St., NW., Washington, DC 20415.
(d) The agency shall accept and investigate all complete complaints for whichit has jurisdiction. All complete complaints must be filed within 180 days ofthe alleged act of discrimination. The agency may extend this time period forgood cause.
(e) If the agency receives a complaint over which it does not havejurisdiction, it shall promptly notify the complainant and shall make reasonableefforts to refer the complaint to the appropriate Government entity.
(f) The agency shall notify the Architectural and Transportation BarriersCompliance Board upon receipt of any complaint alleging that a building orfacility that is subject to the Architectural Barriers Act of 1968, as amended(42 U.S.C. 4151-4157), is not readily accessible to and usable byindividuals with handicaps.
(g) Within 180 days of the receipt of a complete complaint for which it hasjurisdiction, the agency shall notify the complainant of the results of theinvestigation in a letter containing—
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and conclusions of law or remedies mustbe filed by the complainant within 90 days of receipt from the agency of theletter required by § 723.170(g). The agency may extend this time forgood cause.
(i) Timely appeals shall be accepted and processed by the head of the agency.
(j) The head of the agency shall notify the complainant of the results of theappeal within 60 days of the receipt of the request. If the head of the agencydetermines that additional information is needed from the complainant, he or sheshall have 60 days from the date of receipt of the additional information tomake his or her determination on the appeal.
(k) The time limits cited in paragraphs (g) and (j) of this section may beextended with the permission of the Assistant Attorney General.
(l) The agency may delegate its authority for conducting complaintinvestigations to other Federal agencies, except that the authority for makingthe final determination may not be delegated to another agency.
5 U.S.C. 1302, 3301, 7301, 7701; E.O. 10577, 3 CFR1954-1958 Comp., p. 218; E.O. 12731, 3 CFR, 1990 Comp., p. 306., 5 CFR,part 5.
65 FR 82243, Dec. 28, 2000, unless otherwise noted.
(a) The purpose of this part is to establish criteria and procedures formaking determinations of suitability for employment in positions in thecompetitive service and for career appointment in the Senior Executive Service(hereinafter in this part, “competitive service”) pursuant to 5U.S.C. 3301 and Executive Order 10577 (3 CFR, 1954-1958 Comp., p. 218).Section 3301 of title 5, United States Code, directs consideration of“age, health, character, knowledge, and ability for the employmentsought.” Executive Order 10577 directs OPM to examine“suitability” for competitive Federal employment. This part concernsonly determinations of “suitability” based on an individual'scharacter or conduct that may have an impact on the integrity or efficiency ofthe service. Determinations made under this part are distinct fromdeterminations of eligibility for assignment to, or retention in, sensitivenational security positions made under Executive Order 10450 (3 CFR,1949-1953 Comp., p. 936), Executive Order 12968, or similar authorities.
(b)
(a) An investigation conducted for the purpose of determining suitabilityunder this part may not be used for any other purpose except as provided in aPrivacy Act system of records notice published by the agency conducting theinvestigation.
(b) Under OMB Circular No. A-130 Revised, issued February 8, 1996, theDirector of OPM is to establish policies for Federal personnel associated withthe design, operation, or use of Federal automated information systems. Agenciesare to implement and maintain a program to ensure that adequate protection isprovided for all automated information systems. Agency programs should beconsistent with government-wide policies and procedures issued by OPM. TheComputer Security Act of 1987 (Public Law 100-235) provides additionalrequirements for Federal automated information systems.
(c) Policies, procedures, criteria, and guidance for the implementation ofthis part shall be set forth in OPM issuances. OPM may revoke an agency'sdelegation to adjudicate suitability under this part if an agency fails toconform to OPM issuances.
(a) OPM delegates to the heads of agencies limited authority for adjudicatingsuitability in cases involving applicants for and appointees to competitiveservice positions in the agency (including limited, agency-specific debarmentauthority under § 731.205). OPM retains jurisdiction in allcompetitive service cases involving evidence of material, intentional falsestatement or deception or fraud in examination or appointment. Agencies mustrefer these cases to OPM for adjudication, or contact OPM for prior approval ifthe agency wants to take action under its own authority (5 CFR part 315 or 5 CFRpart 752). Also, this delegation does not include cases involving refusal tofurnish testimony as required by § 5.4 of this chapter, title, orpassover requests involving preference eligibles who are 30 percent or morecompensably disabled which must
(b) Any adjudication by an agency acting under delegated authority from OPMwhich indicates that an extended general, across agency lines, debarment by OPMunder § 731.204(a) may be an appropriate action should be referred toOPM for debarment consideration if not favorably adjudicated by the agency.Referral should be made prior to any proposed action, but after sufficientresolution of the suitability issue(s) through subject contact or investigationto determine if an extended general debarment period appears warranted.
(c) Agencies exercising authority under this part by delegation from OPM mustshow by policies and records that reasonable methods are used to ensureadherence to regulations, standards, and quality control procedures establishedby OPM.
(d) Before making any applicant suitability determination, the agency shouldfirst ensure the applicant is eligible for the position, among the bestqualified, and/or within reach of selection. Because suitability issues may notbe disclosed until late in the application/ appointment process, only the bestqualified should require a suitability determination, with appropriateprocedures followed and appeal rights provided, if suitability issues would formthe only basis for elimination from further consideration.
(e) When an agency, exercising authority under this part by delegation fromOPM, makes an adjudicative decision under this part, or changes a tentativefavorable placement decision to an unfavorable decision, based on an OPM reportof investigation or upon an investigation conducted pursuant to OPM-delegatedauthority, the agency should:
(1) Ensure that the records used in making the decision are accurate,relevant, timely, and complete to the extent reasonably necessary to ensurefairness to the individual in any determination;
(2) Ensure that all applicable administrative procedural requirementsprovided by law, the regulations in this part, and OPM policy guidance have beenobserved;
(3) Consider all available information in reaching its final decision, exceptinformation furnished by a non-corroborated confidential source. Informationfurnished by a non-corroborated confidential source can only be used for limitedpurposes, such as lead information or in interrogatories to a subject if theidentity of the source is not compromised in any way; and
(4) Keep any record of the agency action as required by OPM in itssupplemental guidance.
(f) Paragraph (a) of this section notwithstanding, OPM may exercise itsjurisdiction under this part in any case when it, in its discretion, deemsnecessary.
(g) Any applicant or appointee who is found unsuitable by any agency actingunder delegated authority from OPM under this part may appeal the adversesuitability decision to the Merit Systems Protection Board under the Board'sregulations.
(a) To establish a person's suitability for employment, appointments topositions in the competitive service require the person to undergo aninvestigation by OPM or by an agency with delegated authority from OPM toconduct investigations. Certain appointments do not require investigation.Except when required because of risk level changes, a person in the competitiveservice who has undergone a suitability investigation need not undergo anotherone simply because the person has been:
(1) Promoted;
(2) Demoted;
(3) Reassigned;
(4) Converted from career-conditional to career tenure;
(5) Appointed or converted to an appointment if the person has been servingcontinuously with the agency for at least 1 year in one or more positions underan appointment subject to investigation; and
(6) Transferred, provided the individual has served continuously for at least1 year in a position subject to investigation.
(b)(1) OPM or an agency with delegated suitability authority may investigateand take a suitability action against an applicant, appointee, or employee inaccordance with § 731.105. There is no time limit on the authority ofOPM or an agency with delegated suitability authority to conduct aninvestigation of an applicant who has been appointed to a position.
(2) An employee does not have to serve a new probationaryor trial period merely because his or her appointment is subject toinvestigation under this section. An employee's probationary or trial period isnot extended because his or her appointment is subject to investigation underthis section.
(3) The subject to investigation condition also does noteliminate the need to conduct investigations required under § 731.106for public trust positions.
(a) OPM may take a suitability action under this part against an applicant orappointee based on any of the criteria of § 731.202;
(b) An agency, exercising delegated authority, may take a suitability actionunder this part against an applicant or appointee based on the criteria of§ 731.202 subject to the agency limitations prescribed in§ 731.103;
(c) OPM may take a suitability action under this part against an employeeonly in cases involving material, intentional false statement or deception orfraud in examination or appointment, or refusal to furnish testimony as requiredby § 5.4 of this title, or statutory or regulatory bar. A statementmay be a material statement even if an agency does not rely upon it.
(d) An agency may not take a suitability action against an employee underthis part. Nothing in this part precludes, or is intended to preclude, an agencyfrom taking an adverse action against an employee under the procedures andstandards of part 752 of this title or terminating a probationary employee underthe procedures of part 315 of this title.
(a)
(b)
(c)
(d)
(e)
(f) Any suitability investigation completed by an agency under provisions ofparagraphs (d) or (e) of this section must be adjudicated by the employingagency. The subject's employment status will determine the applicable agencyauthority and procedures to be followed in any action taken.
Subject to subpart A of this part, an applicant, appointee, or employee maybe denied Federal employment or removed from a position only when the actionwill protect the integrity or promote the efficiency of the service.
(a)
(b)
(1) Misconduct or negligence in employment;
(2) Criminal or dishonest conduct;
(3) Material, intentional false statement or deception or fraud inexamination or appointment;
(4) Refusal to furnish testimony as required by § 5.4 of thistitle;
(5) Alcohol abuse of a nature and duration which suggests that the applicantor appointee would be prevented from performing the duties of the position inquestion, or would constitute a direct threat to the property or safety ofothers;
(6) Illegal use of narcotics, drugs, or other controlled substances, withoutevidence of substantial rehabilitation;
(7) Knowing and willful engagement in acts or activities designed tooverthrow the U.S. Government by force;
(8) Any statutory or regulatory bar which prevents the lawful employment ofthe person involved in the position in question.
(c)
(1) The nature of the position for which the person is applying or in whichthe person is employed;
(2) The nature and seriousness of the conduct;
(3) The circumstances surrounding the conduct;
(4) The recency of the conduct;
(5) The age of the person involved at the time of the conduct;
(6) Contributing societal conditions; and
(7) The absence or presence of rehabilitation or efforts towardrehabilitation.
(a)
(1) Cancellation of eligibility;
(2) Denial of appointment;
(3) Removal;
(4) Cancellation of reinstatement eligibility;
(5) Debarment.
(b) An applicant's eligibility may be cancelled, an applicant may be deniedemployment, or an appointee may be removed when OPM or an agency exercisingdelegated authority under this part finds that the applicant or appointee isunsuitable for the reasons cited in § 731.202 subject to the agencylimitations of § 731.103(a).
(c) OPM may require that an employee be removed on the basis of a material,intentional false statement, or deception or fraud in examination orappointment; or refusal to furnish testimony; or a statutory or regulatory bar.OPM may also cancel any reinstatement eligibility obtained as a result of falsestatement, deception or fraud in the examination or appointment process.
(d) An action to remove an appointee or employee for suitability reasonsunder this part is not an action under
(e) Agencies are required to report to OPM all unfavorable adjudicativeactions taken under this part, and all actions based on an OPM investigation.
(a) When OPM finds a person unsuitable for any reason listed in§ 731.202, OPM, in its discretion, may deny that person examinationfor, and appointment to, a competitive service position for a period of not morethan 3 years from the date of determination of unsuitability.
(b) On expiration of a period of debarment, OPM or an agency may redeterminea person's suitability for appointment in accordance with the procedures of thispart.
(c) OPM, in its sole discretion, determines the duration of any period ofdebarment imposed under this section.
(a) Subject to the provisions of § 731.103, when an agency findsan applicant or appointee unsuitable for reasons listed in § 731.202,the agency may deny that person examination for, and appointment to, all, orspecific,, positions within the agency for a period of not more than 1 year fromthe date of determination of unsuitability.
(b) On expiration of a period of agency debarment, the agency may redeterminea person's suitability for appointment by the agency, in accordance with theprocedures of this part.
(c) The agency is responsible for enforcing the period of debarment andtaking appropriate action should the individual apply or be inappropriatelyappointed during the debarment period. This does not limit OPM's ability toexercise jurisdiction and take an action if it deems appropriate.
(d) The agency, in its sole discretion, determines the duration of any periodof debarment imposed under this section.
(a)
(b)
(a) OPM shall notify the applicant, appointee, or employee (hereinafter, the“respondent”) in writing of the proposed action and of the chargesagainst the respondent (including the availability for review, upon request, ofthe materials relied upon). The notice shall state the specific reasons for theproposed action and that the respondent has the right to answer the notice inwriting. If the respondent is an employee, the notice shall further state thatthe employee may also make an oral answer, as specified in§ 731.303(a). The notice shall further inform the respondent of thetime limits for response as well as the address to which such response should bemade.
(b) The notice of proposed action shall be served upon the respondent bybeing mailed or hand delivered to the respondent's last known residence, and/orduty station, no less than 30 days prior to the effective date of the proposedaction. If the respondent is employed in the competitive service on the date thenotice is served, the respondent shall be entitled to be retained in a paystatus during the notice period.
(c) OPM shall send a copy of this notice to any employing agency that isinvolved.
(a)
(b)
The decision shall be in writing, dated, and inform the respondent of thereasons for the decision. The employing agency shall remove the appointee oremployee from the rolls within 5 work days of receipt of OPM's final decision.The respondent shall also be informed that an adverse decision can be appealedin accordance with subpart E of this part. OPM shall also notify therespondent's employing agency of its decision.
(a)
(b)
The agency shall provide the applicant or appointee (hereinafter, the“respondent”) reasonable notice in writing of the proposed actionand of the charges against the respondent (including the availability forreview, upon request, of the materials relied upon). The notice shall state thespecific reasons for the proposed action, and that the respondent has the rightto answer the notice in writing. The notice shall inform the respondent of thetime limits for response as well as the address to which such response should bemade. If the respondent is employed in the competitive service on the date thenotice is served, the respondent shall be entitled to be retained in a paystatus during the notice period.
A respondent may answer the charges in writing and furnish documentationand/or affidavits in support of the response.
The decision shall be in writing, dated, and inform the respondent of thereasons for the decision. The respondent shall also be informed that an adversedecision can be appealed in accordance with subpart E of this part. Theemploying agency shall remove an appointee from the rolls within 5 work days oftheir final decision.
(a)
(b)
No provision of the regulations in this part shall be applied in such a wayas to affect any administrative proceeding pending on January 29, 2001. Anadministrative proceeding is deemed to be pending from the date of the agency orOPM “notice of proposed action” described in § 731.402.
5 U.S.C. 3301, 3302, 7312; 50 U.S.C. 403; E.O. 10450, 3CFR, 1949-1953 Comp., p. 936.
56 FR 18654, Apr. 23, 1991, unless otherwise noted.
This part sets forth certain requirements and procedures which each agencyshall observe for determining national security positions pursuant to ExecutiveOrder 10450—Security Requirements for Government Employment (April 27,1953), 18 FR 2489, 3 CFR 1949-1953 Comp., p. 936, as amended.
(a) For purposes of this part, the term “national securityposition” includes:
(1) Those positions that involve activities of the Government that areconcerned with the protection of the nation from foreign aggression orespionage, including development of defense plans or policies, intelligence orcounterintelligence activities, and related activities concerned with thepreservation of the military strength of the United States; and
(2) Positions that require regular use of, or access to, classifiedinformation. Procedures and guidance provided in OPM issuances apply.
(b) The requirements of this part apply to competitive service positions, andto Senior Executive Service positions filled by career appointment, within theExecutive Branch, and agencies may apply them to excepted service positionswithin the Executive Branch.
(a) For purposes of this part, the head of each agency shall designate, orcause to be designated, any position within the department or agency theoccupant of which could bring about, by virtue of the nature of the position, amaterial adverse effect on the national security as a sensitive position at oneof three sensitivity levels: Special-Sensitive, Critical-Sensitive, orNoncritical-Sensitive.
(b) Investigative requirements for each sensitivity level are provided in OPMissuances.
(a)
(2)
(ii) For positions designated Critical-Sensitive under this part, the recordsof the department or agency required by § 732.202(a)(1) of this partshall show what decision was made on obtaining prewaiver checks, as follows: (A)The nature of the emergency precluded obtaining prewaiver checks; or (B) checkswere initiated but not all responses were received within 5 days; or (C) checksmade and favorably completed are listed.
(iii) The waiver restriction is optional for positions designatedNoncritical-Sensitive under this part.
(iv) When waiver is authorized, the required investigation must be initiatedwithin 14 days of placement of the individual in the position.
(b)
(i) Positions that are intermittent, seasonal, per diem, or temporary, not toexceed an aggregate of 180 days in either a single continuous appointment orseries of appointments; or
(ii) Positions filled by aliens employed outside the United States.
(2) Other positions that OPM, in its discretion, deems appropriate may bemade exempt based on a written request to OPM by the agency head in whosedepartment or agency the positions are located.
The incumbent of each position designated Special-Sensitive or Critical-Sensitive under this part shall be subject to periodic reinvestigation of ascope prescribed by OPM 5 years after placement, and at least once eachsucceeding 5 years. The employing agency will use the results of such periodicreinvestigation to determine whether the continued employment of the individualin a sensitive position is clearly consistent with the interests of the nationalsecurity.
When an agency makes an adjudicative decision under this part based on an OPMinvestigation, or when an agency, as a result of information in an OPMinvestigation, changes a tentative favorable placement or clearance decision toan unfavorable decision, the agency must:
(a) Insure that the records used in making the decision are accurate,relevant, timely, and complete to the extent reasonably necessary to assurefairness to the individual in any determination.
(b) Comply with all applicable administrative due process requirements, asprovided by law, rule, or regulation.
(c) At a minimum, provide the individual concerned:
(1) Notice of the specific reason(s) for the decision; and
(2) An opportunity to respond; and
(3) Notice of appeal rights, if any.
(d) Consider all available information in reaching its final decision.
(e) Keep any record of the agency action required by OPM as published in itsissuances.
(a) In accordance with section 9(a) of E.O. 10450, each agency conducting aninvestigation under E.O. 10450 is required to notify OPM when the investigationis initiated.
(b) In accordance with section 14(c) of E.O. 10450, agencies shall report toOPM the action taken with respect to individuals investigated pursuant to E.O.10450 as soon as possible and in no event later than 90 days after receipt ofthe final report of investigation.
(a)
(b)
(2) If a former Federal employee found ineligible under this section has hadan opportunity to comment on the reasons for the action, or has furnished themto OPM or to the former employing agency, OPM may cancel the reinstatementeligibility if the eligibility resulted from the last Federal employment and wasobtained through fraud, and OPM may prescribe a period of debarment not toexceed 3 years.
5 U.S.C. 7325; sec. 308 of Pub. L. 104-93, 109Stat. 961, 966 (Jan. 6, 1996).
63 FR 4558, Jan. 30, 1998, unless otherwise noted.
In this part:
Any individual (other than the President, the Vice President, or a member ofthe uniformed services) employed or holding office in—
(1) An Executive agency other than the General Accounting Office;
(2) A position within the competitive service which is not in an Executiveagency;
(3) The government of the District of Columbia, other than the Mayor or a
(4) The United States Postal Service or the Postal Rate Commission.
(1) In a pay status other than paid leave, compensatory time off, credithours, time off as an incentive award, or excused or authorized absence(including leave without pay); or
(2) Representing any agency or instrumentality of the United StatesGovernment or any agency or instrumentality of the District of ColumbiaGovernment in an official capacity.
(1) A political contribution includes:
(i) Any contract, promise, or agreement, express or implied, whether or notlegally enforceable, to make a contribution for any political purpose;
(ii) Any payment by any person, other than a candidate or a political partyor affiliated organization, of compensation for the personal services of anotherperson which are rendered to any candidate or political party or affiliatedorganization without charge for any political purpose; and
(iii) The provision of personal services, paid or unpaid, for any politicalpurpose.
(2) A political contribution does not include the value of services providedwithout compensation by any individual who volunteers on behalf of anycandidate, campaign, political party, or partisan political group.
(1) Any Federally owned space (including, but not limited to, “publicbuildings” as defined in 40 U.S.C. 612(1)) or Federally leased space inwhich Federal employees perform official duties on a regular basis;
(2) Public areas as defined in 40 U.S.C. 490(a)(17) and 41 CFR101-20.003 of buildings under the custody and control of the GeneralServices Administration.
(3) A room or building occupied in the discharge of official duties by anindividual employed or holding office in the Government of the United States orany agency thereof does not include rooms in the White House, or in theresidence of the Vice President, which are part of the Residence area or whichare not regularly used solely in the discharge of official duties.
Employees in the Criminal Division in the Department of Justice (exceptemployees appointed by the President, by and with the advice and consent of theSenate) specifically are excluded from coverage under the provisions of thispart.
(a) This section does not apply to an individual who is employed in an agencyor position described in § 733.105(a), unless that individual hasbeen appointed by the President, by and with the advice and consent of theSenate.
(b) Employees who reside in a municipality or political subdivisiondesignated by OPM under § 733.107 may:
(1) Run as independent candidates for election to partisan political officein elections for local office in the municipality or political subdivision;
(2) Solicit, accept, or receive a political contribution as, or on behalf of,an independent candidate for partisan political office in elections for localoffice in the municipality or political subdivision;
(3) Accept or receive a political contribution on behalf of an individual whois a candidate for local partisan political office and who represents apolitical party;
(4) Solicit, accept, or receive uncompensated volunteer services as anindependent candidate, or on behalf of an independent candidate, for localpartisan political office, in connection with the local elections of themunicipality or subdivision; and
(5) Solicit, accept, or receive uncompensated volunteer services on behalf ofan individual who is a candidate for local partisan political office and whorepresents a political party.
(a) This section does not apply to an individual who is employed in an agencyor position described in § 733.105(a), unless that individual hasbeen appointed by the President, by and with the advice and consent of theSenate.
(b) Employees who reside in a municipality or political subdivisiondesignated by OPM under § 733.107 may not:
(1) Run as the representative of a political party for local partisanpolitical office;
(2) Solicit a political contribution on behalf of an individual who is acandidate for local partisan political office and who represents a politicalparty;
(3) Knowingly solicit a political contribution from any Federal employee,except as permitted under 5 U.S.C. 7323(a)(2)(A)-(C).
(4) Accept or receive a political contribution from a subordinate; or
(5) Solicit, accept, or receive uncompensated volunteer services from asubordinate for any political purpose.
(c) An employee covered under this section may not participate in politicalactivities:
(1) While he or she is on duty:
(2) While he or she is wearing a uniform, badge, or insignia that identifiesthe employing agency or instrumentality or the position of the employee;
(3) While he or she is in any room or building occupied in the discharge ofofficial duties by an individual employed or holding office in the Government ofthe United States or any agency or instrumentality thereof; or
(4) While using a Government-owned or leased vehicle or while using aprivately owned vehicle in the discharge of official duties.
(d) An employee described in 5 U.S.C. 7324(b)(2) may participate in politicalactivity otherwise prohibited by § 733.104(c) if the costs associatedwith that political activity are not paid for
(e) Candidacy for, and service in, a partisan political office shall notresult in neglect of, or interference with, the performance of the duties of theemployee or create a conflict, or apparent conflict, of interest.
(a) This section applies to employees who reside in designated localities andare employed in the following agencies or positions:
(1) Federal Election Commission;
(2) Federal Bureau of Investigation;
(3) United States Secret Service;
(4) Central Intelligence Agency;
(5) National Security Council;
(6) National Security Agency;
(7) Defense Intelligence Agency;
(8) Merit Systems Protection Board;
(9) United States Office of Special Counsel;
(10) Office of Criminal Investigation of the Internal Revenue Service;
(11) Office of Investigative Programs of the United States Customs Service;
(12) Office of Law Enforcement of the Bureau of Alcohol, Tobacco, andFirearms;
(13) National Imagery and Mapping Agency;
(14) Career Appointees in the Senior Executive Service;
(15) Administrative Law Judges; and
(16) Contract appeals board members described in 5 U.S.C. 5372a.
(b) This section does not apply to individuals who have been appointed by thePresident by and with the advice and consent of the Senate, even though they areemployed in the agencies and positions described in paragraph (a) of thissection.
(c) Employees who are covered under this section and who reside in amunicipality or political subdivision designated by OPM under§ 733.107 may:
(1) Run as independent candidates for election to partisan political officein elections for local office in the municipality or political subdivision;
(2) Solicit, accept, or receive a political contribution as, or on behalf of,an independent candidate for partisan political office in elections for localoffice in the municipality or political subdivision;
(3) Solicit, accept, or receive uncompensated volunteer services as, or onbehalf of, an independent candidate for partisan political office in electionsfor office in the municipality or subdivision; and
(4) Take an active part in other political activities associated withelections for local partisan political office and in managing the campaigns ofcandidates for election to local partisan political office in the municipalityor political subdivision, but only as an independent candidate or on behalf of,or in opposition to, an independent candidate.
(a) This section does not apply to individuals who have been appointed by thePresident, by and with the advice and consent of the Senate, even though theyare employed in the agencies and positions described in § 733.105(a).
(b) Employees who are employed in the agencies and positions described in§ 733.105(a), and who reside in a municipality or politicalsubdivision designated by OPM under § 733.107, may not:
(1) Run as the representative of a political party for local partisanpolitical office;
(2) Solicit, accept, or receive a political contribution on behalf of anindividual who is a candidate for local partisan political office and whorepresents a political party;
(3) Knowingly solicit a political contribution from any Federal employee;
(4) Accept or receive a political contribution from a subordinate;
(5) Solicit, accept, or receive uncompensated volunteer services on behalf ofan individual who is a candidate for local partisan political office and whorepresents a political party;
(6) Solicit, accept, or receive uncompensated volunteer services from asubordinate for any political purpose; or
(7) Take an active part in other political activities associated withelections for local partisan political office, when such participation occurs onbehalf of a political party, partisan political group, or a candidate for localpartisan
(c) An employee covered under this section may not participate in politicalactivities:
(1) While he or she is on duty:
(2) While he or she is wearing a uniform, badge, or insignia that identifiesthe employing agency or instrumentality or the position of the employee;
(3) While he or she is in any room or building occupied in the discharge ofofficial duties by an individual employed or holding office in the Government ofthe United States or any agency or instrumentality thereof; or
(4) While using a Government-owned or leased vehicle or while using aprivately owned vehicle in the discharge of official duties.
(d) Candidacy for, and service in, or partisan political office shall notresult in neglect of, or interference with, the performance of the duties of theemployee or create a conflict, or apparent conflict, of interest.
(a) OPM may designate a municipality or political subdivision in Maryland orVirginia and in the immediate vicinity of the District of Columbia, or amunicipality in which the majority of voters are employed by the Government ofthe United States, when OPM determines that, because of special or unusualcircumstances, it is in the domestic interest of employees to participate inlocal elections.
(b) Information as to the documentation required to support a request fordesignation is furnished by the General Counsel of OPM on request.
(c) The following municipalities and political subdivisions have beendesignated, effective on the day specified:
5 U.S.C. 1103, 1104, 7325; Reorganization Plan No. 2 of1978, 92 Stat. 3783, 3 CFR 1978 Comp. p. 323; and E.O. 12107, 3 CFR 1978 Comp.p. 264.
59 FR 48769, Sept. 23, 1994, unless otherwise noted.
For the purposes of this part:
(1) An Executive agency other than the General Accounting Office;
(2) A position within the competitive service which is not in an Executiveagency;
(3) The Government of the District of Columbia, other than the Mayor or amember of the City Council or the Recorder of Deeds; or
(4) The United States Postal Service or the Postal Rate Commission.
(1) An election in which none of the candidates is to be nominated or electedas representing a political party any of whose candidates for Presidentialelector received votes in the last preceding election at which Presidentialelectors were selected; or
(2) An election involving a question or issue which is not specificallyidentified with a political party, such as a constitutional amendment,referendum, approval of a municipal ordinance, or any question or issue of asimilar character.
(1) In a pay status other than paid leave, compensatory time off, credithours, time off as an incentive award, or excused or authorized absence(including leave without pay); or
(2) Representing any agency or instrumentality of the United StatesGovernment or any agency or instrumentality of the District of ColumbiaGovernment in an official capacity.
(a) A political contribution includes:
(1) Any contract, promise, or agreement, express or implied, whether or notlegally enforceable, to make a contribution for any political purpose;
(2) Any payment by any person, other than a candidate or a political party oraffiliated organization, of compensation for the personal services of anotherperson which are rendered to any candidate or political party or affiliatedorganization without charge for any political purpose; and
(3) The provision of personal services, paid or unpaid, for any politicalpurpose.
(b) A political contribution does not include the value of services providedwithout compensation by any individual who volunteers on behalf of anycandidate, campaign, political party, or partisan political group.
(1) Any Federally owned space (including, but not limited to, “publicbuildings” as defined in 40 U.S.C. 612(1)) or Federally leased space inwhich Federal employees perform official duties on a regular basis;
(2) Public areas as defined in 40 U.S.C. 490(a)(17) and 41 CFR101-20.003 of buildings under the custody and control of the GeneralServices Administration.
(3) A room or building occupied in the discharge of official duties by anindividual employed or holding office in the Government of the United States orany agency thereof does not include rooms in the White House, or in theresidence of the Vice President, which are part of the Residence area or whichare not regularly used solely in the discharge of official duties.
(a) The United States Office of Special Counsel has exclusive authority toinvestigate allegations of political activity prohibited by the Hatch Act ReformAmendments of 1993, as implemented by 5 CFR part 734, prosecute allegedviolations before the United States Merit Systems Protection Board, and renderadvisory opinions concerning the applicability of 5 CFR part 734 to thepolitical activity of Federal employees and employees of the District ofColumbia government. (5 U.S.C. 1212 and 1216. Advice concerning the Hatch ActReform Amendments may be requested from the Office of Special Counsel:
(1) By letter addressed to the Office of Special Counsel at 1730 M StreetNW., Suite 300, Washington, DC 20036, or
(2) By telephone on (202) 653-7188, or (1-800) 854-2824.
(b) The Merit Systems Protection Board has exclusive authority to determinewhether a violation of the Hatch
(c) The Office of Personnel Management is authorized to issue regulationsdescribing the political activities which are permitted and prohibited under theHatch Act Reform Amendments of 1993. (5 U.S.C. 1103, 1104, 7325; ReorganizationPlan No. 2 of 1978, 92 Stat. 3783, 3 CFR 1978 Comp. p. 323; and E.O. 12107, 3CFR 1978 Comp. p. 264.)
(a) In order to qualify under this part, each multicandidate politicalcommittee of a Federal labor organization must provide to the Office thefollowing:
(1) Information verifying that the multicandidate political committee is amulticandidate political committee as defined by 2 U.S.C. 441a(a)(4);
(2) Information identifying the Federal labor organization to which themulticandidate political committee is connected; and
(3) Information that identifies the Federal labor organization as a labororganization defined at 5 U.S.C. 7103(4).
(b) In order to qualify under this part, each multicandidate politicalcommittee of a Federal employee organization must provide to the Office thefollowing:
(1) Information verifying that the multicandidate political committee is amulticandidate political committee as defined in 2 U.S.C. 441a(a)(4);
(2) Information identifying the Federal employee organization to which themulticandidate political committee is connected; and
(3) Information indicating that the multicandidate political committee was inexistence as of October 6, 1993.
No further proscriptions or restrictions may be imposed upon employeescovered under this regulation except:
(a) Employees who are appointed by the President by and with the advice andconsent of the Senate;
(b) Employees who are appointed by the President;
(c) Non-career senior executive service members;
(d) Schedule C employees, 5 CFR 213.3301, 213.3302; and
(e) Any other employees who serve at the pleasure of the President.
This subpart does not apply to employees in the agencies and positionsdescribed in subpart D of this part.
Employees may take an active part in political activities, includingpolitical management and political campaigns, to the extent not expresslyprohibited by law and this part.
An employee may:
(a) Express his or her opinion privately and publicly on political subjects;
(b) Be politically active in connection with a question which is notspecifically identified with a political party, such as a constitutionalamendment, referendum, approval of a municipal ordinance or any other questionor issue of a similar character;
(c) Participate in the nonpartisan activities of a civic, community, social,labor, or professional organization, or of a similar organization; and
(d) Participate fully in public affairs, except as prohibited by otherFederal law, in a manner which does not compromise his or her efficiency orintegrity as an employee or the neutrality, efficiency, or integrity of theagency or instrumentality of the United States Government or the District ofColumbia Government in which he or she is employed.
An employee may participate, including holdingoffice, in any nonpartisan group. Such participation may include fundraising aslong as the fundraising is not in any way connected with any partisan politicalissue, group, or candidate, and as long as the fundraising complies with part2635 of this title as well as any other directives that may apply,
An employee may:
(a) Be a member of a political party or other political group and participatein its activities;
(b) Serve as an officer of a political party or other political group, amember of a national, State, or local committee of a political party, an officeror member of a committee of a political group, or be a candidate for any ofthese positions;
(c) Attend and participate fully in the business of nominating caucuses ofpolitical parties;
(d) Organize or reorganize a political party organization or political group;and
(e) Participate in a political convention, rally, or other politicalgathering.
(f) Serve as a delegate, alternate, or proxy to a political party convention.
An employee of the Department of Education may serveas a delegate, alternate, or proxy to a State or national party convention.
Subject to the prohibitions in § 734.306, an employee may:
(a) Display pictures, signs, stickers, badges, or buttons associated withpolitical parties, candidates for partisan political office, or partisanpolitical groups, as long as these items are displayed in accordance with theprovisions of § 734.306 of subpart C of this part;
(b) Initiate or circulate a nominating petition for a candidate for partisanpolitical office;
(c) Canvass for votes in support of or in opposition to a partisan politicalcandidate or a candidate for political party office;
(d) Endorse or oppose a partisan political candidate or a candidate forpolitical party office in a political advertisement, broadcast, campaignliterature, or similar material;
(e) Address a convention, caucus, rally, or similar gathering of a politicalparty or political group in support of or in opposition to a partisan politicalcandidate or a candidate for political party office; and
(f) Take an active part in managing the political campaign of a partisanpolitical candidate or a candidate for political party office.
An employee of the Environmental Protection Agencymay broadcast endorsements for a partisan political candidate via a publicaddress system attached to his or her private automobile.
An employee may:
(a) Register and vote in any election;
(b) Act as recorder, watcher, challenger, or similar officer at pollingplaces;
(c) Serve as an election judge or clerk, or in a similar position; and
(d) Drive voters to polling places for a partisan political candidate,partisan political group, or political party.
An employee may drive voters to polling places in aprivately owned vehicle, but not in a Government-owned or leasedvehicle.
An employee may:
(a) Run as an independent candidate in a partisan election covered by 5 CFRpart 733; and
(b) Run as a candidate in a nonpartisan election.
An employee who is a candidate for public office in anonpartisan election is not barred by the Hatch Act from soliciting, accepting,or receiving political contributions for his or her own campaign; however, suchsolicitation, acceptance, or receipt must comply with part 2635 of this title aswell as any other directives that may apply,
(a) An employee may make a political contribution to a political party,political group, campaign committee of a candidate for public office in apartisan election and multicandidate political committee of a Federal labor orFederal employee organization.
(b) Subject to the prohibitions stated in section 734.303, an employeemay—
(1) Attend a political fundraiser;
(2) Accept and receive political contributions in a partisan electiondescribed in 5 CFR part 733;
(3) Solicit, accept, or receive uncompensated volunteer services from anyindividual; and
(4) Solicit, accept, or receive political contributions, as long as:
(i) The person who is solicited for a political contribution belongs to thesame Federal labor organization, or Federal employee organization, as theemployee who solicits, accepts, or receives the contribution;
(ii) The person who is solicited for a political contribution is not asubordinate employee; and
(iii) The request is for a contribution to the multicandidate politicalcommittee of a Federal labor organization or to the multicandidate politicalcommittee of a Federal employee organization in existence on October 6, 1993.
(c) Subject to the provisions of § 734.306, an employee may make afinancial contribution to a political action committee through a voluntaryallotment made under § 550.311(b) of this chapter, if the head of theemployee's agency permits agency employees to make such allotments to politicalaction committees.
(d) An employee who is covered under this subpart and is a payroll officialin an agency where employees are permitted to make allotments to politicalaction committees may process the completed direct deposit forms for voluntaryallotments which have been made to such committees under section 550.311(b) ofthis title.
An GS-12 employee of the Department of Treasurywho belongs to the
This subpart does not apply to employees in the agencies and positionsdescribed in subpart D of this part.
(a) An employee may not use his or her official authority or influence forthe purpose of interfering with or affecting the result of an election.
(b) Activities prohibited by paragraph (a) of this section include, but arenot limited to:
(1) Using his or her official title while participating in politicalactivity;
(2) Using his or her authority to coerce any person to participate inpolitical activity; and
(3) Soliciting, accepting, or receiving uncompensated individual volunteerservices from a subordinate for any political purpose.
An employee who signs a letter seeking uncompensatedvolunteer services from individuals may not identify himself or herself by usinghis or her official title. However, the employee may use a general form ofaddress, such as “The Honorable.”
An employee may not knowingly:
(a) Personally solicit, accept or receive a political contribution fromanother person, except under the circumstances specified in§ 734.208(b);
(b) Personally solicit political contributions in a speech or keynote addressgiven at a fundraiser;
(c) Allow his or her official title to be used in connection with fundraisingactivities; or
(d) Solicit, accept, or receive uncompensated volunteer services from anindividual who is a subordinate.
An employee may not host a fundraiser at his or herhome. However, a spouse who is not covered under this part may host such afundraiser and the employee may attend. The employee may not personally solicitcontributions to the fundraiser. Moreover, the employee may not accept, orreceive political contributions, except under the circumstances stated in§ 734.208(b).
An employee may not run for the nomination or as a candidate for election topartisan political office, except as specified in § 734.207.
(a) An employee may not knowingly solicit or discourage the participation inany political activity of any person who has an application for any compensationgrant, contract, ruling, license, permit, or certificate pending before theemployee's employing office.
(b) An employee may not knowingly solicit or discourage the participation inany political activity of any person who is the subject of, or a participant in,an ongoing audit, investigation, or enforcement action being carried out by theemployee's employing office.
(c) Each agency or instrumentality of the United States or District ofColumbia Government shall determine when a matter is pending and ongoing withinemploying offices of the agency or instrumentality for the purposes of thispart.
An employee with agency-wide responsibility mayaddress a large, diverse group to seek support for a partisan politicalcandidate as long as the group has not been specifically targeted as havingmatters before the employing office.
(a) An employee may not participate in political activities subject to theprovisions of subpart E of this part:
(1) While he or she is on duty;
(2) While he or she is wearing a uniform, badge, insignia, or other similaritem that identifies the employing agency or instrumentality or the position ofthe employee;
(3) While he or she is in any room or building occupied in the discharge ofofficial duties by an individual employed or holding office in the Government ofthe United States or any agency or instrumentality thereof; or
(4) While using a Government-owned or leased vehicle or while using aprivately-owned vehicle in the discharge of official duties.
(b) The prohibitions in paragraph (a) of this section do not apply toemployees covered under subpart E of this part.
While on leave without pay, an employee is notsubject to the prohibition in § 734.306(a)(1) because he or she isnot on duty. However, while on leave without pay, the employee remains subjectto the other prohibitions in subpart C.
An employee covered under this subpart who is the spouse or family member ofeither a candidate for partisan political office, candidate for political partyoffice, or candidate for public office in a nonpartisan election, is subject tothe same prohibitions as other employees covered under this subpart.
An employee who is married to a candidate forpartisan political office may attend a fundraiser for his or her spouse, standin the receiving line, sit at the head table, and urge others to vote for his orher spouse. However, the employee may not personally solicit, accept, or receivecontributions of money or the paid or unpaid services of a business orcorporation, or sell or collect money for tickets to the fundraiser.
(a) This subpart applies to employees in the following agencies andpositions:
(1) The Federal Election Commission;
(2) The Federal Bureau of Investigation;
(3) The Secret Service;
(4) The Central Intelligence Agency;
(5) The National Security Council;
(6) The National Security Agency;
(7) The Defense Intelligence Agency;
(8) The Merit Systems Protection Board;
(9) The Office of Special Counsel;
(10) The Office of Criminal Investigation of the Internal Revenue Service.
(11) The Office of Investigative Programs of the United States CustomsService;
(12) The Office of Law Enforcement of the Bureau of Alcohol, Tobacco, andFirearms;
(13) The Criminal Division of the Department of Justice;
(14) The Central Imagery Office;
(15) Career Senior Executive Service positions described in 5 U.S.C.3132(a)(4);
(16) Administrative Law Judge positions described in 5 U.S.C. 5372;
(17) Contract Appeals Board Member positions described in 5 U.S.C. 5372a.
(b) Employees appointed by the President by and with the advice and consentof the Senate in the agencies and positions described in paragraph (a) of thissection are excluded from coverage under this subpart.
(c) All employees covered under this subpart are free to engage in politicalactivity to the widest extent consistent with the restrictions imposed by lawand this subpart.
Each employee covered under this subpart retains the right to participate
(a) Express his or her opinion as an individual privately and publicly onpolitical subjects and candidates;
(b) Display a political picture, sign, sticker, badge, or button, as long asthese items are displayed in accordance with the provisions of§ 734.406;
(c) Sign a political petition as an individual;
(d) Be politically active in connection with a question which is notspecifically identified with a political party, such as a constitutionalamendment, referendum, approval of a municipal ordinance, or any other questionor issue of a similar character; and
(e) Otherwise participate fully in public affairs, except as prohibited byother Federal law, in a manner which does not compromise his or her efficiencyor integrity as an employee or the neutrality, efficiency, or integrity of theagency or instrumentality of the United States Government in which he or she isemployed.
An employee may purchase air time on a radio ortelevision station to endorse a partisan political candidate. However, he or shemay not endorse such a candidate in a commercial or program which is sponsoredby the candidate's campaign committee, a political party, or a partisanpolitical group.
Each employee covered under this subpart retains the right to:
(a) Register and vote in any election;
(b) Take an active part, as a candidate or in support of a candidate, in anonpartisan election; and
(c) Serve as an election judge or clerk, or in a similar position, to performnonpartisan duties as prescribed by State or local law.
(a) Each employee covered under this subpart retains the right to:
(1) Participate in the nonpartisan activities of a civic, community, social,labor, or professional organization, or of a similar organization;
(2) Be a member of a political party or other partisan political group andparticipate in its activities to the extent consistent with other Federal law;
(3) Attend a political convention, rally, fund-raising function, or otherpolitical gathering; and
(4) Make a financial contribution to a political party, partisan politicalgroup, or to the campaign committee of a candidate for partisan politicaloffice.
(b) Subject to the provisions in § 734.406, an employee coveredunder this subpart may make a financial contribution to a political actioncommittee through a voluntary allotment made under § 550.311(b) ofthis chapter if the head of the employee's agency permits agency employees tomake such allotments to political action committees.
(c) An employee who is covered under this subpart and is a payroll officialin an agency where employees are permitted to make allotments to politicalaction committees may process the completed direct deposit forms for voluntaryallotments which have been made to such committees under § 550.311(b)of this chapter.
An employee, or a noncareer SES employee who issubject to subpart D of part 734, may attend a political convention or rallysolely as a spectator. However, the
An employee covered under this subpart who is the spouse or family member ofeither a candidate for partisan political office, or a candidate for politicalparty office, may appear in photographs of the candidate's family which mightappear in a political advertisement, a broadcast, campaign literature, orsimilar material. A spouse or a family member who is covered by the Hatch ActReform Amendments also may attend political functions with the candidate.However, the spouse or family member may not distribute campaign literature orsolicit, accept, or receive political contributions.
An employee who is the spouse of a candidate forpartisan political office may stand in the receiving line and sit at the headtable during a political dinner honoring the spouse.
(a) An employee covered under this subpart may not participate in politicalactivities:
(1) While he or she is on duty;
(2) While he or she is wearing a uniform, badge, or insignia that identifiesthe employing agency or instrumentality or the position of the employee;
(3) While he or she is in any room or building occupied in the discharge ofofficial duties by an individual employed or holding office in the Government ofthe United States or any agency or instrumentality thereof; or
(4) While using a Government-owned or leased vehicle or while using aprivately owned vehicle in the discharge of official duties.
(b) [Reserved]
An employee who uses his or her privately ownedvehicle on a recurrent basis for official business may place a bumper sticker onthe vehicle, as long as he or she covers the bumper sticker while the vehicle isbeing used for official duties.
An employee covered under this subpart may not use his or her officialauthority or influence for the purpose of interfering with or affecting theresult of an election.
An employee covered under this subpart may not take an active part inpolitical management or in a political campaign, except as permitted by subpartD of this part.
An employee covered under this subpart may not:
(a) Serve as an officer of a political party, a member of a national, State,or local committee of a political party, an officer or member of a committee ofa partisan political group, or be a candidate for any of these positions;
(b) Organize or reorganize a political party organization or partisanpolitical group;
(c) Serve as a delegate, alternate, or proxy to a political party convention;and
(d) Address a convention, caucus, rally, or similar gathering of a politicalparty or partisan political group in support of or in opposition to a candidatefor partisan political office or political party office, if such address is donein concert with such a candidate, political party, or partisan political group.
An employee covered under this subpart may not:
(a) Solicit, accept, or receive political contributions; or
(b) Organize, sell tickets to, promote, or actively participate in afundraising activity of a candidate for partisan political office or of apolitical party, or partisan political group.
An employee covered under this subpart may not:
(a) Take an active part in managing the political campaign of a candidate forpartisan political office or a candidate for political party office;
(b) Campaign for partisan political office;
(c) Canvass for votes in support of or in opposition to a candidate forpartisan political office or a candidate for political party office, if suchcanvassing is done in concert with such a candidate, or of a political party, orpartisan political group;
(d) Endorse or oppose a candidate for partisan political office or acandidate for political party office in a political advertisement, broadcast,campaign literature, or similar material if such endorsement or opposition isdone in concert with such a candidate, political party, or partisan politicalgroup;
(e) Initiate or circulate a partisan nominating petition.
An employee covered under this subpart may not:
(a) Be a candidate for partisan political office;
(b) Act as recorder, watcher, challenger, or similar officer at pollingplaces in concert with a political party, partisan political group, or acandidate for partisan political office;
(c) Drive voters to polling places in concert with a political party,partisan political group, or a candidate for partisan political office.
(a) An employee of the Federal Election Commission may not request or receivefrom, or give to, an employee, a Member of Congress, or an officer of auniformed service a political contribution.
(b) This section does not cover employee of the Federal Election Commissionwho are appointed by the President by and with the advice and consent of theSenate.
Except as otherwise specified in this part 734, employees who are appointedby the President by and with the advice and consent of the Senate are subject tothe provisions of subparts B and C of this part.
(a) This section applies to an employee:
(1) The duties and responsibilities of whose position continue outside normalduty hours and while away from the normal duty post; and
(2) Who is—
(i) An employee paid from an appropriation for the Executive Office ofPresident; or
(ii) An employee appointed by the President by and with the advice andconsent of the Senate whose position is located within the United States, whodetermines policies to be pursued by the United States in relations with foreignpowers or in the nationwide administration of Federal laws;
(b) For the purposes of this subpart, normal duty hours and normal duty postwill be determined by the head of each agency or instrumentality of the UnitedStates or District of Columbia Government.
(c) An employee described in paragraph (a) of this section may participate,subject to any restrictions that may be imposed in accordance with§ 734.104, in political activities:
(1) While he or she is on duty;
(2) While he or she is wearing a uniform, badge, or insignia that identifiesthe agency or instrumentality of the United States Government or the position ofthe employee;
(3) While he or she is in any room or building occupied in the discharge ofofficial duties by an individual employed or holding office in the Government ofthe United States or any agency or instrumentality thereof; or
(4) While using a Government-owned or leased vehicle or while using aprivately-owned vehicle in the discharge of official duties.
(d) An employee, to whom subpart E of this part does not apply, who is not onduty may participate in political activities in rooms of the White House or theResidence of the Vice President which are part of the Residence area or whichare not regularly used solely in the discharge of official duties.
An Inspector General is appointed under the InspectorGeneral Act of 1978, as amended. According to section 3(c) of that Act, he orshe does not qualify as an employee who determines policies to be pursued by theUnited States in the nationwide administration of Federal laws. therefore, he orshe may not participate in political activities while on duty, while wearing auniform, badge, or insignia that identifies his or her office or position, whilein any room or building occupied in the discharge of official duties, or whileusing a Government-owned or leased vehicle or while using a privately-ownedvehicle in the discharge of official duties.
(a) The costs associated with the political activities described in§ 733.502(c) of this chapter may not be paid for by money derivedfrom the Treasury of the United States. Costs associated with a politicalactivity are deemed not to be paid for by money derived from the Treasury of theUnited States if the Treasury is reimbursed for the costs within a reasonableperiod of time.
(b) For the purposes of this section, costs associated with a politicalactivity do not include any costs that the Government would have or haveincurred regardless of whether the activity was political. Examples of suchcosts are:
(1) The compensation of the employee described in § 734.502(a);
(2) The value of any office or other real property owned or leased by theGovernment;
(3) The compensation and expenses of any Government employee that is requiredin the performance of his or her duties to accompany or assist the personengaging in the political activity; and
(4) The cost of special security arrangements for the person engaging in thepolitical activity, including special transportation vehicles or methods.
(c)(1) An employee covered under this subpart must apportion the costs ofmixed travel based on the time spent on political activities and the time spentperforming official duties. Prorating the cost of travel involves determiningthe “total activity time” which is the amount of time actually spentby the employee in meetings, receptions, rallies, and similar activities. Timespent in actual travel, private study, or rest and recreation is not included inthe computation of the “total activity time”. The proration of thecost then is determined based on how the “total activity time” wasspent. The formula is as follows:
(2) The allocation method must be applied to all of the relevant costs ofmixed travel.
(3) Expenses that are associated specifically with a political activity andnot with any official activity must be treated as political, and expensesassociated specifically with an official activity and not with any politicalactivity must be treated as official.
(4) In allocating the costs of travel other than air travel, the allocationformula should be applied to any Government maximum for that type ofexpenditure.
(5) The determination of the proper amount of allocation must be based on thefacts and circumstances involved.
(6) In the event that a minor, clearly incidental percentage of the activityof a mixed trip is devoted to either official or political activity,
(d) For any cost of a political activity of an employee that is required tobe reported to the Federal Election Commission under the Federal ElectionCampaign Act (FECA) or the Presidential Election Campaign Fund Act (PECFA), theemployee shall use the same method of allocation as used under the FECA or PECFAand regulations thereunder in lieu of the allocation method in paragraph (c) ofthis section.
The Secretary, an employee described by section7324(b)(2) of title 5 of the United States Code, holds a catered politicalactivity (other than a fundraiser) in her office. Her security detail attendsthe reception as part of their duty to provide security for her. The Secretarywill not be in violation of the Hatch Act Reform Amendments if the costs of heroffice, her compensation, and her security detail are not reimbursed to theTreasury. A violation of the Hatch Act Amendments occurs if Government funds,including reception or discretionary funds, are used to cater the politicalactivity, unless the Treasury is reimbursed for the cost of the catering withina reasonable time.
There should be no allocation between official andpolitical funds for a sound system rented for a single event.
If on a mixed trip a Government employee is onlyentitled to $26 per diem for food on a wholly official trip and the trip is 50%political and 50% official, the Government share would be 50% of $26, not 50% ofthe actual amount spent.
The President is transported by special motorcade toand from the site of the political event. The expense of the motorcade is forspecial security arrangements. Thus, it would not be a violation of the HatchAct Reform Amendments if the costs of the security arrangements, including thecost of the motorcade, are not reimbursed to the Treasury.
An employee described in § 734.502(a) may not financiallycontribute to a political action committee through a voluntary allotment madeunder § 550.311(b) of this title.
An employee who works on an irregular or occasional basis or is a specialGovernment employee as defined in 18 U.S.C. 202(a) is subject to the provisionsof the applicable subpart of this part when he or she is on duty.
