(a) This subpart contains regulations concerning automatic coverage under theFederal Employees Retirement System (FERS). References to FERS coverage in thissubpart are to automatic, as opposed to elective, FERS coverage.

(b) Part 846 of this chapter contains regulations concerning elective FERScoverage. FERS elections are available under limited circumstances to employeesnot subject to automatic FERS coverage.

In this subpart—

CSRS means the Civil Service Retirement System as described insubchapter III of chapter 83 of title 5, United States Code;

Employee means the following individuals listed in 5 U.S.C.8401(11) whose service is employment for the purposes of title II of the SocialSecurity Act and chapter 21 of the Internal Revenue Code of 1954:

(a) An employee as defined by 5 U.S.C. 2105;

(b) A U.S. Commissioner whose total pay for services performed asCommissioner is not less than $3,000 in each of the last three consecutivecalendar years ending after December 31, 1954;

(c) An individual employed by a county committee established under 16 U.S.C.590h(b);

(d) An individual employed by Gallaudet College;

(e) An individual appointed to a position on the office staff of a formerPresident under section 1(b) of the “Act of August 25, 1958” (72Stat 838);

(f) An alien (1) who was previously employed by the Government; (2) who isemployed full time by a foreign government to protect or further the interestsof the United States during an interruption of diplomatic or consular relations;and (3) for whose services reimbursement is made to the foreign government bythe United States;

(g) A Congressional employee as defined in 5 U.S.C. 2107, including atemporary Congressional employee and an employee of the Congressional BudgetOffice; and

(h) The following individuals are excluded from the definition of“employee” in 5 U.S.C. 8401 (11):

(1) A justice or judge of the United States as defined by 28 U.S.C. 451;

(2) A temporary employee of the Administrative Office of the United StatesCourts or of a court named by 28 U.S.C. 610;

(3) A construction employee or other temporary, part-time, or intermittentemployee of the Tennessee Valley Authority;

(4) A student employee as defined by 5 U.S.C. 5351;

(5) Teachers in dependents' schools of the Department of Defense in overseasareas with respect to Federal employment, other than teaching, performed duringa recess period between two school years;

(6) An individual subject to another retirement system for Governmentemployees (other than an employee of the United States Park Police, or theUnited States Secret Service) any of whose civilian employment after December31, 1983, is employment subject to social security; and

(7) An individual excluded by OPM regulation in § 842.105.

FERS means the Federal Employees Retirement System as describedin chapter 84 of title 5, United States Code.

Member has the same meaning provided in 5 U.S.C. 2106, exceptthat the term does not include an individual who irrevocably elects, by writtennotice to the official by whom such individual is paid, not to participate inFERS.

NAF employee means an employee of an instrumentality describedin section 2105(c) of title 5, United States Code.

OPM means the Office of Personnel Management.

Social security means coverage under the Old Age, Survivors,and Disability Insurance (OASDI) programs of the Social Security Act.

To be covered under FERS, an individual must:

(a) Be an employee, Member, or specifically covered by another provision oflaw;

(b) Be covered by social security;

(c) Have retirement deductions withheld from pay and have agencycontributions made; and

(d) Be paid based on units of time.

(a) Lack of social security coverage. An individual not coveredby social security (title II of the Social Security Act and chapter 21 of theInternal Revenue Code of 1954), including an individual covered by full CSRS(and thereby excluded from social security coverage), is excluded from FERScoverage.

(b) Senior officials subject to social security coverage despitecontinuous service. An individual who has served without a break in serviceof more than 365 days since December 31, 1983, in one or more of the followingpositions is excluded from FERS coverage.

(1) The Vice President;

(2) A Member of Congress;

(3) A non-SES appointee to a position listed in 5 U.S.C. 5312 through 5317;

(4) A Senior Executive Service or Senior Foreign Service noncareer appointee;or

(5) An individual appointed by the President (or his designee) or the VicePresident under section 105(a)(1), 107(a)(1), or (b)(1) of title 3, UnitedStates Code, to a position for which the maximum rate of basic pay payable is ator above the rate for Level V of the Executive Schedule.

(c) Employees rehired after December 31, 1986, following a break inservice. An employee who is rehired after December 31, 1986, who has had abreak in service and who, at the time of the last separation from the service,had at least 5 years of civilian service creditable under CSRS rules, any partof which was covered by CSRS or the Foreign Service Retirement System, isexcluded from FERS coverage.

(d) Employees who have not had a break in service ending afterDecember 31, 1986. An employee who has not had a break in service of morethan 3 days ending after December 31, 1986, and who, as of December 31, 1986,had at least 5 years of credible civilian service under CSRS rules (even if noneof this service was covered by CSRS), is excluded from FERS coverage.

(e) Break in service. For the purposes of paragraph (c) and (d)of this section, “break in service” means a separation from CSRS-covered service lasting at least 4 days, or a transfer or separation of lessthan 4 days when the employee becomes subject to automatic coverage under socialsecurity (title II of the Social Security Act and chapter 21 of the InternalRevenue Code of 1954).

(f) Coverage under a retirement system for NAF employees. Anemployee who has elected coverage under a retirement system for NAF employees inaccordance with part 847 of this chapter is excluded from FERS coverage duringthat and all subsequent periods of service, including service as a reemployedannuitant.

(g) Certain Federal employees who elect to continue coverage undera retirement system for employees of the District of Columbia. (1) A formeremployee of the District of Columbia who is appointed in a Federal position bythe Department of Justice, or by the Court Services and Offender SupervisionAgency 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 excludedfrom FERS coverage beginning on the date of the Federal appointment, if theemployee elects to continue coverage under a retirement system for employees ofthe District of Columbia under section 3 of Pub. 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) OPM is authorized in 5 U.S.C. 8402(c)(1) to “exclude from theoperation of this chapter an employee or group of employees in or under anExecutive agency, the United States Postal Service, or the Postal RateCommission, whose employment is temporary or intermittent, except an employeewhose employment is part-time career employment (as defined in section3401(2)).” Therefore, under this authority, OPM is excluding thefollowing:

(1) Employees serving under appointments limited to 1 year or less, unlesssuch appointments meet the definition of provisional appointments contained in§§ 316.401 and 316.403 of this chapter; and

(2) Intermittent employees serving under other than career or careerconditional appointments.

(b) When an employee who is covered by FERS moves to a position listed inparagraph (a) of this section without a break in service or after a separationof 3 days or less, his or her FERS coverage will continue, except in the case ofan employee hired by the Census Bureau under a temporary, intermittentappointment to perform decennial census duties.

(c) Paragraph (a) of this section does not deny FERS coverage to an employeewho receives an interim appointment under § 772.102 of this chapterand was covered by FERS at the time of the separation for which interim reliefis required.

(a) Who may elect—(1) General rule. Anyindividual appointed by the District of Columbia Financial Responsibility andManagement Assistance Authority (the Authority) in a position not excluded fromFERS coverage under § 842.105 may elect to be deemed a Federalemployee for FERS purposes unless the employee has elected to participate in aretirement, health or life insurance program offered by the District ofColumbia.

(2) Exception. A former Federal employee being appointed by theAuthority on or after October 26, 1996, no more than 3 days (not countingDistrict of Columbia holidays) after separation from Federal employment cannotelect to be deemed a Federal employee for FERS purposes unless the election wasmade before separation from Federal employment.

(b) Procedure for making an election. The Authority or theagency providing administrative support services to the Authority(Administrative Support Agency) must establish a procedure for notifyingemployees of their election rights and for accepting elections.

(c) Time limit for making an election. (1) An election underparagraph (a)(1) of this section must be made within 30 days after the employeereceived the notice under paragraph (b) of this section.

(2) The Authority or its Administrative Support Agency will waive the timelimit under paragraph (c)(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.

(d) Effect of an election. (1) An election under paragraph (a)of this section is effective on the commencing date of the employee's servicewith the Authority.

(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.

(e) Irrevocability. An election under paragraph (a) of thissection becomes irrevocable when received by the Authority or its AdministrativeSupport Agency.

(f) Employee deductions. The Authority or its AdministrativeSupport Agency must withhold, from the pay of an employee of the District ofColumbia Financial Responsibility and Assistance Authority who has elected to bedeemed a Federal employee for FERS purposes, an amount equal to the percentagewithheld from Federal employees' pay for periods of service covered by FERS and,in accordance with procedures established by OPM, pay into the Civil ServiceRetirement and Disability Fund the amounts deducted from an employee's pay.

(g) Employer contributions. The District of Columbia FinancialResponsibility and Assistance Authority must, in accordance with proceduresestablished by OPM, pay into the Civil Service Retirement and Disability Fundamounts equal to any agency contributions required under FERS.

The following categories of employees of the District of Columbia Governmentare deemed to be Federal employees for FERS purposes on and after October 1,1997:

(a) Nonjudicial employees of the District of Columbia Courts;

(b) 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;

(c) 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.

Employees of the Public Defender Service of the District of Columbia aredeemed to be Federal employees for FERS purposes on and after April 1, 1999.

This subpart regulates the statutory provisions on eligibility fornondisability retirement under the Federal Employees Retirement System (FERS).

In this subpart—

Commuting area has the same meaning given that term in§ 351.203 of this chapter.

Minimum retirement age means an age based on an individual'syear of birth, as follows:

An employee must have at least 5 years of civilian service creditable underFERS to be eligibile for an annuity under this subpart, except as provided underpart 846 of this chapter.

