[Title 5 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2011 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

          Title 5


          Parts 700 to 1199

          Revised as of January 1, 2011


          Administrative Personnel
          



________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of January 1, 2011
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as a 
                    Special Edition of the Federal Register
                    A Special Edition of the Federal Register

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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 5:
          Chapter I--Office of Personnel Management 
          (Continued)                                                3
  Finding Aids:
      Table of CFR Titles and Chapters........................     641
      Alphabetical List of Agencies Appearing in the CFR......     661
      List of CFR Sections Affected...........................     671

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                     ----------------------------

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 5 CFR 715.201 refers 
                       to title 5, part 715, 
                       section 201.

                     ----------------------------

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                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, January 1, 2011), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

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Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in eleven separate 
volumes. For the period beginning January 1, 2001, a ``List of CFR 
Sections Affected'' is published at the end of each CFR volume.

``[RESERVED]'' TERMINOLOGY

    The term ``[Reserved]'' is used as a place holder within the Code of 
Federal Regulations. An agency may add regulatory information at a 
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used 
editorially to indicate that a portion of the CFR was left vacant and 
not accidentally dropped due to a printing or computer error.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed as 
an approved incorporation by reference, please contact the agency that 
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CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Authorities 
and Rules. A list of CFR titles, chapters, subchapters, and parts and an 
alphabetical list of agencies publishing in the CFR are also included in 
this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.

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    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

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in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
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the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-741-6000 
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    Raymond A. Mosley,
    Director,
    Office of the Federal Register.
    January 1, 2011.







[[Page ix]]



                               THIS TITLE

    Title 5--Administrative Personnel is composed of three volumes. The 
parts in these volumes are arranged in the following order: Parts 1-699, 
700-1199 and part 1200-end. The contents of these volumes represent all 
current regulations codified under this title of the CFR as of January 
1, 2011.

    For this volume, Bonnie Fritts was Chief Editor. The Code of Federal 
Regulations publication program is under the direction of Michael L. 
White, assisted by Ann Worley.

[[Page 1]]



                    TITLE 5--ADMINISTRATIVE PERSONNEL




                 (This book contains parts 700 to 1199)

  --------------------------------------------------------------------

  Note: Title 5 of the United States Code was revised and enacted into 
positive law by Pub. L. 89-554, Sept. 6, 1966. New citations for 
obsolete references to sections of 5 U.S.C. appearing in this volume may 
be found in a redesignation table under Title 5, Government Organization 
and Employees, United States Code.
                                                                    Part

chapter i--Office of Personnel Management (Continued).......         715

[[Page 3]]



          CHAPTER I--OFFICE OF PERSONNEL MANAGEMENT (CONTINUED)




  --------------------------------------------------------------------

           SUBCHAPTER B--CIVIL SERVICE REGULATIONS (CONTINUED)
Part                                                                Page
700-714          [Reserved]

715             Nondisciplinary separations, demotions, and 
                    furloughs...............................           5
720             Affirmative Employment Programs.............           5
723             Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Office of 
                    Personnel Management....................          16
724             Implementation of Title II of the 
                    Notification and Federal Employee 
                    Antidiscrimination and Retaliation Act 
                    of 2002.................................          22
730             Notification of post-employment restrictions          28
731             Suitability.................................          29
732             National security positions.................          37
733             Political activity--Federal employees 
                    residing in designated localities.......          39
734             Political activities of Federal employees...          44
735             Employee responsibilities and conduct.......          60
736             Personnel investigations....................          62
752             Adverse actions.............................          63
754             [Reserved]

771             Agency administrative grievance system......          71
772             Interim relief..............................          72
792             Federal employees' health and counseling 
                    programs................................          72
831             Retirement..................................          78
835             Debt collection.............................         178
837             Reemployment of annuitants..................         180
838             Court orders affecting retirement benefits..         193
839             Correction of retirement coverage errors 
                    under the Federal Erroneous Retirement 
                    Coverage Corrections Act................         245
841             Federal Employees Retirement System--general 
                    administration..........................         262

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842             Federal Employees Retirement System--basic 
                    annuity.................................         283
843             Federal Employees Retirement System--death 
                    benefits and employee refunds...........         331
844             Federal Employees' Retirement System--
                    disability retirement...................         345
845             Federal Employees Retirement System--debt 
                    collection..............................         354
846             Federal Employees Retirement System--
                    elections of coverage...................         365
847             Elections of retirement coverage by current 
                    and former employees of nonappropriated 
                    fund instrumentalities..................         378
850             Retirement systems modernization............         396
870             Federal employees' group life insurance 
                    program.................................         400
875             Federal long term care insurance program....         435
880             Retirement and insurance benefits during 
                    periods of unexplained absence..........         444
890             Federal Employees Health Benefits Program...         447
891             Retired Federal employees health benefits...         534
892             Federal flexible benefits plan: pre-tax 
                    payment of health benefits premiums.....         542
894             Federal employees dental and vision 
                    insurance program.......................         549
900             Intergovernmental Personnel Act programs....         558
911             Procedures for States and localities to 
                    request indemnification.................         576
919             Governmentwide debarment and suspension 
                    (nonprocurement)........................         577
930             Programs for specific positions and 
                    examinations (miscellaneous)............         600
950             Solicitation of Federal civilian and 
                    uniformed service personnel for 
                    contributions to private voluntary 
                    organizations...........................         610
960             Federal Executive Boards....................         633
990             [Reserved]

SUBCHAPTER C--REGULATIONS GOVERNING EMPLOYEES OF THE OFFICE OF PERSONNEL 
                               MANAGEMENT
1001            OPM employee responsibilities and conduct...         637
1002-1199        [Reserved]

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           SUBCHAPTER B_CIVIL SERVICE REGULATIONS (CONTINUED)



                        PARTS 700	714 [RESERVED]



PART 715_NONDISCIPLINARY SEPARATIONS, DEMOTIONS, AND FURLOUGHS--
Table of Contents



Subpart A [Reserved]

                     Subpart B_Voluntary Separations

Sec.
715.201 Applicability.
715.202 Resignation.

    Authority: 5 U.S.C. 1302, 3301, 3302, 7301; E.O. 10577, 3 CFR, 1954-
1958 Comp., p. 218; E.O. 11222, 3 CFR, 1964-1965 Comp., p. 306.

Subpart A [Reserved]



                     Subpart B_Voluntary Separations



Sec. 715.201  Applicability.

    This subpart applies to separation actions requested by employees in 
the executive departments and independent establishments of the Federal 
Government, including Government-owned or controlled corporations, and 
in those portions of the legislative and judicial branches of the 
Federal Government and the government of the District of Columbia having 
positions in the competitive service.

[33 FR 12482, Sept. 4, 1968]



Sec. 715.202  Resignation.

    (a) General. An employee is free to resign at any time, to set the 
effective date of his resignation, and to have his reasons for resigning 
entered in his official records.
    (b) Withdrawal of resignation. An agency may permit an employee to 
withdraw his resignation at any time before it has become effective. An 
agency may decline a request to withdraw a resignation before its 
effective date only when the agency has a valid reason and explains that 
reason to the employee. A valid reason includes, but is not limited to, 
administrative disruption or the hiring or commitment to hire a 
replacement. Avoidance of adverse action proceedings is not a valid 
reason.

[33 FR 12482, Sept. 4, 1968, as amended at 36 FR 9765, May 28, 1971; 38 
FR 18446, July 11, 1973; 38 FR 26601, Sept. 24, 1973]



PART 720_AFFIRMATIVE EMPLOYMENT PROGRAMS--Table of Contents



               Subpart A_Principal Statutory Requirements

Sec.
720.101 Federal Equal Opportunity Recruitment Program.

         Subpart B_Federal Equal Opportunity Recruitment Program

720.201 Regulatory requirements.
720.202 Definitions.
720.203 Responsibilities of the Office of Personnel Management.
720.204 Agency programs.
720.205 Agency plans.
720.206 Selection guidelines.
720.207 Reports.

         Subpart C_Disabled Veterans Affirmative Action Program

720.301 Purpose and authority.
720.302 Definition.
720.303 Agency programs.
720.304 Agency plans.
720.305 Agency accomplishment reports.
720.306 Responsibilities of the Office of Personnel Management.
720.307 Interagency report clearance.

Subparts D-I [Reserved]

Subpart J_Equal Opportunity Without Regard to Politics or Marital Status

720.901 Equal opportunity without regard to politics or marital status.

Appendix to Part 720--Guidelines for the Development of a Federal 
          Recruitment Program To Implement 5 U.S.C. Section 7201, as 
          Amended

    Authority: 5 U.S.C. 7201; 42 U.S.C. 2000e, unless otherwise noted.

    Source: 44 FR 22031, Apr. 13, 1979, unless otherwise noted.

[[Page 6]]



               Subpart A_Principal Statutory Requirements



Sec. 720.101  Federal Equal Opportunity Recruitment Program.

    This section incorporates the statutory requirements for 
establishing and conducting an equal opportunity recruitment program 
consistent with law within the Federal civil service. The policy in 5 
U.S.C. 7201(b) reads as follows: ``It is the policy of the United States 
to insure equal employment opportunities for employees without 
discrimination because of race, color, religion, sex, or national 
origin. The President shall use his existing authority to carry out this 
policy.'' 5 U.S.C. 7201(c) requires under regulations prescribed by the 
Office of Personnel Management:

    ``(1) That each Executive agency conduct a continuing program for 
the recruitment of members of minorities for positions in the agency to 
carry out the [anti-discrimination] policy set forth in subsection (b) 
in a manner designed to eliminate underrepresentation of minorities in 
the various categories of civil service employment within the Federal 
service, with special efforts directed at recruiting in minority 
communities, in educational institutions, and from other sources from 
which minorities can be recruited; and
    ``(2) That the Office conduct a continuing program of--
    ``(A) Assistance to agencies in carrying out programs under 
paragraph (1) of this subsection; and
    ``(B) Evaluation and oversight of such recruitment programs to 
determine their effectiveness in eliminating such minority 
underrepresentation.''


This section and all implementing guidance shall be interpreted 
consistent with title VII of the Civil Rights Act of 1964, as amended, 
42 U.S.C. 2000c et seq.

[44 FR 22031, Apr. 13, 1979, as amended at 48 FR 193, Jan. 4, 1983]



         Subpart B_Federal Equal Opportunity Recruitment Program



Sec. 720.201  Regulatory requirements.

    This subpart contains the regulations of the Office of Personnel 
Management which implement the above provisions of title 5, United 
States Code, and are prescribed by the Office under authority of 5 
U.S.C. 7201.



Sec. 720.202  Definitions.

    For the purposes of this subpart:
    (a) Underrepresentation means a situation in which the number of 
women or members of a minority group within a category of civil service 
employment constitutes a lower percentage of the total number of 
employees within the employment category than the percentage women or 
the minority constitutes within the civilian labor force of the United 
States, in accordance with Sec. 720.205 (c) and (d).
    (b) Category of civil service employment means such groupings of 
Federal jobs by grades and/or occupations as the Office of Personnel 
Management deems appropriate within the General Schedule and the 
prevailing wage systems.
    (c) Minority refers only to those groups classified as ``minority'' 
for the purpose of data collection by the Office of Personnel Management 
and the Equal Employment Opportunity Commission in furtherance of 
Federal equal employment opportunity policies. The term, ``women,'' 
includes nonminority as well as minority women.
    (d) Civilian labor force (CLF) includes all persons 16 years of age 
and over, except those in the armed forces, who are employed or who are 
unemployed and seeking work. CLF data are defined by the Bureau of the 
Census and the Bureau of Labor Statistics and are reported in the most 
recent decennial or mid-decade census, or current population survey, 
under title 13 of the United States Code or any other reliable 
statistical study.
    (e) Recruitment means the total process by which the Federal 
Government and the Federal agencies locate, identify and assist in the 
employment of qualified applicants from underrepresented groups for job 
openings in categories of employment where underrepresentation has been 
determined. It includes both innovative internal and external 
recruitment actions. It is also intended to cover processes designed to 
prepare qualifiable applicants (those who have the potential but do not 
presently meet valid qualification requirements) for such job openings 
through

[[Page 7]]

programs of training, work experience or both.
    (f) Applicant pool means all types of listings from which selections 
may be made, including (but not limited to) promotion lists, competitive 
certificates and inventories of eligibles, applicant supply files, and 
lists of eligibles for certain noncompetitive appointments.



Sec. 720.203  Responsibilities of the Office of Personnel Management.

    (a) The Office of Personnel Management will provide appropriate data 
to assist Federal agencies in making determinations of 
underrepresentation. The process for making such determinations is 
described in sections II and III (c) of the ``Guidelines for the 
Development of a Federal Recruitment Program to Implement 5 U.S.C. 7201, 
as amended'' (See appendix to this part). The Office will develop and 
publish more specific criteria for statistical measurements to be used 
by individual agencies, and will develop further guidance on--
    (1) Agency employment statistics and civilian labor force statistics 
to be used in making determinations of underrepresentation, on a 
national, regional or other geographic basis as appropriate;
    (2) Groupings of grades and/or other occupational categories to be 
used in implementing agency programs;
    (3) Occupational categories and job series for which expanded 
external recruitment efforts are most appropriate, and those for which 
expanded and innovative internal recruitment is appropriate; and
    (4) Other factors which may be considered by the agency, in 
consultation with Office of Personnel Management, to make determinations 
of underrepresentation and to develop recruitment programs focused on 
specific occupational categories.
    (b) The Office will assist agencies in carrying out their programs 
by--
    (1) Identifying major recruitment sources of women and members of 
minority groups and providing guidance on internal and external 
recruitment activities directed toward the solution of specific 
underrepresentation problem;
    (2) Supplementing agency recruitment efforts, utilizing existing 
networks for dissemination of job information, and involving the 
participation of minority group and women's organizations where 
practicable;
    (3) Examining existing Federal personnel procedures to identify 
those which (i) may serve as impediments to innovative internal and 
external recruitment and (ii) are within the administrative control of 
the Office or the Federal agencies;
    (4) Determining whether applicant pools used in filling jobs in a 
category of employment where underrepresentation exists include 
sufficient candidates from any underrepresentated groups, except where 
the agency controls such pools (see Sec. 720.204(c));
    (5) Providing such other support, as the Office deems appropriate.
    (c) The Office will monitor and, in conjunction with the personnel 
management evaluation program of the Office, evaluate agency programs to 
determine their effectiveness in eliminating underrrepresentation.
    (d) The Office will work with agencies to develop effective 
mechanisms for providing information on Federal job opportunities 
targeted to reach candidates from underrepresented groups.
    (e) The Office will conduct a continuing program of guidance and 
instruction to supplement these regulations.
    (f) The Office will coordinate further activities to implement equal 
opportunity recruitment programs under this subpart with the Equal 
Employment Opportunity Commission consistent with law, Executive Order 
12067, and Reorganization Plan No. 1 of 1978.



Sec. 720.204  Agency programs.

    (a) Each Executive agency having positions in the pay systems 
covered by this program must conduct a continuing program for the 
recruitment of minorities and women for positions in the agency and its 
components to carry out the policy of the United States to insure equal 
employment opportunities without discrimination because of race, color, 
religion, sex or national origin. The head of each agency must 
specifically assign responsibility for program

[[Page 8]]

implementation to an appropriate agency official. All agency officials 
who have responsibility for the program will be evaluated on their 
effectiveness in carrying it out as part of their periodic performance 
appraisals.
    (b) Programs established under this subpart must be designed to 
cover recruitment for all positions in pay plans covered by this program 
including part-time and temporary positions.
    (c) Where an agency or the Office of Personnel Management has 
determined that an applicant pool does not adequately provide for 
consideration of candidates from any underrepresented group, the agency 
or agency component must take one or more of the following actions:
    (1) Expand or otherwise redirect their recruitment activities in 
ways designed to increase the number of candidates from underrepresented 
groups in that applicant pool;
    (2) Use selection methods involving other applicant pools which 
include sufficient numbers of members of underrepresented groups;
    (3) Notify the office responsible for administering that applicant 
pool, and request its reopening of application receipt in support of 
expanded recruitment activities or certifying from equivalent registers 
existing in other geographic areas; and/or
    (4) Take such other action consistent with law which will contribute 
to the elimination of underrepresentation in the category of employment 
involved.
    (d) Agencies must notify and seek advice and assistance from the 
Office of Personnel Management in cases where their equal opportunity 
recruitment programs are not making measurable progress in eliminating 
identified underrepresentation in the agency work force.



Sec. 720.205  Agency plans.

    (a) Each agency must have an up-to-date equal opportunity 
recruitment program plan covering recruitment for positions at various 
organizational levels and geographic locations within the agency. Such 
plans must be available for review in appropriate offices of the agency 
and must be submitted to the Office of Personnel Management on request. 
In accordance with agreement reached between the Office and the Equal 
Employment Opportunity Commission, such plans must be incorporated in 
the agency's equal employment opportunity plans required under section 
717 of the Civil Rights Act of 1964, as amended, pursuant to regulations 
and instructions of the Commission, provided they are separable parts of 
those plans for purposes of review by and submission to the Office of 
Personnel Management. Agency organizational and geographical components 
which are required to develop and submit Equal Employment Opportunity 
plans, under instructions issued by the Equal Employment Opportunity 
Commission, must also have up-to-date special recruitment program plans. 
On a determination by the Office of Personnel Management, in 
consultation with EEOC, that additional component plans are needed to 
implement an agency's program effectively, the Office will instruct the 
agency to develop additional plans. Agencies must comply with such 
instructions.
    (b) Agency plans must include annual specific determinations of 
underrepresentation for each group and must be accompanied by 
quantifiable indices by which progress toward eliminating 
underrepresentation can be measured.
    (c) Where an agency or agency component is located in a geographical 
area where the percentage of underrepresented groups in the area 
civilian labor force is higher than their percentage in the national 
labor force, the agency or component must base its plans on the higher 
level of representation in the relevant civilian labor force.
    (d) Where an agency or agency component is located in a geographical 
area where participation of a particular underrepresented group is 
significantly lower than its participation in the national labor force, 
the agency or component may, in consultation with the Office of 
Personnel Management, use the lower percentage in determining 
underrepresentation. An agency may not use a figure lower than the 
relevant regional or nationwide labor force percentage where recruitment 
on a regional or nationwide basis is feasible for particular categories 
of employment. Factors such as size of

[[Page 9]]

the agency or unit, nature of jobs and their wage or pay scale may be 
considered in focusing recruitment for various job categories.
    (e) In addition to the underrepresentation determinations described 
in paragraphs (b), (c) and (d) of this section, agency plans must, at a 
minimum, include:
    (1) An assessment of grades or job categories and numbers of jobs in 
such categories expected to be filled in the current year, and on a 
longer term basis (based on anticipated turnover, expansion, hiring 
limits and other relevant factors) identification of those occupational 
categories and positions suitable for external recruitment, and 
description of special targeted recruitment programs for such jobs and 
positions;
    (2) A similar assessment for job categories and positions likely to 
be filled by recruitment from within the agency and/or the Federal civil 
service system and a description of recruitment programs developed to 
increase minority and female candidates from internal sources for such 
positions;
    (3) A further assessment of internal availability of candidates from 
underrepresentated groups for higher job progressions by identifying 
job-related skills, knowledges and abilities which may be obtained at 
lower levels in the same or similar occupational series, or through 
other experience;
    (4) A description of methods the agency intends to use to locate and 
develop minority and female candidates for each category of 
underrepresentation and an indication of how such methods differ from 
and expand upon the recruitment activities of the agency prior to 
establishment of the special recruitment program or the last revision to 
the agency's plans;
    (5) A description of specific, special efforts planned by the agency 
(or agency component) to recruit in communities, educational 
institutions, and other likely sources of qualified minority and female 
candidates;
    (6) A description of efforts which will be undertaken by the agency 
to identify jobs which can be redesigned so as to improve opportunities 
for minorities and women, including jobs requiring bilingual or 
bicultural capabilities or not requiring English fluency.
    (7) A list of priorities for special recruitment program activities 
based on agency identification of:
    (i) Immediate and longer range job openings for each occupational/
grade-level grouping for which underrepresentation has been determined;
    (ii) Hiring authorities which may be used to fill such jobs;
    (iii) The possible impact of its actions on underrepresentation.
    (8) Identification of training and job development programs the 
agency will use to provide skills, knowledge and abilities to qualify 
increased numbers of minorities and women for occupational series and 
grade levels where they are significantly underrepresented.
    (9) Identification of problems for which the assistance of the 
Office of Personnel Management is needed and will be requested.
    (f) Equal opportunity recruitment program plans must be consistent 
with agency Upward Mobility program plans and should be developed with 
full consideration of the agency's overall recruiting and staffing 
planning objectives.
    (g) All plans required under this subpart must be developed not 
later than October 1, 1979.

[44 FR 22031, Apr. 13, 1979, as amended at 44 FR 33046, June 8, 1979]



Sec. 720.206  Selection guidelines.

    This subpart sets forth requirements for a recruitment program, not 
a selection program. Nevertheless, agencies are advised that all 
selection processes including job qualifications, personnel procedures 
and criteria must be consistent with the Uniform Guidelines on Employee 
Selection Procedures (43 FR 38290; August 25, 1978).



Sec. 720.207  Reports.

    (a) Not later than November 1 of each year, agencies must submit an 
annual report on their equal opportunity recruitment program to the 
Office of Personnel Management, in a form prescribed by the Office. The 
Office may require submission of any additional

[[Page 10]]

reports it considers necessary in carrying out its responsibilities 
under this subpart.
    (b) The Office will report to Congress on the implementation and 
operation of the program on a Governmentwide basis not later than 
January 31 of each year, as required by law. Such reports will include 
assessments of agencies progress, or lack of progress, in meeting the 
objectives of the program.



         Subpart C_Disabled Veterans Affirmative Action Program

    Authority: 5 U.S.C. 7201; 42 U.S.C. 2000e; 38 U.S.C. 101(2), 
2011(3), 2014; 5 U.S.C. 3112; 29 U.S.C. 791(b).

    Source: 48 FR 193, Jan. 4, 1983, unless otherwise noted.



Sec. 720.301  Purpose and authority.

    This subpart sets forth requirements for agency disabled veteran 
affirmative action programs (DVAAPs) designed to promote Federal 
employment and advancement opportunities for qualified disabled 
veterans. The regulations in this subpart are prescribed pursuant to 
responsibilities assigned to the Office of Personnel Management (OPM) 
under 38 U.S.C. 4214, and section 307 of the Civil Service Reform Act of 
1978 (5 U.S.C. 3112).

[70 FR 72068, Dec. 1, 2005]



Sec. 720.302  Definition.

    As used in this subpart, the terms veteran and disabled veteran have 
the meanings given to these terms in title 38 of the United States Code.



Sec. 720.303  Agency programs.

    (a) Continuing Programs. Each Department, agency, and 
instrumentality in the executive branch, including the U.S. Postal 
Service and the Postal Rate Commission, shall conduct a continuing 
affirmative program for the recruitment, hiring, placement, and 
advancement of disabled veterans.
    (b) Program Responsibility. The head of each agency shall assign 
overall program responsibility to an appropriate agency official. The 
official so designated shall be at a high enough level to ensure 
effective program administration and the devotion of adequate resources 
to the program.
    (c) Problem Analysis. (1) Annually, OPM will provide appropriate 
data on the employment of disabled veterans to each agency participating 
in the Central Personnel Data File (CPDF). These data will be taken from 
CPDF. For DVAAP purposes, CPDF data are considered to be the official 
record of the status of disabled veteran employment within each 
participating agency. Each participating agency is responsible for 
assuring that such records are timely, accurate, and complete.
    (2) CPDF data must be analyzed by participating agencies to identify 
problem areas and deficiencies in the employment and advancement of 
disabled veterans. (OPM will establish with each agency not 
participating in CPDF, the nature and extent of data to be used in 
identifying problems and deficiencies.) Based on this analysis, agencies 
shall develop methods to improve the recruitment, hiring, placement, and 
advancement of disabled veterans, or revise or redirect existing 
methods, as necessary. These methods must then be translated into action 
items.



Sec. 720.304  Agency plan.

    (a) Plan Development. As part of the affirmative action plan it 
prepares pursuant to section 501(b) of the Rehabilitation Act of 1973 
(29 U.S.C. 791 (b)) (``Section 501(b) Plan''), each Department, agency, 
or instrumentality in the executive branch must have an up-to-date 
affirmative action plan for the employment and advancement of disabled 
veterans.
    (1) Each agency must review its plan on an annual basis, together 
with its accomplishments for the previous fiscal year, updated 
employment data, and any changes in agency mission or structure, and 
update the plan as necessary. Agency operating components and field 
installations required to develop separate plans under paragraph (b) of 
this section, below, must perform the same type of annual review and 
update of their plans.
    (2) Plans shall cover a time period of not less than one year and 
may cover a longer period if concurrent with the agency's Section 501(b) 
Plan. Each plan

[[Page 11]]

must specify the period of time it covers.
    (3) Initial plans for fiscal year 1983 required under this subpart 
must be developed by January 30, 1983 and must be in effect on that day.
    (b) Plan Coverage. (1) Each agency must have an agencywide plan 
covering all of its operating components and field installations. 
Agencywide plans shall include instructions assigning specific 
responsibilities on affirmative actions to be taken by the agency's 
various operating components and field installations to promote the 
employment and advancement of disabled veterans. OPM must be informed 
when headquarters offices require plans at the field or installation 
level.
    (2) Agency operating components and field installations must have a 
copy of the plan covering them, and must implement their 
responsibilities under it. OPM may require operating components and 
field installations to develop separate plans in accordance with program 
guidance and/or instructions.
    (c) Plan Submission. Affirmative action plans developed under this 
section shall be submitted to OPM upon request. The Office of Personnel 
Management will review a selection of agency plans each fiscal year.
    (d) Plan Certification. Each agency must certify to OPM by December 
1 of each year that it has an up-to-date plan as required by this 
section. This certification must indicate the date the agency's most 
recent plan was effective or was last amended.
    (e) Plan Content. Disabled veteran affirmative action plans shall, 
at a minimum, contain:
    (1) A statement of the agency's policy with regard to the employment 
and advancement of disabled veterans, especially those who are 30 
percent or more disabled.
    (2) The name and title of the official assigned overall 
responsibility for development and implementation of the action plan.
    (3) An assessment of the current status of disabled veteran 
employment within the agency, with emphasis on those veterans who are 30 
percent or more disabled.
    (4) A description of recruiting methods which will be used to seek 
out disabled veteran applicants, including special steps to be taken to 
recruit veterans who are 30 percent or more disabled.
    (5) A description of how the agency will provide or improve internal 
advancement opportunities for disabled veterans.
    (6) A description of how the agency will inform its operating 
components and field installations, on a regular basis, of their 
responsibilities for employing and advancing disabled veterans.
    (7) A description of how the agency will monitor, review, and 
evaluate its planned efforts, including implementation at operating 
component and field installation levels during the period covered by the 
plan.



Sec. 720.305  Agency accomplishment reports.

    (a) Not later than December 1 of each year, agencies must submit an 
annual accomplishment report on their disabled veterans affirmative 
action program to the Office of Personnel Management, covering the 
previous fiscal year.
    (b) Agency annual accomplishment reports must describe:
    (1) Methods used to recruit and employ disabled veterans, especially 
those who are 30 percent or more disabled.
    (2) Methods used to provide or improve internal advancement 
opportunities for disabled veterans.
    (3) A description of how the activities of major operating 
components and field installations were monitored, reviewed, and 
evaluated.
    (4) An explanation of the agency's progress in implementing its 
affirmative action plan during the fiscal year. Where progress has not 
been shown, the report will cite reasons for the lack of progress, along 
with specific plans for overcoming cited obstacles to progress.



Sec. 720.306  Responsibilities of The Office of Personnel Management.

    (a) Program Review. OPM will monitor agency program implementation 
through review of agency plans, direct agency contact, review of 
employment data, and through other appropriate means. As it deems 
appropriate, OPM

[[Page 12]]

will conduct onsite evaluations of program effectiveness, both at agency 
headquarters and at field installations or operating components.
    (b) Technical Assistance. The Office of Personnel Management will 
provide technical assistance, guidance, instructions, data, and other 
information as appropriate to supplement and support agency programs for 
disabled veterans.
    (c) Semiannual Reports. As provided by 38 U.S.C. 2014(d), OPM will, 
on at least a semiannual basis, publish reports on Government-wide 
progress in implementing affirmative action programs for disabled 
veterans.
    (d) Report to Congress. As required by 38 U.S.C. 2014(e), OPM will 
report to Congress each year on the implementation and progress of the 
program. These reports will include specific assessments of agency 
progress or lack of progress in meeting the objectives of the program.

[48 FR 193, Jan. 4, 1983, as amended at 66 FR 66711, Dec. 27, 2001]



Sec. 720.307  Interagency report clearance.

    The reports contained in this regulation have been cleared in 
accordance with FPMR 101-11.11 and assigned interagency report control 
number 0305-OPM-AN.

Subparts D-I [Reserved]



Subpart J_Equal Opportunity Without Regard to Politics or Marital Status



Sec. 720.901  Equal opportunity without regard to politics or marital status.

    (a) In appointments and position changes. In determining the merit 
and fitness of a person for competitive appointment or appointment by 
noncompetitive action to a position in the competitive service, an 
appointing officer shall not discriminate on the basis of the person's 
political affiliations, except when required by statute, or on the basis 
of marital status
    (b) In adverse actions and termination of probationers. An agency 
may not take an adverse action against an employee covered by part 752 
of this chapter, not effect the termination of a probationer under part 
315 of this chapter, (1) for political reasons, except when required by 
statute, or (2) because of marital status.

(5 U.S.C. 2301, 2302, 7202, 7203, 7204)

[44 FR 48149, Aug. 17, 1979]



 Sec. Appendix to Part 720--Guidelines for the Development of a Federal 
 Recruitment Program To Implement 5 U.S.C. Section 7201, as Amended \1\
---------------------------------------------------------------------------

    \1\ This section originally was section 701(b) (2nd Proviso) of the 
Civil Rights Act of 1964 (Pub. L. 88-352, July 2, 1964), codified as 5 
U.S.C. 7151. Section 7151 was further amended by section 310 of the 
Civil Service Reform Act of 1978. This Act also redesignated section 
7151 as section 7201, effective January 11, 1979. (Sec. 703(a)(1) of the 
Act.)
---------------------------------------------------------------------------

    I. Background Information. A. In 1964 the Congress adopted a basic 
anti-discrimination policy for Federal employment, stating:

    It is the policy of the United States to insure equal employment 
opportunities for employees without discrimination because of race, 
color, religion, sex or national origin. [5 U.S.C. 7151] \2\
---------------------------------------------------------------------------

    \2\ Ibid.
---------------------------------------------------------------------------

    In 1978, Congress reaffirmed and amended this policy as part of the 
Civil Service Reform Act of 1978 [Sec. 310 of Pub. L. 95-454], requiring 
immediate development of a recruitment program designed to eliminate 
underrepresentation of minority groups in specific Federal job 
categories. Section 310 directs the Equal Employment Opportunity 
Commission:
    1. To establish Guidelines proposed to be used for a program 
designed to eliminate such underrepresentation;
    2. To make, in consultation with OPM, initial determinations of 
underrepresentation which are proposed to be used in this program; and
    3. To transmit the determinations made under (2) above to the 
Executive Agencies, the Office of Personnel Management and the Congress, 
within 60 days of enactment.
    The Office of Personnel Management (OPM) \3\ is directed by this 
amendment:
---------------------------------------------------------------------------

    \3\ This Office was created by Reorganization Plan No. 2, issued 
pursuant to 5 U.S.C. 901 et seq. It will assume personnel management 
functions of the present Office of Personnel Management on January 1, 
1979.
---------------------------------------------------------------------------

    1. To issue regulations to implement a program under EEOC Guidelines 
within 180 days after enactment, which shall provide that Executive 
agencies conduct continuing recruitment programs to carry out the anti-
discrimination policy in a manner designed

[[Page 13]]

to eliminate underrepresentation in identified categories of civil 
service;
    2. To provide continuing assistance to Federal agencies in carrying 
out such programs;
    3. To conduct a continuing program of evaluation and oversight to 
determine the effectiveness of such programs;
    4. To establish occupational, professional and other groupings 
within which appropriate recruitment will occur, based upon the 
determinations of underrepresentation pursuant to these Guidelines; and
    5. To report annually to the Congress on this program, not later 
than January 31 of each year.
    Congress further directed that the recruitment program must be 
administered consistent with provisions of Reorganization Plan No. 1 of 
1978. \4\
---------------------------------------------------------------------------

    \4\ Conference Report on Civil Service Reform Act of 1978, No. 95-
1272, p. 145.
---------------------------------------------------------------------------

    B. In framing these Guidelines and making its initial determinations 
of underrepresentation, the Equal Employment Opportunity Commission 
(Commission) is acting pursuant to its obligations and authority under 5 
U.S.C. 7201, as amended; Section 717 of title VII of the Civil Rights 
Act of 1964, as amended; Reorganization Plan No. 1 of 1978 (issued 
pursuant to 5 U.S.C. 901 et seq.) and Executive Order 12067, issued 
under this Plan (43 FR 28967, June 30, 1978). This Commission must 
develop and/or ensure the development of uniform, coherent and effective 
standards for administration and enforcement of all Federal anti-
discrimination and equal employment opportunity laws, policies and 
programs, and to ensure the elimination of duplication and inconsistency 
in such programs.
    C. A review of the legislative history of Federal equal employment 
opportunity policy provides further guidance on the scope and nature of 
determinations and guidelines to be issued for this program.
    The basic policy statement on Federal equal employment policy 
enacted by the Congress in 1964 (5 U.S.C. 7151, redesignated as section 
7201) gave the President authority for implementation. Executive Order 
11246 (1966), expanded and superseded by Executive Order 11478 (1969) 
with respect to Federal employment, required Federal agencies to develop 
affirmative action programs designed to eliminate discrimination and 
assure equal employment opportunity.
    In 1972, Congress found that serious discrimination persisted in 
Federal employment. It found that minorities and women were 
significantly absent at higher levels in Federal employment, and 
severely underrepresented in some Federal agencies and in some 
geographic areas where they constituted significant proportions of the 
population. After a detailed review of Federal employment practices and 
statistics, the Congress concluded that:
    The disproportionate distribution of minorities and women throughout 
the Federal bureaucracy and their exclusion from higher level policy-
making and supervisory positions indicates the government's failure to 
pursue its policy of equal employment opportunity. \5\
---------------------------------------------------------------------------

    \5\ Legislative History of the Equal Employment Opportunity Act of 
1972, p. 83. See pp. 82-86 and 421-425 for Congressional Findings.
---------------------------------------------------------------------------

    Congress found that this exclusion resulted from overt and 
``systemic'' discriminatory practices.
    These findings, among others, led Congress to extend title VII 
coverage to Federal employment in Section 717 of the Equal Employment 
Opportunity Act of 1972.
    The Civil Service Reform Act of 1978 clearly states, for the first 
time, that ``it is the policy of the United States * * * to provide * * 
* a Federal workforce reflective of the Nation's diversity * * *'' \6\ 
The Act establishes in law as the first merit principle that recruitment 
should be designed to achieve a Federal workforce from ``all segments of 
society.'' Among the personnel practices prohibited by the Act is 
discrimination prohibited under title VII of the Civil Rights Act of 
1964, as amended. \7\ Therefore, the Civil Service Reform Act and its 
directive for a special recruitment program clearly unite requirements 
for basic Federal personnel policy with requirements for Federal equal 
employment policy.
---------------------------------------------------------------------------

    \6\ Civil Service Reform Act of 1978, Section 3.
    \7\ Section 101(a) of the Act, 5 U.S.C. 2301(b)(1) and 
2302(b)(1)(A), as amended.
---------------------------------------------------------------------------

    It is clear from the legislative history of Federal equal employment 
policy that the legal standards of title VII must be applied to Federal 
employment. Thus, guidelines for a recruitment program designed to 
eliminate underrepresentation in Federal agency employment must be 
developed consistent with the framework of affirmative action programs.
    D. Guided by the review of the legislative history, and the 
responsibilities and authorities cited in I(B) of this appendix, the 
Commission is issuing these Guidelines to provide a framework for 
development of recruitment program regulations by OPM. The Commission 
may later provide more detailed guidance, through consultation with OPM, 
designed to achieve an overall Federal equal employment program which is 
consistent with, and which effectively implements title VII 
requirements.
    II. Initial Determinations of Underrepresentation. A. Pursuant to 
Section 7201, underrepresentation exists when the percentages of 
minority and female Federal employees in

[[Page 14]]

specific grades are less than their percentages in the civilian labor 
force. ``Minority'' refers only to those groups classified as 
``minority'' for the purpose of data collection by the Commission and 
OPM in furtherance of Federal equal employment opportunity policies. The 
civilian labor force includes all persons 16 years of age and over 
except the armed forces, who are employed or seeking employment. Such a 
determination of underrepresentation is designated in these Guidelines 
as ``below the Section 7201 level''.
    B. The Commission has examined existing data on Federal employment 
and the civilian labor force and has made initial determinations of 
underrepresentation of groups by race, national origin and sex in 
specific grades of the major Federal pay systems, under the legal 
authorities cited in I(B), of this appendix.
    C. The Table which follows shows the grades at which the percentage 
of each group in the Federal workforce falls below its percentage in the 
civilian labor force. The table covers four major Federal pay systems 
which account for more than 95 percent of Federal employees, excluding 
the Postal Service. \8\
---------------------------------------------------------------------------

    \8\ The initial determinations are based on data for only those 
agencies covered by the Civil Service Reform Act of 1978. The Commission 
will make subsequent determinations on other agencies covered by title 
VII, e.g. the U.S. Postal Service, TVA, Central Intelligence Agency, 
Federal Reserve Board.

  Civilian Labor Force and Federal Employment Grades at Which Minorities and Women Are Below the 7201 Level, by
                        Selected Pay Systems, and by Sex, Race, and National Origin--1977
----------------------------------------------------------------------------------------------------------------
                              Percent of                        Grades Below the 7201 Level
                               Civilian  -----------------------------------------------------------------------
  Sex/Race/National Origin       Labor      Gen Sched and      Non-spvsry      Leader Regular    Spvsry Regular
                                 Force       Equivalent       Regular Wage          Wage              Wage
----------------------------------------------------------------------------------------------------------------
Number of Grades............  ..........                18                15                15                19
----------------------------------------------------------------------------------------------------------------
Women.......................        41.0                9+                2+                2+               All
White.......................        34.0                9+               All               All               All
Black.......................         4.6               11+                5+                5+                5+
Hispanic....................         1.7                6+               All             2, 4+               All
AsAm/PacIs..................          .6            1, 10+                2+                2+               All
AmIn/AlNa...................          .1               13+                9+       1, 5, 6, 9+         4, 9, 11+
Minority Men................         8.9                3+               13+           11, 14+               13+
Black.......................         5.3             4, 6+               12+               11+               11+
Hispanic....................         2.8               All               14+             1, 15        13-15, 17+
AsAm/PacIs..................          .7      1-8, 10, 16+            9, 14+   1, 3, 8, 9, 12+   1, 3, 8, 9, 17+
AmIn/AlNa...................          .2              None                14            1, 13+               17+
----------------------------------------------------------------------------------------------------------------
Notes. 1. Comparable data for white men shown below are for reference.


White Men...................        50.1               1-8               1-4               1-5               1-3
 
2. + means ``and all grades above''.
3. Detail may not add to total because of rounding.
 
Sources: Civilian Labor Force information based on data from the Current Population Survey, Bureau of Labor
  Statistics, Employment and Earnings, Vol. 25, No. 1, January 1978.
Information on grades below 7201 level based on Office of Personnel Management data from Equal Employment
  Opportunity Statistics, November 20, 1977 (publication in process).