An employee appointed to a special commission or taskforce who does not have a regular tour of duty may run as a partisan politicalcandidate, but may actively campaign only when he or she is not onduty.
In addition to the provisions regulating political activity set forth insubparts A through G of this part, there are a number of statutes and Executiveorders that establish standards to which the political activity of an employee,a Federal labor organization, a Federal employee organization, and amulticandidate political committee must conform. The list set forth in§ 734.702 references some of the more significant of those statutes.It is not comprehensive and includes only references to statutes of generalapplicability.
(a) The prohibition against offering anything of value in consideration ofthe use or promise of use of influence to procure appointive office (18 U.S.C.210).
(b) The prohibition against solicitation or acceptance of anything of valueto obtain public office for another (18 U.S.C. 211).
(c) The prohibition against intimidating, threatening, or coercing voters inFederal elections (18 U.S.C. 594).
(d) The prohibition against use of official authority to interfere with aFederal election by a person employed in any administrative position by theUnited States in connection with any activity financed in whole or in part byFederal funds (18 U.S.C. 595).
(e) The prohibition against the promise of employment, compensation, orbenefits from Federal funds in exchange for political activity (18 U.S.C. 600).
(f) The prohibition against the deprivation of or threat of deprivation ofemployment in exchange for political contributions (18 U.S.C. 601).
(g) The prohibition against soliciting political contributions (18 U.S.C.602).
(h) The prohibition against making certain political contributions (18 U.S.C.603).
(i) The prohibition against soliciting or receiving assessments,subscriptions, or contributions for political purposes from persons on Federalrelief or work relief (18 U.S.C. 604).
(j) The prohibition against disclosing and receiving lists or names ofpersons on relief for political purposes (18 U.S.C. 605).
(k) The prohibition against intimidating employees to give or withhold apolitical contribution (18 U.S.C. 606).
(l) The prohibition against soliciting political contributions in navy yards,forts, or arsenals (18 U.S.C. 607).
(m) The prohibition against coercing employees of the Federal Government toengage in, or not to engage in, any political activity (18 U.S.C. 610).
(n) The prohibition against certain personnel practices (5 U.S.C. 2302).
(o) The prohibition against making, requesting, considering, or acceptingpolitical recommendations (5 U.S.C. 3303).
(p) The prohibitions against misuse of a Government vehicle (31 U.S.C. 1344).
(q) The requirements and prohibitions stated in the Federal Election CampaignAct (2 U.S.C. 431-455).
(r) The prohibitions against soliciting for gifts to superiors, givingdonations for such gifts, and accepting gifts from employees who receive a lowerrate of pay (5 U.S.C. 7351).
(s) The prohibitions against soliciting or accepting things of value fromspecified persons (5 U.S.C. 7353).
(t) The prohibitions and requirements stated in the Ethics in Government Actof 1978 (5 U.S.C. App.) and Executive Order 12674 (54 FR 15159-15162; 3CFR 1989 Comp. 215-218) as modified by Executive Order 12731 (55 FR42547-42550; 3 CFR 1990 Comp. 306-311).
5 U.S.C. 7301; E.O. 12674, 54 FR 15159, 3 CFR, 1989Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p.306.
57 FR 56434, Nov. 30, 1992, unless otherwise noted.
Part 1001, added to this chapter at 31 FR 873,January 22, 1966 and revised at 32 FR 11113, Aug. 1, 1967, 36 FR 6874, Apr. 9,1971, and 61 FR 36996, July 16, 1996, supplements this part 735.
In this part:
An employee's violation of any of the regulations in subpart B of this partmay be cause for disciplinary action by
In addition to the standards of conduct in subpart B of this part, anemployee shall comply with the standards of ethical conduct in 5 CFR part 2635,as well as any supplemental regulation issued by the employee's agency under 5CFR 2635.105. An employee's violation of those regulations may be cause for theemployee's agency to take disciplinary action, or corrective action as that termis used in 5 CFR part 2635. Such disciplinary action or corrective action may bein addition to any penalty prescribed by law.
(a) While on Government-owned or leased property or while on duty for theGovernment, an employee shall not conduct, or participate in, any gamblingactivity including the operation of a gambling device, conducting a lottery orpool, a game for money or property, or selling or purchasing a numbers slip orticket.
(b) This section does not preclude activities:
(1) Necessitated by an employee's official duties; or
(2) Under section 7 of Executive Order 12353 and similar agency-approvedactivities.
(a) An employee shall not, either for or without compensation, engage inteaching, lecturing, or writing for the purpose of the preparation of a personor class of persons for an examination of the Office of Personnel Management orBoard of Examiners for the Foreign Service that depends on information obtainedas a result of the employee's Government employment.
(b) This section does not preclude the preparation described in paragraph (a)of this section if:
(1) The information upon which the preparation is based has been madeavailable to the general public or will be made available on request; or
(2) Such preparation is authorized in writing by the Director of the Officeof Personnel Management or his or her designee, or by the Director General ofthe Foreign Service of his or her designee, as applicable.
An employee shall not engage in criminal, infamous, dishonest, immoral, ornotoriously disgraceful conduct, or other conduct prejudicial to the Government.
Pub. L. 93-579; (5 U.S.C. 552a).
56 FR 18655, Apr. 23, 1991, unless otherwise noted.
(a)
(b)
(2)
(3)
(a) The agency investigator will notify the source from whom information isrequested, whether in person or by telephone, of the purpose for which theinformation is being sought and of the uses that may be made of the information.The interviewing agent must notify each person interviewed and each custodian ofrecords contacted that all information provided, including the record source'sidentity, may be disclosed upon the request of the subject of the investigation.
(b) The interviewing agent may grant a pledge to keep confidential theidentity of an information source upon specific request by the source. Inaddition, the agent has discretion to offer the source a pledge ofconfidentiality where the agent believes that such a pledge is necessary toobtain information pertinent to the investigation. A pledge of confidentialitymay not be assumed by the source. The interviewing agent may not suggest to asource that the source request confidentiality.
(c) Where information is requested by written inquiry, the form,instructions, or correspondence used by an agency will include: (1) Notificationthat all information furnished by the source, including the source's identity,except for custodians of law enforcement or educational records, may bedisclosed upon the request of the subject of the investigation; and (2) Spacefor the information source to request a pledge that the source's identity willnot be disclosed to the subject of the investigation; or (3) An offer to makespecial arrangements to obtain significant information which the source feelsunable to furnish without a promise that the source's identity will be keptconfidential.
(d) A pledge of confidentiality, if granted, extends only to the identity ofthe source, and to any information furnished by the source that would reveal theidentity of the source.
When a source is granted a promise that the source's identity will be keptconfidential, the investigative agency and all other agencies that receiveinformation obtained under the promise are required to take all reasonableprecautions to protect the source's identity. Each agency will prepare for itsinvestigators and agents implementing instructions consistent with this part.
(a) Investigative files are records subject to the Privacy Act and theFreedom of Information Act and are made available to requesters in accordancewith the provisions of those Acts.
(b) Requests for investigative records are to be submitted to the Office ofPersonnel Management, Federal Investigations Processing Center, FOI/PA, Boyers,Pennsylvania 16018.
(a) Unless provided otherwise by law, the investigation of persons enteringor employed in the competitive service, or by career appointment in the SeniorExecutive Service, is the responsibility of OPM.
(b) Requests for delegated investigating authority. Agencies may requestdelegated authority from OPM to conduct or contract out investigations ofpersons entering or employed in the competitive service or by career appointmentin the Senior Executive Service. Such requests shall be made in writing byagency heads, or designees, and specify the reason(s) for the request.
(c) Timing of investigations. Investigations required for positions must beinitiated within 14 days of placement in the position except for: Positionsdesignated Critical-Sensitive under part 732 of this chapter must be completedpreplacement, or post-placement with approval of a waiver in accordance with§ 732.202(a) of this chapter; and for positions designated Special-Sensitive under part 732 of this chapter must be completed preplacement.
5 U.S.C. 7504, 7514, and 7543.
45 FR 46778, July 11, 1980, unless otherwise noted.
This subpart incorporates the principal statutory requirements forsuspensions for 14 days or less, found in subchapter II of chapter 75 of title5, United States Code.
For the purpose of this subchapter—
(1) “employee” means an individual in the competitive service whois not serving a probationary or trial period under an initial appointment orwho has completed 1 year of current continuous employment in the same or similarpositions under other than a temporary appointment limited to 1 year or less;and
(2) “suspension” means the placing of an employee, fordisciplinary reasons, in a temporary status without duties and pay.
This subchapter applies to a suspension for 14 days or less, but does notapply to a suspension under section 7521 or 7532 of this title or any actioninitiated under section 1206 of this title.
(a) Under regulations prescribed by the Office of Personnel Management, anemployee may be suspended for 14 days or less for such cause as will promote theefficiency of the service (including discourteous conduct to the publicconfirmed by an immediate supervisor's report of four such instances within anyone-year period or any other pattern of discourteous conduct).
(b) An employee against whom a suspension for 14 days or less is proposed isentitled to—
(1) an advance written notice stating the specific reasons for the proposedaction;
(2) a reasonable time to answer orally and in writing and to furnishaffidavits and other documentary evidence in support of the answer;
(3) be represented by an attorney or other representative; and
(4) a written decision and the specific reasons therefor at the earliestpracticable date.
(c) Copies of the notice of proposed action, the answer of the employee ifwritten, a summary thereof if made orally, the notice of decision and reasonstherefor, and any order effecting the suspension, together with any supportingmaterial, shall be maintained by the agency and shall be furnished to the MeritSystems Protection Board upon its request and to the employee affected upon theemployee's request.
The Office of Personnel Management may prescribe regulations to carry out thepurpose of this subchapter.
(a)
(b)
(1) An employee in the competitive service who has completd a probationary ortrial period;
(2) An employee in the competitive service serving in an appointment whichrequires no probationary or trial period, and who has completed 1 year ofcurrent continuous employment in the same or similar positions under other thana temporary appointment limited to 1 year or less;
(3) An employee with competitive status who occupies a position underSchedule B of part 213 of this chapter;
(4) An employee who was in the competitive service at the time his or herposition was first listed under Schedule A, B, or C of the excepted service andstill occupies that position;
(5) An employee of the Department of Veterans Affairs appointed under section7401(3) of title 38, United States Code; and
(6) An employee of the Government Printing Office.
(c)
(1) Of an administrative law judge under 5 U.S.C. 7521;
(2) Taken for national security reasons under 5 U.S.C. 7531;
(3) Taken under a provision of statute, other than one codified in 5 U.S.Code, which excepts the action from subchapter I, chapter 75 of title 5, U.S.Code;
(4) Of a reemployed annuitant; or
(5) Of a National Guard Technician.
(d)
(1)
(2)
(3)
(4)
(a) An agency may take action under this subpart only as set forth in 5U.S.C. 7503(a).
(b) An agency may not take a suspension against an employee on the basis ofany reason prohibited by 5 U.S.C. 2302.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
This subpart incorporates the principal statutory requirements in subchapterII of chapter 75 of title 5, United States Code, for removal, suspension formore than 14 days, reduction in grade or pay, or furlough for 30 days or less.
(a) For the purpose of this subchapter—
(1) “employee” means—
(A) An individual in the competitive service—
(i) who is not serving a probationary or trial period under an initialappointment; or
(ii) who has completed 1 year of current continuous service under other thana temporary appointment limited to 1 year or less;
(B) a preference eligible in the excepted service who has completed 1 year ofcurrent continuous service in the same or similar positions—
(i) in an executive agency; or
(ii) in the United States Postal Service or Postal Rate Commission; and
(C) an individual in the excepted service other than a preferenceeligible—
(i) who is not serving a probationary or trial period under an initialappointment pending conversion to the competitive service; or
(ii) who has completed 2 years of current continuous service in the same orsimilar positions in an executive agency under other than a temporaryappointment limited to 2 years or less;
(2) “suspension” has the meaning as set forth in section 7501(2)of this title;
(3) “grade” means a level of classification under a positionclassification system;
(4) “pay” means the rate of basic pay fixed by law oradministrative action for the position held by an employee; and
(5) “furlough” means the placing of an employee in a temporarystatus without duties and pay because of lack of work or funds or othernondisciplinary reasons.
(b) This subchapter does not apply to an employee—
(1) whose appointment is made by and with the advice and consent of theSenate;
(2) whose position has been determined to be of a confidential, policy-determining, policy-making or policy-advocating character by—
(A) the President for a position that the President has excepted from thecompetitive service;
(B) the Office of Personnel Management for a position that the Office hasexcepted from the competitive service; or
(C) the President or the head of an agency for a position excepted from thecompetitive service by statute;
(3) whose appointment is made by the President;
(4) who is receiving an annuity from the Civil Service Retirement andDisability Fund, or the Foreign Service Retirement and Disability Fund, based onthe service of such employee;
(5) who is described in section 8337(h)(1), relating to technicians in theNational Guard;
(6) who is a member of the Foreign Service, as described in section 103 ofthe Foreign Service Act of 1980;
(7) Whose position is within the Central Intelligence Agency or the GeneralAccounting Office;
(8) Whose position is within the United States Postal Service, the PostalRate Commission, the Panama Canal Commission, the Tennessee Valley Authority,the Federal Bureau of Investigation, the National Security Agency, the DefenseIntelligence, Agency, or an intelligence activity of a military departmentcovered under section 1590 of title 10, unless subsection (a)(1)(B) of thissection or section 1005(a) of title 39 is the basis for this subchapter'sapplicability;
(9) Who is described in section 5102(c)(11) of this title; or
(10) Who holds a position with the Veterans Health Administration which hasbeen excluded from the competitive service by or under a provision of title 38,unless such employee was appointed to such position under section 7401(3) ofsuch title.
(c) The Office may provide for the application of this subchapter to anyposition or group of positions excepted from the competitive service byregulations of the Office which is not otherwise covered by this subchapter.
This Subchapter applies to—
(1) a removal;
(2) a suspension for more than 14 days;
(3) a reduction in grade;
(4) a reduction in pay; and
(5) a furlough of 30 days or less;
(A) a suspension or removal under section 7532 of this title,
(B) a reduction-in-force action under section 3502 of this title,
(C) the reducation in grade of a supervisor or manager who has not completedthe probationary period under section 3321(a)(2) of this title if such reductionis to the grade held immediately before becoming such a supervisor or manager,
(D) a reduction in grade or removal under section 4303 of this title, or
(E) an action initiated under section 1206 or 7521 of this title.
(a) Under regulations prescribed by the Office of Personnel Management, anagency may take an action covered by this subchapter against an employee onlyfor such cause as will promote the efficiency of the service.
(b) An employee against whom an action is proposed is entitled to—
(1) at least 30 days' advance written notice, unless there is reasonablecause to believe the employee has committed a crime for which a sentence ofimprisonment may be imposed, stating the specific reasons for the proposedaction;
a reasonable time, but not less than 7 days, to answer orally and in writingand to furnish affidavits and other documentary evidence in support of theanswer;
(3) be represented by an attorney or other representative, and
(4) a written decision and the specific reasons therefore at the earliestpracticable date.
(c) An agency may provide, by regulation, for a hearing which may be in lieuof or in addition to the opportunity to answer provided under subsection (b)(2)of this section.
(d) An employee against whom an action is taken under this section isentitled to appeal to the Merit Systems Protection Board under section 7701 ofthis title.
(e) Copies of the notice of proposed action, the answer of the employee whenwritten, a summary thereof when made orally, the notice of decision and reasonstherefor, and an order effecting an action covered by this subchapter, togetherwith any supporting material, shall be maintained by the agency and shall befurnished to the Board upon its request and to the employee affected upon theemployee's request.
The Office of Personnel Management may prescribe regulations to carry out thepurpose of this subchapter, except as it concerns any matter with respect towhich the Merit Systems Protection Board may prescribe regulations.
(a)
(1) Removals;
(2) Suspensions for more than 14 days, including indefinite suspensions;
(3) Reductions in grade;
(4) Reductions in pay; and
(5) Furloughs of 30 days or less.
(b)
(1) An action imposed by the Merit Systems Protection Board under theauthority of 5 U.S.C. 1206;
(2) The reduction in grade of a supervisor or manager who has not completedthe probatinary period under 5 U.S.C. 3321(a)(2) if such a reduction is to thegrade held immediately before becoming a supervisor or manager;
(3) A reduction-in-force action under 5 U.S.C. 3502;
(4) A reduction in grade or removal under 5 U.S.C. 4303;
(5) An action against an administrative law judge under 5 U.S.C. 7521;
(6) A suspension or removal under 5 U.S.C. 7532;
(7) Actions taken under provision of statute, other than one codified intitle 5, United States Code, which excepts the action from subchapter II ofchapter 75 of title 5, United States Code;
(8) Action that entitles an employee to grade retention under part 536 ofthis chapter, and an action to terminate this entitlement;
(9) A voluntary action by the employee;
(10) Action taken or directed by the Office of Personnel Management underpart 731 or part 754 of this chapter;
(11) Termination of appointment on the expiration date specified as a basiccondition of employment at the time the appointment was made;
(12) Action that terminates a temporary or term promotion and returns theemployee to the position from which temporarily promoted, or to a differentposition of equivalent grade and pay, if the agency informed the employee thatit was to be of limited duration;
(13) Cancellation of a promotion to a position not classified prior to thepromotion;
(14) Placement of an employee serving on an intermittent or seasonal basis ina temporary nonduty, nonpay status in accordance with conditions established atthe time of appointment; or
(15) Reduction of an employee's rate of basic pay from a rate that iscontrary to law or regulation.
(c)
(1) An employee in the competitive service who has completed a probationaryor trial period;
(2) An employee in the competitive service serving in an appointment thatrequires no probationary or trial period, and who has completed 1 year ofcurrent continuous service in the same or similar positions under other than atemporary appointment limited to 1 year or less;
(3) An employee in the excepted service who is a preference eligible in anexecutive agency as defined at section 105 of title 5, United States Code, theU.S. Postal Service, or the Postal Rate Commission and who has completed 1 yearof current continuous service in the same or similar positions;
(4) A Postal Service employee covered by Public Law 100-90 who hascompleted 1 year of current continuous service in the same or similar positionsand who is either a supervisory or management employee or an employee engaged inpersonnel work in other than a purely nonconfidential clerical capacity;
(5) An employee in the excepted service who is a nonpreference eligible in anExecutive agency as defined at section 105 of title, 5, United States Code, andwho has completed 2 years of current continuous service in the same or similarpositions under other than a temporary appointment limited to 2 years or less;
(6) An employee with competitive status who occupies a position in Schedule Bof part 213 of this chapter;
(7) An employee who was in the competitive service at the time his or herposition was first listed under Schedule A, B, or C of the excepted service andwho still occupies that position;
(8) An employee of the Department of Veterans Affairs appointed under section7401(3) of title 38, United States Code; and
(9) An employee of the Government Printing Office.
(d)
(1) An employee whose appointment is made by and with the advice and consentof the Senate;
(2) An employee whose position has been determined to be of a confidential,policy-determining, policy-making, or policy-advocating character by: thePresident for a position that the President has excepted from the competitiveservice; the Office of Personnel Management for a position that the Office hasexcepted from the competitive service (Schedule C); or the President or the headof an agency for a position excepted from the competitive service by statute;
(3) A Presidential appointee;
(4) A reemployed annuitant;
(5) A technician in the National Guard described in section 8337(h)(1) oftitle 5, United States Code, who is employed under section 709(b) of title 32,United States Code;
(6) A Foreign Service member as described in section 103 of the ForeignService Act of 1980;
(7) An employee of the Central Intelligence Agency or the General AccountingOffice;
(8) An employee of the Veterans Health Administration (Department of VeteransAffairs) in a position which has been excluded from the competitive service byor under a provision of title 38, United States Code, unless the employee wasappointed to the position under section 7401(3) of title 5, United States Code;
(9) A nonpreference eligible employee with the U.S. Postal Service, thePostal Rate Commission, the Panama Canal Commission, the Tennessee ValleyAuthority, the Federal Bureau of Investigation, the National Security Agency,the Defense Intelligence Agency, or an intelligence activity of a militarydepartment covered under section 1590 of title 10, United States Code;
(10) An employee described in section 5102(c)(11) of title 5, United StatesCode, who is an alien or noncitizen occupying a position outside the UnitedStates;
(11) A nonpreference eligible employee serving a probationary or trial periodunder an initial appointment in the excepted service pending conversion to thecompetitive service; and
(12) An employee whose agency or position has been excluded from theappointing provisions of title 5, United States Code, by separate statutoryauthority in the absence of any provision
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(a) An agency may take an adverse action, including a performance-basedadverse action, under this subpart only such cause as will promote theefficiency of the service.
(b) An agency may not take an adverse action against an employee on the basisof any reason prohibited by 5 U.S.C. 2302.
(a)
(b)
(2) When some but not all employees in a given competitive level are beingfurloughed, the notice of proposal shall state the basis for selecting aparticular employee for furlough, as well as the reasons for the furlough.
(3) Under ordinary circumstances, an employee whose removal or suspension,including indefinite suspension, has been proposed shall remain in a duty statusin his or her regular position during the advance notice period. In those rarecircumstances where the agency determines that the employee's continued presencein the workplace during the notice period may pose a threat to the employee orothers, result in loss of or damage to Government property, or otherwisejeopardize legitimate Government interests, the agency may elect one or acombination of the following alternatives:
(i) Assigning the employee to duties where he or she is no longer a threat tosafety, the agency mission, or to Government property;
(ii) Allowing the employee to take leave, or carrying him or her in anappropriate leave status (annual, sick, leave without pay, or absence withoutleave) if the employee has absented himself or herself from the worksite withoutrequesting leave;
(iii) Curtailing the notice period when the agency can invoke the provisionsof § 752.404(d)(1) of this part, the “crime provision.”This provision may be invoked even in the absence of judicial action if theagency has reasonable cause to believe that the employee has committed a crimefor which a sentence of imprisonment may be imposed; or
(iv) Placing the employee in a paid, nonduty status for such time as isnecessary to effect the action.
(c)
(2) The agency shall designate an official to hear the employee's oral answerwho has authority either to make or recommend a final decision on the proposedadverse action. The right to answer orally in person does not include the rightto a formal hearing with examination of witnesses unless the agency provides onein its regulations in accordance with paragraph (g) of this section.
(3) If the employee wishes the agency to consider any medical condition whichmay contribute to a conduct, performance, or leave problem, the employee shallbe given a reasonable time to furnish medical documentation (as defined in§ 339.102 of this chapter) of the condition. Whenever possible, theemployee shall supply such documentation within the time limits allowed for ananswer. After its review of the medical documentation supplied by the employee,the agency may, if authorized, require a medical examination under the criteriaof § 339.301(a)(3) and the procedures of § 339.302 of thischapter, or otherwise, at its option, offer a medical examination in accordancewith the criteria of § 339.301(d) and procedures of§ 339.302 of this chapter. If the employee has the requisite years ofservice under the Civil Service Retirement System or the Federal EmployeesRetirement System, the agency shall provide information concerning disabilityretirement. The agency shall be aware of the affirmative obligations of theprovisions of 29 CFR 1613.704, which require reasonable accommodation of aqualified employee who is handicapped.
(d)
(2) The advance written notice and opportunity to answer are not necessaryfor furlough without pay due to unforeseeable circumstances, such as suddenbreakdowns in equipment, acts of God, or sudden emergencies requiring immediatecurtailment of activities.
(e)
(f)
(g)
(h)
(a)
(b)
The agency shall maintain copies of the items specified in 5 U.S.C. 7513(e)and shall furnish them upon request as required by that subsection.
This subpart sets forth for the benefit of the user the statutoryrequirements of subchapter V of Chapter 75 for suspension for more than 14 daysand removal from the civil service. (5 U.S.C. 7541-7543)
“For the purpose of this subchapter—
“(1) ‘employee' means a career appointee in the Senior ExecutiveService who—
“(A) has completed the probationary period prescribed under section3393(d) of this title; or
“(B) was covered by the provisions of subchapter II of this chapterimmediately before appointment to the Senior Executive Service; and
“(2) ‘suspension' as the meaning set forth in section 7501(2) ofthis title.
“This subchapter applies to a removal from the civil service orsuspension for more than 14 days, but does not apply to an action initiatedunder section 1206 of this title, to a suspension or removal under section 7532of this title, or to a removal under section 3592 or 3595 of this title.
“(a) Under regulations prescribed by the Office of PersonnelManagement, an agency may take an action covered by this subchapter against anemployee only for misconduct, neglect of duty, malfeasance, or failure to accepta directed reassignment or to accompany a position in a transfer of function.
“(b) An employee against whom an action covered by this subchapter isproposed is entitled to—
“(1) at least 30 days' advance written notice, unless there isreasonable cause to believe that the employee has committed a crime for which asentence of imprisonment can be imposed, stating specific reasons for theproposed action;
“(2) a reasonable time, but not less than 7 days, to answer orally andin writing and to
“(3) be represented by an attorney or other representative; and
“(4) a written decision and specific reasons therefor at the earliestpracticable date.
“(c) An agency may provide, by regulation, for a hearing which may bein lieu of or in addition to the opportunity to answer provided under subsection(b)(2) of this section.
“(d) An employee against whom an action is taken under this section isentitled to appeal to the Merit Systems Protection Board under section 7701 ofthis title.
“(e) Copies of the notice of proposed action, the answer of theemployee when written, and a summary thereof when made orally, the notice ofdecision and reasons therefor, and any order effecting an action covered by thissubchapter, together with any supporting material, shall be maintained by theagency and shall be furnished to the Merit Systems Protection Board upon itsrequest and to the employee affected upon the employee'srequest.”.
52 FR 34624, Sept. 14, 1987, unless otherwise noted.
(a)
(b)
(2) This subpart does not apply to actions taken under 5 U.S.C. 1206(g),3592, 3595, or 7532.
(c)
(1) A career appointee—
(i) Who has completed the probationary period in the Senior ExecutiveService;
(ii) Who is not required to serve a probationary period in the SeniorExecutive Service; or
(iii) Who was covered under 5 U.S.C. 7511 immediately before appointment tothe Senior Executive Service.
(2) A limited term or limited emergency appointee—
(i) Who received the limited appointment without a break in service in thesame agency as the one in which the employee held a career or career-conditionalappointment (or an appointment of equivalent tenure as determined by the Officeof Personnel Management) in a permanent civil service position outside theSenior Executive Service; and
(ii) Who was covered under 5 U.S.C. 7511 immediately before appointment tothe Senior Executive Service.
(d)
In this subpart—
(a) An agency may take an adverse action under this subpart only for reasonsof misconduct, neglect of duty, malfeasance., or failure to accept a directedreassignment or to accompany a position in a transfer of function.
(b) An agency may not take an adverse action under this subpart on the basisof any reason prohibited by 5 U.S.C. 2302.
(a)
(b)
(2) The agency may not use material that cannot be disclosed to the appointeeor to the appointee's representative or designated physician under§ 297.204(c) of this chapter to support the reasons in the notice.
(3) Under ordinary circumstances, an appointee whose removal has beenproposed shall remain in a duty status in his or her regular position during theadvance notice period. In those rare circumstances when the agency determinesthat the appointee's continued presence in the work place during the noticeperiod may pose a threat to the appointee or others, result in loss of or damageto Government property, or otherwise jeopardize legitimate Government interests,the agency shall consider whether any of the following alternatives is feasible:
(i) Assigning the appointee to duties where he or she is no longer a threatto safety, the agency mission, or Government property;
(ii) Placing the appointee on leave with his or her consent;
(iii) Carrying the appointee on appropriate leave (annual or sick leave,leave without pay, or absence without leave) if he or she is voluntarily absentfor reasons not originating with the agency; or
(iv) Curtailing the notice period when the agency can invoke the provisionsof paragraph (d) of this section (the “crime provision”).
(4) If none of the alternatives in paragraph (b)(3) of this section, isavailable, agencies may consider placing the appointee in a paid, nonduty statusduring all or part of the advance notice period.
(c)
(2) The agency shall designate an official to hear the appointee's oralanswer who has authority either to make or to recommend a final decision on theproposed adverse action.
(3) The right to answer orally in person does not include the right to aformal hearing with examination of witnesses unless the agency provides for aformal hearing in its regulations in accordance with paragraph (g) of thissection.
(4) If the appointee wishes the agency to consider any medical condition thatmay have affected the basis for the adverse action, the appointee shall be givenreasonable time to furnish medical documentation of the condition. The sameprocedures that are applicable in § 752.404(c)(3) of this chapter arealso applicable for an appointee in the Senior Executive Service.
(d)
(e)
(2) An agency may disallow as an appointee's representative—
(i) An individual whose activities as a representative would cause a conflictof interest or position;
(ii) An employee of the agency whose release from his or her officialposition would give rise to unreasonable costs; or
(iii) An employee of the agency whose priority work assignments preclude theemployee's release.
(f)
(g)
(a) Under 5 U.S.C. 7543(d), a career appointee against whom an action istaken under this subpart is entitled to appeal to the Merit Systems ProtectionBoard.
(b) A limited term or limited emergency appointee who is covered under§ 752.601(c)(2) also may appeal an action taken under this subpart tothe Merit Systems Protection Board.
The agency shall maintain copies of the adverse action record items specifiedin 5 U.S.C. 7543(e) and furnish them upon request as required by thatsubsection.
5 U.S.C. 1302, 3301, 3302, 7301; E.O. 9830, 3 CFR1945-1948 Comp., pp. 606-624; E.O. 11222, 3 CFR 1964-1969Comp., p. 306.
Each administrative grievance system in operation as of October 11, 1995,that has been established under former regulations under this part must remainin effect until the system is either modified by the agency or replaced withanother dispute resolution process.
5 U.S.C. 1302, 3301, 3302, and 7301; Pub. L.101-12.
57 FR 3712, Jan. 31, 1992, unless otherwise noted.
This part establishes a mechanism for agencies to provide interim relief toemployees and applicants for employment who prevail in an initial decisionissued by the Merit Systems Protection Board (MSPB) as required by the
When an employee or applicant for employment appeals an action to MSPB andthe appeal results in an initial decision by an MSPB administrative judgegranting interim relief under 5 U.S.C. 7701(b)(2)(A) and a petition for reviewof the initial decision is filed (or will be filed) with the full Board under 5U.S.C. 7701(e)(1)(A), the agency shall provide the relief ordered in the initialdecision by taking an interim personnel action subject to the following terms:
(a) Interim personnel actions shall be made effective upon the date ofissuance of the initial decision and must be initiated on or before the date ofa petition for review by the agency or within a reasonable period after the dateit becomes aware of a petition for review by the appellant;
(b) The relief provided by interim personnel actions shall end:
(1) When the full Board issues a final decision on a petition for reviewfiled by an applicant for employment, employee, and/or agency under 5 U.S.C.7701(e)(1)(A),
(2) When the initial decision becomes final pursuant to an action of the fullBoard or pursuant to a decision by an applicant for employment, employee, and/oragency to withdraw (or change intentions to file) any petition for review filedunder 5 U.S.C. 7701(e)(1)(A), or
(3) When the applicant for employment or employee requests or reaches
(c) Interim relief shall entitle the applicant for employment or employee tothe same compensation and benefits he or she would receive if the reliefeffected had not been on an interim basis except as provided in paragraph (f) ofthis section;
(d) An interim personnel action shall not be taken if the MSPB administrativejudge, pursuant to 5 U.S.C. 7701(b)(2)(A)(i), determines that granting interimrelief is not appropriate;
(e) An interim personnel action under this part shall not entitle theapplicant for employment or employee to an award of back pay or attorney fees.
Sec. 201 of Pub. L. 91-616, 84 Stat. 1849, asamended and transferred to sec. 520 of the Public Health Services Act by sec. 2(b)(13) of Pub. L. 98-24 (42 U.S.C. 290dd-1) and sec. 413 of Pub. L.92-255, 86 Stat. 84, as amended and transferred to sec. 525 of the PublicHealth Service Act by sec. 2(b)(16)(A) of Pub. L. 98-24 (42 U.S. C. 290ee-l);Sec. 643, Pub. L. 106-58, 113 Stat. 477.
Sections 290dd-1 and 290ee-1 of 42 United States Code, providethat the Office of Personnel Management shall be responsible for developing andmaintaining, in cooperation with the Secretary of the Department of Health andHuman Services, and with other Federal departments and agencies, appropriateprevention, treatment, and rehabilitation programs and services for Federalcivilian employees with alcohol and/or drug problems. To the extent feasible,agencies are encouraged to extend services to families of alcohol and/or drugabusing employees and to employees who have family members who have alcoholand/or drug problems. Such programs and services shall make optimal use ofexisting government facilities, services, and skills.
It is the policy of the Federal Government to offer appropriate prevention,treatment, and rehabilitation programs and services for Federal civilianemployees with alcohol and/or drug problems. Short-term counseling and/orreferral, or offers thereof, shall constitute the appropriate prevention,treatment, and rehabilitation programs and services for alcohol abuse,alcoholism, and/or drug abuse required under 42 U.S.C. 290dd-1(a) and290ee-1(a). Federal departments and agencies must establish programs toassist employees with these problems in accordance with the legislation cited in§ 792.101.
This part applies to all positions in Executive agencies as defined insection 105 of title 5 of the United States Code, and to those positions in thelegislative and judicial branch of the Federal Government which are in thecompetitive service.
OPM shall provide overall leadership for the Government-wide alcoholism anddrug abuse program in cooperation with the Secretary of Health and HumanServices. To accomplish this, OPM shall develop and issue policy and programguidance, provide technical assistance to agencies, and determine the overalleffectiveness of the Government-wide program, as well as those programs atindividual agencies, based on program information required of agencies.
(a) Agencies shall establish and administer programs through whichpractitioners who are knowledgeable in counseling and referral services canoffer and provide employees who have alcohol and/or drug problems short-termcounseling and/or referrals for long-term counseling or treatment.
(b) Agencies shall issue internal instructions implementing the requirementsof 42 U.S.C. 290dd-1(a) and 290ee-1(a) and this regulation.
(c) Whenever a manager/supervisor becomes aware that a Federal employee's useof alcohol and/or drugs may be contributing to a performance or conductdeficiency, the manager/supervisor shall recommend counseling and
(d) As requested, agencies shall annually submit a report to OPM on theircounseling activities for the past fiscal year at a time, and in a manner, setby OPM.
68 FR 14128, Mar. 24, 2003, unless otherwise noted.
Sec. 630 of Public Law 107-67 permits executive agencies to useappropriated funds to improve the affordability of child care for lower incomeFederal employees. The law applies to child care in the United States and inoverseas locations. Employees can benefit from reduced child care rates atFederal child care centers, non-Federal child care centers, and in family childcare homes for both full-time and part-time programs such as before and afterschool programs and daytime summer programs.
The law is intended to make child care more affordable for lower incomeFederal employees through the use of agency appropriated funds.
An agency intending to initiate a child care subsidy program must providenotice to the House Subcommittee on Treasury, Postal Service and GeneralGovernment Appropriations; to the Senate Subcommittee on Treasury and GeneralGovernment Appropriations; and to its appropriations subcommittees prior to theobligation of funds. The agency must also notify OPM of its intention. Theagency must give notice to these Congressional committees and OPM annually, andfunds may be obligated immediately after the agency has made thesenotifications.
OPM has developed guidance that contains samples of memoranda ofunderstanding, marketing tools, child care subsidy program applications, andmodels for determining subsidy program eligibility. These materials are found inthe “Guide for Implementing Child Care Legislation—Public Law107-67, Sec. 630.” The Guide is available on OPM's Web site,
Agencies are responsible for tracking the utilization of their funds andreporting the results to OPM. OPM will provide agencies the mandatory reportingform for this purpose. OPM also will produce an annual report for use by theagencies.
Agencies are permitted to use appropriated funds, including revolving funds,that are otherwise available to them for salaries and expenses.
Agencies are not required to participate in this program. The decision toparticipate is left to the discretion of the agency. If an agency chooses toparticipate, it may not use funds other than those specified in§ 792.205.
This authority was made permanent on November 12, 2001. Agencies may nowoffer child care subsidy programs to their lower income Federal employees tohelp them reduce their child care costs.
The term
The term child care subsidy
The term
The term
Section 630 of Public Law 107-67 provides that child care servicesprovided by contract are encompassed by this new legislation. The term
For the purposes of this subpart, a
(a) A biological child who lives with the Federal employee;
(b) An adopted child;
(c) A stepchild;
(d) A foster child;
(e) A child for whom a judicial determination of support has been obtained;or
(f) A child to whose support the Federal employee, who is a parent or legalguardian, makes regular and substantial contributions.
The law covers the children of Federal employees, excluding contractemployees, from birth through age 13 and disabled children through age 18.
For the purpose of this subpart, a
Federal employees with children (birth through age 13) and children withdisabilities (children through age 18) who are enrolled in daytime summerprograms and part-time programs such as before and after school programs areeligible for the child care subsidy program. The summer and part-time programsmust be licensed and/or regulated.
Federal employees who work part-time are eligible for the child care subsidyprogram.
The bill includes non-Federal center-based child care as well as care infamily child care homes, as long as the providers are licensed and/or regulatedby the State and/or local regulating authorities.
Agencies are reminded of their obligation under 5 U.S.C. 7117 to negotiate orconsult, as appropriate, with the exclusive representatives of their employeeson the implementation of the regulations in this subpart.
The provider, whether center-based or family child care, must be licensedand/or regulated by the State and, where applicable, by local authorities wherethe child care service is delivered. Outside of the United States, agencies mayadopt or create criteria to ensure a child care center or family child care homeis safe. Agencies must not restrict the use of funds to apply to accreditedchild care providers only.
The law does not specify a cap on the amount or percentage of child caresubsidy that may be subsidized.
Each agency decides who qualifies as a
The agency or another appropriately identified organization determineseligibility using certain income and/or subsidy program criteria chosen by theagency. If the agency itself does not administer the program, it must selectanother organization to do so, using procedures that are in accordance with theFederal Acquisition Regulations. Regardless of what organization administers theprogram, the model for determining both the subsidy program eligibility and theamount of the subsidy is always determined by the Federal agency.
Agencies must pay the child care provider directly, unless one of thefollowing exceptions applies:
(a) If an agency chooses to have an organization administer its program (see§ 792.223), the organization pays the child care provider;
(b) For overseas locations, the agency may choose to pay the employee if theprovider deals only in foreign currency; or
(c) In unique circumstances, an agency may obtain written permission from OPMto do so.
The agency may disburse funds to an organization that administers the childcare subsidy program in one lump sum. The organization will be responsible fortracking the funds and providing the agency with regular reports. An agencycontract should specify that any unexpended funds shall be returned to theagency after the contract is completed.
In a multi-tenant building, funds from the agencies may be pooled togetherfor the benefit of the employees qualified for the child care subsidy program.
The child care subsidy program, in the form of a reduced child care costrate, shall be in effect from the time the agency makes a decision for aparticular Federal employee and the child is enrolled in the program until oneof the following occurs:
(a) The child is no longer enrolled in the program;
(b) The employee no longer qualifies as a “lower income employee'; or
(c) The agency no longer has a child care subsidy program.
The funds may be used for children currently enrolled in child care as longas their families meet the child care subsidy program eligibility requirementsestablished by the agency.
(a) Depending on the agency's staffing needs and the employees' own needs,including the local availability of child care, the agency may choose to placerestrictions on the use of its funds for the child care subsidy program. Forexample, an agency may decide to restrict use to the following:
(1) Federal employees who are full-time permanent employees;
(2) Federal employees using an agency on-site child care center;
(3) Federal employees using full-time child care; or
(4) Federal employees using child care in specific locations.
(a) With the exception of § 792.229(c) an agency may determinewhether and what restrictions to impose on the use of appropriated funds for thechild care subsidy program.
(b) Agencies must not restrict the use of funds to apply to accredited childcare providers only.
An agency may not use appropriated funds under this program to improve thephysical space of child care centers and family child care homes.
An agency may choose to make advance payments to a child care provider incertain situations. Advance payments may be paid to the child care provider whenthe provider requires payment up to one month in advance of rendering services.Except in accordance with § 792.225, an agency may not make advancepayments for more than one month before the employee receives child careservices.
5 U.S.C. 8347; Sec. 831.102 also issued under 5 U.S.C.8334; Sec. 831.106 also issued under 5 U.S.C. 552a; Sec. 831.108 also issuedunder 5 U.S.C. 8336(d)(2); Sec. 831.114 also issued under 5 U.S.C. 8336(d)(2),and section 1313(b)(5) of Pub. L. 107-296, 116 Stat. 2135; Sec.831.201(b)(1) also issued under 5 U.S.C. 8347(g); Sec. 831.201(b)(6) also issuedunder 5 U.S.C. 7701(b)(2); Sec. 831.201(g) also issued under sections 11202(f),11232(e), and 11246(b) of Pub. L. 105-33, 111 Stat. 251; Sec. 831.201(g)also issued under sections 7(b) and 7(e) of Pub. L. 105-274, 112 Stat.2419; Sec. 831.201(i) also issued under sections 3 and 7(c) of Pub. L.105-274, 112 Stat. 2419; Sec. 831.204 also issued under section 102(e) ofPub. L. 104-8, 109 Stat. 102, as amended by section 153 of Pub. L.104-134, 110 Stat. 1321; Sec. 831.205 also issued under section 2207 ofPub. L. 106-265, 114 Stat. 784; Sec. 831.301 also issued under section2203 of Pub. L. 106-265, 114 Stat. 780; Sec. 831.303 also issued under 5U.S.C. 8334(d)(2) and section 2203 of Pub. L. 106-235, 114 Stat. 780; Sec.831.502 also issued under 5
33 FR 12498, Sept. 4, 1968, unless otherwise noted.
(a) OPM has charge of the adjudication of all claims arising under subchapterIII of chapter 83 of title 5, United States Code, and of all matters directly orindirectly concerned with these adjudications.
(b) In the adjudication of claims arising under subchapter III of chapter 83of title 5, United States Code, OPM shall consider and take appropriate actionon counterclaims filed by the Government as set-offs against amounts in theCivil Service Retirement and Disability Fund.
(c) For purposes of this part, the term “Associate Director”means the Associate Director for Compensation in OPM.
Every Federal department, agency, corporation or branch, whether executive,legislative, or judicial, and the District of Columbia Government (included inthis part collectively in the term department or agency) having employees orMembers of Congress (hereinafter referred to in this part as Members) subject tosubchapter III of chapter 83 of title 5, United States Code, shall initiate andmaintain retirement accounts for those employees and Members as prescribed byOPM issuances.
(a) Standard Form 2806 (Individual Retirement Record) is the basic record foraction on all claims for annuity or refund, and those pertaining to deceasedemployees, deceased Members, or deceased annuitants.
(b) When the records of the department or agency concerned are lost,destroyed, or incomplete, the department or agency shall request the GeneralAccounting Office, through OPM, to furnish the data that it considers necessaryfor a proper determination of the rights of the claimant. When an officialrecord cannot develop the required information, the department, agency, or OPMshould request inferior or secondary evidence which is then admissible.
(a) Except as provided in paragraph (b) of this section, applications undersubchapter III of chapter 83 of title 5, United States Code, shall be filed withOPM and shall be on forms prescribed by OPM.
(b) Applications to make deposit for military service shall be filed inaccordance with subpart U of this part.
(a) The computation of interest is on the basis of 30 days to the month.Interest is computed for the actual calendar time involved in each case, butwhenever applicable the rule of average applies.
(b) Interest is allowed on current deductions and deposits at the rate of 4percent per year to December 31, 1947, and 3 percent per year thereafter,compounded annually, to December 31, 1956. After December 31, 1956, except asprovided below, interest is allowed at the rate of 3 percent per year,compounded annually, to date of final separation or transfer to a position thatis not covered by the retirement system. After December 31, 1956, interest isnot allowed:
(1) When an employee has one year or less of covered service,
(2) For any fractional part of a month in the total service, or
(3) For more than five years' civilian service.
(c) Interest at the rate of 3 percent per year through December 31, 1984,and, thereafter, at the yearly rate determined by the Secretary of Treasury,compounded annually, is allowed on voluntary contributions during periods ofemployment and, after the employee or Member has completed at least 5 years'civilian service, during periods of separation until the beginning date ofannuity or death, whichever is earlier. For refund purposes, however, intereston voluntary contributions terminates on the date of the employee's or Member'sfinal separation or on the date of the employee's or Member's last transfer to aposition in which he or she is not subject to subchapter III of chapter 83 oftitle 5, United States Code
(d) For noncontributory service performed before October 1, 1982, and forredeposits of refunds paid on an application received by either the individual'semploying agency or OPM before October 1, 1982, interest at the rate of 4percent per year to December 31, 1947, and at the rate of 3 percent per yearthereafter, compounded annually, is charged. Interest is charged on theoutstanding balance of a deposit from the midpoint of each service period forwhich deposit is involved; interest is charged on the outstanding balance of arefund from the date the refund was paid. Interest is charged to the date ofdeposit or commencing date of annuity, whichever is earlier, except thatinterest is not charged for any period of separation from the service whichbegan before October 1, 1956.
(e) For noncontributory service performed on or after October 1, 1982, andfor redeposits of refunds paid on an application received by the individual'semploying agency or OPM on or after October 1, 1982, interest is charged at therate of 3 percent per year through December 31, 1984, and, thereafter, at theyearly rate determined by the Secretary of Treasury, compounded annually.Interest is charged on the outstanding balance of a deposit from the midpoint ofeach service period for which deposit is involved; interest is charged on theoutstanding balance of a refund from the date the refund was paid. Interest ischarged to the date of deposit.
(f) No interest is charged on a deposit for military service if that depositis made before October 1, 1984, or within 2 years of the date that an individualfirst becomes an employee or Member under the civil service retirement system,whichever is later. When interest is charged on a deposit for military service,it is charged on the outstanding balance at the rate of 3 percent per year,compounded annually, from October 1, 1984, or 2 years from the date theindividual first becomes an employee or Member, whichever is later, throughDecember 31, 1984, and thereafter at the yearly rate determined by the Secretaryof the Treasury.
(g) For calendar year 1985 and for each subsequent calendar year, OPM willpublish a notice in the
(h) Interest under §§ 831.631, 831.632, 831.682, and 831.684is compounded annually and accrued monthly.
(1) The initial interest on each monthly difference between the reducedannuity rate and the annuity rate actually paid equals the amount of the monthlydifference times the difference between (i) 1.06 raised to the power whosenumerator is the number of months between the date when the monthly differencein annuity rates occurred and the date when the initial interest is computed andwhose denominator is 12; and (ii) 1.
(2) The total initial interest due is the sum of all of the initial intereston each monthly difference computed in accordance with paragraph (h)(1) of thissection.
(3) Additional interest on any uncollected balance will be compoundedannually and accrued monthly. The additional interest due each month equals theremaining balance due times the difference between (i) 1.06 raised to the 1/12thpower; and (ii) 1.
(i)(1) When an individual's civilian service involves several deposit and/orredeposit periods, OPM will normally use the following order of precedence inapplying each installment payment against the full amount due:
(i) Redeposits of refunds paid on applications received by the individual'semploying agency or OPM on or after October 1, 1982;
(ii) Redeposits of refunds paid on applications received by the individual'semploying agency or OPM before October 1, 1982;
(iii) Deposits for noncontributory civilian service performed on or afterOctober 1, 1982; and
(iv) Deposits for noncontributory service performed before October 1, 1982.
(2) If an individual specifically requests a different order of precedence,that request will be honored.
(j) Interest under § 831.662 is compounded annually and accruedmonthly.
(1) The initial interest on each monthly difference between the reducedannuity rate and the annuity rate actually paid equals the amount of the monthlydifference times the difference between—
(i) The sum of one plus the interest rate set under § 831.105(g)raised to the power whose numerator is the number of months between the datewhen the monthly difference in annuity rates occurred and the date when theinitial interest is computed and whose denominator is 12; and
(ii) 1.
(2) The total initial interest due is the sum of all of the initial intereston each monthly difference computed in accordance with paragraph (j)(1) of thissection.
(a)(1) The Office has in its possession or under its control recordscontaining the following types of information:
(i) Documentation of Federal service subject to the Civil Service RetirementSystem.
(ii) Documentation of service credit and refund claims made under the CivilService Retirement System.
(iii) Retirement and death claims files, including documents supporting theretirement application, health benefits and life insurance eligibility, medicalrecords supporting disability claims, and designations of beneficiaries.
(iv) Claims review and correspondence files pertaining to benefits under theFederal Employees Health Benefits Program.
(v) Suitability determination files on applicants for Federal employmentfound unsuitable for employment on medical grounds.
(vi) Documentation of claims made for life insurance and health benefits byannuitants under a Federal Government retirement system other than the CivilService Retirement System.
(vii) Documentation of voluntary contributions made by eligible individuals.
(viii) Health Unit medical records for OPM employees.
(2) These records may be disclosed to the individual to whom the informationpertains, or with prior written consent of the individual to any agency or otherperson,
(3) Civil service retirement records will be disclosed consistent with theprovisions of the Privacy Act of 1974 (5 U.S.C. 552a), including, but notlimited to, disclosures.
(i) Pursuant to a routine use promulgated for such records and printed in theOffice's annual publication of notices of systems of records, except that;
(ii) A beneficiary designated in accordance with the provisions of the CivilService Retirement law (5 U.S.C. 8342(b)) shall, during the lifetime of thedesignator, be disclosed to the designator only, at his or her signed, writtenrequest. Such beneficiary designations that may appear in records beingdisclosed must be removed before access to a record is permitted. If informationpertaining to a designation of beneficiary is specifically asked for by a courtof competent jurisdiction, it may be released to the court, but with a writtennotice that it is released under protest.
(4) Except as provided in paragraphs (a)(2) and (a)(3) of this section, theOffice shall not disclose information from the files, records, reports, or otherpapers and documents pertaining to a claim filed with the Office, whetherpotential, pending, or adjudicated. This information is deemed privileged andconfidential.
(b) On written request the Office shall return, to the person entitled tothem, certificates of discharges, adoption papers, marriage certificates,decrees of divorce, letters testamentary or of administration, when they are nolonger needed in the settlement of the claim. If papers returned constitute partof the material and essential evidence in a claim, the Office shall retain inthe file photo or other copies of them or of the parts which appear to be ofevidential value.
In computing a period of time prescribed by this part, the day of the actionor event after which the designated period of time begins to run is notincluded. The last day of the period is included unless it is a Saturday, aSunday, or a legal holiday; in this event, the period runs until the end of thenext day which is not a Saturday, a Sunday, or a legal holiday.
(a)
(b)
(2) A request for reconsideration of a decision to collect a debt will bemade in accordance with § 831.1304(b).
(c)
(d)
(e)
(2) The representative of the Associate Director for Compensation responsiblefor reconsiderations may extend the time limit for filing when the individualshows that he/she was not notified of the time limit and was not otherwise awareof it, or that he/she was prevented by circumstances beyond his/her control frommaking the request within the time limit.
(f)
(2) OPM may issue a final decision providing the opportunity to appeal under§ 831.110 rather than an opportunity to request reconsideration underparagraph (c) of this section. Such a decision must be in writing and state theright to appeal under § 831.110.
(g)
(2) When a determination in favor of one claimant would affect anotherclaimant, all claimants concerned will be notified of that decision and thoseadversely affected will be given an opportunity to request reconsideration. OPMshall not execute its decision until the time limit for requestingreconsideration has expired. If reconsideration has been requested, OPM shall
(a)
(b)
(i) Request the agency that employed him or her when the error was made tocorrect his or her records and arrange to pay any resulting overpayment of payto the agency (unless it is waived by the agency); or
(ii) Pay the deposit plus any applicable interest (under certain conditions,the deposit may be made at any time until the final adjudication of his or herapplication for retirement) directly to OPM by submitting SF 2803; or
(iii) Have the period of service treated like the nondeduction servicedescribed in § 831.303.