(a) An employee or Member who separates from service is entitled to anannuity—

(1) Except as provided in paragraph (d) of this section, after attaining theminimum retirement age and completing 10 years of service; or

(2) After becoming age 60 and completing 20 years of service; or

(3) After becoming age 62 and completing 5 years of service.

(b)(1) Except as provided in paragraph (b)(2) or (c) of this section, anannuity payable under paragraph (a) of this section commences on the first dayof the month following separation.

(2) An annuity payable under paragraph (a) of this section commences on theday after separation, if that separation occurs upon the expiration of a term(or other period) for which the individual was appointed or elected.

(c)(1) An employee or Member entitled to an annuity under paragraph (a)(1) ofthis section may elect to postpone the commencing date of that annuity, providedthe individual—

(i) Has completed less than 30 years of service; and

(ii) Is not entitled to an immediate annuity under any other provision ofthis subpart. An immediate annuity means an annuity that will begin within 31days of separation.

(2) A postponed commencing date may not precede the later of—

(i) The first day of the month after the date of separation of the employeeor Member; or

(ii) The 31st day after the date of filing the election of a commencing date.

(3) A postponed commencing date must be no later than the second day beforethe employee's 62nd birthday.

(4) The election of a commencing date may be filed not more than 90 daysbefore the commencing date elected by the employee or Member, and must be filedin a form prescribed by the Office of Personnel Management (OPM).

(5) A written election that is not in the prescribed form, but whichdesignates a specific commencing date, and otherwise conforms to the time limitsin paragraphs (c)(2) through (c)(4) of this section, will be accepted as aninformal election subject to ratification in the prescribed form.

(6) The election of a commencing date becomes irrevocable on the date OPMauthorizes the first annuity payment.

(d)(1) If an employee or Member separates from service after attaining theminimum retirement age and completing 10 years of service, but is reemployedbefore filing an application for retirement based on that separation, theindividual may not elect an annuity commencing date that precedes separationfrom the reemployment service.

(2) In the case of an employee or Member who separates from service afterattaining the minimum retirement age and completing 10years of service, and is reemployed after filing an application for retirementbased on that separation, that individual may not elect an annuity commencingdate that precedes separation from the reemployment service if he or she isreemployed prior to a postponed commencing date elected under paragraph (c) ofthis section.

(a) An employee, other than an employee entitled to an annuity under§ 842.207 or § 842.208, who separates from the serviceinvoluntarily after completing 25 years of service, or after becoming age 50 andcompleting 20 years of service is entitled to an annuity, except as provided inparagraphs (b) and (c) of this section.

(b) An employee who is separated for cause on charges of misconduct ordelinquency is not entitled to an annuity under paragraph (a) of this section.

(c) An employee who would otherwise be entitled to an annuity under paragraph(a) of this section is not so entitled if the employee has declined a reasonableoffer of another position that meets all of the following conditions:

(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 wouldbe transferred in a transfer of function(s) between agencies;

(ii) Within the employee's commuting area unless geographic mobility is acondition of the employee's employment;

(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 will 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.

(d) An annuity payable under paragraph (a) of this section commences on theday after separation from the service.

(a) An employee who separates from service, except by removal for cause orcharges of delinquency or misconduct, is entitled to an annuity—

(1) After completing 25 years of service as an air traffic controller; or

(2) After becoming age 50 and completing 20 years of service as an airtraffic controller.

(b) An annuity payable under paragraph (a) of this section commences on thefirst day of the month following separation.

(a) An employee who separates from service, except by removal for cause oncharges of delinquency or misconduct, is entitled to an annuity—

(1) After completing any combination of service as a firefighter,lawenforcement officer or nuclear materials courier totaling 25 years; or

(2) After becoming age 50 and completing any combination of service as afirefighter, law enforcement officer or nuclear materials courier totaling 20years.

(b) An annuity payable under paragraph (a) of this section commences on thefirst day of the month following separation.

(a) A Member, except one separated by resignation or expulsion, is entitledto an annuity—

(1) After completing 25 years of service; or

(2) After becoming age 50 and completing 20 years of service.

(b) An annuity payable under paragraph (a) of this section commences on theday after separation from the service.

(a) A military reserve technician as defined in 5 U.S.C. 8401(30) who isseparated from civilian service because of ceasing to qualify as a member of amilitary reserve component after reaching age 50 and completing 25 years ofservice is entitled to an annuity.

(b) An annuity payable under paragraph (a) of this section commences on theday after separation.

(a) A member of the Senior Executive Service, the Defense Intelligence SeniorExecutive Service, or the Senior Cryptologic Senior Executive Service who isremoved or who resigns after receipt of written notice of proposed removal forless than fully successful executive performance, or for failure to berecertified as a senior executive, is entitled to an annuity—

(1) After completing 25 years of service; or

(2) After becoming age 50 and completing 20 years of service.

(b) Removed for less than fully successful executiveperformance means (1) with respect to a member of the Senior ExecutiveService, removal in accordance with procedures in subpart E of part 359 of thischapter; and (2) with respect to a member of the Defense Intelligence SeniorExecutive Service or the Senior Cryptologic Executive Service, a certificationby the head of the Defense Intelligence Agency or National Security Agency (ortheir designees) that the employee has been removed for less than fullysuccessful executive performance.

(c) Removed for failure to be recertified as a senior executivemeans (1) With respect to a member of the Senior Executive Service, removal inaccordance with the procedures in subpart C of part 359 of this chapter, and (2)with respect to a member of the Defense Intelligence Senior Executive Service orthe Senior Cryptologic Executive Service, a certification by the head of theDefense Intelligence Agency or National Security Agency (or their designees)that the employee has been removed for failure to be recertified under 10 U.S.C.1601(a) or section 12(a)(1) of the National Security Agency Act, respectively.

(d) An annuity payable under paragraph (a) of this section commences on theday after separation from service.

(a) An employee or Member who, after completing 5 years of service, separatesfrom service or transfers to a position not covered by FERS is entitled to adeferred annuity beginning on the first day of the month after the individualattains age 62.

(b)(1) Except as provided in paragraphs (b)(3) and (c) of this section, anemployee or Member who has not attained the minimum retirement age, and who,after completing 10 years of service, is separated or transferred to a positionin which the individual is no longer covered by FERS, is entitled to a deferredannuity commencing—

(i) The first day of the month following the date on which the individualattains the minimum retirement age or, if later,

(ii) A date the individual designates that follows the date on which thedesignation is filed.

(2) The election of a commencing date may be filed no more than 90 daysbefore that commencing date, and must be elected in a form prescribed by OPM. Awritten election that is not in the prescribed form, but which designates aspecific commencing date, will be accepted for as an informal election, subjectto ratification in the prescribed form.

(3) An employee or Member is not entitled to a deferred annuity underparagraph (b)(1) of this section if the individual is eligible for an annuityunder §§ 842.205 through 842.211 or will, within 31 days afterfiling the election of a commencing date, attain age 62.

(4) The election of a commencing date becomes irrevocable on the date OPMauthorizes the first annuity payment.

(c)(1) If an employee or Member separates from service after completing 10years of service but before attaining the minimum retirement age, and isreemployed before filing an application for retirement based on that separation,that individual may not elect an annuity commencing date that precedesseparation from the reemployment service.

(2) In the case of an employee or Member who separates from service aftercompleting 10 years of service but before attaining the minimum retirement age,and is reemployed after filing an application for retirement based on thatseparation, that individual may not elect an annuity commencing date thatprecedes separation from the reemployment service if he or she is reemployedprior to a postponed commencing date elected under paragraph (b).

(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. 8414(b)(1)(B) 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 specifiedcomponent(s)) who may be involuntarily separated, downgraded, transferred, orreassigned as a result of the substantial delayering, reorganization, reductionin force, transfer of function, or other workforce restructuring or reshaping;

(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 crosses 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 the number 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. 8414(b)(1)(B).

(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 thestated expiration date of a VERA or offer early retirements to employees who arenot within the scope of the VERA approved by OPM.

(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.

(r) The authority to VERA to restructure the workforce terminates June 14,2004.

This subpart sets forth the provisions governing credit for service under theFederal Employees Retirement System (FERS), 5 U.S.C. 8411. Except as provided bysection 302 of the Federal Employees' Retirement System Act of 1986, Pub. L.99-335 (the special provisions for employees who elect to transfer toFERS), service not creditable under this subpart is not creditable either forthe purposes of determining eligibility to an annuity or in computing the rateof an annuity benefit under subchapter II (basic annuity), IV (survivorannuity), or V (disability annuity) of chapter 84 of title 5 of the UnitedStates Code.

Cadet Nurse Corps means any training as a student or graduatenurse under a plan approved under section 2 of the Act of June 15, 1943 (57Stat. 153).

Employee means an employee as defined by 5 U.S.C. 8401(11).

FERS means the Federal Employees Retirement System asestablished under chapter 84 of title 5, United States Code.

Government means the Federal Government and Gallaudet College.

Member means a Member of Congress as defined by 5 U.S.C.8401(20).

Military service means honorable active service in the armedforces of the United States; in the commissioned corps of the Public HealthService after June 30, 1960; or in the commissioned corps of the NationalOceanic and Atmospheric Administration, or a predecessor entity in function,after June 30, 1961. “Military service” does not include service inthe National Guard except when ordered to active duty in the service of theUnited States.

Survivor means a current spouse, a child or a former spouse whois entitled to an annuity in accordance with part 843 of this chapter.