    D. The initial determinations of underrepresentation were based upon 
average 1977 labor force data from the Current Population Survey 
published by the Bureau of Labor Statistics (Employment and Earnings, 
January 1978), and 1977 Federal workforce statistics from Equal 
Employment Opportunity Statistics (publication in process).
    The labor force figures are published annually; the Federal 
employment statistics semiannually. These measures, and any 
modifications agreed upon by the Commission and OPM, will be updated 
annually.
    Regional and area Federal employment statistics are available from 
the Office of Personnel Management. The latest reliable local labor 
force data by race, national origin, and sex is from the 1970 Census. 
The Commission and OPM will consult on appropriate labor force measures 
to be used for local analyses.
    E. These initial determinations are based upon a preliminary 
analysis of the data, and may be further refined by the Commission, in 
consultation with OPM, to include geographic and occupational 
underrepresentation. It is further recognized that for the purpose of 
developing regulations, the OPM, in consultation with the Commission, 
will undertake more specific analyses of data use and applicability 
necessary to develop programs for the Federal agencies pursuant to 
Section 7201(a)(2)(C). The OPM may establish criteria for grouping 
agencies, for treating

[[Page 15]]

agency components separately and for grouping grades and pay systems. In 
addition, OPM may study other available data sources and use other 
techniques to assure statistically significant findings of 
underrepresentation. Based upon these studies, OPM may make 
recommendations to the Commission for future determinations of 
underrepresentation.
    III. Procedures for Developing Recruitment Programs. A. The program 
developed and implemented by OPM under Section 7201 should be designed 
to result in applicant pools with sufficient qualified members of 
underrepresented groups. Where the supply of such groups initially 
appears to be low for specific occupational, professional and other 
groupings, the program should be designed so that recruitment efforts 
stimulate interest of underrepresented groups in those occupations where 
there are realistic projections of Federal employment opportunities.
    B. In establishing groupings for determining underrepresentation, 
OPM should utilize broad occupational categories to the extent possible.
    C. The Commission recognizes that OPM's regulations should allow 
flexibility in development and design of each Federal agency's 
recruitment program. However, all statistical comparisons must be 
computed in a manner consistent with the method utilized in II C of this 
appendix.
    The Commission recommends that each agency program meet several 
minimum requirements. The program should be based on a determination of 
underrepresentation in the agency's total workforce, in appropriate 
geographic components; by grade; by broad occupational, professional and 
other groupings in comparison to the national civilian labor force, 
according to the criteria developed by OPM under these guidelines.
    Where an agency or major component thereof (such as Headquarters and 
Regional Offices) is located in a geographic area where the percentage 
of underrepresented groups in the area civilian labor force is higher 
than their percentage in the national labor force, the agency or 
appropriate component should conduct its recruitment program for that 
component on the basis of the higher level of representation in the 
relevant civilian labor force.
    Where an agency or major component thereof is located in a 
geographic area where participation of a particular underrepresented 
group in the area labor force is significantly lower than their 
participation in the national labor force, such agency or component may, 
in consultation with OPM, utilize the lower applicable civilian labor 
force percentage in determining underrepresentation for the component. 
In no event, however, may the agency utilize a figure lower than the 
regional or nationwide Section 7201 level for positions where 
recruitment on a regional or nationwide basis is feasible. Factors such 
as size of the agency or unit, nature of jobs and their wage or pay 
scale may be considered to set goals and to justify a recruitment 
program focused on various job categories.
    IV. Scope of Actions Covered by This Program. A. ``Recruitment'' 
under this program is defined as the total process by which the Federal 
Government and the Federal agencies locate, identify and assist in the 
employment of qualified or qualifiable applicants from underrepresented 
groups for job openings in grades and in occupational categories where 
underrepresentation has been determined. This process should include 
innovative internal, as well as targeted external, recruitment actions.
    B. Prior to developing regulations, the Office should review data on 
personnel actions and other information, to identify those job 
categories for which internal recruitment and external recruitment is 
most appropriate and feasible, and to provide guidance to the Federal 
agencies for targeting their recruitment programs, based on this 
information. OPM should advise all agencies that all job qualifications, 
personnel procedures and criteria must be consistent with the Uniform 
Guidelines on Employee Selection Procedures (43 FR 38290 August 25, 
1978) OPM should consider the following in providing guidance to 
agencies:
    1. External Recruitment Programs. a. Such programs should focus on 
grade levels and/or job categories where underrepresentation has been 
identified and where external recruitment realistically will result in 
hiring opportunities.
    Recruitment programs also should include a review of job functions 
to determine those jobs that may be better performed by persons who are 
bicultural and who have bilingual capabilities, and those jobs that can 
be performed by persons not fluent in English.
    b. Where eligibility lists are used for filling jobs, it is 
recommended that the regulations require, an analysis by race, national 
origin and sex, to determine whether the list contains sufficient 
candidates from groups underrepresented in those jobs. OPM should 
require that where the list does not have such representation, expanded 
recruitment procedures be designed to assure that members of 
underrepresented groups qualified to perform the job(s) are included in 
the pool of applicants from which the selecting official makes the 
selection. Such expanded recruitment procedures may include additional 
external recruitment or various actions (such as described in 2. below) 
to reach members of these groups within the Federal workforce who are 
qualified or qualifiable for these jobs.
    2. Internal Recruitment Programs. a. Internal recruitment programs 
should be designed by agencies to identify currently qualified or

[[Page 16]]

qualifiable persons for job categories and series where 
underrepresentation prevails, according to the national determinations 
and the determinations made by each agency under these guidelines.
    b. Further, OPM should work with Federal agencies to develop 
effective mechanisms for providing information on Federal job 
opportunities, targeted to reach Federal employees from underrepresented 
groups in all agencies in order to broaden the applicant pool.
    V. Consistency with Reorganization Plan No. 1 of 1978. A. The Office 
shall develop regulations and implement this program in consultation 
with the Commission and with other affected agencies in such manner that 
their recruitment programs may be incorporated as a consistent and 
effective element of the agencies' national and regional equal 
employment opportunity plans. Each agency is required to implement such 
plans under the direction and guidance of the Commission in accordance 
with Section 717 of title VII of the Civil Rights Act of 1964, as 
amended, and Executive Order 12067.
    B. Procedures shall be established by OPM and the Commission to 
assure appropriate consultation in development of the regulations.
    C. Pursuant to Reorganization Plan No. 1 and to Executive Order 
12067 issued thereunder, the Commission will establish procedures to 
provide appropriate consultation and review of the program on a 
continuing basis, to maximize its effectiveness and eliminate any 
duplication, conflict or inconsistency in requirements for equal 
opportunity programs in the Federal agencies.
    D. In preparing its annual report to the Congress pursuant to the 
Act, OPM should do so in consultation with the Commission.

[44 FR 22031, Apr. 13, 1979; 44 FR 76747, Dec. 28, 1979]



PART 723_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP
IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE OFFICE OF PERSONNEL

MANAGEMENT--Table of Contents



Sec.
723.101 Purpose.
723.102 Application.
723.103 Definitions.
723.104-723.109 [Reserved]
723.110 Self-evaluation.
723.111 Notice.
723.112-723.129 [Reserved]
723.130 General prohibitions against discrimination.
723.131-723.139 [Reserved]
723.140 Employment.
723.141-723.148 [Reserved]
723.149 Program accessibility: Discrimination prohibited.
723.150 Program accessibility: Existing facilities.
723.151 Program accessibility: New construction and alterations.
723.152-723.159 [Reserved]
723.160 Communications.
723.161-723.169 [Reserved]
723.170 Compliance procedures.

    Authority: 29 U.S.C. 794.

    Source: 53 FR 25880, 25885, July 8, 1988, unless otherwise noted.



Sec. 723.101  Purpose.

    The purpose of this regulation is to effectuate section 119 of the 
Rehabilitation, Comprehensive Services, and Developmental Disabilities 
Amendments of 1978, which amended section 504 of the Rehabilitation Act 
of 1973 to prohibit discrimination on the basis of handicap in programs 
or activities conducted by Executive agencies or the United States 
Postal Service.



Sec. 723.102  Application.

    This regulation (Sec. Sec. 723.101-723.170) applies to all programs 
or activities conducted by the agency, except for programs or activities 
conducted outside the United States that do not involve individuals with 
handicaps in the United States.



Sec. 723.103  Definitions.

    For purposes of this regulation, the term--
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, Brailled materials, 
audio recordings, and other similar services and devices. Auxiliary aids 
useful for persons with impaired hearing include telephone handset 
amplifiers, telephones compatible with hearing aids, telecommunication 
devices for deaf persons (TDD's), interpreters,

[[Page 17]]

notetakers, written materials, and other similar services and devices.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the agency's alleged 
discriminatory action in sufficient detail to inform the agency of the 
nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    Historic preservation programs means programs conducted by the 
agency that have preservation of historic properties as a primary 
purpose.
    Historic properties means those properties that are listed or 
eligible for listing in the National Register of Historic Places or 
properties designated as historic under a statute of the appropriate 
State or local government body.
    Individual with handicaps means any person who has a physical or 
mental impairment that substantially limits one or more major life 
activities, has a record of such an impairment, or is regarded as having 
such an impairment.
    As used in this definition, the phrase:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term physical or mental impairment 
includes, but is not limited to, such diseases and conditions as 
orthopedic, visual, speech, and hearing impairments, cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, and drug addiction and 
alcoholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the agency as constituting 
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by the agency as having such an impairment.
    Qualified individual with handicaps means--
    (1) With respect to preschool, elementary, or secondary education 
services provided by the agency, an individual with handicaps who is a 
member of a class of persons otherwise entitled by statute, regulation, 
or agency policy to receive education services from the agency;
    (2) With respect to any other agency program or activity under which 
a person is required to perform services or to achieve a level of 
accomplishment, an individual with handicaps who meets the essential 
eligibility requirements and who can achieve the purpose of the program 
or activity without modifications in the program or activity that the 
agency can demonstrate would result in a fundamental alteration in its 
nature;
    (3) With respect to any other program or activity, an individual 
with handicaps who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity; 
and

[[Page 18]]

    (4) Qualified handicapped person as that term is defined for 
purposes of employment in 29 CFR 1613.702(f), which is made applicable 
to this regulation by Sec. 723.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617); 
the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955); and the 
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810). 
As used in this regulation, section 504 applies only to programs or 
activities conducted by Executive agencies and not to federally assisted 
programs.
    Substantial impairment means a significant loss of the integrity of 
finished materials, design quality, or special character resulting from 
a permanent alteration.



Sec. Sec. 723.104-723.109  [Reserved]



Sec. 723.110  Self-evaluation.

    (a) The agency shall, by September 6, 1989, evaluate its current 
policies and practices, and the effects thereof, that do not or may not 
meet the requirements of this regulation and, to the extent modification 
of any such policies and practices is required, the agency shall proceed 
to make the necessary modifications.
    (b) The agency shall provide an opportunity to interested persons, 
including individuals with handicaps or organizations representing 
individuals with handicaps, to participate in the self-evaluation 
process by submitting comments (both oral and written).
    (c) The agency shall, for at least three years following completion 
of the self-evaluation, maintain on file and make available for public 
inspection:
    (1) A description of areas examined and any problems identified; and
    (2) A description of any modifications made.



Sec. 723.111  Notice.

    The agency shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons such 
information regarding the provisions of this regulation and its 
applicability to the programs or activities conducted by the agency, and 
make such information available to them in such manner as the head of 
the agency finds necessary to apprise such persons of the protections 
against discrimination assured them by section 504 and this regulation.



Sec. Sec. 723.112-723.129  [Reserved]



Sec. 723.130  General prohibitions against discrimination.

    (a) No qualified individual with handicaps shall, on the basis of 
handicap, be excluded from participation in, be denied the benefits of, 
or otherwise be subjected to discrimination under any program or 
activity conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap--
    (i) Deny a qualified individual with handicaps the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified individual with handicaps an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified individual with handicaps with an aid, 
benefit, or service that is not as effective in affording equal 
opportunity to obtain the same result, to gain the same benefit, or to 
reach the same level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
individuals with handicaps or to any class of individuals with handicaps 
than is provided to others unless such action is necessary to provide 
qualified individuals with handicaps with aid, benefits, or services 
that are as effective as those provided to others;
    (v) Deny a qualified individual with handicaps the opportunity to 
participate as a member of planning or advisory boards;

[[Page 19]]

    (vi) Otherwise limit a qualified individual with handicaps in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving the aid, benefit, or service.
    (2) The agency may not deny a qualified individual with handicaps 
the opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) The agency may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified individuals with handicaps to discrimination 
on the basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to individuals with handicaps.
    (4) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude individuals with handicaps from, deny them the benefits 
of, or otherwise subject them to discrimination under any program or 
activity conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to individuals with 
handicaps.
    (5) The agency, in the selection of procurement contractors, may not 
use criteria that subject qualified individuals with handicaps to 
discrimination on the basis of handicap.
    (6) The agency may not administer a licensing or certification 
program in a manner that subjects qualified individuals with handicaps 
to discrimination on the basis of handicap, nor may the agency establish 
requirements for the programs or activities of licensees or certified 
entities that subject qualified individuals with handicaps to 
discrimination on the basis of handicap. However, the programs or 
activities of entities that are licensed or certified by the agency are 
not, themselves, covered by this regulation.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive order to individuals 
with handicaps or the exclusion of a specific class of individuals with 
handicaps from a program limited by Federal statute or Executive order 
to a different class of individuals with handicaps is not prohibited by 
this regulation.
    (d) The agency shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified individuals 
with handicaps.



Sec. Sec. 723.131-723.139  [Reserved]



Sec. 723.140  Employment.

    No qualified individual with handicaps shall, on the basis of 
handicap, be subject to discrimination in employment under any program 
or activity conducted by the agency. The definitions, requirements, and 
procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 
791), as established by the Equal Employment Opportunity Commission in 
29 CFR part 1613, shall apply to employment in federally conducted 
programs or activities.



Sec. Sec. 723.141-723.148  [Reserved]



Sec. 723.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 723.150, no qualified 
individual with handicaps shall, because the agency's facilities are 
inaccessible to or unusable by individuals with handicaps, be denied the 
benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the agency.



Sec. 723.150  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by individuals with handicaps. This paragraph 
does not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by individuals with handicaps;
    (2) In the case of historic preservation programs, require the 
agency to take any action that would result in a substantial impairment 
of significant

[[Page 20]]

historic features of an historic property; or
    (3) Require the agency to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where agency personnel believe that the proposed action 
would fundamentally alter the program or activity or would result in 
undue financial and administrative burdens, the agency has the burden of 
proving that compliance with Sec. 723.150(a) would result in such 
alteration or burdens. The decision that compliance would result in such 
alteration or burdens must be made by the agency head or his or her 
designee after considering all agency resources available for use in the 
funding and operation of the conducted program or activity, and must be 
accompanied by a written statement of the reasons for reaching that 
conclusion. If an action would result in such an alteration or such 
burdens, the agency shall take any other action that would not result in 
such an alteration or such burdens but would nevertheless ensure that 
individuals with handicaps receive the benefits and services of the 
program or activity.
    (b) Methods--(1) General. The agency may comply with the 
requirements of this section through such means as redesign of 
equipment, reassignment of services to accessible buildings, assignment 
of aides to beneficiaries, home visits, delivery of services at 
alternate accessible sites, alteration of existing facilities and 
construction of new facilities, use of accessible rolling stock, or any 
other methods that result in making its programs or activities readily 
accessible to and usable by individuals with handicaps. The agency is 
not required to make structural changes in existing facilities where 
other methods are effective in achieving compliance with this section. 
The agency, in making alterations to existing buildings, shall meet 
accessibility requirements to the extent compelled by the Architectural 
Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any 
regulations implementing it. In choosing among available methods for 
meeting the requirements of this section, the agency shall give priority 
to those methods that offer programs and activities to qualified 
individuals with handicaps in the most integrated setting appropriate.
    (2) Historic preservation programs. In meeting the requirements of 
Sec. 723.150(a) in historic preservation programs, the agency shall 
give priority to methods that provide physical access to individuals 
with handicaps. In cases where a physical alteration to an historic 
property is not required because of Sec. 723.150(a) (2) or (3), 
alternative methods of achieving program accessibility include--
    (i) Using audio-visual materials and devices to depict those 
portions of an historic property that cannot otherwise be made 
accessible;
    (ii) Assigning persons to guide individuals with handicaps into or 
through portions of historic properties that cannot otherwise be made 
accessible; or
    (iii) Adopting other innovative methods.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section by November 7, 1988, except 
that where structural changes in facilities are undertaken, such changes 
shall be made by September 6, 1991, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
agency shall develop, by March 6, 1989, a transition plan setting forth 
the steps necessary to complete such changes. The agency shall provide 
an opportunity to interested persons, including individuals with 
handicaps or organizations representing individuals with handicaps, to 
participate in the development of the transition plan by submitting 
comments (both oral and written). A copy of the transition plan shall be 
made available for public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the agency's facilities that 
limit the accessibility of its programs or activities to individuals 
with handicaps;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;

[[Page 21]]

    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the 
plan.



Sec. 723.151  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the agency shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
individuals with handicaps. The definitions, requirements, and standards 
of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established 
in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this 
section.



Sec. Sec. 723.152-723.159  [Reserved]



Sec. 723.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where 
necessary to afford an individual with handicaps an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
individual with handicaps.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the agency communicates with applicants and beneficiaries 
by telephone, telecommunication devices for deaf persons (TDD's) or 
equally effective telecommunication systems shall be used to communicate 
with persons with impaired hearing.
    (b) The agency shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The agency shall provide signage at a primary entrance to each 
of its inaccessible facilities, directing users to a location at which 
they can obtain information about accessible facilities. The 
international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require the agency to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and administrative 
burdens. In those circumstances where agency personnel believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the agency 
has the burden of proving that compliance with Sec. 723.160 would 
result in such alteration or burdens. The decision that compliance would 
result in such alteration or burdens must be made by the agency head or 
his or her designee after considering all agency resources available for 
use in the funding and operation of the conducted program or activity 
and must be accompanied by a written statement of the reasons for 
reaching that conclusion. If an action required to comply with this 
section would result in such an alteration or such burdens, the agency 
shall take any other action that would not result in such an alteration 
or such burdens but would nevertheless ensure that, to the maximum 
extent possible, individuals with handicaps receive the benefits and 
services of the program or activity.



Sec. Sec. 723.161-723.169  [Reserved]



Sec. 723.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
handicap in programs and activities conducted by the agency.
    (b) The agency shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity

[[Page 22]]

Commission in 29 CFR part 1613 pursuant to section 501 of the 
Rehabilitation Act of 1973 (29 U.S.C. 791).
    (c) The Assistant Director for Personnel and EEO shall be 
responsible for coordinating implementation of this section. Complaints 
may be sent to the Assistant Director for Personnel and EEO, Office of 
Personnel Management, Room 1479, 1900 E St., NW., Washington, DC 20415.
    (d) The agency shall accept and investigate all complete complaints 
for which it has jurisdiction. All complete complaints must be filed 
within 180 days of the alleged act of discrimination. The agency may 
extend this time period for good cause.
    (e) If the agency receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate Government 
entity.
    (f) The agency shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to 
and usable by individuals with handicaps.
    (g) Within 180 days of the receipt of a complete complaint for which 
it has jurisdiction, the agency shall notify the complainant of the 
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 90 days of receipt from 
the agency of the letter required by Sec. 723.170(g). The agency may 
extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the head of 
the agency.
    (j) The head of the agency shall notify the complainant of the 
results of the appeal within 60 days of the receipt of the request. If 
the head of the agency determines that additional information is needed 
from the complainant, he or she shall have 60 days from the date of 
receipt of the additional information to make his or her determination 
on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
may be extended with the permission of the Assistant Attorney General.
    (l) The agency may delegate its authority for conducting complaint 
investigations to other Federal agencies, except that the authority for 
making the final determination may not be delegated to another agency.

[53 FR 25880 and 25885, July 8, 1988, as amended at 53 FR 25880, July 8, 
1988]



PART 724_IMPLEMENTATION OF TITLE II OF THE NOTIFICATION AND 
FEDERAL EMPLOYEE ANTIDISCRIMINATION AND RETALIATION ACT OF 

2002--Table of Contents



                Subpart A_Reimbursement of Judgment Fund

Sec.
724.101 Purpose and scope.
724.102 Definitions.
724.103 Agency obligations.
724.104 Procedures.
724.105 Compliance.
724.106 Effective date.

      Subpart B_Notification of Rights and Protections and Training

724.201 Purpose and scope.
724.202 Notice obligations.
724.203 Training obligations.

                         Subpart C_Annual Report

724.301 Purpose and scope.
724.302 Reporting obligagations.

                        Subpart D_Best Practices

724.401 Purpose and scope.
724.402 Best practices study.
724.403 Advisory guidelines.
724.404 Agency obligations

    Authority: Sec. 204 of Pub. L. 107-174, 116 Stat. 566; Presidential 
Memorandum dated July 8, 2003, ``Delegation of Authority Under Section 
204(a) of the Notification and Federal Employee Antidiscrimination Act 
of 2002.''

    Source: 71 FR 27187, May 10, 2006, unless otherwise noted.

[[Page 23]]



                Subpart A_Reimbursement of Judgement Fund



Sec. 724.101  Purpose and scope.

    This subpart implements Title II of the Notification and Federal 
Employee Antidiscrimination and Retaliation Act of 2002 concerning the 
obligation of Federal agencies to reimburse the Judgment Fund for 
payments. The regulations describe agency obligations and the procedures 
for reimbursement and compliance.



Sec. 724.102  Definitions.

    In this part:
    Agency means an Executive agency as defined in 5 U.S.C. 105, the 
United States Postal Service, or the Postal Rate Commission;
    Antidiscrimination Laws refers to 5 U.S.C. 2302(b)(1), 5 U.S.C. 
2302(b)(9) as applied to conduct described in 5 U.S.C. 2302(b)(1), 29 
U.S.C. 206(d), 29 U.S.C. 631, 29 U.S.C. 633a, 29 U.S.C. 791 and 42 
U.S.C. 2000e-16.
    Applicant for Federal employment means an individual applying for 
employment in or under a Federal agency;
    Discipline means any one or a combination of the following actions: 
reprimand, suspension without pay, reduction in grade or pay, or 
removal.
    Employee means an individual employed in or under a Federal agency;
    Former Employee means an individual formerly employed in or under a 
Federal agency;
    Judgment Fund means the Judgment Fund established by 31 U.S.C. 1304;
    No FEAR Act means the ``Notification and Federal Employee 
Antidiscrimination and Retaliation Act of 2002;''
    Notice means the written information provided by Federal agencies 
about the rights and protections available under Federal 
Antidiscrimination Laws and Whistleblower Protection Laws.
    Payment, subject to the following exception, means a disbursement 
from the Judgment Fund on or after October 1, 2003, to an employee, 
former employee, or applicant for Federal employment, in accordance with 
28 U.S.C. 2414, 2517, 2672, 2677 or with 31 U.S.C. 1304, that involves 
alleged discriminatory or retaliatory conduct described in 5 U.S.C. 
2302(b)(1) and (b)(8) or (b)(9) as applied to conduct described in 5 
U.S.C. 2302(b)(1) and/or (b)(8) or conduct described in 29 U.S.C. 
206(d), 29 U.S.C. 631, 29 U.S.C. 633a, 29 U.S.C. 791 and 42 U.S.C. 
2000e-16. For a proceeding involving more than one disbursement from the 
Judgment Fund, however, this term shall apply only if the first 
disbursement occurred on or after October 1, 2003.
    Training means the process by which Federal agencies instruct their 
employees regarding the rights and remedies applicable to such employees 
under the Federal Antidiscrimination Laws and Whistleblower Protection 
Laws.
    Whistleblower Protection Laws refers to 5 U.S.C. 2302(b)(8) or 5 
U.S.C. 2302(b)(9) as applied to conduct described in 5 U.S.C. 
2302(b)(8).

[71 FR 27187, May 10, 2006, as amended at 71 FR 41098, July 20, 2006; 71 
FR 78037, Dec. 28, 2006]



Sec. 724.103  Agency obligations.

    A Federal agency (or its successor agency) must reimburse the 
Judgment Fund for payments covered by the No FEAR Act. Such 
reimbursement must be made within a reasonable time as described in 
Sec. 724.104.



Sec. 724.104  Procedures.

    (a) The procedures that agencies must use to reimburse the Judgment 
Fund are those prescribed by the Financial Management Service (FMS), the 
Department of the Treasury, in Chapter 3100 of the Treasury Financial 
Manual. All reimbursements to the Judgment Fund covered by the No FEAR 
Act are expected to be fully collectible from the agency. FMS will 
provide written notice to the agency's Chief Financial Officer within 15 
business days after payment from the Judgment Fund.
    (b) Within 45 business days of receiving the FMS notice, agencies 
must reimburse the Judgment Fund or contact FMS to make arrangements in 
writing for reimbursement.



Sec. 724.105  Compliance.

    An agency's failure to reimburse the Judgment Fund, to contact FMS 
within 45 business days after receipt of an FMS notice for reimbursement 
under Sec. 724.104 will be recorded on an annual

[[Page 24]]

basis and posted on the FMS Web site. After an agency meets the 
requirements of Sec. 724.104, the recording will be eliminated no later 
than the next annual posting process.



Sec. 724.106  Effective date.

    This subpart is effective on October 1, 2003.



      Subpart B_Notification of Rights and Protections and Training

    Source: 71 FR 41098, July 20, 2006, unless otherwise noted.



Sec. 724.201  Purpose and scope.

    (a) This subpart implements Title II of the Notification and Federal 
Employee Antidiscrimination and Retaliation Act of 2002 concerning the 
obligation of Federal agencies to notify all employees, former 
employees, and applicants for Federal employment of the rights and 
protections available to them under the Federal Antidiscrimination Laws 
and Whistleblower Protection Laws. This subpart also implements Title II 
concerning the obligation of agencies to train their employees on such 
rights and remedies. The regulations describe agency obligations and the 
procedures for written notification and training.
    (b) Pursuant to section 205 of the No FEAR Act, neither that Act nor 
this notice creates, expands or reduces any rights otherwise available 
to any employee, former employee or applicant under the laws of the 
United States, including the provisions of law specified in 5 U.S.C. 
2302(d).



Sec. 724.202  Notice obligations.

    (a) Each agency must provide notice to all of its employees, former 
employees, and applicants for Federal employment about the rights and 
remedies available under the Antidiscrimination Laws and Whistleblower 
Protection Laws applicable to them.
    (b) The notice under this part must be titled, ``No FEAR Act 
Notice.''
    (c) Each agency must provide initial notice within 60 calendar days 
after September 18, 2006. Thereafter, the notice must be provided by the 
end of each successive fiscal year and any posted materials must remain 
in place until replaced or revised.
    (d) After the initial notice, each agency must provide the notice to 
new employees within 90 calendar days of entering on duty.
    (e) Each agency must provide the notice to its employees in paper 
(e.g., letter, poster or brochure) and/or electronic form (e.g., e-mail, 
internal agency electronic site, or Internet Web site). Each agency must 
publish the initial notice in the Federal Register. Agencies with 
Internet Web sites must also post the notice on those Web sites, in 
compliance with section 508 of the Rehabilitation Act of 1973, as 
amended. For agencies with components that operate Internet Web sites, 
the notice must be made available by hyperlinks from the Internet Web 
sites of both the component and the parent agency. An agency may meet 
its paper and electronic notice obligation to former employees and 
applicants by publishing the initial notice in the Federal Register and 
posting the notice on its Internet Web site if it has one.
    (f) To the extent required by law and upon request by employees, 
former employees and applicants, each agency must provide the notice in 
alternative, accessible formats.
    (g) Unless an agency is exempt from the cited statutory provisions, 
the following is the minimum text to be included in the notice. Each 
agency may incorporate additional information within the model 
paragraphs, as appropriate.

                            Model Paragraphs

                           No Fear Act Notice

    On May 15, 2002, Congress enacted the ``Notification and Federal 
Employee Antidiscrimination and Retaliation Act of 2002,'' which is now 
known as the No FEAR Act. One purpose of the Act is to ``require that 
Federal agencies be accountable for violations of antidiscrimination and 
whistleblower protection laws.'' Public Law 107-174, Summary. In support 
of this purpose, Congress found that ``agencies cannot be run 
effectively if those agencies practice or tolerate discrimination.'' 
Public Law 107-174, Title I, General Provisions, section 101(1).
    The Act also requires this agency to provide this notice to Federal 
employees, former Federal employees and applicants for Federal 
employment to inform you of the rights and protections available to you 
under

[[Page 25]]

Federal antidiscrimination and whistleblower protection laws.

                         Antidiscrimination Laws

    A Federal agency cannot discriminate against an employee or 
applicant with respect to the terms, conditions or privileges of 
employment on the basis of race, color, religion, sex, national origin, 
age, disability, marital status or political affiliation. Discrimination 
on these bases is prohibited by one or more of the following statutes: 5 
U.S.C. 2302(b)(1), 29 U.S.C. 206(d), 29 U.S.C. 631, 29 U.S.C. 633a, 29 
U.S.C. 791 and 42 U.S.C. 2000e-16.
    If you believe that you have been the victim of unlawful 
discrimination on the basis of race, color, religion, sex, national 
origin or disability, you must contact an Equal Employment Opportunity 
(EEO) counselor within 45 calendar days of the alleged discriminatory 
action, or, in the case of a personnel action, within 45 calendar days 
of the effective date of the action, before you can file a formal 
complaint of discrimination with your agency. See, e.g. 29 CFR 1614. If 
you believe that you have been the victim of unlawful discrimination on 
the basis of age, you must either contact an EEO counselor as noted 
above or give notice of intent to sue to the Equal Employment 
Opportunity Commission (EEOC) within 180 calendar days of the alleged 
discriminatory action. If you are alleging discrimination based on 
marital status or political affiliation, you may file a written 
complaint with the U.S. Office of Special Counsel (OSC) (see contact 
information below). In the alternative (or in some cases, in addition), 
you may pursue a discrimination complaint by filing a grievance through 
your agency's administrative or negotiated grievance procedures, if such 
procedures apply and are available.

                      Whistleblower Protection Laws

    A Federal employee with authority to take, direct others to take, 
recommend or approve any personnel action must not use that authority to 
take or fail to take, or threaten to take or fail to take, a personnel 
action against an employee or applicant because of disclosure of 
information by that individual that is reasonably believed to evidence 
violations of law, rule or regulation; gross mismanagement; gross waste 
of funds; an abuse of authority; or a substantial and specific danger to 
public health or safety, unless disclosure of such information is 
specifically prohibited by law and such information is specifically 
required by Executive order to be kept secret in the interest of 
national defense or the conduct of foreign affairs.
    Retaliation against an employee or applicant for making a protected 
disclosure is prohibited by 5 U.S.C. 2302(b)(8). If you believe that you 
have been the victim of whistleblower retaliation, you may file a 
written complaint (Form OSC-11) with the U.S. Office of Special Counsel 
at 1730 M Street NW., Suite 218, Washington, DC 20036-4505 or online 
through the OSC Web site--http://www.osc.gov.

             Retaliation for Engaging in Protected Activity

    A Federal agency cannot retaliate against an employee or applicant 
because that individual exercises his or her rights under any of the 
Federal antidiscrimination or whistleblower protection laws listed 
above. If you believe that you are the victim of retaliation for 
engaging in protected activity, you must follow, as appropriate, the 
procedures described in the Antidiscrimination Laws and Whistleblower 
Protection Laws sections or, if applicable, the administrative or 
negotiated grievance procedures in order to pursue any legal remedy.

                          Disciplinary Actions

    Under the existing laws, each agency retains the right, where 
appropriate, to discipline a Federal employee for conduct that is 
inconsistent with Federal Antidiscrimination and Whistleblower 
Protection Laws up to and including removal. If OSC has initiated an 
investigation under 5 U.S.C. 1214, however, according to 5 U.S.C. 
1214(f), agencies must seek approval from the Special Counsel to 
discipline employees for, among other activities, engaging in prohibited 
retaliation. Nothing in the No FEAR Act alters existing laws or permits 
an agency to take unfounded disciplinary action against a Federal 
employee or to violate the procedural rights of a Federal employee who 
has been accused of discrimination

                         Additional Information

    For further information regarding the No FEAR Act regulations, refer 
to 5 CFR part 724, as well as the appropriate offices within your agency 
(e.g., EEO/civil rights office, human resources office or legal office). 
Additional information regarding Federal antidiscrimination, 
whistleblower protection and retaliation laws can be found at the EEOC 
Web site--http://www.eeoc.gov and the OSC Web site--http://www.osc.gov.

                        Existing Rights Unchanged

    Pursuant to section 205 of the No FEAR Act, neither the Act nor this 
notice creates, expands or reduces any rights otherwise available to any 
employee, former employee or applicant under the laws of the United 
States, including the provisions of law specified in 5 U.S.C. 2302(d).

[[Page 26]]



Sec. 724.203  Training obligations.

    (a) Each agency must develop a written plan to train all of its 
employees (including supervisors and managers) about the rights and 
remedies available under the Antidiscrimination Laws and Whistleblower 
Protection Laws applicable to them.
    (b) Each agency shall have the discretion to develop the 
instructional materials and method of its training plan. Each agency 
training plan shall describe:
    (1) The instructional materials and method of the training,
    (2) The training schedule, and
    (3) The means of documenting completion of training.
    (c) Each agency may contact EEOC and/or OSC for information and/or 
assistance regarding the agency's training program. Neither agency, 
however, shall have authority under this regulation to review or approve 
an agency's training plan.
    (d) Each agency is encouraged to implement its training as soon as 
possible, but required to complete the initial training under this 
subpart for all employees (including supervisors and managers) by 
December 17, 2006. Thereafter, each agency must train all employees on a 
training cycle of no longer than every 2 years.
    (e) After the initial training is completed, each agency must train 
new employees as part of its agency orientation program or other 
training program. Any agency that does not use a new employee 
orientation program for this purpose must train new employees within 90 
calendar days of the new employees' appointment.



                         Subpart C_Annual Report

    Source: 71 FR 78037, Dec. 28, 2006, unless otherwise noted.



Sec. 724.301  Purpose and scope.

    This subpart implements Title II of the Notification and Federal 
Employee Antidiscrimination and Retaliation Act of 2002 concerning the 
obligation of Federal agencies to report on specific topics concerning 
Federal Antidiscrimination Laws and Whistleblower Protection Laws 
applicable to them covering employees, former employees, and applicants 
for Federal employment.



Sec. 724.302  Reporting obligations.

    (a) Except as provided in paragraph (b) of this section, each agency 
must report no later than 180 calendar days after the end of each fiscal 
year the following items:
    (1) The number of cases in Federal court pending or resolved in each 
fiscal year and arising under each of the respective provisions of the 
Federal Antidiscrimination Laws and Whistleblower Protection Laws 
applicable to them as defined in Sec. 724.102 of subpart A of this part 
in which an employee, former Federal employee, or applicant alleged a 
violation(s) of these laws, separating data by the provision(s) of law 
involved;
    (2) In the aggregate, for the cases identified in paragraph (a)(1) 
of this section and separated by provision(s) of law involved:
    (i) The status or disposition (including settlement);
    (ii) The amount of money required to be reimbursed to the Judgment 
Fund by the agency for payments as defined in Sec. 724.102 of subpart A 
of this part;
    (iii) The amount of reimbursement to the Fund for attorney's fees 
where such fees have been separately designated;
    (3) In connection with cases identified in paragraph (a)(1) of this 
section, the total number of employees in each fiscal year disciplined 
as defined in Sec. 724.102 of subpart A of this part and the specific 
nature, e.g., reprimand, etc., of the disciplinary actions taken, 
separated by the provision(s) of law involved;
    (4) The final year-end data about discrimination complaints for each 
fiscal year that was posted in accordance with Equal Employment 
Opportunity Regulations at subpart G of title 29 of the Code of Federal 
Regulations (implementing section 301(c)(1)(B) of the No FEAR Act);
    (5) Whether or not in connection with cases in Federal court, the 
number of employees in each fiscal year disciplined as defined in Sec. 
724.102 of subpart A of this part in accordance with any agency policy 
described in paragraph (a)(6) of this section. The specific

[[Page 27]]

nature, e.g., reprimand, etc., of the disciplinary actions taken must be 
identified.
    (6) A detailed description of the agency's policy for taking 
disciplinary action against Federal employees for conduct that is 
inconsistent with Federal Antidiscrimination Laws and Whistleblower 
Protection Laws or for conduct that constitutes another prohibited 
personnel practice revealed in connection with agency investigations of 
alleged violations of these laws;
    (7) An analysis of the information provided in paragraphs (a)(1) 
through (6) of this section in conjunction with data provided to the 
Equal Employment Opportunity Commission in compliance with 29 CFR part 
1614 subpart F of the Code of Federal Regulations. Such analysis must 
include:
    (i) An examination of trends;
    (ii) Causal analysis;
    (iii) Practical knowledge gained through experience; and
    (iv) Any actions planned or taken to improve complaint or civil 
rights programs of the agency with the goal of eliminating 
discrimination and retaliation in the workplace;
    (8) For each fiscal year, any adjustment needed or made to the 
budget of the agency to comply with its Judgment Fund reimbursement 
obligation(s) incurred under Sec. 724.103 of subpart A of this part; 
and
    (9) The agency's written plan developed under Sec. 724.203(a) of 
subpart B of this part to train its employees.
    (b) The first report also must provide information for the data 
elements in paragraph (a) of this section for each of the five fiscal 
years preceding the fiscal year on which the first report is based to 
the extent that such data is available. Under the provisions of the No 
FEAR Act, the first report was due March 30, 2005 without regard to the 
status of the regulations. Thereafter, under the provisions of the No 
FEAR Act, agency reports are due annually on March 30th. Agencies that 
have submitted their reports before these regulations became final must 
ensure that they contain data elements 1 through 8 of paragraph (a) of 
this section and provide any necessary supplemental reports by April 25, 
2007. Future reports must include data elements 1 through 9 of paragraph 
(a) of this section.
    (c) Agencies must provide copies of each report to the following:
    (1) Speaker of the U.S. House of Representatives;
    (2) President Pro Tempore of the U.S. Senate;
    (3) Committee on Governmental Affairs, U.S. Senate;
    (4) Committee on Government Reform, U.S. House of Representatives;
    (5) Each Committee of Congress with jurisdiction relating to the 
agency;
    (6) Chair, Equal Employment Opportunity Commission;
    (7) Attorney General; and
    (8) Director, U.S. Office of Personnel Management.



                        Subpart D_Best Practices

    Source: 71 FR 78037, Dec. 28, 2006, unless otherwise noted.



Sec. 724.401  Purpose and scope.

    This subpart implements Title II of the Notification and Federal 
Employee Antidiscrimination and Retaliation Act of 2002 concerning the 
obligation of the President or his designee (OPM) to conduct a 
comprehensive study of best practices in the executive branch for taking 
disciplinary actions against employees for conduct that is inconsistent 
with Federal Antidiscrimination and Whistleblower Protection Laws and 
the obligation to issue advisory guidelines for agencies to follow in 
taking appropriate disciplinary actions in such circumstances.



Sec. 724.402  Best practices study.

    (a) OPM will conduct a comprehensive study in the executive branch 
to identify best practices for taking appropriate disciplinary actions 
against Federal employees for conduct that is inconsistent with Federal 
Antidiscrimination and Whistleblower Protection Laws.
    (b) The comprehensive study will include a review of agencies' 
discussions of their policies for taking such disciplinary actions as 
reported under Sec. 724.302 of subpart C of this part.

[[Page 28]]



Sec. 724.403  Advisory guidelines.

    OPM will issue advisory guidelines to Federal agencies incorporating 
the best practices identified under Sec. 724.402 that agencies may 
follow to take appropriate disciplinary actions against employees for 
conduct that is inconsistent with Federal Antidiscrimination Laws and 
Whistleblower Laws.



Sec. 724.404  Agency obligations.

    (a) Within 30 working days of issuance of the advisory guidelines 
required by Sec. 724.403, each agency must prepare a written statement 
describing in detail:
    (1) Whether it has adopted the guidelines and if it will fully 
follow the guidelines;
    (2) If such agency has not adopted the guidelines, the reasons for 
non-adoption; and
    (3) If such agency will not fully follow the guidelines, the reasons 
for the decision not to do so and an explanation of the extent to which 
the agency will not follow the guidelines.
    (b) Each agency's written statement must be provided within the time 
limit stated in paragraph (a) of this section to the following:
    (1) Speaker of the U.S. House of Representatives;
    (2) President Pro Tempore of the U.S. Senate;
    (3) Chair, Equal Employment Opportunity Commission;
    (4) Attorney General; and
    (5) Director, U.S. Office of Personnel Management.



PART 730_NOTIFICATION OF POST-EMPLOYMENT RESTRICTIONS--
Table of Contents



Sec.
730.101 Purpose.
730.102 Definitions.
730.103 Coverage.
730.104 Notification.
730.105 Savings provision.

    Authority: 5 U.S.C. 7302 and sec. 1125(b) of the National Defense 
Authorization Act for FY 2004, Pub. L. 108-136, 117 Stat. 1392.

    Source: 69 FR 61144, Oct. 15, 2004, unless otherwise noted.



Sec. 730.101  Purpose.

    This part implements 5 U.S.C. 7302, which requires agencies to 
provide written notice to senior executives and other individuals 
covered by 18 U.S.C. 207(c)(2)(A)(ii) that they are subject to certain 
post-employment conflict-of-interest restrictions in 18 U.S.C. 207(c).



Sec. 730.102  Definitions.

    Agency means an Executive agency as defined in 5 U.S.C. 105, but 
does not include the General Accounting Office.
    Senior executive means a member of the Senior Executive Service 
(SES).



Sec. 730.103  Coverage.

    (a) The following individuals are subject to the post-employment 
conflict-of-interest restrictions in 18 U.S.C. 207(c), as amended by 
section 1125(b)(1) of the National Defense Authorization Act for FY 
2004:
    (1) Any individual, including a senior executive, who is paid at a 
rate of basic pay equal to or greater than 86.5 percent of the rate for 
level II of the Executive Schedule; and
    (2) Any individual, including a senior executive, who as of November 
23, 2003, was paid at a rate of basic pay, exclusive of any locality-
based comparability payments under 5 U.S.C. 5304, equal to or greater 
than the rate of basic pay for level 5 of the Senior Executive Service 
on that date (i.e., $134,000). These employees are subject to the post-
employment restrictions through November 24, 2005, without regard to any 
subsequent changes in position or pay.
    (b) Nothing in this part affects individuals serving in positions 
described in 18 U.S.C. 207(c)(2)(A)(i), (iii), (iv), or (v).



Sec. 730.104  Notification.

    (a) Agencies must provide written notification to senior executives 
and other individuals covered by the amendment to 18 U.S.C. 
207(c)(2)(A)(ii) that they are subject to the post-employment conflict-
of-interest restrictions in 18 U.S.C. 207, before, or as part of, any 
personnel action that affects the employee's coverage under 18 U.S.C. 
207(c)(1), including when employment or service in a covered position is 
terminated. A copy of the written notice must be provided simultaneously 
to the Designated Agency Ethics Official (or his or her delegate). The

[[Page 29]]

written notice must include information on the applicable penalties or 
injunctions that may be imposed under 18 U.S.C. 216(a), (b), and (c) for 
violations of the post-employment restrictions in 18 U.S.C. 207(c). The 
notice also must indicate that employees covered by 18 U.S.C. 207(c) are 
subject to 18 U.S.C. 207(f), which imposes additional post-employment 
restrictions on representing, aiding, or advising certain foreign 
entities.
    (b) Notwithstanding paragraph (a) of this section, the post-
employment restrictions in 18 U.S.C. 207(c) apply to covered employees 
without regard to whether they receive written notice from their 
employing agency.



Sec. 730.105  Savings provision.

    Any post-employment restrictions established under 18 U.S.C. 207 and 
applicable prior to the first day of the first pay period beginning on 
or after January 1, 2004, remain in effect.



PART 731_SUITABILITY--Table of Contents



                             Subpart A_Scope

Sec.
731.101 Purpose.
731.102 Implementation.
731.103 Delegation to agencies.
731.104 Appointments subject to investigation.
731.105 Authority to take suitability actions.
731.106 Designation of public trust positions and investigative 
          requirements.

            Subpart B_Suitability Determinations and Actions

731.201 Standard.
731.202 Criteria for making suitability determinations.
731.203 Suitability actions by OPM and other agencies.
731.204 Debarment by OPM.
731.205 Debarment by agencies.
731.206 Reporting requirements.

               Subpart C_OPM Suitability Action Procedures

731.301 Scope.
731.302 Notice of proposed action.
731.303 Answer.
731.304 Decision.

             Subpart D_Agency Suitability Action Procedures

731.401 Scope.
731.402 Notice of proposed action.
731.403 Answer.
731.404 Decision.

         Subpart E_Appeal to the Merit Systems Protection Board

731.501 Appeal to the Merit Systems Protection Board.

                       Subpart F_Savings Provision

731.601 Savings provision.

    Authority: 5 U.S.C. 1302, 3301, 7301; E.O. 10577, E.O. 13467, 3 CFR, 
1954-1958 Comp., p. 218, as amended, 5 CFR, parts 1, 2 and 5.

    Source: 73 FR 20154, Apr. 15, 2008, unless otherwise noted.



                             Subpart A_Scope



Sec. 731.101  Purpose.