(2) When the agency withholds part of the required employee deductions forany pay period, the balance must be submitted to OPM in the manner currentlyprescribed for the transmission of withholdings and contributions as soon aspossible, but not later than provided by standards established by OPM. Theagency must correct its error. The employee does not have the option to pay adeposit directly to OPM when partial deductions have been withheld.
(3) If the agency waives the employee's repayment of the salary overpaymentthat resulted from the administrative error, the agency must also submit (inaddition to the agency contribution) the employee's share of the unpaidcontributions to OPM in the manner currently prescribed for the transmission ofwithholdings and contributions.
(a)
(1) A person currently employed in a position subject to the civil serviceretirement law; or
(2) A former employee (whose annuity has not been finally adjudicated) whoretains civil service retirement annuity rights based on a separation
(b)
(1)
(i) Who had not been separated from service prior to his or her death, evenif he or she had applied for retirement (for example, an applicant fordisability annuity) and the application had been approved; or
(ii) Whose death occurs before the commencing date of annuity, even thoughseparation has occurred.
(2)
(i) Who has been separated from service and met all the requirements toreceive an annuity including having filed an application for the annuity priorto his or her death; and
(ii) Whose death occurs on or after the commencing date of annuity.
(c)
For purposes of section 8345(e) of title 5, United States Code, persons whohave attained age 18 are considered adults regardless of the age of majority inthe jurisdiction in which they reside.
(a) A “specific designee” is defined as a senior officer orofficial within an agency who has been specifically designated to sign requestsfor voluntary early retirement authority for or in place of the head of theagency. Examples include the Chief Human Capital Officer or the AssistantSecretary for Administration.
(b) 5 U.S.C. 8336(d)(2) covers both the basis for an agency's request forvoluntary early retirement authority and OPM's subsequent determinationconcerning the request.
(c) An agency's request for voluntary early retirement authority must besigned by the head of the agency or by a specific designee with that authority.
(d) The request must contain the following information:
(1) Identification of the agency or organizational unit(s) for which theagency requests the authority;
(2) Reasons why the agency needs voluntary early retirement authority. Thismust include a detailed summary of the agency's personnel and/or budgetarysituation that will result in an excess of personnel because of a substantialdelayering, reorganization, reduction in force, transfer of function, or otherworkforce restructuring or reshaping, consistent with agency human capitalgoals;
(3) The date on which the agency expects to effect the substantialdelayering, reorganization, reduction in force, transfer of function, or otherworkforce restructuring or reshaping;
(4) The time period during which the agency plans to offer voluntary earlyretirement;
(5) The total number of non-temporary employees in the agency (or specifiedcomponent(s));
(6) The total number of non-temporary employees in the agency (or
(7) The total number of employees in the agency (or specified component(s))who are eligible for voluntary early retirement;
(8) An estimate of the total number of employees in the agency (or specifiedcomponent(s)) who are expected to retire early during the period covered by therequest for voluntary early retirement authority; and
(9) A description of the types of personnel actions anticipated as a resultof the agency's need for voluntary early retirement authority. (Examples includeseparations, transfers, reassignments, and downgradings.)
(e) OPM will evaluate a request for voluntary early retirement based on:
(1) A specific request to OPM from the agency for voluntary early retirementauthority;
(2) A voluntary separation incentive payment implementation plan, asdiscussed in part 576, subpart A, of this chapter, which must outline theintended use of the incentive payments and voluntary early retirement; or
(3) The agency's human capital plan, which must outline its intended use ofvoluntary separation incentive payments and voluntary early retirementauthority, and the changes in organizational structure it expects to make as theresult of projected separations and early retirements.
(f) Regardless of the method used, the request must include all of theinformation required by paragraph (d) of this section.
(g) OPM may approve an agency's request for voluntary early retirementauthority to cover the entire period of the substantial delayering,reorganization, reduction in force, transfer of function, or other workforcerestructuring or reshaping described by the agency, or the initial portion ofthat period with a requirement for subsequent information and justification ifthe period covers multiple years.
(h) After OPM approves an agency's request, the agency must immediatelynotify OPM of any subsequent changes in the conditions that served as the basisfor the approval of the voluntary early retirement authority. Depending upon thecircumstances involved, OPM will modify the authority as necessary to bettersuit the agency's needs.
(i) The agency may limit voluntary early retirement offers based on:
(1) An established opening and closing date that is announced to employees atthe time of the offer; or
(2) The acceptance of a specified number of applications for voluntary earlyretirement, provided that, at the time of the offer, the agency notifiedemployees that it retained the right to limit the number of voluntary earlyretirements.
(j) Within the timeframe specified for its approved VERA, the agency maysubsequently establish a new or revised closing date, or reduce or increase thenumber of early retirement applications it will accept, if management'sdownsizing and/or reshaping needs change. If the agency issues a revised closingdate, or a revised number of applications to be accepted, the new date or numberof applications must be announced to the same group of employees included in theoriginal announcement. If the agency issues a new window period with a newclosing date, or a new instance of a specific number of applications to beaccepted, the new window period or number of applications to be accepted may beannounced to a different group of employees as long as they are covered by theapproved VERA.
(k) An employee who separates from the service voluntarily after completing25 years of service, or becoming age 50 and completing 20 years of service, isentitled to an annuity if, on the date of separation, the employee:
(1) Is serving in a position covered by a voluntary early retirement offer;and
(2) Meets the conditions covered in 5 U.S.C. 8336(d)(2).
(l) Agencies are responsible for ensuring that employees are not coerced intovoluntary early retirement. If an agency finds any instances of coercion, itmust take appropriate corrective action.
(m) An agency may not offer or process voluntary early retirements beyond
(n) OPM may terminate a voluntary early retirement authority if it determinesthat the agency is no longer undergoing the condition(s) that formed the basisfor its approval.
(o) OPM may amend, limit, or terminate a voluntary early retirement authorityto ensure that voluntary early retirement authority regulations are beingproperly followed.
(p) Agencies must provide OPM with interim and final reports for eachvoluntary early retirement authority, as covered in OPM's approval letter to theagency. OPM may suspend or cancel a voluntary early retirement authority if theagency is not in compliance with the reporting requirements or reportingschedule specified in OPM's voluntary early retirement authority approvalletter.
(q) The terms, conditions, and procedures in this section do not apply to theGeneral Accounting Office.
(a) The following groups of employees in the executive branch of theGovernment are excluded from subchapter III of chapter 83 of title 5, UnitedStates Code:
(1) Employees serving under appointments limited to one year or less, exceptannuitants appointed by the President to fill unexpired terms of office on orafter January 1, 1976.
(2) Intermittent employees—non-full-time employees without aprearranged regular tour of duty.
(3) Employees whose salary, pay, or compensation on an annual basis is $12 ayear or less.
(4) Member or patient employees in Government hospitals or homes.
(5) Employees paid on a piecework basis, except those whose work scheduleprovides for regular or full-time service.
(6) Intermittent alien employees engaged on work outside the continentallimits of the United States.
(7) Employees serving under temporary appointments pending establishment ofregisters, or pending final determination of eligibility for permanentappointment.
(8) Officers in Charge, clerks in fourth-class post offices, substitute ruralcarriers, and special-delivery messengers at second- third-, and fourth-classpost offices.
(9) Consular agents appointed under authority of section 551 of the ForeignService Act of 1946 (22 U.S.C. 951).
(10) Employees serving under emergency-indefinite appointments not exceeding5 years.
(11) United States citizens given “overseas limitedappointments.”
(12) Employees serving under nonpermanent appointments made pursuant tosection 1 of Executive Order 10180 of November 13, 1950.
(13) Employees serving under nonpermanent appointments, designated asindefinite, made after January 23, 1955, the effective date of the repeal ofExecutive Order 10180.
(14) Employees serving under term appointments.
(15) Temporary employees of the Census Bureau employed under temporarylimited appointments exceeding 1 year.
(16) Employees serving under limited term, limited emergency and noncareer(designated as indefinite) appointments in the Senior Executive Service.
(17) Health care employees of the National Health Service Corps serving underappointments limited to four years or less in health manpower shortage areas.
(b) Paragraph (a) of this section does not deny retirement coverage when:
(1) Employment in an excluded category follows employment subject tosubchapter III of chapter 83 of title 5, United States Code, without a break inservice or after a separation from service of 3 days or less, except in the caseof:
(i) An alien employee whose duty station is located in a foreign country; or
(ii) An employee hired by the Census Bureau under a temporary, intermittentappointment to perform decennial census duties.
(2) The employee receives a career or career-conditional appointment underpart 315 of this chapter;
(3) The employee is granted competitive status under legislation, Executiveorder, or civil service rules and regulations, while he or she is serving in aposition in the competitive service; or
(4) The employee is granted merit status under 35 CFR chapter I, subchapterE;
(5) The appointment meets the definition of a provisional appointmentcontained in §§ 316.401 and 316.403 of this chapter;
(6) The employee receives an interim appointment under § 772.102of this chapter and was covered by CSRS at the time of the separation for whichinterim relief is required.
(c) Members of the following boards and commissions of the government of theDistrict of Columbia appointed on or after August 13, 1960, are excluded fromsubchapter III of chapter 83 of title 5, United States Code, except that thisexclusion does not operate in the case of a member serving on August 13, 1960,who is reappointed on expiration of term without a break in service or after aseparation from serwice of 3 days or less:
Board of Accountancy.
Board of Examiners and Registrars of Architects.
Board of Barber Examiners.
Boxing Commission.
Board of Cosmetology.
Board of Dental Examiners.
Electrical Board.
Commission on Licensure to Practice the Healing Arts.
Board of Examiners in the Basic Sciences.
Board of Examiners in Medicine and Osteopathy.
Motion Picture Operators' Board.
Nurses' Examining Board.
Board of Optometry.
Board of Pharmacy.
Plumbing Board.
Board of Podiatry Examiners.
Board of Registration for Professional Engineers.
Real Estate Commission.
Refrigeration and Air Conditioning Board.
Steam and Other Operating Engineers' Board.
Undertakers' Committee.
Board of Examiners of Veterinarian Medicine.
(d) The following groups of employees of the government of the District ofColumbia, appointed on or after October 1, 1965, are excluded from subchapterIII of chapter 83 of title 5, United States Code:
(1) Employees serving under appointments limited to one year or less, excepttemporary teachers of the District of Columbia public school system.
(2) Intermittent employees—non-full-time employees without aprearranged regular tour of duty.
(3) Employees whose pay on an annual basis is $12.00 per year or less.
(4) Patient or inmate employees in District Government hospitals, homes orpenal institutions.
(5) Employees paid on a contract or fee basis.
(6) Employees paid on a piecework basis, except those whose work scheduleprovides for regular or full-time service.
(7) Employees serving under temporary appointments pending establishment ofregisters, or pending final determination of eligibility for permanentappointment.
(e) Paragraph (d) of this section does not deny retirement coverage when (1)employment in an excluded category follows employment subject to subchapter IIIof chapter 83 of title 5, United States Code, without a break in service orafter a separation from service of 3 days or less, or (2) the employee isgranted competitive status under legislation, Executive order, or the CivilService rules and regulations, while he is serving in a position in thecompetitive service.
(f) Also excluded are any temporary employees, appointed for one year orless, by the government of the District of Columbia under any program or projectestablished pursuant to the Economic Opportunity Act of 1964 (42 U.S.C. 2701
(g) Individuals first employed by the government of the District of Columbiaon or after October 1, 1987, in a position subject to subchapter III of chapter83 of title 5, United States Code, are excluded from such subchapter, except:
(1) Employees of St. Elizabeths Hospital who were covered under subchapterIII of chapter 83 of title 5, United States Code, before October 1,
(2) Effective on and after October 1, 1997, the effective date of section11246 of Pub. L. 105-33, 111 stat. 251, nonjudicial employees of theDistrict of Columbia Courts employed in a position which is not excluded fromCSRS under the provisions of this section;
(3) Effective on and after April 1, 1999, the effective date of section 7(e)of Pub. L. 105-274, 112 Stat. 2419, employees of the Public DefenderService of the District of Columbia employed in a position which is not excludedfrom CSRS under the provisions of this section;
(4) The District of Columbia Department of Corrections Trustee, authorized bysection 11202 of Pub. L. 105-33, 111 Stat. 251, and an employee of theTrustee if the Trustee or employee is a former Federal employee appointed with abreak in service of 3 days or less, and in the case of an employee of theTrustee is employed in a position which is not excluded from CSRS under theprovisions of this section;
(5) The District of Columbia Pretrial Services, Parole, Adult Probation andOffender Supervision Trustee, authorized by section 11232 of Pub. L.105-33, 111 Stat. 251, as amended by section 7(b) of Pub. L.105-274, 112 Stat. 2419, and an employee of the Trustee, if the Trustee oremployee is a former Federal employee appointed with a break in service of 3days or less, and, in the case of an employee of the Trustee, is employed in aposition which is not excluded from CSRS under the provisions of this section,and;
(6) Subject to an election under § 831.204, employees of theDistrict of Columbia Financial Responsibility and Management AssistanceAuthority.
(h) Employees who have elected coverage under another retirement system inaccordance with part 847 of this chapter are excluded from subchapter III ofchapter 83 of title 5, United States Code, during that and all subsequentperiods of service (including service as a reemployed annuitant).
(i)(1) A former employee of the District of Columbia who is appointed in aFederal position by the Department of Justice, or by the Court Services andOffender Supervision Agency established by section 11233(a) of Pub. L.105-33, 111 Stat. 251, as amended by section 7(c) of Pub. L.105-274, 112 Stat. 2419, is excluded from CSRS beginning on the date ofthe Federal appointment, if the employee elects to continue coverage under aretirement system for employees of the District of Columbia under section 3 ofPub. L. 105-274, 112 Stat. 2419, and if the following conditions are met:
(i) The employee is hired by the Department of Justice or by the CourtServices and Offender Supervision Agency during the period beginning August 5,1997, and ending 1 year after the date on which the Lorton Correctional Complexis closed, or 1 year after the date on which the Court Services and OffenderSupervision Agency assumes its duties, whichever is later; and
(ii) The employee elects to continue coverage under a retirement system foremployees of the District of Columbia no later than June 1, 1999 or 60 daysafter the date of the Federal appointment, whichever is later.
(2) An individual's election to continue coverage under a retirement systemfor employees of the District of Columbia remains in effect until the individualseparates from service with the Department of Justice or the Court Services andOffender Supervision Agency.
(a) Congressional employees who provide food service operations for the Houseof Representatives can elect to continue their retirement coverage undersubchapter III of chapter 83 of title 5, United States Code, when such
(b)
(1) Be a Congressional employee (as defined in section 2107 of title 5,United States Code), other than an employee of the Architect of the Capitol,engaged in providing food service operations for the House of Representativesunder the administrative control of the Architect of the Capitol;
(2) Be subject to subchapter III of chapter 83 of title 5, United StatesCode;
(3) Elect to remain covered under civil service retirement provisions nolater than the day before the date on which the food service operations transferfrom the House of Representatives to a private contractor; and
(4) Become employed to provide food services under contract without a breakin service. A “break in service” means a separation from employmentof at least three calendar days.
(c)
(d)
(a) Permanent Federal Aviation Administration employees assigned toWashington National Airport or Dulles International Airport who elect totransfer to the Metropolitan Washington Airports Authority, retain theirretirement coverage under subchapter III of chapter 83 of title 5, United StatesCode.
(b)
(c)
(d)
(e)
(a)
(2)
(b)
(c)
(d)
(2) The Authority or its Administrative Support Agency will waive the timelimit under paragraph (d)(1) of this section upon a showing that—
(i) The employee was not advised of the time limit and was not otherwiseaware of it; or
(ii) Circumstances beyond the control of the employee prevented him or herfrom making a timely election and the employee thereafter acted with duediligence in making the election.
(e)
(2) An individual who makes an election under paragraph (a) of this sectionis ineligible, during the period of employment covered by that election, toparticipate in any retirement system for employees of the government of theDistrict of Columbia.
(f)
(g)
(h)
If an agency determines that an employee is CSRS-covered, the agency mustsubmit its determination to OPM for written approval. This requirement does notapply if the employee has been
(a)
(1) The employee or Member has completed 5 years' (18 months' for survivorsof employees or Members who die in service) civilian service;
(2) The employee or Member is not receiving military retired pay awarded forreasons other than (i) service-connected disability incurred in combat with anenemy of the United States, (ii) service-connected disability caused by aninstrumentality of war and incurred in line of duty during a period of war (asthat term is used in chapter 11 of title 38, United States Code), or (iii) underchapter 67 of title 10, United States Code; and
(3)(i) The employee, Member, or survivor is not entitled, or upon applicationwould not be entitled, to monthly old-age or survivors benefits under§ 202 of the Social Security Act (41 U.S.C. 402) based on theindividual's wages or self-employment income, or
(ii) For an employee, Member, or survivor who is entitled, or uponapplication would be entitled, to monthly old-age or survivors benefits undersection 202 of the Social Security Act (41 U.S.C. 402) based on the individual'swages or self-employment income, the employee, Member, or survivor has completeda deposit in accordance with subpart U of this part, or the annuity has beenreduced under § 831.303(d), for each full period of such militaryservice performed after December 1956. If a deposit has not been completed orthe annuity has not been reduced under § 831.303(d), periods ofmilitary service performed after December 31, 1956 (other than periods ofmilitary service covered by military leave with pay from a civilian position),are excluded from credit from and after the first day of the month in which theindividual (or survivor) becomes entitled, or upon proper application would beentitled, to Social Security benefits under section 202. Military serviceperformed prior to January 1957 is included in the computation of the annuityregardless of whether a deposit is made for service after December 31, 1956.
(ii) For an employee, Member, or survivor who is entitled, or uponapplication would be entitled, to monthly old-age or survivors benefits under§ 202 of the Social Security Act (41 U.S.C. 402) based on theindividual's wages or self-employment income, the employee, Member, or survivorhas completed a deposit in accordance with subpart U of this part, for each fullperiod of such military service performed after December 1956.
(b)
(1) The employee or Member has completed 5 years' (18 months' for survivorsof employees or Members who die in service) civilian service;
(2) The employee or Member is not receiving military retired pay awarded forreasons other than (i) service-connected disability incurred in combat with anenemy of the United States, (ii) service-connected disability caused by aninstrumentality of war and incurred in line of duty during a period of war (asthat term is used in chapter 11 of title 38, United States Code), or (iii) underchapter 67 of title 10, United States Code; and
(3) The employee, Member, or survivor has completed a deposit in an amountequal to 7 percent of his or her basic pay under section 204 of title 37, UnitedStates Code, (plus interest, if any) or the annuity has been reduced under§ 831.303(d), for each full period of such military service performedafter December 1956.Military service performed prior to January 1957 is included in the computationof the annuity regardless of whether a deposit is made for service afterDecember 31. 1956.
(c)
(d)
(2)
(ii) OPM will obtain information on the amount of any monthly survivorbenefits payable to each applicant for CSRS current or former spouse annuity.OPM will reduce the CSRS survivor annuity by the monthly military survivorbenefit on its commencing date. OPM will not make a subsequent adjustment unlessit is necessary to increase or decrease the CSRS survivor benefit because of achange in the amount of military survivor benefits attributable to the period ofservice or a change in the period of military service to be included in the CSRSannuity when the survivor annnuitant becomes eligible for benefits under titleII of the Social Security Act.
(3)
(4)
(a) For annuity computation purposes, the service of an employee who retireson immediate annuity or dies leaving a survivor entitled to annuity is increasedby the days of unused sick leave to his credit under a formal leave system.
(b) An immediate annuity is one which begins to accrue not later than 1 monthafter the employee is separated.
(c) A formal leave system is one which is provided by law or regulation oroperates under written rules specifying a group or class of employees to whichit applies and the rate at which sick leave is earned.
(d) In general, 8 hours of unused sick leave increases total services by 1day. In cases where more or less than 8 hours of sick leave would be charged fora day's absence, total service is increased by the number of days in the periodbetween the date of separation and the date that the unused sick leave wouldhave expired had the employee used it (except that holidays falling within theperiod are treated as work days, and no additional leave credit is earned forthat period).
(e) If an employee's tour of duty changes from part time to full time or fulltime to part time within 180 days before retirement, the credit for unused sickleave is computed as though no change had occurred.
(a)
(b)
(1) The employee or Member subsequently becomes eligible for an annuitypayable under subchapter III of chapter 83 of title 5, United States Code; and
(2) The employee, Member, or survivor makes a deposit (or redeposit) for thefull period of service. If more than one distinct period of service is covered
(c)(1) An employee or Member who has not completed payment of a redeposit forrefunded deductions based on a period of service that ended before October 1,1990, will receive credit for that service in computing the nondisabilityannuity for which the individual is eligible under subchapter III of chapter 83of title 5, United States Code, provided the nondisability annuity commencesafter December 1, 1990.
(2) The beginning monthly rate of annuity payable to a retiree whose annuityincludes service credited in accordance with paragraph (c)(1) of this sectionwill be reduced by an amount equal to the redeposit owed, or unpaid balancethereof, divided by the present value factor for the retiree's attained age (infull years) at the time of retirement. The reduced monthly rate will then berounded down to the next lower dollar amount and becomes the rate of annuitypayable.
(3) For the purpose of paragraph (b)(2) of this section, the terms“present value factor” and “time of retirement” have thesame meaning as in § 831.2202.
(d)(1)
(i) Civilian service that was not subject to retirement deductions, or
(ii) Military service performed after December 31, 1956, will receive creditfor the service without payment of the deposit if, because of an erroneousretirement coverage determination, the service is subsequently credited underchapter 83 of title 5, United States Code (CSRS rules).
(2)(i) The beginning monthly rate of annuity payable to a retiree whoseannuity includes service credited under paragraph (d)(1) of this section andservice creditable under CSRS rules that would not be creditable under FERSrules is reduced by an amount equal to the CSRS deposit owed, or unpaid balancethereof, divided by the present value factor for the retiree's age (in fullyears) at the time of retirement. The result is rounded to the next highestdollar amount, and is the monthly actuarial reduction amount.
(ii)(A) The beginning monthly rate of annuity payable to a survivor whoseannuity includes service credited under paragraph (d)(1) of this section isreduced by an amount equal to the CSRS deposit owed, or unpaid balance thereof,divided by the present value factor for the survivor's age (in full years) atthe time of death. The result is rounded to the next highest dollar amount, andis the monthly actuarial reduction amount.
(B) The survivor annuity is not reduced if the employee annuity was reducedunder paragraph (d)(2)(i) of this section.
(3) For the purpose of paragraph (d)(2) of this section, the terms“present value factor” and “time of retirement” have thesame meaning as in § 831.2202 of this chapter.
(a)
(1)
(2)
(3)
(b)
(1) The service as a participant in the Corps totaled 2 years or more;
(2) The individual submits an application for service credit to OPM no laterthan January 10, 1988;
(3) The individual is employed by the Federal Government in a positionsubject to CSRS at the time he or she applies to OPM for service credit; and
(4) The individual makes a deposit for the service before separating from theFederal Government for retirement purposes. Contrary to the policy“deeming” the deposit to be made for alternative annuity computationpurposes, these deposits must be physically in the possession of theindividual's employing agency before his or her separation for retirementpurposes.
(c)
(d)
(2) lf the individual cannot make payment in one lump sum, the employingagency must accept installment payments (by allotments or otherwise). However,the employing agency is not required to accept individual checks in amounts lessthan $50.
(3) If the employee dies before completing the deposit, the surviving spousemay elect to complete the payment to the employing agency in one lump sum;however, the surviving spouse will not be able to initiate an application forsuch service credit.
(4) Payments received by the employing agency must be remitted to OPMimmediately for deposit to the Civil Service Retirement and Disability Fund.
(5) Once the employee's deposit has been paid in full or closed out, theemploying agency must submit the documentation pertaining to the deposit to OPMin accordance with published instructions.
(a)
(1)
(2)
(3)
(b)
(1) The service was performed after June 18, 1952, but before January 1,1966; and
(2) The individual was employed in a position subject to CSRS on November 9,1986.
(c)
(d)
(a)
(2)
(b)
(1) The individual submits to OPM an application for service credit in a formprescribed by OPM;
(2) The individual is employed by the Federal Government in a positionsubject to CSRS retirement deductions after November 5, 1990; and
(3) The individual completes the deposit for the service through normalservice credit channels before final adjudication of his or her application forretirement or has the deposit deemed made when he or she elects the alternativeform of annuity.
(c)
(2) The deposit will be computed based on—
(i) The appropriate percentage of basic pay that would have been deductedfrom the individual's pay at the time the service was performed; and
(ii) Interest at the rate of 3 percent per year computed as specified bysection 8334(e)(2) of title 5, United States Code, until the date the deposit ispaid.
(d)
(i) Submit a written service credit application for the pre-1969 NationalGuard technician service to OPM before November 6, 1991; and
(ii) Complete a deposit for the additional service in a lump sum or ininstallment payments of $50 or more. Payments must be completed before theirretirement claim is finally adjudicated, unless the deposit is deemed made whenthey elect an alternative form of annuity.
(2)
(i) Submit a written application for service credit to OPM before November 6,1991; and
(ii) Complete a deposit for the additional service in a lump sum or in equalmonthly annuity installments to
(3) To determine the commencing date of the deposit installment paymentperiod for annuitants and survivors, the “date of application” willbe considered to be the first day of the second month beginning after OPMreceives a complete written application from the individual.
(4) To be a complete application, the individual's written request for pre-1969 National Guard technician service credit must also include a certificationof the dates of employment and the rates of pay received by the individualduring the employment period. The individual may obtain certification of his orher service from the Adjutant General of the State in which the service wasperformed.
(e)
(2)
(i) The appropriate percentage of basic pay that would have been deductedfrom the individual's pay at the time the service was performed; and
(ii) Interest at the rate of 3 percent per year as specified by section8334(e)(2) of title 5, United States Code, to—
(A) The midpoint of the 24-month installment period or if paid in a lump sum,the date payment is made if the individual is an annuitant or survivor; or
(B) The date the deposit is paid or the commencing date of annuity, whichevercomes first, if the individual is a former employee.
(3)
(ii) The annuitant or survivor may allow the installments to be deducted fromhis or her annuity as proposed or make payment in a lump sum within 30 days fromthe date of the notice.
(iii) Increased annuity payments will begin to accrue the first day of themonth after OPM receives a complete written application.
(iv) If an annuitant dies before completing the deposit installment payments,the remaining installments will be deducted as established for the annuitant,from benefits payable to the survivor annuitant (but not if the only survivorbenefit is payable to a child or children of the deceased), if any. If nosurvivor annuity is payable, OPM may collect the balance of the deposit from anylump-sum benefits payable or the decedent's estate, if any.
(4)
Contract service with the United States will only be included in thecomputation of, or used to establish title to, an annuity under subchapter IIIof chapter 83 of title 5, United States Code, if—
(a) The employing agency exercised an explicit statutory authority to appointan individual into the civil service by contract; or
(b) The head of the agency which was party to the contract, based on atimely-filed application, in accordance with section 110 of Public Law100-238, and the regulations promulgated by OPM pursuant to that statute,certifies that
56 FR 43863, Sept. 5, 1991, unless otherwise noted.
This subpart describes the procedures that employees and Members must followin making voluntary contributions under the Civil Service Retirement System(CSRS). This subpart also describes the procedures that the Office of PersonnelManagement (OPM) will follow in accepting voluntary contributions, creditinginterest on voluntary contribution accounts, and paying benefits based onvoluntary contributions.
In this subpart:
(a) Voluntary contributions may be made only by—
(1) Employees or Members currently subject to CSRS, and
(2) Applicants for retirement.
(b) Voluntary contributions may not be accepted from an employee, Member, orapplicant for retirement who—
(1) Has not deposited amounts covering all creditable civilian serviceperformed by him or her; or
(2) Has previously received a refund of voluntary contributions and who hasnot been reemployed subject to CSRS after a separation of more than 3 calendardays.
(c) An employee or Member covered by the Federal Employees Retirement System(FERS), including an employee or Member who elected to transfer or wasautomatically placed in FERS, may not open a voluntary contributions account ormake additional contributions to an existing voluntary contribution account.
(a) To make voluntary contributions to the Civil Service Retirement andDisability Fund, an eligible individual must first apply on a form prescribed byOPM. OPM will establish a voluntary contribution account for each eligibleindividual who elects to make voluntary contributions and notify the individualthat a voluntary contribution account has been established. An eligibleindividual may not make voluntary contributions until notified by OPM that anaccount has been so established.
(b) After receiving notice from OPM under paragraph (a) of this section, aneligible individual may forward voluntary contributions to the Office ofPersonnel Management, at the address designated for that purpose. Voluntarycontributions must be in the amount of $25 or multiples thereof, by money order,draft, or check payable to OPM.
(c) The total voluntary contributions made by an employee or Member may notexceed, as of the date any contribution is received, 10 percent of the aggregatebasic pay received by the eligible individual.
(1) Employees are responsible for not exceeding the 10 percent limit.
(2) When the employee retires or withdraws the voluntary contributions, OPMwill check to determine whether the 10 percent limit has been exceeded.
(3) If the total of voluntary contributions received from the employeeexceeds the 10 percent limit, OPM will refund without interest any amount thatexceeds the 10 percent limit.
(a) Interest on voluntary contributions is computed under§ 831.105.
(b) Voluntary contributions begin to earn interest on the date deposited byOPM.
(c) Except as provided in paragraph (d) of this section, voluntarycontributions stop earning interest on the earliest of—
(1) The date when OPM authorizes payment to the individual of the balance asa withdrawal (831.406);
(2) The date when the employee or Member separates or transfers to a positionnot subject to CSRS or FERS; or
(3) The date when the employee transfers to a retirement system other thanCSRS or FERS.
(d) If an employee separates with entitlement to a deferred annuity andeither dies without withdrawing his or her voluntary contributions or uses hisor her voluntary contributions to purchase additional annuity, voluntarycontributions stop earning interest on the earlier of—
(1) The date the former employee or Member dies; or
(2) The commencing date of the former employee's or Member's deferredannuity.
(a) Before receiving additional annuity payments based on the voluntarycontributions, a person who has made voluntary contributions may withdraw thebalance while still an employee or Member, or after separation.
(b) A person entitled to payment of lump-sum benefits under the CSRS orderfor precedence set forth in section 8342(c) of title 5, United States Code, isentitled to payment of the balance, if any, on the death of—
(1) An employee or Member;
(2) A separated employee or Member who has not retired;
(3) A retiree, unless a survivor benefit is payable based on an electionunder § 831.407; or
(4) A person receiving a survivor annuity based on voluntary contributions.
(a) At the time of retirement CSRS (or under FERS, if transferred from CSRS),a person may use the balance of a voluntary contribution account to purchase oneof the following types of additional annuity:
(1) Annuity without survivor benefit; or
(2) Reduced annuity payable during the life of the employee or Member withone-half of the reduced annuity to be payable after his or her death to aperson, named at time of retirement, during the life of the named person.
(b) Any natural person may be designated as survivor under paragraph (a)(2)of this section.
(c) If the applicant for retirement elects an annuity without survivorbenefit, each $100 credited to his or her voluntary contribution account,including interest, purchases an additional annuity at the rate of $7 per year,plus 20 cents for each full year, if any, he or she is over age 55 at date ofretirement.
(d) If the applicant for retirement elects an annuity with survivor benefit,each $100 credited to his or her voluntary contribution account, includinginterest, purchases an additional annuity at the rate of $7 per year, plus 20cents for each full year, if any, he or she is over age 55 at date ofretirement, multiplied by the following percentage:
(1) Ninety percent of such amount if the named person is the same age orolder than the applicant for retirement, or is less than 5 years younger thanthe applicant for retirement;
(2) Eighty-five percent if the named person is 5 but less than 10 yearsyounger;
(3) Eighty percent if the named person is 10 but less than 15 years younger;
(4) Seventy-five percent if the named person is 15 but less than 20 yearsyounger;
(5) Seventy percent if the named person is 20 but less than 25 years younger;
(6) Sixty-five percent if the named person is 25 but less than 30 yearsyounger; and
(7) Sixty percent if the named person is 30 or more years younger.
Employees or Members who are eligible for retirement must file a retirementapplication with their agency. Former employees or Members who are eligible forretirement must file a retirement application with OPM. The application shouldnot be filed more than 60 days before becoming eligible for benefits. If theapplication is for disability retirement, the applicant and the employing agencyshould refer to subpart L of this part.
(a) When an employee meets the requirements for age retirement on any daywithin a month, he is subject to automatic separation at the end of that month.The department or agency shall notify the employee of the automatic separationat least 60 days in advance of the separation. If the department or agency failsthrough error to give timely notice, the employee may not be separated withouthis consent until the end of the month in which the notice expires.
(b)(1) The head of the agency, when in his or her judgment the publicinterest so requires, may exempt a law enforcement officer, firefighter ornuclear materials courier from automatic separation until that employee becomes60 years of age.
((b)(2) The Secretary of Transportation and the Secretary of Defense, undersuch regulations as each may prescribe, may exempt an air traffic controllerhaving exceptional skills and experience as a controller from automaticseparation until that controller becomes 61 years of age.
(c) When a department or agency lacks authority and wishes to secure anexemption from automatic separation for one of its employees other than aPresidential appointee, beyond the age(s) provided by statute,
(1) The recommendation shall contain:
(i) A statement that the employee is willing to remain in service;
(ii) A statement of facts tending to establish that his/her retention wouldbe in the public interest;
(iii) The period for which the exemption is desired, which period may notexceed 1 year; and,
(iv) The reasons why the simpler method of retiring the employee andimmediately reemploying him or her is not being used.
(2) The recommendation shall be accompanied by a medical certificate showingthe physical fitness of the employee to perform his or her work.
(d) OPM may approve an exemption only before the automatic separation dateapplicable to the employee. For this reason, the department or agency shallforward the recommendation to OPM at least 30 days before this separation date.
(a)
(b)
(1) The offer must be made in writing;
(2) The employee must meet established qualification requirements; and
(3) The offered position must be—
(i) In the employee's agency, including an agency to which the employee withhis or her function is transferred in a transfer of functions between agencies;
(ii) Within the employee's commuting area as defined in § 831.1202of this part, unless geographic mobility is a condition of the employee'semployment;
(iii) Of the same tenure and work schedule; and
(iv) Not lower than the equivalent of two grades or pay levels below theemployee's current grade or pay level, without consideration of the employee'seligibility to retain his or her current grade or pay under part 536 of thischapter or other authority. In movements between pay schedules or pay systems,the representative rate of the grade or pay level that is two grades below thatof the current position shall be compared with the representative rate of thegrade or pay level of the offered position. For this purpose,“representative rate” has the meaning given that term in§ 536.102 of this chapter.
50 FR 20070, May 13, 1985, unless otherwise noted.
(a) This subpart explains the annuity benefits payable in the event of thedeath of employees, retirees, and Members; the actions that employees, retirees,Members, and their current spouses, former spouses, and eligible children musttake to qualify for survivor annuities; and the types of evidence required todemonstrate entitlement to provide survivor annuities or qualify for survivorannuities.
(b) Unless otherwise specified, this subpart, except§§ 831.682 and 831.683 and the provisions relating to children'ssurvivor annuities, only applies to employees and Members who retire under aprovision of law that permits election of a reduced annuity to provide asurvivor annuity.
(a) Part 838 of this chapter contains information about former spouses'entitlement to survivor annuities based on provisions in court orders or court-approved property settlement agreements.
(b) Subpart T of this part contains information about entitlement to lump-sumdeath benefits.
(c) Parts 870, 871, 872 and 873 of this chapter contain information aboutcoverage under the Federal Employees' Group Life Insurance Program.
(d) Part 890 of this chapter contains information about coverage under theFederal Employees Health Benefits Program.
(e) Section 831.109 contains information about the administrative reviewrights available to a person who has been denied a survivor annuity or anopportunty to make an election under this subpart.
(f) Subparts C and U of this part contain information about service creditdeposits by survivors of employees or Members.
As used in this subpart—
(a) A married employee or Member retiring under CSRS will receive a fullyreduced annuity to provide a current spouse annuity unless—
(1) The employee or Member, with the consent of the current spouse, elects aself-only annuity, a partially reduced annuity, or a fully reduced annuity toprovide a former spouse annuity, in accordance with § 831.612(b) or§ 831.614; or
(2) The employee or Member elects a self-only annuity, a partially reducedannuity or a fully reduced annuity to provide a former spouse annuity, andcurrent spousal consent is waived in accordance with § 831.608.
(b) Qualifying court orders that award former spouse annuities preventpayment of current spouse annuities to the extent necessary to comply with thecourt order and § 831.614.
(c) The maximum rate of a current spouse annuity is 55 percent of the rate ofthe retiring employee's or Member's self-only annuity if the employee or Memberis retiring based on a separation from a position under CSRS on or after October11, 1962. The maximum rate of a current spouse annuity is 50 percent of the rateof the retiring employee's or Member's self-only annuity if the employee orMember is retiring based on a separation from a position covered under CSRSbetween September 30, 1956, and October 11, 1962.
(d)(1) The amount of the reduction to provide a current spouse annuity equals2
(i) The employee's or Member's separation on which the retirement is basedwas on or after October 11, 1962; or
(ii) The reduction is to provide a current spouse annuity (under§ 831.631) for a spouse acquired after retirement.
(2) The amount of the reduction to provide a current spouse annuity underthis section for former employees or Members whose retirement is based onseparations before October 11, 1962, equals 2
At 58 FR 52880, Oct. 13, 1993, in§ 831.604, paragraph (b) was amended by changing the reference“831.608” and paragraph (c) was amended by changing the reference“831.614”. However, neither of these references exist in theirrespective paragraphs in the 1993 edition of this volume.
(a) An unmarried employee or Member retiring under CSRS may elect a fullyreduced annuity or a partially reduced annuity to provide a former spouseannuity or annuities.
(b) A married employee or Member retiring under CSRS may elect a fullyreduced annuity or a partially reduced annuity to provide a former spouseannuity or annuities instead of a fully reduced annuity to provide a currentspouse annuity, if the current spouse consents to the election in accordancewith § 831.614 or spousal consent is waived in accordance with§ 831.618.
(c) An election under paragraph (a) or (b) of this section is void to theextent that it—
(1) Conflicts with a qualifying court order; or
(2) Would cause the total of current spouse annuities and former spouseannuities payable based on the employee's or Member's service to exceed 55percent (or 50 percent if based on a separation before October 11, 1962) of the
(d) Any reduction in an annuity to provide a former spouse annuity willterminate on the first day of the month after the former spouse remarries beforeage 55 or dies, or the former spouse's eligibility for a former spouse annuityterminates under the terms of a qualifying court order, unless—
(1) The retiree elects, within 2 years after the former spouse's death orremarriage, to continue the reduction to provide or increase a former spouseannuity for another former spouse, or to provide or increase a current spouseannuity; or
(2) A qualifying court order requires the retiree to provide another formerspouse annuity.
(e) The maximum rate of a former spouse annuity under this section or§ 831.632 is 55 percent of the rate of the retiring employee's orMember's self-only annuity if the employee or Member is retiring based on aseparation from a position under CSRS on or after October 11, 1962. The maximumrate of a former spouse annuity under this section or § 831.632 is 50percent of the rate of the retiring employee's or Member's self-only annuity ifthe employee or Member is retiring based on a separation from a position coveredunder CSRS between September 30, 1956, and October 11, 1962.
(f)(1) The amount of the reduction to provide one or more former spouseannuities or a combination of a current spouse annuity and one or more formerspouse annuities under this section equals 2
(i) The employee's or Member's separation on which the retirement is basedwas on or after October 11, 1962; or
(ii) The reduction is to provide a former spouse annuity (under§ 831.632) for a former spouse from whom the employee or Member wasdivorced after retirement.
(2) The amount of the reduction to provide one or more former spouseannuities or a combination of a current spouse annuity and one or more formerspouse annuities under this section for employees or Members whose retirement isbased on separations before October 11, 1962, equals 2
(a) At the time of retirement, an employee or Member in good health, who isapplying for a non-disability annuity, may elect an insurable interest annuity.Spousal consent is not required, but an election under this section does notexempt a married employee or Member from the provisions of§ 831.611(a).
(b) An insurable interest annuity may be elected by an employee or Memberelecting a fully reduced annuity or a partially reduced annuity to provide acurrent spouse annuity or a former spouse annuity or annuities.
(c)(1) In the case of a married employee or Member, an election under thissection may not be made on behalf of a current spouse unless that current spousehas consented to an election not to provide a current spouse annuity inaccordance with § 831.611(a)(1).
(2) A consent (to an election not to provide a current spouse annuity inaccordance with § 831.611(a)(1)) required by paragraph (c)(1) of thissection to be eligible to be the beneficiary of an insurable interest annuity iscancelled if—
(i) The retiree fails to qualify to receive the insurable interest annuity;or
(ii) The retiree changes his or her election to receive an insurable interestannuity under § 831.621; or
(iii) The retiree elects a fully or partially reduced annuity to provide acurrent spouse annuity under § 831.685.
(3) An election of a partially reduced annuity under § 831.622(b)or § 831.685 to provide a current spouse annuity for a current spousewho is the beneficiary of an insurable interest annuity is void unless thespouse consents to the election.
(4) If a retiree who had elected an insurable interest annuity to benefit acurrent spouse elects a fully reduced annuity to provide a current spouseannuity (or, with the consent of the current spouse, a partially reduced annuityto provide a current spouse annuity) under § 831.622(b) or§ 831.685, the election of the insurable interest annuity iscancelled.
(5)(i) A retiring employee or Member may not elect a fully reduced annuity ora partially reduced annuity to provide a former spouse annuity and an insurableinterest annuity to benefit the same former spouse.
(ii) If a retiring employee or Member who is required by court order toprovide a former spouse annuity elects an insurable interest annuity to benefitthe former spouse with the court-ordered entitlement—
(A) If the benefit based on the election is greater than or equal to thebenefit based on the court order, the election of the insurable interest annuitywill satisfy the requirements of the court order as long as the insurableinterest annuity continues.
(B) If the benefit based on the election is less than the benefit based onthe court order, the election of the insurable interest annuity is void.
(iii) An election under § 831.632 of a fully reduced annuity or apartially reduced annuity to benefit a former spouse by a retiree who electedand continues to receive an insurable interest annuity to benefit that formerspouse is void.
(d) To elect an insurable interest annuity, an employee or Member mustindicate the intention to make the election on the application for retirement;submit evidence to demonstrate that he or she is in good health; and arrange andpay for the medical examination that shows that he or she is in good health. Areport of the medical examination, signed and dated by a licensed physician,must be furnished to OPM on such forms and at such time and place as OPM mayprescribe.
(e) An insurable interest annuity may be elected to provide a survivorbenefit only for a person who has an insurable interest in the retiring employeeor Member.
(1) An insurable interest is presumed to exist with—
(i) The current spouse;
(ii) A blood or adopted relative closer than first cousins;
(iii) A former spouse;
(iv) A person to whom the employee or Member is engaged to be married;
(v) A person with whom the employee or Member is living in a relationshipwhich would constitute a common-law marriage in jurisdictions recognizingcommon-law marriages.
(2) When an insurable interest in not presumed, the employee or Member mustsubmit affidavits from one or more persons with personal knowledge of the namedbeneficiary's insurable interest in the employee or Member. The affidavits mustset forth the relationship, if any, between the named beneficiary and theemployee or Member, the extent to which the named beneficiary is dependent onthe employee or Member, and the reasons why the named beneficiary mightreasonably expect to derive financial benefit from the continued life of theemployee or Member.
(3) The employee or Member may be required to submit documentary evidence toestablish the named beneficiary's date of birth.
(f) After receipt of all required evidence to support an election of aninsurable interest annuity, OPM will notify the employee or Member of initialmonthly annuity rates with and without the election of an insurable interestannuity and the initial rate payable to the named beneficiary. No election of aninsurable interest annuity is effective unless the employee or Member confirmsthe election in writing, dies, or becomes incompetent no later than 60 daysafter the date of the notice described in this paragraph.
(g) (1) When an employee or Member elects both an insurable interest annuityand a fully reduced annuity or a partially reduced annuity to provide a currentspouse annuity and/or a former spouse annuity or annuities, each reduction iscomputed based on the self-only annuity computation. The combined reduction mayexceed the maximum 40 percent reduction in the retired employee's or Member'sannuity permitted under section 8339(k)(1) of
(2) The rate of annuity paid to the beneficiary of an insurable interestelection, when the employee or Member also elected a fully reduced annuity or apartially reduced annuity, equals 55 (or 50 percent if based on a separationbefore October 11, 1962) percent of the rate of annuity after the insurableinterest reduction. The additional reduction to provide a current spouse annuityor a former spouse annuity is not considered in determining the rate of annuitypaid to the beneficiary of the insurable interest election.
(h)(1) Except as provided in § 831.612(d), if a retiree who isreceiving a fully reduced annuity or a partially reduced annuity to provide aformer spouse annuity has also elected an insurable interest annuity to benefita current spouse and if the eligible former spouse remarries before age 55,dies, or loses eligibility under the terms of the court order, and no otherformer spouse is entitled to a survivor annuity based on an election made inaccordance with § 831.632 or a qualifying court order, the retireemay elect, within 2 years after the former spouse's remarriage, death, or lossof eligibility under the terms of the court order, to convert the insurableinterest annuity to a fully reduced annuity to provide a current spouse annuity,effective on the first day of the month following the event causing the formerspouse to lose eligibility.
(2) An election under paragraph (h)(1) of this section cancels any consentnot to receive a current spouse annuity required by paragraph (c) of thissection for the current spouse to be eligible for an annuity under this section.
(3) When a former spouse receiving an annuity under section 8341(h) of title5, United States Code, loses eligibility to that annuity, a beneficiary of aninsurable interest annuity who was the current spouse at both the time of theretiree's retirement and death may, within 2 years after the former spouse'sdeath, remarriage, or loss of eligibility under the terms of the court order,elect to receive a current spouse annuity instead of the annuity he or she hadbeen receiving. The election is effective on the first day of the monthfollowing the event causing the former spouse to lose eligibility.
(i) Upon the death of the current spouse, a retiree whose annuity is reducedto provide both a current spouse annuity and an insurable interest benefit for aformer spouse is not permitted to convert the insurable interest annuity to areduced annuity to provide a former spouse annuity.
(j) An employee or Member may name only one natural person as the namedbeneficiary of an insurable interest annuity. OPM will not accept thedesignation of contingent beneficiaries and such a designation is void.
(k)(1) An election under this section is prospectively voided by an electionof a reduced annuity to provide a current spouse annuity under§ 831.631 that would benefit the same person.
(2)(i) If the spouse is not the beneficiary of the election under thissection, a retiree may prospectively void an election under this section at thetime the retiree elects a reduced annuity to provide a current spouse annuityunder § 831.631.
(ii) A retiree's election to void an election under paragraph (k)(2)(i) ofthis section must be filed at the same time as the election under§ 831.631.
(3) An annuity reduction under this section terminates on the first day ofthe month after the beneficiary of the insurable interest annuity dies.
(a) A married employee may not elect a self-only annuity or a partiallyreduced annuity to provide a current spouse annuity without the consent of thecurrent spouse or a waiver of spousal consent by OPM in accordance with§ 831.618.
(b) Evidence of spousal consent or a request for waiver of spousal consentmust be filed on a form prescribed by OPM.
(c) The form will require that a notary public or other official authorized
(d) The form described in paragraph (c) of this section may be executedbefore a notary public, an official authorized by the law of the jurisdictionwhere executed to administer oaths, or an OPM employee designated for thatpurpose by the Associate Director.
(a) A reemployed retiree (after 5 or more years of reemployed annuitantservice) who elects a redetermined annuity under section 8344 of title 5, UnitedStates Code, is subject to §§ 831.611 through 831.622 at thetime of the redetermination.
(b) A disability retiree who recovers from disability or is restored toearning capacity is subject to §§ 831.611 through 622 at thetime that he or she retires under section 8336 or 8338 of title 5, United StatesCode.
(c) A retiree who is dropped from the retirement rolls and subseqently gainsa new annuity right by fulfilling the requirements of section 8333(b) of title5, United States Code, is subject to §§ 831.611 through 831.622when he or she retires under that new annuity right.
(a) The spousal consent requirement will be waived upon a showing that thespouse's whereabouts cannot be determined. A request for waiver on this basismust be accompanied by—
(1) A judicial determination that the spouse's whereabouts cannot bedetermined; or
(2) (i) Affidavits by the employee or Member and two other persons, at leastone of whom is not related to the employee or Member, attesting to the inabilityto locate the current spouse and stating the efforts made to locate the spouse;and
(ii) Documentary corroboration such as tax returns filed separately ornewspaper stories about the spouse's disappearance.
(b) The spousal consent requirement will be waived based on exceptionalcircumstances if the employee or Member presents a judicial determinationfinding that—
(1) The case before the court involves a Federal employee who is in theprocess of retiring from Federal employment and the spouse of that employee;
(2) The nonemployee spouse has been given notice and an opportunity to beheard concerning this order;
(3) The court has considered sections 8339(j)(1) of title 5, United StatesCode, and this section as they relate to waiver of the spousal consentrequirement for a married Federal employee to elect an annuity without areduction to provide a survivor benefit to a spouse at retirement; and
(4) The court finds that exceptional circumstances exist justifying waiver ofthe nonemployee spouse's consent.
An employee or Member is unmarried at the time of retirement for all purposesunder this subpart only if the employee or Member was unmarried on the date thatthe annuity begins to accrue.
An employee or Member may name a new survivor or change his election of typeof annuity if, not later than 30 days after the date of the first regularmonthly payment, the named survivor
(a) Except as provided in section 8339 (j) or (k) of title 5, United StatesCode, or §§ 831.682, 831.684, 831.685, or paragraph (b) of thissection, an employee or Member may not revoke or change the election or nameanother survivor later than 30 days after the date of the first regular monthlypayment.
(b)(1) Except as provided in § 831.613 and paragraphs (b)(2) and(b)(3) of this section, a retiree who was married at the time of retirement andhas elected a self-only annuity, or a partially reduced annuity to provide acurrent spouse annuity, or a fully reduced annuity or a partially reducedannuity to provide a former spouse annuity, or an insurable interest annuity mayelect, no later than 18 months after the time of retirement, an annuityreduction or an increased annuity reduction to provide a current spouse annuity.
(2) A current spouse annuity based on an election under paragraph (b)(1) ofthis section cannot be paid if it will, when combined with any former spouseannuity or annuities that are required by court order, exceed the maximumsurvivor annuity permitted under § 831.641.
(3) To make an election under paragraph (b)(1) of this section, the retireemust pay, in full, a deposit determined under § 831.662, plusinterest, at the rate provided under § 831.105(g), no later than 18months after the time of retirement.
(4) If a retiree makes an election under paragraph (b)(1) of this section andis prevented from paying the deposit within the 18-month time limit because OPMdid not send him or her a notice of the amount of the deposit at least 30 daysbefore the time limit expires, the time limit for making the deposit will beextended to 30 days after OPM sends the notice of the amount of the deposit.
(5) An election under paragraph (b)(1) of this section, cancels any spousalconsent under § 831.611 to the extent of the election.
(6) An election under paragraph (b)(1) of this section is void unless it isfiled with OPM before the retiree dies.
(7) If a retiree who had elected a fully reduced annuity or a partiallyreduced annuity to provide a former spouse annuity or former spouse annuitiesmakes an election under paragraph (b)(1) of this section which would cause thecombined current spouse annuity and former spouse annuity (or annuities) toexceed the maximum allowed under § 831.641, the former spouse annuity(or annuities) must be reduced to not exceed the maximum allowable under§ 831.641.
(a) Except as provided in paragraph (c) of this section, in cases of retireeswho retired before May 7, 1985, and married after retirement but before February27, 1986:
(1) A retiree who was unmarried at the time of retirement may elect, within 1year after a post-retirement marriage, a fully reduced annuity or a partiallyreduced annuity to provide a current spouse annuity.