(a)(1) Except as provided in paragraph (a)(2) of this section, no servicecredit is allowed for a period of separation from service.

(2) Service credit is allowed for a period of separation of less than 4 daysand for a period of separation during which an individual was receiving benefitsunder subchapter I of chapter 81 of title 5, United States Code, provided theindividual returns to duty in the Government subject to FERS.

(b) Service credit cannot be granted in excess of actual calendar time fromthe date of appointment to the date of separation from service.

(c) Any period of time for which service credit under chapter 84 of title 5,United States Code, is specifically allowed by a provision of law is creditableunder this subpart subject to any applicable deposit requirements.

(a) Except as otherwise provided under title III of the Federal Employees'Retirement System Act of 1986, an employee or Member is entitled to credit forall purposes under FERS for a period of civilian service with the Government orthe U.S. Postal Service—

(1) Performed after December 31, 1986, which is covered service under subpartA of this part and for which deductions required under 5 U.S.C. 8422(a) have notbeen refunded;

(2) That, other than service under paragraph (a)(1) of this section—

(i) Was performed before 1989;

(ii) Would have been creditable under 5 U.S.C. 8332 if the employee or Memberwere subject to subchapter III of chapter 83 of title 5, United States Code,without regard to any deposit, redeposit, or coverage requirement under thatsubchapter; and

(iii) Is covered by deductions or a deposit required by § 842.305and the deductions or deposit have not been refunded after the employee orMember first became subject to FERS;

(3) That was creditable under subchapter II of chapter 8 of title 1 of theForeign Service Act of 1980 (Foreign Service Pension System), provided—

(i) The employee or Member waives credit for the service under the ForeignService Pension System; and

(ii) The employee or Member makes the deposit required by§ 842.305, and the deposit is not refunded;

(4) While on leave of absence without pay, subject to a limit of 6 months percalendar year, except that the 6-month limit does not apply while—

(i) Performing military service; or

(ii) Receiving benefits under subchapter I of chapter 81 of title 5, UnitedStates Code;

(5) While on approved leave without pay granted to serve as a full-timeofficer or employee of an organization composed primarily of employees, asdefined by section 8331(1) or 8401(11) of title 5, United States Code,provided—

(i) The employee elects, within 60 days after the commencing date of leavewithout pay, to pay to the employing agency the retirement deductions and agencycontributions that would be applicable if the employee were in a pay status;

(ii) Payments of the deductions and contributions begin on a regular basiswithin 60 days after the commencing date of leave without pay; and

(iii) Payments of the required deductions and contributions are completed andnot refunded; and

(6) While assigned on detail or leave without pay to a State or localgovernment under 5 U.S.C. 3373, provided—

(i) The normal cost percentage (under subpart D of part 841 of this chapter)for the employee (who is deemed to continue in the same normal cost percentagecategory as applicable on the date of the assignment) is remitted to OPM foreach pay period during the assignment; and

(ii) The employee, or, if he or she dies without making an election, his orher survivor, does not elect to receive benefits under any State or localgovernment retirement law or program, which OPM determines to be similar toFERS.

(b) Cadet Nurse Corps. (1) Service credit is allowed under Pub.L. 99-638 for a period of service performed with the Cadet Nurse Corpsprovided—

(i) The service totaled 2 years or more;

(ii) The individual submits an application for service credit to OPM no laterthan January 10, 1988;

(iii) The individual is employed by the Federal Government in a positionsubject to subchapter III of chapter 83 of title 5, United States Code (otherthan 5 U.S.C. 8344) or chapter 84 of that title (other than 5 U.S.C. 8468) atthe time he or she applies to OPM for service credit under this provision; and

(iv) The individual makes a deposit for the service in accordance with§ 842.305(g) before the date of separation from service on which theindividual's entitlement to annuity is based.

(c) National Guard technician service before January 1,1969—(1) Definition. In this section, serviceas a National Guard technician is service performed under section 709 oftitle 32, United States Code (or under a prior corresponding provision of law)before January 1, 1969.

(2) Employees on or after November 6, 1990. Employees, subjectto FERS retirement deductions, whose only service as a National Guard technicianwas performed prior to January 1, 1969, are entitled to credit under FERS ifthey—

(i) Submit to OPM an application for service credit in a form prescribed byOPM;

(ii) Are employed by the Federal Government in a position subject to FERSretirement deductions after November 5, 1990; and

(iii) Complete the deposit for the service through normal service creditchannels before final adjudication of their application for retirement or havethe deposit deemed made when they elect the alternative form of annuity.

(3) Former Federal employees. Former Federal employees who weresubject to FERS retirement deductions and separated after December 31, 1968, butbefore November 6, 1990, with title to a deferred annuity, may make a depositfor pre-1969 National Guard technician service provided they—

(i) Submit a written application for the pre-1969 National Guard technicianservice 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.

(4) Annuitants and survivors. (i) Individuals who were entitledto receive an immediate annuity (or survivor annuity benefits) as of November 6,1990, may make a deposit for pre-1969 National Guard technician service providedthey—

(A) Submit a written application for service credit to OPM before November 6,1991; and

(B) Complete a deposit for the additional service in a lump sum or in equalmonthly annuity installments to be completed within 24 months of the date of thewritten application.

(ii) 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.

(iii) 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 servicefrom the Adjutant General of the State in which the service was performed.

(d) Credit for service performed as an employee of anonappropriated fund instrumentality. (1) Credit for service with anonappropriated fund instrumentality is allowed in accordance with an electionunder 5 CFR part 847, subpart D or H.

(2) Service under FERS for which the employee withdrew all deductions iscreditable in accordance with an election made under 5 CFR part 847, subpart D.

(3) An annuity that includes credit for service with a nonappropriated fundinstrumentality under 5 CFR part 847, subpart D, or refunded service underparagraph (d)(2) of this section is computed under 5 CFR part 847, subpart F.

(4) An annuity that includes credit for service with a nonappropriated fundinstrumentality under 5 CFR part 847, subpart H, is computed under 5 CFR part847, subpart I.

(a) Eligibility—current and former employees or Members.An employee or Member subject to FERS and a former employee or Member who isentitled to an annuity may make a deposit for civilian service described underparagraphs (a)(2) and (a)(3) of § 842.304 upon application to OPM ina form prescribed by OPM. A deposit for civilian service cannot be made laterthan 30 days after the first regular monthly payment as defined in§ 842.602.

(b) Eligibility—survivors. If an employee or Member was,at the time of death, eligible to make a deposit, the employee's survivor maymake the deposit for civilian service. A deposit under this paragraph cannot bemade after adjudication of the survivor's application for benefits becomesfinal, which is 30 days after the date of OPM's notice to the survivor of theannuity rates with and without making the deposit.

(c) Distinct period of service. A deposit is not considered tohave been made for any distinct period of service unless the total amount duefor the period is paid in full. A distinct period of civilian service for thispurpose is a period of civilian service that is not interrupted by a break inservice of more than 3 days.

(d) Amount of deposits. The amount of a deposit for a period ofservice under § 842.304(a)(2) equals 1.3 percent of the basic pay forthe service, plus interest. The amount of a deposit for a period of serviceunder § 842.304(a)(3) equals the amount that would have been deductedfrom pay under 5 U.S.C. 8422(a) had the employee been subject to FERS during theservice, plus interest.

(e) Interest. (1) Interest is charged at the rate of 4 percenta year through December 31, 1947; 3 percent a year beginning January 1, 1948,through December 31, 1984; and thereafter at a rate as determined by theSecretary of the Treasury for each calendar year that equals the overall averageyield to the Civil Service Retirement and Disability Fund (the Fund) during thepreceding fiscal year from all obligations purchased by the Secretary duringsuch fiscal year under 5 U.S.C. 8348 (c), (d), and (e).

(2) 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; but,whenever applicable, the rule of average applies.

(3) Interest is computed from the midpoint of each service period included inthe computation. The interest accrues annually on the outstanding portion, andis compounded annually, until the portion is deposited. Interest is not chargedafter the commencing date of annuity or for a period of separation from theservice that began before October 1, 1956.

(f) Forms of deposit. Deposits may be made in a single lump sumor in installments not smaller than $50 each.

(g) Cadet Nurse Corps. (1) Upon receiving an application forservice credit with the Cadet Nurse Corps, OPM will determine whether all theconditions for creditability (§ 842.304(b)) have been met; computethe deposit, including interest; and advise the employing agency and theemployee of the total amount of the deposit due. The rate of basic pay for thispurpose is deemed to be $15 per month for the first 9 months of study; $20 permonth for the 10th through the 21st months of study; and $30 per month for anymonth in excess of 21 months. Interest is computed in accordance with paragraph(e) of this section.

(2) The employing agency must establish a deposit account showing the totalamount due and a payment schedule (unless deposit is made in one lump sum) torecord the date and amount of each payment.

(3) If the individual cannot make payment in one lump sum, the employingagency must accept installment payments (by allotments or otherwise). Theemploying agency, however, is not required to accept individual checks inamounts less than $50.

(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 instructions issued by OPM.

(h) Processing applications for pre-1969 National Guard technicianservice credit for employees subject to FERS retirement deductions afterNovember 5, 1990—(1) OPM determines creditable service.OPM will determine whether all conditions for crediting the additional servicehave been met, compute the deposit, and notify the employee of the amount of andthe procedures for submitting the deposit payments to OPM to obtain credit forthe service.

(2) Computing the deposit. (i) For individuals who will nothave a CSRS component, the deposit will be computed based on—

(A) One and three tenths percent of basic pay at the time the service wasperformed; and

(B) 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.