    (a) The purpose of this part is to establish criteria and procedures 
for making determinations of suitability and for taking suitability 
actions regarding employment in covered positions (as defined in 
paragraph (b) of this section) pursuant to 5 U.S.C. 3301, E.O. 10577 (3 
CFR, 1954-1958 Comp., p. 218), as amended, and 5 CFR 1.1, 2.1(a) and 
5.2. Section 3301 of title 5, United States Code, directs consideration 
of ``age, health, character, knowledge, and ability for the employment 
sought.'' E.O. 10577 (codified in relevant part at 5 CFR 1.1, 2.1(a) and 
5.2) directs OPM to examine ``suitability'' for competitive Federal 
employment. This part concerns only determinations of ``suitability,'' 
that is, those determinations based on a person's character or conduct 
that may have an impact on the integrity or efficiency of the service. 
Determinations made and actions taken under this part are distinct from 
objections to eligibles or pass overs of preference eligibles, and OPM's 
and agencies' decisions on such requests, made under 5 U.S.C. 3318 and 5 
CFR 332.406, as well as determinations of eligibility for assignment to, 
or retention in, sensitive national security positions made under E.O. 
10450 (3 CFR, 1949-1953 Comp., p. 936), E.O. 12968, or similar 
authorities.
    (b) Definitions. In this part:

[[Page 30]]

    Applicant means a person who is being considered or has been 
considered for employment.
    Appointee means a person who has entered on duty and is in the first 
year of a subject-to-investigation appointment (as defined in Sec. 
731.104).
    Core Duty means a continuing responsibility that is of particular 
importance to the relevant covered position or the achievement of an 
agency's mission.
    Covered position means a position in the competitive service, a 
position in the excepted service where the incumbent can be 
noncompetitively converted to the competitive service, and a career 
appointment to a position in the Senior Executive Service.
    Days means calendar days unless otherwise specified in this part.
    Employee means a person who has completed the first year of a 
subject-to-investigation appointment.
    Material means, in reference to a statement, one that is capable of 
influencing, affects, or has a natural tendency to affect, an official 
decision even if OPM or an agency does not rely upon it.
    Suitability action means an outcome described in Sec. 731.203 and 
may be taken only by OPM or an agency with delegated authority under the 
procedures in subparts C and D of this part.
    Suitability determination means a decision by OPM or an agency with 
delegated authority that a person is suitable or is not suitable for 
employment in covered positions in the Federal Government or a specific 
Federal agency.

[73 FR 20154, Apr. 15, 2008, as amended at 73 FR 66492, Nov. 10, 2008]



Sec. 731.102  Implementation.

    (a) An investigation conducted for the purpose of determining 
suitability under this part may not be used for any other purpose except 
as provided in a Privacy Act system of records notice published by the 
agency conducting the investigation.
    (b) Under OMB Circular No. A-130 Revised, issued November 20, 2000, 
agencies are to implement and maintain a program to ensure that adequate 
protection is provided for all automated information systems. Agency 
personnel screening programs may be based on procedures developed by 
OPM. The Computer Security Act of 1987 (Pub. L. 100-235) provides 
additional requirements for Federal automated information systems.
    (c) OPM may set forth policies, procedures, criteria, standards, 
quality control procedures, and supplementary guidance for the 
implementation of this part in OPM issuances.



Sec. 731.103  Delegation to agencies.

    (a) Subject to the limitations and requirements of paragraphs (f) 
and (g) of this section, OPM delegates to the heads of agencies 
authority for making suitability determinations and taking suitability 
actions (including limited, agency-specific debarments under Sec. 
731.205) in cases involving applicants for and appointees to covered 
positions in the agency.
    (b) When an agency, acting under delegated authority from OPM, 
determines that a Governmentwide debarment by OPM under Sec. 731.204(a) 
may be an appropriate action, it must refer the case to OPM for 
debarment consideration. Agencies must make these referrals prior to any 
proposed suitability action, but only after sufficient resolution of the 
suitability issue(s), through subject contact or investigation, to 
determine if a Governmentwide debarment appears warranted.
    (c) Agencies exercising authority under this part by delegation from 
OPM must adhere to OPM requirements as stated in this part and OPM's 
issuances described in Sec. 731.102(c). Agencies must also implement 
policies and maintain records demonstrating that they employ reasonable 
methods to ensure adherence to these OPM issuances.
    (d) Agencies may begin to determine an applicant's suitability at 
any time during the hiring process. Because suitability issues may not 
arise until late in the application/appointment process, it is generally 
more practical and cost-effective to first ensure that the applicant is 
eligible for the position, deemed by OPM or a Delegated Examining Unit 
to be among the best qualified, and/or within reach of selection. 
However, in certain circumstances, such as filling law enforcement 
positions, an agency may choose to initiate

[[Page 31]]

a preliminary suitability review at the time of application. Whether or 
not a person is likely to be eligible for selection, OPM must be 
informed in all cases where there is evidence of material, intentional 
false statements, or deception or fraud in examination or appointment, 
and OPM will take a suitability action where warranted.
    (e) When an agency, exercising authority under this part by 
delegation from OPM, makes a suitability determination or changes a 
tentative favorable placement decision to an unfavorable decision, based 
on an OPM report of investigation or upon an investigation conducted 
pursuant to OPM-delegated authority, the agency must:
    (1) Ensure that the records used in making the determination are 
accurate, relevant, timely, and complete to the extent reasonably 
necessary to ensure fairness to the person in any determination;
    (2) Ensure that all applicable administrative procedural 
requirements provided by law, the regulations in this part, and OPM 
issuances as described in Sec. 731.102(c) have been observed;
    (3) Consider all available information in reaching its final 
decision on a suitability determination or suitability action, except 
information furnished by a non-corroborated confidential source, which 
may be used only for limited purposes, such as information used to 
develop a lead or in interrogatories to a subject, if the identity of 
the source is not compromised in any way; and
    (4) Keep any record of the agency suitability determination or 
action as required by OPM issuances as described in Sec. 731.102(c).
    (f) OPM may revoke an agency's delegation to make suitability 
determinations and take suitability actions under this part if an agency 
fails to conform to this part or OPM issuances as described in Sec. 
731.102(c).
    (g) OPM retains jurisdiction to make final determinations and take 
actions in all suitability cases where there is evidence that there has 
been a material, intentional false statement, or deception or fraud in 
examination or appointment. OPM also retains jurisdiction over all 
suitability cases involving a refusal to furnish testimony as required 
by Sec. 5.4 of this chapter. Agencies must refer these cases to OPM for 
suitability determinations and suitability actions under this authority. 
Although no prior approval is needed, notification to OPM is required if 
the agency wants to take, or has taken, action under its own authority 
(5 CFR part 315, 5 CFR part 359, or 5 CFR part 752) in cases involving 
material, intentional false statement in examination or appointment, or 
deception or fraud in examination or appointment; or refusal to furnish 
testimony as required by Sec. 5.4 of this title. In addition, paragraph 
(a) of this section notwithstanding, OPM may, in its discretion, 
exercise its jurisdiction under this part in any case it deems 
necessary.



Sec. 731.104  Appointments subject to investigation.

    (a) To establish a person's suitability for employment, appointments 
to covered positions identified in Sec. 731.101 require the person to 
undergo an investigation by OPM or by an agency with delegated authority 
from OPM to conduct investigations. However, except as provided in 
paragraph (b)(2), an appointment will not be subject to investigation 
when the person being appointed has undergone a background investigation 
and the appointment involves:
    (1) Appointment or conversion to an appointment in a covered 
position if the person has been serving continuously with the agency for 
at least 1 year in one or more covered positions subject to 
investigation;
    (2) Transfer to a covered position, provided the person has been 
serving continuously for at least 1 year in a covered position subject 
to investigation;
    (3) Transfer or appointment from an excepted service position that 
is not a covered position to a covered position, provided the person has 
been serving continuously for at least 1 year in a position where the 
person has been determined fit for appointment based on criteria 
equivalent to the factors provided at 5 CFR 731.202; or
    (4) Appointment to a covered position from a position as an employee 
working as a Federal Government contract employee, provided the person 
has been serving continuously for at least 1 year

[[Page 32]]

in a job where a Federal agency determined the contract employee was fit 
to perform work on the contract based on criteria equivalent to the 
factors provided at 5 CFR 731.202.
    (b)(1) Either OPM or an agency with delegated suitability authority 
may investigate and take a suitability action against an applicant, 
appointee, or employee in accordance with Sec. 731.105. There is no 
time limit on the authority of OPM or an agency with delegated 
suitability authority to conduct the required investigation of an 
applicant who has been appointed to a position. An employee does not 
have to serve a new probationary or trial period merely because his or 
her appointment is subject to investigation under this section. An 
employee's probationary or trial period is not extended because his or 
her appointment is subject to investigation under this section.
    (2) An appointment to a covered position also will be subject to 
investigation when:
    (i) The covered position requires a higher level of investigation 
than previously conducted for the person being appointed; or
    (ii) An agency obtains new information in connection with the 
person's appointment that calls into question the person's suitability 
under Sec. 731.202;
    (3) Suitability determinations must be made for all appointments 
that are subject to investigation.
    (c) Positions that are intermittent, seasonal, per diem, or 
temporary, not to exceed an aggregate of 180 days per year in either a 
single continuous appointment or series of appointments, do not require 
a background investigation as described in Sec. 731.106(c)(1). The 
employing agency, however, must conduct such checks as it deems 
appropriate to ensure the suitability of the person.
    (d) Reinvestigation requirements under Sec. 731.106 for public 
trust positions are not affected by this section.
    (e) For purposes of this section, ``criteria equivalent to the 
factors provided at 5 CFR 731.202'' are criteria that provide adequate 
assurance that the person to be appointed, converted to an appointment, 
or transferred is suitable to be employed in a covered position, as 
determined by OPM, in issuances under this regulation. A decision by 
OPM, or by an agency applying guidance from OPM, that a prior fitness 
determination was not based on criteria equivalent to the factors 
provided at 5 CFR 731.202, and that a new investigation or adjudication 
is necessary is not subject to review under section 731.501 of this 
part.

[73 FR 20154, Apr. 15, 2008, as amended at 73 FR 66492, Nov. 11, 2008]



Sec. 731.105  Authority to take suitability actions.

    (a) Neither OPM nor an agency acting under delegated authority may 
take a suitability action in connection with any application for, or 
appointment to, a position that is not subject to investigation or check 
under Sec. 731.104.
    (b) OPM may take a suitability action under this part against an 
applicant or appointee based on any of the criteria of Sec. 731.202;
    (c) Except as limited by Sec. 731.103(g), an agency, exercising 
delegated authority, may take a suitability action under this part 
against an applicant or appointee based on the criteria of Sec. 
731.202;
    (d) OPM may take a suitability action under this part against an 
employee based on the criteria of Sec. 731.202(b)(3), (4), or (8).
    (e) An agency may not take a suitability action against an employee. 
Nothing in this part precludes an agency from taking an adverse action 
against an employee under the procedures and standards of part 752 of 
this chapter or terminating a probationary employee under the procedures 
of part 315 or part 359 of this chapter. An agency must notify OPM to 
the extent required in Sec. 731.103(g) if it wants to take, or has 
taken, action under these authorities.



Sec. 731.106  Designation of public trust positions and investigative
requirements.

    (a) Risk designation. Agency heads must designate every covered 
position within the agency at a high, moderate, or low risk level as 
determined by the position's potential for adverse impact to the 
efficiency or integrity of the service. OPM will provide an example

[[Page 33]]

of a risk designation system for agency use in an OPM issuance as 
described in Sec. 731.102(c).
    (b) Public Trust positions. Positions at the high or moderate risk 
levels would normally be designated as ``Public Trust'' positions. Such 
positions may involve policy making, major program responsibility, 
public safety and health, law enforcement duties, fiduciary 
responsibilities or other duties demanding a significant degree of 
public trust, and positions involving access to or operation or control 
of financial records, with a significant risk for causing damage or 
realizing personal gain.
    (c) Investigative requirements. (1) Persons receiving an appointment 
made subject to investigation under this part must undergo a background 
investigation. OPM is authorized to establish minimum investigative 
requirements correlating to risk levels. Investigations should be 
initiated before appointment but no later than 14 calendar days after 
placement in the position.
    (2) All positions subject to investigation under this part must also 
receive a sensitivity designation of Special-Sensitive, Critical-
Sensitive, or Noncritical-Sensitive, when appropriate. This designation 
is complementary to the risk designation, and may have an effect on the 
position's investigative requirement. Sections 732.201 and 732.202 of 
this chapter detail the various sensitivity levels and investigative 
requirements. Procedures for determining investigative requirements for 
all positions based upon risk and sensitivity will be published in OPM 
issuances, as described in Sec. Sec. 731.102(c) and 732.201(b).
    (3) If suitability issues develop prior to the required 
investigation, OPM or the agency may conduct an investigation sufficient 
to resolve the issues and support a suitability determination or action, 
if warranted. If the person is appointed, the minimum level of 
investigation must be conducted as required by paragraph (c)(1) of this 
section.
    (d) Suitability reinvestigations. Agencies, relying on authorities 
such as the Computer Security Act of 1987 and OMB Circular No. A-130 
Revised (issued November 20, 2000), may require incumbents of certain 
public trust positions to undergo periodic reinvestigations. The 
appropriate level of any reinvestigation will be determined by the 
agency, but may be based on supplemental guidance provided by OPM.
    (e) Risk level changes. If an employee experiences a change to a 
higher position risk level due to promotion, demotion, or reassignment, 
or the risk level of the employee's position is changed to a higher 
level, the employee may remain in or encumber the position. Any upgrade 
in the investigation required for the new risk level should be initiated 
within 14 calendar days after the promotion, demotion, reassignment or 
new designation of risk level is final.
    (f) Completed investigations. Any suitability investigation 
completed by an agency under provisions of paragraph (d) of this section 
must result in a determination by the employing agency. The subject's 
employment status (i.e., applicant, appointee, or employee as defined in 
Sec. 731.101) will determine the applicable agency authority and 
procedures to be followed in any action taken.

[73 FR 20154, Apr. 15, 2008, as amended at 73 FR 66492, Nov. 11, 2008]



            Subpart B_Suitability Determinations and Actions



Sec. 731.201  Standard.

    The standard for a suitability action defined in Sec. 731.203 and 
taken against an applicant, appointee, or employee is that the action 
will protect the integrity or promote the efficiency of the service.



Sec. 731.202  Criteria for making suitability determinations.

    (a) General. OPM, or an agency to which OPM has delegated authority, 
must base its suitability determination on the presence or absence of 
one or more of the specific factors (charges) in paragraph (b) of this 
section.
    (b) Specific factors. In determining whether a person is suitable 
for Federal employment, only the following factors will be considered a 
basis for finding a person unsuitable and taking a suitability action:

[[Page 34]]

    (1) Misconduct or negligence in employment;
    (2) Criminal or dishonest conduct;
    (3) Material, intentional false statement, or deception or fraud in 
examination or appointment;
    (4) Refusal to furnish testimony as required by Sec. 5.4 of this 
chapter;
    (5) Alcohol abuse, without evidence of substantial rehabilitation, 
of a nature and duration that suggests that the applicant or appointee 
would be prevented from performing the duties of the position in 
question, or would constitute a direct threat to the property or safety 
of the applicant or appointee or others;
    (6) Illegal use of narcotics, drugs, or other controlled substances 
without evidence of substantial rehabilitation;
    (7) Knowing and willful engagement in acts or activities designed to 
overthrow the U.S. Government by force; and
    (8) Any statutory or regulatory bar which prevents the lawful 
employment of the person involved in the position in question.
    (c) Additional considerations. OPM and agencies must consider any of 
the following additional considerations to the extent OPM or the 
relevant agency, in its sole discretion, deems any of them pertinent to 
the individual case:
    (1) The nature of the position for which the person is applying or 
in which the person is employed;
    (2) The nature and seriousness of the conduct;
    (3) The circumstances surrounding the conduct;
    (4) The recency of the conduct;
    (5) The age of the person involved at the time of the conduct;
    (6) Contributing societal conditions; and
    (7) The absence or presence of rehabilitation or efforts toward 
rehabilitation.
    (d) Reciprocity. An agency cannot make a new determination under 
this section for a person who has already been determined suitable or 
fit based on character or conduct unless a new investigation is required 
under Sec. 731.104 or Sec. 731.106, or no new investigation is 
required but the investigative record on file for the person shows 
conduct that is incompatible with the core duties of the relevant 
covered position.

[73 FR 20154, Apr. 15, 2008, as amended at 73 FR 66493, Nov. 11, 2008]



Sec. 731.203  Suitability actions by OPM and other agencies.

    (a) For purposes of this part, a suitability action is one or more 
of the following:
    (1) Cancellation of eligibility;
    (2) Removal;
    (3) Cancellation of reinstatement eligibility; and
    (4) Debarment.
    (b) A non-selection, or cancellation of eligibility for a specific 
position based on an objection to an eligible or pass over of a 
preference eligible under 5 CFR 332.406, is not a suitability action 
even if it is based on reasons set forth in Sec. 731.202.
    (c) A suitability action may be taken against an applicant or an 
appointee when OPM or an agency exercising delegated authority under 
this part finds that the applicant or appointee is unsuitable for the 
reasons cited in Sec. 731.202, subject to the agency limitations of 
Sec. 731.103(g).
    (d) OPM may require that an appointee or an employee be removed on 
the basis of a material, intentional false statement, deception or fraud 
in examination or appointment; refusal to furnish testimony as required 
by Sec. 5.4 of this chapter; or a statutory or regulatory bar which 
prevents the person's lawful employment.
    (e) OPM may cancel any reinstatement eligibility obtained as a 
result of a material, intentional false statement, deception or fraud in 
examination or appointment.
    (f) An action to remove an appointee or employee for suitability 
reasons under this part is not an action under part 315, 359, or 752 of 
this chapter. Where behavior covered by this part may also form the 
basis for an action under parts 315, 359, or 752 of this chapter, an 
agency may take the action under part 315, 359, or 752 of this chapter, 
as appropriate, instead of under this part. An agency must notify OPM to 
the extent required in Sec. 731.103(g) if it wants to take, or has 
taken, action under these authorities.

[[Page 35]]

    (g) Agencies do not need approval from OPM before taking unfavorable 
suitability actions. However, they are required to report to OPM all 
unfavorable suitability actions taken under this part within 30 days 
after they take the action. Also, all actions based on an OPM 
investigation must be reported to OPM as soon as possible and in no 
event later than 90 days after receipt of the final report of 
investigation.



Sec. 731.204  Debarment by OPM.

    (a) When OPM finds a person unsuitable for any reason listed in 
Sec. 731.202, OPM, in its discretion, may, for a period of not more 
than 3 years from the date of the unfavorable suitability determination, 
deny that person examination for, and appointment to, covered positions.
    (b) OPM may impose an additional period of debarment following the 
expiration of a period of OPM or agency debarment, but only after the 
person again becomes an applicant, appointee, or employee subject to 
OPM's suitability jurisdiction, and his or her suitability is determined 
in accordance with the procedures of this part. An additional debarment 
period may be based in whole or in part on the same conduct on which the 
previous suitability action was based, when warranted, or new conduct.
    (c) OPM, in its sole discretion, determines the duration of any 
period of debarment imposed under this section.



Sec. 731.205  Debarment by agencies.

    (a) Subject to the provisions of Sec. 731.103, when an agency finds 
an applicant or appointee unsuitable based upon reasons listed in Sec. 
731.202, the agency may, for a period of not more than 3 years from the 
date of the unfavorable suitability determination, deny that person 
examination for, and appointment to, either all, or specific covered, 
positions within that agency.
    (b) The agency may impose an additional period of debarment 
following the expiration of a period of OPM or agency debarment, but 
only after the person again becomes an applicant or appointee subject to 
the agency's suitability jurisdiction, and his or her suitability is 
determined in accordance with the procedures of this part. An additional 
debarment period may be based in whole or in part on the same conduct on 
which the previous suitability action was based, when warranted, or new 
conduct.
    (c) The agency, in its sole discretion, determines the duration of 
any period of debarment imposed under this section.
    (d) The agency is responsible for enforcing the period of debarment 
and taking appropriate action if a person applies for, or is 
inappropriately appointed to, a position at that agency during the 
debarment period. This responsibility does not limit OPM's authority to 
exercise jurisdiction itself and take any action OPM deems appropriate.



Sec. 731.206  Reporting requirements.

    Agencies must report to OPM the level and result of each background 
investigation, suitability determination, and suitability action taken 
under this part, as required in OPM issuances.

[73 FR 66493, Nov. 11, 2008]



               Subpart C_OPM Suitability Action Procedures



Sec. 731.301  Scope.

    This subpart covers OPM-initiated suitability actions against an 
applicant, appointee, or employee.



Sec. 731.302  Notice of proposed action.

    (a) OPM will notify the applicant, appointee, or employee 
(hereinafter, the ``respondent'') in writing of the proposed action, the 
charges against the respondent, and the availability of review, upon 
request, of the materials relied upon. The notice will set forth the 
specific reasons for the proposed action and state that the respondent 
has the right to answer the notice in writing. The notice will further 
inform the respondent of the time limit for the answer as well as the 
address to which an answer must be made.
    (b) The notice will inform the respondent that he or she may be 
represented by a representative of the respondent's choice and that if 
the respondent wishes to have such a representative, the respondent must 
designate the representative in writing.

[[Page 36]]

    (c) OPM will serve the notice of proposed action upon the respondent 
by mail or hand delivery no less than 30 days prior to the effective 
date of the proposed action to the respondent's last known residence or 
duty station.
    (d) If the respondent encumbers a position covered by this part on 
the date the notice is served, the respondent is entitled to be retained 
in a pay status during the notice period.
    (e) OPM will send a copy of the notice to any employing agency that 
is involved.



Sec. 731.303  Answer.

    (a) Respondent's answer. A respondent may answer the charges in 
writing and furnish documentation and/or affidavits in support of the 
answer. To be timely, a written answer must be submitted no more than 30 
days after the date of the notice of proposed action.
    (b) Agency's answer. An employing agency may also answer the notice 
of proposed action. The time limit for filing such an answer is 30 days 
from the date of the notice. In reaching a decision, OPM will consider 
any answer the agency makes.



Sec. 731.304  Decision.

    The decision regarding the final suitability action will be in 
writing, be dated, and inform the respondent of the reasons for the 
decision and that an unfavorable decision may be appealed in accordance 
with subpart E of this part. OPM will also notify the respondent's 
employing agency of its decision. If the decision requires removal, the 
employing agency must remove the appointee or employee from the rolls 
within 5 work days of receipt of OPM's final decision.



             Subpart D_Agency Suitability Action Procedures



Sec. 731.401  Scope.

    This subpart covers agency-initiated suitability actions against an 
applicant or appointee.



Sec. 731.402  Notice of proposed action.

    (a) The agency must notify the applicant or appointee (hereinafter, 
the ``respondent'') in writing of the proposed action, the charges 
against the respondent, and the availability for review, upon request, 
of the materials relied upon. The notice must set forth the specific 
reasons for the proposed action and state that the respondent has the 
right to answer the notice in writing. The notice must further inform 
the respondent of the time limit for the answer as well as the address 
to which such answer must be delivered.
    (b) The notice must inform the respondent that he or she may be 
represented by a representative of the respondent's choice and that if 
the respondent wishes to have such a representative, the respondent must 
designate the representative in writing.
    (c) The agency must serve the notice of proposed action upon the 
respondent by mail or hand delivery no less than 30 days prior to the 
effective date of the proposed action to the respondent's last known 
residence or duty station.
    (d) If the respondent is employed in a position covered by this part 
on the date the notice is served, the respondent is entitled to be 
retained in a pay status during the notice period.



Sec. 731.403  Answer.

    A respondent may answer the charges in writing and furnish 
documentation and/or affidavits in support of the answer. To be timely, 
a written answer must be submitted no more than 30 days after the date 
of the notice of proposed action.



Sec. 731.404  Decision.

    The decision regarding the final action must be in writing, be 
dated, and inform the respondent of the reasons for the decision and 
that an unfavorable decision may be appealed in accordance with subpart 
E of this part. If the decision requires removal, the employing agency 
must remove the appointee from the rolls within 5 work days of the 
agency's decision.



         Subpart E_Appeal to the Merit Systems Protection Board



Sec. 731.501  Appeal to the Merit Systems Protection Board.

    (a) Appeal to the Merit Systems Protection Board. When OPM or an 
agency acting under delegated authority under

[[Page 37]]

this part takes a suitability action against a person, that person may 
appeal the action to the Merit Systems Protection Board (hereinafter 
``Board'').
    (b) Decisions by the Merit Systems Protection Board. (1) If the 
Board finds that one or more of the charges brought by OPM or an agency 
against the person is supported by a preponderance of the evidence, 
regardless of whether all specifications are sustained, it must affirm 
the suitability determination. The Board must consider the record as a 
whole and make a finding on each charge and specification in making its 
decision.
    (2) If the Board sustains fewer than all the charges, the Board must 
remand the case to OPM or the agency to determine whether the 
suitability action taken is appropriate based on the sustained 
charge(s). However, the agency must hold in abeyance a decision on 
remand until the person has exhausted all rights to seek review of the 
Board's decision, including court review.
    (3) Once review is final, OPM or an agency will determine whether 
the action taken is appropriate based on the sustained charges and this 
determination will be final without any further appeal to the Board.
    (c) Appeal procedures. The procedures for filing an appeal with the 
Board are found at part 1201 of this title.



                       Subpart F_Savings Provision



Sec. 731.601  Savings provision.

    No provision of the regulations in this part is to be applied in 
such a way as to affect any administrative proceeding pending on June 
16, 2008. An administrative proceeding is deemed to be pending from the 
date of the agency or OPM ``notice of proposed action'' described in 
Sec. Sec. 731.302 and 731.402.



PART 732_NATIONAL SECURITY POSITIONS--Table of Contents



                             Subpart A_Scope

Sec.
732.101 Purpose.
732.102 Definition and applicability.

          Subpart B_Designation and Investigative Requirements

732.201 Sensitivity level designations and investigative requirements.
732.202 Waivers and exceptions to investigative requirements.
732.203 Periodic reinvestigation requirements.

                   Subpart C_Due Process and Reporting

732.301 Due process.
732.302 Reporting to OPM.

              Subpart D_Security and Related Determinations

732.401 Reemployment eligibility of certain former Federal employees.

    Authority: 5 U.S.C. 3301, 3302, 7312; 50 U.S.C. 403; E.O. 10450, 3 
CFR, 1949-1953 Comp., p. 936.

    Source: 56 FR 18654, Apr. 23, 1991, unless otherwise noted.



                             Subpart A_Scope



Sec. 732.101  Purpose.

    This part sets forth certain requirements and procedures which each 
agency shall observe for determining national security positions 
pursuant to Executive Order 10450--Security Requirements for Government 
Employment (April 27, 1953), 18 FR 2489, 3 CFR 1949-1953 Comp., p. 936, 
as amended.



Sec. 732.102  Definition and applicability.

    (a) For purposes of this part, the term ``national security 
position'' includes:
    (1) Those positions that involve activities of the Government that 
are concerned with the protection of the nation from foreign aggression 
or espionage, including development of defense plans or policies, 
intelligence or counterintelligence activities, and related activities 
concerned with the preservation of the military strength of the United 
States; and
    (2) Positions that require regular use of, or access to, classified 
information. Procedures and guidance provided in OPM issuances apply.
    (b) The requirements of this part apply to competitive service 
positions, and to Senior Executive Service positions filled by career 
appointment,

[[Page 38]]

within the Executive Branch, and agencies may apply them to excepted 
service positions within the Executive Branch.

[56 FR 18654, Apr. 23, 1991, as amended at 66 FR 66711, Dec. 27, 2001]



          Subpart B_Designation and Investigative Requirements



Sec. 732.201  Sensitivity level designations and investigative
requirements.

    (a) For purposes of this part, the head of each agency shall 
designate, or cause to be designated, any position within the department 
or agency the occupant of which could bring about, by virtue of the 
nature of the position, a material adverse effect on the national 
security as a sensitive position at one of three sensitivity levels: 
Special-Sensitive, Critical-Sensitive, or Noncritical-Sensitive.
    (b) Investigative requirements for each sensitivity level are 
provided in OPM issuances.

[56 FR 18654, Apr. 23, 1991, as amended at 66 FR 66711, Dec. 27, 2001]



Sec. 732.202  Waivers and exceptions to investigative requirements.

    (a) Waivers--(1) General. A waiver of the preappointment 
investigative requirement contained in section 3(b) of Executive Order 
10450 for employment in a sensitive national security position may be 
made only for a limited period: (i) In case of emergency if the head of 
the department or agency concerned finds that such action is necessary 
in the national interest; and (ii) when such finding is made a part of 
the records of the department or agency.
    (2) Specific waiver requirements. (i) The preappointment 
investigative requirement may not be waived for appointment to positions 
designated Special-Sensitive under this part.
    (ii) For positions designated Critical-Sensitive under this part, 
the records of the department or agency required by Sec. 732.202(a)(1) 
of this part shall show what decision was made on obtaining prewaiver 
checks, as follows: (A) The nature of the emergency precluded obtaining 
prewaiver checks; or (B) checks were initiated but not all responses 
were received within 5 days; or (C) checks made and favorably completed 
are listed.
    (iii) The waiver restriction is optional for positions designated 
Noncritical-Sensitive under this part.
    (iv) When waiver is authorized, the required investigation must be 
initiated within 14 days of placement of the individual in the position.
    (b) Exceptions to investigative requirements. (1) Pursuant to 
section 3(a) of E.O. 10450, the following positions are exempt from the 
investigative requirements of E.O. 10450, providing that the employing 
agency conducts such checks as it deems appropriate to insure that the 
employment or retention of individuals in these positions is clearly 
consistent with the interests of the national security:
    (i) Positions that are intermittent, seasonal, per diem, or 
temporary, not to exceed an aggregate of 180 days in either a single 
continuous appointment or series of appointments; or
    (ii) Positions filled by aliens employed outside the United States.
    (2) Other positions that OPM, in its discretion, deems appropriate 
may be made exempt based on a written request to OPM by the agency head 
in whose department or agency the positions are located.



Sec. 732.203  Periodic reinvestigation requirements.

    The incumbent of each position designated Special-Sensitive or 
Critical-Sensitive under this part shall be subject to periodic 
reinvestigation of a scope prescribed by OPM 5 years after placement, 
and at least once each succeeding 5 years. The employing agency will use 
the results of such periodic reinvestigation to determine whether the 
continued employment of the individual in a sensitive position is 
clearly consistent with the interests of the national security.



                   Subpart C_Due Process and Reporting



Sec. 732.301  Due process.

    When an agency makes an adjudicative decision under this part based 
on an OPM investigation, or when an agency, as a result of information 
in an OPM investigation, changes a tentative

[[Page 39]]

favorable placement or clearance decision to an unfavorable decision, 
the agency must:
    (a) Insure that the records used in making the decision are 
accurate, relevant, timely, and complete to the extent reasonably 
necessary to assure fairness to the individual in any determination.
    (b) Comply with all applicable administrative due process 
requirements, as provided by law, rule, or regulation.
    (c) At a minimum, provide the individual concerned:
    (1) Notice of the specific reason(s) for the decision; and
    (2) An opportunity to respond; and
    (3) Notice of appeal rights, if any.
    (d) Consider all available information in reaching its final 
decision.
    (e) Keep any record of the agency action required by OPM as 
published in its issuances.

[56 FR 18654, Apr. 23, 1991, as amended at 66 FR 66711, Dec. 27, 2001]



Sec. 732.302  Reporting to OPM.

    (a) In accordance with section 9(a) of E.O. 10450, each agency 
conducting an investigation under E.O. 10450 is required to notify OPM 
when the investigation is initiated.
    (b) In accordance with section 14(c) of E.O. 10450, agencies shall 
report to OPM the action taken with respect to individuals investigated 
pursuant to E.O. 10450 as soon as possible and in no event later than 90 
days after receipt of the final report of investigation.



              Subpart D_Security and Related Determinations



Sec. 732.401  Reemployment eligibility of certain former 
Federal employees.

    (a) Request. A former employee who was terminated, or who resigned 
while charges were pending, from a department or agency of the 
Government under a statute or executive order authorizing termination in 
the interest of national security or on grounds relating to loyalty, and 
authorizing OPM to determine the eligibility for employment in another 
department or agency of the Government, may request OPM in writing to 
determine whether the individual is eligible for employment in another 
department or agency of the Government.
    (b) Action by OPM. (1) OPM shall determine, and will notify the 
former employee, after appropriate consideration of the case, including 
such investigation as it considers necessary, whether the individual may 
be employed in another department or agency of the Government.
    (2) If a former Federal employee found ineligible under this section 
has had an opportunity to comment on the reasons for the action, or has 
furnished them to OPM or to the former employing agency, OPM may cancel 
the reinstatement eligibility if the eligibility resulted from the last 
Federal employment and was obtained through fraud, and OPM may prescribe 
a period of debarment not to exceed 3 years.



PART 733_POLITICAL ACTIVITY_FEDERAL EMPLOYEES RESIDING IN DESIGNATED
LOCALITIES--Table of Contents



Sec.
733.101 Definitions.
733.102 Exclusion of employees in the Criminal Division of the United 
          States Department of Justice.
733.103 Permitted political activities--employees who reside in 
          designated localities.
733.104 Prohibited political activities--employees who reside in 
          designated localities.
733.105 Permitted political activities--employees who reside in 
          designated localities and are employed in certain agencies and 
          positions.
733.106 Prohibited political activities--employees who reside in 
          designated localities and are employed in certain agencies and 
          positions.
733.107 Designated localities.

    Authority: 5 U.S.C. 7325; sec. 308 of Pub. L. 104-93, 109 Stat. 961, 
966 (Jan. 6, 1996).

    Source: 63 FR 4558, Jan. 30, 1998, unless otherwise noted.



Sec. 733.101  Definitions.

    In this part:
    Accept means to come into possession of something from a person 
officially on behalf of a candidate, a campaign, a political party, or a 
partisan political group, but does not include ministerial activities 
which precede or follow this official act.

[[Page 40]]

    Candidate means an individual who seeks nomination or election to 
any elective office whether or not the person is elected. An individual 
is deemed to be a candidate if the individual has received political 
contributions or made expenditures or has consented to another person 
receiving contributions or making expenditures with a view to bringing 
about the individual's nomination or election.
    Campaign means all acts done by a candidate and his or her adherents 
to obtain a majority or plurality of the votes to be cast toward a 
nomination or in an election.
    Election includes a primary, special, runoff, or general election.
    Employee means:
    Any individual (other than the President, the Vice President, or a 
member of the uniformed services) employed or holding office in--
    (1) An Executive agency other than the General Accounting Office;
    (2) A position within the competitive service which is not in an 
Executive agency;
    (3) The government of the District of Columbia, other than the Mayor 
or a member of the City Council or the Recorder of Deeds; or
    (4) The United States Postal Service or the Postal Rate Commission.
    On Duty means the period when an employee is:
    (1) In a pay status other than paid leave, compensatory time off, 
credit hours, time off as an incentive award, or excused or authorized 
absence (including leave without pay); or
    (2) Representing any agency or instrumentality of the United States 
Government or any agency or instrumentality of the District of Columbia 
Government in an official capacity.
    Partisan when used as an adjective means related to a political 
party.
    Partisan political group means any committee, club, or other 
organization which is affiliated with a political party or candidate for 
public office in a partisan election, or organized for a partisan 
purpose, or which engages in partisan political activity.
    Partisan political office means any office for which any candidate 
is nominated or elected as representing a party any of whose candidates 
for Presidential elector received votes in the last preceding election 
at which Presidential electors were selected, but does not include any 
office or position within a political party or affiliated organization.
    Person means an individual; a State, local, or foreign government; 
or a corporation and the subsidiaries it controls, company, association, 
firm, partnership, society, joint stock company, or any other 
organization or institution, including any officer, employee, or agent 
of such person or entity.
    Political activity means an activity directed toward the success or 
failure of a political party, candidate for partisan political office, 
or partisan political group.
    Political contribution means any gift, subscription, loan, advance, 
or deposit of money or anything of value, made for any political 
purpose.
    (1) A political contribution includes:
    (i) Any contract, promise, or agreement, express or implied, whether 
or not legally enforceable, to make a contribution for any political 
purpose;
    (ii) Any payment by any person, other than a candidate or a 
political party or affiliated organization, of compensation for the 
personal services of another person which are rendered to any candidate 
or political party or affiliated organization without charge for any 
political purpose; and
    (iii) The provision of personal services, paid or unpaid, for any 
political purpose.
    (2) A political contribution does not include the value of services 
provided without compensation by any individual who volunteers on behalf 
of any candidate, campaign, political party, or partisan political 
group.
    Political management means the direction or supervision of a 
partisan political group or campaign for partisan political office.
    Political party means a national political party, a State political 
party, or an affiliated organization.
    Political purpose means an objective of promoting or opposing a 
political party, candidate for partisan political office, or partisan 
political group.

[[Page 41]]

    Receive means to come into possession of something from a person 
officially on behalf of a candidate, a campaign, a political party, or a 
partisan political group, but does not include ministerial activities 
which precede or follow this official act.
    Room or building occupied in the discharge of official duties by an 
individual employed or holding office in the Government of the United 
States or any agency thereof includes, but is not limited to:
    (1) Any Federally owned space (including, but not limited to, 
``public buildings'' as defined in 40 U.S.C. 612(1)) or Federally leased 
space in which Federal employees perform official duties on a regular 
basis;
    (2) Public areas as defined in 40 U.S.C. 490(a)(17) and 41 CFR 101-
20.003 of buildings under the custody and control of the General 
Services Administration.
    (3) A room or building occupied in the discharge of official duties 
by an individual employed or holding office in the Government of the 
United States or any agency thereof does not include rooms in the White 
House, or in the residence of the Vice President, which are part of the 
Residence area or which are not regularly used solely in the discharge 
of official duties.
    Solicit means to request expressly of another person that he or she 
contribute something to a candidate, a campaign, a political party, or 
partisan political group.
    Subordinate refers to the relationship between two employees when 
one employee is under the supervisory authority, control or 
administrative direction of the other employee.
    Uniformed services means uniformed services as defined in 5 U.S.C. 
2101(3).



Sec. 733.102  Exclusion of employees in the Criminal Division of the
United States Department of Justice.

    Employees in the Criminal Division in the Department of Justice 
(except employees appointed by the President, by and with the advice and 
consent of the Senate) specifically are excluded from coverage under the 
provisions of this part.



Sec. 733.103  Permitted political activities--employees who reside 
in designated localities.

    (a) This section does not apply to an individual who is employed in 
an agency or position described in Sec. 733.105(a), unless that 
individual has been appointed by the President, by and with the advice 
and consent of the Senate.
    (b) Employees who reside in a municipality or political subdivision 
designated by OPM under Sec. 733.107 may:
    (1) Run as independent candidates for election to partisan political 
office in elections for local office in the municipality or political 
subdivision;
    (2) Solicit, accept, or receive a political contribution as, or on 
behalf of, an independent candidate for partisan political office in 
elections for local office in the municipality or political subdivision;
    (3) Accept or receive a political contribution on behalf of an 
individual who is a candidate for local partisan political office and 
who represents a political party;
    (4) Solicit, accept, or receive uncompensated volunteer services as 
an independent candidate, or on behalf of an independent candidate, for 
local partisan political office, in connection with the local elections 
of the municipality or subdivision; and
    (5) Solicit, accept, or receive uncompensated volunteer services on 
behalf of an individual who is a candidate for local partisan political 
office and who represents a political party.



Sec. 733.104  Prohibited political activities--employees who reside 
in designated localities.

    (a) This section does not apply to an individual who is employed in 
an agency or position described in Sec. 733.105(a), unless that 
individual has been appointed by the President, by and with the advice 
and consent of the Senate.
    (b) Employees who reside in a municipality or political subdivision 
designated by OPM under Sec. 733.107 may not:
    (1) Run as the representative of a political party for local 
partisan political office;

[[Page 42]]

    (2) Solicit a political contribution on behalf of an individual who 
is a candidate for local partisan political office and who represents a 
political party;
    (3) Knowingly solicit a political contribution from any Federal 
employee, except as permitted under 5 U.S.C. 7323(a)(2)(A)-(C).
    (4) Accept or receive a political contribution from a subordinate; 
or
    (5) Solicit, accept, or receive uncompensated volunteer services 
from a subordinate for any political purpose.
    (c) An employee covered under this section may not participate in 
political activities:
    (1) While he or she is on duty:
    (2) While he or she is wearing a uniform, badge, or insignia that 
identifies the employing agency or instrumentality or the position of 
the employee;
    (3) While he or she is in any room or building occupied in the 
discharge of official duties by an individual employed or holding office 
in the Government of the United States or any agency or instrumentality 
thereof; or
    (4) While using a Government-owned or leased vehicle or while using 
a privately owned vehicle in the discharge of official duties.
    (d) An employee described in 5 U.S.C. 7324(b)(2) may participate in 
political activity otherwise prohibited by Sec. 733.104(c) if the costs 
associated with that political activity are not paid for by money 
derived from the Treasury of the United States.
    (e) Candidacy for, and service in, a partisan political office shall 
not result in neglect of, or interference with, the performance of the 
duties of the employee or create a conflict, or apparent conflict, of 
interest.



Sec. 733.105  Permitted political activities--employees who reside in
designated localities and are employed in certain agencies and positions.

    (a) This section applies to employees who reside in designated 
localities and are employed in the following agencies or positions:
    (1) Federal Election Commission;
    (2) Federal Bureau of Investigation;
    (3) United States Secret Service;
    (4) Central Intelligence Agency;
    (5) National Security Council;
    (6) National Security Agency;
    (7) Defense Intelligence Agency;
    (8) Merit Systems Protection Board;
    (9) United States Office of Special Counsel;
    (10) Office of Criminal Investigation of the Internal Revenue 
Service;
    (11) Office of Investigative Programs of the United States Customs 
Service;
    (12) Office of Law Enforcement of the Bureau of Alcohol, Tobacco, 
and Firearms;
    (13) National Imagery and Mapping Agency;
    (14) Career Appointees in the Senior Executive Service;
    (15) Administrative Law Judges; and
    (16) Contract appeals board members described in 5 U.S.C. 5372a.
    (b) This section does not apply to individuals who have been 
appointed by the President by and with the advice and consent of the 
Senate, even though they are employed in the agencies and positions 
described in paragraph (a) of this section.
    (c) Employees who are covered under this section and who reside in a 
municipality or political subdivision designated by OPM under Sec. 
733.107 may:
    (1) Run as independent candidates for election to partisan political 
office in elections for local office in the municipality or political 
subdivision;
    (2) Solicit, accept, or receive a political contribution as, or on 
behalf of, an independent candidate for partisan political office in 
elections for local office in the municipality or political subdivision;
    (3) Solicit, accept, or receive uncompensated volunteer services as, 
or on behalf of, an independent candidate for partisan political office 
in elections for office in the municipality or subdivision; and
    (4) Take an active part in other political activities associated 
with elections for local partisan political office and in managing the 
campaigns of candidates for election to local partisan political office 
in the municipality or political subdivision, but only as an independent 
candidate or on behalf of, or in opposition to, an independent 
candidate.