(2) A retiree who was married and elected a fully reduced annuity or apartially reduced annuity at the time of retirement may elect, within 1 yearafter a postretirement marriage, to provide a current spouse annuity. If aretiree elects a fully reduced annuity or a partially reduced annuity under thisparagraph, the election must equal the election made at the time of retirement.
(3) The reduction under paragraphs (a)(1) or (a)(2) of this section commenceson the first day of the month beginning 1 year after the date of the post-retirement marriage.
(b) Except as provided in paragraph (c) of this section, in cases involvingretirees who retired on or after May 7, 1985, or married on or after February27, 1986—
(1) A retiree who was unmarried at the time of retirement may elect, within 2years after a post-retirement marriage, a fully reduced annuity or a partiallyreduced annuity to provide a current spouse annuity.
(2) A retiree who was married at the time of retirement may elect, within 2years after a post-retirement marriage—
(i) A fully reduced annuity or a partially reduced annuity to provide acurrent spouse annuity if—
(A) The retiree was awarded a fully reduced annuity under§ 831.611 at the time of retirement; or
(B) The election at the time of retirement was made with a waiver of spousalconsent in accordance with § 831.618; or
(C) The marriage at the time of retirement was to a person other than thespouse who would receive a current spouse annuity based on the post-retirementelection; or
(ii) A partially reduced annuity to provide a current spouse annuity nogreater than the current spouse annuity elected for the current spouse atretirement if—
(A) The retiree elected a partially reduced annuity under§ 831.614 at the time of retirement;
(B) The election at the time of retirement was made with spousal consent inaccordance with § 831.614; and
(C) The marriage at the time of retirement was to the same person who wouldreceive a current spouse annuity based on the post-retirement election.
(3)(i) Except as provided in paragraph (b)(3)(ii) or (b)(4) of this section,a retiree making an election under this section must deposit an amount equal tothe difference between the amount of annuity actually paid to the retiree andthe amount of annuity that would have been paid if the reduction elected underparagraphs (b)(1) or (b)(2) of this section had been in effect continuouslysince the time of retirement, plus 6 percent annual interest, computed under§ 831.105, from the date when each difference occurred.
(ii) An election under this section may be made without deposit, if thatelection prospectively voids an election of an insurable interest annuity.
(4)(i) An election under this section is irrevocable when received by OPM.
(ii) An election under this section is effective when the marriage durationrequirements of § 831.642 are satisfied.
(iii) If an election under paragraph (b)(1) or (b)(2) of this section doesnot become effective, no deposit under paragraph (b)(3) of this section isrequired.
(iv) If payment of the deposit under paragraph (b)(3) of this section is notrequired because the election never became effective and if some or all of thedeposit has been paid, the amount paid will be returned to the retiree, or, ifthe retiree has died, to the person who would be entitled to any lump-sumbenefits under the order of precedence in section 8342 of title 5, United StatesCode.
(5) Any reduction in an annuity to provide a current spouse annuity willterminate effective on the first day of the month after the marriage to thecurrent spouse ends, unless—
(i) The retiree elects, within 2 years after a divorce terminates themarriage, to continue the reduction to provide for a former spouse annuity; or
(ii) A qualifying court order requires the retiree to provide a former spouseannuity.
(c)(1) Qualifying court orders prevent payment of current spouse annuities tothe extent necessary to comply with the court order and § 831.641.
(2) If an election under this section causes the total of all current andformer spouse annuities provided by a qualifying court order or elected under§ 831.612, § 831.632, or this section to exceed themaximum survivor annuity permitted under § 831.641, OPM will acceptthe election but will pay the portion in excess of the maximum only whenpermitted by § 831.641(c).
(d) The amount of the reduction to provide a current spouse annuity underthis section equals 2
(a)(1) Except as provided in paragraphs (b) and (c) of this section, when themarriage of a retiree who retired on or after May 7, 1985, terminates afterretirement, he or she may elect in writing a fully reduced annuity or apartially reduced annuity to provide a former spouse annuity. Such an electionmust be filed with OPM within 2 years after the retiree's marriage to the formerspouse terminates.
(2) Except as provided in paragraphs (b) and (c) of this section, a retireewho retired before May 7, 1985, and whose marriage was terminated on or afterMay 7, 1985, may elect in writing a fully reduced annuity or a partially reducedannuity to provide a former spouse annuity if the retiree while married to theformer spouse had elected, prior to May 7, 1985, a reduced annuity to provide acurrent spouse annuity for that spouse. Such an election must be filed with OPMwithin 2 years after the retiree's marriage to the former spouse terminates.
(3) Except as provided in paragraphs (b) and (c) of this section, a retireewho retired on or after May 7, 1985, and before February 27, 1986, and whosemarriage terminated before May 7, 1985, may elect in writing a fully reducedannuity or a partially reduced annuity to provide a former spouse annuity. Suchan election must be made no later than February 27, 1988.
(b)(1) Qualifying court orders prevent payment of former spouse annuities tothe extent necessary to comply with the court order and § 831.641.
(2) A retiree who elects a fully or partially reduced annuity to provide aformer spouse annuity may not elect to provide a former spouse annuity in anamount that either—
(i) Is smaller than the amount required by a qualifying court order; or
(ii) Would cause the sum of all current and former spouse annuities based ona retiree's elections under §§ 831.611, 831.612, 831.631 andthis section to exceed 55 percent of the rate of the retiree's self-only annuityif the retiree's retirement was based on a separation from a position under CSRSon or after October 11, 1962, or 50 percent of the rate of the retiree's self-only annuity if the retiree's retirement was based on a separation from aposition under CSRS before October 11, 1962.
(3) An election under this section is void—
(i) In the case of a married retiree, if the current spouse does not consentto the election on a form as described in § 831.614(c) and spousalconsent is not waived by OPM in accordance with § 831.618; or
(ii) To the extent that it provides a former spouse annuity for the spousewho was married to the retiree at the time of retirement in an amount that isinconsistent with any joint designation or waiver made at the time of retirementunder § 831.611 (a)(1) or (a)(2); or
(iii) In the case of an election under paragraph (a)(2) of this section, tothe extent that it provides a former spouse annuity that exceeds the proportionof the retiree's annuity to which the former spouse would have been entitled asa current spouse annuity as of May 7, 1985.
(c) An election under this section is not permitted unless the retiree agreesto deposit the amount equal to the difference between the amount of annuityactually paid to the retiree and the amount of annuity that would have been paidif the reduction elected under paragraph (a) of this section had been in effectcontinuously since the time of retirement, plus 6 percent annual interest,computed under § 831.105, from the date when each differenceoccurred.
(d) Any reduction in an annuity to provide a former spouse annuity willterminate on the first day of the month after the former spouse remarries beforeage 55 or dies, or the former spouse's eligibility for a former spouse annuityterminates under the terms of a qualifying court order, unless—
(1) The retiree elects, within 2 years after the event causing the formerspouse to lose eligibility, to continue the reduction to provide or increase aformer spouse annuity for another former spouse, or to provide or increase acurrent spouse annuity; or
(2) A qualifying court order requires the retiree to provide another formerspouse annuity.
(e)(1) The amount of the reduction to provide one or more former spouseannuities or a combination of a current spouse annuity and one or more formerspouse annuities under this section equals 2
(i) The employee's or Member's separation on which the retirement is basedwas on or after October 11, 1962; or
(ii) The reduction is to provide a former spouse annuity (under§ 831.632) for a former spouse whom the employee or Member marriedafter retirement.
(2) The amount of the reduction to provide one or more former spouseannuities or a combination of a current spouse annuity and one or more formerspouse annuities under this section for employees or Members whose retirement isbased on separations before October 11, 1962, equals 2
(a) Except as provided in §§ 831.682 and 831.683, the maximumcombined total of all current and former spouse annuities (not including anybenefits based on an election of an insurable interest annuity) payable based onthe service of a former employee or Member equals 55 percent (or 50 percent ifbased on a separation before October 11, 1962) of the rate of the self-onlyannuity that otherwise would have been paid to the employee, Member, or retiree.
(b) By using the elections available under this subpart or to comply with acourt order under subpart Q, a survivor annuity may be divided into acombination of former spouse annuities and a current spouse annuity so long asthe aggregate total of current and former spouse annuities does not exceed themaximum limitation in paragraph (a) of this section.
(c) Upon termination of former spouse annuity payments because of death orremarriage of the former spouse, or by operation of a court order, the currentspouse will be entitled to a current spouse annuity or an increased currentspouse annuity if—
(1) The employee or Member died while employed in a position covered underCSRS; or
(2) The current spouse was married to the employee or Member continuouslyfrom the time of retirement and did not consent to an election not to provide acurrent spouse annuity; or
(3) The current spouse married a retiree after retirement and the retireeelected, under § 831.631, to provide a current spouse annuity forthat spouse in the event that the former spouse annuity payments terminate.
(a) The surviving spouse of a retiree who retired on or after May 7, 1985, orof a retiree who retired before May 7, 1985, but married that surviving spouseon or after November 8, 1984, or of an employee or Member who dies while servingin a position covered by CSRS on or after May 7, 1985, or of an employee orMember who died while serving in a position covered by CSRS before May 7, 1985,but married that surviving spouse on or after November 8, 1984, can qualify fora current spouse annuity only if—
(1) The surviving spouse and the employee, Member, or retiree had been
(2) A child was born of the marriage, as explained in paragraph (c) of thissection; or
(3) The death of the employee, Member, or retiree was accidental as explainedin paragraph (d) of this section.
(b) For satisfying the 9-month marriage requirement of paragraph (a)(1) ofthis section, the aggregate time of all marriages between the spouse applyingfor a current spouse annuity and the employee, Member, or retiree is included.
(c) For satisfying the child-born-of-the-marriage requirement of paragraph(a)(2) of this section, any child, including a posthumous child, born to thespouse and the employee, Member, or retiree is included. This includes a childborn out of wedlock or of a prior marriage between the same parties.
(d)(1) A death is accidental if it results from homicide or from bodilyinjuries incurred solely through violent, external, and accidental means. Theterm “accidental” does not include a death—
(i) Caused wholly or partially, directly or indirectly, by disease or bodilyor mental infirmity, or by medical or surgical treatment or diagnosis thereof;or
(ii) Caused wholly or partially, directly, or indirectly, by ptomaine, bybacterial infection, except only septic infection of and through a visible woundsustained solely through violent, external, and accidental means; or
(iii) Caused wholly or partially, directly or indirectly, by hernia, nomatter how or when sustained; or
(iv) Caused by or the result of intentional self-destruction or intentionallyself-inflicted injury, while sane or insane; or
(v) Caused by or as a result of the self-administration or illegal orillegally obtained drugs.
(2) A State judicial or administrative adjudication of the cause of death forcriminal or insurance purposes is conclusive evidence of whether a death isaccidental.
(3) A death certificate showing the cause of death as accident or homicide is
(a) A survivor of a deceased employee, Member, or retiree, may file anapplication for annuity, personally or through a representative, at any timewithin 30 years after the death of the employee, Member, or retiree.
(b) A former spouse claiming eligibility for an annuity based on§ 831.683 may file an application at any time between November 8,1984 and May 7, 1989. Within this period, the date that the first correspondenceindicating a desire to file a claim is received by OPM will be treated as theapplication date for meeting timeliness deadlines and determining the commencingdate of the survivor annuity under § 831.683 if the former spouse iseligible on that date.
(a)(1) If a recipient of a current spouse annuity remarried before November8, 1984, the current spouse annuity terminates on the last day of the monthbefore the recipient remarried before attaining age 60.
(2) If a recipient of a current spouse annuity remarries on or after November8, 1984, a current spouse annuity terminates on the last day of the month beforethe recipient remarries before attaining age 55.
(b) A former spouse annuity or eligibility for a future former spouse annuityterminates on the last day of the month before the month in which the formerspouse remarries before attaining age 55.
(c) If a current spouse annuity is terminated because of remarriage of therecipient, the annuity is reinstated on the day of the termination of theremarriage by death, annulment, or divorce if—
(1) The surviving spouse elects to receive this annuity instead of a survivor
(2) Any lump sum paid on termination of the annuity is repaid (in a singlepayment or by withholding payment of the annuity until the amount of the lumpsum has accrued).
(d) (1) If present or future entitlement to a former spouse annuity isterminated because of remarriage before age 55, the entitlement will not bereinstated upon termination of the remarriage by death or divorce.
(2) If present or future entitlement to a former spouse annuity is terminatedbecause of remarriage before age 55, the entitlement will not be reinstated uponannulment of the remarriage unless—
(i) The decree of annulment states that the marriage is without legal effectretroactively from the marriage's inception; and
(ii) The former spouse's entitlement is based on section 4(b)(1)(B) orsection (4)(b)(4) of Pub. L. 98-615.
(3) If a retiree who is receiving a reduced annuity to provide a formerspouse annuity and who has remarried that former spouse (before the formerspouse attained age 55) dies, the retiree will be deemed to have elected tocontinue the reduction to provide a current spouse annuity unless the retireerequests (or has requested) in writing that OPM terminate the reduction.
(a) A current spouse annuity cannot be reinstated under § 831.644unless—
(1) The surviving spouse elects to receive the reinstated current spouseannuity instead of any other payments (except any accrued but unpaid annuity andany unpaid employee contributions) to which he or she may be entitled underCSRS, or any other retirement system for Government employees, by reason of theremarriage; and
(2) Any lump sum paid on termination of the annuity is returned to the CivilService Retirement and Disability Fund.
(b) A current spouse is entitled to a current spouse annuity based on anelection under § 831.631 only upon electing this current spouseannuity instead of any other payments (except any accrued but unpaid annuity andany unpaid employee contributions) to which he or she may be entitled underCSRS, or any other retirement system for Government employees.
(c) A former spouse who marries a retiree is entitled to a former spouseannuity based on an election by that retiree under § 831.632, or§ 831.682, or a qualifying court order terminating that marriage tothat retiree only upon electing this former spouse annuity instead of any otherpayments (except any accrued but unpaid annuity and any unpaid employeecontributions) to which he or she may be entitled under CSRS, or any otherretirement system for Government employees.
(d) As used in this section, “any other retirement system forGovernment employees” does not include Survivor Benefit Payments from amilitary retirement system or social security benefits.
(a) Except as provided in paragraph (b) of this section, current spouseannuities, former spouse annuities, children's survivor annuities, and survivorannuities for beneficiaries of insurable interest annuities under CSRS begin toaccrue on the day after death of the employee, Member, or retiree.
(b)(1) A current spouse annuity begins to accrue—
(i) Upon attainment of age 50 when, under section 12 of the Civil ServiceRetirement Act Amendments of February 29, 1948, the annuity is deferred untilage 50; or
(ii) Upon OPM's receipt of a claim for an annuity authorized for unremarriedwidows and widowers by section 2 of the Civil Service Retirement Act
(2) A former spouse annuity begins to accrue—
(i) For annuities under § 831.683, on the later of the day afterdate of death of the retiree or the first day of the second month after the datethe application for annuity is received in OPM; or
(ii) For annuities when a former spouse annuity is authorized by court orderunder section 8341(h) of title 5, United States Code, on the later of the dayafter the date of death of the employee, Member, or retiree or the first day ofthe second month after the court order awarding the former spouse annuity andthe supporting documentation required by § 838.721 or§ 838.1005 of this chapter are received in OPM.
(c) A survivor annuity terminates at the end of the month preceding death orany other terminating event.
(d) A current spouse annuity terminated for reasons other than death may berestored under conditions defined in sections 8341(e)(2) and 8341(g) of title 5,United States Code.
(e) A survivor annuity accrues on a daily basis, one-thirtieth of the monthlyrate constituting the daily rate. An annuity does not accrue for the 31st day ofany month, except in the initial month if the survivor's (of a deceasedemployee) annuity commences on the 31st day. For accrual purposes, the last dayof a 28-day month constitutes 3 days and the last day of a 29-day monthconstitutes 2 days.
(f) Initial cost-of-living increases on current and former spouse annuities,and annuities to beneficiaries of insurable interest annuities are proratedunder section 8340(c) of title 5, United States Code.
(a) The deposits required to elect fully or partially reduced annuities under§§ 831.622, 831.631, 831.632, 831.682, 831.684, or 831.685 arenot annuity overpayments and their collection is not subject to waiver. They aresubject to reconsideration only to determine whether the amount has beencorrectly computed.
(b) [Reserved]
The amount of the deposit required under § 831.622 or§ 831.685 equals the sum of the monthly differences between theannuity paid to the retiree and the annuity that would have been paid if theadditional annuity reduction elected under § 831.622 or§ 831.685 had been in effect since the time of retirement, plus 24.5percent of the increase in the designated base (computed as of the time ofretirement) on which the survivor annuity is calculated.
(a)
(b)
(c)
(d)
(1) The amount of the deposit under § 831.631 or§ 831.632 divided by the present value factor for the retiree's
(2) Twenty-five percent of the rate of the retiree's self-only annuity on thecommencing date of the reduction under paragraph (c) of this section.
(e)
(2) If payment of a retiree's annuity is suspended or terminated and laterreinstated, or if a new annuity becomes payable, OPM will increase the amount ofthe original reduction computed under paragraph (d) of this section by any cost-of-living adjustments under section 8340 of title 5, United States Code,occurring between the commencing date of the original reduction and thecommencing date of the reinstated or new annuity (but the adjusted reduction maynot exceed 25 percent of the rate of the reinstated or new self-only annuity).
(a)
(b)
(c)
(d)
(1) The amount of the principal balance remaining to be paid on October 1,1993, divided by the present value factor for the retiree's age on October 1,1993; or
(2) Twenty-five percent of the rate of the retiree's self-only annuity onOctober 1, 1993.
(e)
(2) If payment of a retiree's annuity is suspended or terminated and laterreinstated, or if a new annuity becomes payable, OPM will increase the amount ofthe original reduction computed under paragraph (d) of this section by any cost-of-living adjustments under section 8340 of title 5, United States Code,occurring between the commencing date of the original reduction and thecommencing date of the reinstated or new annuity (but the adjustment reductionmay not exceed 25 percent of the rate of the reinstated or new self-onlyannuity).
(a) If a retiree fails to make a deposit required under § 831.682or § 831.684 within 60 days after the date of the notice required by§ 831.682(e) or § 831.684(c), the deposit will becollected by offset from his or her annuity in installments equal to 25 percentof the retiree's net annuity (as defined in § 838.103 of thischapter).
(b) If a retiree fails to make a deposit required by § 831.631 or§ 831.632 within 2 years after the date of the post-retirementmarriage or divorce, the deposit will be collected by offset from his or herannuity in installments equal to 25 percent of the retiree's net annuity (asdefined in § 838.103 of this chapter).
(c) If a retiree dies before a deposit required under§§ 831.631, 831.632, 831.682, or 831.684 is fully made, thedeposit will be collected from the survivor annuity (for which the electionrequired the deposit) before any payments of the survivor annuity are made.
(a)
(2) Except as provided in paragraph (a)(1) of this section, a child born tothe wife of a married person is presumed to be the child of the wife's husband.This presumption may be rebutted only by clear and convincing evidence that thehusband is not the father of the child.
(3) When paternity is not established under paragraph (a)(1) or (a)(2) ofthis section, paternity is determined by a preponderance of the credibleevidence as defined in § 1201.56(c)(2) of this title.
(b)
(i) A child adopted by the employee or retiree before the death of theemployee or retiree; or
(ii) A child who lived with the employee or retiree and for whom a petitionfor adoption was filed by the employee or retiree and who is adopted by thecurrent spouse of the employee or retiree after the death of the employee orretiree.
(2) The only acceptable evidence to prove status as an adopted child underparagraph (b)(1)(i) of this section is a copy of the judicial decree ofadoption.
(3) The only acceptable evidence to prove status as an adopted child underparagraph (b)(1)(ii) of this section is copies of—
(i) The petition for adoption filed by the employee or retiree (clearlyshowing the date filed); and
(ii) The judicial decree of adoption.
(c)
(d)
(i) A legitimate child; or
(ii) An adopted child; or
(iii) A stepchild or recognized natural child who lived with the employee orretiree in a regular parent-child relationship at the time of the employee's orretiree's death; or
(iv) A recognized natural child for whom a judicial determination of supportwas obtained; or
(v) A recognized natural child to whose support the employee or retiree maderegular and substantial contributions.
(2) The following are examples of proofs of regular and substantial support.More than one of the following proofs may be required to show support of a childwho did not live with the employee or retiree in a regular parent-childrelationship and for whom a judicial determination of support was not obtained.
(i) Evidence of eligibility as a dependent child for benefits under otherState or Federal programs;
(ii) Proof of inclusion of the child as a dependent on the decedent's incometax returns for the years immediately before the employee's or retiree's death;
(iii) Cancelled checks, money orders, or receipts for periodic paymentsreceived from the employee or retiree for or on behalf of the child;
(iv) Evidence of goods or services that shows regular contributions ofconsiderable value;
(v) Proof of coverage of the child as a family member under the employee's orretiree's Federal Employees Health Benefits enrollment; and
(vi) Other proof of a similar nature that OPM may find to be sufficient todemonstrate support or parentage.
(3) Survivor benefits may be denied—
(i) If evidence shows that the deceased employee or retiree did not recognizethe claimant as his or her own despite a willingness to support the child; or
(ii) If evidence casts doubt upon the parentage of the claimant, despite thedeceased employee's or retiree's recognition and support of the child.
(a)
(2) In addition to the requirements of paragraph (a)(1) of this section, OPMmust receive certification, in a form prescribed by OPM, that the child isregularly pursuing a full-time course of study in an accredited institution.
(b)
(2) A certification by an accredited institution that the student's workloadis sufficient to constitute a full-time course of study for the program in whichthe student is enrolled is prima facie evidence that the student is pursuing afull-time course of study.
(c)
(2) If OPM requests the recipient of a child's annuity payments to provide aself-certification of school attendance, the recipient must complete and signthe certification form.
(3) If OPM requests the recipient of a child's annuity payments to provide acertification by the school, the certification must be signed by an official whois either in charge of the school or in charge of the school's records. OPM willnot accept certification forms signed by instructors, counselors, aides,roommates, or others not in charge of the school or the records.
(i) If the educational institution is above the high school level, thecertification must be signed by the president or chancellor, vice president orvice chancellor, dean or assistant dean, registrar or administrator, assistantregistrar or assistant administrator, or the equivalent.
(ii) If the educational institution is at the high school level, thecertification must be signed by the superintendent of schools, assistantsuperintendent of schools, principal, vice principal, assistant principal, orthe equivalent.
(iii) If the educational institution is a technical or trade school, thecertification must be signed by the president, vice president, director,assistant director, or the equivalent.
(4) OPM will accept a facsimile signature of a school official only if it isaccompanied by a raised seal of the institution or other evidence clearlydemonstrating the authenticity of the certification and making unauthorized useof the signature stamp unlikely.
(d)
(1) The student must have been a full-time student at the end of the schoolterm immediately before the break.
(2) The break between the end of the last term of full-time attendance andthe return to full-time attendance must not exceed 5 months. (See§ 831.107, concerning calculation of this time period.)
(3) The recipient of a child's annuity payments must show that the studenthas a bona fide intent to return to school as a full-time student immediatelyafter the break. The full-time certification for the prior term and thecertification (in a form prescribed by OPM) by the recipient of a child'sannuity payments that the student intends to return to school (immediately afterthe break) as a full-time student constitute prima facie evidence of a bona fideintent to return to school.
(e)
(i) June 30 of the calendar year of the child's 22nd birthday if the child'sbirthday is before July 1; or
(ii) The last day of the month before the child's 22nd birthday if thechild's
(iii) June 30 of the year after the one in which the child attains age 22 ifthe child's birthday is after August 31 of the calendar year.
(2)(i) An otherwise eligible child who becomes a full-time student after hisor her 22nd birthday but before the date the annuity terminates under paragraph(e)(1) of this section is eligible for annuity while he or she is a full-timestudent until the termination date under paragraph (e)(1) of this section.
(ii) An otherwise eligible child who is a full-time student, and whose parentdies after the child's 22nd birthday but before the date the annuity terminatesunder paragraph (e)(1) of this section, is eligible for annuity while he or sheis a full-time student after the death of the parent until the termination dateunder paragraph (e)(1) of this section.
(a) (1) The rate of annuity payable to a child survivor whose annuitycommenced before February 27, 1986, is computed in accordance with the law ineffect on the date when the annuity began to accrue, unless the rate of annuityis recomputed under paragraph (e) of this section on or after February 27, 1986.
(2) The rate of annuity payable to a child survivor whose annuity commencedon or after February 27, 1986, or was recomputed under paragraph (e) of thissection on or after February 27, 1986, is computed under paragraph (b), (c), or(d) of this section.
(b) Except as provided in paragraph (a) of this section, the rate of annuityof a child survivor is computed under section 8341(e)(2) (i) through (iii) oftitle 5, United States Code, with adjustments in accordance with section 8340 oftitle 5, United States Code, when the deceased employee, Member or annuitant wasnever married to a natural or adoptive parent of that surviving child of theformer employee or Member.
(c) Except as provided in paragraphs (a) and (b) of this section, the rate ofannuity payable to a child survivor is computed under section 8341(e)(2) (A)through (C) of title 5, United States Code, with adjustments in accordance withsection 8340 of title 5, United States Code, whenever a deceased employee,Member, or retiree is survived by a natural or adoptive parent of that survivingchild of the employee, Member, or retiree.
(d) Except as provided in paragraph (a) of this section, the rate of annuitypayable to a child survivor is computed under section 8341(e)(2) (i) through(iii) of title 5, United States Code, with adjustments in accordance withsection 8340 of title 5, United States Code, when the deceased employee, Member,or retiree is not survived by a natural or adoptive parent of that survivingchild of the former employee or Member.
(e) On the death of a natural or adoptive parent or termination of theannuity of a child, the annuity of any other child or children is recomputed andpaid as though the parent or child had not survived the former employee orMember.
At least once every 12 consecutive months, OPM will send a notice to allretirees to inform them about the survivor annuity elections available to them,under sections 8339(j), 8339(k)(2), and 8339(o) of title 5, United States Code.
(a) A retiree who retired before May 7, 1985, including a retiree receiving afully reduced annuity to provide a current spouse annuity, may elect a fullyreduced annuity or a partially reduced annuity to provide a former spouseannuity.
(b) The election should be made by letter addressed to OPM. The electionmust—
(1) Be in writing; and
(2) Agree to pay any deposit due under paragraph (c) of this section; and
(3) Be signed by the retiree; and
(4) Be filed with OPM before September 8, 1987.
(c)(1)(i) If a retiree who is receiving an insurable interest annuity electsa fully reduced annuity or a partially reduced annuity under this section tobenefit the same person, the insurable interest annuity terminates. A retireewho is receiving an insurable interest annuity at the time that an annuity iselected under this section does not owe any further deposit.
(ii) If a retiree who had been receiving an insurable interest annuity, whichwas terminated to elect a reduced annuity to provide a current spouse annuityfor a spouse acquired after retirement, elects to provide a former spouseannuity for a former spouse who was the beneficiary of the insurable interestannuity, the retiree must deposit an amount equal to the sum of the monthlydifferences between the self-only annuity and a fully reduced annuity orpartially reduced annuity (with the same base as elected to provide the formerspouse annuity) from the date the insurable interest annuity terminated, plus 6percent annual interest, computed under § 831.105, from the date towhich each monthly difference is attributable.
(2) A retiree who elects a fully reduced annuity or a partialy reducedannuity under this section, to provide a former spouse annuity for a formerspouse for whom the retiree had elected (during the marriage to that formerspouse) a reduced annuity to provide a current spouse annuity, must deposit anamount equal to the sum of the monthly differences between the self-only annuityand the amount of annuity that would have been in effect had a fully reducedannuity or partially reduced annuity (with the same base as elected to providethe former spouse annuity) been in effect continuously since the time ofretirement, plus 6 percent annual interest, computed under § 831.105,from the date to which each monthly difference is attributable, except that theretiree will not be charged for any period during which the survivor reductionwas in effect for that former spouse.
(3) A retiree who elects a fully reduced annuity or a partially reducedannuity under this section, and is not covered under paragraph (c)(1) or (c)(2)of this section, must deposit an amount equal to the sum of the monthlydifference between the self-only annuity and a fully reduced annuity or apartial!y reduced annuity (with the same base as elected to provide the formerspouse annuity) since the time of retirement, plus 6 percent annual interest,computed under § 831.105, from the date to which each monthlydifference is attributable.
(d) If a retiree who is receiving a fully reduced annuity or a partiallyreduced annuity to provide a current spouse annuity elects a fully reducedannuity or a partially reduced annuity under this section to provide a formerspouse annuity, the annuity will be reduced separately to provide for thecurrent and former spouse annuities. Each separate reduction will be computedbased on the self-only annuity, and the separate reductions are cumulative.
(e)(1) In response to a retiree's inquiry about providing a former spouseannuity under this section, OPM will send an application form. The applicationform will include a notice to retirees that filing the application constitutesan official election which cannot be revoked after 30 days after the annuitycheck in which the annuity reduction first appears.
(2) If the retiree returns the application electing a fully reduced annuityor a partially reduced annuity under this section, OPM will notify the retireeof—
(i) The rate of the fully reduced annuity or partially reduced annuity; and
(ii) The rate of the potential former spouse annuity; and
(iii) The amount of the deposit, including interest, that is due as of thedate that the annuity reduction is scheduled to begin; and
(iv) The amount and duration of installment payments if no deposit is made.
(3) The notice under paragraph (e)(2) of this section will advise the retiree
(4) OPM will reduce the annuity and begin collection of the deposit ininstallments effective with the first check payable more than 60 days after thedate on the notice required under paragraph (e)(2) of this section.
(f)(1) A retiree who made an election under this section prior to September9, 1986 may modify that election by designating a lesser portion of theretiree's annuity be used as the base for the annuity reduction and the formerspouse annuity.
(2) Any modification under paragraph (f)(1) of this section must be inwriting and received in OPM no later than the date provided for applications inparagraph (b)(4) of this section.
(g) The annuity reduction resulting in a fully reduced annuity or partiallyreduced annuity to provide a former spouse annuity under this section terminateson the first day of the month after the former spouse remarries before age 55 ordies.
(h) A former spouse is eligible to receive only one survivor annuity based onthe service of one employee or Member.
(i) If a former spouse is entitled to a former spouse annuity based on anelection under this section, but absent that election would have been entitledto a former spouse annuity under § 831.683 (i.e., filed a timelyapplication as well as meeting all other requirements), the amount of the formerspouse annuity payable will equal 55 percent of the annuity of the retiree onwhose service the survivor annuity is based.
(a)(1) The former spouse of a retiree who retired before May 7, 1985 (or ofan employee or Member who died before May 7, 1985, was employed in a positioncovered by CSRS at the time of death, and was eligible to retire at the time ofdeath), is entitled, after the death of the retiree, employee, or Member, to asurvivor annuity equal to 55 percent of the self-only annuity of the retiree onwhose service the survivor annuity is based if the former spouse, at the time ofapplication, meets all of the following requirements:
(i) The former spouse's marriage to the retiree, employee, or Member wasdissolved after September 14, 1978, and before May 8, 1987. The date ofdissolution of a marriage is the date when the marriage between the formerspouse and the retiree, employee, or Member ended under the law of thejurisdiction that terminated the marriage, rather than the date whenrestrictions on remarriage ended. The date of entry of the decree terminatingthe marriage will be rebuttably presumed to be the date when the marriage wasdissolved.
(ii) The former spouse was married to the retiree, employee, or Member for atleast 10 years of the retiree's, employee's, or Member's creditable service.Creditability of service is determined in accordance with section 8332 of title5, United States Code, and subpart C of this part.
(iii) The former spouse has not remarried before reaching age 55.
(iv) The former spouse applies to OPM for a survivor annuity, in accordancewith paragraph (b) of this section and § 831.643(b), before May 8,1989.
(v) The former spouse is at least 50 years old on May 7, 1987, and whenfiling the application.
(2) A former spouse who is not eligible for an annuity under paragraph (a)(1)of this section and who is the former spouse of a retiree who retired before May7, 1985 (or of an employee or Member who died before May 7, 1985, was employedin a position covered by CSRS at the time of death, and was eligible to retireat the time of death), is entitled, after the death of the retiree, employee, orMember, to a survivor annuity equal to 55 percent of the self-only annuity ofthe retiree on whose service the survivor annuity is based if the former spouse,at the time of application, meets all of the following requirements:
(i) The former spouse was married to the retiree, employee, or Member for at
(ii) The former spouse has not remarried after September 14, 1978, beforereaching age 55.
(iii) The former spouse applies to OPM for a survivor annuity, in accordancewith paragraph (b) of this section and § 831.643(b), before May 8,1989.
(iv) The former spouse is at least 50 years old on May 7, 1987, and whenfiling the application.
(v) No current spouse, other former spouse, or insurable interest designee isreceiving or has been designated to receive a survivor annuity based on theservice of the employee, Member, or retiree.
(3) If two or more eligible former spouses of a retiree, employee, or Memberapply for annuities under paragraph (a)(2) of this section based on the serviceof the same retiree, employee, or Member, and neither meets the requirements ofparagraph (a)(1) of this section, the former spouse whose application OPMreceives first is entitled to the annuity.
(b)(1) Application must be filed on the form prescribed for that purpose byOPM. The application form will require the former spouse to certify under thepenalty provided by section 1001 of title 18, United States Code, that he or shemeets the requirements listed in paragraph (a) of this section.
(2) In addition to the application form required in paragraph (b)(1) of thissection, the former spouse must submit proof of his or her age and the date whenthe marriage to the retiree commenced, and a certified copy of the divorcedecree terminating the marriage to the retiree.
(3)(i) Former spouses applying for benefits under this section must meet therequirements of paragraph (a) of this section at the time of application.
(ii) An annuity under this section terminates on the last day of the monthbefore the former spouse remarries before age 55 or dies, except that aremarriage before September 15, 1978, does not cause termination of a formerspouse annuity under this section. A former spouse who is receiving a formerspouse annuity under this section must notify OPM within 30 days after he or sheremarries before age 55.
(c) Survivor annuities payable under this section commence on the later ofthe day after the date of death of the retiree or the first day of the secondmonth after the application is filed under § 831.643(b).
(d) Cost-of-living adjustments under section 8340 of title 5, United StatesCode, are applicable to annuities payable under this section.
(e) If a former spouse is eligible for a former spouse annuity under thissection and another current spouse annuity or former spouse annuity (under theCivil Service Retirement System or the Federal Employees Retirement System)resulting from the death of the same retiree, the annuity under this sectionwill be paid instead of the other current spouse annuity or former spouseannuity.
(a) A married retiree who retired before May 7, 1985, and is not currentlyreceiving a fully or partially reduced annuity to provide a current spouseannuity may elect a fully or partially reduced annuity to provide a currentspouse annuity for a spouse acquired after retirement if the followingconditions are met:
(1) (i) The retiree was married at the time of retirement and did not elect asurvivor annuity at that time; or
(ii) The retiree failed to elect a fully or partially reduced annuity within1 year after a post-retirement marriage that occurred before November 8, 1984,and the retiree attempted to elect a fully or partially reduced annuity afterthe time limit expired and that request was disallowed as untimely.
(2) The retiree applies for a fully or partially reduced annuity under thissection before November 9, 1985.
(3) The retiree agrees to pay the amount due under paragraph (d) of thissection.
(b) Applications must be filed on the form prescribed by OPM, except filingthe form is excused when the retiree dies before filing the required form if:
(1) The retiree made a written request, after November 8, 1984, to elect afully or partially reduced annuity under this section, and
(2) The retiree was denied the opportunity to file the required form becausethe retiree, without fault, did not receive the form in sufficient time for theretiree to be reasonably expected to complete the form before death.
(c)(1) In response to a retiree's inquiry about providing a current spouseannuity under this section, OPM will send an application form. This applicationwill include instructions to assist the retiree in estimating the amount ofreduction in the annuity to provide the current spouse annuity and the amount ofthe required deposit. The application form will include a notice to retireesthat filing the application constitutes an official election which cannot berevoked after 30 days after the annuity check in which the annuity reductionfirst appears.
(2) If the retiree returns the application electing a fully or partiallyreduced annuity under this section, OPM will notify the retiree of—
(i) The rate of the fully reduced annuity; and
(ii) The rate of the potential current spouse annuity; and
(iii) The amount of the deposit, including interest, that is due as of thedate that the annuity reduction is scheduled to begin; and
(iv) The amount and duration of installment payments if no deposit is made.
(3) The notice under paragraph (c)(2) of this section will advise the retireethat the deposit will be collected in installments under § 831.665,unless lump-sum payment is made within 60 days from the date of this notice.
(4) OPM will reduce the annuity and begin collection of the deposit ininstallments effective with the first check payable more than 60 days after thedate on the notice required under paragraph (c)(2) of this section.
(d) The retiree must state on the application form whether the application ismade under paragraph (a)(1)(i) of this section or paragraph (a)(1)(ii) of thissection. If the application is made under paragraph (a)(1)(ii) of this section,the retiree must prove that he or she had attempted to elect a fully reducedannuity and that OPM rejected that application because it was filed too late.The proof must consist of a copy of OPM's letter rejecting the previous electionas untimely filed or an affidavit swearing or affirming that he or she made anuntimely application which OPM rejected. The affidavit is sufficientdocumentation to provide proof of the retiree's attempt to elect a reducedannuity, unless the record contains convincing evidence to rebut thecertification.
(e) A retiree who elects to provide a current spouse annuity under thissection must agree to pay a deposit equal to the difference between the amountof annuity actually paid to the retiree and the amount of annuity that wouldhave been paid if a fully reduced annuity were being paid continuously since thetime of retirement, plus 6 percent annual interest, computed under§ 831.105, from the date when each difference occurred.
(f) The rate of a survivor annuity under this section will be computed underthe laws in effect at the time of the retiree's separation from the Federalservice.
(a) Except as provided in § 831.613 and paragraphs (b) and (c) ofthis section, a retiree who retired before May 28, 1986, was married at the timeof retirement, and at the time of retirement did not elect a fully reducedannuity to provide a current spouse annuity may elect a fully reduced annuity ora greater partially reduced annuity to provide a current spouse annuity.
(b)(1) An election under paragraph (a) of this section may be made only by aretiree who is married to the same spouse to whom the retiree was married at thetime of retirement.
(2) A current spouse annuity based on an election under paragraph (a) of thissection cannot be paid if it will, when combined with any former spouse annuityor annuities that are required by court order, exceed the maximum survivorannuity permitted under § 831.641.
(3)(i) Except as provided in paragraph (b)(4) of this section, to make anelection under paragraph (a) of this section, the retiree must pay the depositcomputed under § 831.662, in full, no later than November 28, 1987.
(ii) Except as provided in paragraph (b)(4) of this section, failure to paythe deposit, in full, before November 29, 1987, voids an election made underparagraph (a) of this section.
(4) If a retiree makes an election under paragraph (a) of this section and isprevented from paying the deposit within the 18-month time limit because OPM didnot send him or her a notice of the amount of the deposit at least 30 daysbefore the time limit expires, the time limit for making the deposit will beextended to 30 days after OPM sends the notice of the amount of the deposit.
(5) For a retiree whose annuity commenced on or after May 7, 1985, anelection under paragraph (a) of this section cancels any spouse consent under§ 831.611 to the extent of the election.
(c) If a retiree who had elected a fully reduced annuity or a partiallyreduced annuity to provide a former spouse annuity makes an election underparagraph (a) of this section that would cause the combined current spouseannuity and former spouse annuity (or annuities) to exceed the maximum allowedunder § 831.641, the former spouse annuity (or annuities) must bereduced to conform with that allowed under § 831.641.
(d) An election under paragraph (a) of this section is void unless it isfiled with OPM before the retiree dies.
(a) Except as provided in paragraphs (b) and (c) of this section, an annuityof an employee or Member commences on the first day of the month after—
(1) Separation from the service; or
(2) Pay ceases and the service and age requirements for title to annuity aremet, if earlier than the date of separation.
(b) An annuity of—
(1) An employee involuntarily separated from service (except by removal forcause on charges of misconduct or delinquency) and eligible for an immediateannuity based on that involuntary separation;
(2) An employee or Member retiring due to a disability; and
(3) An employee or Member retiring after serving three days or less in themonth of retirement—shall commence on the day after separation from theservice or the day after pay ceases and the service and age or disabilityrequirements for title to annuity are met.
(c) An annuity granted under section 8338, title 5, United States Code,commences on the appropriate birthday of the employee or Member.
(d) Survivor annuities commence as provided in § 831.651.
(e) Except as provided in §831.502, annuity terminates on the date ofdeath or on the date of any other terminating event in each case when OPMterminates the annuity.
(f) Annuity accrues on a daily basis, one-thirtieth of the monthly rateconstituting the daily rate. Annuity does not accrue for the thirty-first day ofany month, except in the initial month if the employee's annuity commences onthe 31st of a 31-day month. For accrual purposes, the last day of a 28-day monthconstitutes 3 days and the last day of a 29-day month constitutes 2 days.
(a)(1) An annuity which includes creditable National Guard technician serviceperformed prior to January 1, 1969, shall be reduced by the portion of anybenefits under any State retirement system to which an annuitant is entitled (oron proper application would be entitled) for any month in which the annuitant iseligible for State benefits based on the same pre-1969, service.
(2) Any cost-of-living increases in the State benefit shall require acorresponding deduction in the civil service annuity.
(3) Any cost-of-living increase to a civil service annuity shall apply to thegross annuity before deduction for benefits under any State retirement system.
(b) In the adjudication of claims arising under subchapter III of chapter 83of title 5, United States Code, OPM shall take appropriate action to obtain thedata that it considers necessary to assure the proper annuity deduction. Uponrequest by OPM, an annuitant shall promptly submit this data.
(a)
(b)
(c)
(d)
(e)
(f)
(1) The 80-percent limit on annuity under 5 U.S.C. 8339(f);
(2) The minimum annuity amount under 5 U.S.C. 8339(e) (concerning air trafficcontroller annuity) or 5 U.S.C. 8339(g) (concerning disability annuity); or
(3) A supplemental annuity under 5 U.S.C. 8344(a).
(a) An annuity that includes credit for service with a nonappropriated fundinstrumentality performed after December 31, 1965, based on an election under 5CFR part 847, subpart D, is computed under 5 CFR part 847, subpart F.
(b) An annuity that includes credit for service with a nonappropriated fundinstrumentality based on an election under 5 CFR part 847, subpart H, iscomputed under 5 CFR part 847, subpart I.
65 FR 2522, Jan. 18, 2000, unless otherwise noted.
(a) This subpart contains regulations of the Office of Personnel Management(OPM) to supplement 5 U.S.C. 8336(c), which establishes special retirementeligibility for nuclear materials couriers employed under the Civil ServiceRetirement System; 5 U.S.C. 8334(a)(1) and (c), pertaining to deductions,contributions, and deposits; 5 U.S.C. 8335(b), pertaining to mandatoryretirement; and 5 U.S.C. 8339(d), pertaining to computation of annuity.
(b) The regulations in this subpart are issued pursuant to the authoritygiven to OPM in 5 U.S.C. 8347 to prescribe regulations to carry out 5 U.S.C.,chapter 83, subchapter III, and in 5 U.S.C. 1104 to delegate authority forpersonnel management to the heads of agencies.
In this subpart—
(1)(i) Are paramount in influence or weight; that is, constitute the basicreasons for the existence of the position;
(ii) Occupy a substantial portion of the individual's working time over atypical work cycle; and
(iii) Are assigned on a regular and recurring basis.
(2) Duties that are of an emergency, incidental, or temporary nature cannotbe considered
(1) Is clearly in the nuclear materials transportation field;
(2) Is in an organization of the Department of Energy having a nuclearmaterials transportation mission; and
(3) Is either—
(i) Supervisory; i.e., a position whose primary duties are as a first-levelsupervisor of nuclear materials couriers in primary positions; or
(ii) Administrative; i.e., an executive, managerial, technical,semiprofessional, or professional position for which experience in a primarynuclear materials courier position is a prerequisite.
(a) An employee's service in a position that has been determined by theSecretary of the Department of Energy to be a primary nuclear materials courierposition is covered under the provisions of 5 U.S.C. 8336(c).
(b) An employee who is not in a primary position, nor covered while in asecondary position, and who is detailed or temporarily promoted to a primaryposition is not covered under the provisions of 5 U.S.C. 8336(c).
(a) An employee's service in a position that has been determined by theSecretary of the Department of Energy to be a secondary nuclear materialscourier position following 3 years of service in a primary nuclear materialscourier position is covered under the provisions of 5 U.S.C. 8336(c) if all ofthe following criteria are met:
(1) The employee is transferred directly (
(2) If applicable, the employee has been continuously employed in secondarypositions since transferring from a primary position without a break in serviceexceeding 3 days, except that a break in employment in secondary positions whichbegins with an involuntary separation (not for cause), within the meaning of 5U.S.C. 8336(d)(1), is not considered in determining whether the service insecondary positions is continuous for this purpose.
(b) An employee who is not in a primary position, nor covered while in asecondary position, and who is detailed or temporarily promoted to a secondaryposition is not covered under the provisions of 5 U.S.C. 8336(c).
(a) The Secretary of Energy's determination under § 831.803 that aposition is a primary position must be based solely on the official positiondescription of the position in question, and any other official description ofduties and qualifications. The official documentation for the position mustestablish that it satisfies the requirements defined in § 831.802.
(b) A determination under § 831.804 must be based on the officialposition
(c) If an employee is in a position not subject to the one-half percenthigher withholding rate of 5 U.S.C. 8334(a)(1), and the employee does not,within 6 months after entering the position or after any significant change inthe position, formally and in writing seek a determination from the employingagency that his or her service is properly covered by the higher withholdingrate, the agency head's determination that the service was not so covered at thetime of the service is presumed to be correct. This presumption may be rebuttedby a preponderance of the evidence that the employee was unaware of his or herstatus or was prevented by cause beyond his or her control from requesting thatthe official status be changed at the time the service was performed.
(a) An employee who requests credit for service under 5 U.S.C. 8336(c) bearsthe burden of proof with respect to that service, and must provide the employingagency with all pertinent information regarding duties performed.
(b) An employee who is currently serving in a position that has not beenapproved as a primary or secondary position, but who believes that his or herservice is creditable as service in a primary or secondary position may requestthe agency head to determine whether or not the employee's current serviceshould be credited and, if it qualifies, whether it should be credited asservice in a primary or secondary position. A written request for currentservice must be made within 6 months after entering the position or after anysignificant change in the position.
(c) A current or former employee (or the survivor of a former employee) whobelieves that a period of past service in an unapproved position qualifies asservice in a primary or secondary position and meets the conditions for creditmay request the agency head to determine whether or not the employee's pastservice should be credited and, if it qualifies, whether it should be creditedas service in a primary or secondary position. A written request for pastservice must be made no later than December 31, 2000.
(d) The agency head may extend the time limit for filing under paragraph (b)or (c) of this section when, in the judgment of such agency head, the individualshows that he or she was prevented by circumstances beyond his or her controlfrom making the request within the time limit.
(a) During the service covered under the conditions established by§ 831.803 and § 831.804, the Department of Energy willdeduct and withhold from the employee's base pay the amount required under 5U.S.C. 8334(a) for such positions and submit that amount, together with agencycontributions required by 5 U.S.C. 8334(a), to OPM in accordance with payrolloffice instructions issued by OPM.
(b) If the correct withholdings and/or Government contributions are notsubmitted to OPM for any reason whatsoever, including cases in which it isfinally determined that past service of a current or former employee was subjectto the higher deduction and Government contribution rates, the Department ofEnergy must correct the error by submitting the correct amounts (including bothemployee and agency shares) to OPM as soon as possible. Even if the Departmentof Energy waives collection of the overpayment of pay under any waiver authoritythat may be available for this purpose, such as 5 U.S.C. 5584, or otherwisefails to collect the debt, the correct amount must still be submitted to OPMwithout delay as soon as possible.
(c) Upon proper application from an employee, former employee or eligiblesurvivor of a former employee, the Department of Energy will pay a refund oferroneous additional withholdings for service that is found not to have beencovered service. If an individual has paid to OPM a deposit or redeposit,including the additional amount required for covered service, and the deposit orredeposit is later determined to be erroneous because the service was notcovered service, OPM will pay the refund, upon proper application, to theindividual, without interest.
(d) The additional employee withholding and agency contribution for coveredor creditable service properly made as required under 5 U.S.C. 8334(a)(1) ordeposited under 5 U.S.C. 8334(c) are not separately refundable, even in theevent that the employee or his or her survivor does not qualify for a specialannuity computation under 5 U.S.C. 8339(d).
(e) While an employee who does not hold a primary or secondary position isdetailed or temporarily promoted to a primary or secondary position, theadditional withholdings and agency contributions will not be made. While anemployee who does hold a primary or secondary position is detailed ortemporarily promoted to a position which is not a primary or secondary position,the additional withholdings and agency contributions will continue to be made.
(a) Effective on and after October 17, 1999, the mandatory separationprovisions of 5 U.S.C. 8335(b) apply to all nuclear materials couriers inprimary and secondary positions. A mandatory separation under 5 U.S.C. 8335(b)is not an adverse action under part 752 of this chapter or a removal actionunder part 359 of this chapter. Section 831.502 provides the procedures forrequesting an exemption from mandatory separation.
(b) In the event an employee is separated mandatorily under 5 U.S.C. 8335(b),or is separated for optional retirement under 5 U.S.C. 8336(c), and OPM findsthat all or part of the minimum service required for entitlement to immediateannuity was in a position which did not meet the requirements of a primary orsecondary position and the conditions set forth in this subpart, such separationwill be considered erroneous.
An employee who has been mandatorily separated under 5 U.S.C. 8335(b) is notbarred from reemployment in any position except a primary position after age 60.Service by a reemployed annuitant is not covered by the provisions of 5 U.S.C.8336(c).
The following decisions may be appealed to the Merit Systems Protection Boardunder procedures prescribed by the Board:
(a) The final decision of the Department of Energy issued to an employee,former employee, or survivor as the result of a request for determination filedunder § 831.806; and
(b) The final decision of the Department of Energy that a break in servicereferred to in § 831.804(a)(2) did not begin with an involuntaryseparation within the meaning of 5 U.S.C. 8336(d)(1).
(a) Upon deciding that a position is a nuclear materials courier position,the agency head must notify OPM (Attention: Associate Director for Retirementand Insurance) stating the title of each position, the number of incumbents, andwhether the position is primary or secondary. The Director of OPM retains theauthority to revoke the agency head's determination that a position is a primaryor secondary position, or that an individual's service in any other position iscreditable under 5 U.S.C. 8336(c).
(b) The Department of Energy must establish a file containing each coveragedetermination made by the agency head under § 831.803 and§ 831.804, and all background material used in making thedetermination.
(c) Upon request by OPM, the Department of Energy will make available theentire coverage determination file for OPM to audit to ensure compliance withthe provisions of this subpart.
(d) Upon request by OPM, the Department of Energy must submit to OPM a listof all covered positions and any other pertinent information requested.
58 FR 64367, Dec. 7, 1993, unless otherwise noted.
(a) This subpart contains regulations of the Office of Personnel Management
(b) The regulations in this subpart are issued pursuant to the authoritygiven to OPM in 5 U.S.C. 8347 to prescribe regulations to carry out subchapterIII of chapter 83 of title 5 of the United States Code, and in 5 U.S.C. 1104 todelegate authority for personnel management to the heads of agencies.
In this subpart—
(1) (i) Are paramount in influence or weight; that is, constitute the basicreasons for the existence of the position;
(ii) Occupy a substantial portion of the individual's working time over atypical work cycle; and
(iii) Are assigned on a regular and recurring basis.