(ii) For individuals who will have a CSRS component, the deposit will becomputed as specified in 5 CFR 831.306(c).

(i) Processing applications for pre-1969 National Guard technicianservice credit for annuitants (and survivors) and for former employees whoseparated after December 31, 1968, and before November 6, 1990—(1) OPM determines creditable service. OPM will determine whether allconditions for crediting the additional service have been met, compute theamount of the deposit, and notify the individual.

(2) Computing the deposit for annuitants and survivors. (i) Forindividuals who do not have a CSRS component, the deposit will be computed basedon—

(A) One and three tenths percent of basic pay at the time the service wasperformed; and

(B) Interest at the rate of 3 percent per year as specified by section8334(e)(2) of title 5, United States Code, to the midpoint of the 24-monthinstallment period, or if paid in a lump sum, the date the deposit is paid.

(ii) For individuals who will have a CSRS component, the deposit will becomputed as specified in 5 CFR 831.306(e)(2)(i) and (ii)(A).

(iii)(A) OPM will notify annuitants and survivors of the amount of thedeposit and give them a proposed installment schedule for paying the depositfrom monthly annuity payments. The proposed installment payments will consist ofequal monthly payments that will not exceed a period 24 months from the date acomplete written application is received by OPM.

(B) The annuitant or survivor may allow the deposit installments to bededucted from his or her annuity as proposed or make payment in a lump sumwithin 30 days from the date of the notice.

(C) Increased annuity payments will begin to accrue the first day of themonth after OPM receives the complete written application.

(iv) If an annuitant dies before completing the deposit installment payments,the remaining installments will be deducted as established for the annuitantfrom 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 from the decedent's estate, if any.

(3) Computing the deposit for former Federal employees separatedafter December 31, 1968 but before November 6, 1990. For former employeeswith title to a deferred annuity that commences after November 6, 1990, thedeposit will be computed as provided in paragraph (i)(2) above, except thatinterest will be computed through the commencing date of annuity or the date thedeposit is paid, whichever comes first.

(a) Eligibility to make a deposit. (1) An employee or Membersubject to FERS may make a deposit for any distinct period of military serviceby filing an application in a form prescribed by OPM.

(2) An application to make a deposit is filed with the appropriate office inthe employing agency, or, for Members and Congressional employees, with theSecretary of the Senate, or the Clerk of the House of Representatives, asappropriate.

(3) An employee's or Member's deposit for military service must be completedbefore separation from service. If a deceased employee or Member was, at thetime of death, eligible to make a deposit, the employee's or Member's survivormay make the deposit in one lump sum to the former employing agency, theSecretary of the Senate or the Clerk of the House of Representatives, before OPMcompletes adjudication of the survivor annuity application. A person who waseligible to make a deposit for military service but failed to complete thedeposit within the time limits provided in this paragraph, may complete thedeposit in a lump sum within the time limit set by OPM when it rules that anadministrative error has been made.

(b) Amount of deposit. (1) The amount of a deposit for militaryservice equals 3 percent of the basic pay for the service under 37 U.S.C. 207,or an estimate of the basic pay (see paragraph (c)(1)(iii) of this section),plus interest, unless interest is not required under paragraph (b)(4) of thissection.

(2) Interest is charged at a rate as determined by the Secretary of theTreasury for each calendar year that equals the overall average yield to theFund during the preceding fiscal year from all obligations purchased by theSecretary during such fiscal year under 5 U.S.C. 8348(c), (d), and (e).

(3) 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.

(4) Interest is computed from the mid-point of each full period of serviceincluded in the computation. The interest accrues annual on the outstandingportion beginning on the second anniversary of the employee's or Member'sbeginning date of coverage under FERS, and is compounded annually, until theportion is deposited. Interest is charged to the date of deposit. No interestwill be charged if the deposit is completed before the end of the year afterinterest begins. For example, if an employee becomes subject to FERS on March 1,1988, interest begins to accrue on March 1, 1990; however, no interest would beincluded in the deposit due if the deposit is completed by February 28, 1991.

(c) Processing deposit applications and payments. (1) Theagency, Clerk of the House of Representatives, or Secretary of the Senate willhave the employee or Member—

(i) Complete an application to make deposit;

(ii) Provided a copy of his or her DD Form 214 or its equivalent to verifythe period(s) of service; and

(iii) Provide copies of all official military pay documents, as identified ininstructions issued by OPM, which show the exact basic pay he or she receivedfor full period of service; or, if such evidence is not available, obtain astatement of estimated earnings from the appropriate branch of the militaryservice and submit the statement.

(2) Upon receipt of the application, the DD Form 214, and either the evidenceof exact basic pay or the statement of estimated earnings, the agency, Clerk ofthe House of Representatives, or Secretary of the Senate will establish adeposit account showing—

(i) The total amount due, including interest, if any;

(ii) A payment schedule (unless deposit is made in a lump sum); and

(iii) The date and amount of each payment.

(3) Deposits may be made in a single lump sum or in installments. The agency,Clerk of the House of Representatives, and Secretary of the Senate are notrequired to accept installment payments in amounts less than $50.

(4) Payments received by the employing agency, the Clerk of the House ofRepresentatives, or the Secretary of the Senate will be remitted to OPM fordeposit to the Fund in accordance with payroll office instructions issued byOPM.

(d) Distinct periods of service. A deposit is not considered tohave been made for any distinct period of service unless the total amount duefor the period is paid in full. A “distinct period” for this purposeis the total years, months, and days from the date of entry on active duty (orfrom January 1, 1957, if later) to the date of final discharge for enlistedmilitary personnel, or to the date of final release from active duty forofficers and reservists. A “distinct period” also includesconsecutive periods of service where there is no break in service, but does notinclude any lost time.

(a) An employee or Member who, while currently employed, is eligible under 5U.S.C. 8342(a) for a refund of deductions or deposits (relating to civilianservice performed before becoming subject to FERS and totaling less than 5years, not counting service after 1983 that was covered simultaneously by bothCSRS and social security) that were previously made for a period of serviceperformed before becoming subject to FERS is eligible for a refund, upon properapplication in a form prescribed by OPM. The amount of this refund is thedifference between—

(1) The amount of deductions and deposits to his or her credit for suchservice, plus any interest computed in accordance with 5 U.S.C. 8331(8): and

(2) The amount of the deposit required for such service under§ 842.305.

(b) A former employee or Member who is eligible under 5 U.S.C. 8342(a) for arefund of deductions or deposits covering civilian service of the typesdescribed in paragraph (a) of this section is eligible for a refund, upon properapplication in a form prescribed by OPM. The individual may irrevocably elect arefund, with resepct to this service, of either—

(1) The amount provided under paragraph (a) of this section; or

(2) The full amount of deductions and deposits to his or her credit for suchservice, plus any interest computed in accordance with 5 U.S.C. 8331(8). If thefull amount of deductions and deposits is elected by the former employee orMember, no future deposit for the service may be made.

(c) An employee or Member, who, before becoming subject to FERS, made adeposit for military service is eligible upon proper application in a formprescribed by OPM, while currently employed, for a refund of the amountdeposited, excluding interest, to the extent that this amount exceeds the amountof the deposit required for such service under § 842.307.

(d) A former employee or Member who, before becoming subject to FERS, made adeposit for military service is eligible for a refund, upon proper applicationin a form prescribed by OPM. The former employee or Member may irrevocably electto receive either—

(1) The amount provided under paragraph (c) of this section; or

(2) The full amount deposited and remaining to the individual's credit. Ifthe full amount of the deposit is elected, no future deposit for the service maybe made.

(e) If the current employing agency holds all necessary records pertaining tothe amounts in question under paragraph (a) or (c) of this section, the currentemploying agency will pay the refund in accordance with OPM instructions.Otherwise, OPM will pay the refund.

Contract service with the United States will only be included in thecomputation of, or used to establish title to, an annuity under chapter 84 oftitle 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 the agency intended that an individual be considered as havingbeen appointed to a position in which (s)he would have been subject tosubchapter III of chapter 83 of title 5, United States Code, and deposit hasbeen paid in accordance with OPM's regulations.

Any FERS service which becomes creditable under a retirement systemestablished for nonappropriated fund employees due to an election made underpart 847 of this chapter is not creditable for any purpose under FERS.

This subpart regulates the basic annuity computation under the FederalEmployees Retirement System (FERS).

In this subpart—

Full-time service means any actual service in which theemployee is scheduled to work the number of hours and days required by theadministrative workweek for his or her grade or class (normally 40 hours).

Part-time service means any actual service performed on a lessthan full-time basis, by an individual whose appointment describes a regularlyscheduled tour of duty, and any period of time credited as nonpay status timeunder 5 U.S.C 8411(d), that follows a period of part-time service without anyintervening period of actual service other than part-time service.

Proration factor means a fraction expressed as a percentagerounded to the nearest percent. The numerator is the sum of the number of hoursthe employee actually worked during part-time service; and the denominator is the sum of the number of hours that a full-time employee would be scheduled towork during the same period of service included in the numerator. If an employeehas creditable service in addition to part-time service, such service must beincluded in the numerator and denominator of the fraction.

Total service means the full years and twelfth parts thereof ofan employee's or Member's service creditable under subpart C of this part,excluding any fractional part of a month.

(a) Except as provided in paragraph (b) of this section and§§ 842.405 and 842.406, the annuity of an employee or Member is1 percent of average pay multiplied by total service.