Sec. 733.106  Prohibited political activities--employees who reside
designated localities and are employed in certain agencies and positions.

    (a) This section does not apply to individuals who have been 
appointed by

[[Page 43]]

the President, by and with the advice and consent of the Senate, even 
though they are employed in the agencies and positions described in 
Sec. 733.105(a).
    (b) Employees who are employed in the agencies and positions 
described in Sec. 733.105(a), and who reside in a municipality or 
political subdivision designated by OPM under Sec. 733.107, may not:
    (1) Run as the representative of a political party for local 
partisan political office;
    (2) Solicit, accept, or receive a political contribution on behalf 
of an individual who is a candidate for local partisan political office 
and who represents a political party;
    (3) Knowingly solicit a political contribution from any Federal 
employee;
    (4) Accept or receive a political contribution from a subordinate;
    (5) Solicit, accept, or receive uncompensated volunteer services on 
behalf of an individual who is a candidate for local partisan political 
office and who represents a political party;
    (6) Solicit, accept, or receive uncompensated volunteer services 
from a subordinate for any political purpose; or
    (7) Take an active part in other political activities associated 
with elections for local partisan political office, when such 
participation occurs on behalf of a political party, partisan political 
group, or a candidate for local partisan political office who represents 
a political party.
    (c) An employee covered under this section may not participate in 
political activities:
    (1) While he or she is on duty:
    (2) While he or she is wearing a uniform, badge, or insignia that 
identifies the employing agency or instrumentality or the position of 
the employee;
    (3) While he or she is in any room or building occupied in the 
discharge of official duties by an individual employed or holding office 
in the Government of the United States or any agency or instrumentality 
thereof; or
    (4) While using a Government-owned or leased vehicle or while using 
a privately owned vehicle in the discharge of official duties.
    (d) Candidacy for, and service in, or partisan political office 
shall not result in neglect of, or interference with, the performance of 
the duties of the employee or create a conflict, or apparent conflict, 
of interest.



Sec. 733.107  Designated localities.

    (a) OPM may designate a municipality or political subdivision in 
Maryland or Virginia and in the immediate vicinity of the District of 
Columbia, or a municipality in which the majority of voters are employed 
by the Government of the United States, when OPM determines that, 
because of special or unusual circumstances, it is in the domestic 
interest of employees to participate in local elections.
    (b) Information as to the documentation required to support a 
request for designation is furnished by the General Counsel of OPM on 
request.
    (c) The following municipalities and political subdivisions have 
been designated, effective on the day specified:

                               In Maryland

Annapolis (May 16, 1941).
Anne Arundel County (March 14, 1973).
Berwyn Heights (June 15, 1944).
Bethesda (Feb. 17, 1943).
Bladensburg (April 20, 1942).
Bowie (April 11, 1952).
Brentwood (Sept. 26, 1940).
Calvert County (June 18, 1992).
Capitol Heights (Nov. 12, 1940).
Cheverly (Dec. 18, 1940).
Chevy Chase, section 3 (Oct. 8, 1940).
Chevy Chase, section 4 (Oct. 2, 1940).
Chevy Chase View (Feb. 26, 1941).
Chevy Chase Village, Town of (March 4, 1941).
College Park (June 13, 1945).
Cottage City (Jan. 15, 1941).
District Heights (Nov. 2, 1940).
Edmonston (Oct. 24, 1940).
Fairmont Heights (Oct. 24, 1940).
Forest Heights (April 22, 1949).
Frederick County (May 31, 1991).
Garrett Park (Oct. 2, 1940).
Glenarden (May 21, 1941).
Glen Echo (Oct. 22, 1940).
Greenbelt (Oct. 4, 1940).
Howard County (April 25, 1974).
Hyattsville (Sept. 20, 1940).
Kensington (Nov. 8, 1940).
Landover Hills (May 5, 1945).
Martin's Additions, Village of (Feb. 13, 1941).
Montgomery County (April 30, 1964).
Morningside (May 19, 1949).
Mount Rainier (Nov. 22, 1940).
New Carrollton (July 7, 1981).
North Beach (Sept. 20, 1940).
North Brentwood (May 6, 1941).
North Chevy Chase (July 22, 1942).
Northwest Park (Feb. 17, 1943).
Prince George's County (June 19, 1962).

[[Page 44]]

Riverdale (Sept. 26, 1940).
Rockville (April 15, 1948).
St. Mary's County (March 2, 1998).
Seat Pleasant (Aug. 31, 1942).
Somerset (Nov. 22, 1940).
Takoma Park (Oct. 22, 1940).
University Park (Jan. 18, 1941).
Washington Grove (April 5, 1941).

                               In Virginia

Alexandria (April 15, 1941).
Arlington County (Sept. 9, 1940).
Clifton (July 14, 1941).
Fairfax, City of (Feb. 9, 1954).
Fairfax County (Nov. 10, 1949).
Falls Church (June 6, 1941).
Fauquier County
Herndon (April 7, 1945).
Loudoun County (Oct. 1, 1971).
Manassas (Jan. 8, 1980).
Manassas Park (March 4, 1980).
Portsmouth (Feb. 27, 1958).
Prince William County (Feb. 14, 1967).
Spotsylvania County (March 2, 1998).
Stafford County (Nov. 2, 1979).
Vienna (March 18, 1946).

                          Other Municipalities

Anchorage, Alaska (Dec. 29, 1947).
Benicia, Calif. (Feb. 20, 1948).
Bremerton, Wash. (Feb. 27, 1946).
Centerville, Ga. (Sept. 16, 1971).
Crane, Ind. (Aug. 3, 1967).
Elmer City, Wash. (Oct. 28, 1947).
Huachuca City, Ariz. (April 9, 1959).
New Johnsonville, Tenn. (April 26, 1956).
Norris, Tenn. (May 6, 1959).
Port Orchard, Wash. (Feb. 27, 1946).
Sierra Vista, Ariz. (Oct. 5, 1955).
Warner Robins, Ga. (March 19, 1948).

[63 FR 4558, Jan. 30, 1998, as amended at 73 FR 28026, May 15, 2008]



PART 734_POLITICAL ACTIVITIES OF FEDERAL EMPLOYEES--Table of Contents



                      Subpart A_General Provisions

Sec.
734.101 Definitions.
734.102 Jurisdiction.
734.103 Multicandidate political committees of Federal labor 
          organizations and Federal employee organizations.
734.104 Restriction of political activity.

                     Subpart B_Permitted Activities

734.201 Exclusion from coverage.
734.202 Permitted activities.
734.203 Participation in nonpartisan activities.
734.204 Participation in political organizations.
734.205 Participation in political campaigns.
734.206 Participation in elections.
734.207 Candidacy for public office.
734.208 Participation in fundraising.

                     Subpart C_Prohibited Activities

734.301 Exclusion from coverage.
734.302 Use of official authority; prohibition.
734.303 Fundraising.
734.304 Candidacy for public office.
734.305 Soliciting or discouraging the political participation of 
          certain persons.
734.306 Participation in political activities while on duty, in uniform, 
          in any room or building occupied in the discharge of official 
          duties, or using a Federal vehicle.
734.307 Campaigning for a spouse or family member.

          Subpart D_Employees in Certain Agencies and Positions

734.401 Coverage.
734.402 Expression of an employee's individual opinion.
734.403 Participation in elections.
734.404 Participation in political organizations.
734.405 Campaigning for a spouse or family member.
734.406 Participation in political activities while on duty, in uniform, 
          in any room or building occupied in the discharge of official 
          duties, or using a Federal vehicle; prohibition.
734.407 Use of official authority; prohibition.
734.408 Participation in political management and political campaigning; 
          prohibitions.
734.409 Participation in political organizations; prohibitions.
734.410 Participation in political fundraising; prohibitions.
734.411 Participation in political campaigning; prohibitions.
734.412 Participation in elections; prohibitions.
734.413 Employees of the Federal Election Commission; prohibitions.

  Subpart E_Special Provisions for Certain Presidential Appointees and 
 Employees Paid From the Appropriation for the Executive Office of the 
                                President

734.501 Permitted and prohibited activities.
734.502 Participation in political activity while on duty, in uniform, 
          in any room or building occupied in the discharge of official 
          duties, or using a Federal vehicle.
734.503 Allocation and reimbursement of costs associated with political 
          activities.

[[Page 45]]

734.504 Contributions to political action committees through voluntary 
          payroll allotments prohibited.

    Subpart F_Employees Who Work on an Irregular or Occasional Basis

734.601 Employees who work on an irregular or occasional basis.

             Subpart G_Related Statutes and Executive Orders

734.701 General.
734.702 Related statutes and Executive orders.

    Authority: 5 U.S.C. 1103, 1104, 7325; Reorganization Plan No. 2 of 
1978, 92 Stat. 3783, 3 CFR 1978 Comp. p. 323; and E.O. 12107, 3 CFR 1978 
Comp. p. 264.

    Source: 59 FR 48769, Sept. 23, 1994, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 734.101  Definitions.

    For the purposes of this part:
    Accept means to come into possession of something from a person 
officially on behalf of a candidate, a campaign, a political party, or a 
partisan political group, but does not include ministerial activities 
which precede or follow this official act.
    Candidate means an individual who seeks nomination or election to 
any elective office whether or not the person is elected. An individual 
is deemed to be a candidate if the individual has received political 
contributions or made expenditures or has consented to another person 
receiving contributions or making expenditures with a view to bringing 
about the individual's nomination or election.
    Campaign means all acts done by a candidate and his or her adherents 
to obtain a majority or plurality of the votes to be cast toward a 
nomination or in an election.
    Election includes a primary, special, runoff, or general election.
    Employee means any individual (other than the President, Vice 
President, or a member of the uniformed services) employed or holding 
office in--
    (1) An Executive agency other than the General Accounting Office;
    (2) A position within the competitive service which is not in an 
Executive agency;
    (3) The Government of the District of Columbia, other than the Mayor 
or a member of the City Council or the Recorder of Deeds; or
    (4) The United States Postal Service or the Postal Rate Commission.
    Employing office shall have the meaning given by the head of each 
agency or instrumentality of the United States Government or District of 
Columbia Government covered by this part. Each agency or instrumentality 
shall provide notice identifying the appropriate employing offices 
within it through internal agency notice procedures.
    Federal employee organization means any lawful nonprofit 
organization, association, society, or club composed of Federal 
employees.
    Federal labor organization means an organization defined in 5 U.S.C. 
7103(a)(4).
    Multicandidate political committee means an organization defined in 
2 U.S.C. 441a(a)(4).
    Nonpartisan election means--
    (1) An election in which none of the candidates is to be nominated 
or elected as representing a political party any of whose candidates for 
Presidential elector received votes in the last preceding election at 
which Presidential electors were selected; or
    (2) An election involving a question or issue which is not 
specifically identified with a political party, such as a constitutional 
amendment, referendum, approval of a municipal ordinance, or any 
question or issue of a similar character.
    Occasional means occurring infrequently, at irregular intervals, and 
according to no fixed or certain scheme; acting or serving for the 
occasion or only on particular occasions.
    Office means the U.S. Office of Personnel Management.
    On Duty means the time period when an employee is:
    (1) In a pay status other than paid leave, compensatory time off, 
credit hours, time off as an incentive award, or excused or authorized 
absence (including leave without pay); or
    (2) Representing any agency or instrumentality of the United States 
Government or any agency or instrumentality of the District of Columbia 
Government in an official capacity.

[[Page 46]]

    Partisan when used as an adjective means related to a political 
party.
    Partisan political group means any committee, club, or other 
organization which is affiliated with a political party or candidate for 
public office in a partisan election, or organized for a partisan 
purpose, or which engages in partisan political activity.
    Partisan political office means any office for which any candidate 
is nominated or elected as representing a party any of whose candidates 
for Presidential elector received votes in the last preceding election 
at which Presidential electors were selected, but does not include any 
office or position within a political party or affiliated organization.
    Person means an individual; a State, local, or foreign government; 
or a corporation and subsidiaries it controls, company, association, 
firm, partnership, society, joint stock company, or any other 
organization or institution, including any officer, employee, or agent 
of such person or entity.
    Political Action Committee means any committee, association, or 
organization (whether or not incorporated) which accepts contributions 
or makes expenditures for the purpose of influencing, or attempting to 
influence, the nomination or election of one or more individuals to 
Federal, State, or local elective public office.
    Political activity means an activity directed toward the success or 
failure of a political party, candidate for partisan political office, 
or partisan political group.
    Political contribution means any gift, subscription, loan, advance, 
or deposit of money or anything of value, made for any political 
purpose.
    (a) A political contribution includes:
    (1) Any contract, promise, or agreement, express or implied, whether 
or not legally enforceable, to make a contribution for any political 
purpose;
    (2) Any payment by any person, other than a candidate or a political 
party or affiliated organization, of compensation for the personal 
services of another person which are rendered to any candidate or 
political party or affiliated organization without charge for any 
political purpose; and
    (3) The provision of personal services, paid or unpaid, for any 
political purpose.
    (b) A political contribution does not include the value of services 
provided without compensation by any individual who volunteers on behalf 
of any candidate, campaign, political party, or partisan political 
group.
    Political management means the direction or supervision of a 
partisan political group or campaign for partisan political office.
    Political party means a national political party, a State political 
party, or an affiliated organization.
    Political purpose means an objective of promoting or opposing a 
political party, candidate for partisan political office, or partisan 
political group.
    Receive means to come into possession of something from a person 
officially on behalf of a candidate, a campaign, a political party, or a 
partisan political group, but does not include ministerial activities 
which precede or follow this official act.
    Recurrent means occurring frequently, or periodically on a regular 
basis.
    Room or building occupied in the discharge of official duties by an 
individual employed or holding office in the Government of the United 
States or any agency thereof includes, but is not limited to:
    (1) Any Federally owned space (including, but not limited to, 
``public buildings'' as defined in 40 U.S.C. 612(1)) or Federally leased 
space in which Federal employees perform official duties on a regular 
basis;
    (2) Public areas as defined in 40 U.S.C. 490(a)(17) and 41 CFR 101-
20.003 of buildings under the custody and control of the General 
Services Administration.
    (3) A room or building occupied in the discharge of official duties 
by an individual employed or holding office in the Government of the 
United States or any agency thereof does not include rooms in the White 
House, or in the residence of the Vice President, which are part of the 
Residence area or which are not regularly used solely in the discharge 
of official duties.
    Solicit means to request expressly of another person that he or she 
contribute something to a candidate, a

[[Page 47]]

campaign, a political party, or partisan political group.
    Subordinate refers to the relationship between two employees when 
one employee is under the supervisory authority, control or 
administrative direction of the other employee.
    Uniformed services means uniformed services as defined in 5 U.S.C. 
2101(3).

[59 FR 48769, Sept. 23, 1994, as amended at 61 FR 35099, July 5, 1996]



Sec. 734.102  Jurisdiction.

    (a) The United States Office of Special Counsel has exclusive 
authority to investigate allegations of political activity prohibited by 
the Hatch Act Reform Amendments of 1993, as implemented by 5 CFR part 
734, prosecute alleged violations before the United States Merit Systems 
Protection Board, and render advisory opinions concerning the 
applicability of 5 CFR part 734 to the political activity of Federal 
employees and employees of the District of Columbia government. (5 
U.S.C. 1212 and 1216. Advice concerning the Hatch Act Reform Amendments 
may be requested from the Office of Special Counsel:
    (1) By letter addressed to the Office of Special Counsel at 1730 M 
Street NW., Suite 300, Washington, DC 20036, or
    (2) By telephone on (202) 653-7188, or (1-800) 854-2824.
    (b) The Merit Systems Protection Board has exclusive authority to 
determine whether a violation of the Hatch Act Reform Amendments of 
1993, as implemented by 5 CFR part 734, has occurred and to impose a 
minimum penalty of suspension for 30 days and a maximum penalty of 
removal for violation of the political activity restrictions regulated 
by this part. (5 U.S.C. 1204 and 7326).
    (c) The Office of Personnel Management is authorized to issue 
regulations describing the political activities which are permitted and 
prohibited under the Hatch Act Reform Amendments of 1993. (5 U.S.C. 
1103, 1104, 7325; Reorganization Plan No. 2 of 1978, 92 Stat. 3783, 3 
CFR 1978 Comp. p. 323; and E.O. 12107, 3 CFR 1978 Comp. p. 264.)

[59 FR 48769, Sept. 23, 1994, as amended at 61 FR 35100, July 5, 1996]



Sec. 734.103  Multicandidate political committees of Federal labor
organizations and Federal employee organizations.

    (a) In order to qualify under this part, each multicandidate 
political committee of a Federal labor organization must provide to the 
Office the following:
    (1) Information verifying that the multicandidate political 
committee is a multicandidate political committee as defined by 2 U.S.C. 
441a(a)(4);
    (2) Information identifying the Federal labor organization to which 
the multicandidate political committee is connected; and
    (3) Information that identifies the Federal labor organization as a 
labor organization defined at 5 U.S.C. 7103(4).
    (b) In order to qualify under this part, each multicandidate 
political committee of a Federal employee organization must provide to 
the Office the following:
    (1) Information verifying that the multicandidate political 
committee is a multicandidate political committee as defined in 2 U.S.C. 
441a(a)(4);
    (2) Information identifying the Federal employee organization to 
which the multicandidate political committee is connected; and
    (3) Information indicating that the multicandidate political 
committee was in existence as of October 6, 1993.



Sec. 734.104  Restriction of political activity.

    No further proscriptions or restrictions may be imposed upon 
employees covered under this regulation except:
    (a) Employees who are appointed by the President by and with the 
advice and consent of the Senate;
    (b) Employees who are appointed by the President;
    (c) Non-career senior executive service members;
    (d) Schedule C employees, 5 CFR 213.3301, 213.3302; and
    (e) Any other employees who serve at the pleasure of the President.

[[Page 48]]



                     Subpart B_Permitted Activities



Sec. 734.201  Exclusion from coverage.

    This subpart does not apply to employees in the agencies and 
positions described in subpart D of this part.



Sec. 734.202  Permitted activities.

    Employees may take an active part in political activities, including 
political management and political campaigns, to the extent not 
expressly prohibited by law and this part.



Sec. 734.203  Participation in nonpartisan activities.

    An employee may:
    (a) Express his or her opinion privately and publicly on political 
subjects;
    (b) Be politically active in connection with a question which is not 
specifically identified with a political party, such as a constitutional 
amendment, referendum, approval of a municipal ordinance or any other 
question or issue of a similar character;
    (c) Participate in the nonpartisan activities of a civic, community, 
social, labor, or professional organization, or of a similar 
organization; and
    (d) Participate fully in public affairs, except as prohibited by 
other Federal law, in a manner which does not compromise his or her 
efficiency or integrity as an employee or the neutrality, efficiency, or 
integrity of the agency or instrumentality of the United States 
Government or the District of Columbia Government in which he or she is 
employed.

    Example 1: An employee may participate, including holding office, in 
any nonpartisan group. Such participation may include fundraising as 
long as the fundraising is not in any way connected with any partisan 
political issue, group, or candidate, and as long as the fundraising 
complies with part 2635 of this title as well as any other directives 
that may apply, e.g., the Federal Property Management Regulations in 41 
CFR chapter 101.
    Example 2: An employee, individually or collectively with other 
employees, may petition or provide information to Congress as provided 
in 5 U.S.C. 7211.

[59 FR 48769, Sept. 23, 1994, as amended at 61 FR 35100, July 5, 1996]



Sec. 734.204  Participation in political organizations.

    An employee may:
    (a) Be a member of a political party or other political group and 
participate in its activities;
    (b) Serve as an officer of a political party or other political 
group, a member of a national, State, or local committee of a political 
party, an officer or member of a committee of a political group, or be a 
candidate for any of these positions;
    (c) Attend and participate fully in the business of nominating 
caucuses of political parties;
    (d) Organize or reorganize a political party organization or 
political group; and
    (e) Participate in a political convention, rally, or other political 
gathering.
    (f) Serve as a delegate, alternate, or proxy to a political party 
convention.

    Example 1: An employee of the Department of Education may serve as a 
delegate, alternate, or proxy to a State or national party convention.
    Example 2: A noncareer member of the Senior Executive Service, or 
other employee covered under this subpart, may serve as a vice-president 
of a political action committee, as long as the duties of the office do 
not involve personal solicitation, acceptance, or receipt of political 
contributions. Ministerial activities which precede or follow the 
official acceptance and receipt, such as handling, disbursing, or 
accounting for contributions are not covered under the definitions of 
accept and receive in Sec. 734.101. Sections 734.208 and 734.303 
describe in detail permitted and prohibited activities which are related 
to fundraising.
    Example 3: An employee of the Federal Communications Commission may 
make motions or place a name in nomination at a nominating caucus.
    Example 4: An employee of the Department of the Interior may serve 
as an officer of a candidate's campaign committee as long as he does not 
personally solicit, accept, or receive political contributions. Sections 
734.208 and 734.303 of this part describe in detail permitted and 
prohibited activities which are related to fundraising.

[59 FR 48769, Sept. 23, 1994, as amended at 61 FR 35100, July 5, 1996]



Sec. 734.205  Participation in political campaigns.

    Subject to the prohibitions in Sec. 734.306, an employee may:

[[Page 49]]

    (a) Display pictures, signs, stickers, badges, or buttons associated 
with political parties, candidates for partisan political office, or 
partisan political groups, as long as these items are displayed in 
accordance with the provisions of Sec. 734.306 of subpart C of this 
part;
    (b) Initiate or circulate a nominating petition for a candidate for 
partisan political office;
    (c) Canvass for votes in support of or in opposition to a partisan 
political candidate or a candidate for political party office;
    (d) Endorse or oppose a partisan political candidate or a candidate 
for political party office in a political advertisement, broadcast, 
campaign literature, or similar material;
    (e) Address a convention, caucus, rally, or similar gathering of a 
political party or political group in support of or in opposition to a 
partisan political candidate or a candidate for political party office; 
and
    (f) Take an active part in managing the political campaign of a 
partisan political candidate or a candidate for political party office.

    Example 1: An employee of the Environmental Protection Agency may 
broadcast endorsements for a partisan political candidate via a public 
address system attached to his or her private automobile.
    Example 2: An employee of the Department of Interior may canvass 
voters by telephone on behalf of a political party or partisan political 
candidate.
    Example 3: An employee of the Department of Agriculture may stand 
outside of polling places on election day and hand out brochures on 
behalf of a partisan political candidate or political party.
    Example 4: An employee may appear in a television or radio broadcast 
which endorses a partisan political candidate and is sponsored by the 
candidate's campaign committee, a political party, or a partisan 
political group.
    Example 5: An independent contractor is not covered by this part and 
may display a political button while performing the duties for which he 
or she is contracted.
    Example 6: An employee of the Department of Commerce who is on 
official travel may take annual leave in the morning to give an address 
at a breakfast for a candidate for partisan political office.
    Example 7: An employee may manage the political campaign of a 
candidate for public office including supervising paid and unpaid 
campaign workers.
    Example 8: While not on duty, a Federal employee may distribute 
campaign leaflets by hand to homes or parked cars even though the 
leaflet may contain information concerning where to send contributions 
among other factual material about a partisan political candidate. 
However, should a member of the public stop the employee and request 
further information about contributions, the employee should refer that 
request to another campaign worker who is not a Federal employee.
    Example 9: An employee may place in his or her front yard a sign or 
banner supporting a partisan political candidate.

[59 FR 48769, Sept. 23, 1994, as amended at 61 FR 35100, July 5, 1996]



Sec. 734.206  Participation in elections.

    An employee may:
    (a) Register and vote in any election;
    (b) Act as recorder, watcher, challenger, or similar officer at 
polling places;
    (c) Serve as an election judge or clerk, or in a similar position; 
and
    (d) Drive voters to polling places for a partisan political 
candidate, partisan political group, or political party.

    Example: An employee may drive voters to polling places in a 
privately owned vehicle, but not in a Government-owned or leased 
vehicle.



Sec. 734.207  Candidacy for public office.

    An employee may:
    (a) Run as an independent candidate in a partisan election covered 
by 5 CFR part 733; and
    (b) Run as a candidate in a nonpartisan election.

    Example 1: An employee who is a candidate for public office in a 
nonpartisan election is not barred by the Hatch Act from soliciting, 
accepting, or receiving political contributions for his or her own 
campaign; however, such solicitation, acceptance, or receipt must comply 
with part 2635 of this title as well as any other directives that may 
apply, e.g., The Federal Property Management Regulations in 41 CFR 
chapter 101.



Sec. 734.208  Participation in fundraising.

    (a) An employee may make a political contribution to a political 
party, political group, campaign committee of

[[Page 50]]

a candidate for public office in a partisan election and multicandidate 
political committee of a Federal labor or Federal employee organization.
    (b) Subject to the prohibitions stated in section 734.303, an 
employee may--
    (1) Attend a political fundraiser;
    (2) Accept and receive political contributions in a partisan 
election described in 5 CFR part 733;
    (3) Solicit, accept, or receive uncompensated volunteer services 
from any individual; and
    (4) Solicit, accept, or receive political contributions, as long as:
    (i) The person who is solicited for a political contribution belongs 
to the same Federal labor organization, or Federal employee 
organization, as the employee who solicits, accepts, or receives the 
contribution;
    (ii) The person who is solicited for a political contribution is not 
a subordinate employee; and
    (iii) The request is for a contribution to the multicandidate 
political committee of a Federal labor organization or to the 
multicandidate political committee of a Federal employee organization in 
existence on October 6, 1993.
    (c) Subject to the provisions of Sec. 734.306, an employee may make 
a financial contribution to a political action committee through a 
voluntary allotment made under Sec. 550.311(b) of this chapter, if the 
head of the employee's agency permits agency employees to make such 
allotments to political action committees.
    (d) An employee who is covered under this subpart and is a payroll 
official in an agency where employees are permitted to make allotments 
to political action committees may process the completed direct deposit 
forms for voluntary allotments which have been made to such committees 
under section 550.311(b) of this title.

    Example 1: An GS-12 employee of the Department of Treasury who 
belongs to the same Federal employee organization as a GS-5 employee of 
the Department of Treasury may solicit a contribution for the 
multicandidate political committee when she is not on duty as long as 
the GS-5 employee is not under the supervisory authority of the GS-12 
employee.
    Example 2: An employee of the National Park Service may give a 
speech or keynote address at a political fundraiser when he is not on 
duty, as long as the employee does not solicit political contributions, 
as prohibited in Sec. 734.303(b) of this part.
    Example 3: An employee's name may appear on an invitation to a 
political fundraiser as a guest speaker as long as the reference in no 
way suggests that the employee solicits or encourages contributions, as 
prohibited in Sec. 734.303 of this part and described in example 2 
thereunder. However, the employee's official title may not appear on 
invitations to any political fundraiser, except that an employee who is 
ordinarily addressed using a general term of address, such as ``The 
Honorable,'' may use or permit the use of that term of address for such 
purposes.
    Example 4: When an employee of the Department of Transportation is 
not on duty, he or she may engage in activities which do not require 
personal solicitations of contributions, such as organizing mail or 
phone solicitations for political contributions. Activities such as 
stuffing envelopes with requests for political contributions also are 
permitted. However, he or she may not sign the solicitation letter 
unless the solicitation is for the contribution of uncompensated 
volunteer services of individuals who are not subordinate employees. An 
employee may not knowingly send to his or her subordinate employees a 
letter soliciting the contribution of their uncompensated services. 
However, he or she may sign a letter that solicits contributions of 
uncompensated volunteer services as part of a general mass mailing that 
might reach a subordinate employee, as long as the mass mailing is not 
specifically targeted to his or her subordinate employees.
    Example 5: An employee who is not on duty may participate in a phone 
bank soliciting the uncompensated services of individuals. However, an 
employee may not make phone solicitations for political contributions 
even anonymously.
    Example 6: An employee of the Department of Agriculture who is on 
official travel and is not in a pay status nor officially representing 
the Department may write invitations in his hotel room to a meet-the-
candidate reception which he plans to hold in his home.
    Example 7: An employee may serve as an officer or chairperson of a 
political fundraising organization or committee as long as he or she 
does not personally solicit, accept, or receive political contributions. 
For example, the employee may organize or manage fundraising activities 
as long as he or she does not violate the above prohibition.
    Example 8: The head of a cabinet-level department may contribute one 
of her worn-out cowboy boots to the campaign committee of a Senatorial 
candidate to be auctioned off in a fundraising raffle for the benefit of 
the candidate's campaign.

[[Page 51]]

    Example 9: An employee may help organize a fundraiser including 
supplying names for the invitation list as long as he or she does not 
personally solicit, accept, or receive contributions.
    Example 10: An employee on travel may engage in political activity 
when he or she is not on duty without taking annual leave.
    Example 11: A Federal employee may solicit, accept, or receive the 
uncompensated volunteer services of any individual, except a subordinate 
employee, to work on behalf of a partisan political candidate or 
organization. However, such solicitation, acceptance, or receipt must 
comply with part 2635 of this title as well as any other directives that 
may apply, e.g., the Federal Property Management Regulations in 41 CFR 
chapter 101. Further, Federal employees are subject to criminal anti-
coercion provisions found at 18 U.S.C. 610.
    Example 12: An employee who desires to make a financial contribution 
to a political action committee through a voluntary allotment personally 
may obtain blank direct deposit forms from his or her payroll office. 
However, he or she may not complete the form while he or she is on duty, 
on Federal property, or in a Federally owned or leased vehicle. 
Moreover, he or she may not personally deliver his or her completed 
form, or the completed form of another employee, to the payroll office. 
However, the employee may mail his or her direct deposit form to his or 
her agency payroll office.
    Example 13: Employees who are permitted to solicit, accept, or 
receive political contributions under the circumstances described in 
Sec. 734.208(b)(4) may not solicit, accept, or receive such 
contributions either while they are on duty, or while they are on 
Federal premises, or both.

[59 FR 48769, Sept. 23, 1994, as amended at 61 FR 35100, July 5, 1996]



                     Subpart C_Prohibited Activities



Sec. 734.301  Exclusion from coverage.

    This subpart does not apply to employees in the agencies and 
positions described in subpart D of this part.



Sec. 734.302  Use of official authority; prohibition.

    (a) An employee may not use his or her official authority or 
influence for the purpose of interfering with or affecting the result of 
an election.
    (b) Activities prohibited by paragraph (a) of this section include, 
but are not limited to:
    (1) Using his or her official title while participating in political 
activity;
    (2) Using his or her authority to coerce any person to participate 
in political activity; and
    (3) Soliciting, accepting, or receiving uncompensated individual 
volunteer services from a subordinate for any political purpose.

    Example 1: An employee who signs a letter seeking uncompensated 
volunteer services from individuals may not identify himself or herself 
by using his or her official title. However, the employee may use a 
general form of address, such as ``The Honorable.''
    Example 2: A noncareer member of the Senior Executive Service, or 
another employee covered by this subpart, may not ask his or her 
subordinate employees to provide uncompensated individual volunteer 
services for a political party, partisan political group, or candidate 
for partisan political office. Moreover, he or she may not accept or 
receive such services from a subordinate employee who offers to donate 
them.
    Example 3: An employee may not require any person to contribute to a 
partisan political campaign in order to win a Federal contract:

[61 FR 35100, July 5, 1996]



Sec. 734.303  Fundraising.

    An employee may not knowingly:
    (a) Personally solicit, accept or receive a political contribution 
from another person, except under the circumstances specified in Sec. 
734.208(b);
    (b) Personally solicit political contributions in a speech or 
keynote address given at a fundraiser;
    (c) Allow his or her official title to be used in connection with 
fundraising activities; or
    (d) Solicit, accept, or receive uncompensated volunteer services 
from an individual who is a subordinate.

    Example 1: An employee may not host a fundraiser at his or her home. 
However, a spouse who is not covered under this part may host such a 
fundraiser and the employee may attend. The employee may not personally 
solicit contributions to the fundraiser. Moreover, the employee may not 
accept, or receive political contributions, except under the 
circumstances stated in Sec. 734.208(b).
    Example 2: An employee's name may not appear on an invitation to a 
fundraiser as a sponsor of the fundraiser, or as a point of contact for 
the fundraiser.
    Example 3: An employee may not ask a subordinate employee to 
volunteer on behalf of a partisan political campaign.
    Example 4: An employee may not call the personnel office of a 
business or corporation

[[Page 52]]

and request that the corporation or business provide volunteers or 
services for a campaign. However, an employee may call an individual who 
works for a business or corporation and request that specific 
individual's services for a campaign.



Sec. 734.304  Candidacy for public office.

    An employee may not run for the nomination or as a candidate for 
election to partisan political office, except as specified in Sec. 
734.207.



Sec. 734.305  Soliciting or discouraging the political participation
of certain persons.

    (a) An employee may not knowingly solicit or discourage the 
participation in any political activity of any person who has an 
application for any compensation grant, contract, ruling, license, 
permit, or certificate pending before the employee's employing office.
    (b) An employee may not knowingly solicit or discourage the 
participation in any political activity of any person who is the subject 
of, or a participant in, an ongoing audit, investigation, or enforcement 
action being carried out by the employee's employing office.
    (c) Each agency or instrumentality of the United States or District 
of Columbia Government shall determine when a matter is pending and 
ongoing within employing offices of the agency or instrumentality for 
the purposes of this part.

    Example 1: An employee with agency-wide responsibility may address a 
large, diverse group to seek support for a partisan political candidate 
as long as the group has not been specifically targeted as having 
matters before the employing office.
    Example 2: An employee of the Federal Deposit Insurance Corporation 
(FDIC) may not solicit or discourage the participation of an insured 
financial institution or its employees if the institution is undergoing 
examination by the FDIC.
    Example 3: An employee of the Food and Drug Administration may 
address a banquet for a partisan political candidate which is sponsored 
by the candidate's campaign committee, even though the audience includes 
three individuals who are employed by or are officials of a 
pharmaceutical company. However, she may not deliver the address if the 
banquet is sponsored by a lobbying group for pharmaceutical companies, 
of if she knows that the audience will be composed primarily of 
employees or officials of such companies.



Sec. 734.306  Participation in political activities while on duty,
in uniform, in any room or building occupied in the discharge of

official duties, or using a 
          Federal vehicle.

    (a) An employee may not participate in political activities subject 
to the provisions of subpart E of this part:
    (1) While he or she is on duty;
    (2) While he or she is wearing a uniform, badge, insignia, or other 
similar item that identifies the employing agency or instrumentality or 
the position of the employee;
    (3) While he or she is in any room or building occupied in the 
discharge of official duties by an individual employed or holding office 
in the Government of the United States or any agency or instrumentality 
thereof; or
    (4) While using a Government-owned or leased vehicle or while using 
a privately-owned vehicle in the discharge of official duties.
    (b) The prohibitions in paragraph (a) of this section do not apply 
to employees covered under subpart E of this part.

    Example 1: While on leave without pay, an employee is not subject to 
the prohibition in Sec. 734.306(a)(1) because he or she is not on duty. 
However, while on leave without pay, the employee remains subject to the 
other prohibitions in subpart C.
    Example 2: A Postal Service employee who uses her private vehicle to 
deliver mail may place a political bumper sticker on the vehicle, as 
long as she covers the bumper sticker while she is on duty.
    Example 3: An employee who uses his or her privately owned vehicle 
on a recurrent basis for official business may place a partisan 
political bumper sticker on the vehicle, as long as he or she covers the 
bumper sticker while the vehicle is being used for official duties.
    Example 4: An employee who uses his or her privately owned vehicle 
on official business, must cover any partisan political bumper sticker 
while the vehicle is being used for official duties, if the vehicle is 
clearly identified as being on official business.
    Example 5: A noncareer member of the Senior Executive Service, or 
any other employee covered by this subpart, who uses his or her 
privately owned vehicle only on an occasional basis to drive to another 
Federal agency for a meeting, or to take a training course, is not 
required to cover a partisan political bumper sticker on his or her 
vehicle.
    Example 6: An employee may not place a partisan political bumper 
sticker on any

[[Page 53]]

Government owned or Government leased vehicle.
    Example 7: An employee may place a bumper sticker on his or her 
privately owned vehicle and park his or her vehicle in a parking lot of 
an agency or instrumentality of the United States Government or in a 
non-Federal facility for which the employee receives a subsidy from his 
or her employing agency or instrumentality.
    Example 8: When an agency or instrumentality of the United States 
Government leases offices in a commercial building and that building 
includes the headquarters of a candidate for partisan political office, 
an employee of that agency or instrumentality may do volunteer work, 
when he or she is not on duty, at the candidate's headquarters and in 
other areas of the building that have not been leased by the Government.
    Example 9: A Government agency or instrumentality leases all of the 
space in a commercial building; employees may not participate in 
political activity in the public areas of the leased building.
    Example 10: An employee of the National Aeronautics and Space 
Administration (NASA) may not engage in political activities while 
wearing a NASA flight patch, NASA twenty-year pin or anything with an 
official NASA insignia.
    Example 11: If a political event begins while an employee is on duty 
and continues into the time when he or she is not on duty, the employee 
must wait until he or she is not on duty to attend the event. 
Alternatively, an employee may request annual leave to attend the 
political event when it begins.
    Example 12: Officials of labor organizations who have been given 
official time to perform representational duties are on duty.
    Example 13: An employee may stuff envelopes for a mailing on behalf 
of a candidate for partisan political office while the employee is 
sitting in the park during his or her lunch period if he or she is not 
considered to be on duty during his or her lunch period.
    Example 14: An employee who works at home may engage in political 
activities at home when he or she is not in a pay status or representing 
the Government in an official capacity.
    Example 15: An employee who is appointed by the President by and 
with the advice and consent of the Senate (PAS) may attend a political 
event with any non-PAS employee whose official duties do not require 
accompanying the PAS as long as the non-PAS employee is not on duty.
    Example 16: A noncareer member of the Senior Executive Service, or 
any other employee covered by this subpart, may not wear partisan 
political buttons or display partisan political pictures, signs, 
stickers, or badges while he or she is on duty or at his or her place of 
work.
    Example 17: An employee may not engage in political activity in the 
cafeteria of a Federal building, even if the cafeteria is in space 
leased by a contractor.
    Example 18: An employee who contributes financially to a political 
action committee through a voluntary allotment made under Sec. 
550.311(b) of this title may not complete the direct deposit forms while 
he or she is on duty, in a ``room or building'' defined in Sec. 734.101 
or in a Federally owned or leased vehicle.
    Example 19: An employee who contributes financially to a political 
action committee through a voluntary allotment may not personally 
deliver his or her completed direct deposit form, or the completed 
direct deposit form of another employee, to the payroll employees who 
would process or administer such forms. However, the employee may mail 
his or her direct deposit form to his or her agency payroll office.

[59 FR 48769, Sept. 23, 1994, as amended at 61 FR 35101, July 5, 1996]



Sec. 734.307  Campaigning for a spouse or family member.

    An employee covered under this subpart who is the spouse or family 
member of either a candidate for partisan political office, candidate 
for political party office, or candidate for public office in a 
nonpartisan election, is subject to the same prohibitions as other 
employees covered under this subpart.
    Example 1: An employee who is married to a candidate for partisan 
political office may attend a fundraiser for his or her spouse, stand in 
the receiving line, sit at the head table, and urge others to vote for 
his or her spouse. However, the employee may not personally solicit, 
accept, or receive contributions of money or the paid or unpaid services 
of a business or corporation, or sell or collect money for tickets to 
the fundraiser.
    Example 2: An employee who is the daughter of a candidate for 
partisan political office may appear in a family photograph which is 
printed in a campaign flier. She may distribute fliers at a campaign 
rally as long as she does not personally solicit contributions.
    Example 3: An employee who is married to a candidate for political 
partisan political office may appear with her spouse in a political 
advertisement or a broadcast, and urge others to vote for her spouse, as 
long as the employee does not personally solicit political 
contributions.

[59 FR 48769, Sept. 23, 1994, as amended at 61 FR 35101, July 5, 1996]

[[Page 54]]



          Subpart D_Employees in Certain Agencies and Positions



Sec. 734.401  Coverage.

    (a) This subpart applies to employees in the following agencies and 
positions:
    (1) The Federal Election Commission;
    (2) The Federal Bureau of Investigation;
    (3) The Secret Service;
    (4) The Central Intelligence Agency;
    (5) The National Security Council;
    (6) The National Security Agency;
    (7) The Defense Intelligence Agency;
    (8) The Merit Systems Protection Board;
    (9) The Office of Special Counsel;
    (10) The Office of Criminal Investigation of the Internal Revenue 
Service.
    (11) The Office of Investigative Programs of the United States 
Customs Service;
    (12) The Office of Law Enforcement of the Bureau of Alcohol, 
Tobacco, and Firearms;
    (13) The Criminal Division of the Department of Justice;
    (14) The Central Imagery Office;
    (15) Career Senior Executive Service positions described in 5 U.S.C. 
3132(a)(4);
    (16) Administrative Law Judge positions described in 5 U.S.C. 5372;
    (17) Contract Appeals Board Member positions described in 5 U.S.C. 
5372a.
    (b) Employees appointed by the President by and with the advice and 
consent of the Senate in the agencies and positions described in 
paragraph (a) of this section are excluded from coverage under this 
subpart.
    (c) All employees covered under this subpart are free to engage in 
political activity to the widest extent consistent with the restrictions 
imposed by law and this subpart.

[59 FR 48769, Sept. 23, 1994, as amended at 61 FR 35101, July 5, 1996]



Sec. 734.402  Expression of an employee's individual opinion.

    Each employee covered under this subpart retains the right to 
participate in any of the following political activities, as long as 
such activity is not performed in concert with a political party, 
partisan political group, or a candidate for partisan political office:
    (a) Express his or her opinion as an individual privately and 
publicly on political subjects and candidates;
    (b) Display a political picture, sign, sticker, badge, or button, as 
long as these items are displayed in accordance with the provisions of 
Sec. 734.406;
    (c) Sign a political petition as an individual;
    (d) Be politically active in connection with a question which is not 
specifically identified with a political party, such as a constitutional 
amendment, referendum, approval of a municipal ordinance, or any other 
question or issue of a similar character; and
    (e) Otherwise participate fully in public affairs, except as 
prohibited by other Federal law, in a manner which does not compromise 
his or her efficiency or integrity as an employee or the neutrality, 
efficiency, or integrity of the agency or instrumentality of the United 
States Government in which he or she is employed.