(2) Duties that are of an emergency, incidental, or temporary nature cannotbe considered “primary” even if they meet the substantial portion oftime
(1) To perform work directly connected with controlling and extinguishingfires or maintaining and using firefighter apparatus and equipment; or
(2) Investigation, apprehension, or detention of individuals suspected orconvicted of offenses against the criminal laws of the United States.
(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; i.e., a position whose primary duties are as a first-levelsupervisor of law enforcement officers or firefighters in primary positions; or
(ii) Administrative; i.e., an executive, managerial, technical,semiprofessional, or professional position for which experience in a primary lawenforcement or firefighting position, or equivalent experience outside theFederal government, is a prerequisite.
(a) An employee's service in a position that has been determined by theemploying agency head to be a primary law enforcement officer or firefighterposition is covered under the provisions of 5 U.S.C. 8336(c).
(b) An employee who is not in a primary position, nor covered while in asecondary position, and who is detailed or temporarily promoted to a primaryposition is not covered under the provisions of 5 U.S.C. 8336(C)
(a) An employee's service in a position that has been determined by theemploying agency head to be a secondary law enforcement officer or firefighterposition is covered under the provisions of 5 U.S.C. 8336(c) if all of thefollowing criteria are met:
(1) The employee is transferred directly (i.e., without a break in serviceexceeding 3 days) from a primary position to a secondary position; and
(2) If applicable, the employee has been continuously employed in secondarypositions since transferring from a primary position without a break in serviceexceeding 3 days, except that a break in employment in secondary positions whichbegins with an involuntary separation (not for cause), within the meaning of8336(d)(1) of title 5, United States Code, is not considered in determiningwhether the service in secondary positions is continuous for this purpose.
(b) This requirement for continuous employment in a secondary positionapplies only to voluntary breaks in service beginning after January 19, 1988.
(c) An employee who is not in a primary position, nor covered while in asecondary position, and who is detailed or temporarily promoted to a secondaryposition is not covered under the provisions of 5 U.S.C. 8336(c).
(d) The service of an employee who is in a position on January 19, 1988, thathas been approved as a secondary position under this subpart will continue to becovered under the provisions of 5 U.S.C. 8336(c) as long as the employee remainsin that position without a voluntary break in service, and coverage is notrevoked by OPM under § 831.911, or by the agency head.
(a) An agency head's determination that a position is a primary position mustbe based solely on the official position description of the position inquestion, and any other official description of duties and qualifications. Theofficial documentation for the position must establish that it satisfies therequirements defined in § 831.902.
(b) A determination under § 831.904 must be based on the officialposition description and any other evidence deemed appropriate by the agencyhead for making the determination.
(a) An employee who requests credit for service under 5 U.S.C. 8336(c) bearsthe burden of proof with respect to that service, and must provide the employingagency with all pertinent information regarding duties performed,including—
(1) For law enforcement officers, a list of the provisions of Federalcriminal law the incumbent is responsible for enforcing and arrests made; and
(2) For firefighters, number of fires fought, names of fires fought, dates offires, and position occupied while on firefighting duty.
(b) An employee who is currently serving in a position that has not beenapproved as a primary or secondary position, but who believes that his or herservice is creditable as service in a primary or secondary position may requestthe agency head to determine whether or not the employee's service should becredited and, if it qualifies, whether it should be a primary or secondaryposition.
(c) A current or former employee (or the survivor of a former employee) whobelieves that a period of past service in an unapproved position qualifies asservice in a primary or secondary position and meets the conditions for creditmust follow the procedure in paragraph (b) of this section. Except as providedin paragraph (d) of this section, the request must be made to the agency wherethe claimed service was performed.
(d) For a current or former employee seeking credit under 5 U.S.C. 8336(c)for service performed at an agency that is no longer in existence, and for whichthere is no successor agency, OPM will accept, directly from the current orformer employee (or the survivor of a former employee), a request for adetermination as to whether a period of past service qualifies as service in aprimary or secondary position and meets the conditions for credit.
(e) Coverage in a position or credit for past service will not be granted fora period greater than 1 year prior to the date that the request from anindividual is received under paragraphs (b), (c), or (d) of this section by theemploying agency, the agency where past service was performed, or OPM.
(f) An agency head, in the case of a request filed under paragraph (b) or (c)of this section, or OPM, in the case of request filed under paragraph (d) ofthis section, may extend the time limit for filing when, in the judgment of suchagency head or OPM, the individual shows that he or she was prevented bycircumstances beyond his or her control from making the request within the timelimit.
(a) During the service covered under the conditions established by§ 831.903 and § 831.904, the employing agency will deductand withhold from the employee's base pay the amount required under 5 U.S.C.8334(a) for such positions and submit that amount, together with agencycontributions required by 5 U.S.C. 8334(a), to OPM in accordance with payrolloffice instructions issued by OPM.
(b) If the correct withholdings and/or Government contributions are notsubmitted to OPM for any reason whatsoever, including cases in which it isfinally determined that past service of a current or former employee was subjectto the higher deduction and Government contribution rates, the employing agencymust correct the error by submitting the correct amounts (including bothemployee and agency shares) to OPM as soon as possible. Even if the agencywaives collection of the overpayment of pay under any waiver authority that maybe available for this purpose, such as 5 U.S.C. 5584, or otherwise fails tocollect the debt, the correct amount must still be submitted to OPM withoutdelay as soon as possible.
(c) Upon proper application from an employee, former employee or eligiblesurvivor of a former employee, an employing agency or former employing agencywill pay a refund of erroneous additional withholdings for service that is foundnot to have been covered service. If an individual has paid to OPM a deposit orredeposit, including the additional amount required for covered service, and thedeposit or redeposit is later determined to be erroneous because the service wasnot covered service, OPM will pay the refund,
(d) The additional employee withholding and agency contribution for coveredor creditable service properly made as required under 5 U.S.C. 8334(a)(1) ordeposited under 5 U.S.C. 8334(c) are not separately refundable, even in theevent that the employee or his or her survivor does not qualify for a specialannuity computation under 5 U.S.C. 8339(d).
(e) While an employee who does not hold a primary or secondary position isdetailed or temporarily promoted to a primary or secondary position, theadditional withholdings and agency contributions will not be made. While anemployee who does hold a primary or secondary position is detailed ortemporarily promoted to a position which is not a primary or secondary position,the additional withholdings and agency contributions will continue to be made.
(a) The mandatory separation provisions of 5 U.S.C. 8335(b) apply to all lawenforcement officers and firefighters in primary and secondary positions. Amandatory separation under section 8335(b) is not an adverse action under part752 of this chapter or a removal action under part 359 of this chapter. Section831.502 provides the procedures for requesting an exemption from mandatoryseparation.
(b) In the event an employee is separated mandatorily under 5 U.S.C. 8335(b),or is separated for optional retirement under 5 U.S.C. 8336(c), and OPM findsthat all or part of the minimum service required for entitlement to immediateannuity was in a position which did not meet the requirements of a primary orsecondary position and the conditions set forth in this subpart, such separationwill be considered erroneous.
An employee who has been mandatorily separated under 5 U.S.C. 8335(b) is notbarred from reemployment in any position except a primary position after age 60.Service by a reemployed annuitant is not covered by the provisions of 5 U.S.C.8336(c).
(a) The final decision of an agency head or OPM issued to an employee, formeremployee, or survivor as the result of a request for determination filed under§ 831.906 may be appealed to the Merit Systems Protection Board underprocedures prescribed by the Board.
(b) The final decision of an agency head that a break in service referred toin § 831.904(a)(2) did not begin with an involuntary separationwithin the meaning of 5 U.S.C. 8336(d)(1) may be appealed to the Merit SystemsProtection Board under procedures prescribed by the Board.
(a) Upon deciding that a position is a law enforcement officer or firefighterposition, each agency head must notify OPM (Attention: Associate Director forRetirement and Insurance) stating the title of each position, the number ofincumbents, and whether the position is primary or secondary. The Director ofOPM retains the authority to revoke an agency head's determination that aposition is a primary or secondary position, or that an individual's service inany other position is creditable under 5 U.S.C. 8336(c).
(b) Each agency must establish a file containing each coverage determinationmade by an agency head under § 831.903 and § 831.904, andall background material used in making the determination.
(c) Upon request by OPM, the agency will make available the entire coveragedetermination file for OPM to audit to ensure compliance with the provisions ofthis subpart.
(d) Upon request by OPM, an agency must submit to OPM a list of all coveredpositions and any other pertinent information requested.
(e) A coverage determination issued by OPM or its predecessor, the CivilService Commission, will not be reopened by an employing agency, unless
(a)
(b)
(c)
(d)
(e)
(f)
(2) Starting with the effective date under paragraph (d) of this section, theMWAA must make deductions and withholdings from the electing MWAA policeofficer's base pay in accordance with 5 CFR 831.907.
(g)
(2) Starting with the effective date under paragraph (d) of this section, theMWAA must make agency contributions for the electing police officer inaccordance with 5 CFR 831.907.
(h)
(2) The President and Chief Operating Officer of the MWAA is deemed to be thehead of an agency for the purpose of exempting an MWAA police officer frommandatory separation in accordance with the provisions of 5 U.S.C. 8335(b) and 5CFR 831.502.
(i)
57 FR 38743, Aug. 27, 1992, unless otherwise noted.
This subpart sets forth the provisions concerning employees and Members whoare simultaneously covered by the Old Age, Survivors, and Disability Insurance(OASDI) tax and the Civil Service Retirement System (CSRS). Except as providedunder this subpart, these employees and Members are treated the same as othercovered employees and Members under the CSRS.
(1) Service performed before January 1, 1984;
(2) Service subject to the OASDI tax only (that is, no simultaneous CSRSdeductions), except in the case of an employee or Member who elected not to haveany CSRS deductions withheld from salary pursuant to section 208(a)(1)(A) ofPublic Law 98-168, 97 Stat. 1111, or section 2206(b) of Public Law98-369, 98 Stat. 1059, (relating to certain senior officials; and
(3) Service subject to the full rate of CSRS deductions (7, 7
(a) Except as otherwise provided in this section, the employing agency, theSecretary of the Senate, or the Clerk of the House of Representatives mustwithhold 7 percent of an employee's Federal wages to cover both the OASDI taxand the CSRS deduction. The difference between the OASDI tax and the full amountwithheld under this paragraph is the CSRS deduction.
(b) For a Congressional employee as defined by 5 U.S.C. 2107 and a lawenforcement officer or firefighter as defined by 5 U.S.C. 8331, the appropriatepercentage under paragraph (a) of this section is 7
(c) For a Member, a judge of the United States Court of Military Appeals, aUnited States magistrate, and a bankruptcy judge as defined by 5 U.S.C.8331(22), the appropriate percentage under paragraph (a) of this section is 8percent.
(d) For any amount of Federal wages paid after reaching the contribution andbenefit base calculated including all wages, but before reaching thecontribution and benefit base calculated using only Federal wages, the amountwithheld under this section is the difference between 7, 7
(e) For any amount of Federal wages paid after reaching the contribution andbenefit base calculated on the basis of Federal wages only, the full percentagerequired under paragraph (a), (b), or (c) of this section (7, 7
The employing agency, the Secretary of the Senate, and the Clerk of the Houseof Representatives must submit to OPM, in accordance with instructions issued byOPM, a contribution to the CSRS equal to the amount required to be contributedfor the employee or Member under 5 U.S.C. 8334(a)(1) as if the employee orMember were not subject to the OASDI tax.
(a) OPM will reduce the annuity of an individual who has performed Federalservice, if the individual is entitled, or on proper application would beentitled, to old-age benefits under title II of the Social Security Act.
(b) The reduction required under paragraph (a) of this section is effectiveon the 1st day of the month during which the employee—
(1) Is entitled to an annuity under CSRS; and
(2) Is entitled, or on proper application would be entitled, to old-agebenefits under title II of the Social Security Act.
(c) Subject to paragraphs (d) and (e) of this section, the amount of thereduction required under paragraph (a) of this section is the lesser of—
(1) The difference between—
(i) The Social Security old-age benefit for the month referred to inparagraph (b) of this section; and
(ii) The old-age benefit that would be payable to the individual for themonth referred to in paragraph (b) of this section, excluding all wages fromFederal service, and assuming the annuitant was fully insured (as defined bysection 215(a) of the Social Security Act (42 U.S.C. 414(a)); or
(2) The product of—
(i) The old-age benefit to which the individual is entitled or would, onproper application, be entitled; and
(ii) A fraction—
(A) The numerator of which is the annuitant's total Federal service, roundedto the nearest whole number of years not exceeding 40 years; and
(B) The denominator of which is 40.
(d) Cost-of-living adjustments under 5 U.S.C. 8340 occurring after theeffective date of the reduction required under paragraph (a) of this sectionwill be based on only the annuity remaining after reduction under this subpart.
(e) The amounts for paragraphs (c)(1)(i), (c)(1)(ii), and (c)(2)(i) of thissection are computed without regard to subsections (b) through (l) of section203 of the Social Security Act (42 U.S.C. 403) (relating to reductions in SocialSecurity benefits), and without applying the provisions of the second sentenceof section 215(a)(7)(B)(i) or section 214(d)(5)(ii) of the Social Security Act(42 U.S.C. 415(a)(7)(B)(i) or 415(d)(5)(ii) (relating to part of the computationof the Social Security windfall elimination provisions).
(f) OPM will accept the determination of the Social Security Administration,submitted in a form prescribed by OPM, concerning entitlement to Social Securitybenefits and the date thereof.
(a) OPM will reduce the disability annuity (an annuity under 5 U.S.C. 8337)of an individual who performed Federal service, if the individual is (or wouldon proper application be) entitled to disability payments under section 223 ofthe Social Security Act (42 U.S.C. 423).
(b)(1) Before an application for disability retirement under 5 U.S.C. 8337can be finally approved in the case of an employee who has Federal service, theapplicant must provide OPM with—
(i) Satisfactory evidence that the applicant has filed an application fordisability insurance benefits under section 223 of the Social Security Act; or
(ii) An official statement from the Social Security Administration that theindividual is not insured for disability insurance benefits as defined insection 223(c)(1) of the Social Security Act.
(2) A disability retirement application under 5 U.S.C. 8337 will be dismissedwhen OPM is notified by the Social Security Administration that the applicationreferred to in paragraph (b)(1)(i) of this section has been withdrawn unless theevidence described in paragraph (b)(1)(ii) of this section has been provided.
(c) OPM will reduce a survivor annuity (an annuity under 5 U.S.C. 8341) basedon the service of an individual who performed Federal service, if the survivorannuitant is entitled, or on proper application would be entitled, to survivorbenefits under section 202 (d), (e), or (f) (relating to children's, widow's,and widowers' benefits, respectively) of the Social Security Act (42 U.S.C. 202(d), (e), or (f)).
(d) The reduction required under paragraphs (a) and (c) of this sectionbegins (or is reinstated) on the 1st day
(1) Is entitled to disability or survivor annuity under CSRS; and
(2) Is entitled, or on proper application would be entitled, to disability orsurvivor benefits under the Social Security Act provisions mentioned inparagraphs (a) and (c) of this section, respectively.
(e) The reduction under paragraphs (a) and (c) of this section will becomputed and adjusted in a manner consistent with the provisions of§ 831.1005(c) through (e).
(f) A reduction under paragraph (a) or (c) of this section stops on the dateentitlement to the disability or survivor benefits under title II of the SocialSecurity Act terminates. In the case of a disability or survivor annuitant whohas not made proper application for the Social Security benefit, the reductionunder paragraph (a) or (c) of this section stops on the date entitlement to suchdisability or survivor benefits would otherwise terminate. If a Social Securitybenefit is reduced under any provision of the Social Security Act, even ifreduced to zero, entitlement to that benefit is not considered to haveterminated.
(g) OPM will accept the determination or certification of the Social SecurityAdministration, submitted in a form prescribed by OPM, concerning entitlement toSocial Security disability or survivor benefits and the beginning and endingdates thereof.
(h) If a disability annuitant who is not entitled to disability benefitsunder title II of the Social Security Act subsequently becomes entitled to old-age benefits under the Social Security Act, a reduction under§ 831.1005 will begin on the 1st day of the month during which theannuitant becomes entitled, or on proper application would be entitled, toSocial Security old-age insurance benefits.
This subpart prescribes the procedures to be followed in determining whetherpayment of an annuity under subchapter III of chapter 83 of title 5, UnitedStates Code, is prohibited by subchapter II of that chapter.
As used in this subpart, “annuitant” means an individual who, onthe basis of his service, or as a survivor annuitant, has met all therequirements of subchapter III of chapter 83 of title 5, United States Code, fortitle to an annuity and has filed claim therefor.
When the Associate Director determines that subchapter II of chapter 83 oftitle 5, United States Code, appears to prohibit payment of annuity, he shallnotify the annuitant in writing of his intention to withhold payment of theannuity. The notice shall set forth the reasons for this determination. Thenotice may be served by registered or certified mail and shall inform theannuitant that he is entitled to submit an answer and request a hearing.
(a) The annuitant has 30 calendar days from the day he receives the noticewithin which to submit an answer and to request a hearing. The AssociateDirector may extend this time limit for good cause shown. If the annuitantanswers, he shall specifically admit, deny, or explain each fact alleged in thenotice, unless he states that he is without knowledge. If a hearing is desired,the annuitant must file a specific request therefor with or as a part of hisanswer.
(b) An annuitant who fails to answer or to request a hearing within the timepermitted under paragraph (a) of this section is considered to have waived hisright to answer or to a hearing. If an annuitant neither answers nor requests ahearing within the time permitted, or answers but fails to request a hearing,the Associate Director shall decide the case on the basis of the administrativerecord, including the notice and any documents, affidavits, or other relevantevidence. The decision of the Associate Director shall (1) be served on theannuitant or his counsel
(a) OPM's hearing examiner shall preside at any hearing held pursuant to thissubpart, unless OPM designates another presiding officer. The presiding officershall fix the time and place of the hearing after giving due consideration tothe convenience of the annuitant. The hearing is open to the public unlessotherwise ordered by OPM or the presiding officer.
(b) The hearing shall be recorded by an official reporter designated by OPM.OPM shall furnish to the annuitant, without charge, a copy of the transcript ofthe hearing.
The presiding officer may:
(a) Administer oaths and affirmations;
(b) Rule upon offers of proof and receive relevant evidence;
(c) Fix the time and place of hearing;
(d) Regulate the course of the hearing;
(e) Exclude any person from the hearing for contumacious conduct ormisbehavior that obstructs the hearing;
(f) Hold conferences for simplification of the issues, or for any otherpurpose;
(g) Dispose of procedural requests or similar matters;
(h) Authorize the filing of briefs and set the time for filing;
(i) Make initial decisions; and
(j) Take any other action in the course of the proceeding consistent with thepurposes of this subpart.
(a) Witnesses shall testify under oath or affirmation and shall be subject tocross-examination.
(b) Each party is responsible for securing the attendance of his witnesses.OPM has no power of subpena in these cases.
(a) Rules of evidence are not strictly applied, but the presiding officershall exclude irrelevant or unduly repetitious evidence.
(b) Each exhibit of a documentary character shall be submitted to thepresiding officer, duly marked, and made a part of the record. An exhibit doesnot become evidence unless received in evidence by the presiding officer.
(a) Upon completion of a hearing pursuant to § 831.1106, thepresiding officer shall make and file an initial decision, a copy of which shallbe served on each party or counsel by certified or registered mail.
(b) The initial decision shall include a statement of findings andconclusions, with the reasons therefor, and shall be based upon a considerationof the entire record.
(c) The initial decision shall become the final decision of OPM unless thecase is appealed or reviewed pursuant to § 831.1111.
(a) An appeal from an initial decision, or a decision of the AssociateDirector under § 831.1105(b), may be made to OPM, with service on theother party, within 30 calendar days from the date of the decision. An appealshall be in writing and shall state plainly and concisely the grounds for theappeal, with a specific reference to the record when issues of fact are raised.The other party may file an opposition to the appeal within 15 days afterservice on him. On notice to the parties, OPM may extend the time limitsprescribed in this paragraph.
(b) Within 30 calendar days from the date of an initial decision or adecision of the Associate Director, OPM, on its own motion, may direct that therecord be certified to it for review.
(a) On appeal from or review of an initial decision or a decision of theAssociate Director, OPM shall decide the
(b) OPM may adopt, modify, or set aside the findings, conclusions, or orderof the presiding officer or the Associate Director.
(c) The final decision of OPM shall be in writing and include a statement offindings and conclusions, the reasons or basis therefor, and an appropriateorder, and shall be served on the parties.
58 FR 49179, Sept. 22, 1993, unless otherwise noted.
This subpart sets out the requirements an employee must meet to qualify fordisability retirement, how an employee applies for disability retirement, how anagency applies for disability retirement for an employee, when a disabilityannuity ends, an individual's retirement rights after the disability annuityends, and the effect of reemployment in the Federal service on a disabilityannuitant.
As used in this subpart—
(a) Except as provided in paragraph (b) of this section, the followingconditions must be met for an individual to be eligible for disabilityretirement:
(1) The individual must have completed at least 5 years of civilian servicethat is creditable under the Civil Service Retirement System.
(2) The individual must, while employed in a position subject to the CivilService Retirement System, have become disabled because of a medical condition,resulting in a service deficiency in performance, conduct, or attendance, or ifthere is no actual service deficiency, the disabling medical condition must beincompatible with either useful and efficient service or retention in theposition.
(3) The disabling medical condition must be expected to continue for at least1 year from the date the application for disability retirement is filed.
(4) The employing agency must be unable to accommodate the disabling medicalcondition in the position held or in an existing vacant position.
(5) An application for disability retirement must be filed with the employingagency before the employee or Member separates from service, or with the formeremploying agency or the Office of Personnel Management (OPM) within 1 yearthereafter. This time limit can be waived only in certain instances explained in§ 831.1204.
(b) A National Guard technician who is retiring under the special provisionsof 5 U.S.C. 8337(h) is not required to meet the conditions given in paragraphs(a) (2), (3), and (4) of this section. Instead, the individual must be disabledfor membership in the National Guard or for the military grade required to holdhis or her position and meet the other eligibility requirements under 5 U.S.C.8337(h)(2).
(a) Except as provided in paragraphs (c) and (d) of this section, anapplication for disability retirement is timely only if it is filed with theemploying agency before the employee or Member separates from service, or withthe former employing agency or OPM within 1 year thereafter.
(b) An application for disability retirement that is filed with OPM, anemploying agency or former employing agency by personal delivery is consideredfiled on the date on which OPM, the employing agency or former employing agencyreceives it. The date of filing by facsimile is the date of the facsimile. Thedate of filing by mail is determined by the postmark date; if no legiblepostmark date appears on the mailing, the application is presumed to have beenmailed 5 days before its receipt, excluding days on which OPM, the employingagency or former employing agency, as appropriate, is closed for business. Thedate of filing by commercial overnight delivery is the date the application isgiven to the overnight delivery service.
(c) An application for disability retirement that is filed with OPM or theapplicant's former employing agency
(d) OPM may waive the 1-year time limit if the employee or Member is mentallyincompetent on the date of separation or within 1 year thereafter, in which casethe individual or his or her representative must file the application with theformer employing agency or OPM within 1 year after the date the individualregains competency or a court appoints a fiduciary, whichever is earlier.
(e) An agency may consider the existence of a pending disability retirementapplication when deciding whether and when to take other personnel actions. Anemployee's filing for disability retirement does not require the agency to delayany appropriate personnel action.
(a)
(1) The agency has issued a decision to remove the employee;
(2) The agency concludes, after its review of medical documentation, that thecause for unacceptable performance, attendance, or conduct is disease or injury;
(3) The employee is institutionalized, or the agency concludes , based on areview of medical and other information, that the employee is incapable ofmaking a decision to file an application for disability retirement;
(4) The employee has no personal representative or guardian; and
(5) The employee has no immediate family member who is willing to file anapplication on his or her behalf.
(b)
(2) If the agency is filing a disability retirement application on theemployee's behalf, the agency must inform the employee in writing at the sametime it informs the employee of its removal decision, or at any time before theseparation is effected, that—
(i) The agency is submitting a disability retirement application on theemployee's behalf to OPM;
(ii) The employee may review any medical information in accordance with thecriteria in § 294.106(d) of this chapter; and
(iii) The action does not affect the employee's right to submit a voluntaryapplication for retirement under this part.
(3) When an agency submits an application for disability retirement to OPM onbehalf of an employee, it must provide OPM with copies of the decision toremove, the medical documentation, and any other documents needed to show thatthe cause for removal is due to a medical condition. Following separation, theagency must provide OPM with a copy of the documentation of the separation.
(c)
(2) OPM will cancel any disability retirement when a final decision of anadministrative authority or court reverses the removal action and orders thereinstatement of an employee to the agency rolls.
(a)
(i) Standard Form 2824A—“Applicant's Statement;”
(ii) Standard Form 2824B—“Supervisor's Statement;”
(iii) Standard Form 2824D—“Agency Certification or Reassignmentand Accommodation Efforts;” and
(iv) Standard Form 2824E—“Disability Retirement ApplicationChecklist.”
(2) Standard Form 2824C—“Physician's Statement” and thesupporting medical documentation may be submitted directly to OPM.
(3) The applicant, or the employing agency, must also obtain and submitadditional documentation as may be required by OPM to determine entitlement tothe disability retirement benefit.
(4) Refusal by the applicant, physician, or employing agency to submit thedocumentation OPM has determined is necessary to decide eligibility fordisability retirement is grounds for disallowance of the application.
(b)
(2) OPM may rescind a decision to allow an application for disabilityretirement at any time if there is an indication of error in the originaldecision, such as fraud or misstatement of fact, or if additional medicaldocumentation is needed. The written notification will include a statement ofthe findings and conclusions, and an explanation of the right to requestreconsideration under § 831.109 of this part.
(c)
(d)
(a) OPM will honor, without question, an applicant's request to withdraw anemployee-filed disability retirement application if it receives the withdrawalrequest before the employing agency has separated the current employee, or, ifthe employee has already separated from the service, the withdrawal request isreceived before the official notice of approval has been issued by OPM.Similarly, OPM will honor, without question, an agency's request to withdraw anagency-filed disability retirement application if it receives the withdrawalrequest before the employee has separated from the service. Once the request towithdraw the application is accepted, an applicant must reapply to receive anyfurther consideration.
(b) Withdrawal of a disability retirement application does not ensure theindividual's continued employment. It
(c) OPM considers voluntary acceptance of a permanent position in which theemployee has civil service retirement coverage, including a position at a lowergrade or pay level, to be a withdrawal of the employee's disability retirementapplication. The employing agency must notify OPM immediately when an applicantfor disability retirement accepts a position of this type.
(d) OPM also considers a disability retirement application to be withdrawnwhen the agency reports to OPM that it has reassigned an applicant or anemployee has refused a reassignment to a vacant position, or the agency reportsto OPM that it has successfully accommodated the medical condition in theemployee's current position. Placement consideration is limited only by agencyauthority and can occur after OPM's allowance of the application up to the dateof separation for disability retirement. The employing agency must notify OPMimmediately if any of these events occur.
(e) After OPM allows a disability retirement application and the employee isseparated, the application cannot be withdrawn. However, an individual entitledto a disability annuity may decline to accept all or any part of the annuityunder the waiver provisions of 5 U.S.C. 8345(d) or request to be found medicallyrecovered under § 831.1208(e) of this part.
(a) Each annuitant receiving disability annuity from the Fund shall beexamined under the direction of OPM at the end of 1 year from the date ofdisability retirement and annually thereafter until the annuitant becomes 60years of age unless the disability is found by OPM to be permanent in character.OPM may order a medical or other examination at any time to determine the factsrelative to the nature and degree of disability of the annuitant. Failure tosubmit to reexamination shall result in suspension of annuity.
(b) A disability annuitant may request medical reevaluation under theprovisions of this section at any time. OPM will reevaluate the medicalcondition of disability annuitants age 60 or over only on their own request.
(c) Recovery based on medical documentation. When an examination orreevaluation shows that a disability annuitant has medically recovered from thedisability, OPM will terminate the annuity effective on the first day of themonth beginning 1 year after the date of the medical examination showingrecovery.
(d) Recovery based on reemployment by the Federal Government. Reemployment byan agency at any time before age 60 is evidence of recovery if the reemploymentis in a permanent position at the same or higher grade or pay level as theposition from which the disability annuitant retired. The permanent positionmust be full-time unless the position the disability annuitant occupiedimmediately before retirement was less than full-time, in which case thepermanent position must have a work schedule of no less time than that of theposition from which the disability annuitant retired. In this instance, OPMneeds no medical documentation to find the annuitant recovered. Disabilityannuity payments will terminate effective on the first day of the monthfollowing the month in which the recovery finding is made under this paragraph.
(e) Recovery based on a voluntary request. OPM will honor a written andsigned statement of medical recovery voluntarily filed by a disability annuitantwhen the medical documentation on file does not demonstrate that the annuitantis mentally incompetent. OPM needs no other documentation to find the annuitantrecovered. Disability annuity payments will terminate effective on the first dayof the month beginning 1 year after the date of the statement. A disabilityannuitant can withdraw the statement only if the withdrawal is received by OPMbefore annuity payments terminate.
(f) When an agency reemploys a recovered disability annuitant at any grade orrate of pay within the 1-year
(a)
(b)
(i) The “date of application for disability retirement” is thedate the application is signed by the authorized official of the employingagency immediately before forwarding the application to OPM.
(ii) The “date of reasonable accommodation” is the date of theemploying agency's notice of reasonable accommodation to an employee's medicalcondition (as a result of its review of medical documentation) which results ina reduction in the rate of basic pay. The use of the date of reasonableaccommodation to establish the rate of basic pay for the position held atretirement is subject to the following conditions:
(A) The date of the employing agency's notice to provide accommodation is nomore than 1 year before the date the disability retirement application is signedby the authorized official in the employing agency immediately before forwardingit to OPM; and
(B) A complete record of the date of the personnel decision, the medicaldocumentation substantiating the existence of the medical condition, and thejustification for the accommodation is established in writing and included atthe time the agency submits the application for disability retirement. OPM willreview the record to determine whether the medical documentation demonstratesthat the medical condition existed at the time of the accommodation andwarranted the accommodation made.
(2) In the case of an annuitant whose basic pay rate on the date determinedunder paragraph (b)(1) of this section did not match a specific grade and stepin a pay schedule:
(i) For those retiring from a merit pay position, a position for which aspecial pay rate is authorized (except as provided in paragraph (b)(2)(ii) ofthis section), or any other position in which the rate of basic pay is not equalto a grade and step in a pay schedule, the grade and step will be establishedfor this purpose at the lowest step in the pay schedule grade that is equal toor greater than the actual rate of basic pay payable. This rule will not beapplied when the rate exceeds that of the schedule applicable to theorganization from which the individual retired, when there is no existingapposite schedule with grades and steps, or in other organizations which areexcluded from coverage of schedules with grades and steps, as in the case of paysystems using pay bands.
(ii) For those retiring with a retained rate of basic pay or from a positionfor which a special pay rate is in effect but whose rate of basic pay exceedsthe highest rate payable in the pay schedule grade applicable to the positionheld, the grade and step is established for this purpose in the grade in theschedule that is closest to the grade of the position held and within which theamount of the retained pay falls. The step is established for this purpose atthe lowest step in that grade which equals or exceeds the actual rate of paypayable.
(iii) When the pay system under which an annuitant retired has been eithermodified or eliminated since the individual retired, the individual will betreated as if he or she had been employed at their retirement grade and step atthe time of the system change, and will be deemed to have been placed under thenew system using whatever rules would have been applicable at that time. Thiswill only apply when a pay system has been abolished or modified, and not whenthe grade and step of a position has been modified subsequent to retirement byreclassification or other action, in which case the grade and step in effect atthe time of retirement will control.
(iv) If using the above rules it is not possible to set a grade and step forcomputing the current rate of pay, then if possible the current rate of pay willbe set using the relative position in the range of pay applicable to theposition from which the individual retired. For example, if at the time ofretirement the rate of pay was $75,000 in a range from $70,000 to $90,000, forall future determinations, the current rate of pay would be 25% up the new payrange from the bottom. If the new range was $96,000 to $120,000, then the newcurrent rate of pay would be $102,000 ($96,000 plus 0.25 times $24,000 ($120,000minus $96,000)).
(v) In those cases, such as of some former Congressional staff employees andothers whose pay is not set under a formal system, where none of the aboveguidelines will yield a current rate of pay, OPM will ascertain the current rateof pay after consultation with the former employing organization, or successororganization.
(3) For annuitants retiring from the United States Postal Service, only cost-of-living allowances subject to civil service retirement deductions are includedin determining the current rate of basic pay of the position held at retirement.
(c)
(1) There are two sources of income: wages and self-employment income. Allincome which is subject to Federal employment taxes (i.e., social security orMedicare taxes) or self-employment taxes constitutes earned income. In addition,any other income as described in this section also constitutes earned income.The determination of whether a disability annuitant earns wages as
(2) Income earned from one source is not offset by losses from anothersource. Income earned as wages is not reduced by a net loss from self-employment. The net income from each self-employment endeavor is calculatedseparately, and the income earned as net earnings from one self-employmentendeavor is not reduced by a net loss from another self-employment endeavor. Thenet incomes from each separate self-employment endeavor are added together todetermine the total amount of income from self-employment for a calendar year.
(3) Only income earned from personal work efforts or services is consideredin determining earning capacity. All forms of non-work-related unearned incomeare excluded. Paragraph (f) of this section includes a representative list ofthe types of unearned income that are not considered.
(4) Income earned in a calendar year may only be reduced by certain self-employment business expenses, as provided in paragraph (e) of this section; job-connected expenses incurred because of the disabling condition, as provided inparagraph (g) of this section; and the return from investment allowance, asprovided in paragraph (h) of this section. Once earned, income cannot be reducedby any other means. Thus, income cannot be lowered by such means as leave buy-back provisions, conversion of wages for paid time to leave without pay or asimilar non-paid status, reductions in wages attributable to cash shortages orproduct losses, etc.
(5) For determining annual income from wages or self-employment or both,income is earned in the calendar year the annuitant actually renders thepersonal work effort or service and either actually or constructively receivesthe remuneration, except as provided under paragraph (c)(7) of this section. Forthis purpose, income paid on a regular basis (i.e., on a weekly, bi-weekly,monthly or similar pay period basis) will be deemed earned in the year in whichpayment is made in the regular course of business.
(6) Deferred income is included as income in the calendar year in which it isconstructively received. Income is constructively received when it is credited,set apart, or otherwise made available so that the annuitant may draw upon it atany time, or could draw upon it during the calendar year if the annuitant hadgiven notice of the intent to do so. Deferred income includes all earnings,whether in the form of cash or property or applied to provide a benefit for theemployee, which are subject to the disability annuitant's designation orassignment. Usually, the earnings are set aside by a salary-reduction agreement,a deferred compensation arrangement, or the designation of specific earningsamounts towards the purchase of non-taxable employee fringe benefits. Thus, anyearnings for which the individual has the opportunity to adjust the amount ofincome received in a calendar year by controlling the remuneration ofvoluntarily giving up the right to control the remuneration, regardless ofwhether a written instrument exists, are income for earning capacity purposes.
(7) The Internal Revenue Code provides exceptions to the general rule onconstructive receipt for certain deferred compensation plans which, by theirdesign, defer receipt of income for Federal employment tax purposes as of thelater of when services are performed or when there is no substantial risk offorfeiture of the rights to such amount. Even though these special deferredcompensation plans defer the constructive receipt of the income for tax purposesto future years beyond the year in which the income is actually earned, theincome reflects earning capacity. Therefore, employer contributions and employeepayments to these special deferred compensation plans are considered income inthe calendar year in which the services are performed, even though the InternalRevenue Code may exclude these contributions and payments from income for taxpurposes.
(d)
(1) The name by which the remuneration for services is designated isimmaterial. Remuneration includes but is not limited to one-time orrecurring—
(i) Base salary or pay; tips; commissions; professional fees; honoraria;bonuses and gift certificates of any type; golden parachute payments; paymentsfor any non-work periods, such as vacation, holiday, or sick pay; pay advances;overtime pay; severance pay; dismissal pay; termination pay; and back pay;
(ii) Deferred income, within the meaning of paragraphs (c) (6) and (7) ofthis section, or other employer contributions or payments in an arrangement inwhich the employee has the opportunity (whether exercised or not) to adjustincome by recovering the contributions or payments during the calendar year inwhich earned, for general discretionary income purposes;
(iii) Non-cash wages or payment of in-kind benefits, such as shares of stockin the business, real or personal property, stock in trade, inventory items,goods, lodging, food, and clothing. The valuation for all non-cash wages orother in-kind benefits is determined in a manner consistent with the fair valuestandards that appear in the Social Security Administration's regulations at 20CFR 404.1041(d).
(2) Any amount offset or deducted under 5 U.S.C. 8344 is treated as wages ifthe annuity continues while the annuitant is reemployed by the FederalGovernment.
(3) As a general rule, remuneration as wages does not include anycontribution, payment, benefits furnished, or service provided by an employer inany of the following areas:
(i) The general retirement system established by the employer for itsemployees, usually either a qualified pension, profit-sharing, stock bonus plan,or a qualified annuity contract plan;
(ii) Medical or hospitalization health benefit plans;
(iii) Life insurance plans;
(iv) Sickness or accident disability pay beyond 6 months of illness, orworkers' compensation payments;
(v) The value of meals and lodgings provided at the convenience of theemployer;
(vi) Moving expenses;
(vii) Educational assistance programs;
(viii) Dependent care assistance programs;
(ix) Scholarships and fellowship grants;
(x) De minimis fringe benefits, such as items of merchandise given by theemployer at holidays which are not readily convertible into cash and courtesydiscounts on company products offered not as remuneration for services performedbut as a means of promoting good will;
(xi) Qualified group legal services plans;
(xii) Uniforms and tools supplied by the employer, including employer-provided allowances for such items, for the exclusive use by the employee on thejob; and
(xiii) Amounts that an employer pays the individual specifically, either asadvances or reimbursements, for traveling or other ordinary and necessaryexpenses incurred, or reasonably expected to be incurred in the employer'sbusiness.
(4) However, there are two exceptions to this general rule:
(i) When it is provided under circumstances in which either a salaryreduction or deferral agreement is used (whether evidenced by a writteninstrument or otherwise); or
(ii) When the employee had the opportunity (whether exercised or not) toelect to receive the cash value, whether in the form of money or personal orreal property, of the employer-provided amount or service.
(e)
(i) A sole proprietor of a business or farm;
(ii) A professional in one's own practice; or
(iii) A member of a partnership or corporation, as these terms are defined
(2) The term “net earnings” from self-employment in a businessenterprise means the gross revenue to the business endeavor from all sourcesbefore any other deductions or withholdings, minus
(i) Allowable business expenses, as provided in paragraph (e)(3) of thissection;
(ii) Any job-connected disability expenses, as provided in paragraph (g) ofthis section; and
(iii) Any return from investment allowance, as provided in paragraph (h) ofthis section.
(3) Certain expenses of a self-employed business entity may be offset fromthe gross revenue from all sources of that self-employed business in determiningthe amount of net earnings for a particular calendar year. Expenses which may bededucted are only those items and costs which are permitted by the InternalRevenue Code for income tax purposes as ordinary and necessary to the operationof the business. However, expenses incurred on behalf of the disabilityannuitant may not be deducted, regardless of whether they are permitted by theInternal Revenue Code. These expenses that are incurred but cannot be deductedinclude the costs for wages paid to the individual, interest earnings,guaranteed payments, dividends, employee benefits, pension plans, and salaryreduction or deferral plans. Also, self-employed disability annuitants may notdeduct the costs of other withdrawals or expenses which are not used solely forbusiness purposes. Examples of items that cannot be deducted if used at all forpersonal use by the self-employed disability annuitant include personal propertyitems, such as automobiles and boats; real property, such as vacation propertyor residences; and memberships, dues, or fees for professional associations orpublic or private organizations or clubs.
(4) Fees paid to an annuitant as a director of a corporation are a part ofnet earnings from self-employment.
(f)
(1) Investment income, such as interest or dividends from savings accounts,stocks, personal loans or home mortgages held, unless the disability annuitantreceives the return from capital investment in the course of his or her trade orbusiness;
(2) Capital gains from sales of real or personal property that the disabilityannuitant owns, unless received in the course of his or her trade or business:
(3) Rents or royalties, unless received in the course of his or her trade orbusiness;
(4) Distributions from pension plans, annuity plans, Individual RetirementAccounts (IRA's), Simplified Employee Benefit-IRA's (SEP-IRA's), KeoghAccounts, employee stock ownership plans, profit sharing plans, or deferredincome payments that are received by the annuitant in any year after thecalendar year in which the funds were contributed to the plan;
(5) Income earned before the commencing date of civil service retirementannuity payments;
(6) Scholarships or fellowships;
(7) Proceeds from life insurance, inheritances, estates, trusts, endowments,gifts, prizes, awards, gambling or lottery winnings, and amounts received incourt actions whether by verdict or settlement, unless received in the course oftheir trade or business;
(8) Unemployment compensation under State or Federal law, supplementalunemployment benefits, or workers' compensation:
(9) Alimony, child support, or separate maintenance payments received;
(10) Pay for jury duty; and
(11) Entitlement payments from other Federal agencies, such as benefits fromthe Social Security Administration or the Veterans Administration, RailroadRetirement System retirement pay, or military retirement pay.
(g)
(2) The determination of whether a job-connected expense may be deducted fromincome is governed by the following considerations:
(i) The expense must be directly attributable to the disability and must beone which would not have been incurred in the absence of the annuitant workingin his or her business or occupation. Expenses incurred for the preservation ofthe annuitant's health, alleviation of his or her physical or mental discomfort,or other expenses of an employed person cannot be deducted.
(ii) The disability must be of such severity that it requires the annuitantto use special means of transportation, services, or equipment to perform theduties of the occupation or business. Examples of such disabilities includeblindness, paraplegia, multiple sclerosis, and cerebral hemorrhage. Claimsinvolving transportation or equipment may be deducted only in the amountnormally allowed for business expenses or as depreciation by the InternalRevenue Service for Federal income tax purposes.
(iii) Claims involving services performed by a family member or otherindividual directly employed by the annuitant may be deducted only if a trueemployer-employee relationship exists between the annuitant and the employedindividual, and the amount claimed as an expense does not exceed the localmarket rate of payment to individuals who provide similar services. It is theresponsibility of the annuitant to provide evidence demonstrating that anemployer-employee relationship exists, and what the local market rate is forsuch services. For the purpose of this paragraph, to establish that a trueemployer-employee relationship exists, the annuitant must provide evidence thatall statutorily mandated employment requirements are met, including (but notlimited to) income tax withholdings, FICA tax deductions and payments, andunemployment insurance. If the annuitant fails to provide evidence of the localmarket rate for such services, payments may be deducted only if the amountclaimed does not exceed the Federal minimum hourly rate in effect on December 31of the calendar year in which claimed. Absent evidence that it is customary andregular practice in the local labor market to work more hours per week, paymentmay not be deducted for services provided by an individual in excess of 40 hoursa week.
(3) A job-connected expense can be deducted only in the calendar year inwhich paid.
(4) Claims for items used for both personal and job-related purposes may bededucted only by the prorated amount attributable to the job-related use.
(5) A job-connected expense may not be deducted from income from self-employment if the expense has already been deducted as a business expense.
(6) It is the responsibility of the annuitant claiming job-connected expenseto provide adequate documentation to substantiate the amount claimed. Adequatedocumentation will generally include the following information:
(i) Written recommendation of a physician, vocational rehabilitationspecialist, occupational health resource specialist, or other similarprofessional specialist that the retiree should use the transportation,services, or equipment;
(ii) A description of the item and an explanation of its use by the annuitantin the performance of his or her occupation or business;
(iii) A copy of the receipt of purchase, bill of sale, or leasing agreementfor the item claimed with the date, duration of the agreement, and agreed uponprice clearly specified;
(iv) A complete supporting explanation of how the amount claimed for the job-connected expense has been calculated; and
(v) An explanation of the circumstances and calculation of the prorated costof the item if used for both personal and business use.
(h)
(i)
(a) An individual is entitled to an immediate annuity when the disabilityannuity stops because of recovery or restoration to earning capacity if theindividual is not reemployed in a position subject to civil service retirementcoverage and—
(1) Is at least age 50 when the disability annuity stops and had 20 or moreyears of service at the time of retirement for disability; or
(2) Had 25 or more years of service at the time of retirement for disabilityregardless of age.
(b) An individual whose annuity stops because of recovery or restoration toearning capacity and who is not eligible for an immediate annuity underparagraph (a) of this section, is eligible for a deferred annuity upon reachingage 62.
(c) The disability annuity of an individual whose annuity stopped because ofrecovery or restoration to earning capacity may be reinstated under§ 831.1212 of this part.
(a) When a disability annuity stops, the individual must again prove that heor she meets the eligibility requirements in order to have the annuityreinstated.
(b) When a recovered disability annuitant under age 62 whose annuity wasterminated because he or she was found recovered on the basis of medicalevidence (§ 831.1208(b)), is not reemployed in a position subject tocivil service retirement coverage, and, based on the results of a currentmedical examination, OPM finds that the individual's medical condition hasworsened since the finding of recovery and that the original disability on whichretirement was based has recurred, OPM will reinstate the disability annuity.The right to the reinstated annuity begins with the date of the medicalexamination showing that the disability recurred.
(c) OPM will reinstate the disability annuity of a recovered disabilityannuitant under age 62 whose annuity was terminated because he or she was foundrecovered on the basis of Federal reemployment (§ 831.1208(c))when—
(1) The results of a current medical examination show that the disablingmedical condition that was the basis of the disability retirement continues toexist; and
(2) Within 1 year after the date of reemployment, this medical condition hasagain caused the individual to be unable to provide useful and efficientservice, and the employee has been—
(i) Separated and not reemployed in a position subject to civil serviceretirement coverage; or
(ii) Placed in a position that results in a reduction in grade or pay belowthe grade from which the individual retired, or in a change to a non-permanentposition. The right to the reinstated annuity begins with the date of themedical examination showing that the disabling medical condition continues toexist, but not earlier than the first day after separation, or the effectivedate of the placement in the position which results in a reduction in grade orpay or change to a non-permanent position.
(d) When a recovered disability annuitant under age 62 whose annuity wasterminated because he or she was found recovered on the basis of a voluntaryrequest (§ 831.1208(e)), is not reemployed in a position subject tocivil service retirement coverage, and, based on the results of a currentmedical examination, OPM finds that the disability has recurred, OPM willreinstate the disability annuity. The right to the reinstated annuity beginswith the date of
(e) When a disability annuitant whose earning capacity has been restored butwho is not reemployed in a position in which he or she is subject to civilservice retirement coverage, and who (except in the case of a National Guardtechnician whose annuity was awarded under 5 U.S.C. 8337(h)), has not recoveredfrom the disability for which retired, loses his or her earning capacity, asdetermined by OPM, before reaching age 62, OPM will reinstate the disabilityannuity. The reinstated annuity is payable from January 1 of the year followingthe calendar year in which earning capacity was lost. Earning capacity is lostif, during any calendar year, the individual's income from wages or self-employment or both is less than 80 percent of the current rate of basic pay ofthe position held at retirement.
(f) A reinstated annuity is the same type as the original annuity and is paidat the rate of annuity to which the annuitant was entitled on the date his orher disability annuity was last discontinued.
(g) Reinstatement of the disability annuity ends the right to any otherannuity based on the same service, unless the annuitant makes a written electionto receive the other annuity instead of the disability annuity.
(h) When OPM reinstates an employee's disability annuity, the agency mustoffset the employee's pay by the amount of annuity allocable to the period ofemployment, unless the annuitant is exempted from this requirement under theprovisions of 5 U.S.C. 8344(i). The offset begins on the date of OPM'sdetermination of eligibility for reinstatement. OPM must reduce any retroactivepayment of annuity for a period of employment with an agency before that date bythe amount of pay earned during that period.
(i) When an individual's annuity is terminated upon reemployment (subject tosubchapter III of chapter 83, title 5, United States Code), OPM must determinethe individual's future annuity rights under the law in effect at the date ofhis or her subsequent separation. If, upon separation from such reemployment,the individual does not meet the eligibility requirements under subchapter IIIof chapter 83, title 5, United States Code, for title to annuity based on suchseparation, OPM will resume payment of the terminated annuity at the rate lastpayable, unless payment is otherwise barred.
The right to administrative review of an initial decision of OPM is set forthin § 831.109 of this part. The right to appeal a final decision ofOPM to the Merit Systems Protection Board is set forth in § 831.110of this part.
50 FR 34664, Aug. 27, 1985, unless otherwise noted.
This subpart prescribes procedures to be followed by the Office of PersonnelManagement (OPM) , which are consistent with the Federal Claims CollectionStandards (FCCS) (Chapter II of title 4, Code of Federal Regulations), in thecollection of debts owed to the Civil Service Retirement and Disability Fund.
This subpart covers the collection of debts due the Civil Service Retirementand Disability Fund, with the exception of the collection of court-imposedjudgments, amounts referred to the Department of Justice because of fraud, andamounts collected from back pay awards in accordance with§ 550.805(e)(2) of this chapter.
In this subpart—
(1) Proper application of law and regulation; and
(2) Correctness of the mathematical computation.
(a)
(1) The reason for and the amount of the debt;
(2) The date on which the full payment is due;
(3) OPM's policy on interest, penalties, and administrative charges;
(4) If payment in full would create financial hardship to the debtor andoffset is available, the types of payment(s) to be offset, the repaymentschedule, the right to request an adjustment in the repayment schedule and theright to request a voluntary repayment agreement in lieu of offset;
(5) The individual's right to inspect and/or receive a copy of theGovernment's records relating to the debt;
(6) The method and time period (30 calendar days) for requestingreconsideration, waiver, and/or compromise and, in the case of offset, anadjustment to the repayment schedule;
(7) The standards used by OPM for determining entitlement to waiver andcompromise;
(8) The right to a hearing by the Merit Systems Protection Board on a waiverrequest (if OPM's waiver decision finds the individual liable) in accordancewith paragraph (c)(2) of this section; and
(9) The fact that a timely filing of a request for reconsideration, waiverand/or compromise, or a later timely appeal of a waiver denial to the MeritSystems Protection Board, will stop collection proceedings, unless (i) failureto take the offset would substantially prejudice the Government's ability tocollect the debt; and (ii) the time before the payment is to be made does notreasonably permit the completion of these procedures.
(b)
(2) When a request for reconsideration, waiver, and/or compromise covered bythis paragarph is properly filed before the death of the debtor, it will beprocessed to completion unless the relief sought is nullified by the debtor'sdeath.
(3) Individuals requesting reconsideration, waiver, and/or compromise will begiven a full opportunity to present any pertinent information and documentationsupporting their position.
(4) An individual's request for waiver will be evaluated on the basis of thestandards set forth in subpart N of this part. An individual's request forcompromise will be evaluated on the basis of standards set forth in the FCCS (4CFR part 103).
(c)
(2) After consideration of all pertinent information, a written decision willbe issued. The decision will state the extent of the individual's liability,and, for waiver and compromise requests, whether the debt will be waived orcompromised. If the individual is determined to be liable for all or a portionof the debt, the decision will reaffirm or modify the conditions for thecollection previously proposed under paragraph (a) of this section. The decisionwill state the individual's right to appeal to the Merit Systems ProtectionBoard as provided by § 1201.3 of this title, and, in the case of adenial of waiver, that a timely appeal will stop collection of the debt.
(a)
(b)
(1) Collection would be against equity and good conscience under thestandards prescribed in §§ 831.1403 through 831.1405 of thispart; or
(2) Waiver would be in the best interest of the United States.