(b) The annuity of an employee is 1.1 percent of average pay multiplied bytotal service, provided the individual—

(1) Has completed 20 years of service; and

(2) At the time of separation on which entitlement to an annuity isbased—

(i) Is at least age 62; and

(ii) Is not a Member, Congressional employee, military reserve technician,law enforcement officer, firefighter, or air traffic controller.

The annuity of an employee or Member retiring under§ 842.204(a)(1) or § 842.212(b) is reduced by five-twelfths of 1 percent for each full month by which the commencing date ofannuity precedes the 62nd birthday of the employee or Member, unless theindividual—

(a) Has completed 30 years of service; or

(b)(1) Has completed 20 years of service; and

(2) Is at least age 60 on the commencing date of annuity; or

(c) Has completed 20 years of service as—

(1) An air traffic controller, except one separated by removal for cause oncharges of misconduct or delinquency;

(2) A firefighter and/or law enforcement officer, except one separated byremoval for cause on charges of misconduct of delinquency; or

(3) A Member, except one separated by resignation or expulsion.

The annuity of an air traffic controller retiring under § 842.207or a law enforcement officer, firefighter or nuclear materials courier retiringunder § 842.208 is—

(a) One and seven-tenths percent of average pay multiplied by 20 years; plus

(b) One percent of average pay multiplied by the years of service exceeding20 years.

The annuity of an employee or Member who has had at least 5 years of serviceas a congressional employee, Member, or any combination thereof totaling 5 yearsis—

(a) One and seven-tenths percent of average pay multiplied by the totalnumber of years of service as a Member and/or congressional employee notexceeding 20 years: plus

(b) One percent of average pay multiplied by the years of service other thanthat of a Member and/or congressional employee.

The annuity of an employee whose service includes part-time service iscomputed in accordance with § 842.403, using the average pay based onthe annual rate of basic pay for full-time service. This amount is thenmultiplied by the proration factor. The result is the annual rate of annuitybefore reductions for retirement before age 62, survivor benefits, or thereduction for an alternative form of annuity required by § 842.706.

This subpart explains the survivor annuity elections available under FERS forretirees, and retiring employees and Members, and the actions that they musttake to provide these survivor annuities.

In this subpart—

Current spouse means a living person who is married to theemployee, Member, or retiree at the time of the employee's, Member's, orretiree's death.

Current spouse annuity means a recurring benefit under FERSthat is payable (after the employee's, Member's or retiree's death) to a currentspouse who meets the requirements of § 843.303 of this chapter.

Deposit means a deposit required to provide a survivor benefit.Deposit, as used in this subpart, does not include a servicecredit deposit or redeposit.

FERS means chapter 84 of title 5, United States Code.

First regular monthly payment means the first annuity checkpayable on a recurring basis (other than an estimated payment or an adjustmentcheck) after OPM has initially adjudicated the regular rate of annuity payableunder FERS and has paid the annuity accrued since the time of retirement. The first regular monthly payment is generally preceded by estimatedpayments before the claim can be adjudicated and by an adjustment check(including the difference between the estimated rate and the initiallyadjudicated rate).

Former spouse means a living person who was married for atleast 9 months to an employee, Member, or retiree who performed at least 18months of creditable service under FERS. The “former spouse's”marriage to the employee must have been terminated prior to the death of theemployee, Member, or retiree.

Former spouse annuity means a recurring benefit under FERS thatis payable to a former spouse after the employee's, Member's, or retiree'sdeath.

Fully reduced annuity means the recurring payments under FERSreceived by a retiree who has elected the maximum reduction in his or herannuity to provide a current spouse annuity and/or a former spouse annuity orannuities.

Insurable interest rate means the recurring payments under FERSto a retireee who has elected a reduction in annuity to provide a survivorannuity to a person with an insurable interest in the retiree.

Marriage has the same meaning as in § 843.102 ofthis chapter.

Member means a Member of Congress.

Net annuity means the net annuity as defined in§ 838.103 of this chapter.

One-half reduced annuity means the recurring payments underFERS received by a retiree who has elected one-half of the full reduction in hisor her annuity to provide a partial current spouse annuity or a partial formerspouse annuity or annuities.

Present value factor means the amount of money (earninginterest at an assumed rate) required at the time of retirement to fund anannuity that starts out at the rate of $1 a month and is payable in monthlyinstallments for the annuitant's lifetime based on mortality rates for non-disability annuitants under the Civil Service Retirement System; and increaseseach year at an assumed rate of inflation. Interest, mortality, and inflationrates used in computing the present value are those used by the Board ofActuaries of the Civil Service Retirement System for valuation of the System,based on dynamic assumptions. The present value factors are unisex factorsobtained by averaging six distinct present value factors, weighted by the totaldollar value of annuities typically paid to new retirees at each age.

Qualifying court order means a court order that awards a formerspouse annuity and that satisfies the requirements of section 8445 of title 5,United States Code, for awarding a former spouse annuity.

Retiree means a former employee or Member who is receivingrecurring payments under FERS based on service by the employee or Member.“Retiree,” as used in this subpart, does not include a currentspouse, former spouse, child, or person with an insurable interest receiving asurvivor annuity.

Self-only annuity means the recurring unreduced payments underFERS to a retiree with no survivor annuity payable to anyone.

Time of retirement means the effective commencing date forretired employee's or Member's annuity. An employee or Member is unmarried atthe time of retirement for all purposes under this subpart only if the employeeor Member was unmarried on the date that the annuity begins to accrue.

(a) A married employee or Member retiring under FERS 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 one-half reduced annuity to provide a current spouseannuity, or a fully reduced annuity or a one-half reduced annuity to provide aformer spouse annuity, in accordance with § 842.604 or§ 842.606; or

(2) The employee or Member elects a self-only annuity or a fully reducedannuity or a one-half reduced annuity to provide a former spouse annuity, andcurrent spousal consent is waived in accordance with § 842.607.

(b) Qualifying court orders that award former spouse annuities preventpayment of current spouse annuities to the extent necessary to comply with thecourt order and § 842.613.

(c) The amount of the reduction to provide a current spouse annuity underthis section is 10 percent of the retiree's annuity.

(a) An unmarried employee or Member retiring under FERS may elect a fullyreduced annuity or a one-half reduced annuity to provide a former spouse annuityor annuities.

(b) A married employee or Member retiring under FERS may elect a fullyreduced annuity or a one-half reduced annuity to provide a former spouse annuityor annuities instead of a fully reduced annuity to provide a current spouseannuity, if the current spouse consents to the election in accordance with§ 842.606 or spousal consent is waived in accordance with§ 842.607.

(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 themaximum amount of survivor annuity that the employee or Member is entitled toprovide under § 842.613.

(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 a former spouse annuity foranother former spouse, or to provide a current spouse annuity; or

(2) A qualifying court order requires the retiree to provide another formerspouse annuity.

(e) Except as provided in § 842.614, the amount of the reductionto provide a former spouse annuity equals—

(1) Ten percent of the employee's or Member's annuity if the employee orMember elects a fully reduced annuity; or

(2) Five percent of the employee's or Member's annuity if the employee orMember elects a one-half reduced annuity.

(a) At the time of retirement, an employee or Member in good health and whois applying for a non-disability annuity may elect an insurable interest rate.An election under this section does not exempt a married employee or Member fromthe provisions of § 842.603(a).

(b) An insurable interest rate may be elected by an employee or Memberelecting a fully reduced annuity or a one-half reduced annuity to provide a current 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 § 842.603(a)(1).

(2) A consent (to an election not to provide a current spouse annuity inaccordance with § 842.603(a)(1)) required by paragraph (c)(1) of thissection to be eligible to be the beneficiary of an insurable interest rate iscancelled if—

(i) The retiree fails to qualify to receive the insurable interest rate; or

(ii) The retiree changes his or her election to receive an insurable interestrate under § 842.608; or

(iii) The retiree elects a fully reduced annuity to provide a current spouseannuity under § 842.610.

(3) An election of a one-half reduced annuity under § 842.610(b)to provide a current spouse annuity for a current spouse who is the beneficiaryof an insurable interest rate is void unless the spouse consents to theelection.

(4) If a retiree who had elected an insurable interest rate to benefit acurrent spouse elects a fully reduced annuity to provide a current spouseannuity (or with the consent of the spouse, a one-half reduced annuity toprovide a current spouse annuity) under § 842.610(b), the election ofthe insurable interest rate is cancelled.

(5)(i) A retiring employee or Member may not elect a fully reduced annuity ora one-half reduced annuity to provide a former spouse annuity and an insurableinterest rate 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 rate to benefit theformer 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 ratewill satisfy the requirements of the court order as long as the insurableinterest rate continues.

(B) If the benefit based on the election is less than the benefit based onthe court order, the election of the insurable interest rate is void.

(iii) An election under § 842.611 of a fully reduced annuity or aone-half reduced annuity to benefit a former spouse by a retiree who elected andcontinues to receive an insurable interest rate to benefit that former spouse isvoid.

(d) To elect an insurable interest rate, an employee or Member must indicatethe intention to make the election on the application for retirement and mustsubmit a certificate of good health in a form prescribed by OPM.

(e) An insurable interest rate may be elected to provide a survivor benefitonly for a person who has an insurable interest in the retiring employee orMember.

(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 relationshipthat would constitute a common-law marriage in jurisdictions recognizing common-law marriages.