    Example 1: An employee may purchase air time on a radio or 
television station to endorse a partisan political candidate. However, 
he or she may not endorse such a candidate in a commercial or program 
which is sponsored by the candidate's campaign committee, a political 
party, or a partisan political group.
    Example 2: An employee may address a political convention or rally 
but not on behalf, or at the request of, a political party, partisan 
political group, or an individual who is running for the nomination or 
as a candidate for election to partisan political office.
    Example 3: An employee may print at her own expense one thousand 
fliers which state her personal opinion that a partisan political 
candidate is the best suited for the job. She may distribute the fliers 
at a shopping mall on the weekend. However, she may not distribute 
fliers printed by the candidate's campaign committee, a political party, 
or a partisan political group.
    Example 4: An employee may place in his or her yard a sign 
supporting a candidate for partisan political office.
    Example 5: An employee may stand outside of a political party 
convention with a homemade sign which states his or her individual 
opinion that one of the candidates for nomination is the best qualified 
candidate.
    Example 6: An employee, including a career SES employee, may wear a 
button with a partisan political theme when the employee is not on duty 
or at his or her place of work.

[59 FR 48769, Sept. 23, 1994, as amended at 61 FR 35101, July 5, 1996]

[[Page 55]]



Sec. 734.403  Participation in elections.

    Each employee covered under this subpart retains the right to:
    (a) Register and vote in any election;
    (b) Take an active part, as a candidate or in support of a 
candidate, in a nonpartisan election; and
    (c) Serve as an election judge or clerk, or in a similar position, 
to perform nonpartisan duties as prescribed by State or local law.



Sec. 734.404  Participation in political organizations.

    (a) Each employee covered under this subpart retains the right to:
    (1) Participate in the nonpartisan activities of a civic, community, 
social, labor, or professional organization, or of a similar 
organization;
    (2) Be a member of a political party or other partisan political 
group and participate in its activities to the extent consistent with 
other Federal law;
    (3) Attend a political convention, rally, fund-raising function, or 
other political gathering; and
    (4) Make a financial contribution to a political party, partisan 
political group, or to the campaign committee of a candidate for 
partisan political office.
    (b) Subject to the provisions in Sec. 734.406, an employee covered 
under this subpart may make a financial contribution to a political 
action committee through a voluntary allotment made under Sec. 
550.311(b) of this chapter if the head of the employee's agency permits 
agency employees to make such allotments to political action committees.
    (c) An employee who is covered under this subpart and is a payroll 
official in an agency where employees are permitted to make allotments 
to political action committees may process the completed direct deposit 
forms for voluntary allotments which have been made to such committees 
under Sec. 550.311(b) of this chapter.

    Example 1: An employee, or a noncareer SES employee who is subject 
to subpart D of part 734, may attend a political convention or rally 
solely as a spectator. However, the employee and noncareer SES employee 
may not participate in demonstrations or parades which are sponsored by 
a political party, a partisan political group, or an individual who is 
running for nomination to be a candidate for partisan political office.
    Example 2: An employee may attend a political party's annual 
barbecue, but he or she may not organize, distribute invitations to, or 
sell tickets to the barbecue.
    Example 3: An employee who desires to contribute to a political 
action committee through an allotment personally may obtain blank direct 
deposit forms from his or her payroll office. The employee may not 
complete the direct deposit form while he or she is on duty, on Federal 
property, or in a Federally owned or leased vehicle. The employee also 
may not personally deliver his or her completed direct deposit form, or 
the completed direct deposit form of another employee, to his or her 
payroll office. However, the employee may mail the completed form to his 
or her agency payroll office.

[61 FR 35101, July 5, 1996]



Sec. 734.405  Campaigning for a spouse or family member.

    An employee covered under this subpart who is the spouse or family 
member of either a candidate for partisan political office, or a 
candidate for political party office, may appear in photographs of the 
candidate's family which might appear in a political advertisement, a 
broadcast, campaign literature, or similar material. A spouse or a 
family member who is covered by the Hatch Act Reform Amendments also may 
attend political functions with the candidate. However, the spouse or 
family member may not distribute campaign literature or solicit, accept, 
or receive political contributions.

    Example 1: An employee who is the spouse of a candidate for partisan 
political office may stand in the receiving line and sit at the head 
table during a political dinner honoring the spouse.
    Example 2: An employee who is the daughter of a candidate for 
partisan political office may appear in a family photograph which is 
printed in a campaign flier, but she may not distribute the flier at a 
campaign rally.



Sec. 734.406  Participation in political activities while on duty,
in uniform, in any room or building occupied in the discharge of 

official duties, or using a 
          Federal vehicle; prohibition.

    (a) An employee covered under this subpart may not participate in 
political activities:
    (1) While he or she is on duty;

[[Page 56]]

    (2) While he or she is wearing a uniform, badge, or insignia that 
identifies the employing agency or instrumentality or the position of 
the employee;
    (3) While he or she is in any room or building occupied in the 
discharge of official duties by an individual employed or holding office 
in the Government of the United States or any agency or instrumentality 
thereof; or
    (4) While using a Government-owned or leased vehicle or while using 
a privately owned vehicle in the discharge of official duties.

    Example 1: An employee who uses his or her privately owned vehicle 
on a recurrent basis for official business may place a bumper sticker on 
the vehicle, as long as he or she covers the bumper sticker while the 
vehicle is being used for official duties.
    Example 2: An employee who uses his or her privately owned vehicle 
on official business, must cover any partisan political bumper sticker 
while the vehicle is being used for official duties, if the vehicle is 
clearly identified as being on official business.
    Example 3: An employee or career SES employee who uses his or her 
privately owned vehicle only on an occasional basis to drive to another 
Federal agency for a meeting, or to take a training course, if not 
required to cover a partisan political bumper sticker on his or her 
vehicle.
    Example 4: An employee may not place a partisan political bumper 
sticker on any Government owned or Government leased vehicle.
    Example 5: An employee may place a bumper sticker on his or her 
privately owned vehicle and park the vehicle in a parking lot of an 
agency or instrumentality of the United States Government or in a non-
Federal facility for which the employee receives a subsidy from his or 
her employing agency or instrumentality.
    Example 6: An employee, or noncareer SES employee who is subject to 
subpart D of this part 734, may not wear partisan political buttons or 
display partisan political pictures, signs, stickers, or badges while he 
or she is on duty or at his or her place of work.
    Example 7: An employee who contributes financially to a political 
action committee through a voluntary allotment made under Sec. 
550.311(b) of this title may not complete the direct deposit forms while 
he or she is on duty, in a ``room or building'' defined in Sec. 
734.101, or in a Federally owned or leased vehicle.
    Example 8: An employee who contributes financially to a political 
action committee may not personally deliver his or her completed direct 
deposit form, or the completed direct deposit form of another employee, 
to the payroll employees who would process or administer such forms. 
However, the employee may mail his or her direct deposit form to his or 
her agency payroll office.

    (b) [Reserved]

[59 FR 48769, Sept. 23, 1994, as amended at 61 FR 35102, July 5, 1996]



Sec. 734.407  Use of official authority; prohibition.

    An employee covered under this subpart may not use his or her 
official authority or influence for the purpose of interfering with or 
affecting the result of an election.



Sec. 734.408  Participation in political management and political 
campaigning; prohibitions.

    An employee covered under this subpart may not take an active part 
in political management or in a political campaign, except as permitted 
by subpart D of this part.

[61 FR 35102, July 5, 1996]



Sec. 734.409  Participation in political organizations; prohibitions.

    An employee covered under this subpart may not:
    (a) Serve as an officer of a political party, a member of a 
national, State, or local committee of a political party, an officer or 
member of a committee of a partisan political group, or be a candidate 
for any of these positions;
    (b) Organize or reorganize a political party organization or 
partisan political group;
    (c) Serve as a delegate, alternate, or proxy to a political party 
convention; and
    (d) Address a convention, caucus, rally, or similar gathering of a 
political party or partisan political group in support of or in 
opposition to a candidate for partisan political office or political 
party office, if such address is done in concert with such a candidate, 
political party, or partisan political group.



Sec. 734.410  Participation in political fundraising; prohibitions.

    An employee covered under this subpart may not:
    (a) Solicit, accept, or receive political contributions; or

[[Page 57]]

    (b) Organize, sell tickets to, promote, or actively participate in a 
fundraising activity of a candidate for partisan political office or of 
a political party, or partisan political group.



Sec. 734.411  Participation in political campaigning; prohibitions.

    An employee covered under this subpart may not:
    (a) Take an active part in managing the political campaign of a 
candidate for partisan political office or a candidate for political 
party office;
    (b) Campaign for partisan political office;
    (c) Canvass for votes in support of or in opposition to a candidate 
for partisan political office or a candidate for political party office, 
if such canvassing is done in concert with such a candidate, or of a 
political party, or partisan political group;
    (d) Endorse or oppose a candidate for partisan political office or a 
candidate for political party office in a political advertisement, 
broadcast, campaign literature, or similar material if such endorsement 
or opposition is done in concert with such a candidate, political party, 
or partisan political group;
    (e) Initiate or circulate a partisan nominating petition.



Sec. 734.412  Participation in elections; prohibitions.

    An employee covered under this subpart may not:
    (a) Be a candidate for partisan political office;
    (b) Act as recorder, watcher, challenger, or similar officer at 
polling places in concert with a political party, partisan political 
group, or a candidate for partisan political office;
    (c) Drive voters to polling places in concert with a political 
party, partisan political group, or a candidate for partisan political 
office.

[59 FR 48769, Sept. 23, 1994, as amended by 61 FR 35102, July 5, 1996]



Sec. 734.413  Employees of the Federal Election Commission; prohibitions.

    (a) An employee of the Federal Election Commission may not request 
or receive from, or give to, an employee, a Member of Congress, or an 
officer of a uniformed service a political contribution.
    (b) This section does not cover employee of the Federal Election 
Commission who are appointed by the President by and with the advice and 
consent of the Senate.



  Subpart E_Special Provisions for Certain Presidential Appointees and 
 Employees Paid from the Appropriation for the Executive Office of the 
                                President



Sec. 734.501  Permitted and prohibited activities.

    Except as otherwise specified in this part 734, employees who are 
appointed by the President by and with the advice and consent of the 
Senate are subject to the provisions of subparts B and C of this part.



Sec. 734.502  Participation in political activity while on duty, 
in uniform, in any room or building occupied in the discharge of

official duties, or using a 
          Federal vehicle.

    (a) This section applies to an employee:
    (1) The duties and responsibilities of whose position continue 
outside normal duty hours and while away from the normal duty post; and
    (2) Who is--
    (i) An employee paid from an appropriation for the Executive Office 
of President; or
    (ii) An employee appointed by the President by and with the advice 
and consent of the Senate whose position is located within the United 
States, who determines policies to be pursued by the United States in 
relations with foreign powers or in the nationwide administration of 
Federal laws;
    (b) For the purposes of this subpart, normal duty hours and normal 
duty post will be determined by the head of each agency or 
instrumentality of the United States or District of Columbia Government.
    (c) An employee described in paragraph (a) of this section may 
participate, subject to any restrictions that may be imposed in 
accordance with Sec. 734.104, in political activities:
    (1) While he or she is on duty;

[[Page 58]]

    (2) While he or she is wearing a uniform, badge, or insignia that 
identifies the agency or instrumentality of the United States Government 
or the position of the employee;
    (3) While he or she is in any room or building occupied in the 
discharge of official duties by an individual employed or holding office 
in the Government of the United States or any agency or instrumentality 
thereof; or
    (4) While using a Government-owned or leased vehicle or while using 
a privately-owned vehicle in the discharge of official duties.
    (d) An employee, to whom subpart E of this part does not apply, who 
is not on duty may participate in political activities in rooms of the 
White House or the Residence of the Vice President which are part of the 
Residence area or which are not regularly used solely in the discharge 
of official duties.

    Example 1: An Inspector General is appointed under the Inspector 
General Act of 1978, as amended. According to section 3(c) of that Act, 
he or she does not qualify as an employee who determines policies to be 
pursued by the United States in the nationwide administration of Federal 
laws. therefore, he or she may not participate in political activities 
while on duty, while wearing a uniform, badge, or insignia that 
identifies his or her office or position, while in any room or building 
occupied in the discharge of official duties, or while using a 
Government-owned or leased vehicle or while using a privately-owned 
vehicle in the discharge of official duties.
    Example 2: An employee who is covered by this subpart and wears a 
uniform as an incident of her office may wear the uniform while she is 
giving a speech at a political fundraiser.
    Example 3: The head of an executive department may hold a partisan 
political meeting or host a reception which is not a fundraiser in his 
conference room during normal business hours.
    Example 4: An employee accompanies the Secretary of Transportation 
to a political party convention as part of the Secretary's security or 
administrative detail. The employee is considered to be on duty while 
protecting or performing official duties for the Secretary regardless of 
the nature of the function that the Secretary is attending.
    Example 5: An American Ambassador overseas obtains authorization 
from the Department of State to depart post in order to take a vacation 
away from post. During the period she is authorized to be on vacation 
away from post, she is not considered to be on duty for the purpose of 
the Hatch Act Reform Amendments and may engage in any political activity 
permitted under the Hatch Act Reform Amendments of 1993.

[59 FR 48769, Sept. 23, 1994, as amended at 61 FR 35102, July 5, 1996]



Sec. 734.503  Allocation and reimbursement of costs associated with 
political activities.

    (a) The costs associated with the political activities described in 
Sec. 733.502(c) of this chapter may not be paid for by money derived 
from the Treasury of the United States. Costs associated with a 
political activity are deemed not to be paid for by money derived from 
the Treasury of the United States if the Treasury is reimbursed for the 
costs within a reasonable period of time.
    (b) For the purposes of this section, costs associated with a 
political activity do not include any costs that the Government would 
have or have incurred regardless of whether the activity was political. 
Examples of such costs are:
    (1) The compensation of the employee described in Sec. 734.502(a);
    (2) The value of any office or other real property owned or leased 
by the Government;
    (3) The compensation and expenses of any Government employee that is 
required in the performance of his or her duties to accompany or assist 
the person engaging in the political activity; and
    (4) The cost of special security arrangements for the person 
engaging in the political activity, including special transportation 
vehicles or methods.
    (c)(1) An employee covered under this subpart must apportion the 
costs of mixed travel based on the time spent on political activities 
and the time spent performing official duties. Prorating the cost of 
travel involves determining the ``total activity time'' which is the 
amount of time actually spent by the employee in meetings, receptions, 
rallies, and similar activities. Time spent in actual travel, private 
study, or rest and recreation is not included in the computation of the 
``total activity time''. The proration of the cost then is determined 
based on how the ``total activity time'' was spent. The formula is as 
follows:


[[Page 59]]


Time spent in official meetings, receptions, etc. + Time spent in 
    political meetings, receptions, rallies = Total activity time

Time spent in official activity / Total activity time = Percentage of 
    trip that is official
Time spent in political activity / Total activity time = Percentage of 
    trip that is political

The percentage figure that represents the political portion of the trip 
is then multiplied by the amount that would be reimbursed to the 
Government if all of the travel was political. The product of that 
calculation represents the amount to be paid by the political entity or 
organization.

    (2) The allocation method must be applied to all of the relevant 
costs of mixed travel.
    (3) Expenses that are associated specifically with a political 
activity and not with any official activity must be treated as 
political, and expenses associated specifically with an official 
activity and not with any political activity must be treated as 
official.
    (4) In allocating the costs of travel other than air travel, the 
allocation formula should be applied to any Government maximum for that 
type of expenditure.
    (5) The determination of the proper amount of allocation must be 
based on the facts and circumstances involved.
    (6) In the event that a minor, clearly incidental percentage of the 
activity of a mixed trip is devoted to either official or political 
activity, e.g. less than 3%, the entire trip should be treated as if it 
was wholly of the type represented by the substantial figure. The 
balance should be treated as de minimis and need not be reimbursed as 
political or charged as official.
    (d) For any cost of a political activity of an employee that is 
required to be reported to the Federal Election Commission under the 
Federal Election Campaign Act (FECA) or the Presidential Election 
Campaign Fund Act (PECFA), the employee shall use the same method of 
allocation as used under the FECA or PECFA and regulations thereunder in 
lieu of the allocation method in paragraph (c) of this section.

    Example 1: The Secretary, an employee described by section 
7324(b)(2) of title 5 of the United States Code, holds a catered 
political activity (other than a fundraiser) in her office. Her security 
detail attends the reception as part of their duty to provide security 
for her. The Secretary will not be in violation of the Hatch Act Reform 
Amendments if the costs of her office, her compensation, and her 
security detail are not reimbursed to the Treasury. A violation of the 
Hatch Act Amendments occurs if Government funds, including reception or 
discretionary funds, are used to cater the political activity, unless 
the Treasury is reimbursed for the cost of the catering within a 
reasonable time.
    Example 2: There should be no allocation between official and 
political funds for a sound system rented for a single event.
    Example 3: If on a mixed trip a Government employee is only entitled 
to $26 per diem for food on a wholly official trip and the trip is 50% 
political and 50% official, the Government share would be 50% of $26, 
not 50% of the actual amount spent.
    Example 4: The President is transported by special motorcade to and 
from the site of the political event. The expense of the motorcade is 
for special security arrangements. Thus, it would not be a violation of 
the Hatch Act Reform Amendments if the costs of the security 
arrangements, including the cost of the motorcade, are not reimbursed to 
the Treasury.



Sec. 734.504  Contributions to political action committees through 
voluntary payroll allotments prohibited.

    An employee described in Sec. 734.502(a) may not financially 
contribute to a political action committee through a voluntary allotment 
made under Sec. 550.311(b) of this title.

[61 FR 35102, July 5, 1996]



    Subpart F_Employees Who Work on An Irregular or Occasional Basis



Sec. 734.601  Employees who work on an irregular or occasional basis.

    An employee who works on an irregular or occasional basis or is a 
special Government employee as defined in 18 U.S.C. 202(a) is subject to 
the provisions of the applicable subpart of this part when he or she is 
on duty.

    Example: An employee appointed to a special commission or task force 
who does not have a regular tour of duty may run as a partisan political 
candidate, but may actively campaign only when he or she is not on duty.

[[Page 60]]



             Subpart G_Related Statutes and Executive Orders



Sec. 734.701  General.

    In addition to the provisions regulating political activity set 
forth in subparts A through G of this part, there are a number of 
statutes and Executive orders that establish standards to which the 
political activity of an employee, a Federal labor organization, a 
Federal employee organization, and a multicandidate political committee 
must conform. The list set forth in Sec. 734.702 references some of the 
more significant of those statutes. It is not comprehensive and includes 
only references to statutes of general applicability.



Sec. 734.702  Related statutes and Executive orders.

    (a) The prohibition against offering anything of value in 
consideration of the use or promise of use of influence to procure 
appointive office (18 U.S.C. 210).
    (b) The prohibition against solicitation or acceptance of anything 
of value to obtain public office for another (18 U.S.C. 211).
    (c) The prohibition against intimidating, threatening, or coercing 
voters in Federal elections (18 U.S.C. 594).
    (d) The prohibition against use of official authority to interfere 
with a Federal election by a person employed in any administrative 
position by the United States in connection with any activity financed 
in whole or in part by Federal funds (18 U.S.C. 595).
    (e) The prohibition against the promise of employment, compensation, 
or benefits from Federal funds in exchange for political activity (18 
U.S.C. 600).
    (f) The prohibition against the deprivation of or threat of 
deprivation of employment in exchange for political contributions (18 
U.S.C. 601).
    (g) The prohibition against soliciting political contributions (18 
U.S.C. 602).
    (h) The prohibition against making certain political contributions 
(18 U.S.C. 603).
    (i) The prohibition against soliciting or receiving assessments, 
subscriptions, or contributions for political purposes from persons on 
Federal relief or work relief (18 U.S.C. 604).
    (j) The prohibition against disclosing and receiving lists or names 
of persons on relief for political purposes (18 U.S.C. 605).
    (k) The prohibition against intimidating employees to give or 
withhold a political contribution (18 U.S.C. 606).
    (l) The prohibition against soliciting political contributions in 
navy yards, forts, or arsenals (18 U.S.C. 607).
    (m) The prohibition against coercing employees of the Federal 
Government to engage in, or not to engage in, any political activity (18 
U.S.C. 610).
    (n) The prohibition against certain personnel practices (5 U.S.C. 
2302).
    (o) The prohibition against making, requesting, considering, or 
accepting political recommendations (5 U.S.C. 3303).
    (p) The prohibitions against misuse of a Government vehicle (31 
U.S.C. 1344).
    (q) The requirements and prohibitions stated in the Federal Election 
Campaign Act (2 U.S.C. 431-455).
    (r) The prohibitions against soliciting for gifts to superiors, 
giving donations for such gifts, and accepting gifts from employees who 
receive a lower rate of pay (5 U.S.C. 7351).
    (s) The prohibitions against soliciting or accepting things of value 
from specified persons (5 U.S.C. 7353).
    (t) The prohibitions and requirements stated in the Ethics in 
Government Act of 1978 (5 U.S.C. App.) and Executive Order 12674 (54 FR 
15159-15162; 3 CFR 1989 Comp. 215-218) as modified by Executive Order 
12731 (55 FR 42547-42550; 3 CFR 1990 Comp. 306-311).



PART 735_EMPLOYEE RESPONSIBILITIES AND CONDUCT--Table of Contents



                      Subpart A_General Provisions

Sec.
735.101 Definitions.
735.102 What are the grounds for disciplinary action?
735.103 What other regulations pertain to employee conduct?

                     Subpart B_Standards of Conduct

735.201 What are the restrictions on gambling?

[[Page 61]]

735.202 What are the restrictions on conduct that safeguard the 
          examination process?
735.203 What are the restrictions on conduct prejudicial to the 
          Government?

    Authority: 5 U.S.C. 7301; E.O. 12674, 54 FR 15159, 3 CFR, 1989 
Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 
Comp., p. 306.

    Source: 71 FR 46073, Aug. 11, 2006, unless otherwise noted.

    Editorial Note: Part 1001, added to this chapter at 31 FR 873, Jan. 
22, 1966 and revised at 32 FR 11113, Aug. 1, 1967, 36 FR 6874, Apr. 9, 
1971, 61 FR 36996, July 16, 1996, and 71 FR 43345, Aug. 1, 2006, 
supplements this part 735.



                      Subpart A_General Provisions



Sec. 735.101  Definitions.

    In this part:
    Agency means an Executive agency (other than the Government 
Accountability Office) as defined by 5 U.S.C. 105, the Postal Service, 
and the Postal Rate Commission.
    Employee means any officer or employee of an agency, including a 
special Government employee, but does not include a member of the 
uniformed services.
    Government means the United States Government.
    Special Government employee means an officer or employee specified 
in 18 U.S.C. 202(a) except one who is employed in the legislative branch 
or by the District of Columbia.
    Uniformed services has the meaning given that term by 5 U.S.C. 
2101(3).



Sec. 735.102  What are the grounds for disciplinary action?

    An employee's violation of any of the regulations in subpart B of 
this part may be cause for disciplinary action by the employee's agency, 
which may be in addition to any penalty prescribed by law.



Sec. 735.103  What other regulations pertain to employee conduct?

    In addition to the standards of conduct in subpart B of this part, 
an employee shall comply with the standards of ethical conduct in 5 CFR 
part 2635, as well as any supplemental regulation issued by the 
employee's agency under 5 CFR 2635.105. An employee's violation of those 
regulations may cause the employee's agency to take disciplinary action, 
or corrective action as that term is used in 5 CFR part 2635. Such 
disciplinary action or corrective action may be in addition to any 
penalty prescribed by law.



                     Subpart B_Standards of Conduct



Sec. 735.201  What are the restrictions on gambling?

    (a) While on Government-owned or leased property or on duty for the 
Government, an employee shall not conduct or participate in any gambling 
activity, including operating a gambling device, conducting a lottery or 
pool, participating in a game for money or property, or selling or 
purchasing a numbers slip or ticket.
    (b) This section does not preclude activities:
    (1) Necessitated by an employee's official duties; or
    (2) Occurring under section 7 of Executive Order 12353 and similar 
agency-approved activities.



Sec. 735.202  What are the restrictions on conduct that safeguard
the examination process?

    (a) An employee shall not, with or without compensation, teach, 
lecture, or write for the purpose of the preparation of a person or 
class of persons for an examination of the Office of Personnel 
Management (OPM) or other agency to which examining authority has been 
delegated, or Board of Examiners for the Foreign Service that depends on 
information obtained as a result of the employee's Government 
employment.
    (b) This section does not preclude the preparation described in 
paragraph (a) of this section if:
    (1) The information upon which the preparation is based has been 
made available to the general public or will be made available on 
request; or
    (2) Such preparation is authorized in writing by the Director of 
OPM, or his or her designee, or by the head of an agency to which 
examining authority had been delegated, or his or her designee, or by 
the Director General of the Foreign Service, or his or her designee, as 
applicable.

[[Page 62]]



Sec. 735.203  What are the restrictions on conduct prejudicial
to the Government?

    An employee shall not engage in criminal, infamous, dishonest, 
immoral, or notoriously disgraceful conduct, or other conduct 
prejudicial to the Government.



PART 736_PERSONNEL INVESTIGATIONS--Table of Contents



                             Subpart A_Scope

Sec.
736.101 Purpose and definitions.
736.102 Notice to investigative sources.
736.103 Protecting the identity of a source.
736.104 Public availability of investigative files.

                  Subpart B_Investigative Requirements

736.201 Responsibilities of OPM and other Federal agencies.

    Authority: Pub. L. 93-579; (5 U.S.C. 552a).

    Source: 56 FR 18655, Apr. 23, 1991, unless otherwise noted.



                             Subpart A_Scope



Sec. 736.101  Purpose and definitions.

    (a) Purpose. The purpose of this part is to specify certain 
requirements for personnel investigations conducted by OPM, and for 
those conducted under delegated authority from OPM. The requirements of 
this part apply to suitability and national security investigations 
conducted under parts 731 and 732 of this chapter; they also apply to 
investigations to determine eligibility or qualifications not covered in 
parts 731 and 732 of this chapter. The requirements of this part apply 
to employees in the civil service of the Executive Branch and to persons 
performing contract, voluntary or indirect services for the Federal 
Government, as set forth in subsection (b) below.
    (b) Definitions. For the purposes of this part, (1) Federal 
employment includes the following range of services performed for the 
Federal government: (i) All employment in the competitive or excepted 
service or the Senior Executive Service in the Executive Branch; (ii) 
appointments, salaried or unsalaried, to Federal Advisory Committees or 
to membership agencies; (iii) cooperative work assignments in which the 
individual has access to Federal materials such as examination booklets, 
or performs service for, or under supervision of, a Federal agency while 
being paid by another organization such as a State or local government; 
(iv) volunteer arrangements in which the individual performs service 
for, or under the supervision of, a Federal agency; and (v) volunteer or 
other arrangements in which the individual represents the United States 
Government or any agency thereof.
    (2) Agency means any authority of the Government of the United 
States, whether or not it is within or subject to review by another 
agency, and includes any executive department, military department, 
Government corporation, Government-controlled corporation, or other 
establishment in the executive branch of the Government, or any 
independent regulatory agency.
    (3) Personnel investigation means an investigation conducted by 
written or telephone inquiries or through personal contacts to determine 
the suitability, eligibility, or qualifications of individuals for 
Federal employment, for work on Federal contracts, or for access to 
classified information or restricted areas.



Sec. 736.102  Notice to investigative sources.

    (a) The agency investigator will notify the source from whom 
information is requested, whether in person or by telephone, of the 
purpose for which the information is being sought and of the uses that 
may be made of the information. The interviewing agent must notify each 
person interviewed and each custodian of records contacted that all 
information provided, including the record source's identity, may be 
disclosed upon the request of the subject of the investigation.
    (b) The interviewing agent may grant a pledge to keep confidential 
the identity of an information source upon specific request by the 
source. In addition, the agent has discretion to offer the source a 
pledge of confidentiality where the agent believes that such a pledge is 
necessary to obtain information pertinent to the investigation. A pledge 
of confidentiality may not be

[[Page 63]]

assumed by the source. The interviewing agent may not suggest to a 
source that the source request confidentiality.
    (c) Where information is requested by written inquiry, the form, 
instructions, or correspondence used by an agency will include: (1) 
Notification that all information furnished by the source, including the 
source's identity, except for custodians of law enforcement or 
educational records, may be disclosed upon the request of the subject of 
the investigation; and (2) Space for the information source to request a 
pledge that the source's identity will not be disclosed to the subject 
of the investigation; or (3) An offer to make special arrangements to 
obtain significant information which the source feels unable to furnish 
without a promise that the source's identity will be kept confidential.
    (d) A pledge of confidentiality, if granted, extends only to the 
identity of the source, and to any information furnished by the source 
that would reveal the identity of the source.



Sec. 736.103  Protecting the identity of a source.

    When a source is granted a promise that the source's identity will 
be kept confidential, the investigative agency and all other agencies 
that receive information obtained under the promise are required to take 
all reasonable precautions to protect the source's identity. Each agency 
will prepare for its investigators and agents implementing instructions 
consistent with this part.



Sec. 736.104  Public availability of investigative files.

    (a) Investigative files are records subject to the Privacy Act and 
the Freedom of Information Act and are made available to requesters in 
accordance with the provisions of those Acts.
    (b) Requests for investigative records are to be submitted to the 
Office of Personnel Management, Federal Investigations Processing 
Center, FOI/PA, Boyers, Pennsylvania 16018.



                  Subpart B_Investigative Requirements



Sec. 736.201  Responsibilities of OPM and other Federal agencies.

    (a) Unless provided otherwise by law, the investigation of persons 
entering or employed in the competitive service, or by career 
appointment in the Senior Executive Service, is the responsibility of 
OPM.
    (b) Requests for delegated investigating authority. Agencies may 
request delegated authority from OPM to conduct or contract out 
investigations of persons entering or employed in the competitive 
service or by career appointment in the Senior Executive Service. Such 
requests shall be made in writing by agency heads, or designees, and 
specify the reason(s) for the request.
    (c) Timing of investigations. Investigations required for positions 
must be initiated within 14 days of placement in the position except 
for: Positions designated Critical-Sensitive under part 732 of this 
chapter must be completed preplacement, or post-placement with approval 
of a waiver in accordance with Sec. 732.202(a) of this chapter; and for 
positions designated Special-Sensitive under part 732 of this chapter 
must be completed preplacement.



PART 752_ADVERSE ACTIONS--Table of Contents



Subpart A [Reserved]

  Subpart B_Regulatory Requirements for Suspension for 14 Days or Less

Sec.
752.201 Coverage.
752.202 Standard for action.
752.203 Procedures.

Subpart C [Reserved]

Subpart D_Regulatory Requirements for Removal, Suspension for More Than 
   14 Days, Reduction in Grade or Pay, or Furlough for 30 Days or Less

752.401 Coverage.
752.402 Definitions.
752.403 Standard for action.
752.404 Procedures.
752.405 Appeal and grievance rights.
752.406 Agency records.

[[Page 64]]

Subpart E [Reserved]

 Subpart F_Regulatory Requirements for Taking Adverse Actions Under the 
                        Senior Executive Service

752.601 Coverage.
752.602 Definitions.
752.603 Standard for action.
752.604 Procedures.
752.605 Appeal rights.
752.606 Agency records.

    Authority: 5 U.S.C. 7504, 7514, and 7543.

    Source: 74 FR 63532, Dec. 4, 2009, unless otherwise noted.

Subpart A [Reserved]



  Subpart B_Regulatory Requirements for Suspension for 14 Days or Less



Sec. 752.201  Coverage.

    (a) Adverse actions covered. This subpart covers suspension for 14 
days or less.
    (b) Employees covered. This subpart covers:
    (1) An employee in the competitive service who has completed a 
probationary or trial period;
    (2) An employee in the competitive service serving in an appointment 
which requires no probationary or trial period, and who has completed 1 
year of current continuous employment in the same or similar positions 
under other than a temporary appointment limited to 1 year or less;
    (3) An employee with competitive status who occupies a position 
under Schedule B of part 213 of this chapter;
    (4) An employee who was in the competitive service at the time his 
or her position was first listed under Schedule A, B, or C of the 
excepted service and still occupies that position;
    (5) An employee of the Department of Veterans Affairs appointed 
under section 7401(3) of title 38, United States Code; and
    (6) An employee of the Government Printing Office.
    (c) Exclusions. This subpart does not apply to a suspension for 14 
days or less:
    (1) Of an administrative law judge under 5 U.S.C. 7521;
    (2) Taken for national security reasons under 5 U.S.C. 7532;
    (3) Taken under any other provision of law which excepts the action 
from subchapter I, chapter 75, of title 5, U.S. Code;
    (4) Of a reemployed annuitant; or
    (5) Of a National Guard Technician.
    (d) Definitions. In this subpart--
    Current continuous employment means a period of employment 
immediately preceding a suspension action without a break in Federal 
civilian employment of a workday.
    Day means a calendar day.
    Similar positions means positions in which the duties performed are 
similar in nature and character and require substantially the same or 
similar qualifications, so that the incumbent could be interchanged 
between the positions without significant training or undue interruption 
to the work.
    Suspension means the placing of an employee, for disciplinary 
reasons, in a temporary status without duties and pay.



Sec. 752.202  Standard for action.

    (a) An agency may take action under this subpart for such cause as 
will promote the efficiency of the service as set forth in 5 U.S.C. 
7503(a).
    (b) An agency may not take a suspension against an employee on the 
basis of any reason prohibited by 5 U.S.C. 2302.



Sec. 752.203  Procedures.

    (a) Statutory entitlements. An employee under this subpart whose 
suspension is proposed under this subpart is entitled to the procedures 
provided in 5 U.S.C. 7503(b).
    (b) Notice of proposed action. The notice must state the specific 
reason(s) for the proposed action, and inform the employee of his or her 
right to review the material which is relied on to support the reasons 
for action given in the notice.
    (c) Employee's answer. The employee must be given a reasonable time, 
but not less than 24 hours, to answer orally and in writing and to 
furnish affidavits and other documentary evidence in support of the 
answer.
    (d) Representation. An employee covered by this subpart is entitled 
to be

[[Page 65]]

represented by an attorney or other representative. An agency may 
disallow as an employee's representative an individual whose activities 
as representative would cause a conflict of interest or position, or an 
employee of the agency whose release from his or her official position 
would give rise to unreasonable costs or whose priority work assignments 
preclude his or her release.
    (e) Agency decision. (1) In arriving at its decision, the agency 
will consider only the reasons specified in the notice of proposed 
action and any answer of the employee or his or her representative, or 
both, made to a designated official.
    (2) The agency must specify in writing the reason(s) for the 
decision and advise the employee of any grievance rights under paragraph 
(f) of this section. The agency must deliver the notice of decision to 
the employee on or before the effective date of the action.
    (f) Grievances. The employee may file a grievance through an agency 
administrative grievance system (if applicable) or, if the suspension 
falls within the coverage of an applicable negotiated grievance 
procedure, an employee in an exclusive bargaining unit may file a 
grievance only under that procedure. Sections 7114(a)(5) and 
7121(b)(1)(C) of title 5, U.S. Code, and the terms of any collective 
bargaining agreement, govern representation for employees in an 
exclusive bargaining unit who grieve a suspension under this subpart 
through the negotiated grievance procedure.
    (g) Agency records. The agency must maintain copies of, and will 
furnish to the Merit Systems Protection Board and to the employee upon 
their request, the following documents:
    (1) Notice of the proposed action;
    (2) Employee's written reply, if any;
    (3) Summary of the employee's oral reply, if any;
    (4) Notice of decision; and
    (5) Any order effecting the suspension, together with any supporting 
material.

Subpart C [Reserved]



Subpart D_Regulatory Requirements for Removal, Suspension for More Than 
   14 Days, Reduction in Grade or Pay, or Furlough for 30 Days or Less



Sec. 752.401  Coverage.

    (a) Adverse actions covered. This subpart applies to the following 
actions:
    (1) Removals;
    (2) Suspensions for more than 14 days, including indefinite 
suspensions;
    (3) Reductions in grade;
    (4) Reductions in pay; and
    (5) Furloughs of 30 days or less.
    (b) Actions excluded. This subpart does not apply to:
    (1) An action imposed by the Merit Systems Protection Board under 
the authority of 5 U.S.C. 1215;
    (2) The reduction in grade of a supervisor or manager who has not 
completed the probationary period under 5 U.S.C. 3321(a)(2) if such a 
reduction is to the grade held immediately before becoming a supervisor 
or manager;
    (3) A reduction-in-force action under 5 U.S.C. 3502;
    (4) A reduction in grade or removal under 5 U.S.C. 4303;
    (5) An action against an administrative law judge under 5 U.S.C. 
7521;
    (6) A suspension or removal under 5 U.S.C. 7532;
    (7) Actions taken under any other provision of law which excepts the 
action from subchapter II of chapter 75 of title 5, United States Code;
    (8) Action that entitles an employee to grade retention under part 
536 of this chapter, and an action to terminate this entitlement;
    (9) A voluntary action by the employee;
    (10) Action taken or directed by the Office of Personnel Management 
under part 731 of this chapter;
    (11) Termination of appointment on the expiration date specified as 
a basic condition of employment at the time the appointment was made;
    (12) Action that terminates a temporary or term promotion and 
returns the employee to the position from which temporarily promoted, or 
to a different position of equivalent grade and pay, if the agency 
informed the employee that it was to be of limited duration;

[[Page 66]]

    (13) Cancellation of a promotion to a position not classified prior 
to the promotion;
    (14) Placement of an employee serving on an intermittent or seasonal 
basis in a temporary nonduty, nonpay status in accordance with 
conditions established at the time of appointment; or
    (15) Reduction of an employee's rate of basic pay from a rate that 
is contrary to law or regulation, including a reduction necessary to 
comply with the amendments made by Public Law 108-411, regarding pay-
setting under the General Schedule and Federal Wage System and 
regulations implementing those amendments.
    (c) Employees covered. This subpart covers:
    (1) A career or career conditional employee in the competitive 
service who is not serving a probationary or trial period;
    (2) An employee in the competitive service who has completed 1 year 
of current continuous service under other than a temporary appointment 
limited to 1 year or less;
    (3) An employee in the excepted service who is a preference eligible 
in an Executive agency as defined at section 105 of title 5, United 
States Code, the U.S. Postal Service, or the Postal Regulatory 
Commission and who has completed 1 year of current continuous service in 
the same or similar positions;
    (4) A Postal Service employee covered by Public Law 100-90 who has 
completed 1 year of current continuous service in the same or similar 
positions and who is either a supervisory or management employee or an 
employee engaged in personnel work in other than a purely 
nonconfidential clerical capacity;
    (5) An employee in the excepted service who is a nonpreference 
eligible in an Executive agency as defined at section 105 of title, 5, 
United States Code, and who has completed 2 years of current continuous 
service in the same or similar positions under other than a temporary 
appointment limited to 2 years or less;
    (6) An employee with competitive status who occupies a position in 
Schedule B of part 213 of this chapter;
    (7) An employee who was in the competitive service at the time his 
or her position was first listed under Schedule A, B, or C of the 
excepted service and who still occupies that position;
    (8) An employee of the Department of Veterans Affairs appointed 
under section 7401(3) of title 38, United States Code; and
    (9) An employee of the Government Printing Office.
    (d) Employees excluded. This subpart does not apply to:
    (1) An employee whose appointment is made by and with the advice and 
consent of the Senate;
    (2) An employee whose position has been determined to be of a 
confidential, policy-determining, policy-making, or policy-advocating 
character by the President for a position that the President has 
excepted from the competitive service; the Office of Personnel 
Management for a position that the Office has excepted from the 
competitive service (Schedule C); or the President or the head of an 
agency for a position excepted from the competitive service by statute;
    (3) A Presidential appointee;
    (4) A reemployed annuitant;
    (5) A technician in the National Guard described in section 
8337(h)(1) of title 5, United States Code, who is employed under section 
709(a) of title 32, United States Code;
    (6) A Foreign Service member as described in section 103 of the 
Foreign Service Act of 1980;
    (7) An employee of the Central Intelligence Agency or the Government 
Accountability Office;
    (8) An employee of the Veterans Health Administration (Department of 
Veterans Affairs) in a position which has been excluded from the 
competitive service by or under a provision of title 38, United States 
Code, unless the employee was appointed to the position under section 
7401(3) of title 38, United States Code;
    (9) A nonpreference eligible employee with the U.S. Postal Service, 
the Postal Regulatory Commission, the Panama Canal Commission, the 
Tennessee Valley Authority, the Federal Bureau of Investigation, the 
National Security

[[Page 67]]

Agency, the Defense Intelligence Agency, or any other intelligence 
component of the Department of Defense (as defined in section 1614 of 
title 10, United States Code), or an intelligence activity of a military 
department covered under subchapter I of chapter 83 of title 10, United 
States Code;
    (10) An employee described in section 5102(c)(11) of title 5, United 
States Code, who is an alien or noncitizen occupying a position outside 
the United States;
    (11) A nonpreference eligible employee serving a probationary or 
trial period under an initial appointment in the excepted service 
pending conversion to the competitive service, unless he or she meets 
the requirements of paragraph (c)(5) of this section;
    (12) An employee whose agency or position has been excluded from the 
appointing provisions of title 5, United States Code, by separate 
statutory authority in the absence of any provision to place the 
employee within the coverage of chapter 75 of title 5, United States 
Code; and
    (13) An employee in the competitive service serving a probationary 
or trial period, unless he or she meets the requirements of paragraph 
(c)(2) of this section.



Sec. 752.402  Definitions.

    In this subpart--
    Current continuous employment means a period of employment or 
service immediately preceding an adverse action without a break in 
Federal civilian employment of a workday.
    Day means a calendar day.
    Furlough means the placing of an employee in a temporary status 
without duties and pay because of lack of work or funds or other 
nondisciplinary reasons.
    Grade means a level of classification under a position 
classification system.
    Indefinite suspension means the placing of an employee in a 
temporary status without duties and pay pending investigation, inquiry, 
or further agency action. The indefinite suspension continues for an 
indeterminate period of time and ends with the occurrence of the pending 
conditions set forth in the notice of action which may include the 
completion of any subsequent administrative action.
    Pay means the rate of basic pay fixed by law or administrative 
action for the position held by the employee, that is, the rate of pay 
before any deductions and exclusive of additional pay of any kind.
    Similar positions means positions in which the duties performed are 
similar in nature and character and require substantially the same or 
similar qualifications, so that the incumbent could be interchanged 
between the positions without significant training or undue interruption 
to the work.
    Suspension means the placing of an employee, for disciplinary 
reasons, in a temporary status without duties and pay for more than 14 
days.