(c)
(d)
(2) The procedures identified in § 831.1304 will not be appliedwhen the debt is caused by (i) a retroactive adjustment in the periodic rate ofannuity or any deduction taken from annuity when the adjustment is a result ofthe annuitant's election of different entitlements under law, if the adjustmentis made within 120 days of the effective date of the election; or (ii) interim,estimated payments made before the formal determination of entitlement toannuity, if the amount is recouped from the total annuity payable on the firstday of the month following the last advance payment or the date the
(a)
(b)
(ii) In determining whether to collect claims by means of administrativeoffset after the expiration of the six year limitation provided in 5 U.S.C.2415, the Director or his designee will determine the cost effectiveness ofleaving a claim unresolved for more than 6 years. This decision will be based onsuch factors as the amount of the debt; the cost of collection; and thelikelihood of recovering the debt.
(2)
(a)
(1) The payment is overdue;
(2) OPM intends, after 60 days, to make a report as described in paragraph(b) of this section to a consumer reporting agency;
(3) The debtor's right to dispute the liability has been exhausted under§ 831.1304; and
(4) The debtor may suspend OPM action on referral by paying the debt in onelump sum or making payments current under a repayment schedule.
(b)
(1) The individual's name, address, taxpayer identification number, and anyother information necessary to establish the identity of the individual;
(2) The amount, status, and history of the debt; and
(3) The fact that the debt arose in connection with the administration of theCivil Service Retirement System.
(c)
(a) OPM may refer certain debts to commercial collection agencies under thefollowing conditions:
(1) All processing required by § 831.1304 has been completedbefore the debt is released.
(2) A contract for collection services has been negotiated.
(3) OPM retains the responsibility for resolving disputes, compromisingclaims, referring the debt for litigation, or suspending or terminatingcollection action.
From time to time and in a manner consistent with the General AccountingOffice's and the Justice Department's instructions, OPM will refer certainoverpayments to the Justice Department for litigation. Referral for litigationwill suspend processing under this subpart.
45 FR 23635, Apr. 8, 1980, unless otherwise noted.
Recovery of an overpayment from the Civil Service Retirement and DisabilityFund may be waived pursuant to section 8346(b), of title 5, United States Code,when the annuitant (a) is without fault and (b) recovery would be against equityand good conscience. Where it has been determined that the recipient of anoverpayment is ineligible for waiver, the individual is nevertheless entitled toan adjustment in the recovery schedule if he/she shows that it would causehim/her financial hardship to make payment at the rate scheduled.
A recipient of an overpayment is without fault if he/she performed no act ofcommission or omission which resulted in the overpayment. The fact that theOffice of Personnel Management may have been at fault in initiating anoverpayment will not necessarily relieve the individual from liability.
(a)
(1) Whether payment resulted from the individual's incorrect but notnecessarily fraudulent statement, which he/she should have known to beincorrect;
(2) Whether payment resulted from the individual's failure to disclosematerial facts in his/her possession which he/she should have known to bematerial; or
(3) Whether he/she accepted a payment which he/she knew or should have knownto be erroneous.
(b)
(a)
(1) It would cause financial hardship to the person from whom it is sought;
(2) The recipient of the overpayment can show (regardless of his or herfinancial circumstances) that due to the notice that such payment would be madeor because of the incorrect payment either he/she has relinquished a valuableright or changed positions for the worse; or
(3) Recovery could be unconscionable under the circumstances.
Financial hardship may be deemed to exist in—but not limitedto—those situations where the annuitant from whom collection is soughtneeds substantially all of his/her current income and liquid assets to meetcurrent ordinary and necessary living expenses and liabilities.
(a)
(1) The individual's financial ability to pay
(2) Income to other family member(s), if such member's ordinary and necessaryliving expenses are included in expenses reported by the annuitant.
(b)
An individual's ordinary and necessary living expenses include rent, mortgagepayments, utilities, maintenance, food, clothing, insurance (life, health andaccident), taxes, installment payments, medical expenses, support expenses whenthe annuitant is legally responsible, and other miscellaneous expenses which theindividual can establish as being ordinary and necessary.
(a)
(1) The overpayment was obtained by fraud; or
(2) The overpayment was made to an estate.
(a)
(b)
42 FR 52373, Sept. 30, 1977; 42 FR 61240, Dec. 2, 1977,unless otherwise noted.
(a)
(b)
(c)
(d)
(a) An annuitant may make an allotment to the national office or headquartersof any of the following organizations:
(1) A labor organization recognized under Executive Order 11491, as amended;
(2) An employee organization recognized under 5 U.S.C. 8901(8);
(3) Other lawful organizations which:
(i) Are national in scope,
(ii) Are nonprofit and noncommercial, existing primarily for the purpose ofrepresenting employee or annuitant interests in their dealings with employingagencies or OPM,
(iii) Consist primarily of Federal employees and/or annuitants, and
(iv) Existed as of December 23, 1975.
(b) OPM, in its sole discretion, may approve the individual organizationswhich may receive allotments only after the organization has collected, inaccordance with procedures prescribed by OPM, a minimum of two thousand (2,000)allotment authorizations from civil service annuitants.
(c) OPM shall permit an annuitant to make an allotment to an organizationonly when:
(1) The organization has been approved as an allottee by OPM, and
(2) The organization has agreed in writing to solicit and process allotmentsin accordance with requirements prescribed by OPM.
(a) The amount of any allotment may not be less than one dollar ($1) and, inthe absence of compelling circumstances, shall be in whole dollars.
(b) The total amount of any allotment(s) may not exceed the net monthlyannuity due the allotter.
(c) An annuitant may make only one allotment payable to the same allottee atthe same time and may make no more than a total of two allotments.
(d) Payment of an allotment shall be discontinued when the allotter's annuitypayments are terminated or suspended by OPM.
(e) Allotments shall be disbursed on one of the regularly designated paydaysof the allotter in accordance with OPM's agreement with the allottee.
(f) Allotters shall agree that OPM shall be held harmless for any authorizedallotment request made by an allottee in accordance with the allottee'sagreement with OPM.
(g) Allotters shall agree that disputes regarding any authorized allotmentshall be a matter between the allotter and the allottee.
(h) The total number of allottees shall be limited to twenty (20), with firstpreference given to those organizations participating in the Federal EmployeesHealth Benefits Program. Thereafter, preference shall be based on the date ofapplication and the number of annuitants who have completed allotmentauthorizations.
(i) OPM, in its discretion, shall recover from the allottee, the incrementalcosts of making allotments.
(j) OPM, in its sole discretion, may terminate an allottee's participation inthe allotment program described by this subpart at any time in accordance withits agreement with the allottee.
51 FR 45443, Dec. 19, 1986, unless otherwise noted.
This subpart prescribes the procedures to be followed by a Federal agencywhen it requests the Office of Personnel Management (OPM) to recover a debt owedto the United States by administrative offset against money due and payable tothe debtor from the Civil Service Retirement and Disability Fund (the Fund).This subpart also prescribes the procedures that OPM must follow to make theseadministrative offsets.
This subpart applies to agencies, employees, and Members, as defined by§ 831.1803.
For purposes of this subpart, terms are defined as follows—
An agency may request that money payable from the Fund be offset to recoverany valid debt due the United States when all of the following conditions aremet:
(a) The debtor failed to pay all of the debt on demand, or the creditoragency has collected as much as possible from payments due the debtor from thepaying agency; and
(b) The creditor agency sends a debt claim to OPM (under§ 831.1805(b) (1), (2), (3), or (4), as appropriate) after doing oneof the following:
(1) Obtaining a court judgment for the amount of the debt;
(2) Following the procedures required by 31 U.S.C. 3716 and 4 CFR 102.4;
(3) Following the procedures required by 5 U.S.C. 5514 and§ 550.1107 of this title; or
(4) Following the procedures agreed upon by the creditor agency and OPM, ifit is excepted by § 831.1805(b)(4) from the completion of proceduresprescribed by § 831.1805(b)(3).
(a)
(ii) If some of the debt is unpaid after the debtor separates from the payingagency, the creditor agency should send the debt claim to OPM as described inparagraph (b) of this section.
(2)
(b)
(2)
(i) Notify the debtor that the claim is being sent to OPM to completecollection from the Fund; and
(ii) Send the debt claim (on SF 2805) to OPM with two copies of the payingagency's certification of the amount
(3)
(A) Comply with the procedures required by 4 CFR 102.4—issuing writtennotice to the debtor of the nature and amount of the debt, the agency'sintention to collect by offset, the opportunity to inspect and copy agencyrecords pertaining to the debt, the opportunity to obtain review within theagency of the determination of indebtedness, and the opportunity to enter into awritten agreement with the agency to repay the debt; and
(B) Complete the appropriate debt claim.
(ii) If the debtor does not respond to the creditor agency's notice withinthe allotted time and there is no reason to believe that he or she did notreceive the notice, the creditor agency may submit the debt claim to OPM aftercertifying that notice was issued and the debtor failed to reply.
(iii) If the debtor responds to the notice by requesting a review (or hearingif one is available), the review (or hearing) must be completed before thecreditor agency submits the debt claim.
(iv) If the debtor receives the notice and responds by consenting to thecollection, the creditor agency must send a copy of the debtor's consent alongwith the debt claim.
(4)
(i) Debts due because of the individual's failure to pay health benefitspremiums while he or she was in nonpay status or while his or her salary was notsufficient to cover the cost of premiums;
(ii) Unpaid Federal taxes to be collected by Internal Revenue Service levy;
(iii) Premiums due because of the annuitant's election of Part B, Medicarecoverage (retroactive collection limited to 6 months of premiums); or
(iv) Overpaid military retired pay an annuitant elects in writing to havewithheld from his or her annuity.
(5)
(i) That the debt is owed to the United States;
(ii) The amount and reason for the debt and whether additional interestaccrues;
(iii) The date the Government's right to collect the debt first accrued;
(iv) The agency has complied with the applicable statutes, regulations, andOPM procedures;
(v) That if a competent administrative or judicial authority issues an orderdirecting OPM to pay a debtor an amount previously paid to the agency(regardless of the reasons behind the order), the agency will reimburse OPM orpay the debtor directly within 15 days of the date of the order (NOTE: OPM may,at its discretion, decline to collect other debt claims sent by an agency thatdoes not abide by this certification.);
(vi) If the collection will be in installments, the amount or percentage ofnet annuity in each installment; and,
(vii) If the debtor does not (in writing) consent to the offset, or does not(in writing) acknowledge receipt of the required notices and procedures, or thecreditor agency does not document a judgment offset or a previous salary offset,the action(s) taken to comply with 4 CFR 102.3, including any required hearingor review, and the date(s) the action(s) was taken.
(6)
(i) The notice to OPM must include a statement that the debt is owed to theUnited States, the date the debt first accrued, and the basis for and amount ofthe debt, if known. If the amount of the debt is not known, the agency mustestablish the amount and notify OPM
(ii) The creditor agency may either notify OPM by making a notation in column8 [Remarks] under “Fiscal Record” on the Standard Form 2806(Individual Retirement Record), if the SF 2806 is in its possession, or if not,by submitting a separate document identifying the debtor by name, giving his orher date of birth, social security number, and date of separation, if known.
(c)
(2)
(a)
(2) During the period allotted the creditor agency for sending OPM a completedebt claim, OPM will handle the debtor's application for refund under section8342(a) of title 5, United States Code, in one of two ways:
(i) If the amount of the debt is known, OPM will notify the debtor of thedebt claim against his or her lump-sum credit, withhold the amount of the debt,and pay the balance to the debtor, if any.
(ii) If the amount of the debt is not known, OPM will not pay any amount tothe debtor until the creditor agency certifies the amount of the debt, submits acomplete debt claim, or the time limit for submission of the debt claim expires,whichever comes first.
(b)
(ii) If a refund is payable, and the creditor agency submits a complete debtclaim in accordance with § 831.1805(b) (1), (2), (3), or (4), thedebt will be collected from the refund and any balance paid to the debtor. OPMwill send the debtor a copy of the debt claim, judgment, consent, or otherdocument, and notify him or her that the creditor agency was paid.
(2)
(3)
(ii) If OPM receives an application for refund within 1 year of the date theagency's debt claim was received and the creditor agency indicates that interestaccrues on the debt, when necessary, OPM will contact the creditor agency toconfirm that the debt is outstanding and request submission in writing, of thetotal additional accrued interest. OPM will not make interest computations forcreditor agencies.
(iii) When OPM receives an application for refund more than 1 year after thecreditor agency's debt claim was received, whether interest accrues or not, OPMwill contact the creditor agency to see if the debt is still outstanding and,when necessary, request an update of the interest charges. If the debt is stilldue, the creditor agency must give the debtor an opportunity to establish thathis or her changed financial circumstances, if any, would make the offsetunjust. (See 4 CFR 102.4(c).) If the creditor agency determines that offset asrequested in the debt claim would be unjust because of the debtor's changedfinancial circumstances, the agency should permit the debtor to offer asatisfactory repayment plan in lieu of offset. If the agency decides to pursuethe offset, it must submit to OPM the requested information and any newinstructions within 60 days of the date of OPM's request or the claim may bevoided and the balance paid to the individual.
(c)
(d)
(ii)
(iii)
(2)
(ii) If OPM receives an application for annuity more than 1 year after theagency's debt claim was submitted, OPM will contact the creditor agency to seeif the debt is still outstanding. If the debt is still due, the creditor agencyshould permit the debtor to offer a satisfactory repayment plan in lieu ofoffset if the debtor establishes that his or her changed financial circumstanceswould make the offset unjust. (See 4
(3)
(1) The merits of a creditor agency's decision with regard toreconsideration, compromise, or waiver; or
(2) The creditor agency's decision that a hearing was not required in anyparticular proceeding.
(a) When possible, OPM will collect a creditor agency's full claim in onepayment from the debtor's refund or annuity.
(b) If collection must be made from an annuity and the debt is large, thecreditor agency must generally accept payment in installments. Theresponsibility for establishing and notifying the debtor of the amount of theinstallments belongs to the creditor agency (see § 831.1805(b)(5)).However, OPM will not make an installment deduction for more than 50 percent ofnet annuity, unless a higher percentage is needed to satisfy a judgment againsta debtor within 3 years or the annuitant has consented to the higher amount inwriting. All correspondence concerning installment deductions received by OPMwill be referred to the creditor agency for consideration.
When an agency sends a claim indicating fraud, presentation of a false claim,misrepresentation by the debtor or any other party interested in the claim, orany claim based in whole or part on conduct violating the antitrust laws, to theDepartment of Justice (Justice) for possible treatment as a fraud claim (4 CFR101.3), the following special procedures apply.
(a)
(b)
(i) The name, date of birth, and social security number of the debtor;
(ii) The amount of the possible fraud claim, if known;
(iii) The basis of the possible fraud claim; and
(iv) A statement that the claim is being considered as a possible fraudclaim, the collection of which is reserved to Justice.
(2) When there is a pending refund application, the Attorney General ordesignee must file a complaint seeking a judgment on the claim and send a copyof the complaint to OPM; or as provided in 4 CFR 101.3, refer the claim to theagency where the claim arose and submit a copy of the referral to OPM within 180days of the date of either notice from the agency that a claim is pending withJustice (paragraph (a) of this section) or notice from Justice that it hasreceived a possible fraud claim (paragraph (b)(1) of this section) whichever isearlier. When the claim is referred to the agency where it arose, the agencymust begin administrative collection action under 4 CFR 102.4 and send acomplete debt claim to OPM as required in § 831.1805.
(c)
(2) If the Attorney General files a complaint and notifies OPM within theapplicable 180-day period, OPM will continue to withhold payment of the lump-sumcredit until there is a final judgment.
(3) If the Attorney General refers the claim to the agency where the claimarose (creditor agency) and notifies OPM within the applicable 180-day period,OPM will notify the creditor agency that the procedures in this subpart and 4CFR 102.4 must be completed; and a debt claim must be sent to OPM within 120days of the date of OPM's notice to the creditor agency. At the request of thecreditor agency, one extension of time of not more than 60 days will be granted,as provided by § 831.1806(a).
(4) If OPM is not notified that a complaint has been filed or that the claimhas been referred to the creditor agency within the applicable 180-day period,OPM will pay the balance of the refund to the debtor.
(d)
(e)
(2) If the suit or the administrative proceeding results in a judgment forthe debtor without establishing a debt to the United States, OPM will pay thebalance of the refund to the debtor upon receipt of a certified copy of thejudgment or administrative decision.
47 FR 50679, Nov. 9, 1982, unless otherwise noted.
For the purpose of this subpart:
OPM will enter into an agreement with any State within 120 days of anapplication for agreement from the proper State official. The terms of thestandard agreement will be §§ 831.1903 through 831.1906 of thissubpart. OPM and the State may agree to additional terms and provisions, insofaras those additional terms and provisions do not contradict or otherwise limitthe terms of the standard agreement.
OPM will, in performance of this agreement:
(a) Process the magnetic tape containing State tax transactions against theannuity roll once a month at the time monthly recurring payments are preparedfor the United States Treasury Department. Errors that are identified will notbe processed into the file, and will be identified and returned to the State forresolution via the monthly error report. Collections of State income tax willcontinue in effect until the State requesting the initial action supplies eithera valid revocation or change. The magnetic tape must be received 35 days priorto the date of the check in which the transactions are to be effective. Forexample, withholding transactions for the July 1 check must be received 5 daysprior to June 1. If the magnetic tape submitted by the State cannot be read, OPMwill notify the State of this fact, and if a satisfactory replacement can besupplied in time for monthly processing, it will be processed.
(b) Deduct from the regular, recurring annuity payments of an annuitant theamount he or she has so requested to be withheld, provided that:
(1) The amount of the request is an even dollar amount, not less than FiveDollars nor more than the net recurring amount. The State may set any evendollar amount above Five Dollars as a minimum withholding amount.
(2) The annuitant has not designated more than one other State forwithholding purposes within the calendar year. The State can set any limit onthe number of changes an annuitant may make in the amount to be withheld.
(c) Retain the amounts withheld in the Fund until payment is due.
(d) Pay the net withholding to the State on the last day of the first monthfollowing each calendar quarter.
(e) Make the following reports:
(1) A monthly report which will include all the State tax withholdings,cancellations and adjustments for the month, and also each request OPM was notable to process, with an explanation, in coded format, of the reason forrejection.
(2) A quarterly report which will include State, State address, quarterlywithholdings, quarterly cancellations and adjustments, quarterly netwithholdings and year-to-date amounts. Where cancelled or adjusted payments weremade in a previous year, OPM shall append a listing of the cancelled or adjustedpayments which shows the date and amount of each cancelled or adjusted taxwithholding, and the name and Social Security identification number of theannuitant from whom it was withheld. If either party terminates the agreementand the amount of cancelled or adjusted deductions exceeds the amount withheldfor the final quarter, then the quarterly report shall show the amount to
(3) An annual summary report which contains the name, Social Securityidentification number, and total amount withheld from non-cancelled paymentsduring the previous calendar year, for each annuitant who requested taxwithholding payable to the State. In the event the annuitant had State incometax withholding in effect for more than one State in that calendar year, thereport will show only the amount withheld for the State receiving the report.
(4) An annual report to each annuitant for whom State income taxes werewithheld giving the amount of withholding paid to the State during the calendaryear.
The State will, in performance of this agreement:
(a) Accept requests and revocations from annuitants who have designated thatState income tax deductions will go to the State.
(b) Convert these requests on a monthly basis to a machine-readable magnetictape using specifications received from OPM, and forward that tape to OPM forprocessing.
(c) Inform annuitants whose tax requests are rejected by OPM that the requestwas so rejected and of the reason why it was so rejected.
(d) Recognize that, to the extent not prohibited by State laws, recordsmaintained by the State relating to this program are considered jointlymaintained by OPM and are subject to the Privacy Act of 1974 (5 U.S.C. 552a).Accordingly, the States will maintain such records in accordance with thatstatute and OPM's implementing regulations at 5 CFR part 297.
(e) Respond to requests of annuitants for information and advice in regard toState income tax withholding.
(f) Credit the amounts withheld from civil service annuities to the State taxliability of the respective annuitants, and, subject to applicable provisions ofState law to the contrary, refund any balance over and above that liability tothe annuitant, unless he or she should request otherwise.
(g) Surrender all tax withholding requests to OPM when this agreement isterminated or when the documents are not otherwise needed for this State taxwithholding program.
(h) Allow OPM, the Comptroller General or any of their duly authorizedrepresentatives access to, and the right to examine, all records, books, papersor documents related to the processing of requests for State income taxwithholding from civil service annuities.
These additional provisions are also binding on the State and OPM:
(a) A request or revocation is effective when processed by OPM. OPM willprocess each request by the first day of the second month following the month inwhich it is received, but incurs no liability or indebtedness by its failure todo so.
(b) Any amount deducted from an annuity payment and paid to the State as aresult of a request is deemed properly paid, unless the annuity payment itselfis cancelled.
(c) OPM will provide the State with the information necessary to properlyprocess a request for State income tax withholding.
(d) If the State is paid withholding which is contrary to the terms of theannuitant's request, the State is liable to the annuitant for the amountimproperly withheld, and subject to account verification from OPM, agrees to paythat amount to the annuitant on demand.
(e) In the case of a disputed amount in any of the reports described andauthorized by this agreement, the Associate Director for Compensation of OPMwill issue an accounting. If the State finds this accounting unacceptable, itmay then and only then pursue such remedies as are otherwise available.
(f) If a State receives an overpayment of monies properly belonging to theFund, OPM will offset the overpayment from a future payment due the State. Ifthere are no further payments due the State, OPM will inform the State inwriting of the amount due. Within 60 days of the date of receipt of thatcommunication the State will make payment of the amount due.
This agreement may be modified or terminated in the following manner:
(a) Either party may suggest a modification of non-regulatory provisions ofthe agreement in writing to the other party. The other party must accept orreject the modification within 60 calendar days of the date of the suggestion.
(b) The agreement may be terminated by either party on 60 calendar dayswritten notice.
(c) OPM may modify this agreement unilaterally through the rule makingprocess described in sections 553, 1103, 1105 of title 5, United States Code.
50 FR 20081, May 13, 1985, unless otherwise noted.
Except as provided in §§ 831.2007 through 2009 or in section3716 of title 31, United States Code, on administrative offset for governmentclaims, a former employee or Member who has been separated from a coveredposition for at least 31 days at the time of filing an application for refundand who is ineligible for an annuity commencing within 31 days after the date offiling an application for refund is eligible for a refund for the total lump-sumcredit to his or her credit in the Retirement Fund.
(a) If there is no survivor who is entitled to monthly survivor annuitybenefits on the death of a former employee, Member, annuitant, or survivorannuitant, the total lump-sum credit to the former employee's or Member's creditin the Retirement Fund is payable, except as provided in section 3716 of title31, United States Code, on administrative offset for government claims, to theperson(s) entitled in the normal order of precedence described in section8342(c) of title 5, United States Code. If a deceased employee, separatedemployee, retiree or Member provided in a valid designation of beneficiary thatthe lump sum proceeds shall be payable to the deceased's estate, or to theExecutor, Administrator, or other representative of the deceased's estate, or ifthe proceeds would otherwise be properly payable to the duly appointedrepresentative of the deceased's estate under the order of precedence specifiedin 5 U.S.C. 8342(c), payment of the proceeds to the duly appointedrepresentative of the deceased's estate will bar recovery by any other person.
(b) If an annuity is payable, the former employee, Member or the personentitled in the order of precedence described in section 8342(c) of title 5,United States Code, may be paid, except as provided in section 3716 of title 31,United States Code, administrative offset for government claims, lump-sumpayment of—
(1) Retirement deductions withheld from the employee's or Member's pay afterhe or she became eligible for the maximum annuity, if the employee or Memberdoes not elect to treat those deductions as voluntary contributions toward thepurchase of an additional annuity; and
(2) Retirement deductions withheld from the employee's or Member's pay duringhis or her final period of service if the employee or Member was not subject tothe retirement system for at least one of the last 2 years before finalseparation from service and if the service covered by the deductions is not usedfor title to annuity; and
(3) Except as provided in paragraph (d) of this section, partial redepositsof refunds previously paid; and
(4) Partial deposits for civilian service performed on and after October 1,1982; and
(5) Partial deposits for post-1956 military service; and
(6) Annuity accrued and unpaid.
(c) A former employee, Member, or survivor who is eligible for an annuity maynot be paid a lump-sum payment of—
(1) Partial or completed deposits for nondeduction civilian service performedbefore October 1, 1982, unless the service covered by the deposit is notcreditable under the retirement system; or
(2) Completed deposits for nondeduction civilian service performed on andafter October 1, 1982, unless the service covered by the deposit is notcreditable under the retirement system; or
(3) Completed deposits for post-1956 military services, unless the servicecovered by the deposit is not creditable under the retirement system.
(d) A former employee or Member who is eligible for a nondisability annuitymay not be paid a lump-sum payment of a partial redeposit for refundeddeductions relating to a period of service that ended before October 1, 1990.
If applicable, the amount of a refund will include interest computed asdescribed in § 831.105(b).
(a) The Designation of Beneficiary must be in writing, signed, andwitnessed,and received in OPM before the death of the designator.
(b) No change or cancellation of beneficiary in a last will or testament, orin any other document not witnessed and filed as required by this section, hasany force or effect.
(c) A witness to a Designation of Beneficiary is ineligible to receivepayment as a beneficiary.
(d) Any person, firm, corporation, or legal entity may be named asbeneficiary.
(e) A change of beneficiary may be made at any time and without the knowledgeor consent of the previous beneficiary, and this right cannot be waived orrestricted.
When a deceased employee, Member, or annuitant has not named a beneficiaryand one of the next of kin entitled makes a claim for lump-sum benefit, othernext of kin entitled to share in the lump-sum benefit may designate the one whomade the claim to act as their agent to receive their distributive shares.
(a) Payment of the lump-sum credit based on a refund application filed on orafter May 7, 1985, may be made only if any current spouse and any former spouse(from whom the employee or Member was divorced after May 6, 1985)
(b)(1) Notification of the former spouse will not be required if the marriageto the former spouse was of less than 9 months duration or if the employee hasnot completed a total of 18 months of creditable service covered under theretirement system.
(2) Applicants for payment of the lump-sum credit must certify on a formprescribed by OPM whether the applicant has a current or former spouse subjectto the notification requirement.
(c) Proof of notification will consist of a signed and witnessed Statement bythe current and/or former spouse on a form provided by OPM acknowledging that heor she has been informed of the former employee's or Member's application forrefund and the consequences of the refund on the current or former spouse'spossible annuity entitlement. This Statement must be presented to the employingagency or OPM when filing the Application for Refund of Retirement Deductions.
(d) If the current and/or former spouse refuses to acknowledge thenotification or the employee or Member is otherwise unable to obtain theacknowledgement, the employee or Member must submit—
(1) Affidavits signed by two individuals who witnessed the employee's orMember's attempt to personally notify the current or former spouse. Thewitnesses must attest that they were in the presence of the employee or Memberand the current or former spouse when the employee or Member gave or attemptedto give the notification form to the current or former spouse and that theemployee's or Member's purpose should have been clear to the current or formerspouse; or
(2) The current mailing address of the current or former spouse. OPM willattempt to notify (by certified mail—return receipt requested) the currentor former spouse at the address provided by the employee or Member. Except asprovided in paragraph (e) of this section, the lump-sum credit will not be paiduntil at least 20 days after OPM receives the signed return receipt.
(e) If an OPM notice sent under paragraph (d)(2) of this section is returnedand OPM has no reason to believe that the current or former spouse does not liveat the address to which the notice was sent, OPM will re-mail the notice byfirst class mail and wait at least 20 days after the notice has been re-mailedbefore paying the refund.
The current and/or former spouse notification requirement will be waived upona showing that the current and/or former spouse's whereabouts cannot bedetermined. A request for waiver on this basis must be accompanied by—
(a) A judicial or administrative determination that the current and/or formerspouse's whereabouts cannot be determined; or
(b) Affidavits by the former employee or Member and two other persons atleast one of whom is not related to the former employee or Member attesting tothe inability to locate the current and/or former spouse and stating the effortsmade to locate the current and/or former spouse.
A lump sum payment will include employee contributions and interest asprovided under subpart G of part 847 of this chapter.
Transfers of employees' contributions between the Civil Service Retirementand Disability Fund and other retirement systems for Federal or District ofColumbia employees when made in accordance with Federal statute for the purposeof transferring retirement service credit to the other retirement system are notsubject to the notice requirements or court order provisions of this subpart.
(a) An interim appointment under § 772.102 of this chapter doesnot affect the lump-sum payment of retirement contributions made to a separatedemployee unless it becomes effective within 31 days of the employee's separationfrom the service. An interim appointment effective within 31 days of theemployee's separation makes the employee ineligible for the lump-sum payment.Payments made in error will be collected under subpart M of part 831 of thischapter.
(b) When an employee's separation is cancelled after the MSPB initialdecision becomes final, when the Board issues a final order cancelling theemployee's separation, or when the agency and the employee agree to cancel theseparation, the agency must notify OPM and request the amount of the erroneouslump-sum payment.
(c) At the time the employee's separation is cancelled, the agency mustdeduct the amount of the lump-sum payment from any back pay to which theemployee is entitled as required by 5 CFR 550.805(e).
(d) Amounts recovered from back pay will not be subject to waiverconsideration under 5 U.S.C. 8346(b). If there is no back pay or the back pay isinsufficient to recover the erroneous payment, the employee may request that OPMwaive the recovery of the uncollected portion of the overpayment. If waiver isnot granted, the employee must repay the erroneous payment.
48 FR 38788, Aug. 26, 1983, unless otherwise noted.
This subpart prescribes the procedures to be followed when an employee orMember (or survivor of an employee or Member) wishes to make a deposit forservice, and when a former employee or Member who retires or separates fromcivilian service with title to annuity after September 8, 1982, but beforeOctober 1, 1983 (or survivor of such employee or Member), wishes to make adeposit for service.
This subpart applies to all agencies with employees occupying positionssubject to subchapter III of chapter 83 of title 5, United States Code, theUnited States Senate, and the United States House of Representatives.
The following individuals may make deposit for any full period of serviceperformed before the separation on which title to civil service annuity isbased:
(a) An employee or Member currently occupying a position subject tosubchapter III of chapter 83 of title 5, United States Code, and the survivor(s)of such an employee or Member who dies in service (including a person who waseligible to make a deposit under this paragraph but who failed to make thedeposit before separation from service due to administrative error); and
(b) A former employee or Member who was separated with title to an annuity orwho retired from a position subject to subchapter III of chapter 83 of title 5,United States Code, after September 8, 1982, and before October 1, 1983, and thesurvivor(s) of such an employee or Member.
(a) An individual described in § 831.2104(a) of this subpart shallfile an application for deposit with the appropriate office in the employingagency, or, for Members and Congressional employees, with the Secretary of theSenate or the Clerk of the House of Representatives, as appropriate.
(b) An individual described in § 831.2104(b) of this subpart may,at the time of filing an application for retirement or death benefits, file anapplication for deposit or complete a deposit with OPM.
(a) The agency, Clerk of the House of Representatives, or Secretary of theSenate shall have the employee or Member:
(1) Complete an application to make deposit;
(2) Provide a copy of his or her DD 214 or its equivalent to verify theperiod(s) of service; and
(3) Provide sufficient evidence of basic pay, if available, or a statement ofestimated earnings.
(b) Upon receipt of the application, the DD 214(s), and either sufficientevidence of basic pay, if available, or a statement of estimated earnings, theagency, Clerk of the House of Representatives, or Secretary of the Senate shallmultiply the amount of basic pay by 7 percent to compute the exact deposit owed,exclusive of any interest.
(c) If interest is applicable, it shall be computed in accordance withinstructions published by OPM.
(d) The agency, Clerk of the House of Representatives, or Secretary of theSenate shall establish a deposit account showing the total amount due, and apayment schedule (unless deposit is made in a lump sum), and record the date andamount of each payment.
(e) An individual who is eligible to make deposit to OPM shall submit anapplication to make deposit, accompanied by a copy of his or her DD 214(s) orits (their) equivalent(s), as well as sufficient evidence of basic pay, ifavailable, or a statement of estimated earnings, to OPM.
(a) Deposits made to agencies, the Clerk of the House of Representatives orthe Secretary of the Senate.
(1) Deposits made to agencies, the Clerk of the House of Representatives orthe Secretary of the Senate shall be collected in full in one lump sum wheneverthis is possible. Notwithstanding the provisions of paragraph (a)(2) of thissection, a separated employee who, through administrative error, did not make orcomplete the deposit prior to his or her separation must complete the deposit ina lump sum within the time limit set by OPM when it rules that an administrativeerror has been made.
(2) If the employee or Member cannot make payment in a lump sum, the agency,the Clerk of the House of Representatives, or the Secretary of the
(3) If the employee or Member dies, the employing agency, the Clerk of theHouse of Representatives or the Secretary of the Senate shall advise thesurvivor of the right to make or complete a deposit. If the survivor decides tomake or complete the payment, the agency, the Clerk of the House ofRepresentatives, or the Secretary of the Senate shall collect the amount due inone lump sum.
(4) Payments received by the employing agency, the Clerk of the House ofRepresentatives, or the Secretary of the Senate shall be remitted immediately toOPM for deposit to the Fund.
(5) Once the employee's, Member's, or survivor's deposit has been paid infull or closed out, the employing agency, the Clerk of the House ofRepresentatives, or the Secretary of the Senate shall submit documentationpertaining to the deposit to OPM, in accordance with instructions published byOPM issuances.
(6) Deposits must be made for full periods of service.
(b) Deposits made to OPM.
(1) Deposits made to OPM shall be made in a lump sum prior to finaladjudication of the application for retirement or survivor benefits.
(2) Deposits must be made for full periods of service.
51 FR 42989, Nov. 28, 1986, unless otherwise noted.
This subpart explains the benefits available to employees and Members whoelect an alternative form of annuity under section 8343a of title 5, UnitedStates Code.
In this subpart—
(a) Except as provided in paragraphs (b), (c), and (h) of this section, anemployee or Member whose annuity entitlement commences after June 5, 1986, underany provision of subchapter III of chapter 83 of title 5, United States Code(other than section 8337 of that title), may elect an alternative form ofannuity instead of any other benefits under the subchapter.
(b) An employee or Member who, at the time of retirement has a former spousewho is entitled to a portion of the employee's or Member's retirement benefitsor a former spouse annuity
(c) An employee or Member who is married at the time of retirement may notelect an alternative form of annuity unless the employee's or Member's spousespecifically consents to the election before the date of final adjudication. OPMmay waive spousal consent only under the conditions prescribed by§ 831.618.
(d) The election of an alternative form of annuity and evidence of spousalconsent must be filed on a form prescribed by OPM. The form will require that anotary public or other official authorized to administer oaths certify that thecurrent spouse presented identification, gave consent to the specific electionas executed by the retiree, signed or marked the form, and acknowledged that theconsent was given freely in the notary's or official's presence.
(e) An election of the alternative form of annuity must be in writing andreceived by OPM on or before the date of final adjudication. After the date offinal adjudication, an election of the alternative form of annuity isirrevocable.
(f) Except as provided in paragraph (g), an annuitant who dies before thedate of final adjudication is deemed to have made an affirmative election underparagraph (a) with a fully reduced annuity to provide a current spouse annuity,regardless of any election completed under § 831.614, and the lump-sum credit will be paid in accordance with the order of precedence establishedunder 5 U.S.C. 8342(c).
(g) If an annuitant described in paragraph (f) has completed an electionunder § 831.611(a) or (b)—
(1) The lump-sum credit will be paid in accordance with the order ofprecedence established under 5 U.S.C. 8342(c); and
(2) The election under § 831.611(a) or (b) will be honored.
(h)(1)(i) An individual whose annuity commences after December 1, 1990, andbefore October 1, 1994, may elect an alternative form of annuity only if thatindividual is—
(A) An employee or Member who meets the conditions and fulfills therequirements described in § 831.2207(c) (2) and (3); or
(B) An employee who is separated involuntarily other than for cause oncharges of misconduct or delinquency;
(ii) An individual whose annuity commences on or after October 1, 1994, mayelect an alternative form of annuity only if that individual is an employee orMember who meets the conditions and fulfills the requirements described in§ 831.2207(c) (2) and (3).
(2) For the purpose of paragraph (h)(1)(i)(B) of this section, the term“employee” does not include—
(i) Members of Congress;
(ii) Individuals in positions in the Executive Schedule under sections 5312through 5317 of title 5, United States Code;
(iii) Presidential appointees under section 105(a)(1), 106(a)(1), or 107(a)(1) or (b)(1) of title 3, United States Code, if the maximum basic pay forsuch positions is at or above the rate for Executive Schedule, level V;
(iv) Noncareer appointees in the Senior Executive Service or noncareermembers of the Senior Foreign Service; and
(v) Any individual in a position that is excepted from the competitiveservice because of its confidential, policy-determining, policy-making, orpolicy-advocating character.
(3) Notwithstanding paragraph (h)(1) of this section, an employee whoseannuity commences after December 1, 1990, and before December 2, 1991, may electan alternative form of annuity if that individual—
(i)(A) Was ordered to active military duty (other than for training) beforeDecember 1, 1990, in connection with Operation Desert Shield; or
(B) Is an employee of the Department of Defense who is certified by theSecretary of Defense to have performed, after November 30, 1990, dutiesessential to support Operation Desert Shield, and the certification is submittedto OPM in a form prescribed by OPM; and
(ii) Would have been eligible, as of November 30, 1990, to elect analternative form of annuity under paragraph (a) of this section.
(a) An employee or Member who is eligible to make an election under§ 831.2203 may elect to receive his or her lump-sum credit plus anannuity computed in accordance with section 8339 of title 5, United States Code,for which they qualify (including any reduction for survivor benefits) andreduced under § 831.2205.
(b) A retired employee or Member who elected an alternative form of annuityis subject to all provisions of subchapter III of chapter 83 of title 5, UnitedStates Code, as would otherwise apply to a retired employee or Member who didnot elect an alternative form of annuity, except that an individual who electedan alternative form of annuity is not eligible to apply for disability annuityunder section 8337 of such subchapter.
(a) To compute the beginning rate of annuity payable to a retiree who electsan alternative form of annuity, OPM will first compute the monthly rate ofannuity otherwise payable under subchapter III of chapter 83 of title 5, UnitedStates Code, including all reductions provided under the subchapter other thanthose in § 8343a. That monthly rate is then reduced by an amountequal to the retiree's lump-sum credit divided by the present value factor forthe retiree's attained age (in full years) at the time of retirement. Thereduced monthly rate is then rounded to the next lowest dollar and becomes therate of annuity payable.
(b) OPM will publish a notice in the
(a) If an employee or Member who elects an alternative form of annuity owes adeposit or redeposit for civilian service, and elects to pay that deposit orredeposit before the date of final adjudication, OPM will compute the annuity asif the deposit or redeposit had been made and will deem that deposit orredeposit to be included in the lump-sum credit for the purpose of computing thereduction in annuity under § 831.2205.
(b) The amount of a deposit or redeposit deemed paid under paragraph (a) ofthis section will include any interest owed by the employee or Member under 5U.S.C. 8334.
(c) For the purpose of paragraph (a) of this section, “redeposit”does not include a redeposit owed for service for which credit is allowedpursuant to § 831.303(c)(1).
(a) Except as provided in paragraph (c) of this section, if the annuity of anemployee or Member commences after January 3, 1988, and before October 1, 1989,the lump-sum credit payable under § 831.2204 is payable to theindividual, or his or her survivors, according to the following schedule:
(1) Sixty percent of the lump-sum credit is payable at the time ofretirement, and
(2) Forty percent is payable, with interest determined under section8334(e)(3) of title 5, United States Code, one year after the time ofretirement.
(b) If an employee or Member whose annuity commences after January 3, 1988,and before October 1, 1989, dies before the date of final adjudication, thatindividual is subject to § 831.2203 (f) or (g), but the lump-sumcredit will be paid in accordance with the schedule in paragraph (a) of thissection.
(c) An annuitant is exempt from the deferred payment schedule under paragraph(a) of this section if the individual—
(1) Separates involuntarily, other than for cause on charges of delinquencyor misconduct, or
(2) Has, at the time of retirement, a life-threatening affliction or othercritical medical condition.
(3)(i) For the purpose of this section,
(ii) The existence of one of the following medical conditions is
(A) Metastatic and/or inoperable neoplasms.
(B) Aortic stenosis (severe).
(C) Class IV cardiac disease with congestive heart failure.
(D) Respiratory failure.
(E) Cor pulmonale with respiratory failure.
(F) Emphysema with respiratory failure.
(G) [Reserved]
(H) Severe cardiomyopathy—Class IV.
(I) Aplastic anemia.
(J) Uncontrolled hypertension with hypertensive encephalopathy.
(K) Cardiac aneurysm not amenable to surgical treatment.
(L) Agranulocytosis.
(M) Severe hepatic failure.
(N) Severe Hypoxic brain damage.
(O) Severe portal hypertension with esophageal varices.
(P) AIDS (Active—Not AIDS Related Complex or only seropositivity).
(Q) Life threatening infections (encephalitis, meningitis, rabies, etc.).
(R) Scleroderma with severe esophageal involvement.
(S) Amyotrophic lateral sclerosis (rapidly progressive).
(T) Hemiplegia with life threatening complications.
(U) Quadriplegia with life threatening complications.
(iii) Evidence of the existence of a life-threatening affliction or othercritical medical condition must be certified by a physician and sent to OPM onor before the date the annuitant elects to receive an alternative form ofannuity. For the purpose of this section, “physician” has the samemeaning given that term in § 339.102 of this chapter.
(iv) If a medical condition other than those listed in paragraph (c)(3)(ii)of this section is claimed as a basis for exemption from the deferred paymentschedule, OPM will review the physician's certification to determine whether thecited condition is life-threatening or critical.
(v) The cost of providing medical documentation under this paragraph restswith the employee or Member, unless OPM exercises its choice of physician.
(a) Except as provided in paragraph (c) of this section, if the annuity of aretiree commences after December 2, 1989, and before October 1, 1994, the lump-sum credit payable under § 831.2204 is payable to the individual, orhis or her survivors, according to the following schedule:
(1) Fifty percent of the lump-sum credit is payable at the time ofretirement, and
(2) Fifty percent is payable, with interest determined under section8334(e)(3) of title 5, United States Code, 1 year after the time of retirement,except if the payment date of the amount specified in paragraph (a)(1) of thissection was after December 4, 1989, payment with interest will be made in thecalendar year following the calendar year in which the payment specified inparagraph (a)(1) of this section was made.
(b) If a retiree whose annuity commences after December 2, 1989, and beforeOctober 1, 1994, and who is otherwise entitled to a computation under thissubpart, dies before the date of final adjudication, that individual is subjectto § 831.2203 (f) or (g), but the lump-sum credit will be paid inaccordance with the schedule in paragraph (a) of this section.
(c)(1) A retiree is exempt from the deferred payment schedule under paragraph(a) of this section if the individual meets the conditions, and fulfills therequirements, described in § 831.2207(c).
(2)(i) A retiree who is exempt from the deferred payment schedule may waivethat exemption by notifying OPM, in writing, on or before the date he or sheelects to receive the alternative form of annuity.
(ii) Paragraph (c)(2)(i) of this section does not apply to an individualwhose annuity commences after December 1, 1990, if that individual's eligibilityto elect an alternative form of annuity is pursuant to§ 831.2203(h)(1)(i)(A).
(iii) A waiver under paragraph (c)(2)(i) of this section cannot be revoked.
(a) For purposes of this section, “lump-sum credit” does notinclude—
(1) The amount by which the lump-sum credit attributable to service performedbefore the annuitant's first retirement was reduced by annuity payments thatwere not reimbursed by the employing agency under section 8344(a) of title 5,United States Code, or
(2) Any part of the lump-sum credit attributable to service performed beforethe annuitant's first retirement that has already been paid to the annuitantpursuant to an election or an alternative form of annuity.
(b) An annuitant who meets the requirements for a redetermined annuity undersubpart H, and who meets all requirements of § 831.2203, may elect analternative form of annuity.
(c) To compute the beginning rate of the redetermined annuity payable to anannuitant who elects an alternative form of annuity, OPM will first compute themonthly rate payable under subchapter III of chapter 83 of title 5, UnitedStates Code, including all reductions provided under the subchapter other thanthose in section 8343a. That monthly rate is then reduced by the sum of—
(1)(i) Any reduction that was computed under § 831.2205 at thetime of the annuitant's prior retirement, increased by—
(ii) All cost-of-living adjustments under section 8340 of title 5, UnitedStates Code that applied to the annuitant before the commencing date of theredetermined annuity, and
(2) An amount equal to the annuitant's lump-sum credit, divided by thepresent value factor for the annuitant's attained age on the date theredetermined annuity commences.
(d) The beginning rate of a redetermined annuity payable to an annuitant whodoes not elect, or is not eligible to elect, an alternative form of annuity willbe reduced in accordance with paragraph (c)(1) of this section.
5 U.S.C. 8347(a) and 8461(g). Subpart F also issued under31 U.S.C. 3720A.
57 FR 61771, Dec. 29, 1992, unless otherwise noted.
This subpart establishes procedures for OPM to refer past-due legallyenforceable debts to the Internal Revenue Service (IRS) for offset against theincome tax refunds of persons owing debts to OPM. It specifies the agencyprocedures and the rights of the debtor
A past-due legally enforceable debt for referral to the IRS is a debtthat—
(a) Resulted from—
(1) Erroneous payments made under the Civil Service Retirement or the FederalEmployees' Retirement Systems; or
(2) Unpaid health or life insurance premiums due under the Federal Employees'Health Benefits or Federal Employees' Group Life Insurance Programs; or
(3) Any other statute administered by OPM;
(b) Is an obligation of a debtor who is a natural person;
(c) Except in the case of a judgment debt, has been delinquent at least 3months but not more than 10 years at the time the offset is made;
(d) Is at least $25.00;
(e) With respect to which the individual's rights described in 5 CFR 831.1301through 831.1309 have been exhausted;
(f) With respect to which either:
(1) OPM's records do not contain evidence that the person owing the debt (orhis or her spouse) has filed for bankruptcy under title 11 of the United StatesCode; or
(2) OPM can clearly establish at the time of the referral that the automaticstay under 11 U.S.C. 362 has been lifted or is no longer in effect with respectto the person owing the debt or his or her spouse, and the debt was notdischarged in the bankruptcy proceeding;
(g) Cannot currently be collected under the salary offset provisions of 5U.S.C. 5514(a)(1);
(h) Is not eligible for administrative offset under 31 U.S.C. 3716(a) becauseof 31 U.S.C. 3716(c)(2), or cannot currently be collected as an administrativeoffset by OPM under 31 U.S.C. 3716(a) against amounts payable to the debtor byOPM; and
(i) Has been disclosed by OPM to a consumer reporting agency as authorized by31 U.S.C. 3711(f), unless the consumer reporting agency would be prohibited fromreporting information concerning the debt by reason of 15 U.S.C. 1681c, orunless the amount of the debt does not exceed $100.
(a)
(b)
(1) The amount of the debt;
(2) That unless the debt is repaid within 60 days from the date of OPM'sNotice of Intent, OPM intends to collect the debt by requesting the IRS toreduce any amounts payable to the debtor as a Federal income tax refund by anamount equal to the amount of the debt and all accumulated interest and othercharges;
(3) A mailing address for forwarding any written correspondence and acontract name and a telephone number for any questions; and
(4) That the debtor may present evidence to OPM that all or part of the debtis not past due or legally enforceable by—
(i) Sending a written request for a review of the evidence to the addressprovided in the notice;
(ii) Stating in the request the amount disputed and the reasons why thedebtor believes that the debt is not past-due or is not legally enforceable;
(iii) Including in the request any documents that the debtor wishes to beconsidered or stating that the additional information will be submitted withinthe remainder of the 60-day period.
In order to constitute a reasonable attempt to notify the debtor, OPM musthave used a mailing address for the debtor obtained from the IRS pursuant to 26U.S.C. 6103(m)(2) within a period of 1 year preceding the attempt to notify thedebtor, unless OPM received clear and concise notification from the debtor thatnotices from the
(a)
(1) Consider the evidence presented by the debtor; and
(2) Determine whether or not all or a portion of the debt is still past dueand legally enforceable; and
(3) Notify the debtor of its determination.
(b)
(c)
(2) OPM will not refer the debt to the IRS for offset against the debtor'sFederal income tax refund, if it reverses its decision that the debt is past-dueand legally enforceable.
(a) Except as noted in paragraph (b) of this section, after OPM sends IRSnotification of an individual's liability for a debt, OPM will promptly notifyIRS of any change in the notification, if OPM—
(1) Determines that an error has been made with respect to the informationcontained in the notification;
(2) Receives a payment or credits a payment to the account of the debtornamed in the notification that reduces the amount of the debt referred to theIRS for offset; or
(3) Receives notification that the individual owing the debt has filed forbankruptcy under title 11 of the United States Code or has been adjudicatedbankrupt and the debt has been discharged.
(b) OPM will not notify the IRS to increase the amount of a debt owed by adebtor named in OPM's original notification to the IRS.
(c) If the amount of a debt is reduced after referral by OPM and offset bythe IRS, OPM will refund to the debtor any excess amount and will promptlynotify the IRS of any refund made by OPM.
All administrative charges incurred in connection with the referral of thedebts to the IRS will be assessed on the debt and thus increase the amount ofthe offset.
5 U.S.C. 8337, 8344, 8347, 8455, 8456, 8461, and 8468;and section 302 of Pub. L. 99-335, June 6, 1986, as amended.
58 FR 48266, Sept. 15, 1993, unless otherwise noted.
(a) This part prescribes rules governing—
(1) Reemployment of an annuitant by the Federal Government;
(2) Reemployment of an annuitant by the government of the District ofColumbia when the annuitant—
(i) Had been employed subject to CSRS by the District of Columbia prior toOctober 1, 1987;
(ii) Is an employee of the government of the District of Columbia notexcluded from CSRS under § 831.201(g) or § 831.201(i); or
(iii) Is an employee of the District of Columbia who is deemed to be aFederal employee for FERS purposes under § 842.107 or§ 842.108 of this chapter; and
(3) The payment of retirement and death benefits based on reemploymentcovered by this part.
(b) This part is not applicable to reemployment, in the Executive Branch,under 5 U.S.C. 8344(i) or 8468(f) (see part 553 of this chapter), relating toreemployment of retirees to meet exceptional employment needs, or to employmentunder 5 U.S.C. 8344 (j) or (k) or 5 U.S.C. 8468 (g) or (h) in the Judicial orLegislative Branches.
(a)
(1) The annuitant's name, date of birth, social security number (ifapplicable), and retirement claim number;
(2) A description of the kind of appointment;
(3) Whether the amount of annuity allocable to the period of reemployment is,or will be, withheld from the reemployed annuitant's pay, in accordance with§ 837.303 of this part; and
(4) When the appointment is an interim appointment under § 772.102of this chapter, an explicit statement that the appointment is required by theWhistleblower Protection Act of 1989.
(b)
(c)
(1) Whether the annuitant is then in receipt of annuity;
(2) The gross monthly amount of annuity the annuitant is then receiving;
(3) Whether the annuitant is a disability annuitant, and if so, whether OPMhas found the annuitant recovered from his or her disability, or restored toearning capacity; and.
(4) If the annuitant is a CSRS annuitant, whether the annuitant's retirementwas based on an involuntary separation, not for charges of misconduct ordelinquency.
A former employee of a nonappropriated fund instrumentality who has made anelection of retirement coverage under part 847 of this chapter will continue tobe covered under the elected retirement system for all periods of service as areemployed annuitant.