(2) When an insurable interest is not presumed, the employee or Member mustsubmit affidavits from one or more persons with personal knowledge of the namedbeneficiary's having an insurable interest in the employee or Member. Theaffidavits must set forth the relationship, if any, between the namedbeneficiary and the employee or Member, the extent to which the namedbeneficiary is dependent on the employee or Member, and the reasons why thenamed beneficiary might reasonably expect to derive financial benefit from thecontinued life of the employee or Member.

(3) The employee or Member may be required to submit documentary evidence toestablish the named beneficiary's date of birth.

(f) OPM will notify the employee or Member of initial monthly annuity rateswith and without the election of an insurable interest rate and the initial ratepayable to the named beneficiary. No election of an insurable interest rate iseffective unless the employee or Member confirms the election in writing or diesno later than 60 days after the date of the notice described in this paragraph.

(g)(1) When an employee or Member elects both an insurable interest rate, anda fully reduced annuity or a one-half reduced annuity, the combined reductionmay exceed the maximum 40 percent reduction in the retired employee's orMember's annuity permitted under section 8420 of title 5, United States Code,applicable to insurable interest annuities.

(2) The additional reduction to provide a current spouse annuity or a formerspouse annuity is not considered in determining the rate of annuity payable to abeneficiary of an insurable interest election.

(h)(1) Except as provided in § 842.604(d), if a retiree who isreceiving a fully reduced annuity or a one-half reduced annuity to provide aformer spouse annuity has also elected an insurable interest rate to benefit acurrent spouse and if the eligible former spouse remarries before age 55, dies,or loses eligibility under the terms of the court order, and no other formerspouse is entitled to a survivor annuity based on an election made in accordancewith § 842.611 or a qualifying court order, the retiree may elect,within 2 years after the former spouse's remarriage, death, or loss ofeligibility under the terms of the court order, to convert the insurableinterest rate 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 8445 of title 5,United States Code, loses eligibility to that annuity, a beneficiary of aninsurable interest rate 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 month following the eventcausing 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 rate 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 rate. OPM will not accept the designationof contingent beneficiaries and such a designation is void.

(k)(1) An election under this section is prospectively voided by an electionof a fully reduced annuity to provide a current spouse annuity under§ 842.612 that would benefit the same person.

(2)(i) If the current spouse is not the beneficiary of the election underthis section, a retiree may prospectively void an election under this section atthe time the retiree elects a reduced annuity to provide a current spouseannuity under § 842.612.

(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§ 842.612.

(3) An annuity reduction under this section terminates on the first day ofthe month after the beneficiary of the insurable interest rate dies.

(a) A married employee may not elect a self-only annuity or a one-halfreduced annuity to provide a current spouse annuity without the consent of thecurrent spouse or a waiver of spousal consent by OPM in accordance with§ 842.607.

(b) Evidence of spousal consent or a request for waiver of spousal consentmust be filed on a form prescribed by OPM.

(c) The spousal consent form will require that a notary public or otherofficial authorized to administer oaths certify that the current spousepresented identification, gave consent, signed or marked the form, andacknowledged that the consent was given freely in the notary's or official'spresence.

(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.

(e) A request for waiver of the spousal consent requirement must be by letterand fully state the basis for the request.

(f) The amount of the reduction in the retiree's annuity for a one-halfreduced annuity to provide a current spouse annuity is 5 percent of theretiree's annuity.

(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 8416(a) of title 5, United States Code,and this section as they relate to waiver of the spousal consent requirement fora married Federal employee to elect an annuity without a reduction to provide asurvivor 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 may name a new survivor or change his or her electionof type of annuity if, not later than 30 days after the date of the firstregular monthly payment, the named survivor dies or the employee or Member fileswith OPM a new written election. All required evidence of spousal consent orjustification for waiver of spousal consent, if applicable, must accompany anynew written election under this section.

(a) Except as provided in § 842.611, § 842.612, orparagraph (b) of this section, an employee or Member may not revoke or changethe election or name another survivor later than 30 days after the date of thefirst regular monthly payment.

(b)(1) Except as provided in § 842.605 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, a one-half reduced annuity to provide a currentspouse annuity, a fully reduced annuity or a one-half reduced annuity to providea former spouse annuity, or an insurable interest rate may elect, no later than18 months after the time of retirement, an annuity reduction 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 § 842.613.

(3) To make an election under paragraph (b)(1) of this section, the retireemust pay, in full no later than 18 months after the time of retirement, adeposit equal to the sum of the monthly differences between the annuity paid tothe retiree and the annuity that would have been paid if the additional annuityreduction elected under paragraph (b)(1) of this section had been in effectsince the time of retirement, plus—

(i) If the election under paragraph (b)(1) of this section changes theannuity from a self only annuity to a fully reduced annuity, 24.5 percent of theretiree's annual annuity, plus 6 percent interest on both; or

(ii) If the election under paragraph (b)(1) of this section changes theannuity from a self only annuity to a one-half reduced annuity or from a one-half reduced annuity to a fully reduced annuity, 12.25 percent of the retiree'sannual annuity, plus 6 percent interest on both.

(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 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 § 842.603.

(6) An election under paragraph (b)(1) of this section is void unless filedwith OPM before the retiree dies.

(7) If a retiree who had elected a fully reduced annuity or a one-halfreduced annuity to provide a former spouse annuity (or annuities) makes anelection under paragraph (b)(1) of this section which would cause the combinedcurrent spouse annuity and former spouse annuity (or annuities) to exceed themaximum allowed under § 842.613, the former spouse annuity (orannuities) must be reduced to not exceed the maximum allowable under§ 842.613.

(a) Except as provided in paragraphs (b) and (c) of this section, when aretiree's marriage terminates after retirement, the retiree may elect in writinga fully reduced annuity or a one-half reduced annuity to provide a former spouseannuity. Such an election must be filed with OPM within 2 years after theretiree's marriage to the former spouse terminates.

(b)(1) Qualifying court orders prevent payment of former spouse annuities tothe extent necessary to comply with the court order and § 842.613.

(2) A retiree who elects a fully reduced annuity or a one-half reducedannuity to provide a former spouse annuity may not elect to provide a formerspouse annuity in an amount 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 §§ 842.603, 842.604, 842.612 andthis section to exceed the maximum allowed under § 842.613.

(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 § 842.606(c) and spousalconsent is not waived by OPM in accordance with § 842.607; 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 § 842.603(a)(1) or (a)(2).

(c) An election under this section is not permitted unless the retiree agrees to 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 § 841.107 of this chapter) from the date when eachdifference occurred.

(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) 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—

(1) Ten percent of the employee's or Member's annuity if the employee orMember elects a fully reduced annuity; or

(2) Five percent of the employee's or Member's annuity if the employee orMember elects a one-half reduced annuity.

(a) Except as provided in paragraph (c) of this section, a retiree who wasunmarried at the time of retirement may elect, within 2 years after a post-retirement marriage, a fully reduced annuity or a one-half reduced annuity toprovide a current spouse annuity.

(b) Except as provided in paragraph (c) of this section, a retiree who wasmarried at the time of retirement may elect, within 2 years after a post-retirement marriage—

(1) A fully reduced annuity or a one-half reduced annuity to provide acurrent spouse annuity if—

(i) The retiree was awarded a fully reduced annuity under§ 842.603 at the time of retirement; or

(ii) The election at the time of retirement was made with a waiver of spousalconsent in accordance with § 842.607; or

(iii) 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

(2) A one-half reduced annuity to provide a current spouse annuity if—

(i) The retiree elected a one-half reduced annuity under § 842.606at the time of retirement;

(ii) The election at the time of retirement was made with spousal consent inaccordance with § 842.606; and

(iii) The marriage at the time of retirement was to the same person who wouldreceive a current spouse annuity based on the post-retirement election.

(c)(1) Qualifying court orders prevent payment of current spouse annuities tothe extent necessary to comply with the court order and § 842.613.

(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§ 842.604, § 842.611, or this section to exceed themaximum survivor annuity permitted under § 842.613, OPM will acceptthe election but will pay the portion in excess of the maximum only whenpermitted by § 842.613(c).

(d)(1) Except as provided in paragraph (d)(2) or (e)(3) of this section, aretiree 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 (a) or (b) of this section had been in effect continuously since thetime of retirement, plus 6 percent annual interest, computed under§ 841.606 of this chapter, from the date when each differenceoccurred.

(2) An election under this section may be made without deposit, if thatelection prospectively voids an election of an insurable interest annuity.

(e)(1) An election under this section is irrevocable when received by OPM.

(2) An election under this section is effective when the marriage durationrequirements of § 843.303 of this chapter are satisfied.

(3) If an election under paragraph (a) or (b) of this section does not becomeeffective, no deposit under paragraph (d) of this section is required.

(4) If payment of the deposit under paragraph (d) 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 8424 of title 5, United StatesCode.

(f) 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—

(1) The retiree elects, within 2 years after a divorce terminates themarriage, to continue the reduction to provide for a former spouse annuity; or

(2) A qualifying court order requires the retiree to provide a former spouseannuity.

(g) The amount of the reduction to provide a current spouse annuity underthis section equals—

(1) Ten percent of the employee's or Member's annuity if the employee orMember elects a fully reduced annuity; or

(2) Five percent of the employee's or Member's annuity if the employee orMember elects a one-half reduced annuity.

(h) 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) The maximum combined total of all current and former spouse annuities(not including any benefits based on an election of an insurable interest rate)payable based on the service of a former employee or Member equals 50 percent ofthe rate of the self-only annuity that otherwise would have been paid to theemployee, Member, or retiree.