Sec. 752.403  Standard for action.

    (a) An agency may take an adverse action, including a performance-
based adverse action or an indefinite suspension, under this subpart 
only for such cause as will promote the efficiency of the service.
    (b) An agency may not take an adverse action against an employee on 
the basis of any reason prohibited by 5 U.S.C. 2302.



Sec. 752.404  Procedures.

    (a) Statutory entitlements. An employee against whom action is 
proposed under this subpart is entitled to the procedures provided in 5 
U.S.C. 7513(b).
    (b) Notice of proposed action. (1) An employee against whom an 
action is proposed is entitled to at least 30 days' advance written 
notice unless there is an exception pursuant to paragraph (d) of this 
section. The notice must state the specific reason(s) for the proposed 
action, and inform the employee of his or her right to review the 
material which is relied on to support the reasons for action given in 
the notice.
    (2) When some but not all employees in a given competitive level are 
being furloughed, the notice of proposed action must state the basis for 
selecting a particular employee for furlough, as well as the reasons for 
the furlough.
    (3) Under ordinary circumstances, an employee whose removal or 
suspension, including indefinite suspension, has been proposed will 
remain in a duty

[[Page 68]]

status in his or her regular position during the advance notice period. 
In those rare circumstances where the agency determines that the 
employee's continued presence in the workplace during the notice period 
may pose a threat to the employee or others, result in loss of or damage 
to Government property, or otherwise jeopardize legitimate Government 
interests, the agency may elect one or a combination of the following 
alternatives:
    (i) Assigning the employee to duties where he or she is no longer a 
threat to safety, the agency mission, or to Government property;
    (ii) Allowing the employee to take leave, or carrying him or her in 
an appropriate leave status (annual, sick, leave without pay, or absence 
without leave) if the employee has absented himself or herself from the 
worksite without requesting leave;
    (iii) Curtailing the notice period when the agency can invoke the 
provisions of paragraph (d)(1) of this section; or
    (iv) Placing the employee in a paid, nonduty status for such time as 
is necessary to effect the action.
    (c) Employee's answer. (1) An employee may answer orally and in 
writing except as provided in paragraph (c)(2) of this section. The 
agency must give the employee a reasonable amount of official time to 
review the material relied on to support its proposed action, to prepare 
an answer orally and in writing, and to secure affidavits, if the 
employee is in an active duty status. The agency may require the 
employee to furnish any answer to the proposed action, and affidavits 
and other documentary evidence in support of the answer, within such 
time as would be reasonable, but not less than 7 days.
    (2) The agency will designate an official to hear the employee's 
oral answer who has authority either to make or recommend a final 
decision on the proposed adverse action. The right to answer orally in 
person does not include the right to a formal hearing with examination 
of witnesses unless the agency provides for such hearing in its 
regulations. Under 5 U.S.C. 7513(c), the agency may, in its regulations, 
provide a hearing in place of or in addition to the opportunity for 
written and oral answer.
    (3) If the employee wishes the agency to consider any medical 
condition which may contribute to a conduct, performance, or leave 
problem, the employee must be given a reasonable time to furnish medical 
documentation (as defined in Sec. 339.104 of this chapter) of the 
condition. Whenever possible, the employee will supply such 
documentation within the time limits allowed for an answer.
    (d) Exceptions. (1) Section 7513(b) of title 5, U.S. Code, 
authorizes an exception to the 30 days' advance written notice when the 
agency has reasonable cause to believe that the employee has committed a 
crime for which a sentence of imprisonment may be imposed and is 
proposing a removal or suspension, including indefinite suspension. This 
notice exception is commonly referred to as the ``crime provision.'' 
This provision may be invoked even in the absence of judicial action.
    (2) The advance written notice and opportunity to answer are not 
required for furlough without pay due to unforeseeable circumstances, 
such as sudden breakdowns in equipment, acts of God, or sudden 
emergencies requiring immediate curtailment of activities.
    (e) Representation. Section 7513(b)(3) of title 5, U.S. Code, 
provides that an employee covered by this part is entitled to be 
represented by an attorney or other representative. An agency may 
disallow as an employee's representative an individual whose activities 
as representative would cause a conflict of interest or position, or an 
employee of the agency whose release from his or her official position 
would give rise to unreasonable costs or whose priority work assignments 
preclude his or her release.
    (f) Agency review of medical information. When medical information 
is supplied by the employee pursuant to paragraph (c)(3) of this 
section, the agency may, if authorized, require a medical examination 
under the criteria of Sec. 339.301 of this chapter, or otherwise, at 
its option, offer a medical examination in accordance with the criteria 
of Sec. 339.302 of this chapter. If the employee has the requisite 
years of service under the Civil Service Retirement System

[[Page 69]]

or the Federal Employees' Retirement System, the agency must provide 
information concerning disability retirement. The agency must be aware 
of the affirmative obligations of the provisions of 29 CFR 1614.203, 
which require reasonable accommodation of a qualified individual with a 
disability.
    (g) Agency decision. (1) In arriving at its decision, the agency 
will consider only the reasons specified in the notice of proposed 
action and any answer of the employee or his or her representative, or 
both, made to a designated official and any medical documentation 
reviewed under paragraph (f) of this section.
    (2) The notice must specify in writing the reasons for the decision 
and advise the employee of any appeal or grievance rights under Sec. 
752.405 of this part. The agency must deliver the notice of decision to 
the employee on or before the effective date of the action.
    (h) Applications for disability retirement. Section 831.1204(e) of 
this chapter provides that an employee's application for disability 
retirement need not delay any other appropriate personnel action. 
Section 831.1205 and Sec. 844.202 of this chapter set forth the basis 
under which an agency must file an application for disability retirement 
on behalf of an employee.



Sec. 752.405  Appeal and grievance rights.

    (a) Appeal rights. Under the provisions of 5 U.S.C. 7513(d), an 
employee against whom an action is taken under this subpart is entitled 
to appeal to the Merit Systems Protection Board.
    (b) Grievance rights. As provided at 5 U.S.C. 7121(e)(1), if a 
matter covered by this subpart falls within the coverage of an 
applicable negotiated grievance procedure, an employee may elect to file 
a grievance under that procedure or appeal to the Merit Systems 
Protection Board under 5 U.S.C. 7701, but not both. Sections 7114(a)(5) 
and 7121(b)(1)(C) of title 5, U.S. Code, and the terms of an applicable 
collective bargaining agreement, govern representation for employees in 
an exclusive bargaining unit who grieve a matter under this subpart 
through the negotiated grievance procedure.



Sec. 752.406  Agency records.

    The agency must maintain copies of, and will furnish to the Merit 
Systems Protection Board and to the employee upon his or her request, 
the following documents:
    (a) Notice of the proposed action;
    (b) Employee's written reply, if any;
    (c) Summary of the employee's oral reply, if any;
    (d) Notice of decision; and
    (e) Any order effecting the action, together with any supporting 
material.

Subpart E [Reserved]



 Subpart F_Regulatory Requirements for Taking Adverse Action Under the 
                        Senior Executive Service



Sec. 752.601  Coverage.

    (a) Adverse actions covered. This subpart applies to suspensions for 
more than 14 days and removals from the civil service as set forth in 5 
U.S.C. 7542.
    (b) Actions excluded. (1) An agency may not take a suspension action 
of 14 days or less.
    (2) This subpart does not apply to actions taken under 5 U.S.C. 
1215, 3592, 3595, or 7532.
    (c) Employees covered. This subpart covers the following appointees:
    (1) A career appointee--
    (i) Who has completed the probationary period in the Senior 
Executive Service;
    (ii) Who is not required to serve a probationary period in the 
Senior Executive Service; or
    (iii) Who was covered under 5 U.S.C. 7511 immediately before 
appointment to the Senior Executive Service.
    (2) A limited term or limited emergency appointee--
    (i) Who received the limited appointment without a break in service 
in the same agency as the one in which the employee held a career or 
career-conditional appointment (or an appointment of equivalent tenure 
as determined by the Office of Personnel Management) in a permanent 
civil service position outside the Senior Executive Service; and

[[Page 70]]

    (ii) Who was covered under 5 U.S.C. 7511 immediately before 
appointment to the Senior Executive Service.
    (d) Employees excluded. This subpart does not cover an appointee who 
is serving as a reemployed annuitant.



Sec. 752.602  Definitions.

    In this subpart--
    Career appointee, limited term appointee, and limited emergency 
appointee have the meaning given in 5 U.S.C. 3132(a).
    Day means calendar day.
    Suspension has the meaning given in 5 U.S.C. 7501(2).



Sec. 752.603  Standard for action.

    (a) An agency may take an adverse action under this subpart only for 
reasons of misconduct, neglect of duty, malfeasance, or failure to 
accept a directed reassignment or to accompany a position in a transfer 
of function.
    (b) An agency may not take an adverse action under this subpart on 
the basis of any reason prohibited by 5 U.S.C. 2302.



Sec. 752.604  Procedures.

    (a) Statutory entitlements. An appointee against whom action is 
proposed under this subpart is entitled to the procedures provided in 5 
U.S.C. 7543(b).
    (b) Notice of proposed action. (1) An appointee against whom an 
action is proposed is entitled to at least 30 days' advance written 
notice unless there is an exception pursuant to paragraph (d) of this 
section. The notice must state the specific reason(s) for the proposed 
action, and inform the appointee of his or her right to review the 
material that is relied on to support the reasons for action given in 
the notice.
    (2) Under ordinary circumstances, an appointee whose removal has 
been proposed will remain in a duty status in his or her regular 
position during the advance notice period. In those rare circumstances 
where the agency determines that the appointee's continued presence in 
the work place during the notice period may pose a threat to the 
appointee or others, result in loss of or damage to Government property, 
or otherwise jeopardize legitimate Government interests, the agency may 
elect one or a combination of the following alternatives:
    (i) Assigning the appointee to duties where he or she is no longer a 
threat to safety, the agency mission, or Government property;
    (ii) Allowing the appointee to take leave, or carrying him or her in 
an appropriate leave status (annual, sick, leave without pay, or absence 
without leave) if the appointee has absented himself or herself from the 
worksite without requesting leave;
    (iii) Curtailing the notice period when the agency can invoke the 
provisions of paragraph (d) of this section; or
    (iv) Placing the appointee in a paid, nonduty status for such time 
as is necessary to effect the action.
    (c) Appointee's answer. (1) The appointee may answer orally and in 
writing except as provided in paragraph (c)(2) of this section. The 
agency must give the appointee a reasonable amount of official time to 
review the material relied on to support its proposed action, to prepare 
an answer orally and in writing, and to secure affidavits, if the 
appointee is in an active duty status. The agency may require the 
appointee to furnish any answer to the proposed action, and affidavits 
and other documentary evidence in support of the answer, within such 
time as would be reasonable, but not less than 7 days.
    (2) The agency will designate an official to hear the appointee's 
oral answer who has authority either to make or to recommend a final 
decision on the proposed adverse action. The right to answer orally in 
person does not include the right to a formal hearing with examination 
of witnesses unless the agency provides for such hearing in its 
regulations. Under 5 U.S.C. 7543(c), the agency may in its regulations 
provide a hearing in place of or in addition to the opportunity for 
written and oral answer.
    (3) If the appointee wishes the agency to consider any medical 
condition that may have affected the basis for the adverse action, the 
appointee must be given reasonable time to furnish medical documentation 
(as defined in Sec. 339.104 of this chapter) of the condition. Whenever 
possible, the appointee

[[Page 71]]

will supply such documentation within the time limits allowed for an 
answer.
    (d) Exception. Section 7543(b)(1) of title 5, U.S. Code, authorizes 
an exception to the 30 days' advance written notice when the agency has 
reasonable cause to believe that the appointee has committed a crime for 
which a sentence of imprisonment may be imposed and is proposing a 
removal or suspension. This notice exception is commonly referred to as 
the ``crime provision.'' This provision may be invoked even in the 
absence of judicial action.
    (e) Representation. Section 7543(b)(3) of title 5, U.S. Code, 
provides that an appointee covered by this part is entitled to be 
represented by an attorney or other representative. An agency may 
disallow as an appointee's representative an individual whose activities 
as representative would cause a conflict of interest or position, or an 
employee of the agency whose release from his or her official position 
would give rise to unreasonable costs or whose priority work assignments 
preclude his or her release.
    (f) Agency review of medical information. When medical information 
is supplied by the appointee pursuant to paragraph (c)(3) of this 
section, the agency may, if authorized, require a medical examination 
under the criteria of Sec. 339.301 of this chapter, or otherwise, at 
its option, offer a medical examination in accordance with the criteria 
of Sec. 339.302 of this chapter. If the appointee has the requisite 
years of service under the Civil Service Retirement System or the 
Federal Employees' Retirement System, the agency must provide 
information concerning disability retirement. The agency must be aware 
of the affirmative obligations of the provisions of 29 CFR 1614.203, 
which require reasonable accommodation of a qualified individual with a 
disability.
    (g) Agency decision. (1) In arriving at its decision, the agency 
will consider only the reasons specified in the notice of proposed 
action and any answer of the appointee or the appointee's 
representative, or both, made to a designated official and any medical 
documentation reviewed under paragraph (f) of this section.
    (2) The notice must specify in writing the reasons for the decision 
and advise the appointee of any appeal rights under Sec. 752.605 of 
this part. The agency must deliver the notice of decision to the 
appointee on or before the effective date of the action.
    (h) Applications for disability retirement. Section 831.1204(e) of 
this chapter provides that an appointee's application for disability 
retirement need not delay any other appropriate personnel action. 
Section 831.1205 and Sec. 844.202 of this chapter set forth the basis 
under which an agency must file an application for disability retirement 
on behalf of an appointee.



Sec. 752.605  Appeal rights.

    (a) Under 5 U.S.C. 7543(d), a career appointee against whom an 
action is taken under this subpart is entitled to appeal to the Merit 
Systems Protection Board.
    (b) A limited term or limited emergency appointee who is covered 
under Sec. 752.601(c)(2) also may appeal an action taken under this 
subpart to the Merit Systems Protection Board.



Sec. 752.606  Agency records.

    The agency must maintain copies of, and will furnish to the Merit 
Systems Protection Board and to the appointee upon his or her request, 
the following documents:
    (a) Notice of the proposed action;
    (b) Appointee's written reply, if any;
    (c) Summary of the appointee's oral reply, if any;
    (d) Notice of decision; and
    (e) Any order effecting the action, together with any supporting 
material.

                           PART 754 [RESERVED]



PART 771_AGENCY ADMINISTRATIVE GRIEVANCE SYSTEM--Table of Contents



    Authority: 5 U.S.C. 1302, 3301, 3302, 7301; E.O. 9830, 3 CFR 1945-
1948 Comp., pp. 606-624; E.O. 11222, 3 CFR 1964-1969 Comp., p. 306.



Sec. 771.101  Continuation of Grievance Systems.

    Each administrative grievance system in operation as of October 11, 
1995, that has been established under former

[[Page 72]]

regulations under this part must remain in effect until the system is 
either modified by the agency or replaced with another dispute 
resolution process.

[60 FR 47040, Sept. 11, 1995]



PART 772_INTERIM RELIEF--Table of Contents



                            Subpart A_General

Sec.
772.101 Basic authority.
772.102 Interim personnel actions.

    Authority: 5 U.S.C. 1302, 3301, 3302, and 7301; Pub. L. 101-12.

    Source: 57 FR 3712, Jan. 31, 1992, unless otherwise noted.



                            Subpart A_General



Sec. 772.101  Basic authority.

    This part establishes a mechanism for agencies to provide interim 
relief to employees and applicants for employment who prevail in an 
initial decision issued by the Merit Systems Protection Board (MSPB) as 
required by the Whistleblower Protection Act of 1989, Pub. L. 101-12 
(codified at 5 U.S.C. 7701(b)(2)(A)). The interim relief provisions of 
the law are applicable whether or not alleged reprisal for 
whistleblowing is at issue in an appeal to MSPB.



Sec. 772.102  Interim personnel actions.

    When an employee or applicant for employment appeals an action to 
MSPB and the appeal results in an initial decision by an MSPB 
administrative judge granting interim relief under 5 U.S.C. 
7701(b)(2)(A) and a petition for review of the initial decision is filed 
(or will be filed) with the full Board under 5 U.S.C. 7701(e)(1)(A), the 
agency shall provide the relief ordered in the initial decision by 
taking an interim personnel action subject to the following terms:
    (a) Interim personnel actions shall be made effective upon the date 
of issuance of the initial decision and must be initiated on or before 
the date of a petition for review by the agency or within a reasonable 
period after the date it becomes aware of a petition for review by the 
appellant;
    (b) The relief provided by interim personnel actions shall end:
    (1) When the full Board issues a final decision on a petition for 
review filed by an applicant for employment, employee, and/or agency 
under 5 U.S.C. 7701(e)(1)(A),
    (2) When the initial decision becomes final pursuant to an action of 
the full Board or pursuant to a decision by an applicant for employment, 
employee, and/or agency to withdraw (or change intentions to file) any 
petition for review filed under 5 U.S.C. 7701(e)(1)(A), or
    (3) When the applicant for employment or employee requests or 
reaches agreement with the agency that the interim relief ordered in the 
initial decision be cancelled;
    (c) Interim relief shall entitle the applicant for employment or 
employee to the same compensation and benefits he or she would receive 
if the relief effected had not been on an interim basis except as 
provided in paragraph (f) of this section;
    (d) An interim personnel action shall not be taken if the MSPB 
administrative judge, pursuant to 5 U.S.C. 7701(b)(2)(A)(i), determines 
that granting interim relief is not appropriate;
    (e) An interim personnel action under this part shall not entitle 
the applicant for employment or employee to an award of back pay or 
attorney fees.

[57 FR 3712, Jan. 31, 1992, as amended at 59 FR 36353, July 18, 1994; 59 
FR 65704, Dec. 21, 1994]



PART 792_FEDERAL EMPLOYEES' HEALTH AND COUNSELING PROGRAMS--
Table of Contents



Subpart A_Regulatory Requirements for Alcoholism and Drug Abuse Programs 
               and Services for Federal Civilian Employees

Sec.
792.101 Statutory requirements.
792.102 General.
792.103 Coverage.
792.104 Responsibilities of the Office of Personnel Management.

[[Page 73]]

792.105 Agency responsibilities.

  Subpart B_Agency Use of Appropriated Funds for Child Care Costs for 
     Lower Income Employees_What Is the Child Care Subsidy Program 
                 Legislation and to Whom Does It Apply?

792.200 What are the benefits of the child care subsidy program law?
792.201 What is the purpose of the child care subsidy program law?
792.202 Do agencies have any notification responsibilities before 
          initiating a child care subsidy program and when may agencies 
          obligate funds for the program?
792.203 What materials are available to assist agencies with the process 
          of establishing a child care subsidy program?
792.204 Are there any special reporting and oversight requirements 
          related to the child care subsidy program law?
792.205 Which agency funds may be used for the purpose of child care the 
          subsidy program?
792.206 Are agencies required to participate in this program?
792.207 When does the child care subsidy program law become effective 
          and how may agencies take advantage of this law?
792.208 What is the definition of executive agency?
792.209 What is the definition of child care subsidy program?
792.210 What is the definition of civilian employee?
792.211 What is the definition of a Federally sponsored child care 
          center?
792.212 What is the definition of a child care contractor?
792.213 What is the definition of a child for the purposes of this 
          subpart?
792.214 Which children are eligible for this subsidy?
792.215 What is the definition of a child with disabilities?
792.216 Are Federal employees with children who are enrolled in summer 
          programs and part-time programs eligible for the child care 
          subsidy program?
792.217 Are part-time Federal employees eligible for the child care 
          subsidy program?
792.218 Does the law apply only to on-site Federal child care centers 
          that are utilized by Federal families?
792.219 Are agencies required to negotiate with their Federal labor 
          organizations concerning the implementation of this law?
792.220 What are the requirements that child care providers must meet in 
          order to participate in this program?
792.221 Is there a statutory cap on the amount or the percentage of 
          child care costs that will be subsidized?
792.222 What is the definition of a lower income Federal employee and 
          how is the amount of the child care subsidy determined?
792.223 Who determines if a Federal employee qualifies as a lower income 
          employee and how is the program administered?
792.224 Are child care subsidies paid to the Federal employee using the 
          child care?
792.225 May an agency disburse funds to an organization that administers 
          the child care subsidy program prior to the time the employee 
          receives the child care services?
792.226 How may an agency disburse funds to a Federally sponsored child 
          care center in a multi-tenant building?
792.227 How long will the child care subsidy program be in effect for a 
          Federal employee?
792.228 May these funds be used for children of Federal employees who 
          are already enrolled in child care?
792.229 May an agency place restrictions or requirements on the use of 
          these funds, and may the agency restrict the disbursement of 
          such funds to only one type of care or to one location?
792.230 May an agency use appropriated funds to improve the physical 
          space of the family child care homes or child care centers?
792.231 Is an agency permitted to make advance child care subsidy 
          payments for an individual Federal employee?

    Authority: Sec. 201 of Pub. L. 91-616, 84 Stat. 1849, as amended and 
transferred to sec. 520 of the Public Health Services Act by sec. 2 
(b)(13) of Pub. L. 98-24 (42 U.S.C. 290dd-1) and sec. 413 of Pub. L. 92-
255, 86 Stat. 84, as amended and transferred to sec. 525 of the Public 
Health Service Act by sec. 2(b)(16)(A) of Pub. L. 98-24 (42 U.S. C. 
290ee-l); Sec. 643, Pub. L. 106-58, 113 Stat. 477.



Subpart A_Regulatory Requirements for Alcoholism and Drug Abuse Programs 
               and Services for Federal Civilian Employees



Sec. 792.101  Statutory requirements.

    Sections 290dd-1 and 290ee-1 of 42 United States Code, provide that 
the Office of Personnel Management shall be responsible for developing 
and maintaining, in cooperation with the Secretary of the Department of 
Health and Human Services, and with other Federal departments and 
agencies, appropriate prevention, treatment, and rehabilitation programs 
and services for

[[Page 74]]

Federal civilian employees with alcohol and/or drug problems. To the 
extent feasible, agencies are encouraged to extend services to families 
of alcohol and/or drug abusing employees and to employees who have 
family members who have alcohol and/or drug problems. Such programs and 
services shall make optimal use of existing government facilities, 
services, and skills.

[50 FR 16692, Apr. 29, 1985]



Sec. 792.102  General.

    It is the policy of the Federal Government to offer appropriate 
prevention, treatment, and rehabilitation programs and services for 
Federal civilian employees with alcohol and/or drug problems. Short-term 
counseling and/or referral, or offers thereof, shall constitute the 
appropriate prevention, treatment, and rehabilitation programs and 
services for alcohol abuse, alcoholism, and/or drug abuse required under 
42 U.S.C. 290dd-1(a) and 290ee-1(a). Federal departments and agencies 
must establish programs to assist employees with these problems in 
accordance with the legislation cited in Sec. 792.101.

[50 FR 16692, Apr. 29, 1985]



Sec. 792.103  Coverage.

    This part applies to all positions in Executive agencies as defined 
in section 105 of title 5 of the United States Code, and to those 
positions in the legislative and judicial branch of the Federal 
Government which are in the competitive service.

[49 FR 27921, July 9, 1984]



Sec. 792.104  Responsibilities of the Office of Personnel Management.

    OPM shall provide overall leadership for the Government-wide 
alcoholism and drug abuse program in cooperation with the Secretary of 
Health and Human Services. To accomplish this, OPM shall develop and 
issue policy and program guidance, provide technical assistance to 
agencies, and determine the overall effectiveness of the Government-wide 
program, as well as those programs at individual agencies, based on 
program information required of agencies.

[49 FR 27921, July 9, 1984]



Sec. 792.105  Agency responsibilities.

    (a) Agencies shall establish and administer programs through which 
practitioners who are knowledgeable in counseling and referral services 
can offer and provide employees who have alcohol and/or drug problems 
short-term counseling and/or referrals for long-term counseling or 
treatment.
    (b) Agencies shall issue internal instructions implementing the 
requirements of 42 U.S.C. 290dd-1(a) and 290ee-1(a) and this regulation.
    (c) Whenever a manager/supervisor becomes aware that a Federal 
employee's use of alcohol and/or drugs may be contributing to a 
performance or conduct deficiency, the manager/supervisor shall 
recommend counseling and refer the employee to the agency counseling 
program. If an employee fails to participate in any rehabilitative 
program or, having participated, the employee fails to bring conduct or 
performance up to satisfactory level, the agency shall evaluate the 
employee accordingly and initiate an appropriate performance-based or 
adverse action.
    (d) As requested, agencies shall annually submit a report to OPM on 
their counseling activities for the past fiscal year at a time, and in a 
manner, set by OPM.

[49 FR 27921, July 9, 1984, as amended at 50 FR 16692, Apr. 29, 1985]



  Subpart B_Agency Use of Appropriated Funds for Child Care Costs for 
     Lower Income Employees_What Is the Child Care Subsidy Program 
                 Legislation and to Whom Does It Apply?

    Source: 68 FR 14128, Mar. 24, 2003, unless otherwise noted.



Sec. 792.200  What are the benefits of the child care subsidy program law?

    Sec. 630 of Public Law 107-67 permits executive agencies to use 
appropriated funds to improve the affordability of child care for lower 
income Federal

[[Page 75]]

employees. The law applies to child care in the United States and in 
overseas locations. Employees can benefit from reduced child care rates 
at Federal child care centers, non-Federal child care centers, and in 
family child care homes for both full-time and part-time programs such 
as before and after school programs and daytime summer programs.



Sec. 792.201  What is the purpose of the child care subsidy program law?

    The law is intended to make child care more affordable for lower 
income Federal employees through the use of agency appropriated funds.



Sec. 792.202  Do agencies have any notification responsibilities 
before initiating a child care subsidy program and when may agencies

obligate funds for the 
          program?

    An agency intending to initiate a child care subsidy program must 
provide notice to the House Subcommittee on Treasury, Postal Service and 
General Government Appropriations; to the Senate Subcommittee on 
Treasury and General Government Appropriations; and to its 
appropriations subcommittees prior to the obligation of funds. The 
agency must also notify OPM of its intention. The agency must give 
notice to these Congressional committees and OPM annually, and funds may 
be obligated immediately after the agency has made these notifications.



Sec. 792.203  What materials are available to assist agencies with 
the process of establishing a child care subsidy program?

    OPM has developed guidance that contains samples of memoranda of 
understanding, marketing tools, child care subsidy program applications, 
and models for determining subsidy program eligibility. These materials 
are found in the ``Guide for Implementing Child Care Legislation--Public 
Law 107-67, Sec. 630.'' The Guide is available on OPM's Web site, http:/
/www.opm.gov/wrkfam. Agencies may also obtain a copy by writing to OPM 
at U.S. Office of Personnel Management, Office of Work/Life Programs, 
1900 E St., NW., Washington, DC 20415.



Sec. 792.204  Are there any special reporting and oversight requirements
related to the child care subsidy program law?

    Agencies are responsible for tracking the utilization of their funds 
and reporting the results to OPM. OPM will provide agencies the 
mandatory reporting form for this purpose. OPM also will produce an 
annual report for use by the agencies.



Sec. 792.205  Which agency funds may be used for the purpose of
the child care subsidy program?

    Agencies are permitted to use appropriated funds, including 
revolving funds, that are otherwise available to them for salaries and 
expenses.



Sec. 792.206  Are agencies required to participate in this program?

    Agencies are not required to participate in this program. The 
decision to participate is left to the discretion of the agency. If an 
agency chooses to participate, it may not use funds other than those 
specified in Sec. 792.205.



Sec. 792.207  When does the child care subsidy program law become 
effective and how may agencies take advantage of this law?

    This authority was made permanent on November 12, 2001. Agencies may 
now offer child care subsidy programs to their lower income Federal 
employees to help them reduce their child care costs.



Sec. 792.208  What is the definition of executive agency?

    The term executive agency is defined by section 105 of title 5, 
United States Code, but does not include the General Accounting Office.



Sec. 792.209  What is the definition of child care subsidy program?

    The term child care subsidy program, for the purposes of this 
subpart, means the program that results from the expenditure of agency 
funds to assist lower income Federal employees with child care costs, 
including such activities as: Determining which employees receive a 
subsidy and the size of the subsidy each employee receives; distributing 
agency funds to participating

[[Page 76]]

providers; and tracking and reporting to OPM information such as total 
cost and employee use of the program.



Sec. 792.210  What is the definition of civilian employee?

    The term civilian employee, for the purposes of this subpart, means 
all appointive positions in an executive agency (5 U.S.C. 105). It does 
not refer to private contractors hired by the agencies.



Sec. 792.211  What is the definition of a Federally sponsored
child care center?

    The term Federally sponsored child care center, for the purposes of 
this subpart, is a child care center that is located in a building or 
space that is owned or leased by the Federal Government.



Sec. 792.212  What is the definition of a child care contractor?

    Section 630 of Public Law 107-67 provides that child care services 
provided by contract are encompassed by this new legislation. The term 
child care contractor applies to an organization or individual providing 
child care services for which Federal families are eligible. These 
entities are commonly referred to as ``child care providers'' in the 
child care industry and they provide services under contract in center-
based child care and family child care homes.



Sec. 792.213  What is the definition of a child for the purposes
of this subpart?

    For the purposes of this subpart, a child is considered to be:
    (a) A biological child who lives with the Federal employee;
    (b) An adopted child;
    (c) A stepchild;
    (d) A foster child;
    (e) A child for whom a judicial determination of support has been 
obtained; or
    (f) A child to whose support the Federal employee, who is a parent 
or legal guardian, makes regular and substantial contributions.



Sec. 792.214  Which children are eligible for this subsidy?

    The law covers the children of Federal employees, excluding contract 
employees, from birth through age 13 and disabled children through age 
18.



Sec. 792.215  What is the definition of a child with disabilities?

    For the purpose of this subpart, a child with disabilities is 
defined as one who is unable to care for himself or herself based on a 
physical or mental incapacity as determined by a physician or licensed 
or certified psychologist.



Sec. 792.216  Are Federal employees with children who are enrolled in
summer programs and part-time programs eligible for the 

child care subsidy program?

    Federal employees with children (birth through age 13) and children 
with disabilities (children through age 18) who are enrolled in daytime 
summer programs and part-time programs such as before and after school 
programs are eligible for the child care subsidy program. The summer and 
part-time programs must be licensed and/or regulated.



Sec. 792.217  Are part-time Federal employees eligible for the 
child care subsidy program?

    Federal employees who work part-time are eligible for the child care 
subsidy program.



Sec. 792.218  Does the law apply only to on-site Federal child care 
centers that are utilized by Federal families?

    The bill includes non-Federal center-based child care as well as 
care in family child care homes, as long as the providers are licensed 
and/or regulated by the State and/or local regulating authorities.



Sec. 792.219  Are agencies required to negotiate with their 
Federal labor organizations concerning the implementation of this law?

    Agencies are reminded of their obligation under 5 U.S.C. 7117 to 
negotiate or consult, as appropriate, with the exclusive representatives 
of their employees on the implementation of the regulations in this 
subpart.

[[Page 77]]



Sec. 792.220  What are the requirements that child care providers
must meet in order to participate in this program?

    The provider, whether center-based or family child care, must be 
licensed and/or regulated by the State and, where applicable, by local 
authorities where the child care service is delivered. Outside of the 
United States, agencies may adopt or create criteria to ensure a child 
care center or family child care home is safe. Agencies must not 
restrict the use of funds to apply to accredited child care providers 
only.



Sec. 792.221  Is there a statutory cap on the amount or the percentage
of child care costs that will be subsidized?

    The law does not specify a cap on the amount or percentage of child 
care subsidy that may be subsidized.



Sec. 792.222  What is the definition of a lower income Federal
employee and how is the amount of the child care subsidy determined?

    Each agency decides who qualifies as a lower income Federal employee 
within that agency. OPM has provided guidance for determining 
eligibility in the ``Guide for Implementing Child Care Legislation--
Public Law 107-67, Sec. 630.'' This publication is available on OPM's 
Web site, http://www.opm.gov/wrkfam.



Sec. 792.223  Who determines if a Federal employee qualifies as
a lower income employee and how is the program administered?

    The agency or another appropriately identified organization 
determines eligibility using certain income and/or subsidy program 
criteria chosen by the agency. If the agency itself does not administer 
the program, it must select another organization to do so, using 
procedures that are in accordance with the Federal Acquisition 
Regulations. Regardless of what organization administers the program, 
the model for determining both the subsidy program eligibility and the 
amount of the subsidy is always determined by the Federal agency.



Sec. 792.224  Are child care subsidies paid to the Federal employee
using the child care?

    Agencies must pay the child care provider directly, unless one of 
the following exceptions applies:
    (a) If an agency chooses to have an organization administer its 
program (see Sec. 792.223), the organization pays the child care 
provider;
    (b) For overseas locations, the agency may choose to pay the 
employee if the provider deals only in foreign currency; or
    (c) In unique circumstances, an agency may obtain written permission 
from OPM to do so.



Sec. 792.225  May an agency disburse funds to an organization that 
administers the child care subsidy program prior to the time the 

employee receives the child 
          care services?

    The agency may disburse funds to an organization that administers 
the child care subsidy program in one lump sum. The organization will be 
responsible for tracking the funds and providing the agency with regular 
reports. An agency contract should specify that any unexpended funds 
shall be returned to the agency after the contract is completed.



Sec. 792.226  How may an agency disburse funds to a Federally sponsored
child care center in a multi-tenant building?

    In a multi-tenant building, funds from the agencies may be pooled 
together for the benefit of the employees qualified for the child care 
subsidy program.



Sec. 792.227  How long will the child care subsidy program be in 
effect for a Federal employee?

    The child care subsidy program, in the form of a reduced child care 
cost rate, shall be in effect from the time the agency makes a decision 
for a particular Federal employee and the child is enrolled in the 
program until one of the following occurs:
    (a) The child is no longer enrolled in the program;
    (b) The employee no longer qualifies as a ``lower income employee'; 
or
    (c) The agency no longer has a child care subsidy program.

[[Page 78]]



Sec. 792.228  May these funds be used for children of Federal employees
who are already enrolled in child care?

    The funds may be used for children currently enrolled in child care 
as long as their families meet the child care subsidy program 
eligibility requirements established by the agency.



Sec. 792.229  May an agency place restrictions or requirements on the
use of these funds, and may the agency restrict the disbursement

of such funds to only 
          one type of child care or to one location?

    (a) Depending on the agency's staffing needs and the employees' own 
needs, including the local availability of child care, the agency may 
choose to place restrictions on the use of its funds for the child care 
subsidy program. For example, an agency may decide to restrict use to 
the following:
    (1) Federal employees who are full-time permanent employees;
    (2) Federal employees using an agency on-site child care center;
    (3) Federal employees using full-time child care; or
    (4) Federal employees using child care in specific locations.
    (a) With the exception of Sec. 792.229(c) an agency may determine 
whether and what restrictions to impose on the use of appropriated funds 
for the child care subsidy program.
    (b) Agencies must not restrict the use of funds to apply to 
accredited child care providers only.



Sec. 792.230  May an agency use appropriated funds to improve the 
physical space of the family child care homes or child care centers?

    An agency may not use appropriated funds under this program to 
improve the physical space of child care centers and family child care 
homes.



Sec. 792.231  Is an agency permitted to make advance child care
subsidy program payments for an individual Federal employee?

    An agency may choose to make advance payments to a child care 
provider in certain situations. Advance payments may be paid to the 
child care provider when the provider requires payment up to one month 
in advance of rendering services. Except in accordance with Sec. 
792.225, an agency may not make advance payments for more than one month 
before the employee receives child care services.



PART 831_RETIREMENT--Table of Contents



             Subpart A_Administration and General Provisions

Sec.
831.101 Administration.
831.102 Basic records.
831.103 Evidence.
831.104 Application.
831.105 Computation of interest.
831.106 Disclosure of information.
831.107 Computation of time.
831.109 Initial decision and reconsideration.
831.110 Appeals.
831.111 Employee deductions and agency contributions.
831.112 Definitions of employee.
831.113 Payments to children.
831.114 Voluntary early retirement-substantial delayering, 
          reorganization, reduction in force, transfer of function, or 
          other workforce restructuring.

                           Subpart B_Coverage

831.201 Exclusions from retirement coverage.
831.202 Continuation of coverage for food service employees of the House 
          of Representatives.
831.203 Continuation of coverage for employees of the Metropolitan 
          Washington Airports Authority.
831.204 Elections of retirement coverage under the District of Columbia 
          Financial Responsibility and Management Assistance Act of 
          1995.
831.205 CSRS coverage determinations to be approved by OPM.
831.206 Continuation of coverage for former Federal employees of the 
          Civilian Marksmanship Program.

                      Subpart C_Credit for Service

831.301 Military service.
831.302 Unused sick leave.
831.303 Civilian service.
831.304 Service with the Cadet Nurse Corps during World War II.
831.305 Service with a nonappropriated fund instrumentality after June 
          18, 1952, but before January 1, 1966.
831.306 Service as a National Guard technician before January 1, 1969.
831.307 Contract service.

                    Subpart D_Voluntary Contributions

831.401 Purpose and scope.

[[Page 79]]

831.402 Definitions.
831.403 Eligibility to make voluntary contributions.
831.404 Procedure for making voluntary contributions.
831.405 Interest on voluntary contributions.
831.406 Withdrawal of voluntary contributions.
831.407 Purchase of additional annuity.

                  Subpart E_Eligibility for Retirement

831.501 Time for filing applications.
831.502 Automatic separation; exemption.
831.503 Retirement based on involuntary separation.

                      Subpart F_Survivor Annuities

     Organization and Structure of Regulations on Survivor Annuities

831.601 Purpose and scope.
831.602 Relation to other regulations.
831.603 Definitions.

                   Elections at the Time of Retirement

831.611 Election at time of retirement of fully reduced annuity to 
          provide a current spouse annuity.
831.612 Election at time of retirement of a fully reduced annuity or a 
          partially reduced annuity to provide a former spouse annuity.
831.613 Election of insurable interest annuity.
831.614 Election of a self-only annuity or partially reduced annuity by 
          married employees and Members.
831.615 [Reserved]
831.616 Elections by previously retired retiree with new title to an 
          annuity.
831.617 [Reserved]
831.618 Waiver of spousal consent requirement.
831.619 Marital status at time of retirement.

                      Changes of Survivor Elections

831.621 Changes of election before final adjudication.
831.622 Changes of election after final adjudication.

                        Post-Retirement Elections

831.631 Post-retirement election of fully reduced annuity or partially 
          reduced annuity to provide a current spouse annuity.
831.632 Post-retirement election of fully reduced annuity or partially 
          reduced annuity to provide a former spouse annuity.

                               Eligibility

831.641 Division of a survivor annuity.
831.642 Marriage duration requirements.
831.643 Time for filing applications for death benefits.
831.644 Remarriage.
831.645 Elections between survivor annuities.

                      Payment of Survivor Annuities

831.651 Commencing and terminating dates of survivor annuities.

                       Survivor Election Deposits

831.661 Deposits not subject to waiver.
831.662 Deposits required to change an election after final 
          adjudication.
831.663 Actuarial reduction in annuity of retirees who make post-
          retirement elections to provide a current spouse annuity or a 
          former spouse annuity.
831.664 Post-retirement survivor election deposits that were partially 
          paid before October 1, 1993.
831.665 Payment of deposits under Sec. 831.631, Sec. 831.632, Sec. 
          831.682, or Sec. 831.684 under pre-October 1, 1993, law or 
          when the retiree has died prior to October 1, 1993.

                          Children's Annuities

831.671 Proof of eligibility for a child's annuity.
831.672 Annuity for a child age 18 to 22 during full-time school 
          attendance.
831.673 Rates of child annuities.

             Regulations Pertaining to Noncodified Statutes

831.681 Annual notice required by Public Law 95-317.
831.682 Election by a retiree who retired before May 7, 1985, to provide 
          a former spouse annuity.
831.683 Annuities for former spouses of employees or Members retired 
          before May 7, 1985.
831.684 Second chance elections to provide survivor benefits.
831.685 Changes in elections to provide a current spouse annuity by a 
          retiree who retired before May 28, 1986.

                   Subpart G_Computation of Annuities

831.701 Effective dates of annuities.
831.702 Adjustment of annuities.
831.703 Computation of annuities for part-time service.
831.704 Annuities including credit for service with a nonappropriated 
          fund instrumentality.

                  Subpart H_Nuclear Materials Couriers

831.801 Applicability and purpose.
831.802 Definitions.
831.803 Conditions for coverage in primary positions.
831.804 Conditions for coverage in secondary positions.
831.805 Evidence.
831.806 Requests from individuals.

[[Page 80]]

831.807 Withholdings and contributions.
831.808 Mandatory separation.
831.809 Reemployment.
831.810 Review of decisions.
831.811 Oversight of coverage.

           Subpart I_Law Enforcement Officers and Firefighters

831.901 Applicability and purpose.
831.902 Definitions.
831.903 Conditions for coverage in primary positions.
831.904 Conditions for coverage in secondary positions.
831.905 Evidence.
831.906 Requests from individuals.
831.907 Withholdings and contributions.
831.908 Mandatory separation.
831.909 Reemployment.
831.910 Review of decisions.
831.911 Oversight of coverage determinations.

             Regulations Pertaining to Noncodified Statutes

831.912 Elections to be deemed a law enforcement officer for retirement 
          purposes by certain police officers employed by the 
          Metropolitan Washington Airports Authority (MWAA).

                          Subpart J_CSRS Offset

831.1001 Purpose.
831.1002 Definitions.
831.1003 Deductions from pay.
831.1004 Agency contributions.
831.1005 Offset from nondisability annuity.
831.1006 Offset from disability or survivor annuity.

             Subpart K_Prohibition on Payments of Annuities

831.1101 Scope.
831.1102 Definitions.
831.1104 Notice.
831.1105 Answer; request for hearing.
831.1106 Hearing.
831.1107 Powers of presiding officers.
831.1108 Witnesses.
831.1109 Evidence.
831.1110 Initial decision.
831.1111 Appeal and review.
831.1112 Final decision.

                     Subpart L_Disability Retirement

831.1201 Introduction.
831.1202 Definitions.
831.1203 Basic requirements for disability retirement.
831.1204 Filing disability retirement applications: General.
831.1205 Agency-filed disability retirement applications.
831.1206 Evidence supporting entitlement to disability benefits.
831.1207 Withdrawal of disability retirement applications.
831.1208 Termination of disability annuity because of recovery.
831.1209 Termination of disability annuity because of restoration to 
          earning capacity.
831.1210 Annuity rights after a disability annuity terminates.
831.1211 Reinstatement of disability annuity.
831.1212 Administrative review of OPM decisions.