Unless his or her annuity is terminated under the provisions of§ 837.202 or § 837.403 of this part, an annuitantcontinues to be an annuitant throughout the period of reemployment, whether ornot he or she continues to receive annuity payments during the period ofreemployment.
(a)
(2) The annuity of a FERS annuitant who is a former military reservetechnician awarded a disability retirement annuity under 5 U.S.C. 8456, inaddition to being subject to paragraph (a)(1) of this section, shall terminateon the date the annuitant declines an offer of employment with a department oragency, where the employment is in the same commuting area and of the same gradeas, or a level equivalent to, the position from which the annuitant retired.
(b)
(i) The annuitant is a disability annuitant whom OPM has found recovered orrestored to earning capacity prior to reemployment, or whose disability annuitywas awarded under the provisions of 5 U.S.C. 8337(h) because the annuitant was aNational Guard Technician who was medically disqualified for continuedmembership in the National Guard;
(ii) The annuitant is not a retired Member and the annuity is based on aninvoluntary separation (other than a separation that was mandated by statutebased on the annuitant's age and length of service, or a separation for cause oncharges of misconduct or delinquency) where the reemployment would, if theindividual were not an annuitant, be covered by CSRS;
(iii) The annuitant is not a retired Member and is appointed by the Presidentto a position that would, if the individual were not an annuitant, be covered byCSRS; or
(iv) The annuitant is not a retired Member and is elected as a Member.
(2) A disability annuity awarded a former National Guard Technician under theprovisions of 5 U.S.C. 8337(h) shall terminate on the date the annuitantdeclines an offer of employment with a department or agency, where theemployment is in the same commuting area and of the same grade as, or a levelequivalent to, the position from which the annuitant retired.
(a)
(1) The annuitant is appointed as a justice or judge of the United States, asdefined by section 451 of title 28, United States Code; or
(2) The annuitant receives an interim appointment under § 772.102of this chapter.
(b)
(a)
(b)
(2) A CSRS annuitant is not subject to deductions, unless he or she isserving in an other-than-intermittent status (except as President), is notcovered by another retirement system, and elects to have retirement deductionsmade from his or her pay. Generally, deductions are made no later than thebeginning of the first pay period immediately following the date the reemployedannuitant files the election with the employing agency. When the annuitantelects to have deductions made, he or she may not change the election duringcontinuous service with that agency.
(3) The amount of basic pay prior to offset of annuity under§ 837.303 of this part is used in computing the amount of deductions.The rate of retirement deductions is that which attaches to the position underthe provisions of sections 8334(a), 8334(k), or 8422(a) of title 5, UnitedStates Code, as is applicable.
(a)
(b)
(1) The annuity is suspended or terminated under the provisions of subpart Bof this part; and
(2) The appointment is subject to CSRS deductions under the provisions ofsubpart B of part 831 of this chapter.
(a)
(1) No amount shall be offset from pay in accordance with this section for aperiod for which the annuitant has elected to receive FEC benefits in lieu ofannuity; and
(2) No amount shall be offset from a lump-sum payment of annual leave, madeon or after termination of the reemployment period.
(b)
(c)
(a) The agency will remit funds properly withheld from the pay of areemployed annuitant in accordance with this subpart to OPM in the mannerprescribed for the transmission of withholdings and contributions as soon aspossible, but not later than provided by standards established by OPM.
(b) When the employing agency fails to withhold from the pay of thereemployed annuitant some or all of the amounts required to be withheld fromthat pay by this subpart, the employee has received an overpayment of pay. Theemploying agency must collect the overpayment of pay (unless it is waived under5 U.S.C. 5584 or some other applicable statute) and remit the proper funds toOPM in the manner prescribed for the transmission of withholdings andcontributions as soon as possible, but not later than provided by standardsestablished by OPM.
(c) If the employing agency waives the annuitant's repayment of the salaryoverpayment, it must submit—on behalf of the reemployed annuitant—anamount equal to the correct deduction from pay (or the balance due in the caseof a partial deduction) to OPM in the manner prescribed for the transmission ofwithholdings and contributions as soon as possible, but not later than providedby standards established by OPM.
When annuity continues during the period of reemployment, and thereemployment is subject to annuity offset under the provisions of§ 837.303 of this subpart, or any similar provision of law orregulation, the amount of an annuitant's lump-sum credit to the Fund shall notbe reduced by the amount of annuity allocable to the period of reemployment.
An annuitant serving as a justice or judge of the United States, as definedby section 451 of title 28, United States Code, may apply for and receivepayment of the annuitant's lumpsum credit, less the amount of annuity or otherbenefits previously paid on that account. Receipt of a refund under this sectionwill irrevocably terminate the right to annuity, and the annuitant status, ofthe recipient, based on any prior separations from employment covered by CSRS orFERS.
A disability annuitant may be reemployed in any position for which he or sheis qualified.
(a)
(1) Reemployment on a permanent basis in a position equivalent in grade andpay to the position from which the annuitant retired may constitute the basisfor an OPM finding of recovery from disability;
(2) Reemployment subject to medical and physical qualification standardsequivalent to those of the position from which the annuitant retired mayconstitute the basis for an OPM finding of recovery from disability;
(3) The pay of the position in which the annuitant is reemployed, prior tothe offset of annuity, or the pay of an interim appointment under§ 772.102 of this chapter, as may be applicable, will be included asearnings in determining whether the disability annuity will be terminated due torestoration to earning capacity;
(4) Receipt of, or continued entitlement to receive, full or partial FECbenefits during reemployment, when those benefits are based on the same injuryor medical condition that is the basis for OPM's award of disability retirement,is conclusive evidence (unless there is contravening medical evidence) that theannuitant has not recovered from the disability; and
(5) A disability annuitant age 60 or over cannot be found by OPM to berestored to earning capacity, and can only be found recovered at the annuitant'srequest.
(b)
(1) The physical and medical requirements of the position (providing a copyof the employee's position description);
(2) The position's grade level and/or rate of pay;
(3) Whether the employment is full-time, part-time, or intermittent;
(4) Whether, to the best of the agency's knowledge, the reemployed annuitantis receiving, or entitled to receive, FEC benefits; and
(5) Whether any medical evidence was used in making the employment decision,and if so, provide OPM with a copy of the medical information.
(a)
(b)
(2)
When OPM reinstates the disability annuity of an individual employed in a
A reemployed annuitant who separates from reemployment without title toeither a supplemental annuity or a redetermined annuity under this subpart isentitled to have any retirement deductions withheld from pay during the periodof reemployment refunded without interest.
(a)
(i) The reemployed annuitant's right to annuity has not been terminated underany other provision of regulation or statute; and
(ii) The reemployed annuitant is not entitled to either an immediate ordeferred CSRS or FERS annuity based on the separation from reemployment.
(2) When an annuity was suspended because of reemployment under theprovisions of § 837.203 of this part, the annuity that was suspendedwill be reinstated effective the date immediately following the date thereemployed annuitant separated from reemployment.
(b)
(a)
(1) The annuitant performed—
(i) At least 1 year of actual, continuous, full-time service;
(ii) Actual, continuous part-time service equivalent to 1 year of actualfull-time service; or
(iii) A combination of part-time and full-time actual, continuous servicethat is equivalent to 1 year of actual full-time service; and
(2)(i) The annuity is not terminated or suspended on reemployment; and
(ii) The pay during reemployment was subject to offset by the amount ofannuity allocable to the period of reemployment;
(iii) The reemployed annuitant separates from an interim appointment madeunder the provisions of § 772.102 of this chapter.
(b)
(ii) A supplemental annuity computed in whole or in part under the provisionsof this paragraph, using CSRS-Offset service, is subject to reduction undersubpart G of this part.
(2)
(3)
(4)
(c)
(i) When the reemployment service was performed on or after October 1, 1982,retirement deductions were withheld or, for CSRS annuitants, a deposit has beenpaid under the provisions of 5 U.S.C. 8334;
(ii) The reemployment service was not performed subject to another retirementsystem, except when the deductions under the other retirement system have beenrefunded and a deposit paid to OPM, where the law so permits, or benefits underthe other retirement system have been waived in favor of CSRS or FERS benefits;and
(iii) The reemployment service has not been used in the computation ofanother supplemental or redetermined annuity.
(2) A period of reemployment service during which annuitant status continuesand annuity is paid, and which is excluded from the normal annuity offset frompay by special statutory provision, cannot be credited in the computation of asupplemental annuity or any subsequent annuity entitlement.
(d)
(i) The day the annuitant is separated from reemployment; or
(ii) The day the annuitant is converted to an intermittent status.
(2) The supplemental annuity of a FERS annuitant, and the supplementalannuity of a CSRS reemployed annuitant who has not elected FERS coverage and whowas—
(i) Involuntarily separated from the reemployment service (except by removalfor cause on charges of misconduct or delinquency);
(ii) Involuntarily converted to an intermittent status, or;
(iii) Separated from reemployment service, or converted to intermittentstatus, after serving 3 days or less in the month of such separation orconversion—shall commence on the earlier of the day after separation fromreemployment service, the effective date of conversion to intermittent status,or the day after the date pay ceases.
(a)
(i) The annuitant performed—
(A) At least 5 years of actual, continuous, full-time service;
(B) Actual, continuous part-time service equivalent to 5 years of actualfull-time service, or;
(C) A combination of part-time and full-time actual, continuous service thatis equivalent to 5 years of actual full-time service.
(ii)(A) The annuity was not terminated or suspended during reemployment; and
(B) The pay during reemployment was subject to offset by the amount ofannuity allocable to the period of reemployment;
(C) The reemployed annuitant separated from an interim appointment made underthe provisions of § 772.102 of this chapter.
(iii) Retirement deductions are withheld, or a deposit is paid, for theentire period of continuous reemployment service immediately preceding the mostrecent separation from reemployment service; and
(iv) The reemployed annuitant elects the redetermined annuity in lieu of hisor her prior annuity and the supplemental annuity that would be payable under§ 837.503 of this subpart.
(2) An employee whose annuity was terminated under the provisions of§ 837.202(b)(1)(iii) of this part, and who has not elected FERScoverage, is entitled to a redetermined annuity on separation.
(b)
(2) The amount of the redetermined annuity of an individual whose previousannuity was terminated under the provisions of § 837.202(b)(1)(iii)of this part will at least equal the amount of the terminated annuity plus anyincreases under section 8340 of title 5, United States Code, occurring after thetermination of the previous annuity and before the commencement of theredetermined annuity, adjusted by any annuity increase or reduction resultingfrom additional or different elections made by the reemployed annuitant.
(c)
(a)
(b)
(a) The redetermined annuity of a former employee of a nonappropriated fundinstrumentality who elected CSRS or FERS coverage under 5 CFR part 847, subpartD, is recomputed under 5 CFR part 847, subpart F.
(b) The redetermined annuity of a former employee of a nonappropriated fundinstrumentality who elected CSRS or FERS retirement credit under 5 CFR part 847,subpart H, is recomputed under 5 CFR part 847, subpart I.
Except as otherwise provided by this subpart, when an annuitant who isreemployed under circumstances that provide for continuation of annuitant statusduring reemployment dies, death benefits are payable under CSRS or FERS as ifthe individual died as an annuitant, and not as employee.
If an annuitant reemployed subject to the provisions of this part dies whileso reemployed, and the annuitant would not have been entitled to a supplementalannuity, had the separation been for reasons other than death, or if there is nosupplemental spousal survivor annuity payable (including a survivor annuitypayable to a former spouse, if the annuitant retired under FERS) the amount ofretirement deductions withheld during the period of reemployment will be paid ina lump sum to the person entitled under the provisions of 5 U.S.C. 8342(c) or8424(d), as appropriate.
(a)
(2) Supplemental survivor annuity benefits payable under this paragraph,computed in whole or in part under the provisions of§ 837.503(b)(1)(i) of this part, using CSRS-Offset service, aresubject to reduction under subpart G of this part.
(b)
(a) OPM will reduce the supplemental annuity of an individual who hasperformed CSRS-Offset service, if the individual is entitled, or on properapplication would be entitled, to old-age benefits under title II of the SocialSecurity Act.
(b) The reduction required under paragraph (a) of this section is effectiveon the first day of the month during which the reemployed annuitant—
(1) Is entitled to a supplemental annuity under this part; and
(2) Is entitled, or on proper application would be entitled, to old-agebenefits under title II of the Social Security Act.
(c) Subject to paragraphs (d) and (e) of this section, the amount of thereduction required under paragraph (a) of this section is the lesser of—
(1) The difference between—
(i) The social security old-age benefit for the month referred to inparagraph (b) of this section; and
(ii) The old-age benefit that would be payable to the individual for themonth referred to in paragraph (b) of this section, excluding all CSRS-Offsetwages as a reemployed annuitant, and assuming the annuitant was fully insured(as defined by section 214(a) of the Social Security Act); or
(2) The product of—
(i) The old-age benefit to which the individual is entitled or would, onproper application, be entitled; and
(ii) A fraction—
(A) The numerator of which is the annuitant's total CSRS-Offset service as areemployed annuitant, rounded to the nearest whole number of years not exceeding40 years; and
(B) The denominator of which is 40.
(d) Cost-of-living adjustments under 5 U.S.C. 8340 occurring after theeffective date of the reduction required under paragraph (a) of this sectionwill be
(e) The amounts for paragraphs (c)(1)(i), (c)(1)(ii), and (c)(2)(i) of thissection are computed without regard to subsections (b) through (1) of section203 of the Social Security Act (relating to reductions in social securitybenefits), and without applying the provisions of the second sentence of section215(a)(7)(B)(i) or section 215(d)(5)(ii) of the Social Security Act (relating topart of the computation of the social security windfall elimination provisions).
(f) OPM will accept the determination of the Social Security Administration,submitted in a form prescribed by OPM, concerning entitlement to social securitybenefits and the beginning and ending dates thereof.
(a) OPM will reduce a supplemental survivor annuity (an annuity under 5U.S.C. 8341) based on the service of an individual who performed CSRS-Offsetservice, if the survivor annuitant is entitled, or on proper application wouldbe entitled, to survivor benefits under section 202(d), (e), or (f) (relating tochildren's, widows', and widowers' benefits, respectively) of the SocialSecurity Act.
(b) The reduction required under paragraph (a) of this section begins (or isreinstated) on the first day of the month during which the survivorannuitant—
(1) Is entitled to a disability or survivor annuity under CSRS; and
(2) Is entitled, or on proper application would be entitled, to survivorbenefits under the Social Security Act provisions mentioned in paragraphs (a)and (c) of this section, respectively.
(c) The reduction under paragraphs (a) of this section will be computed andadjusted in a manner consistent with the provisions of § 837.701 (c)through (e) of this part.
(d) A reduction under paragraph (a) of this section stops on the dateentitlement to the disability or survivor benefits under title II of the SocialSecurity Act terminates. In the case of a survivor annuitant who has not madeproper application for the social security benefit, the reduction underparagraph (a) of this section stops on the date entitlement to such survivorbenefits would otherwise terminate. If a social security benefit is reducedunder any provision of the Social Security Act, even if reduced to zero,entitlement to that benefit is not considered to have terminated.
(e) OPM will accept the determination or certification of the Social SecurityAdministration, submitted in a form prescribed by OPM, concerning entitlement tosocial security survivor benefits and the beginning and ending dates thereof.
(a) An employee who meets the age and service requirements for title to anon-disability annuity under CSRS on the basis of a prior separation, but didnot apply for that annuity before a subsequent separation from service to whicha different annuity entitlement attaches, may elect, on application, to receiveeither—
(1) The annuity based on the later separation; or
(2) The annuity based on the prior separation, with payment of annuitysuspended during the period(s) of employment subsequent to the commencing dateof annuity, and such benefits as would be payable had the subsequent period(s)of employment been performed under the provisions of this part.
(b) When an individual who has applied for a deferred annuity under CSRS isreemployed under CSRS before the commencing date of that annuity, theapplication is deemed to have not been made.
(a)
(1) The provisions of law or regulation governing the other retirement systemdo not permit the annuitant to receive both benefits simultaneously, or for thesame period of time; or
(2) Entitlement to the annuity from the other retirement system is based onservice credited in the computation of the CSRS or FERS annuity, or servicecredited in the computation of the annuity from the other retirement system wasused in the computation of the CSRS or FERS annuity.
(b)
(2) Where the annuitant, under the provisions of paragraph (b)(1) of thissection, elects to receive annuity from the other retirement system in lieu ofthe CSRS or FERS annuity, the CSRS or FERS annuity terminates as of thecommencing date of the other annuity, and any overpayment of CSRS annuity willbe offset from the other annuity and paid to OPM.
(c)
(d)
(e)
(f)
(1) Promptly notify OPM of an election of coverage under that retirementsystem by a reemployed CSRS or FERS annuitant, or the coverage of a reemployedCSRS annuitant under that retirement system by election or operation of law orregulation, when such coverage affects the annuitant's entitlement to CSRSannuity;
(2) Promptly notify OPM when a reemployed annuitant separates withentitlement to an annuity under the other retirement system that cannot, underthe provisions of paragraph (a) of this section, be paid simultaneous with, orduring the same period as, the CSRS annuity; and
(3) Reimburse OPM for overpayments of annunity resulting from a failure tocomply with paragraphs (b) (1) and (2) of this section.
(a)
(b)
(c)
(2) Amounts recovered from back pay will not be subject to waiverconsideration under the provisions of 5 U.S.C. 8346(b) or 8470(b). If there isno back pay or the back pay is insufficient to recover the entire payment, theemployee may request that OPM waive the uncollected portion of the overpayment.If waiver is not granted, the employee must repay the erroneous payment.
Except as otherwise provided by this subpart, an election of coverage under,or annuity from, another retirement system, in lieu of CSRS or FERS coverage orannuity, or the election between simultaneous entitlements under CSRS or FERS,is final and conclusive for the period of simultaneous entitlement to coverageor annuity.
5 U.S.C. 8347(a) and 8461(g). Subparts B, C, D, E, J,and K also issued under 5 U.S.C. 8345(j)(2) and 8467(b). Sections 838.221,838.422, and 838.721 also issued under 5 U.S.C. 8347(b).
57 FR 33574, July 29, 1992, unless otherwise noted.
(a)(1) This part regulates the Office of Personnel Management's handling ofcourt orders affecting the Civil Service Retirement System (CSRS) or the FederalEmployees Retirement System (FERS), both of which are administered by the Officeof Personnel Management (OPM). Generally, OPM must comply with court orders,decrees, or court-approved property settlement agreements in connection withdivorces, annulments of marriage, or legal separations of employees, Members, orretirees that award a portion of the former employee's or Member's retirementbenefits or a survivor annuity to a former spouse.
(2) In executing court orders under this part, OPM must honor the clearinstructions of the court. Instructions must be specific and unambiguous. OPMwill not supply missing provisions, interpret ambiguous language, or clarify thecourt's intent by researching individual State laws. In carrying out the court'sinstructions,
(b) This part prescribes—
(1) The requirements that a court order must meet to be acceptable forprocessing under this part;
(2) The procedures that a former spouse or child abuse creditor must followwhen applying for benefits based on a court order under sections 8341(h),8345(j), 8445 or 8467 of title 5, United States Code;
(3) The procedures that OPM will follow in honoring court orders and inmaking payments to the former spouse or child abuse creditor; and
(4) The effect of certain words and phrases commonly used in court ordersaffecting retirement benefits.
(c)(1) Subparts A through I of this part apply only to court orders receivedby OPM on or after January 1, 1993.
(2) Subpart J of this part applies only to court orders received by OPMbefore January 1, 1993.
(3) Subpart K of this part applies only to court orders received by OPM on orafter October 14, 1994.
(d) This part has no application to the Thrift Savings Plan described insubchapter III of chapter 84 of title 5, United States Code.
(a) This part is organized as follows:
(1) Subpart A contains information and rules of general application to allcourt orders directed at CSRS or FERS retirement benefits.
(2) Subparts B and C of this part contain information about court ordersdirected at ongoing employee annuity payments.
(3) Subparts D and E of this part contain information about court ordersdirected at refunds of employee contributions.
(4) Subpart F of this part contains information about the effect of words andphrases commonly used in court orders affecting ongoing employee annuitypayments and refunds of employee contributions.
(5) Subparts G, H, and I of this part contain information about court ordersawarding former spouse survivor annuities.
(6) Subpart J of this part contains the rules applicable to court ordersfiled under procedures in effect prior to the implementation of this part. Theserules continue to apply to court orders received by OPM before January 1, 1993.
(7) Subpart K of this part contains rules applicable to court orders for theenforcement of judgments rendered against employees or annuitants for physical,sexual, or emotional abuse of a child.
(b) Part 890 of this chapter contains information about coverage under theFederal Employees Health Benefits Program.
(c) Part 581 of this chapter contains information about garnishment ofGovernment payments including salary and CSRS and FERS retirement benefits.
(d) Parts 294 and 297 of this chapter and §§ 831.106 and841.108 contain information about disclosure of information from OPM records.
(e) Subpart V of part 831 of this chapter and subpart G of part 842 of thischapter contain information about how court orders affect eligibility to make analternative form of annuity election.
(f) Part 1600 of this title contains information about court orders affectingthe Federal Employees Thrift Savings Plan.
(g) Subpart F of part 831 of this chapter, subpart F of part 841 of thischapter, and part 843 of this chapter contain information about entitlement tosurvivor annuities.
(h) Subpart T of part 831 of this chapter and subpart B of part 843 of thischapter contain information about refunds of employee contributions and lump-sumdeath benefits.
(i) Parts 870, 871, 872, and 873 of this chapter contain information aboutthe Federal Employees Group Life Insurance Program.
In this part (except subpart J)—
(1) Owed by the retiree to the United States;
(2) Deducted for health benefits premiums under section 8906 of title 5,United States Code, and §§ 891.401 and 891.402 of this chapter;
(3) Deducted for life insurance premiums under section 8714a(d) of title 5,United States Code;
(4) Deducted for Medicare premiums;
(5) Properly withheld for Federal income tax purposes, if the amountswithheld are not greater than they would be if the retiree claimed alldependents to which he or she was entitled;
(6) Properly withheld for State income tax purposes, if the amounts withheldare not greater than they would be if the retiree claimed all dependents towhich he or she was entitled; or
(7) Already payable to another person based on a court order acceptable forprocessing or a child abuse judgment enforcement order.
(a) Employees, retirees, and State courts may not assign CSRS and FERSbenefits except as provided in this part.
(b) CSRS and FERS benefits are not subject to execution, levy, attachment,garnishment or other legal process except as expressly provided by Federal law.
OPM is responsible for authorizing payments in accordance with clear,specific and express provisions of court orders acceptable for processing.
State courts are responsible for—
(a) Providing due process to the employee or retiree;
(b) Issuing clear, specific, and express instructions consistent with thestatutory provisions authorizing OPM to provide benefits to former spouses orchild abuse creditors and the requirements of this part for awarding suchbenefits;
(c) Using the terminology defined in this part only when it intends to usethe meaning given to that terminology by this part;
(d) Determining when court orders are invalid; and
(e) Settling all disputes between the employee or retiree and the formerspouse or child abuse creditor.
Claimants are responsible for—
(a) Filing a certified copy of court orders and all other required supportinginformation with OPM;
(b) Keeping OPM advised of their current mailing addresses;
(c) Notifying OPM of any changes in circumstances that could affect theirentitlement to benefits; and
(d) Submitting all disputes with employees or retirees to the appropriateState court for resolution.
Employees and retirees are responsible for—
(a) Raising any objections to the validity of a court order in theappropriate State court; and
(b) Submitting all disputes with former spouses to the appropriate Statecourt for resolution.
(a) The rules applicable for computation of time under§§ 831.107 and 841.109 of this chapter apply to this part.
(b)(1) Appendix A of this subpart lists the proper addresses for submittingcourt orders affecting CSRS and FERS benefits.
(2) A former spouse or child abuse creditor should submit the documentationrequired by this part to the address provided in appendix A of this subpart. Thecomponent of OPM responsible for processing court orders will note the date ofreceipt on court orders that it receives.
(3) If a court order is delivered to OPM at an address other than the addressin appendix A of this subpart, the recipient will forward the court order to thecomponent of OPM responsible for processing court orders. However, OPM is notconsidered to have received the court order until the court order is received inthe component of OPM responsible for processing orders.
(a) Under CSRS and FERS, employee annuities and survivor annuities arepayable on the first business day of the month following the month in which thebenefit accrues.
(b) In honoring and complying with a court order, OPM will not disrupt thepayment schedule described in paragraph (a) of this section, despite anyprovision in the court order directing a different schedule of accrual orpayment of amounts due the former spouse or child abuse creditor.
Payments under this part will not be less than one dollar per month. Anycourt order that awards a former spouse a portion of an employee annuity or aformer spouse survivor annuity in an amount of less than one dollar per monthwill be treated as an award of an annuity equal to one dollar per month.
(a) Except as provided in paragraph (c) of this section, for court ordersaffecting employee annuities or awarding former spouse survivor annuities, inthe event that OPM receives two or more court orders acceptable forprocessing—
(1) When the court orders relate to two or more individuals (former spousesor child abuse creditors), the court orders will be honored in the order inwhich they were received by OPM to the maximum extent possible under§ 838.211 or § 838.711.
(2) When two or more court orders relate to the same former spouse, separatedspouse, or child abuse creditor the one issued last will be honored.
(b)(1) Except as provided in paragraph (c) of this section, for court ordersaffecting refunds of employee contributions, in the event that OPM receives twoor more court orders acceptable for processing—
(i) When the court orders affect two or more former spouses—
(A) The refund will not be paid if either court order prohibits payment ofthe refund of contributions; otherwise,
(B) The court orders will be honored in the order in which they were issueduntil the contributions have been exhausted.
(ii) When two or more court orders relate to the same former spouse, the oneissued last will be honored first.
(2) In no event will the amount paid out exceed the amount of the refund ofemployee contributions.
(c) With respect to issues relating to the validity of a court order or tothe amount of payment—
(1) If the employee, separated employee, retiree, or other person adverselyaffected by the court order and former spouse submit conflicting court ordersfrom the same jurisdiction, OPM will consider only the latest court order; or
(2) If the employee, separated employee, retiree, or other person adverselyaffected by the court order and former spouse submit conflicting court ordersfrom different jurisdictions—
(i) If one of the court orders is from the jurisdiction shown as theemployee's, separated employee's, or retiree's address in OPM's records, OPMwill consider only the court order issued by that jurisdiction; or
(ii) If none of the court orders is from the jurisdiction shown as theemployee's, separated employee's, or retiree's address in OPM's records, OPMwill consider only the latest court order.
(a) OPM must comply with the terms of a properly filed court order acceptablefor processing even if the retiree and the former spouse agree that they wantOPM to pay an amount different from the amount specified in the court order.Information about OPM's processing of amended court orders is contained in§§ 838.225 and 838.806.
(b)(1) OPM will not honor a request from the former spouse that an amountless than the amount provided in the court order be withheld from an employeeannuity or a refund of employee contributions.
(2) OPM will not honor a request from the retiree that an amount greater thanthe amount provided in the court order be withheld from an employee annuity or arefund of employee contributions.
(a) Issues concerning application of these regulations are not appealable tothe Merit Systems Protection Board. OPM's actions to apply these regulations arenot subject to further administrative review.
(b)(1) Issues concerning the validity of these regulations are appealable tothe Merit Systems Protection Board. Such an appeal must be filed in accordancewith the procedures established by the Board and may not be filed before OPM hasissued its final decision, including a notice of the right to appeal, on thevalidity of the regulation. Such an appeal is limited to the issue of thevalidity of the regulation.
(2) Any claim that a provision of these regulations is invalid, must bepresented to the Merit Systems Protection Board before the validity of theregulation may be reviewed in the Federal courts.
(a) The mailing address for delivery of court orders affecting CSRS or FERSbenefits by the United States Postal Service is—
(b) The address for delivery of court orders affecting CSRS or FERS benefitsby process servers, express carriers, or other forms of handcarried deliveryis—
(a) This subpart regulates the procedures that the Office of PersonnelManagement will follow upon the receipt of claims arising out of State courtorders directed at employee annuities under CSRS or FERS. OPM must comply withqualifying court orders, decrees, or court-approved property settlements inconnection with divorces, annulments of marriages, or legal separations ofemployees or retirees that award a portion of an employee annuity to a formerspouse.
(b) This subpart prescribes—
(1) The circumstances that must occur before employee annuities are availableto satisfy a court order acceptable for processing; and
(2) The procedures that a former spouse must follow when applying for aportion of an employee annuity based on a court order under section 8345(j) orsection 8467 of title 5, United States Code.
(c)(1) Subpart C of this part contains the rules that a court order mustsatisfy to be a court order acceptable for processing to affect an employeeannuity.
(2) Subpart F of this part contains definitions that OPM uses to determinethe effect on employee annuity of a court order acceptable for processing.
(a)(1) Employee annuities are subject to court orders acceptable forprocessing only if all of the conditions necessary for payment of the employeeannuity to the former employee have been met, including, but not limitedto—
(i) Separation from a position in the Federal service covered by CSRS or FERSunder subpart B of part 831 of this chapter or subpart A of part 842 of thischapter, respectively;
(ii) Application for payment of the employee annuity by the former employee;and
(iii) The former employee's immediate entitlement to an employee annuity.
(2) Money held by an employing agency or OPM that may be payable at somefuture date is not available for payment under court orders directed at employeeannuities.
(3) OPM cannot pay a former spouse a portion of an employee annuity beforethe employee annuity begins to accrue.
(b) Payment to a former spouse under a court order may not exceed the netannuity.
(c) Waivers of employee annuity payments under the terms of section 8345(d)or section 8465(a) of title 5, United States Code, exclude the waived portion ofthe annuity from availability for payment under a court order if such waiversare postmarked or received before the date that OPM receives a court orderacceptable for processing.
(a) A former spouse (personally or through a representative) must apply inwriting to be eligible for a court-awarded portion of an employee annuity. Nospecial form is required.
(b) The application letter must be accompanied by—
(1) A certified copy of the court order acceptable for processing that isdirected at employee annuity;
(2) A certification from the former spouse or the former spouse'srepresentative that the court order is currently in force and has not beenamended, superseded, or set aside;
(3) Information sufficient for OPM to identify the employee or retiree, suchas his or her full name, CSRS or FERS claim number, date of birth, and socialsecurity number;
(4) The current mailing address of the former spouse; and
(5) If the employee has not retired under CSRS or FERS or died, the mailingaddress of the employee.
(c)(1) When court-ordered payments are subject to termination (under theterms of the court order) if the former spouse remarries, no payment will bemade until the former spouse submits to OPM a statement in the form prescribedby OPM certifying—
(i) That a remarriage has not occurred;
(ii) That the former spouse will notify OPM within 15 calendar days of theoccurrence of any remarriage; and
(iii) That the former spouse will be personally liable for any overpayment tohim or her resulting from a remarriage.
(2) OPM may subsequently require periodic recertification of the statementsrequired under paragraph (c)(1) of this section.
(a) If OPM receives a court order acceptable for processing that is directedat an employee annuity that is in pay status, OPM will inform—
(1) The former spouse—
(i) That the court order is acceptable for processing;
(ii) Of the date on which OPM received the court order, the date on which theformer spouse's benefit begins to accrue, and if known, the date on which OPMcommences payment under the order;
(iii) Of the amount of the former spouse's monthly benefit and the formulaOPM used to compute the monthly benefit; and
(iv) That, if he or she disagrees with the amount of the monthly benefits, heor she must obtain, and submit to OPM, an amended court order clarifying theamount; and
(2) The retiree—
(i) That the former spouse has applied for benefits under this subpart;
(ii) That the court order is acceptable for processing and that OPM mustcomply with the court order;
(iii) Of the date on which OPM received the court order, the date on whichthe former spouse's benefit begins or accrue, and if known, the date on whichOPM commences payment under the court order;
(iv) Of the amount of the former spouse's monthly benefit and the formula OPMused to compute the monthly benefit;
(v) That, if he or she contests the validity of the court order, he or shemust obtain, and submit to OPM, a court order invalidating the court ordersubmitted by the former spouse; and
(vi) That, if he or she disagrees with the amount of the former spouse'smonthly benefits, he or she must obtain, and submit to OPM, an amended courtorder clarifying the amount.
(b) If OPM receives a court order acceptable for processing that is directedat an employee annuity but the employee has died, or if a retiree dies afterpayments from an employee to a former spouse have begun, OPM will inform theformer spouse that the employee or retiree has died and that OPM can only honorcourt orders dividing employee annuities during the lifetime of the retiree.
(c) If OPM receives a court order acceptable for processing that is directedat an employee annuity that is not in pay status, OPM will inform—
(1) The former spouse—
(i) That the court order is acceptable for processing;
(ii) That benefits cannot begin to accrue until the employee retires;
(iii) To the extent possible, the formula that OPM will use to compute theformer spouse's monthly benefit; and
(iv) That, if he or she disagrees with the formula, he or she must obtain,and submit to OPM, an amended court order clarifying the amount; and
(2) The employee, separated employee, or retiree—
(i) That the former spouse has applied for benefits under this subpart;
(ii) That the court order is acceptable for processing and that OPM mustcomply with the court order;
(iii) To the extent possible, the formula that OPM will use to compute theformer spouse's monthly benefit;
(iv) That, if he or she contests the validity of the court order, he or shemust obtain, and submit to OPM, a court order invalidating the court ordersubmitted by the former spouse; and
(v) That, if he or she disagrees with the amount of the former spouse'smonthly benefits, he or she must obtain, and submit to OPM, an amended courtorder clarifying the amount.
(d) The failure of OPM to provide, or of the employee, separated employee, orretiree or the former spouse to receive, the information specified in thissection prior to the commencing date of a reduction or accrual does notaffect—
(1) The validity of payment under the court order; or
(2) The commencing date of the reduction in the employee annuity or thecommencing date of the accrual of former spouse benefits as determined under§ 838.231.
If OPM receives an application from a former spouse not based on a courtorder acceptable for processing, OPM will inform the former spouse that OPMcannot approve the application and provide the specific reason(s) fordisapproving the application. Examples of reasons for disapproving anapplication include that the court order does not meet the definition of courtorder in § 838.103 or does not meet one or more of the requirementsof subpart C of this part.
(a) An employee, separated employee, or retiree who alleges that a courtorder is invalid must prove the invalidity of the court order by submitting acourt order that—
(1) Declares the court order submitted by the former spouse is invalid; or
(2) Sets aside the court order submitted by the former spouse.
(b) OPM must honor a court order acceptable for processing that appears to bevalid and that the former spouse has certified is currently in force and has notbeen amended, superseded, or set aside, until OPM receives a court orderdescribed in paragraph (a) of this section or a court order amending orsuperseding the court order submitted by the former spouse.
(a) If the employee, separated employee, retiree, or former spouse submits anamended court order pertaining to payment of a portion of the employee annuity,OPM will process the amended court order prospectively only, effective againstemployee annuity accruing beginning the first day of the second month after OPMreceives the amended court order.
(b) A court order is not effective to adjust payments prior to the first dayof the second month after OPM receives the court order unless—
(1) The court order—
(i) Expressly directs OPM to adjust for payment made under the prior courtorder; and
(ii) Determines the total amount of the adjustment or the length of time overwhich OPM will make the adjustment; and
(iii) Provides a specific monthly amount of the adjustment or a formula tocompute the amount of the monthly adjustment; and
(2) Annuity continues to be available from which to make the adjustment.
(a) A court order acceptable for processing is effective against employeeannuity accruing beginning the first day of the second month after OPM receivesthe court order.
(b)(1) OPM will not begin payments to the former spouse until OPM receivesall the documentation required by § 838.221 (b) and (c).
(2) If payments are delayed under paragraph (b)(1) of this section, after OPMreceives all required documentation, it will authorize payment of the annuitythat has accrued since the date determined under paragraph (a) of this sectionbut the payment of which was delayed under paragraph (b)(1) of this section.
(a) Payments from employee annuities under this part will be discontinuedwhenever the employee annuity payments are suspended or terminated.
(b) Paragraph (a) of this section will not be applied to permit a retiree todeprive a former spouse of payment by causing suspension of payment of employeeannuity.
A former spouse portion of an employee annuity stops accruing at the earliestof—
(a) The date on which the terms of the court order require termination;
(b)(1) The last day of the first month before OPM receives a court orderinvalidating, vacating, or setting aside the court order submitted by the formerspouse if OPM receives the latest court order no later than 20 days before theend of the month; or
(2) The last day of the month in which OPM receives a court orderinvalidating, vacating, or setting aside the court order submitted by the formerspouse if OPM receives the latest court order than 20 days before the end of themonth; or
(c) The last day of the first month after OPM receives an amended courtorder;
(d) The last day of the first month before the death of the retiree; or
(e) Except as provided in § 838.237, the date on which the formerspouse dies.
Specific instructions are required before OPM may pay any arrearage. Exceptas provided in § 838.225(b), OPM will not increase a former spouse'sshare of employee annuity to satisfy an arrearage due the former spouse.However, under § 838.225, OPM will prospectively honor the terms ofan amended court order that either increases or decreases the court order'sentitlement.
If a court order acceptable for processing awards a former spouse a lump-sumamount from the employee annuity and does not state the monthly rate at whichOPM should pay the lump-sum, OPM will pay the former spouse equal monthlyinstallments at 50 percent of the gross annuity (subject to the limitationsunder § 838.211) at the time of retirement or the date of the order,whichever comes later, until the lump-sum amount is paid.
(a) State courts lack authority to prevent OPM from paying employee annuitiesas required by section 8345(a) or section 8463 of title 5, United States Code.OPM will not honor court orders directing that OPM delay or otherwise not payemployee annuities at the time or in the amount required by statute.
(b) Except as otherwise provided in this subpart, OPM will honor court ordersacceptable for processing that direct OPM to pay the employee annuity to thecourt, an officer of the court acting as a fiduciary, or a State or localgovernment agency during the pendency of a divorce or legal separationproceeding.
(a) Unless the court order acceptable for processing expressly providesotherwise, the former spouse's share of an employee annuity terminates on thelast day of the month before the death of the former spouse, and the formerspouse's share of employee annuity reverts to the retiree.
(b) Except as otherwise provided in this subpart, OPM will honor a courtorder acceptable for processing or an amended court order acceptable forprocessing that directs OPM to pay, after the death of the former spouse, theformer spouse's share of the employee annuity to—
(1) The court;
(2) An officer of the court acting as fiduciary;
(3) The estate of the former spouse; or
(4) One or more of the retiree's children as defined in section 8342(c) orsection 8424(d) of title 5, United States Code.
Unless otherwise provided in the court order, when the terms of the courtorder or § 838.621 provide for cost-of-living adjustments on theformer spouse's payment from employee annuity, the cost-of-living adjustmentwill be effected at the same time and at the same percentage rate as the cost-of-living adjustment in the employee annuity.
(a)(1) The smallest unit of time that OPM will calculate in computing aformula in a court order is a month, even where the court order directs OPM tomake a more precise calculation.
(2) If the court order states a formula using a specified simple or decimalfraction other than twelfth parts of a year, OPM will use the specified numberto perform simple mathematical computations.
(b) Unused sick leave is counted as “creditable service” on thedate of separation for an immediate CSRS annuity; it is not apportioned over thetime when earned. Unused sick leave is not countable as “creditableservice” in a FERS annuity (except in a CSRS component for an employee whotransferred to FERS) or in a deferred CSRS annuity.
OPM will treat any court order that awards a former spouse a portion of anemployee annuity equal to less than $12 per year as awarding the former spouse$1 per month.
This subpart regulates the requirements that a court order directed atemployee annuity must meet to be a court order acceptable for processing.
(a)
(2) When a court order is required by paragraph (a)(1) of this section tostate that the provisions of a court order concerning CSRS or FERS benefits aregoverned by this part the court order must expressly—
(i) Refer to part 838 of title 5, Code of Federal Regulations, and
(ii) State that the provisions of the court order concerning CSRS or FERSbenefits are drafted in accordance with the terminology used in this part.
(3) Although any language satisfying the requirements of paragraph (a)(2) ofthis section is sufficient to prevent a court order from being unacceptableunder paragraph (a)(1) of this section, OPM recommends the use of the languageprovided in ¶ 001 in appendix A to subpart F of this part to statethat the provisions of the court order concerning CSRS or FERS benefits aregoverned by this part.
(4) A court order directed at employee annuity that contains the languagedescribed in paragraph (a)(2) of this section must also satisfy all otherrequirements of this subpart to be a court order acceptable for processing.
(b)
(a) A court order directed at employee annuity is not a court orderacceptable for processing unless it expressly divides the employee annuity asprovided in paragraph (b) of this section.
(b) To expressly divide employee annuity as required by paragraph (a) of thissection the court order must—
(1) Identify the retirement system using terms that are sufficient toidentify the retirement system as explained in § 838.611; and
(2) Expressly state that the former spouse is entitled to a portion of theemployee annuity using terms that are sufficient to identify the employeeannuity as explained in § 838.612.
(a) A court order directed at employee annuity is not a court orderacceptable for processing unless it provides for OPM to pay the former spouse aportion of an employee annuity as provided in paragraph (b) of this section.
(b) To provide for OPM to pay the former spouse a portion of an employeeannuity as required by paragraph (a) of this section the court order must—
(1) Expressly direct OPM to pay the former spouse directly;
(2) Direct the retiree to arrange or to execute forms for OPM to pay theformer spouse directly; or
(3) Be silent concerning who is to pay the portion of the employee annuityawarded to the former spouse.
(c) Except when the court order directed at employee annuity contains aprovision described in paragraph (b)(2) of this section, a court order directedat employee annuity that instructs the retiree to pay a portion of the employeeannuity to the former spouse is not a court order acceptable for processing.
(d) Although paragraphs (b)(2) and (b)(3) of this section provide acceptablemethods for satisfying the requirement that a court order directed at employeeannuity provide for OPM to pay the former spouse, OPM strongly recommends thatany court order directed at employee annuity expressly direct OPM to pay theformer spouse directly.
(a) A court order directed at employee annuity is not a court orderacceptable for processing unless the court order provides sufficientinstructions and information that OPM can compute the amount of the formerspouse's monthly benefit using only the express language of the court order,subparts A, B, and F of this part, and information from normal OPM files.
(b)(1) To provide sufficient instructions and information for OPM to computethe amount of the former spouse's share of the employee annuity as required byparagraph (a) of this section the court order must state the former spouse'sshare as—
(i) A fixed amount;
(ii) A percentage or a fraction of the employee annuity; or
(iii) A formula that does not contain any variables whose values are notreadily ascertainable from the face of the court order directed at employeeannuity or normal OPM files.
(2) Normal OPM files include information about—
(i) The dates of employment for all periods of creditable civilian andmilitary service;
(ii) The rate of basic pay for all periods of creditable civilian service;
(iii) The annual rates of basic pay for each grade and step under the GeneralSchedule since 1920;
(iv) The amount of premiums for basic and optional life insurance under theFederal Employees Group Life Insurance Program;
(v) The amount of the Government and the employee shares of premiums for anyhealth insurance plan under the Federal Employees Health Benefits Program;
(vi) The standard Federal income tax withholding tables;
(vii) The amount of cost-of-living adjustments under section 8340 or section8462 of title 5, United States Code, and the amount of the percentage change inthe national index on which the adjustment is based;
(viii) The amount of pay adjustments to the General Schedule under section
(ix) The provision of law under which a retiree has retired; and
(x) Whether a retiree has elected to provide survivor benefits for a currentspouse, former spouse, or a person with an insurable interest.
(c)(1) A court order directed at employee annuity is not a court orderacceptable for processing if OPM would have to examine a State statute or courtdecision (on a different case) to understand, establish, or evaluate the formulafor computing the former spouse's share of the employee annuity.
(2) A court order directed at employee annuity is not a court orderacceptable for processing if it awards the former spouse a “communityproperty” fraction, share, or percentage of the employee annuity and doesnot provide a formula by which OPM can compute the amount of the former spouse'sshare of the employee annuity from the face of the court order or from normalOPM files.
(d) A court order directed at employee annuity is not a court orderacceptable for processing if the court order awards a portion of the“present value” of an annuity unless the amount of the“present value” is stated in the court order.
(e) A court order directed at employee annuity is not a court orderacceptable for processing if the court order directs OPM to determine a rate ofemployee annuity that would require OPM to determine a salary or average salary,other than a salary or average salary actually used in computing the employeeannuity, as of a date prior to the date of the employee's separation and toadjust that salary for use in computing the former spouse share unless theadjustment is by—
(1) A fixed amount or fixed annual amounts that are stated in the order;
(2) The rate of cost-of-living or salary adjustments as those terms aredescribed in § 838.622;
(3) The percentage change in pay that the employee actually receivedexcluding changes in grade and/or step; or
(4) The percentage change in either of the national indices used to computecost-of-living or salary adjustments as those terms are described in§ 838.622.
(a) A court order directed at employee annuity that states the formerspouse's share of employee annuity as a formula, percentage, or fraction is nota court order acceptable for processing unless OPM can determine the type ofannuity on which to apply the formula, percentage, or fraction.
(b) The standard types of annuity to which OPM can apply the formula,percentage, or fraction are net annuity, gross annuity, or self-only annuity,which are defined in § 838.103. Unless the court order otherwisedirects, OPM will apply the formula, percentage, or fraction to gross annuity.Section 838.625 contains information on other methods of describing these typesof annuity.
(a) This subpart regulates the procedures that the Office of PersonnelManagement will follow upon the receipt of claims arising out of State courtorders that affect refunds of employee contributions under CSRS or FERS. OPMmust comply with court orders, decrees, or court-approved property settlementsin connection with divorces, annulments of marriages, or legal separations ofemployees or retirees that—
(1) Award a portion of a refund of employee contributions to a former spouse;or
(2) If the requirements of §§ 838.431 and 838.505 are met,bar payment of a refund of employee contributions.
(b) This subpart prescribes—
(1) The circumstances that must occur before refunds of employeecontributions are available to satisfy a court order acceptable for processing;and
(2) The procedures that a former spouse must follow when applying for aportion of a refund of employee contributions based on a court order undersection 8345(j) or section 8467 of title 5, United States Code.
(c)(1) Subpart E of this part contains the rules that a court order directedat a refund of employee contributions must satisfy to be a court orderacceptable for processing.
(2) Subpart F of this part contains definitions that OPM uses to determinethe effect on a refund of employee contributions of a court order acceptable forprocessing.
(a)(1) Refunds of employee contributions are subject to court ordersacceptable for processing only if all of the conditions necessary for payment ofthe refund of employee contributions to the separated employee have been met,including, but not limited to—
(i) Separation from a covered position in the Federal service;
(ii) Application for payment of the refund of employee contributions by theseparated employee; and
(iii) Immediate entitlement to a refund of employee contributions.
(2) Money held by an employing agency or OPM that may be payable at somefuture date is not available for payment under court orders directed at refundsof employee contributions.
(b) Payment under a court order may not exceed the amount of the refund ofemployee contributions.
(a) A former spouse (personally or through a representative) must apply inwriting to be eligible for a court-awarded portion of a refund of employeecontributions. No special form is required.
(b) The application letter must be accompanied by—
(1) A certified copy of the court order acceptable for processing that isdirected at a refund of employee contributions.
(2) A certification from the former spouse or the former spouse'srepresentative that the court order is currently in force and has not beenamended, superseded, or set aside;
(3) Information sufficient for OPM to identify the employee or separatedemployee, such as his or her full name, date of birth, and social securitynumber;
(4) The current mailing address of the former spouse; and
(5) If the employee or separated employee has not applied for a refund ofemployee contributions, the current mailing address of the employee or separatedemployee.
(a) Except as provided in § 838.431 and paragraph (b) of thissection, a court order acceptable for processing that is directed at a refund ofemployee contributions is not effective unless OPM receives the documentationrequired by § 838.421 not later than—
(1) The last day of the second month before payment of the refund; or
(2) Twenty days after OPM receives the Statement required by§ 831.2007(c) or § 843.208(b) of this chapter if theformer spouse has indicated on that Statement that such a court order exists.
(b) If OPM receives a copy of a court order acceptable for processing that isdirected at a refund of employee contributions but not all of the documentationrequired by § 838.421, OPM will notify the former spouse that OPMmust receive the missing items within 15 days after the date of the notice orOPM cannot comply with the court order.
(a) If OPM receives a court order acceptable for processing that is directedat a refund of employee contributions, OPM will inform—
(1) The former spouse—
(i) That the court order is acceptable for processing;
(ii) Of the date on which OPM received the court order;
(iii) Whether OPM has a record of unrefunded employee contributions on theemployee;
(iv) That the former spouse's share of the refund of employee contributionscannot be paid unless the employee separates from the Federal service andapplies for a refund of employee contributions;
(v) To the extent possible, the formula that OPM will use to compute theformer spouse's share of a refund of employee contributions; and
(vi) That, if the former spouse disagrees with the formula, the former spousemust obtain, and submit to OPM, an amended court order clarifying the amount;and
(2) The employee or separated employee—
(i) That the former spouse has applied for benefits under this subpart;
(ii) That the court order is acceptable for processing and that OPM mustcomply with the court order;
(iii) Of the date on which OPM received the court order;
(iv) That the former spouse's share of the refund of employee contributionscannot be paid unless the employee separates from the Federal service andapplies for a refund of employee contributions;
(v) To the extent possible, the formula that OPM will use to compute theformer spouse's share of the refund of employee contributions;
(vi) That, if he or she contests the validity of the court order, he or shemust obtain, and submit to OPM, a court order invalidating the court ordersubmitted by the former spouse; and
(vii) That, if he or she disagrees with the formula, he or she must obtain,and submit to OPM, an amended court order clarifying the amount.
(b) The failure of OPM to provide, or of the employee or separated employeeor the former spouse to receive, the information specified in this section doesnot affect the validity of payment under the court order.
If OPM receives an application from a former spouse not based on a courtorder acceptable for processing, OPM will inform the former spouse that OPMcannot approve the application and provide the specific reason(s) fordisapproving the application. Examples of reasons for disapproving anapplication include that the order does not meet the definition of court orderin § 838.103 or does not meet one or more of the requirements ofsubpart E of this part.
(a) An employee or separated employee who alleges that a court order isinvalid must prove the invalidity of the court order by submitting a court orderthat—
(1) Declares invalid the court order submitted by the former spouse; or
(2) Sets aside the court order submitted by the former spouse.
(b) OPM must honor a court order acceptable for processing that appears to bevalid and that the former spouse has certified is currently in force and has notbeen amended, superseded, or set aside, until the employee or separated employeesubmits a court order described in paragraph (a) of this section or a courtorder amending or superseding the court order submitted by the former spouse.
The interests of a former spouse with a court order acceptable for processingthat is directed at a refund of employee contributions who does not receivenotice of an application for refund of employee contributions because theemployee or separated employee submits fraudulent proof of notification orfraudulent proof that the former spouse's whereabouts are unknown are protectedif, and only if—
(a) The former spouse files a court order acceptable for processing thataffects or bars the refund of employee contributions with OPM no later than thelast day of the second month before the payment of the refund; or
(b) The former spouse submits proof that—
(1) The evidence submitted by the employee was fraudulent; and
(2) Absent the fraud, the former spouse would have been able to submit thenecessary documentation required by § 838.421 within the time limitprescribed in § 838.422.
A court order, notice, summons, or other document that attempts to restrainOPM from paying a refund of employee contributions is not effective unless itmeets all the requirements of § 838.505 or part 581 of this chapter.
(a) The smallest unit of time that OPM will calculate in computing a formulain a court order is a month, even where the court order directs OPM to make amore precise calculation.
(b) If the court order states a formula using a specified simple or decimalfraction other than twelfth parts of a year, OPM will use the specified numberto perform simple mathematical computations.
This subpart regulates the requirements that a court order directed at orbarring a refund of employee contributions must meet to be a court orderacceptable for processing.
(a) A court order is directed at a refund of employee contributions if itawards a former spouse a portion of a refund of employee contributions.