(b) By using the elections available under this subpart or to comply with acourt order under subpart I of part 841 of this chapter, a survivor annuity maybe divided into a combination of former spouse annuities and a current spouseannuity so long as the aggregate total of the current and former spouseannuities does not exceed the maximum limitation in paragraph (a) of thissection.

(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 underFERS; 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 § 842.612, to provide a current spouse annuity forthat spouse in the event that the former spouse annuity payments terminate.

If a court order or the death of a current or former spouse results inproviding less than the maximum permitted survivor reduction under§ 842.613, the reduction in the employee's annuity will be 10 percentof the amount of the employee's annuity on which the survivor benefits will becomputed (called the “base”).

(a) The deposits required to elect reduced annuities under§§ 842.610, 842.611, and 842.612 are not annuity overpaymentsand their collection is not subject to waiver.

(b) Actuarial reduction in annuity of retirees who make post-retirement elections to provide a current spouse annuity or a former spouseannuity. (1) The annuity reduction required by paragraph (b)(2) of thissection applies to all retirees who are required to pay deposits under§ 842.611 or § 842.612 and have not paid any portion ofthe deposit prior to October 1, 1993, or from annuity accruing before that date.

(2) Retirees described in paragraph (b)(1) of this section must have apermanent annuity reduction computed under paragraph (b)(4) of this section.

(3) A reduction under paragraph (b)(2) of this section commences on the samedate as the annuity reduction under § 842.611 or§ 842.612.

(4) The annuity reduction under paragraph (b)(2) of this section is equal tothe lesser of—

(i) The amount of the deposit under § 842.611 or§ 842.612 divided by the present value factor for the retiree's ageon the commencing date of the reduction under paragraph (b)(3) of this section(plus any previous reduction(s) in the retiree's annuity required underparagraph (b)(2) or (c)(2) of this section); or

(ii) Twenty-five percent of the rate of the retiree's self-only annuity onthe commencing date of the reduction (under paragraph (b)(3) of this section).

(5)(i) The reduction under paragraph (b)(2) or paragraph (c)(2) of thissection terminates on the date that the retiree dies.

(ii) 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 (b)(4) or paragraph (c)(4) ofthis section by any cost-of-living adjustments under section 8462 of title 5,United States Code, occurring between the commencing date of the originalreduction and the commencing date of the reinstated or new annuity (but theadjusted reduction may not exceed 25 percent of the rate of the reinstated ornew self-only annuity).

(c) Post-retirement survivor election deposits that were partiallypaid before October 1, 1993. (1) The annuity reduction required by paragraph(c)(2) of this section applies to all retirees who are required to pay depositsunder § 842.611 or § 842.612 and have paid any portion(but not all) of the deposit prior to October 1, 1993, or from annuity accruingbefore that date.

(2) Retirees described in paragraph (c)(1) of this section must have apermanent annuity reduction computed under paragraph (c)(4) of this section.

(3) A reduction under paragraph (c)(2) of this section commences on October1, 1993.

(4) The annuity reduction under paragraph (c)(2) of this section is equal tothe lesser of—

(i) 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

(ii) Twenty-five percent of the rate of the retiree's self-only annuity onOctober 1, 1993.

(5)(i) The reduction under paragraph (c)(2) of this section terminates on thedate that the retiree dies.

(ii) 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 (b)(4) or paragraph (c)(4) ofthis section by any cost-of-living adjustments under section 8462 of title 5,United States Code, occurring between the commencing date of the originalreduction and the commencing date of the reinstated or new annuity (but theadjusted reduction may not exceed 25 percent of the rate of the reinstated ornew self-only annuity).

(d) For retirees who die before October 1, 1993, any unpaid portion of thedeposit required under § 842.611 or § 842.612 will becollected from the survivor annuity (for which the election required thedeposit) before OPM pays any survivor annuity.

(a) This subpart contains regulations of the Office of Personnel Management(OPM) to supplement—

(1) 5 U.S.C. 8412 (d) and (e), which establish special retirement eligibilityfor law enforcement officers, firefighters, and air traffic controllers employedunder the Federal Employees Retirement System (FERS);

(2) 5 U.S.C. 8422(a)(2)(B), pertaining to deductions;

(3) 5 U.S.C. 8423(a), pertaining to Government contributions; and

(4) 5 U.S.C. 8425, pertaining to mandatory retirement.

(b) The regulations in this subpart are issued pursuant to the authoritygiven to OPM in 5 U.S.C. 8461(g) to prescribe regulations to carry out theprovisions of chapter 84 of title 5 of the United States Code, and in 5 U.S.C.1104 to delegate authority for personnel management to the heads of agencies.

In this subpart—

Agency head means, for the executive branch agencies, the headof an executive agency as defined in 5 U.S.C. 105; for the legislative branch,the Secretary of the Senate, the Clerk of the House of Representatives, or thehead of any other legislative branch agency; for the judicial branch, theDirector of the Administrative Office of the U.S. Courts; for the PostalService, the Postmaster General; and for any other independent establishmentthat is an entity of the Federal Government, the head of the establishment. Forthe purpose of an approval of coverage under this subpart, agencyhead is also deemed to include the designated representative of the head ofan executive department as defined in 5 U.S.C. 101, except that the designatedrepresentative must be a department headquarters-level official who reportsdirectly to the executive department head, and who is the sole suchrepresentative for the entire department. For the purpose of a denial ofcoverage under this subpart, agency head is also deemed to includethe designated representative of the agency head, as defined inthe first sentence of this definition, at any level within the agency.

Air traffic controller means a civilian employee of theDepartment of Transportation or the Department of Defense in an air trafficcontrol facility or flight service station facility who is actively engaged inthe separation and control of air traffic or in providing preflight, inflight,or airport advisory service to aircraft operators, as provided in 5 U.S.C. 2109.Also included in this definition is an employee who is the first-levelsupervisor of any air traffic controller as described above.

Detention duties means duties that require frequent directcontact in the detention, direction, supervision, inspection, training,employment, care, transportation, or rehabilitation of individuals suspected orconvicted of offenses against the criminal laws of the United States or theDistrict of Columbia or offenses against the punitive articles of the UniformCode of Military Justice (chapter 47 of title 10, United States Code). (See 5U.S.C. 8401(17).)

Employee means an employee as defined by 5 U.S.C. 8401(11).

Firefighter means an employee occupying a rigorous position,whose primary duties are to perform work directly connected with the control andextinguishment of fires, as provided in 5 U.S.C. 8401(14). Also included in thisdefinition is an employee occupying a rigorous firefighter position who moves toa supervisory or administrative position and meets the conditions of§ 842.803(b).

First-level supervisors are employees classified as supervisorswho have direct and regular contact with the employees they supervise. First-level supervisors do not have subordinate supervisors. A first-level supervisor may occupy a rigorous position or a secondary position if theappropriate definition is met.

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

Law enforcement officer means an employee occupying a rigorousposition, whose primary duties are the investigation, apprehension, or detentionof individuals suspected or convicted of offenses against the criminal laws ofthe United States, or the protection of officials of the United States againstthreats to personal safety, as provided in 5 U.S.C. 8401(17). Also included inthis definition is an employee occupying a rigorous law enforcement officerposition who moves to a supervisory or administrative position and meets theconditions of § 842.803(b). Law enforcement officeralso includes, as required by 5 U.S.C. 8401(17)(B), an employee of theDepartment of the Interior or the Department of the Treasury who occupies aposition that, but for enactment of chapter 84 of title 5, United States Code,would be subject to the District of Columbia Police and Firefighters' RetirementSystem, as determined by the Secretary of the Interior or the Secretary of theTreasury, as appropriate. Except as provided above, the definition does notinclude an employee whose primary duties involve maintaining order, protectinglife and property, guarding against or inspecting for violations of law, orinvestigating persons other than those who are suspected or convicted ofoffenses against the criminal laws of the United States.

Primary duties means those duties of a position that—

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

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

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

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

Rigorous position means a position the duties of which are sorigorous that employment opportunities should, as soon as reasonably possible,be limited (through establishment of a maximum entry age and physicalqualifications) to young and physically vigorous individuals whose primaryduties are—

(a) To perform work directly connected with controlling and extinguishingfires; or

(b) Investigating, apprehending, or detaining individuals suspected orconvicted of offenses against the criminal laws of the United States orprotecting the personal safety of United States officials.

Secondary position means a position that—

(a) Is clearly in the law enforcement or firefighting field;

(b) Is in an organization having a law enforcement or firefighting mission;and

(c) Is either—

(1) Supervisory; that is, a position whose primary duties are as a first-level supervisor or law enforcement officers or firefighters in rigorouspositions; or

(2) Administrative; that is, an executive, managerial, technical,semiprofessional, or professional position for which experience in a rigorouslaw enforcement or firefighting position, or equivalent experience outside theFederal Government, is a mandatory prerequisite.

(a) Rigorous positions. (1) An employee's service in a positionthat has been determined by the employing agency head to be a rigorous lawenforcement officer or firefighter position is covered under the provisions of 5U.S.C. 8412(d).

(2) An employee who is not in a rigorous position, nor covered while in asecondary position, and who is detailed or temporarily promoted to a rigorousposition is not covered under the provisions of 5 U.S.C. 8412(d).

(3) A first-level supervisor position may be determined to be a rigorousposition if it satisfies the conditions set forth in § 842.802.