                      Subpart M_Collection of Debts

831.1301 Purpose.
831.1302 Scope.
831.1303 Definitions.
831.1304 Processing.
831.1305 Collection of debts.
831.1306 Collection by administrative offset.
831.1307 Use of consumer reporting agencies.
831.1308 Referral to a collection agency.
831.1309 Referral for litigation.

             Subpart N_Standards for Waiver of Overpayments

831.1401 Conditions for waiver.
831.1402 Fault.
831.1403 Equity and good conscience.
831.1404 Financial hardship.
831.1405 Ordinary and necessary living expenses.
831.1406 Waiver precluded.
831.1407 Burdens of proof.

            Subpart O_Allotments From Civil Service Annuities

831.1501 Definitions.
831.1511 Authorized allottees.
831.1521 Limitations.

Subparts P-Q [Reserved]

 Subpart R_Agency Requests to OPM for Recovery of a Debt From the Civil 
                 Service Retirement and Disability Fund

831.1801 Purpose.
831.1802 Scope.
831.1803 Definitions.
831.1804 Conditions for requesting an offset.
831.1805 Creditor agency processing for non-fraud claims.
831.1806 OPM processing for non-fraud claims.
831.1807 Installment withholdings.
831.1808 Special processing for fraud claims.

                 Subpart S_State Income Tax Withholding

831.1901 Definitions.
831.1902 Federal-State agreements.

[[Page 81]]

831.1903 OPM responsibilities.
831.1904 State responsibilities.
831.1905 Additional provisions.
831.1906 Agreement modification and termination.

                     Subpart T_Payment of Lump Sums

831.2001 Definitions.
831.2002 Eligibility for lump-sum payment upon filing an Application for 
          Refund of Retirement Deductions (SF 2802).
831.2003 Eligibility for lump-sum payment upon death or retirement.
831.2004 Amount of lump-sums.
831.2005 Designation of beneficiary for lump-sum payment.
831.2006 Designation of agent by next of kin.
831.2007 Notification of current and/or former spouse before payment of 
          lump sum.
831.2008 Waiver of spouse and/or former spouse notification requirement.
831.2009 Lump sum payments which include contributions made to a 
          retirement system for employees of a nonappropriated fund 
          instrumentality.
831.2010 Transfers between retirement systems.
831.2011 Effect of part 772 of this chapter on CSRS lump-sum payments.

                 Subpart U_Deposits for Military Service

831.2101 Purpose.
831.2102 Scope.
831.2103 Definitions.
831.2104 Eligibility to make deposits.
831.2105 Filing an application to make deposit.
831.2106 Processing applications for deposit for service.
831.2107 Payments on deposits.

                Subpart V_Alternative Forms of Annuities

831.2201 Purpose.
831.2202 Definitions.
831.2203 Eligibility.
831.2204 Alternative forms of annuities available.
831.2205 Computation of alternative form of annuity.
831.2206 Election to pay deposit or redeposit for civilian service.
831.2207 Partial deferred payment of the lump-sum credit if annuity 
          commences after January 3, 1988, and before October 1, 1989.
831.2208 Partial deferred payment of the lump-sum credit if annuity 
          commences after December 2, 1989, and before October 1, 1995.
831.2209 Redetermined annuity after reemployment.

    Authority: 5 U.S.C. 8347; Sec. 831.102 also issued under 5 U.S.C. 
8334; Sec. 831.106 also issued under 5 U.S.C. 552a; Sec. 831.108 also 
issued under 5 U.S.C. 8336(d)(2); Sec. 831.114 also issued under 5 
U.S.C. 8336(d)(2), and Sec. 1313(b)(5) of Public Law 107-296, 116 Stat. 
2135; Sec. 831.201(b)(1) also issued under 5 U.S.C. 8347(g); Sec. 
831.201(b)(6) also issued under 5 U.S.C. 7701(b)(2); Sec. 831.201(g) 
also issued under Secs. 11202(f), 11232(e), and 11246(b) of Public Law 
105-33, 111 Stat. 251; Sec. 831.201(g) also issued under Secs. 7(b) and 
(e) of Public Law 105-274, 112 Stat. 2419; Sec. 831.201(i) also issued 
under Secs. 3 and 7(c) of Public Law 105-274, 112 Stat. 2419; Sec. 
831.204 also issued under Sec. 102(e) of Public Law 104-8, 109 Stat. 
102, as amended by Sec. 153 of Public Law 104-134, 110 Stat. 1321; Sec. 
831.205 also issued under Sec. 2207 of Public Law 106-265, 114 Stat. 
784; Sec. 831.206 also issued under Sec. 1622(b) of Public Law 104-106, 
110 Stat. 515; Sec. 831.301 also issued under Sec. 2203 of Public Law 
106-265, 114 Stat. 780; Sec. 831.303 also issued under 5 U.S.C. 
8334(d)(2) and Sec. 2203 of Public Law 106-235, 114 Stat. 780; Sec. 
831.502 also issued under 5 U.S.C. 8337; Sec. 831.502 also issued under 
Sec. 1(3), E.O. 11228, 3 CFR 1965-1965 Comp. p. 317; Sec. 831.663 also 
issued under Secs. 8339(j) and (k)(2); Secs. 831.663 and 831.664 also 
issued under Sec. 11004(c)(2) of Public Law 103-66, 107 Stat. 412; Sec. 
831.682 also issued under Sec. 201(d) of Public Law 99-251, 100 Stat. 
23; Sec. 831.912 also issued under Sec. 636 of Appendix C to Public Law 
106-554, 114 Stat. 2763A-164; Subpart V also issued under 5 U.S.C. 8343a 
and Sec. 6001 of Public Law 100-203, 101 Stat. 1330-275; Sec. 831.2203 
also issued under Sec. 7001(a)(4) of Public Law 101-508, 104 Stat. 1388-
328.

    Source: 33 FR 12498, Sept. 4, 1968, unless otherwise noted.



             Subpart A_Administration and General Provisions



Sec. 831.101  Administration.

    (a) OPM has charge of the adjudication of all claims arising under 
subchapter III of chapter 83 of title 5, United States Code, and of all 
matters directly or indirectly concerned with these adjudications.
    (b) In the adjudication of claims arising under subchapter III of 
chapter 83 of title 5, United States Code, OPM shall consider and take 
appropriate action on counterclaims filed by the Government as set-offs 
against amounts in the Civil Service Retirement and Disability Fund.
    (c) For purposes of this part, the term ``Associate Director'' means 
the

[[Page 82]]

Associate Director for Compensation in OPM.

[33 FR 12498, Sept. 4, 1968, as amended at 34 FR 17617, Oct. 31, 1969]



Sec. 831.102  Basic records.

    Every Federal department, agency, corporation or branch, whether 
executive, legislative, or judicial, and the District of Columbia 
Government (included in this part collectively in the term department or 
agency) having employees or Members of Congress (hereinafter referred to 
in this part as Members) subject to subchapter III of chapter 83 of 
title 5, United States Code, shall initiate and maintain retirement 
accounts for those employees and Members as prescribed by OPM issuances.

[33 FR 12498, Sept. 4, 1968, as amended at 66 FR 66711, Dec. 27, 2001]



Sec. 831.103  Evidence.

    (a) Standard Form 2806 (Individual Retirement Record) is the basic 
record for action on all claims for annuity or refund, and those 
pertaining to deceased employees, deceased Members, or deceased 
annuitants.
    (b) When the records of the department or agency concerned are lost, 
destroyed, or incomplete, the department or agency shall request the 
General Accounting Office, through OPM, to furnish the data that it 
considers necessary for a proper determination of the rights of the 
claimant. When an official record cannot develop the required 
information, the department, agency, or OPM should request inferior or 
secondary evidence which is then admissible.



Sec. 831.104  Application.

    (a) Except as provided in paragraph (b) of this section, 
applications under subchapter III of chapter 83 of title 5, United 
States Code, shall be filed with OPM and shall be on forms prescribed by 
OPM.
    (b) Applications to make deposit for military service shall be filed 
in accordance with subpart U of this part.

[48 FR 38783, Aug. 26, 1983]



Sec. 831.105  Computation of interest.

    (a) The computation of interest is on the basis of 30 days to the 
month. Interest is computed for the actual calendar time involved in 
each case, but whenever applicable the rule of average applies.
    (b) Interest is allowed on current deductions and deposits at the 
rate of 4 percent per year to December 31, 1947, and 3 percent per year 
thereafter, compounded annually, to December 31, 1956. After December 
31, 1956, except as provided below, interest is allowed at the rate of 3 
percent per year, compounded annually, to date of final separation or 
transfer to a position that is not covered by the retirement system. 
After December 31, 1956, interest is not allowed:
    (1) When an employee has one year or less of covered service,
    (2) For any fractional part of a month in the total service, or
    (3) For more than five years' civilian service.
    (c) Interest at the rate of 3 percent per year through December 31, 
1984, and, thereafter, at the yearly rate determined by the Secretary of 
Treasury, compounded annually, is allowed on voluntary contributions 
during periods of employment and, after the employee or Member has 
completed at least 5 years' civilian service, during periods of 
separation until the beginning date of annuity or death, whichever is 
earlier. For refund purposes, however, interest on voluntary 
contributions terminates on the date of the employee's or Member's final 
separation or on the date of the employee's or Member's last transfer to 
a position in which he or she is not subject to subchapter III of 
chapter 83 of title 5, United States Code
    (d) For noncontributory service performed before October 1, 1982, 
and for redeposits of refunds paid on an application received by either 
the individual's employing agency or OPM before October 1, 1982, 
interest at the rate of 4 percent per year to December 31, 1947, and at 
the rate of 3 percent per year thereafter, compounded annually, is 
charged. Interest is charged on the outstanding balance of a deposit 
from the midpoint of each service period for which deposit is involved; 
interest is

[[Page 83]]

charged on the outstanding balance of a refund from the date the refund 
was paid. Interest is charged to the date of deposit or commencing date 
of annuity, whichever is earlier, except that interest is not charged 
for any period of separation from the service which began before October 
1, 1956.
    (e) For noncontributory service performed on or after October 1, 
1982, and for redeposits of refunds paid on an application received by 
the individual's employing agency or OPM on or after October 1, 1982, 
interest is charged at the rate of 3 percent per year through December 
31, 1984, and, thereafter, at the yearly rate determined by the 
Secretary of Treasury, compounded annually. Interest is charged on the 
outstanding balance of a deposit from the midpoint of each service 
period for which deposit is involved; interest is charged on the 
outstanding balance of a refund from the date the refund was paid. 
Interest is charged to the date of deposit.
    (f) No interest is charged on a deposit for military service if that 
deposit is made before October 1, 1984, or within 2 years of the date 
that an individual first becomes an employee or Member under the civil 
service retirement system, whichever is later. When interest is charged 
on a deposit for military service, it is charged on the outstanding 
balance at the rate of 3 percent per year, compounded annually, from 
October 1, 1984, or 2 years from the date the individual first becomes 
an employee or Member, whichever is later, through December 31, 1984, 
and thereafter at the yearly rate determined by the Secretary of the 
Treasury.
    (g) For calendar year 1985 and for each subsequent calendar year, 
OPM will publish a notice in the Federal Register to notify the public 
of the interest rate that will be in effect during that calendar year.
    (h) Interest under Sec. Sec. 831.631, 831.632, 831.682, and 831.684 
is compounded annually and accrued monthly.
    (1) The initial interest on each monthly difference between the 
reduced annuity rate and the annuity rate actually paid equals the 
amount of the monthly difference times the difference between (i) 1.06 
raised to the power whose numerator is the number of months between the 
date when the monthly difference in annuity rates occurred and the date 
when the initial interest is computed and whose denominator is 12; and 
(ii) 1.
    (2) The total initial interest due is the sum of all of the initial 
interest on each monthly difference computed in accordance with 
paragraph (h)(1) of this section.
    (3) Additional interest on any uncollected balance will be 
compounded annually and accrued monthly. The additional interest due 
each month equals the remaining balance due times the difference between 
(i) 1.06 raised to the 1/12th power; and (ii) 1.
    (i)(1) When an individual's civilian service involves several 
deposit and/or redeposit periods, OPM will normally use the following 
order of precedence in applying each installment payment against the 
full amount due:
    (i) Redeposits of refunds paid on applications received by the 
individual's employing agency or OPM on or after October 1, 1982;
    (ii) Redeposits of refunds paid on applications received by the 
individual's employing agency or OPM before October 1, 1982;
    (iii) Deposits for noncontributory civilian service performed on or 
after October 1, 1982; and
    (iv) Deposits for noncontributory service performed before October 
1, 1982.
    (2) If an individual specifically requests a different order of 
precedence, that request will be honored.
    (j) Interest under Sec. 831.662 is compounded annually and accrued 
monthly.
    (1) The initial interest on each monthly difference between the 
reduced annuity rate and the annuity rate actually paid equals the 
amount of the monthly difference times the difference between--
    (i) The sum of one plus the interest rate set under Sec. 831.105(g) 
raised to the power whose numerator is the number of months between the 
date when the monthly difference in annuity rates occurred and the date 
when the initial interest is computed and whose denominator is 12; and
    (ii) 1.

[[Page 84]]

    (2) The total initial interest due is the sum of all of the initial 
interest on each monthly difference computed in accordance with 
paragraph (j)(1) of this section.

[33 FR 12498, Sept. 4, 1968, as amended at 47 FR 43637, Oct. 1, 1982; 48 
FR 38783, Aug. 26, 1983; 51 FR 31931, Sept. 8, 1986; 52 FR 32287, Aug. 
27, 1987; 55 FR 9099, Mar. 12, 1990; 58 FR 52880, Oct. 13, 1993]



Sec. 831.106  Disclosure of information.

    (a)(1) The Office has in its possession or under its control records 
containing the following types of information:
    (i) Documentation of Federal service subject to the Civil Service 
Retirement System.
    (ii) Documentation of service credit and refund claims made under 
the Civil Service Retirement System.
    (iii) Retirement and death claims files, including documents 
supporting the retirement application, health benefits and life 
insurance eligibility, medical records supporting disability claims, and 
designations of beneficiaries.
    (iv) Claims review and correspondence files pertaining to benefits 
under the Federal Employees Health Benefits Program.
    (v) Suitability determination files on applicants for Federal 
employment found unsuitable for employment on medical grounds.
    (vi) Documentation of claims made for life insurance and health 
benefits by annuitants under a Federal Government retirement system 
other than the Civil Service Retirement System.
    (vii) Documentation of voluntary contributions made by eligible 
individuals.
    (viii) Health Unit medical records for OPM employees.
    (2) These records may be disclosed to the individual to whom the 
information pertains, or with prior written consent of the individual to 
any agency or other person, except that medical evidence about which a 
prudent physician would hesitate to inform the individual, will be 
disclosed only to a licensed physician designated in writing for that 
purpose by the individual or by his or her representative.
    (3) Civil service retirement records will be disclosed consistent 
with the provisions of the Privacy Act of 1974 (5 U.S.C. 552a), 
including, but not limited to, disclosures.
    (i) Pursuant to a routine use promulgated for such records and 
printed in the Office's annual publication of notices of systems of 
records, except that;
    (ii) A beneficiary designated in accordance with the provisions of 
the Civil Service Retirement law (5 U.S.C. 8342(b)) shall, during the 
lifetime of the designator, be disclosed to the designator only, at his 
or her signed, written request. Such beneficiary designations that may 
appear in records being disclosed must be removed before access to a 
record is permitted. If information pertaining to a designation of 
beneficiary is specifically asked for by a court of competent 
jurisdiction, it may be released to the court, but with a written notice 
that it is released under protest.
    (4) Except as provided in paragraphs (a)(2) and (a)(3) of this 
section, the Office shall not disclose information from the files, 
records, reports, or other papers and documents pertaining to a claim 
filed with the Office, whether potential, pending, or adjudicated. This 
information is deemed privileged and confidential.
    (b) On written request the Office shall return, to the person 
entitled to them, certificates of discharges, adoption papers, marriage 
certificates, decrees of divorce, letters testamentary or of 
administration, when they are no longer needed in the settlement of the 
claim. If papers returned constitute part of the material and essential 
evidence in a claim, the Office shall retain in the file photo or other 
copies of them or of the parts which appear to be of evidential value.

[47 FR 12937, Mar. 26, 1982]



Sec. 831.107  Computation of time.

    In computing a period of time prescribed by this part, the day of 
the action or event after which the designated period of time begins to 
run is not included. The last day of the period is included unless it is 
a Saturday, a Sunday, or a legal holiday; in this event, the period runs 
until the end of

[[Page 85]]

the next day which is not a Saturday, a Sunday, or a legal holiday.

[33 FR 12498, Sept. 4, 1968. Redesignated at 44 FR 37889, June 29, 1979]



Sec. 831.109  Initial decision and reconsideration.

    (a) Who may file. Except as noted in paragraph (b) of this section 
any individual or agency whose rights or interests under the Civil 
Service Retirement System are affected by an initial decision of the 
Office of Personnel Management (OPM) may request OPM to review its 
initial decision.
    (b) Actions covered elsewhere. (1) A request for reconsideration of 
termination of annuity payments under 5 U.S.C. 8311-22 shall be made in 
accordance with the procedures set out in subpart K of this part.
    (2) A request for reconsideration of a decision to collect a debt 
will be made in accordance with Sec. 831.1304(b).
    (c) Initial decision. A decision shall be considered an initial 
decision when rendered by OPM in writing and stating the right to 
reconsideration.
    (d) Reconsideration. A request for reconsideration must be in 
writing, must include the individual's name, address, date of birth and 
claim number, if applicable, and must state the basis for the request.
    (e) Time limits on reconsideration. (1) A request for 
reconsideration must be received by OPM within 30 calendar days from the 
date of the original decision.
    (2) The representative of the Associate Director for Compensation 
responsible for reconsiderations may extend the time limit for filing 
when the individual shows that he/she was not notified of the time limit 
and was not otherwise aware of it, or that he/she was prevented by 
circumstances beyond his/her control from making the request within the 
time limit.
    (f) Final decision. (1) After reconsideration, the Associate 
Director's representative shall issue a final decision which shall be in 
writing, shall fully set forth the findings and conclusions of the 
reconsideration, and shall contain notice of the right to request an 
appeal provided in Sec. 831.110. Copies of the final decision shall be 
sent to the individual, to any competing claimants and, where 
applicable, to the agency.
    (2) OPM may issue a final decision providing the opportunity to 
appeal under Sec. 831.110 rather than an opportunity to request 
reconsideration under paragraph (c) of this section. Such a decision 
must be in writing and state the right to appeal under Sec. 831.110.
    (g) Competing claimants. (1) When a competing claimant files a 
request for reconsideration under this section, the other competing 
claimants shall be notified of the request and given an opportunity to 
submit written substantiation of their claim.
    (2) When a determination in favor of one claimant would affect 
another claimant, all claimants concerned will be notified of that 
decision and those adversely affected will be given an opportunity to 
request reconsideration. OPM shall not execute its decision until the 
time limit for requesting reconsideration has expired. If 
reconsideration has been requested, OPM shall take no action after the 
reconsideration decision is rendered until the time limit to appeal has 
expired.

[45 FR 23632, Apr. 8, 1980, as amended at 49 FR 1330, Jan. 11, 1984; 50 
FR 34664, Aug. 27, 1985; 62 FR 22873, Apr. 28, 1997]



Sec. 831.110  Appeals.

    Appeals to MSPB. Except as noted in this paragraph, an individual or 
agency whose rights or interests under the Civil Service Retirement 
System (Subchapter III of chapter 83, title 5, United States Code) are 
affected by a final decision of the representative of the Associate 
Director for Compensation, Office of Personnel Management, may request 
the Merit Systems Protection Board to review such decision in accord 
with procedures prescribed by the Board. Decisions of OPM and the 
Associate Director for Compensation made in accord with the procedures 
referenced in Sec. 831.109(b)(1) are made under subchapter II of 
chapter 83, title 5, United States Code. Such decisions are not 
appealable to the Merit Systems Protection Board under 5 U.S.C. 8347(d).

[44 FR 37890, June 29, 1979, as amended at 45 FR 23633, Apr. 8, 1980; 48 
FR 38784, Aug. 26, 1983]

[[Page 86]]



Sec. 831.111  Employee deductions and agency contributions.

    (a) Agency share. When an agency fails to withhold some or all of an 
employee deduction under 5 U.S.C. 8334(a) for any pay period, the agency 
is still responsible for submitting the correct agency contribution to 
OPM. The agency must submit as the agency share, a payment equal to the 
amount that would have been submitted if the error had not been made (or 
a payment equal to the difference between the amount already submitted 
as the agency share and the amount that should have been submitted). The 
payment should be submitted to OPM in the manner currently prescribed 
for the transmission of withholdings and contributions as soon as 
possible, but not later than provided by standards established by OPM.
    (b) Employee share. (1) If, through administrative error, an agency 
did not withhold any of the employee deductions required by 5 U.S.C. 
8334(a) for any pay period, the employee may, at his or her option--
    (i) Request the agency that employed him or her when the error was 
made to correct his or her records and arrange to pay any resulting 
overpayment of pay to the agency (unless it is waived by the agency); or
    (ii) Pay the deposit plus any applicable interest (under certain 
conditions, the deposit may be made at any time until the final 
adjudication of his or her application for retirement) directly to OPM 
by submitting SF 2803; or
    (iii) Have the period of service treated like the nondeduction 
service described in Sec. 831.303.
    (2) When the agency withholds part of the required employee 
deductions for any pay period, the balance must be submitted to OPM in 
the manner currently prescribed for the transmission of withholdings and 
contributions as soon as possible, but not later than provided by 
standards established by OPM. The agency must correct its error. The 
employee does not have the option to pay a deposit directly to OPM when 
partial deductions have been withheld.
    (3) If the agency waives the employee's repayment of the salary 
overpayment that resulted from the administrative error, the agency must 
also submit (in addition to the agency contribution) the employee's 
share of the unpaid contributions to OPM in the manner currently 
prescribed for the transmission of withholdings and contributions.

[53 FR 35295, Sept. 13, 1988, as amended at 66 FR 66711, Dec. 27, 2001]



Sec. 831.112  Definitions of employee.

    (a) Determinations involving an employee's ability to make a deposit 
or redeposit. A person may make a deposit or redeposit under section 
8334 of title 5, United States Code, if he or she is an ``employee.'' 
For purposes of this paragraph, an employee is--
    (1) A person currently employed in a position subject to the civil 
service retirement law; or
    (2) A former employee (whose annuity has not been finally 
adjudicated) who retains civil service retirement annuity rights based 
on a separation from a position in which retirement deductions were 
properly withheld and remain (or have been redeposited in whole or in 
part) in the Civil Service Retirement and Disability Fund.
    (b) Determinations involving the payment of survivor benefits at an 
employee's or former employee's death. To determine entitlement to 
survivor benefits, OPM establishes whether the deceased individual was 
an ``employee'' or a ``retiree'' on the date of death. If the decedent 
was an ``employee'' on the date of death, survivor benefits are paid as 
though the individual died in service. If the decedent was a ``retiree'' 
on the date of death, survivor benefits are only paid as provided in the 
individual's election, provided it was properly made. However, if a 
former employee was eligible only for a deferred annuity at age 62, 
survivor benefits are only paid if the individual was a ``retiree'' on 
the date of death. For purposes of this paragraph--
    (1) Employee is a person--
    (i) Who had not been separated from service prior to his or her 
death, even if he or she had applied for retirement (for example, an 
applicant for disability annuity) and the application had been approved; 
or
    (ii) Whose death occurs before the commencing date of annuity, even 
though separation has occurred.

[[Page 87]]

    (2) Retiree or annuitant is a person--
    (i) Who has been separated from service and met all the requirements 
to receive an annuity including having filed an application for the 
annuity prior to his or her death; and
    (ii) Whose death occurs on or after the commencing date of annuity.
    (c) Determinations involving the requirement of spousal consent for 
elections of alternative annuity and survivor annuity benefits. Spousal 
consent is required as specified in Sec. Sec. 831.614 and 831.2203(c), 
if the employee/annuitant is married on the commencing date of annuity, 
regardless of whether that date is before or after the date of 
separation from service.

[56 FR 45883, Sept. 9, 1991, as amended at 58 FR 52880, Oct. 13, 1993]



Sec. 831.113  Payments to children.

    For purposes of section 8345(e) of title 5, United States Code, 
persons who have attained age 18 are considered adults regardless of the 
age of majority in the jurisdiction in which they reside.

[56 FR 45884, Sept. 9, 1991]



Sec. 831.114  Voluntary early retirement-substantial delayering, 
reorganization, reduction in force, transfer of function, 

or other workforce restructuring.

    (a) A specific designee is defined as a senior official within an 
agency who has been specifically designated to sign requests for 
voluntary early retirement authority under a designation from the head 
of the agency. Examples include a Chief Human Capital Officer, an 
Assistant Secretary for Administration, a Director of Human Resources 
Management, or other official.
    (b) An agency's request for voluntary early retirement authority 
must be signed by the head of the agency or by a specific designee.
    (c) The request must contain the following information:
    (1) Identification of the agency or specified component(s) for which 
the authority is being requested;
    (2) Reasons why the agency needs voluntary early retirement 
authority. This must include a detailed summary of the agency's 
personnel and/or budgetary situation that will result in an excess of 
personnel because of a substantial delayering, reorganization, reduction 
in force, transfer of function, or other workforce restructuring or 
reshaping, consistent with agency human capital goals;
    (3) The date on which the agency expects to effect the substantial 
delayering, reorganization, reduction in force, transfer of function, or 
other workforce restructuring or reshaping;
    (4) The time period during which the agency plans to offer voluntary 
early retirement;
    (5) The total number of non-temporary employees in the agency (or 
specified component(s));
    (6) The total number of non-temporary employees in the agency (or 
specified component(s)) who may be involuntarily separated, downgraded, 
transferred, or reassigned as a result of the substantial delayering, 
reorganization, reduction in 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 
specified component(s)) who are expected to retire early during the 
period covered by the request for voluntary early retirement authority; 
and
    (9) A description of the types of personnel actions anticipated as a 
result of the agency's need for voluntary early retirement authority. 
Examples include separations, transfers, reassignments, and 
downgradings.
    (d) OPM will evaluate a request for voluntary early retirement based 
on:
    (1) A specific request to OPM from the agency for voluntary early 
retirement authority;
    (2) A voluntary separation incentive payment implementation plan, as 
discussed in part 576, subpart A, of this chapter, which must outline 
the intended use of the incentive payments and voluntary early 
retirement; or
    (3) The agency's human capital plan, which must outline its intended 
use of voluntary separation incentive payments and voluntary early 
retirement authority, and the changes in organizational structure it 
expects to make as

[[Page 88]]

the result of projected separations and early retirements.
    (e) Regardless of the method used, the request must include all of 
the information required by paragraph (c) of this section.
    (f) OPM may approve an agency's request for voluntary early 
retirement authority to cover the entire period of the substantial 
delayering, reorganization, reduction in force, transfer of function, or 
other workforce restructuring or reshaping described by the agency, or 
the initial portion of that period with a requirement for subsequent 
information and justification if the period covers multiple years.
    (g) After OPM approves an agency's request, the agency must 
immediately notify OPM of any subsequent changes in the conditions that 
served as the basis for the approval of the voluntary early retirement 
authority. Depending upon the circumstances involved, OPM will modify 
the authority as necessary to better suit the agency's needs.
    (h) The agency may further limit voluntary early retirement offers 
based on:
    (1) An established opening and closing date for the acceptance of 
applications that is announced to employees at the time of the offer; or
    (2) The acceptance of a specified number of applications for 
voluntary early retirement, provided that, at the time of the offer, the 
agency notified employees that it retained the right to limit the number 
of voluntary early retirements.
    (i) Within the timeframe specified for its approved voluntary early 
retirement authority, the agency may subsequently establish a new or 
revised closing date, or reduce or increase the number of early 
retirement applications it will accept, if management's downsizing and/
or reshaping needs change. If the agency issues a revised closing date, 
or a revised number of applications to be accepted, the new date or 
number of applications must be announced to the same group of employees 
included in the original announcement. If the agency issues a new window 
period with a new closing date, or a new instance of a specific number 
of applications to be accepted, the new window period or number of 
applications to be accepted may be announced to a different group of 
employees as long as they are covered by the approved voluntary early 
retirement authority.
    (j) Chapter 43 of title 38, United States Code, requires that 
agencies treat employees on military duty, for all practical purposes, 
as though they were still on the job. Further, employees are not to be 
disadvantaged because of their military service. In accordance with 
these provisions, employees on military duty who would otherwise be 
eligible for an offer of voluntary early retirement will have 30 days 
following their return to duty to either accept or reject an offer of 
voluntary early retirement. This will be true even if the voluntary 
early retirement authority provided by OPM has expired.
    (k) An employee who separates from the service voluntarily after 
completing 25 years of service, or becoming age 50 and completing 20 
years of service, is entitled 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 following conditions which are covered in 5 U.S.C. 
8336(d)(2):
    (i) Has been employed continuously, by the agency in which the 
employee is serving, for at least the 31-day period ending on the date 
on which such agency requests the determination referred to in section 
831.114(b);
    (ii) Is serving under an appointment that is not time limited;
    (iii) Has not been duly notified that such employee is to be 
involuntarily separated for misconduct or unacceptable performance;
    (iv) Is separated from the service voluntarily during a period in 
which, as determined by the Office of Personnel Management (upon request 
of the agency) under regulations prescribed by the Office:
    (A) Such agency (or, if applicable, the component in which the 
employee is serving) is undergoing substantial delayering, substantial 
reorganization, substantial reductions in force, substantial transfer of 
function, or other substantial workforce restructuring (or shaping);

[[Page 89]]

    (B) A significant percentage of employees serving in such agency (or 
component) are likely to be separated or subject to an immediate 
reduction in the rate of basic pay (without regard to subchapter VI of 
chapter 53, or comparable provisions); or
    (C) Identified as being in positions which are becoming surplus or 
excess to the agency's future ability to carry out its mission 
effectively; and
    (v) As determined by the agency under regulations prescribed by the 
Office, is within the scope of the offer of voluntary early retirement, 
which may be made based on the following criteria:
    (A) 1 or more organizational units;
    (B) 1 or more occupational series or levels;
    (C) 1 or more geographical locations;
    (D) Specific periods;
    (E) Skills, knowledge, or other factors related to a position; or
    (F) Any appropriate combination of such factors.
    (l) Agencies are responsible for ensuring that employees are not 
coerced into voluntary early retirement. If an agency finds any 
instances of coercion, it must take appropriate corrective action.
    (m) Except as provided in paragraph (j) of this section, an agency 
may not offer or process voluntary early retirements beyond the stated 
expiration date of a voluntary early retirement authority or offer early 
retirements to employees who are not within the scope of the voluntary 
early retirement authority approved by OPM.
    (n) OPM may terminate a voluntary early retirement authority if it 
determines that the condition(s) that formed the basis for the approval 
of the authority no longer exist.
    (o) OPM may amend, limit, or terminate a voluntary early retirement 
authority to ensure that the requirements of this subpart are properly 
being followed.
    (p) Agencies must provide OPM with interim and final reports for 
each voluntary early retirement authority, as covered in OPM's approval 
letter to the agency. OPM may suspend or cancel a voluntary early 
retirement authority if the agency is not in compliance with the 
reporting requirements or reporting schedule specified in OPM's 
voluntary early retirement authority approval letter.

[69 FR 33278, June 15, 2004, as amended at 69 FR 50265, Aug. 16, 2004]



                           Subpart B_Coverage



Sec. 831.201  Exclusions from retirement coverage.

    (a) The following groups of employees in the executive branch of the 
Government are excluded from subchapter III of chapter 83 of title 5, 
United States Code:
    (1) Employees serving under appointments limited to one year or 
less, except annuitants appointed by the President to fill unexpired 
terms of office on or after January 1, 1976.
    (2) Intermittent employees--non-full-time employees without a 
prearranged regular tour of duty.
    (3) Employees whose salary, pay, or compensation on an annual basis 
is $12 a year or less.
    (4) Member or patient employees in Government hospitals or homes.
    (5) Employees paid on a piecework basis, except those whose work 
schedule provides for regular or full-time service.
    (6) Intermittent alien employees engaged on work outside the 
continental limits of the United States.
    (7) Employees serving under temporary appointments pending 
establishment of registers, or pending final determination of 
eligibility for permanent appointment.
    (8) Officers in Charge, clerks in fourth-class post offices, 
substitute rural carriers, and special-delivery messengers at second- 
third-, and fourth-class post offices.
    (9) Consular agents appointed under authority of section 551 of the 
Foreign Service Act of 1946 (22 U.S.C. 951).
    (10) Employees serving under emergency-indefinite appointments not 
exceeding 5 years.
    (11) United States citizens given ``overseas limited appointments.''
    (12) Employees serving under nonpermanent appointments made pursuant 
to section 1 of Executive Order 10180 of November 13, 1950.
    (13) Employees serving under nonpermanent appointments, designated

[[Page 90]]

as indefinite, made after January 23, 1955, the effective date of the 
repeal of Executive Order 10180.
    (14) Employees serving under term appointments.
    (15) Temporary employees of the Census Bureau employed under 
temporary limited appointments exceeding 1 year.
    (16) Employees serving under limited term, limited emergency and 
noncareer (designated as indefinite) appointments in the Senior 
Executive Service.
    (17) Health care employees of the National Health Service Corps 
serving under appointments limited to four years or less in health 
manpower shortage areas.
    (b) Paragraph (a) of this section does not deny retirement coverage 
when:
    (1) Employment in an excluded category follows employment subject to 
subchapter III of chapter 83 of title 5, United States Code, without a 
break in service or after a separation from service of 3 days or less, 
except in the case of:
    (i) An alien employee whose duty station is located in a foreign 
country; or
    (ii) An employee hired by the Census Bureau under a temporary, 
intermittent appointment to perform decennial census duties.
    (2) The employee receives a career or career-conditional appointment 
under part 315 of this chapter;
    (3) The employee is granted competitive status under legislation, 
Executive order, or civil service rules and regulations, while he or she 
is serving in a position in the competitive service; or
    (4) The employee is granted merit status under 35 CFR chapter I, 
subchapter E;
    (5) The appointment meets the definition of a provisional 
appointment contained in Sec. Sec. 316.401 and 316.403 of this chapter;
    (6) The employee receives an interim appointment under Sec. 772.102 
of this chapter and was covered by CSRS at the time of the separation 
for which interim relief is required.
    (c) Members of the following boards and commissions of the 
government of the District of Columbia appointed on or after August 13, 
1960, are excluded from subchapter III of chapter 83 of title 5, United 
States Code, except that this exclusion does not operate in the case of 
a member serving on August 13, 1960, who is reappointed on expiration of 
term without a break in service or after a separation from service of 3 
days or less:

    Board of Accountancy.
    Board of Examiners and Registrars of Architects.
    Board of Barber Examiners.
    Boxing Commission.
    Board of Cosmetology.
    Board of Dental Examiners.
    Electrical Board.
    Commission on Licensure to Practice the Healing Arts.
    Board of Examiners in the Basic Sciences.
    Board of Examiners in Medicine and Osteopathy.
    Motion Picture Operators' Board.
    Nurses' Examining Board.
    Board of Optometry.
    Board of Pharmacy.
    Plumbing Board.
    Board of Podiatry Examiners.
    Board of Registration for Professional Engineers.
    Real Estate Commission.
    Refrigeration and Air Conditioning Board.
    Steam and Other Operating Engineers' Board.
    Undertakers' Committee.
    Board of Examiners of Veterinarian Medicine.

    (d) The following groups of employees of the government of the 
District of Columbia, appointed on or after October 1, 1965, are 
excluded from subchapter III of chapter 83 of title 5, United States 
Code:
    (1) Employees serving under appointments limited to one year or 
less, except temporary teachers of the District of Columbia public 
school system.
    (2) Intermittent employees--non-full-time employees without a 
prearranged regular tour of duty.
    (3) Employees whose pay on an annual basis is $12.00 per year or 
less.
    (4) Patient or inmate employees in District Government hospitals, 
homes or penal institutions.
    (5) Employees paid on a contract or fee basis.
    (6) Employees paid on a piecework basis, except those whose work 
schedule provides for regular or full-time service.
    (7) Employees serving under temporary appointments pending 
establishment of registers, or pending final determination of 
eligibility for permanent appointment.

[[Page 91]]

    (e) Paragraph (d) of this section does not deny retirement coverage 
when (1) employment in an excluded category follows employment subject 
to subchapter III of chapter 83 of title 5, United States Code, without 
a break in service or after a separation from service of 3 days or less, 
or (2) the employee is granted competitive status under legislation, 
Executive order, or the Civil Service rules and regulations, while he is 
serving in a position in the competitive service.
    (f) Also excluded are any temporary employees, appointed for one 
year or less, by the government of the District of Columbia under any 
program or project established pursuant to the Economic Opportunity Act 
of 1964 (42 U.S.C. 2701 et seq.), and summer trainees employed by the 
Government of the District of Columbia in furtherance of the President's 
Youth Opportunity Campaign.
    (g) Individuals first employed by the government of the District of 
Columbia on or after October 1, 1987, in a position subject to 
subchapter III of chapter 83 of title 5, United States Code, are 
excluded from such subchapter, except:
    (1) Employees of St. Elizabeths Hospital who were covered under 
subchapter III of chapter 83 of title 5, United States Code, before 
October 1, 1987, appointed by the District of Columbia government on 
October 1, 1987, as provided in section 6 of Pub. L. 98-621, and deemed 
employed by the District of Columbia government before October 1, 1987, 
under section 109 of Pub. L. 100-238;
    (2) Effective on and after October 1, 1997, the effective date of 
section 11246 of Pub. L. 105-33, 111 stat. 251, nonjudicial employees of 
the District of Columbia Courts employed in a position which is not 
excluded from CSRS under the provisions of this section;
    (3) Effective on and after April 1, 1999, the effective date of 
section 7(e) of Pub. L. 105-274, 112 Stat. 2419, employees of the Public 
Defender Service of the District of Columbia employed in a position 
which is not excluded from CSRS under the provisions of this section;
    (4) The District of Columbia Department of Corrections Trustee, 
authorized by section 11202 of Pub. L. 105-33, 111 Stat. 251, and an 
employee of the Trustee if the Trustee or employee is a former Federal 
employee appointed with a break in service of 3 days or less, and in the 
case of an employee of the Trustee is employed in a position which is 
not excluded from CSRS under the provisions of this section;
    (5) The District of Columbia Pretrial Services, Parole, Adult 
Probation and Offender 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 
or employee is a former Federal employee appointed with a break in 
service of 3 days or less, and, in the case of an employee of the 
Trustee, is employed in a position which is not excluded from CSRS under 
the provisions of this section, and;
    (6) Subject to an election under Sec. 831.204, employees of the 
District of Columbia Financial Responsibility and Management Assistance 
Authority.
    (h) Employees who have elected coverage under another retirement 
system in accordance with part 847 of this chapter are excluded from 
subchapter III of chapter 83 of title 5, United States Code, during that 
and all subsequent periods of service (including service as a reemployed 
annuitant).
    (i)(1) A former employee of the District of Columbia who is 
appointed in a Federal position by the Department of Justice, or by the 
Court Services and Offender Supervision Agency established by section 
11233(a) of Pub. L. 105-33, 111 Stat. 251, as amended by section 7(c) of 
Pub. L. 105-274, 112 Stat. 2419, is excluded from CSRS beginning on the 
date of the Federal appointment, if the employee elects to continue 
coverage under a retirement system for employees of the 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 
Court Services and Offender Supervision Agency during the period 
beginning August 5, 1997, and ending 1 year after the date on which the 
Lorton Correctional Complex is closed, or 1 year after the date on which 
the Court Services and Offender Supervision Agency

[[Page 92]]

assumes its duties, whichever is later; and
    (ii) The employee elects to continue coverage under a retirement 
system for employees of the District of Columbia no later than June 1, 
1999 or 60 days after the date of the Federal appointment, whichever is 
later.
    (2) An individual's election to continue coverage under a retirement 
system for employees of the District of Columbia remains in effect until 
the individual separates from service with the Department of Justice or 
the Court Services and Offender Supervision Agency.

[33 FR 12498, Sept. 4, 1968, as amended at 45 FR 24856, Apr. 11, 1980; 
45 FR 46782, July 11, 1980; 47 FR 2285, Jan. 15, 1982; 48 FR 38784, Aug. 
26, 1983; 51 FR 23037, June 25, 1986; 52 FR 38220, Oct. 15, 1987; 53 FR 
42936, Oct. 25, 1988; 56 FR 4930, Feb. 7, 1991; 56 FR 10142, Mar. 11, 
1991; 57 FR 3713, Jan. 31, 1992; 61 FR 41720, Aug. 9, 1996; 62 FR 50996, 
Sept. 30, 1997; 63 FR 9402, Feb. 25, 1998; 64 FR 15288, Mar. 31, 1999]



Sec. 831.202  Continuation of coverage for food service employees of 
the House of Representatives.

    (a) Congressional employees who provide food service operations for 
the House of Representatives can elect to continue their retirement 
coverage under subchapter III of chapter 83 of title 5, United States 
Code, when such food service operations are transferred to a private 
contractor. These regulations also apply to any successor contractors.
    (b) Eligibility requirements. To be eligible for continuation of 
retirement coverage, an employee must:
    (1) Be a Congressional employee (as defined in section 2107 of title 
5, United States Code), other than an employee of the Architect of the 
Capitol, engaged in providing food service operations for the House of 
Representatives under the administrative control of the Architect of the 
Capitol;
    (2) Be subject to subchapter III of chapter 83 of title 5, United 
States Code;
    (3) Elect to remain covered under civil service retirement 
provisions no later than the day before the date on which the food 
service operations transfer from the House of Representatives to a 
private contractor; and
    (4) Become employed to provide food services under contract without 
a break in service. A ``break in service'' means a separation from 
employment of at least three calendar days.
    (c) Employee deductions. An employee who elects to continue coverage 
under title 5 retirement provisions is deemed to consent to deductions 
from his or her basic pay for the Civil Service Retirement and 
Disability Fund in the amount determined in accordance with 5 U.S.C. 
8334(k). The employer providing the food services under contract must, 
in accordance with procedures established by OPM, pay into the Civil 
Service Retirement and Disability Fund the amounts deducted from an 
employee's pay.
    (d) Employer contributions. The employer providing food services 
under contract must, in accordance with procedures established by OPM, 
pay into the Civil Service Retirement and Disability Fund amounts equal 
to any agency contributions that would be required if the individual 
were a Congressional employee covered by the Civil Service Retirement 
System.