(b) A court order bars a refund of employee contributions if it prohibitspayment of a refund of employee contributions to preserve a former spouse'scourt-awarded entitlement to a portion of an employee annuity or to a formerspouse survivor annuity.
(a) A court order directed at a refund of employee contributions is not acourt order acceptable for processing unless it expressly awards a former spousea portion of a refund of employee contributions as provided in paragraph (b) ofthis section.
(b) To expressly award a former spouse a portion of a refund of employeecontributions as required by paragraph (a) of this section, the court ordermust—
(1) Identify the retirement system using terms that are sufficient toidentify the retirement system as explained in § 838.611; and
(2) Expressly state that the former spouse is entitled to a portion of arefund of employee contributions using terms that are sufficient to identify therefund of employee contributions as explained in § 838.612.
(a) A court order directed at a refund of employee contributions is not acourt order acceptable for processing unless it provides for OPM to pay aportion of a refund of employee contributions to the former spouse as providedin paragraph (b) of this section.
(b) To provide for OPM to pay a portion of a refund of employee contributionsto the former spouse as required by paragraph (a) of this section, the courtorder must—
(1) Expressly direct OPM to pay the former spouse directly;
(2) Direct the employee or separated employee to arrange or to execute formsfor OPM to pay the former spouse directly; or
(3) Be silent concerning who is to pay the portion of the refund of employeecontributions awarded to the former spouse.
(c) Although paragraphs (b)(2) and (b)(3) of this section provide acceptablemethods for satisfying the requirement that the court order provide for OPM topay the former spouse, OPM strongly recommends that the court order expresslydirect OPM to pay the former spouse directly.
(a) A court order directed at a refund of employee contributions is not acourt order acceptable for processing
(b) To provide sufficient instructions and information that OPM can computethe amount of the former spouse's share of the refund of employee contributionsas required by paragraph (a) of this section requires that the court order statethe former spouse's share as—
(1) A fixed amount;
(2) A percentage or a fraction of the refund of employee contributions; or
(3) A formula that does not contain any variables whose values are notreadily ascertainable from the face of the court order or normal OPM files.
(c) A court order directed at a refund of employee contributions is not acourt order acceptable for processing if OPM would have to examine a Statestatute or court decision (on a different case) to understand, establish, orevaluate the formula for computing the former spouse's share of the refund ofemployee contributions.
A court order barring payment of a refund of employee contributions is not acourt order acceptable for processing unless—
(a) It expressly directs OPM not to pay a refund of employee contributions;
(b) It awards, or a prior court order acceptable for processing has awarded,the former spouse a former spouse survivor annuity or a portion of the employeeannuity; and
(c) Payment of the refund of employee contributions would prevent payment tothe former spouse under the court order described in paragraph (b) of thissection.
(a) This subpart regulates the meaning of terms necessary to award benefitsin a court order directed at an employee annuity or a refund of employeecontributions. OPM applies the meanings to determine whether a court orderdirected at an employee annuity or a refund of employee contributions is a courtorder acceptable for processing and to establish the amount of the formerspouse's share of an employee annuity or a refund of employee contributions.
(b)(1) This subpart establishes a uniform meaning to be used for terms andphrases frequently used in awarding a former spouse a portion of an employeeannuity or a refund of employee contributions.
(2) This subpart informs the legal community about the definitions to applyterms used in drafting court orders so that the resulting court orders containthe proper language to accomplish the aims of the court.
(c)(1) To assist attorneys and courts in preparing court orders that OPM canhonor in the manner that the court intends, appendix A of this subpart containsmodel language to accomplish many of the more common objectives associated withthe award of a former spouse's share of an employee annuity or a refund ofemployee contributions.
(2) By using the language in appendix A of this subpart, the court,attorneys, and parties will know that the court order will be acceptable forprocessing and that OPM will treat the terminology used in the court order inthe manner stated in the appendix.
(a) To satisfy the requirements of § 838.303(b)(1) or§ 838.502(b)(1), a court order must contain language identifying theretirement system to be affected. For example, “CSRS,”“FERS,” “OPM,” or “Federal Government”benefits, or benefits payable “based on service with the U.S. Departmentof Agriculture,” etc., are sufficient identification of the retirementsystem.
(b) Except as provided in paragraphs (b)(1) and (b)(2) of this section,language referring to benefits under another retirement system, such as militaryretired pay, Foreign Service retirement benefits or Central Intelligence Agencyretirement benefits, does not satisfy the requirements of§ 838.303(b)(1) or § 838.502(b)(1).
(1) A court order that mistakenly labels CSRS benefits as FERS benefits andvice versa satisfies the requirements of §§ 838.303(b)(1) and838.502(b)(1).
(2) Unless the court order expressly provides otherwise, for employeestransferring to FERS, court orders directed at CSRS benefits apply to the entireFERS basic benefit, including the CSRS component, if any. Such a court ordersatisfies the requirements of §§ 838.303(b)(1) and838.502(b)(1).
(c) A court order affecting military retired pay, even when military retiredpay has been waived for inclusion in CSRS annuities, does not award a formerspouse a portion of an employee annuity or a refund of employee contributionsunder CSRS or FERS. Such a court order does not satisfy the requirements of§ 838.303(b)(1) or § 838.502(b)(1).
(a) A court order using “annuities,” “pensions,”“retirement benefits,” or similar terms satisfies the requirementsof §§ 838.303(b)(2) and 838.502(b)(2) and may be used to dividean employee annuity and a refund of employee contributions.
(b)(1) A court order using “contributions,”“deductions,” “deposits,” “retirementaccounts,” “retirement fund,” or similar terms satisfies therequirements of § 838.502(b)(2) and may be used only to divide theamount of contributions that the employee has paid into the Civil ServiceRetirement and Disability Fund.
(2) Unless the court order specifically states otherwise, when an employeeannuity is payable, a court order using the terms specified in paragraph (b)(1)of this section satisfies the requirements of § 838.303(b)(2) andawards the former spouse a benefit to be paid in equal monthly installments at50 percent of the gross annuity at the time of retirement or the date of thecourt order, whichever comes later, until the specific dollar amount is reached.
(a)
(b) A court order that awards a former spouse a prorata share of an employeeannuity or a refund of employee contributions by using the term “proratashare” and identifying the date when the marriage began satisfies therequirements of §§ 838.305 and 838.504 and awards the formerspouse a prorata share as defined in paragraph (a) of this section.
(c) A court order that awards a portion of an employee annuity as of aspecified date before the employee's retirement awards the former spouse aprorata share as defined in paragraph (a) of this section.
(d) A court order that awards a portion of the “value” of anannuity as of a specific date before retirement, without specifying what“value” is, awards the former spouse a prorata share as defined inparagraph (a) of this section.
(a)(1) A court order that awards adjustments to a former spouse's portion ofan employee annuity stated in terms such as “cost-of-livingadjustments” or
(2) A court order that awards adjustments to a former spouse's portion of anemployee annuity stated in terms such as “salary adjustments” or“pay adjustments” occurring after the date of the decree providesincreases equal to the adjustments described in or effected under section 5303of title 5, United States Code until the date of retirement.
(b)(1) Unless the court order directly and unequivocally orders otherwise, acourt order that awards a former spouse a portion of an employee annuity eitheron a percentage basis or by use of a fraction or formula provides that theformer spouse's share of the employee annuity will be adjusted to maintain thesame percentage or fraction whenever the employee annuity changes as a resultof—
(i) Salary adjustments occurring after the date of the decree and before theemployee retires; and
(ii) Cost-of-living adjustments occurring after the date of the decree andafter the date of the employee's retirement.
(2) A court order that awards a former spouse a specific dollar amount fromthe employee annuity prevents the former spouse from benefiting from salary andcost-of-living adjustments after the date of the decree, unless the courtexpressly orders their inclusion.
(c)(1)(i) Except as provided in paragraph (b) of this section, a court orderthat contains a general instruction to calculate the former spouse's shareeffective at the time of divorce or separation entitles the former spouse to thebenefit of salary adjustments occurring after the specified date to the sameextent as the employee.
(ii) To prevent the application of salary adjustments after the date of thedivorce or separation, the court order must either state the exact dollar amountof the award to the former spouse or specifically instruct OPM not to applysalary adjustments after the specified date in computing the former spouse'sshare of the employee annuity.
(2)(i) Except as provided in paragraph (b) of this section, a court orderthat requires OPM to compute a benefit as of a specified date before theemployee's retirement, and specifically instructs OPM not to apply salaryadjustments after the specified date in computing the former spouse's share ofan employee annuity provides that the former spouse is entitled to theapplication of cost-of-living adjustments after the date of the employee'sretirement in the manner described in § 838.241.
(ii) To award cost-of-living adjustments between a specified date and theemployee's retirement, the court order must specifically instruct OPM to adjustthe former spouse's share of the employee annuity by any cost-of-livingadjustments occurring between the specified date and the date of the employee'sretirement.
(iii) To prevent the application of cost-of-living adjustments that occurafter the employee annuity begins to accrue to the former spouse's share of theemployee annuity, the decree must either state the exact dollar amount of theaward to the former spouse or specifically instruct OPM not to apply cost-of-living adjustments occurring after the date of the employee's retirement.
(a) Sections 838.242 and 838.441 contain information on how OPM calculateslengths of service.
(b) Unless the court order otherwise expressly directs—
(1) For the purpose of describing a period of time to be excluded from anyelement of a computation, the term “military service” means militaryservice as defined in section 8331(13) of title 5, United States Code, and doesnot include civilian service with the Department of Defense or the Coast Guard;and
(2) For the purpose of describing a period of time to be included in anyelement of a computation, the term “military service” means allperiods of military and civilian service performed with the Department ofDefense or the Coast Guard.
(c)(1) When a court order contains a formula for dividing employee annuitythat requires a computation of service worked as of a date prior to separationand using terms such as “years of service,” “totalservice,” “service performed,” or similar terms, the timeattributable to unused sick leave will not be included.
(2) When a court order contains a formula for dividing employee annuity thatrequires a computation of “creditable service” (or some other phraseusing “credit” or its equivalent) as of a date prior to retirement,unused sick leave will be included in the computation (involving a CSRS employeeannuity or the CSRS component of a FERS employee annuity) as follows:
(i) If the amount of unused sick leave is specified, the court order awards aportion of the employee annuity equal to the monthly employee annuity atretirement times a fraction, the numerator of which is the number of months of“creditable service” as of the date specified plus the number ofmonths of unused sick leave specified (which sum is rounded to eliminate partialmonths) and whose denominator is the months of “creditable service”used in the retirement computation.
(ii) If the amount of unused sick leave is not specified, the court orderawards a portion of the employee annuity equal to the monthly rate at the timeof retirement times a fraction, the numerator of which is the number of monthsof “creditable service” as of the date specified (no sick leaveincluded) and whose denominator is the number of months of “creditableservice” used in the retirement computation (sick leave included).
(d)(1) General language such as “benefits earned as an employee withthe U.S. Postal Service * * *” provides only that CSRSretirement benefits are subject to division and does not limit the period ofservice included in the computation (i.e., service performed with otherGovernment agencies will be included).
(2) To limit the computation of benefits to a particular period ofemployment, the court order must—
(i) Use language expressly limiting the period of service to be included inthe computation (e.g., “only U.S. Postal Service” or“exclusive of any service other than U.S. Postal Serviceemployment”); or
(ii) Specify the number of months to be included in the computation; or
(iii) Describe specifically the period of service to be included in thecomputation (e.g., “only service performed during the period Petitionerand Defendant were married” or “benefits based on service performedthrough the date of divorce”).
(a) A court order that contains both a formula or percentage instruction anda dollar amount is deemed to include the dollar amount only as the court'sestimate of the initial amount of payment. The formula or percentage instructioncontrols.
(b) A court order that awards a portion of the “present value” ofan employee annuity and specifically states the amount of either the“present value” of the employee annuity or of the award is deemed togive the former spouse “a specific dollar amount” that is payablefrom a monthly employee annuity and will be paid as a lump-sum award inaccordance with § 838.235.
(a) Terms that are synonymous with net annuity are—
(1) Disposable annuity; and
(2) Retirement check.
(b) Terms that are synonymous with self-only annuity are—
(1) Life rate annuity;
(2) Unreduced annuity; and
(3) Annuity without survivor benefit.
(c) All court orders that do not specify net annuity or self-only annuityapply to gross annuity.
This appendix provides recommended language for use in court ordersattempting to divide employee annuity. A court order directed at employeeannuity should include five elements:
• Identification of the benefits;
• Instructions that OPM pay the former spouse;
• A method for computing the amount of the former spouse'sbenefit;
• Identification of the type of annuity to which to apply afraction, percentage or formula; and
• Instructions on what OPM should do if the employee leavesFederal service before retirement and applies for a refund of employeecontributions.
The court order may also include instructions for disposition of the formerspouse's share if the former spouse dies before the employee. By using the modellanguage, courts will know that the court order will have the effect describedin this appendix.
The model language in this appendix does not award a benefit that is payableafter the death of the employee. A separate, distinct award of a former spousesurvivor annuity is necessary to award a former spouse a benefit that is payableafter the death of the employee. Appendix A to subpart I of this part containsmodel language for awarding survivor annuities and contains some examples thataward both a portion of an employee annuity and a survivor annuity.
The model language uses the terms “[former spouse]” to identifythe spouse who is receiving a former spouse's portion of an employee annuity and“[employee]” to identify the Federal employee whose employment wascovered by the Civil Service Retirement System or the Federal EmployeesRetirement System. Obviously, in drafting an actual court order the appropriateterms, such as “Petitioner” and “Respondent,” or thenames of the parties should replace “[former spouse]” and“[employee].”
Similarly, the models are drafted for employees covered by the Civil ServiceRetirement System. The name of the retirement system should be changed foremployees covered by the Federal Employees Retirement System.
Using the following paragraph will expressly state that the provisions of thecourt order concerning CSRS or FERS benefits are governed by this part. A courtorder directed at employee annuity (or awarding a survivor annuity) that islabelled a “Qualified Domestic Relations Order” or is issued on anERISA form will not be automatically rendered unacceptable under§ 838.302(a) or § 838.803(a) if the court order containsthe following paragraph.
“The court has considered the requirements and standard terminologyprovided in part 838 of Title 5, Code of Federal Regulations. The terminologyused in the provisions of this order that concern benefits under the CivilService Retirement System are governed by the standard conventions establishedin that part.”
Using the following paragraph will expressly divide employee annuity tosatisfy the requirements of § 838.303 and direct OPM to pay theformer spouse a share of an employee annuity to satisfy the requirements of§ 838.304.
“[Employee] is (or will be) eligible for retirement benefits under theCivil Service Retirement System based on employment with the United StatesGovernment. [Insert language for computing the former spouse's
Using the following paragraph will protect the former spouse interest inmilitary retired pay in the event that the employee waives the military retiredpay to allow crediting the military service under CSRS or FERS. The paragraphshould be used only if the former spouse is awarded a portion of the militaryretired pay. “If [Employee] waives military retired pay to credit militaryservice under the Civil Service Retirement System, [insert language forcomputing the former spouse's share from 200 series of this appendix]. TheUnited States Office of Personnel Management is directed to pay [formerspouse]'s share directly to [former spouse].”
Paragraphs 201 through 204 contain model language for the most common typesof wards that court orders make to former spouses. Subsequent paragraphs in the200 series contain model language for less common, more complex awards.
Awards other than fixed amounts require that the court order specify the typeof annuity (“gross,” “net,” or self-only) on which theaward is computed. The types of annuity are defined in § 838.103.Variations on type of annuity are covered by the 300 series of this appendix.
Using the following paragraph will award the former spouse a fixed monthlyamount. OPM will not apply COLA's to a fixed monthly amount unless the courtorder expressly directs that OPM and COLA's using the language in¶ 231 of this appendix or similar language.
“[Employee] is (or will be) eligible for retirement benefits under theCivil Service Retirement System based on employment with the United StatesGovernment. [Former spouse] is entitled to $[insert a number] per month from[employee]'s civil service retirement benefits. The United States Office ofPersonnel Management is directed to pay [former spouse]'s share directly to[former spouse].”
Using the following paragraph will award the former spouse a statedpercentage of the employee annuity. Unless the court order expressly directlythat OPM not add COLA's to the former spouse's share of the employee annuity,OPM will add COLA's to keep the former spouse's share at the stated percentage.Paragraph 232 of this appendix provides language for excluding COLA's.
“[Employee] is (or will be) eligible for retirement benefits under theCivil Service Retirement System based on employment with the United StatesGovernment. [Former spouse] is entitled to [insert a number] percent of[employee]'s [insert “gross,” “net,” or “self-only”] monthly annuity under the Civil Service Retirement System. TheUnited States Office of Personnel Management is directed to pay [formerspouse]'s share directly to [former spouse].”
Using the following paragraph will award the former spouse a stated fractionof the employee annuity. Unless the court order expressly directly that OPM notadd COLA's to the former spouse's share of the employee annuity, OPM will addCOLA's to keep the former spouse's share at the stated percentage. Paragraph 232of this appendix provides language for excluding COLA's.
“[Employee] is (or will be) eligible for retirement benefits under theCivil Service Retirement System based on employment with the United StatesGovernment. [Former spouse] is entitled to [insert fraction] ths of[employee]'s [insert “gross,” “net,” or “self-only”] monthly annuity under the Civil Service Retirement System. TheUnited States Office of Personnel Management is directed to pay [formerspouse]'s share directly to [former spouse].”
Using the following paragraph will award the former spouse a prorata share ofthe employee annuity. Prorata share is defined in § 838.621. To awarda prorata share the court order must state the date of the marriage. Unless thecourt order specifies a different ending date, the marriage ends for computationpurposes on the date that the court order is filed with the court clerk. Unlessthe court order expressly directs that OPM not add COLA's to the former spouse'sshare of the employee annuity, OPM will add COLA's to keep the former spouse'sshare at the stated percentage. Paragraph 232 of this appendix provides languagefor excluding COLA's.
“[Employee] is (or will be) eligible for retirement benefits under theCivil Service Retirement System based on employment with the United StatesGovernment. [Former spouse] is entitled to a prorata share of [employee]'s[insert ‘gross,' ‘net,' or self-only] monthly annuity under theCivil Service Retirement System. The marriage began on [insert date]. The UnitedStates Office of Personnel Management is directed to pay [former spouse]'s sharedirectly to [former spouse].”
Using the following paragraphs will award the former spouse a share of theemployee annuity based on a formula stated in the court order. The formula mustbe stated in the court order (including a court-approved property settlementagreement). The formula may not be incorporated by reference to a statutoryprovision or a court decision in another case. If the court order uses aformula, the court order must include any data that is necessary for OPM toapply the formula unless the necessary data is contained in normal OPM files.
“[Employee] is (or will be) eligible for retirement benefits under theCivil Service Retirement System based on employment with the United StatesGovernment. [Former spouse] is entitled to a share of [employee]'s [insert‘gross,' ‘net,' or self-only] monthly annuity under the CivilService Retirement System to be computed as follows: [Insert formula forcomputing the former spouse's share.]”
“The United States Office of Personnel Management is directed to pay[former spouse]'s share directly to [former spouse].”
Using the following paragraph will award COLA's in addition to a fixedmonthly amount to the former spouse. The model awards COLA's at the same rateapplied to the employee annuity.
“[Employee] is (or will be) eligible for retirement benefits under theCivil Service Retirement System based on employment with the United StatesGovernment. [Former spouse] is entitled to $[insert a number] per month from[employee]'s civil service retirement benefits. When COLA's are applied to[employee]'s retirement benefits, the same COLA applies to [former spouse]'sshare. The United States Office of Personnel Management is directed to pay[former spouse]'s share directly to [former spouse].”
Using the following paragraph will prevent application of COLA's to a formerspouse's share of an employee annuity in cases where the former spouse has beenawarded a percentage, fraction or prorata share of the employee annuity, ratherthan a fixed dollar amount.
“[Employee] is (or will be) eligible for retirement benefits under theCivil Service Retirement System based on employment with the United StatesGovernment. [Insert language for computing the former spouse's share from¶ 202, ¶ 203, ¶ 204, or ¶ 211 ofthis appendix.] The United States Office of Personnel Management is directed todetermine the amount of [former spouse]'s share on the date [insert ‘when[employee] retires' if the employee has not retired, or ‘of this order' ifthe employee is already retired] and not to apply COLA's to that amount. TheUnited States Office of Personnel Management is directed to pay [formerspouse]'s share directly to [former spouse].”
Awards of employee annuity to a former spouse (other than awards of fixeddollar amounts) must specify whether OPM will use the “gross,”“net,” or self-only annuity as defined in § 838.103 indetermining the amount of the former spouse's entitlement. The court order maycontain a formula that has the effect of creating other types of annuity, butthe court order may only do this by providing a formula that starts from“gross,” “net,” or self-only annuity as defined in§ 838.103.
The court order may include a formula that effectively uses the court'sdefinition of net annuity rather than the one provided by § 838.103.For example, using the following paragraph will award the former spouse aprorata share of the employee annuity reduced only by the amount deducted aspremiums for basic life insurance under the Federal Employee Group LifeInsurance Program.
“[Employee] is (or will be) eligible for retirement benefits under theCivil Service Retirement System based on employment with the United StatesGovernment. [Former spouse] is entitled to a prorata share of [employee]'smonthly annuity under the Civil Service Retirement System, where monthly annuitymeans the self-only annuity less the amount deducted as premiums for basic lifeinsurance under the Federal Employee Group Life Insurance Program. The marriagebegan on [insert date]. The United States Office of Personnel Management isdirected to pay [former spouse]'s share directly to [former spouse].”
Using the following paragraph will award a former spouse a prorata share ofwhat the employee annuity would have been based on only the employee's actualservice in cases where the actual employee annuity is based on disability. Theparagraph also allows the court order to provide for the former spouse's shareto begin when the employee reaches a stated age, using age 62 as an example. Aswith all other formulas the court order must specify whether the computationapplies to “gross,” “net,” or self-only annuity. OPMwill apply COLA's that occurred after the date of the disability retirement to
“[Employee] is (or will be) eligible for retirement benefits under theCivil Service Retirement System based on employment with the United State'sGovernment. Starting when [employee] reaches age 62, [former spouse] is entitledto a prorata share of [employee]'s [insert “gross,”“net,” or self-only] monthly annuity under the Civil ServiceRetirement System, where monthly annuity means the amount of [employee]'smonthly annuity computed as though [employee] had retired on an immediate,nondisability annuity on the commencing date of [employee]'s annuity based ondisability. In computing the amount of the immediate annuity, the United StatesOffice of Personnel Management will deem [employee] to have been age 62 at thetime that [employee] retired on disability. The marriage began on [insert date].The United States Office of Personnel Management is directed to pay [formerspouse]'s share directly to [former spouse].”
Court orders that award a former spouse a portion of a future employeeannuity of an employee who is not then eligible to retire should include anadditional paragraph containing instructions that tell OPM what to do if theemployee separates before becoming eligible to retire and requests a refund ofemployee contributions. The court order may award the former spouse a portion ofthe refund of employee contributions or bar payment of the refund of employeecontributions.
Using the following paragraph will bar payment of the refund of employeecontributions if payment of the refund of employee contributions wouldextinguish the former spouse's entitlement to a portion of the employee annuity.“The United States Office of Personnel Management is directed not to pay[employee] a refund of employee contributions.”
Using the following paragraph will allow the refund of employee contributionsto be paid but will award a prorata share of the refund of employeecontributions to the former spouse. The sentence on the beginning date of themarriage is unnecessary if the beginning is stated elsewhere in the order. Theaward of a prorata share is used only as an example; the court order couldprovide another fraction, percentage, or formula, or a fixed amount. Note that arefund of employee contributions voids the employee's rights to an employeeannuity and the former spouse's right to any portion of that annuity.
“If [employee] becomes eligible and applies for a refund of employeecontributions, [former spouse] is entitled to a prorata share of the refund ofemployee contributions. The marriage began on [insert date]. The United StatesOffice of Personnel Management is directed to pay [former spouse]'s sharedirectly to [former spouse].”
No special provision is necessary to restore the entire annuity to theretiree upon the death of the former spouse. Unless the court order expresslyprovides otherwise, OPM will pay the former spouse's share to the retiree afterthe death of the former spouse.
Using the following paragraph will award the former spouse's share of anemployee annuity to the children, including any adopted children, of theemployee and former spouse.
“If [former spouse] dies before [employee], the United States Office ofPersonnel Management is directed to pay [former spouse]'s share of [employee]'scivil service retirement benefits to surviving children of the marriageincluding any adopted children, in equal shares. Upon the deaths of any child,that child's share will be distributed among the other survivingchildren.”
The language may be modified to terminate the payments to the children whenthey reach a stated age. A court order that includes such a provision fortermination must include sufficient information (such as the children's dates ofbirth) to permit OPM to determine when the children's interest terminate. OPMwill not consider evidence outside the court order (and normal OPM files) toestablish the children's dates of birth.
Using the following paragraph will provide for payment of the former spouse'sshare of an employee annuity to the court after the death of the former spouse.This would allow a court officer to administer the funds. “If [formerspouse] dies before [employee], the United States Office of Personnel Managementis directed to pay [former spouse]'s share of [employee]'s civil serviceretirement benefits to this court at the following address: “[Insertaddress where checks should be sent. The address may be up to six lines andshould include sufficient information for
(a) This subpart regulates the procedures that the Office of PersonnelManagement will follow upon the receipt of claims arising out of State courtorders awarding former spouse survivor annuities under CSRS or FERS (includingthe FERS basic employee death benefit as defined in § 843.102 of thischapter). OPM must comply with qualifying court orders, decrees, or court-approved property settlements in connection with divorces, annulments ofmarriages, or legal separations of employees or retirees that award formerspouse survivor annuities.
(b) This subpart prescribes—
(1) The commencing and terminating dates of former spouse survivor annuitiesbased on court orders acceptable for processing; and
(2) The procedures that a former spouse must follow when applying for aformer spouse survivor annuity based on a court order under section 8341(h) orsection 8445 of title 5, United States Code.
(c)(1) Subpart H of this part contains the rules that a court order mustsatisfy to be a court order acceptable for processing to award a former spousesurvivor annuity.
(2) Subpart I of this part contains definitions that OPM uses to determinethe effect of a court order in connection with a former spouse survivor annuity.
(a) Under CSRS, payments under a court order may not exceed the amountprovided in § 831.641 of this chapter.
(b) Under FERS, payments under a court order may not exceed amount providedin § 842.613 of this chapter plus the basic employee death benefit asdefined in § 843.102 of this chapter.
(a)(1) A former spouse (personally or through a representative) must apply inwriting to be eligible for a former spouse survivor annuity based on a courtorder acceptable for processing. No special form is required to give OPM noticeof the court order.
(2) OPM may require an additional application after the death of theemployee, separated employee, or retiree. This additional application will be ona form prescribed by OPM.
(b)(1) The application letter under paragraph (a)(1) of this section must beaccompanied by—
(i) A certified copy of the court order;
(ii) A certification from the former spouse or the former spouse'srepresentative that the court order is currently in force and has not beenamended, superseded, or set aside;
(iii) Information sufficient for OPM to identify the employee or retiree,such as his or her full name, CSRS or FERS claim number, date of birth, andsocial security number;
(iv) The current mailing address of the former spouse;
(v) If the employee has not retired or died, the mailing address of theemployee; and
(vi) A statement in the form prescribed by OPM certifying—
(A) That the former spouse has not remarried before age 55;
(B) That the former spouse will notify OPM within 15 calendar days of theoccurrence of any remarriage before age 55; and
(C) That the former spouse will be personally liable for any overpayment tohim or her resulting from a remarriage before age 55.
(2) OPM may subsequently require recertification of the statements requiredby this paragraph.
(a) If OPM receives a court order acceptable for processing that awards aformer spouse survivor annuity based on the service of a living retiree, OPMwill inform—
(1) The former spouse—
(i) That the court order is acceptable for processing;
(ii) Of the date on which OPM received the court order; and
(iii) Of the present amount of the monthly former spouse survivor annuity ifthe retiree were to die immediately and the formula OPM used to compute themonthly benefit; and
(2) The retiree—
(i) That the former spouse has applied for benefits under this subpart;
(ii) That the court order is acceptable for processing and that OPM mustcomply with the court order;
(iii) Of the date on which OPM received the court order;
(iv) Of the amount and commencing date of the reduction in the retiree'sannuity;
(v) Of the present amount of the monthly former spouse survivor annuity ifthe retiree were to die immediately and the formula OPM used to compute theamount of the former spouse survivor annuity; and
(vi) That, if he or she contests the validity of the court order, he or shemust obtain, and submit to OPM, a court order invalidating the court ordersubmitted by the former spouse.
(b) If OPM receives a court order acceptable for processing that awards aformer spouse survivor annuity, but the employee, separated employee, or retireehas died, OPM will inform—
(1) The former spouse—
(i) That the court order is acceptable for processing;
(ii) Of the date on which OPM received the court order, the date on which theformer spouse's benefit will begin to accrue, and if known the date on which OPMwill commence payment under the court order; and
(iii) Of the amount on the monthly former spouse survivor annuity and theformula OPM used to compute the former spouse survivor annuity.
(2) Anyone whom OPM knows will be adversely affected by the courtorder—
(i) That the former spouse has applied for benefits under this subpart;
(ii) That the court order is acceptable for processing and that OPM mustcomply with the court order;
(iii) Of the date on which OPM received the court order;
(iv) How the court order may adversely affect him or her; and
(v) That, if he or she contests the validity of the court order, he or shemust obtain, and submit to OPM, a court order invalidating the court ordersubmitted by the former spouse.
(c) If OPM receives a court order acceptable for processing that awards aformer spouse survivor annuity and the employee or separated employee has notretired or died, OPM will attempt to inform—
(1) The former spouse—
(i) That the court order is acceptable for processing;
(ii) To the extent possible, the formula that OPM will use to compute theformer spouse survivor annuity (including the FERS basic employee death benefitas defined in § 843.102 of this chapter, if applicable); and
(iii) That, if he or she disagrees with the formula, he or she must obtain,and submit to OPM, an amended court order clarifying the amount before theemployee or separated employee retires or dies; and
(2) The employee or separated employee—
(i) That the former spouse has applied for benefits under this subpart;
(ii) That the court order is acceptable for processing and the OPM mustcomply with the court order;
(iii) To the extent possible, the formula that OPM will use to compute theformer spouse survivor annuity (including the FERS basic employee death benefitas defined in § 843.102 of this chapter, if applicable); and
(iv) That, if he or she—
(A) Contests the validity of the court order, he or she must obtain, andsubmit to OPM, a court order invalidating the court order submitted by theformer spouse; or
(B) Disagrees with the formula, he or she must obtain, and submit to OPM,
(d) The failure of OPM to provide, or of the employee, separated employee, orretiree, the former spouse, or anyone else to receive, the information specifiedin this section does not affect—
(1) The validity of payment under the court order; or
(2) The commencing date of the reduction in the employee annuity or thecommencing date of the former spouse's entitlement as determined under§ 838.731.
If OPM receives an application from a former spouse not based on a courtorder acceptable for processing, OPM will inform the former spouse that OPMcannot approve the application and provide the specific reason(s) fordisapproving the application. Examples of reasons for disapproving anapplication include that the order does not meet the definition of court orderin § 838.103 or does not meet one or more of the requirements ofsubpart H of this part.
(a) An employee, retiree or person adversely affected by a court order whoalleges that a court order is invalid must prove the invalidity of the courtorder by submitting to OPM a court order that—
(1) Declares invalid the court order submitted by the former spouse; or
(2) Sets aside the court order submitted by the former spouse.
(b) OPM must honor a court order acceptable for processing that appears to bevalid and that the former spouse has certified is currently in force and has notbeen amended, superseded, or set aside, until the employee, separated employee,retiree, or person adversely affected by the court order submits to OPM a courtorder described in paragraph (a) of this section or, if issued before theretirement or death of the employee or separated employee, a court orderacceptable for processing amending or superseding the court order submitted bythe former spouse.
(a) A court order acceptable for processing that awards a former spousesurvivor annuity does not affect a retiring employee's or retiree's rights andobligations to make survivor elections under subpart F of part 831 of thischapter or subpart F of part 842 of this chapter.
(b) A court order acceptable for processing that awards a former spousesurvivor annuity requires OPM to pay a former spouse survivor annuity andprevents OPM from paying an elected survivor benefit to a widow or widower oranother former spouse if the election is inconsistent with the court order.
(a) A former spouse survivor annuity based on a court order acceptable forprocessing begins to accrue in accordance with the terms of the court order butno earlier than the later of—
(1) The first day after the date of death of the employee, separatedemployee, or retiree; or
(2) The first day of the second month after OPM receives a copy of the courtorder acceptable for processing.
(b) OPM will not authorize payment of the former spouse survivor annuityuntil it receives an application and supporting documentation required under§ 838.721.
(a) A former spouse survivor annuity (other than the FERS basic employeedeath benefit as defined in § 843.102 of this chapter) or the rightto a future former spouse survivor annuity based on a court order acceptable forprocessing terminates in accordance with the terms of the court order but nolater than the last day of the month before the former spouse remarries beforeage 55 or dies.
(b) If the employee dies before the former spouse remarries before age 55
(a) If a former spouse of a retiree loses entitlement to a former spousesurvivor annuity based on a court order acceptable for processing while theretiree is living and—
(1) If court orders acceptable for processing award former spouse survivorannuities to other former spouses, OPM will continue the reduction to complywith court orders in the order specified in § 838.135;
(2) If paragraph (a)(1) of this section does not obligate the entireentitlement lost by he former spouse, OPM will continue the reduction to providea current spouse survivor annuity or a former spouse survivor annuity based on atimely-filed election under § 831.611, § 831.612,§ 831.631, § 831.632, § 842.603,§ 842.604, § 842.611, or § 842.612 of thischapter; or
(3) If paragraphs (a)(1) and (a)(2) of this section do not obligate theentire entitlement lost by the former spouse, the retiree (except a retireeunder CSRS who retired before May 7, 1985 and who remarried before February 27,1986) may elect within 2 years after the former spouse loses entitlement tocontinue the reduction to provide a survivor annuity for a spouse acquired afterretirement.
(b)(1) If a former spouse of an employee or retiree loses entitlement to aformer spouse survivor annuity based on a court order acceptable for processingafter the death of the employee or retiree and—
(i) If court orders acceptable for processing award former spouse survivorannuities to other former spouses, OPM will pay the next entitled former spousein the order specified in § 838.135; or
(ii) If paragraph (b)(1) of this section does not obligate the entireentitlement lost by the former spouse, OPM will pay the balance to a currentspouse of the deceased—
(A) Retiree who had elected a reduced annuity to provide a current spouseannuity (as defined in § 831.603 or § 842.602); or
(B) Employee.
(2) Except as provided in § 838.734—
(i) The former spouse survivor annuity based on paragraph (b)(1)(i) of thissection begins to accrue in accordance with the terms of the court order but noearlier than the later of—
(A) The first day of the month in which the former spouse with the earlier-issued court order loses entitlement; or
(B) The first day of the second month after OPM receives a copy of the courtorder acceptable for processing; or
(ii) The current spouse annuity under paragraph (b)(1) (ii) of this sectionbegins to accrue on the first day of the month in which the former spouse losesentitlement.
(c) OPM will not authorize payment of the former spouse survivor annuityuntil it receives an application and supporting documentation required under§ 838.721.
OPM will not honor court orders awarding lump-sum payments (other than theFERS basic employee death benefit as defined in § 843.102 of thischapter) to a former spouse upon the death of an employee or retiree.
(a) OPM applies cost-of-living adjustments to all former spouse survivorannuities in pay status at the time of the adjustment and in the amount providedby Federal statute.
(b) OPM will not honor provisions of a court order that alters the time oramount of cost-of-living adjustments or that attempts to prevent OPM fromapplying cost-of-living adjustments to a former spouse survivor annuity in paystatus.
This subpart regulates the requirements that a court order awarding a formerspouse survivor annuity must meet to be a court order acceptable for processing.
(a) A court order awarding a former spouse survivor annuity under CSRS is nota court order acceptable for processing unless the marriage terminated on orafter May 7, 1985.
(b) In the case of a retiree who retired under CSRS before May 7, 1985, acourt order awarding a former spouse survivor annuity under CSRS is not a courtorder acceptable for processing unless the retiree was receiving a reducedannuity to provide a survivor annuity to benefit that spouse on May 7, 1985.
(a)
(2) When a court order is required by paragraph (a)(1) of this section tostate that the provisions of a court order concerning CSRS or FERS benefits aregoverned by this part the court order must—
(i) Expressly refer to part 838 of itle 5, Code of Federal Regulations, and
(ii) Expressly state that the provisions of the court order concerning CSRSor FERS benefits are drafted in accordance with the terminology used in thispart.
(3) Although any language satisfying the requirement of paragraph (a) (2) ofthis section is sufficient to prevent a court order from being unacceptableunder paragraph (a)(1) of this section, OPM recommends the use of the languageprovided in ¶001 in appendix A to subpart F of this part to state that theprovisions of the court order concerning CSRS or FERS benefits are governed bythis part.
(4) A court order directed at employee annuity that contains the languagedescribed in paragraph (a)(2) of this section must also satisfy all otherrequirements of this subpart to be a court order acceptable for processing.
(b)
(a) A court order awarding a former spouse survivor annuity is not a courtorder acceptable for processing unless it expressly awards a former spousesurvivor annuity or expressly directs an employee or retiree to elect to providea former spouse survivor annuity as described in paragraph (b) of this section.
(b) To expressly award a former spouse survivor annuity or expressly directan employee or retiree to elect to provide a former spouse survivor annuity asrequired by paragraph (a) of this section the court order must—
(1) Identify the retirement system using terms that are sufficient toidentify the retirement system as explained in § 838.911; and
(2) (i) Expressly state that the former spouse is entitled to a former spousesurvivor annuity using terms that are sufficient to identify the survivorannuity as explained in § 838.912; or
(ii) Expressly direct the retiree to elect to provide a former spousesurvivor annuity using terms that are sufficient to identify the survivorannuity as explained in § 838.912.
(a) A court order awarding a former spouse survivor annuity is not a courtorder acceptable for processing unless the court order provides sufficientinstructions and information so that OPM can determine the amount of the formerspouse's monthly benefit using only the express language of the court order,subparts A, G and I of this part, and information from normal OPM files.
(b) To provide sufficient instructions and information for OPM to compute theamount of a former spouse survivor annuity as required by paragraph (a) of thissection, if the court order uses a formula to determine the former spousesurvivor annuity, it must not use any variables whose values are not readilyascertainable from the face of the court order or normal OPM files.
(c) A court order awarding a former spouse survivor annuity is not a courtorder acceptable for processing if OPM would have to examine a State statute orcourt decision (on a different case) to understand, establish, or evaluate theformula for computing the former spouse survivor annuity.
(a) A court order awarding a former spouse survivor annuity is not a courtorder acceptable for processing if it is issued after the date of retirement ordeath of the employee and modifies or replaces the first order dividing themarital property of the employee or retiree and the former spouse.
(b) For purposes of awarding, increasing, reducing, or eliminating a formerspouse survivor annuity, or explaining, interpreting, or clarifying a courtorder that awards, increases, reduces or eliminates a former spouse survivorannuity, the court order must be—
(1) Issued on a day prior to the date of retirement or date of death of theemployee; or
(2) The first order dividing the marital property of the retiree and theformer spouse.
(c) A court order that awards a former spouse survivor annuity and that isissued after the first order dividing the marital property of the retiree andthe former spouse has been vacated, set aside, or otherwise declared invalid isnot a court order acceptable for processing if—
(1) It is issued after the date of retirement or death of the retiree;
(2) It changes any provision concerning a former spouse survivor annuity inthe court order that was vacated, set aside or otherwise declared invalid; and
(3)(i) The court order is effective prior to the date when it is issued; or
(ii) The retiree and former spouse do not compensate the Civil ServiceRetirement and Disability Fund for any uncollected annuity reduction due as aresult of the court order vacating, setting aside, or otherwise invalidating thefirst order terminating the marital relationship between the retiree and theformer spouse.
(d) In this section, “date of retirement” means the laterof—
(1) The date that the employee files an application for retirement; or
(2) The effective commencing date for the employee's annuity.
(e) In this section, “issued” means actually filed with the clerkof the court, and does not mean the effective date of a retroactive court orderthat is effective prior to the date when actually filed with the clerk of thecourt (e.g., a court order issued nunc pro tunc).
(f)(1) In this section, the “first order dividing the marital propertyof the retiree and the former spouse” means—
(i) The original written order that first ends (or first documents an oralorder ending) the marriage if the court divides any marital property (orapproves a property settlement agreement that divides any marital property) inthat order, or in any order issued before that order); or
(ii) The original written order issued after the marriage has been terminatedin which the court first divides any marital property (or first approves a
(2) The first order dividing marital property does not include—
(i) Any court order that amends, explains, clarifies, or interprets theoriginal written order regardless of the effective date of the court ordermaking the amendment, explanation, clarification, or interpretation; or
(ii) Any court order issued under reserved jurisdiction or any other courtorder issued subsequent to the original written order that divide any maritalproperty regardless of the effective date of the court order.
(a) A court order awarding a former spouse survivor annuity is not a courtorder acceptable for processing unless it permits OPM to collect the annuityreduction required by section 8339(j)(4) or section 8419 of title 5, UnitedStates Code, from annuity paid by OPM. OPM will not honor a court order thatprovides for the retiree or former spouse to pay OPM the amount of the annuityreduction by any other means.
(b) The amount of the annuity reduction required by section 8339(j)(4) orsection 8419 of title 5, United States Code, may be paid—
(1) By reduction of the former spouse's entitlement under a court orderacceptable for processing that is directed at employee annuity; or
(2) By reduction of the employee annuity.
(c) Unless the court order otherwise directs, OPM will collect the annuityreduction required by section 8339(j)(4) or section 8419 of title, 5, UnitedStates Code, from the employee annuity.
(a) This subpart regulates the meaning of terms necessary to award a formerspouse survivor annuity in a court order, and for OPM to determine whether acourt order awarding a former spouse survivor annuity is a court orderacceptable for processing and the amount of the former spouse survivor annuity.
(b)(1) This subpart establishes a uniform meaning to be used for terms andphrases frequently used in awarding a former spouse survivor annuity.
(2) This subpart informs the legal community about the definition to beapplied to terms used in court orders, to permit the resulting orders to be morecarefully drafted, using the proper language to accomplish the aims of thecourt.
(c)(1) To assist attorneys and courts in preparing court orders that OPM canhonor in the manner that the court intends, appendix A of this subpart containsmodel language to accomplish many of the more common objectives associated withthe award of a former spouse survivor annuity.
(2) By using the language in appendix A of this subpart, the court,attorneys, and parties will know that the court order will be acceptable forprocessing and that OPM will treat the terminology used in the court order inthe manner stated in the appendix.
(a) To satisfy the requirements of § 838.804(b)(1), a court ordermust contain language identifying the retirement system affected. For example,“CSRS,” “FERS,” “OPM,” or “Federal
(b) Except as provided in paragraphs (b)(1) and (b)(2) of this section,language referring to benefits under another retirement system, such as militaryretired pay, Foreign Service retirement benefits and Central Intelligence Agencyretirement benefits, does not satisfy the requirements of§ 838.804(b)(1).
(1) A court order that mistakenly labels CSRS benefits as FERS benefits andvice versa satisfies the requirements of § 838.804(b)(1).
(2) Unless the court order expressly provides otherwise, for employeestransferring to FERS, court orders directed at CSRS benefits apply to thisentire FERS basic benefit, including the CSRS component, if any. Such a courtorder satisfies the requirements of § 838.804(b)(1).
(c) A court order affecting military retired pay, even when military retiredpay has been waived for inclusion in CSRS annuities, does not award a formerspouse survivor annuity under CSRS or FERS. Such a court order does not satisfythe requirements of § 838.804(b)(1).
(d) A court order that requires an employee or retiree to maintain survivorbenefits covering the former spouse satisfies the requirements of§ 838.804(b)(1), if the former spouse was covered by a CSRS or FERSsurvivor annuity or the FERS basic employee death benefit as defined in§ 843.102 of this chapter at the time of the divorce.
(a) To satisfy the requirements of § 838.804(b)(2), a court ordermust specify that it is awarding a former spouse survivor annuity. The courtorder must contain language such as “survivor annuity,” “deathbenefits,” “former spouse survivor annuity under 5 U.S.C.8341(h)(1),” etc.
(b)(1) A court order that provides that the former spouse is to“continue as” or “be named as” the beneficiary of CSRSsurvivor benefits or similar language satisfies the requirements of§ 838.804(b)(2).
(2) A court order that requires an employee or retiree to maintain survivorbenefits covering the former spouse satisfies the requirements of§ 838.804(b)(2), if the former spouse was covered by a CSRS or FERSsurvivor annuity or the FERS basic employee death benefit as defined in§ 843.102 of this chapter at the time of the divorce.
(c) Two types of potential survivor annuities may be provided by retiringemployees to cover former spouses. Under CSRS, section 8341(h) of title 5,United States Code, provides for “former spouse survivor annuities”and section 8339(k) of title 5, United States Code, provides for“insurable interest annuities.” These are distinct benefits, eachwith its own advantages. The corresponding FERS provisions are sections 8445 and8444, respectively.
(1) OPM will enforce court orders to provide section 8341(h) or section 8445annuities. These annuities are less expensive and have fewer restrictions thaninsurable interest annuities but the former spouse's interest will automaticallyterminate upon remarriage before age 55. To provide a section 8341(h) or section8445 annuity, the court order must use terms such as “former spousesurvivor annuity,” “section 8341(h) annuity,” or“survivor annuity.”
(2) OPM cannot enforce court orders to provide “insurable interestannuities” under section 8339(k) or section 8444. These annuities may onlybe elected at the time of retirement by a retiring employee who is not retiringunder the disability provision of the law and who is in good health. Theretirees may also elect to cancel the insurable interest annuity to provide asurvivor annuity for a spouse acquired after retirement. The parties might seekto provide this type of annuity interest if the nonemployee spouse expects toremarry before age 55, if the employee expects to remarry a younger secondspouse before retirement or if another former spouse has already been awarded asection 8341(h) annuity. However, the court will have to provide its own remedyif the employee is not
(3) In court orders which contain internal contradictions about the type ofannuity, such as “insurable interest annuity under section 8341(h),”the section reference will control.
(a) A court order that contains no provision stating the amount of the formerspouse survivor annuity provides the maximum former spouse survivor annuitypermitted under § 831.641 or § 842.613 of this chapter andsatisfies the requirements of § 838.805.
(b)(1) A court order that provides that “a former spouse willkeep” or “an employee or retiree will maintain” the survivorannuity to which he or she was entitled at the time of the divorce satisfies therequirements of § 838.805 and provides a former spouse survivorannuity in the same proportion to the maximum survivor annuity under§ 831.641 or § 842.613 of this chapter as the formerspouse had at the time of divorce. For example, a former spouse of an employeewould be entitled to a maximum survivor benefit; a former spouse of a retiree(who was married to the retiree at retirement and continuously until the divorceresulting in the court order) would be entitled to the survivor benefit electedat retirement.
(2) If, at the time of divorce, the employee covered by FERS had at least 18months of civilian service creditable under FERS but less than 10 years ofservice creditable under FERS, a former spouse with a court order described inparagraph (b)(1) or paragraph (b)(2) of this section may be entitled to thebasic employee death benefit as defined in § 843.102 of this chapter,but is not entitled to any other former spouse survivor annuity based on thecourt order.
(c)(1) A court order that awards a former spouse survivor annuity of lessthan $12 per year satisfies the requirements of § 838.805 andprovides an initial rate of $1 per month plus all cost-of-living increasesoccurring after the later of—
(i) The date of the court order; or
(ii) The date when the employee retires.
(2) The reduction in the employee annuity will be computed as though thecourt order provided a former spouse survivor annuity of $1 per month.
(d)(1) A court order that awards a former spouse survivor annuity whileauthorizing the employee or retiree to elect a lesser former spouse survivorannuity upon the employee's or retiree's remarriage satisfies the requirementsof § 838.805, and provides the former spouse survivor annuity at therate initially provided in the court order but does not allow the employee orretiree to elect a lesser benefit for the former spouse.
(2) To provide full survivor annuity benefits to a former spouse whileauthorizing the employee or retiree to elect a lesser former spouse survivorannuity benefit in order to provide survivor annuity benefits for a subsequentspouse, the court order must provide for a reduction in the former spousesurvivor annuity upon the employee's or retiree's election of survivor annuitybenefits for a subsequent spouse.
(3) A reduction in the amount of survivor benefits provided to the formerspouse does not satisfy the requirements of § 838.805 if it iscontingent upon the employee's or annuitant's remarriage rather than his or herelection of survivor annuity benefits for a subsequent spouse.
(a)
(b) A court order that awards a former spouse a “prorata share”of a survivor annuity by using that term and identifying the date when themarriage began satisfies the requirements of § 838.805 and awards theformer spouse a former spouse survivor annuity equal to the prorata share asdefined in paragraph (a) of this section.
(c) A court order that awards a portion of a survivor annuity, as of aspecified date before the employee's retirement, awards the former spouse aformer spouse survivor annuity equal to the prorata share as defined inparagraph (a) of this section.
(d) A court order that awards a portion of the “value” of asurvivor annuity as of a specific date before retirement, without specifyingwhat “value” is, awards the former spouse a former spouse survivorannuity equal to a prorata share as defined in paragraph (a) of this section.
A court order that awards a former spouse survivor annuity is deemed to orderOPM to add to the survivor annuity rate cost-of-living adjustments that occurbefore the death of a retiree (in the same manner as these adjustments areapplied to the survivor rate generally) unless the court order contains aninstruction expressly directing OPM not to add these adjustments to the survivorannuity rate. (See § 838.735 for information concerning cost-of-living adjustments after the death of an employee or retiree.)
A provision in a court order that temporarily awards a former spouse survivorannuity satisfies the requirements of § 838.804(b)(2), but thetemporary award becomes permanent on the date on which OPM is barred fromhonoring a modification of the court order (the date of retirement or death, or,in the case of a post-retirement divorce, the date of the initial court order),as provided in sections 8341(h)(4) and 8445(d) of title 5, United States Code.
(a) Except as provided in paragraph (b) of this section, a court order thatgives the former spouse the right to elect a former spouse survivor annuitysatisfies the requirements of § 838.804(b)(2) and provides a formerspouse survivor annuity in the amount otherwise provided by the court order.
(b) A former spouse who has been awarded a former spouse survivor annuity bya court order that gives the former spouse the right to elect a former spousesurvivor annuity may irrevocably elect not to be eligible for a former spousesurvivor annuity based on the court order.
(c) The former spouse may make the election under paragraph (b) of thissection at any time after the issuance of the court order. An election underparagraph (b) of this section—
(1) Must be in writing and in the form prescribed by OPM;
(2) Is effective on the first day of the month following the month in whichOPM received the election; and
(3) Is irrevocable once it has become effective.
(d) The reduction in an employee annuity based on a court order that givesthe former spouse the right to elect a former spouse survivor annuity terminateson the last day of the month in which OPM receives the former spouse's electionunder paragraph (b) of this section.
(a) A court order that unequivocally awards a former spouse survivor annuityand directs the former spouse to pay for that benefit satisfies the requirementsof § 838.805, and—
(1) If the former spouse has also been awarded a portion of the employeeannuity then the cost of the survivor benefit will be deducted from the formerspouse's share of the employee annuity (if sufficient to cover the totalcost—there will be no partial withholding); otherwise,
(2) The reduction will be taken from the employee annuity and collection fromthe former spouse will be a private matter between the parties.
(b) a court order that conditions the award of a former spouse survivorannuity on the fo