(b) Secondary positions. (1) An employee's service in aposition that has been determined by the employing agency head to be a secondarylaw enforcement officer or firefighter position is covered under the provisionsof 5 U.S.C. 8412(d), if all of the following criteria are met:

(i) The employee, while covered under the provisions of 5 U.S.C 8412(d),moves directly (that is, without a break in service exceeding 3 days) from arigorous position to a secondary position;

(ii) The employee has completed 3 years of service in a rigorous position,including any such service during which no FERS deductions were withheld; and

(iii) The employee has been continuously employed in a secondary position orpositions since moving from a rigorous position without a break in serviceexceeding 3 days, except that a break in employment in secondary positions thatbegins with an involuntary separation (not for cause), within the meaning of 5U.S.C. 8414(b)(1)(A), is not considered in determining whether the service insecondary positions is continuous for this purpose.

(2) An employee who is not a rigorous position, nor covered while in asecondary position, and who is detailed or temporarily promoted to a secondary position is not covered under the provisions of 5 U.S.C. 8412(d).

(c) Air traffic controller. An employee's service in a positionthat has been determined to be an air traffic controller position by theemploying agency head is covered under the provisions of 5 U.S.C. 8412(e).

(d) Except as specifically provided in this subpart, an agency head'sauthority under this section cannot be delegated.

(a) An agency head's determination under § 842.803(a) (findingthat a position is a rigorous position) must be based solely on the officialposition description of the position in question and any other officialdescription of duties and qualifications. The official documentation for theposition should, as soon as is reasonably possible, establish that the primaryduties of the position are so rigorous that the agency does not allowindividuals to enter the position if they are over a certain age or if they failto meet certain physical qualifications (that is, physical requirements and/ormedical standards), as determined by the employing agency head based on thepersonnel management needs of the agency for the positions in question.

(b) A determination under §§ 842.803 (b) or (c) must be basedon the official position description and any other evidence deemed appropriateby the agency head for making the determination.

(c) If an employee is in a position not subject to the one-half percenthigher withholding rate of 5 U.S.C. 8422(a)(2)(B), 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 position is properly covered by the higher withholding rate, theagency head's determination that the service was not so covered at the time ofthe service is presumed to be correct. This presumption may be rebutted by apreponderance of the evidence that the employee was unaware of his or her statusor was prevented by cause beyond his or her control from requesting that theofficial status be changed at the time the service was performed.

(a) During service covered under the conditions established by§ 842.803 (a), (b), or (c), the employing agency will deduct andwithhold from the employee's base pay the amounts required under 5 U.S.C.8422(a)(2)(B) and submit that amount to OPM in accordance with payroll officeinstructions issued by OPM.

(b) During service described in paragraph (a) of this section, the employingagency must submit to OPM the Government contributions required under 5 U.S.C.8423(a)(1)(B) in accordance with payroll office instructions issued by OPM.

(c) If the correct withholdings and/or Government contributions are nottimely submitted to OPM for any reason whatsover, 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 as soon aspossible.

(d) Upon proper application from an employee, former employee or eligiblesurvivor of a former employee, an employing agency or former employing agencywill pay a refund or 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 is later determined to be erroneous because the service was not coveredservice, OPM will pay the refund, upon proper application, to the individual,without interest.

(e) The additional employee withholding and agency contributions for coveredservice properly made are not separately refundable, even in the event that theemployee or his or her survivor does not qualify for a special annuitycomputation under 5 U.S.C. 8415(d).

(f) While an employee who does not hold a rigorous, secondary, or air trafficcontroller position is detailed or temporarily promoted to such a position, theadditional withholdings and agency contributions will not be made.

(g) While an employee who holds a rigorous, secondary, or air trafficcontroller position is detailed or temporarily promoted to a position that isnot a rigorous, secondary, or air traffic controller position, the additionalwithholdings and agency contributions will continue to be made.

(a) The mandatory separation provisions of 5 U.S.C. 8425 apply to all lawenforcement officers, firefighters, and air traffic controllers including thosein secondary positions and supervisory air traffic controller positions. Amandatory separation under 5 U.S.C. 8425 is not an adverse action under part 752of this chapter or a removal action under part 359 of this chapter.

(b) Exemptions from mandatory separation are subject to the conditions setforth under 5 U.S.C. 8425. An exemption may be granted at the sole discretion ofthe head of the employing agency or by the President in accordance with 5 U.S.C.8425(c).

(c) In the event that an employee is separated mandatorily under 5 U.S.C.8425, or is separated for optional retirement under 5 U.S.C. 8412 (d) or (e),and OPM finds that all or part of the minimum service required for entitlementto immediate annuity was in a position that did not meet the requirements of aprimary or secondary position and the conditions set forth in this subpart or,if applicable, in part 831 of this chapter, such separation will be considerederroneous.

(a) The final decision of an agency head denying an individual's request forapproval of a position as a rigorous, secondary, or air traffic controllerposition made under § 842.804(c) may be appealed to the Merit SystemsProtection Board under procedures prescribed by the Board.

(b) The final decision of an agency head denying an individual coverage whileserving in an approved secondary position because of failure to meet theconditions in § 842.803(b) 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, whether the position is rigorous or secondary, and, if the positionis rigorous, the established maximum entry age (or if no maximum entry age hasyet been established, the date by which it will be established). The Director ofOPM retains the authority to overrule an agency head's determination that aposition is a rigorous or secondary position, except such a determination under5 U.S.C. 8401(17)(B) (concerning certain employees in the Departments of theInterior and the Treasury) or under 5 U.S.C. 8401(17)(D) (concerning certainpositions primarily involved in detention activities).

(b) Each agency must establish a file containing all coverage determinationsmade by an agency head under § 842.803, and all background materialused 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. For rigorous positions,the list must show the specific entry age requirement and physical qualificationrequirements for each position.

(a) Any service as an air traffic controller, within the meaning of this termunder 5 U.S.C. 2109 as in effect on or after January 1, 1987—even ifperformed before that date—is included in determining an employee's lengthof air traffic controller service under 5 U.S.C. 8412(e) for the purposes ofretirement eligibility and for mandatory separation under 5 U.S.C. 8425(a) aslong as the annuity is based on a separation from service occurring after 1986.

(b) Any service as a law enforcement officer or firefighter, within themeaning of these terms under 5 U.S.C. 8331 (20) and (21), that was performedbefore the date on which an employee becomes subject to chapter 84 of title 5,United States Code, is included in determining the employee's length of lawenforcement officer and firefighter service under 5 U.S.C. 8412(d) for thepurposes of retirement eligibility and mandatory separation under 5 U.S.C.8425(b). Service performed as a law enforcement officer or firefighter withinthe meaning of 5 U.S.C. 8331, other than service in a supervisory oradministrative position, is considered to be service in a rigorous position forthe purpose of the 3-year requirement of § 842.803(b)(1)(ii). TheFERS definitions of firefighter under 5 U.S.C. 8401(14) and law enforcementofficer under 5 U.S.C. 8401(17) are not applicable to service performed—

(1) Before 1987; or

(2) After 1986 and before an employee first becomes subject to chapter 84(that is, subject to FERS deductions), unless that service was neither subjectto CSRS deductions nor creditable in a CSRS component as described in§ 846.304(b).

(c)(1) An individual who—

(i) Is covered as a law enforcement officer or firefighter under 5 U.S.C.8336(c) in a supervisory or administrative position, having already met thetransfer requirement of subpart I of part 831 of this chapter; and

(ii) Elects under section 301 of Pub. L. 99-335 to become subject tochapter 84 of such title and begins service in a secondary position with nobreak in service is considered to have met the transfer and 3-year requirementsof §§ 842.803(b)(1)(i) and (ii) for coverage in a secondaryposition upon the effective date of the election.

(2) An individual who—

(i) Is covered as a law enforcement officer or firefighter under 5 U.S.C.8336(c) in a supervisory or administrative position, having already met thetransfer requirement of subpart I of part 831 of this chapter; and

(ii) Automatically becomes subject to chapter 84 of title 5 of the UnitedStates Code (not by election under section 301 of Pub. L. 99-335) servingin a secondary position is considered to have met the 3-year requirement of§ 842.803(b)(1)(ii) for coverage in a secondary position. Theemployee is not covered as a law enforcement officer or firefighter in asecondary position if he or she had a break in coverage as a law enforcementofficer or firefighter (within the meaning of 5 U.S.C. 8331) exceeding 3 daysimmediately before becoming subject to chapter 84 of title 5 of United StatesCode. However, a break in coverage in supervisory or administrative positionsoccurring before the individual becomes subject to such chapter 84 that beganwith an involuntary separation (not for cause), within the meaning of 5 U.S.C.8414(b)(1)(A), is not considered to be a break in service for this purpose.

(d) (1) The CSRS definitions of law enforcement officer under 5 U.S.C.8331(20) and firefighter under 5 U.S.C. 8331(21) are applicable to serviceperformed before an employee became subject to chapter 84 if the servicewas—

(i) Subject to CSRS deductions at the time it was performed (includingservice that becomes creditable under FERS annuity computation rules);

(ii) Performed before 1987 and not subject to retirement deductions; or

(iii) Performed after 1986 and not subject to retirement deductions but iscreditable in a CSRS component as described in § 846.304(b).

(2) The determination of whether any service meets the CSRS definitions oflaw enforcement officer under 5 U.S.C. 8331 (20) or firefighter under 5 U.S.C.8331(21) must be made in accordance with the provisions of subpart I of part 831of this chapter.