[52 FR 5069, Feb. 19, 1987, and 53 FR 10055, Mar. 29, 1988. Redesignated 
at 53 FR 10055, Mar. 29, 1988]



Sec. 831.203  Continuation of coverage for employees of the Metropolitan
Washington Airports Authority.

    (a) Permanent Federal Aviation Administration employees assigned to 
Washington National Airport or Dulles International Airport who elect to 
transfer to the Metropolitan Washington Airports Authority, retain their 
retirement coverage under subchapter III of chapter 83 of title 5, 
United States Code.
    (b) Eligibility requirements. To be eligible for continuation of 
retirement coverage, an employee must (1) be a permanent Federal 
Aviation Administration employee assigned to the Metropolitan Washington 
Airports who elects to transfer to the Airports Authority; (2) be 
subject to subchapter III chapter 83 of title 5 United States Code on 
the day before the date the lease takes effect; and (3) become 
continually employed by the Airports Authority without a break in 
service. A ``break in service'' means a separation

[[Page 93]]

from employment of at least 3 calendar days.
    (c) Employee deductions. Employees of the Airports Authority who 
have continuing coverage under title 5 retirement provisions are deemed 
to consent to deductions from their basic pay for the Civil Service 
Retirement and Disability Fund. The amounts deducted will be the same as 
if the employees were still employed by the Federal Government. The 
Airports Authority must, in accordance with procedures established by 
OPM, pay into the Civil Service Retirement and Disability Fund the 
amounts deducted from an employee's pay.
    (d) Employer contributions. The Airports Authority must, in 
accordance with procedures established by OPM, pay into the Civil 
Service Retirement and Disability Fund amounts equal to any agency 
contributions that would be required for employees covered by the Civil 
Service Retirement System.
    (e) Sick leave. An employee who retires, or dies leaving a survivor 
entitled to an annuity, from the Airports Authority within the 5 year 
period beginning on the date the lease takes effect will be permitted to 
credit unused sick leave in his or her annuity computation. After the 5 
year period, use of unused sick leave in the annuity computation will be 
permitted if the employee is under a formal leave system as defined in 
Sec. 831.302.

[52 FR 19125, May 21, 1987, and 53 FR 10055, Mar. 29, 1988. Redesignated 
at 53 FR 10055, Mar. 29, 1988]



Sec. 831.204  Elections of retirement coverage under the District of 
Columbia Financial Responsibility and Management Assistance Act of 1995.

    (a) Who may elect--(1) General rule. Any individual appointed by the 
District of Columbia Financial Responsibility and Management Assistance 
Authority (the Authority) in a position not excluded from CSRS coverage 
under Sec. 831.201 may elect to be deemed a Federal employee for CSRS 
purposes unless the employee has elected to participate in a retirement, 
health or life insurance program offered by the District of Columbia.
    (2) Exception. A former Federal employee being appointed by the 
Authority on or after October 26, 1996, no more than 3 days (not 
counting District of Columbia holidays) after separation from Federal 
employment cannot elect to be deemed a Federal employee for CSRS 
purposes unless the election was made before separation from Federal 
employment.
    (b) Opportunity to elect FERS. An individual who elects CSRS under 
paragraph (a) of this section after a break of more than 3 days between 
Federal service and employment with the Authority may elect FERS in 
accordance with 5 CFR 846.201(b)(ii).
    (c) Procedure for making an election. The Authority or the agency 
providing administrative support services to the Authority 
(Administrative Support Agency) must establish a procedure for notifying 
employees of their election rights and for accepting elections.
    (d) Time limit for making an election. (1) An election under 
paragraph (a)(1) of this section must be made within 30 days after the 
employee receives the notice under paragraph (c) of this section.
    (2) The Authority or its Administrative Support Agency will waive 
the time limit under paragraph (d)(1) of this section upon a showing 
that--
    (i) The employee was not advised of the time limit and was not 
otherwise aware of it; or
    (ii) Circumstances beyond the control of the employee prevented him 
or her from making a timely election and the employee thereafter acted 
with due diligence in making the election.
    (e) Effect of an election. (1) An election under paragraph (a) of 
this section is effective on the commencing date of the employee's 
service with the Authority.
    (2) An individual who makes an election under paragraph (a) of this 
section is ineligible, during the period of employment covered by that 
election, to participate in any retirement system for employees of the 
government of the District of Columbia.
    (f) Irrevocability. An election under paragraph (a) of this section 
becomes irrevocable when received by the Authority or its Administrative 
Support Agency.
    (g) Employee deductions. The Authority or its Administrative Support

[[Page 94]]

Agency must withhold, from the pay of an employee of the District of 
Columbia Financial Responsibility and Assistance Authority who has 
elected to be deemed a Federal employee for CSRS purposes, an amount 
equal to the percentage withheld from Federal employees' pay for periods 
of service covered by CSRS and, in accordance with procedures 
established by OPM, pay into the Civil Service Retirement and Disability 
Fund the amounts deducted from an employee's pay.
    (h) Employer contributions. The District of Columbia Financial 
Responsibility and Assistance Authority must, in accordance with 
procedures established by OPM, pay into the Civil Service Retirement and 
Disability Fund amounts equal to any agency contributions required under 
CSRS.

[61 FR 58458, Nov. 15, 1996]



Sec. 831.205  CSRS coverage determinations to be approved by OPM.

    If an agency determines that an employee is CSRS-covered, the agency 
must submit its determination to OPM for written approval. This 
requirement does not apply if the employee has been employed in Federal 
service with CSRS coverage within the preceding 365 days.

[66 FR 15608, Mar. 19, 2001]



Sec. 831.206  Continuation of coverage for former Federal employees 
of the Civilian Marksmanship Program.

    (a) A Federal employee who--
    (1) Was covered under CSRS;
    (2) Was employed by the Department of Defense to support the 
Civilian Marksmanship Program as of the day before the date of the 
transfer of the Program to the Corporation for the Promotion of Rifle 
Practice and Firearms Safety; and
    (3) Was offered and accepted employment by the Corporation as part 
of the transition described in section 1612(d) of Public Law 104-106, 
110 Stat. 517--remains covered by CSRS during continuous employment with 
the Corporation unless the individual files an election under paragraph 
(c) of this section. Such a covered individual is treated as if he or 
she were a Federal employee for purposes of this part, and of any other 
part within this title relating to CSRS. The individual is entitled to 
the benefits of, and is subject to all conditions under, CSRS on the 
same basis as if the individual were an employee of the Federal 
Government.
    (b) Cessation of employment with the Corporation for any period 
terminates eligibility for coverage under CSRS during any subsequent 
employment by the Corporation.
    (c) An individual described by paragraph (a) of this section may at 
any time file an election to terminate continued coverage under the 
Federal benefits described in Sec. 1622(a) of Public Law 104-106, 110 
Stat. 521. Such an election must be in writing and filed with the 
Corporation. It takes effect immediately when received by the 
Corporation. The election applies to all Federal benefits described by 
Sec. 1622(a) of Public Law 104-106, 110 Stat. 521, and is irrevocable. 
Upon receipt of an election, the Corporation must transmit the election 
to OPM with the individual's retirement records.
    (d) The Corporation must withhold from the pay of an individual 
described by paragraph (a) of this section an amount equal to the 
percentage withheld from the pay of a Federal employee for periods of 
service covered by CSRS and, in accordance with procedures established 
by OPM, pay into the Civil Service Retirement and Disability Fund the 
amounts deducted from the individual's pay.
    (e) The Corporation must, in accordance with procedures established 
by OPM, pay into the Civil Service Retirement and Disability Fund 
amounts equal to any agency contributions required under CSRS.

[74 FR 66565, Dec. 16, 2009]



                      Subpart C_Credit for Service



Sec. 831.301  Military service.

    (a) Service of an individual who first became an employee or Member 
under the civil service retirement system before October 1, 1982. A 
period of honorable active service after December 31, 1956, in the Army, 
Navy, Marine Corps, Air Force, or Coast Guard of the United States, or, 
after June 30, 1960, in the Regular Corps or Reserve Corps of the Public 
Health Service, or, after June 30, 1961,

[[Page 95]]

as a commissioned officer of the National Oceanic and Atmospheric 
Administration (formerly Coast and Geodetic Survey and Environmental 
Science Services Administration), performed before the date of 
separation on which civil service annuity entitlement is based shall be 
included in the computation of the annuity provided--
    (1) The employee or Member has completed 5 years' (18 months' for 
survivors of employees or Members who die in service) civilian service;
    (2) The employee or Member is not receiving military retired pay 
awarded for reasons other than (i) service-connected disability incurred 
in combat with an enemy of the United States, (ii) service-connected 
disability caused by an instrumentality of war and incurred in line of 
duty during a period of war (as that term is used in chapter 11 of title 
38, United States Code), or (iii) under chapter 67 of title 10, United 
States Code; and
    (3)(i) The employee, Member, or survivor is not entitled, or upon 
application would not be entitled, to monthly old-age or survivors 
benefits under Sec. 202 of the Social Security Act (41 U.S.C. 402) 
based on the individual's wages or self-employment income, or
    (ii) For an employee, Member, or survivor who is entitled, or upon 
application would be entitled, to monthly old-age or survivors benefits 
under section 202 of the Social Security Act (41 U.S.C. 402) based on 
the individual's wages or self-employment income, the employee, Member, 
or survivor has completed a deposit in accordance with subpart U of this 
part, or the annuity has been reduced under Sec. 831.303(d), for each 
full period of such military service performed after December 1956. If a 
deposit has not been completed or the annuity has not been reduced under 
Sec. 831.303(d), periods of military service performed after December 
31, 1956 (other than periods of military service covered by military 
leave with pay from a civilian position), are excluded from credit from 
and after the first day of the month in which the individual (or 
survivor) becomes entitled, or upon proper application would be 
entitled, to Social Security benefits under section 202. Military 
service performed prior to January 1957 is included in the computation 
of the annuity regardless of whether a deposit is made for service after 
December 31, 1956.
    (ii) For an employee, Member, or survivor who is entitled, or upon 
application would be entitled, to monthly old-age or survivors benefits 
under Sec. 202 of the Social Security Act (41 U.S.C. 402) based on the 
individual's wages or self-employment income, the employee, Member, or 
survivor has completed a deposit in accordance with subpart U of this 
part, for each full period of such military service performed after 
December 1956.

If a deposit has not been completed, periods of military service 
performed after December 31, 1956 (other than periods of military 
service covered by military leave with pay from a civilian position), 
are excluded from credit from and after the first day of the month in 
which the individual (or survivor) becomes entitled, or upon proper 
application would be entitled, to Social Security benefits under Sec. 
202. Military service performed prior to January 1957 is included in the 
computation of the annuity regardless of whether a deposit is made for 
service after December 31, 1956.
    (b) Service of an individual who first becomes an employee or Member 
under the civil service retirement system on or after October 1, 1982. A 
period of honorable active service after December 31, 1956, in the Army, 
Navy, Marine Corps, Air Force, or Coast Guard of the United States, or, 
after June 30, 1960, in the Regular Corps or Reserve Corps of the Public 
Health Service, or, after June 30, 1961, as a commissioned officer of 
the National Oceanic and Atmospheric Administration (formerly Coast and 
Geodetic Survey and Environmental Science Services Administration), 
performed before the date of separation on which civil service annuity 
entitlement is based shall be included in the computation of the annuity 
provided--
    (1) The employee or Member has completed 5 years' (18 months' for 
survivors of employees or Members who die in service) civilian service;
    (2) The employee or Member is not receiving military retired pay 
awarded for reasons other than (i) service-connected disability incurred 
in combat with an enemy of the United States,

[[Page 96]]

(ii) service-connected disability caused by an instrumentality of war 
and incurred in line of duty during a period of war (as that term is 
used in chapter 11 of title 38, United States Code), or (iii) under 
chapter 67 of title 10, United States Code; and
    (3) The employee, Member, or survivor has completed a deposit in an 
amount equal to 7 percent of his or her basic pay under section 204 of 
title 37, United States Code, (plus interest, if any) or the annuity has 
been reduced under Sec. 831.303(d), for each full period of such 
military service performed after December 1956. Military service 
performed prior to January 1957 is included in the computation of the 
annuity regardless of whether a deposit is made for service after 
December 31. 1956.
    (c) Military retirees and recipients of Veterans Administration 
benefits. An employee or Member applying for annuity, who otherwise 
meets all conditions for receiving credit for military service, but who 
is in receipt of retired or retainer pay which bars credit for military 
service, may elect to waive the retired or retainer pay and have the 
military service added to civilian service for annuity computation 
purposes. An applicant for disability retirement, who is receiving a 
Veterans Administration pension or compensation in lieu of military 
retired or retainer pay, may elect to waive the retired or retainer pay 
and renounce the Veterans Administration pension or compensation and 
have the military service added to civilian service for annuity 
computation purposes.
    (d) Widow(er)s and former spouses entitled to annuity based on the 
service of employees or Members who die in service--(1) Military service 
is included unless the widow(er) or former spouse elects otherwise. 
Effective April 25, 1987, unless a widow(er) or former spouse of an 
employee or Member who dies--on or after that date--before being 
separated from service files a written election to the contrary, his or 
her annuity will include credit for periods of military service (subject 
to the provisions of paragraphs (a) and (b) of this section) that would 
ordinarily be excluded from the computation of the employee's or 
Member's annuity under 5 U.S.C. 8332(c)(2).
    (2) Reduction by the amount of survivor benefits payable based on 
the military service. (i) In paragraph (d)(2)(ii) of this section, 
``survivor benefits under a retirement system for members of the 
uniformed services'' means survivor benefits before any offsets for 
benefits payable from another Federal benefit system except for those 
payable under title II of the Social Security Act. The amount of the 
survivor benefit to be deducted will be the amount payable to the 
current or former spouse and attributable to the decedent's retired or 
retainer pay for the period of military service to be included in the 
CSRS survivor annuity. However, the survivor benefit will never be 
reduced below the amount payable based on the civilian service alone.
    (ii) OPM will obtain information on the amount of any monthly 
survivor benefits payable to each applicant for CSRS current or former 
spouse annuity. OPM will reduce the CSRS survivor annuity by the monthly 
military survivor benefit on its commencing date. OPM will not make a 
subsequent adjustment unless it is necessary to increase or decrease the 
CSRS survivor benefit because of a change in the amount of military 
survivor benefits attributable to the period of service or a change in 
the period of military service to be included in the CSRS annuity when 
the survivor annuitant becomes eligible for benefits under title II of 
the Social Security Act.
    (3) Widow(er)s or former spouses of employees or Members who die on 
or after April 25, 1987--election not to be included. OPM will accept a 
written election from a widow(er) or former spouse who does not wish to 
be covered by Sec. 831.301(d) provided it is postmarked within the 
period ending 30 calendar days after the date of the first regular 
monthly annuity payment.
    (4) Widow(er)s or former spouses of employees or Members who die 
before April 25, 1987--application to OPM for credit. Widow(er)s or 
former spouses of employees or Members who died before April 25, 1987, 
must apply to OPM in writing to have credit for military

[[Page 97]]

service included in the survivor annuity computation. If the survivor 
annuity is increased by including credit for the military service, the 
increase will be effective on the first of the month following the 60th 
calendar day after the date the written application for inclusion of the 
military service is received in OPM.

[48 FR 38784, Aug. 26, 1983, as amended at 51 FR 31931, Sept. 8, 1986; 
52 FR 10026, Mar. 30, 1987; 53 FR 6555, Mar. 2, 1988; 66 FR 15608, Mar. 
19, 2001]



Sec. 831.302  Unused sick leave.

    (a) For annuity computation purposes, the service of an employee who 
retires on immediate annuity or dies leaving a survivor entitled to 
annuity is increased by the days of unused sick leave to his credit 
under a formal leave system.
    (b) An immediate annuity is one which begins to accrue not later 
than 1 month after the employee is separated.
    (c) A formal leave system is one which is provided by law or 
regulation or operates under written rules specifying a group or class 
of employees to which it applies and the rate at which sick leave is 
earned.
    (d) In general, 8 hours of unused sick leave increases total 
services by 1 day. In cases where more or less than 8 hours of sick 
leave would be charged for a day's absence, total service is increased 
by the number of days in the period between the date of separation and 
the date that the unused sick leave would have expired had the employee 
used it (except that holidays falling within the period are treated as 
work days, and no additional leave credit is earned for that period).
    (e) If an employee's tour of duty changes from part time to full 
time or full time to part time within 180 days before retirement, the 
credit for unused sick leave is computed as though no change had 
occurred.

[34 FR 17617, Oct. 31, 1969]



Sec. 831.303  Civilian service.

    (a) Periods of civilian service performed before October 1, 1982, 
for which retirement deductions have not been taken. Periods of 
creditable civilian service performed by an employee or Member after 
July 31, 1920, but before October 1, 1982, for which retirement 
deductions have not been taken shall be included in determining length 
of service to compute annuity under subchapter III of chapter 83 of 
title 5, United States Code; however, if the employee, Member, or 
survivor does not elect either to complete the deposit describes by 
section 8334(c) of title 5, United States Code, or to eliminate the 
service from annuity computation, his or her annuity is reduced by 10 
percent of the amount which should have been deposited (plus interest) 
for the period of noncontributory service.
    (b) Periods of service for which refunded deductions have not been 
redeposited, and periods of civilian service performed on or after 
October 1, 1982, for which retirement deductions have not been taken. 
Except as provided in paragraph (c) of this section, a period of service 
for which refunded deductions have not been redeposited, and a period of 
creditable civilian service performed by an employee or Member on or 
after October 1, 1982, for which retirement deductions have not been 
taken, shall be included in determining length of service to compute the 
annuity under subchapter III of chapter 83 of title 5, United States 
Code, only if--
    (1) The employee or Member subsequently becomes eligible for an 
annuity payable under subchapter III of chapter 83 of title 5, United 
States Code; and
    (2) The employee, Member, or survivor makes a deposit (or redeposit) 
for the full period of service. If more than one distinct period of 
service is covered by a single refund, the periods of service covered by 
that refund are considered to be single full periods of service. 
However, in all other instances, a distinct period of nondeduction 
civilian service (i.e., a period of nondeduction service that is not 
interrupted by a break in service of more than three days) and a 
distinct period of redeposit civilian service (i.e., a period of 
redeposit service that is not interrupted by a break in service of more 
than three days) are considered as separate full periods of service, 
even when they are immediately consecutive. A period of nondeduction 
service which begins before October 1, 1982, and ends on or

[[Page 98]]

after that date is also considered two full periods of service: one 
ending on September 30, 1982, and the other beginning on October 1, 
1982.
    (c)(1) An employee or Member who has not completed payment of a 
redeposit for refunded deductions based on a period of service that 
ended before October 1, 1990, will receive credit for that service in 
computing the nondisability annuity for which the individual is eligible 
under subchapter III of chapter 83 of title 5, United States Code, 
provided the nondisability annuity commences after December 1, 1990.
    (2) The beginning monthly rate of annuity payable to a retiree whose 
annuity includes service credited in accordance with paragraph (c)(1) of 
this section will be reduced by an amount equal to the redeposit owed, 
or unpaid balance thereof, divided by the present value factor for the 
retiree's attained age (in full years) at the time of retirement. The 
reduced monthly rate will then be rounded down to the next lower dollar 
amount and becomes the rate of annuity payable.
    (3) For the purpose of paragraph (b)(2) of this section, the terms 
``present value factor'' and ``time of retirement'' have the same 
meaning as in Sec. 831.2202.
    (d)(1) Civilian and military service of an individual affected by an 
erroneous retirement coverage determination. An employee or survivor who 
owed a deposit under section 8411(c)(1)(B) or 8411(f) of title 5, United 
States Code (FERS rules) for:
    (i) Civilian service that was not subject to retirement deductions, 
or
    (ii) Military service performed after December 31, 1956, will 
receive credit for the service without payment of the deposit if, 
because of an erroneous retirement coverage determination, the service 
is subsequently credited under chapter 83 of title 5, United States Code 
(CSRS rules).
    (2)(i) The beginning monthly rate of annuity payable to a retiree 
whose annuity includes service credited under paragraph (d)(1) of this 
section and service creditable under CSRS rules that would not be 
creditable under FERS rules is reduced by an amount equal to the CSRS 
deposit owed, or unpaid balance thereof, divided by the present value 
factor for the retiree's age (in full years) at the time of retirement. 
The result is rounded to the next highest dollar amount, and is the 
monthly actuarial reduction amount.
    (ii)(A) The beginning monthly rate of annuity payable to a survivor 
whose annuity includes service credited under paragraph (d)(1) of this 
section is reduced by an amount equal to the CSRS deposit owed, or 
unpaid balance thereof, divided by the present value factor for the 
survivor's age (in full years) at the time of death. The result is 
rounded to the next highest dollar amount, and is the monthly actuarial 
reduction amount.
    (B) The survivor annuity is not reduced if the employee annuity was 
reduced under paragraph (d)(2)(i) of this section.
    (3) For the purpose of paragraph (d)(2) of this section, the terms 
``present value factor'' and ``time of retirement'' have the same 
meaning as in Sec. 831.2202 of this chapter.

[48 FR 38785, Aug. 26, 1983, as amended at 56 FR 6550, Feb. 19, 1991; 66 
FR 15608, Mar. 19, 2001]



Sec. 831.304  Service with the Cadet Nurse Corps during World War II.

    (a) Definitions and special usages. In this section--
    (1) Basic pay is computed at the rate of $15 per month for the first 
9 months of study; $20 per month for the 10th through the 21st month of 
study; and $30 per month for any month in excess of 21.
    (2) Cadet Nurse Corps service means any student or graduate nurse 
training, in a non-Federal institution, as a participant in a plan 
approved under section 2 of the Act of June 15, 1943 (57 Stat. 153).
    (3) CSRS means the Civil Service Retirement System.
    (b) Conditions for creditability. As provided by Pub. L. 99-638, an 
individual who performed service with the Cadet Nurse Corps is entitled 
to credit under CSRS if--
    (1) The service as a participant in the Corps totaled 2 years or 
more;
    (2) The individual submits an application for service credit to OPM 
no later than January 10, 1988;

[[Page 99]]

    (3) The individual is employed by the Federal Government in a 
position subject to CSRS at the time he or she applies to OPM for 
service credit; and
    (4) The individual makes a deposit for the service before separating 
from the Federal Government for retirement purposes. Contrary to the 
policy ``deeming'' the deposit to be made for alternative annuity 
computation purposes, these deposits must be physically in the 
possession of the individual's employing agency before his or her 
separation for retirement purposes.
    (c) Processing the application for service credit. Upon receiving an 
application requesting credit for service with the Cadet Nurse Corps, 
OPM will determine whether all conditions for creditability have been 
met, compute the deposit (including any interest) as specified by 
sections 8334(e) (2) and (3) of title 5, United States Code, based upon 
the appropriate percentage of basic pay that would have been deducted 
from the individual's pay at the time the service was performed, and 
advise the agency and the employee of the total amount of the deposit 
due.
    (d) Agency collection and submission of deposit. (1) The 
individual's employing agency must establish a deposit account showing 
the total amount due and a payment schedule (unless deposit is made in 
one lump sum), and record the date and amount of each payment.
    (2) lf the individual cannot make payment in one lump sum, the 
employing agency must accept installment payments (by allotments or 
otherwise). However, the employing agency is not required to accept 
individual checks in amounts less than $50.
    (3) If the employee dies before completing the deposit, the 
surviving spouse may elect to complete the payment to the employing 
agency in one lump sum; however, the surviving spouse will not be able 
to initiate an application for such service credit.
    (4) Payments received by the employing agency must be remitted to 
OPM immediately for deposit to the Civil Service Retirement and 
Disability Fund.
    (5) Once the employee's deposit has been paid in full or closed out, 
the employing agency must submit the documentation pertaining to the 
deposit to OPM in accordance with published instructions.

[52 FR 43047, Nov. 9, 1987]



Sec. 831.305  Service with a nonappropriated fund instrumentality after
June 18, 1952, but before January 1, 1966.

    (a) Definitions and special usages. In this section--
    (1) Service in a nonappropriated fund instrumentality is any service 
performed by an employee that involved conducting arts and crafts, 
drama, music, library, service (i.e., recreation) club, youth 
activities, sports or recreation programs (including any outdoor 
recreation programs) for personnel of the armed forces. Service is not 
creditable if it was performed in programs other than those specifically 
named in this subsection.
    (2) Certification by the head of a nonappropriated fund 
instrumentality can also be certification by the National Personnel 
Records Center or by an official of another Federal agency having 
possession of records that will verify an individual's service.
    (3) CSRS means the Civil Service Retirement System.
    (b) Conditions for creditability. Pursuant to Pub. L. 99-638 and 
provided the same period of service has not been used to obtain annuity 
payable from a nonappropriated fund retirement plan, an individual who 
performed service in a nonappropriated fund instrumentality is entitled 
to credit under CSRS if--
    (1) The service was performed after June 18, 1952, but before 
January 1, 1966; and
    (2) The individual was employed in a position subject to CSRS on 
November 9, 1986.
    (c) Deposit for service is not necessary. It is not necessary for an 
individual to make a deposit for service performed with a 
nonappropriated fund instrumentality to receive credit for such service. 
However, if the individual does not elect to make a deposit, his or her 
annuity is reduced by 10 percent of the amount that should have been 
deposited for the period of service (including any interest) as 
specified by sections 8334(e) (2) and (3) of title 5, United States 
Code. When an employee elects

[[Page 100]]

an alternative annuity and also elects to make the deposit, OPM will 
deem the deposit to be made for purposes of computing the alternative 
annuity.
    (d) Crediting other service in a nonappropriated fund 
instrumentality. Service not creditable under this section may become 
creditable for retirement eligibility purposes under the provisions 
outlined in 5 CFR part 847, subpart H.

[52 FR 43048, Nov. 9, 1987, as amended at 68 FR 2178, Jan. 16, 2003]



Sec. 831.306  Service as a National Guard technician before January 1, 1969.

    (a) Definitions. In this section--(1) Service as a National Guard 
technician is service performed under section 709 of title 32, United 
States Code (or under a prior corresponding provision of law) before 
January 1, 1969.
    (2) CSRS means the Civil Service Retirement System.
    (b) Conditions for crediting service to CSRS employees after 
November 5, 1990. An employee subject to CSRS retirement deductions 
whose only service as a National Guard technician was performed prior to 
January 1, 1969, is entitled to credit under CSRS if--
    (1) The individual submits to OPM an application for service credit 
in a form prescribed by OPM;
    (2) The individual is employed by the Federal Government in a 
position subject to CSRS retirement deductions after November 5, 1990; 
and
    (3) The individual completes the deposit for the service through 
normal service credit channels before final adjudication of his or her 
application for retirement or has the deposit deemed made when he or she 
elects the alternative form of annuity.
    (c) Processing the CSRS employee's application for service credit. 
(1) If an employee described in paragraph (b) of this section makes an 
application for service credit, OPM will determine whether all 
conditions for creditability have been met, compute the deposit and send 
the employee notice of the payment required and the procedures for 
submitting the payments to OPM.
    (2) The deposit will be computed based on--
    (i) The appropriate percentage of basic pay that would have been 
deducted from the individual's pay at the time the service was 
performed; and
    (ii) Interest at the rate of 3 percent per year computed as 
specified by section 8334(e)(2) of title 5, United States Code, until 
the date the deposit is paid.
    (d) Conditions for crediting service to CSRS annuitants and former 
Federal employees who separated after December 31, 1968, and before 
November 6, 1990--(1) Former Federal employees. Former Federal employees 
who were subject to CSRS retirement deductions and separated after 
December 31, 1968, but before November 6, 1990, with title to a deferred 
annuity, may make a deposit for pre-1969 National Guard technician 
service provided they--
    (i) Submit a written service credit application for the pre-1969 
National Guard technician service to OPM before November 6, 1991; and
    (ii) Complete a deposit for the additional service in a lump sum or 
in installment payments of $50 or more. Payments must be completed 
before their retirement claim is finally adjudicated, unless the deposit 
is deemed made when they elect an alternative form of annuity.
    (2) Annuitants and survivors. Individuals who were entitled to 
receive an immediate annuity (or survivor annuity benefits) as of 
November 6, 1990, may make a deposit for pre-1969 National Guard 
technician service provided they--
    (i) Submit a written application for service credit to OPM before 
November 6, 1991; and
    (ii) Complete a deposit for the additional service in a lump sum or 
in equal monthly annuity installments to be completed within 24 months 
of the date of the complete written application.
    (3) To determine the commencing date of the deposit installment 
payment period for annuitants and survivors, the ``date of application'' 
will be considered to be the first day of the second month beginning 
after OPM receives a complete written application from the individual.
    (4) To be a complete application, the individual's written request 
for pre-1969 National Guard technician service credit must also include 
a certification of the dates of employment and the

[[Page 101]]

rates of pay received by the individual during the employment period. 
The individual may obtain certification of his or her service from the 
Adjutant General of the State in which the service was performed.
    (e) Processing annuitants', survivors' or former employees' 
applications for service credit--(1) OPM determines creditable service. 
OPM will determine whether all conditions for crediting the additional 
service have been met, compute the amount of the deposit, and notify the 
individual.
    (2) Computing the deposit. The deposit will be computed based on--
    (i) The appropriate percentage of basic pay that would have been 
deducted from the individual's pay at the time the service was 
performed; and
    (ii) Interest at the rate of 3 percent per year as specified by 
section 8334(e)(2) of title 5, United States Code, to--
    (A) The midpoint of the 24-month installment period or if paid in a 
lump sum, the date payment is made if the individual is an annuitant or 
survivor; or
    (B) The date the deposit is paid or the commencing date of annuity, 
whichever comes first, if the individual is a former employee.
    (3) Individuals who are annuitants or survivors as of November 6, 
1990. (i) OPM will notify annuitants and survivors of the amount of the 
deposit and give them a proposed installment schedule for paying the 
deposit from monthly annuity payments. The proposed installment payments 
will consist of equal monthly payments that will not exceed a period 24 
months from the date a complete written application is received by OPM.
    (ii) The annuitant or survivor may allow the installments to be 
deducted from his or her annuity as proposed or make payment in a lump 
sum within 30 days from the date of the notice.
    (iii) Increased annuity payments will begin to accrue the first day 
of the month after OPM receives a complete written application.
    (iv) If an annuitant dies before completing the deposit installment 
payments, the remaining installments will be deducted as established for 
the annuitant, from benefits payable to the survivor annuitant (but not 
if the only survivor benefit is payable to a child or children of the 
deceased), if any. If no survivor annuity is payable, OPM may collect 
the balance of the deposit from any lump-sum benefits payable or the 
decedent's estate, if any.
    (4) Former employees who separated after December 31, 1968, but 
before November 6, 1990. A former employee with title to a deferred 
annuity that commences after November 6, 1990, will be billed for the 
amount of the deposit due and informed of the procedures for sending 
payments to OPM. If payment is to be made in installments, each payment 
must be at least $50 and the total deposit due must be completed before 
final adjudication of the retirement claim, unless the deposit is deemed 
made when he or she elects an alternative form of annuity.

[56 FR 6554, Feb. 19, 1991, as amended at 56 FR 55595, Oct. 29, 1991; 56 
FR 67467, Dec. 31, 1991]



Sec. 831.307  Contract service.

    Contract service with the United States will only be included in the 
computation of, or used to establish title to, an annuity under 
subchapter III of chapter 83 of title 5, United States Code, if--
    (a) The employing agency exercised an explicit statutory authority 
to appoint an individual into the civil service by contract; or
    (b) The head of the agency which was party to the contract, based on 
a timely-filed application, in accordance with section 110 of Public Law 
100-238, and the regulations promulgated by OPM pursuant to that 
statute, certifies that the agency intended that an individual be 
considered as having been appointed to a position in which (s)he would 
have been subject to subchapter III of chapter 83 of title 5, United 
States Code, and deposit has been paid in accordance with OPM's 
regulations.

[55 FR 53135, Dec. 27, 1990]



                    Subpart D_Voluntary Contributions

    Source: 56 FR 43863, Sept. 5, 1991, unless otherwise noted.

[[Page 102]]



Sec. 831.401  Purpose and scope.

    This subpart describes the procedures that employees and Members 
must follow in making voluntary contributions under the Civil Service 
Retirement System (CSRS). This subpart also describes the procedures 
that the Office of Personnel Management (OPM) will follow in accepting 
voluntary contributions, crediting interest on voluntary contribution 
accounts, and paying benefits based on voluntary contributions.



Sec. 831.402  Definitions.

    In this subpart:
    Applicant for retirement means a person who is currently eligible to 
retire under CSRS on an immediate or deferred annuity, and who has filed 
an application to retire that has not been finally adjudicated.
    Balance means the amount of voluntary contributions deposited and 
not previously withdrawn, plus earned interest on those voluntary 
contributions, less any amount paid as additional annuities (including 
any amount paid as survivor annuity) based on the voluntary 
contributions.
    CSRS means the Civil Service Retirement System as described in 
subchapter III of chapter 83 of title 5, United States Code.
    Eligible individual means a person eligible to make voluntary 
contributions under Sec. 831.403.
    Voluntary contributions means contributions to the Civil Service 
Retirement and Disability Fund under section 8343 of title 5, United 
States Code.



Sec. 831.403  Eligibility to make voluntary contributions.

    (a) Voluntary contributions may be made only by--
    (1) Employees or Members currently subject to CSRS, and
    (2) Applicants for retirement.
    (b) Voluntary contributions may not be accepted from an employee, 
Member, or applicant for retirement who--
    (1) Has not deposited amounts covering all creditable civilian 
service performed by him or her; or
    (2) Has previously received a refund of voluntary contributions and 
who has not been reemployed subject to CSRS after a separation of more 
than 3 calendar days.
    (c) An employee or Member covered by the Federal Employees 
Retirement System (FERS), including an employee or Member who elected to 
transfer or was automatically placed in FERS, may not open a voluntary 
contributions account or make additional contributions to an existing 
voluntary contribution account.



Sec. 831.404  Procedure for making voluntary contributions.

    (a) To make voluntary contributions to the Civil Service Retirement 
and Disability Fund, an eligible individual must first apply on a form 
prescribed by OPM. OPM will establish a voluntary contribution account 
for each eligible individual who elects to make voluntary contributions 
and notify the individual that a voluntary contribution account has been 
established. An eligible individual may not make voluntary contributions 
until notified by OPM that an account has been so established.
    (b) After receiving notice from OPM under paragraph (a) of this 
section, an eligible individual may forward voluntary contributions to 
the Office of Personnel Management, at the address designated for that 
purpose. Voluntary contributions must be in the amount of $25 or 
multiples thereof, by money order, draft, or check payable to OPM.
    (c) The total voluntary contributions made by an employee or Member 
may not exceed, as of the date any contribution is received, 10 percent 
of the aggregate basic pay received by the eligible individual.
    (1) Employees are responsible for not exceeding the 10 percent 
limit.
    (2) When the employee retires or withdraws the voluntary 
contributions, OPM will check to determine whether the 10 percent limit 
has been exceeded.
    (3) If the total of voluntary contributions received from the 
employee exceeds the 10 percent limit, OPM will refund without interest 
any amount that exceeds the 10 percent limit.



Sec. 831.405  Interest on voluntary contributions.

    (a) Interest on voluntary contributions is computed under Sec. 
831.105.

[[Page 103]]

    (b) Voluntary contributions begin to earn interest on the date 
deposited by OPM.
    (c) Except as provided in paragraph (d) of this section, voluntary 
contributions stop earning interest on the earliest of--
    (1) The date when OPM authorizes payment to the individual of the 
balance as a withdrawal (831.406);
    (2) The date when the employee or Member separates or transfers to a 
position not subject to CSRS or FERS; or
    (3) The date when the employee transfers to a retirement system 
other than CSRS or FERS.
    (d) If an employee separates with entitlement to a deferred annuity 
and either dies without withdrawing his or her voluntary contributions 
or uses his or her voluntary contributions to purchase additional 
annuity, voluntary contributions stop earning interest on the earlier 
of--
    (1) The date the former employee or Member dies; or
    (2) The commencing date of the former employee's or Member's 
deferred annuity.



Sec. 831.406  Withdrawal of voluntary contributions.

    (a) Before receiving additional annuity payments based on the 
voluntary contributions, a person who has made voluntary contributions 
may withdraw the balance while still an employee or Member, or after 
separation.
    (b) A person entitled to payment of lump-sum benefits under the CSRS 
order for precedence set forth in section 8342(c) of title 5, United 
States Code, is entitled to payment of the balance, if any, on the death 
of--
    (1) An employee or Member;
    (2) A separated employee or Member who has not retired;
    (3) A retiree, unless a survivor benefit is payable based on an 
election under Sec. 831.407; or
    (4) A person receiving a survivor annuity based on voluntary 
contributions.



Sec. 831.407  Purchase of additional annuity.

    (a) At the time of retirement CSRS (or under FERS, if transferred 
from CSRS), a person may use the balance of a voluntary contribution 
account to purchase one of the following types of additional annuity:
    (1) Annuity without survivor benefit; or
    (2) Reduced annuity payable during the life of the employee or 
Member with one-half of the reduced annuity to be payable after his or 
her death to a person, named at time of retirement, during the life of 
the named person.
    (b) Any natural person may be designated as survivor under paragraph 
(a)(2) of this section.
    (c) If the applicant for retirement elects an annuity without 
survivor benefit, each $100 credited to his or her voluntary 
contribution account, including interest, purchases an additional 
annuity at the rate of $7 per year, plus 20 cents for each full year, if 
any, he or she is over age 55 at date of retirement.
    (d) If the applicant for retirement elects an annuity with survivor 
benefit, each $100 credited to his or her voluntary contribution 
account, including interest, purchases an additional annuity at the rate 
of $7 per year, plus 20 cents for each full year, if any, he or she is 
over age 55 at date of retirement, multiplied by the following 
percentage:
    (1) Ninety percent of such amount if the named person is the same 
age or older than the applicant for retirement, or is less than 5 years 
younger than the applicant for retirement;
    (2) Eighty-five percent if the named person is 5 but less than 10 
years younger;
    (3) Eighty percent if the named person is 10 but less than 15 years 
younger;
    (4) Seventy-five percent if the named person is 15 but less than 20 
years younger;
    (5) Seventy percent if the named person is 20 but less than 25 years 
younger;
    (6) Sixty-five percent if the named person is 25 but less than 30 
years younger; and
    (7) Sixty percent if the named person is 30 or more years younger.

[[Page 104]]



                  Subpart E_Eligibility for Retirement



Sec. 831.501  Time for filing applications.

    Employees or Members who are eligible for retirement must file a 
retirement application with their agency. Former employees or Members 
who are eligible for retirement must file a retirement application with 
OPM. The application should not be filed more than 60 days before 
becoming eligible for benefits. If the application is for disability 
retirement, the applicant and the employing agency should refer to 
subpart L of this part.

[58 FR 49179, Sept. 22, 1993]



Sec. 831.502  Automatic separation; exemption.

    (a) When an employee meets the requirements for age retirement on 
any day within a month, he is subject to automatic separation at the end 
of that month. The department or agency shall notify the employee of the 
automatic separation at least 60 days in advance of the separation. If 
the department or agency fails through error to give timely notice, the 
employee may not be separated without his consent until the end of the 
month in which the notice expires.
    (b)(1) The head of the agency, when in his or her judgment the 
public interest so requires, may exempt a law enforcement officer, 
firefighter or nuclear materials courier from automatic separation until 
that employee becomes 60 years of age.
    ((b)(2) The Secretary of Transportation and the Secretary of 
Defense, under such regulations as each may prescribe, may exempt an air 
traffic controller having exceptional skills and experience as a 
controller from automatic separation until that controller becomes 61 
years of age.
    (c) When a department or agency lacks authority and wishes to secure 
an exemption from automatic separation for one of its employees other 
than a Presidential appointee, beyond the age(s) provided by statute, 
i.e., age 60 for a law enforcement officer, firefighter or nuclear 
materials courier, age 61 for an air traffic controller, and age 62 for 
an employee of the Alaska Railroad in Alaska or an employee who is a 
citizen of the United States employed on the Isthmus of Panama by the 
Panama Canal Commission, the department or agency head shall submit a 
recommendation to that effect to OPM.
    (1) The recommendation shall contain:
    (i) A statement that the employee is willing to remain in service;
    (ii) A statement of facts tending to establish that his/her 
retention would be in the public interest;
    (iii) The period for which the exemption is desired, which period 
may not exceed 1 year; and,
    (iv) The reasons why the simpler method of retiring the employee and 
immediately reemploying him or her is not being used.
    (2) The recommendation shall be accompanied by a medical certificate 
showing the physical fitness of the employee to perform his or her work.
    (d) OPM may approve an exemption only before the automatic 
separation date applicable to the employee. For this reason, the 
department or agency shall forward the recommendation to OPM at least 30 
days before this separation date.

[33 FR 12498, Sept. 4, 1968, as amended at 34 FR 593, Jan. 16, 1969; 48 
FR 38786, Aug. 26, 1983. Redesignated at 58 FR 49179, Sept. 22, 1993; 65 
FR 2522, Jan. 18, 2000]



Sec. 831.503  Retirement based on involuntary separation.

    (a) General. An employee who would otherwise be eligible for 
retirement based on involuntary separation from the service is not 
entitled to an annuity under section 8336(d)(1) of title 5, United 
States Code, if the employee has declined a reasonable offer of another 
position.
    (b) Criteria for reasonable offer. For the purposes of determining 
entitlement to annuity based on such involuntary separation, the offer 
of a position must meet all of the following conditions to be considered 
a reasonable offer:
    (1) The offer must be made in writing;
    (2) The employee must meet established qualification requirements; 
and
    (3) The offered position must be--

[[Page 105]]

    (i) In the employee's agency, including an agency to which the 
employee with his or her function is transferred in a transfer of 
functions between agencies;
    (ii) Within the employee's commuting area as defined in Sec. 
831.1202 of this part, unless geographic mobility is a condition 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 
the employee's current grade or pay level, without consideration of the 
employee's eligibility to retain his or her current grade or pay under 
part 536 of this chapter or other authority. In movements between pay 
schedules or pay systems, the comparison rate of the grade or pay level 
that is two grades below that of the current position will be compared 
with the comparison rate of the grade or pay level of the offered 
position. For this purpose, ``comparison rate'' has the meaning given 
that term in Sec. 536.103 of this chapter, except paragraph (2) of that 
definition should be used for the purpose of comparing grade or levels 
of work in making reasonable offer determinations in all situations not 
covered by paragraph (1) of that definition.

[48 FR 38786, Aug. 26, 1983. Redesignated and amended at 58 FR 49179, 
Sept. 22, 1993; 70 FR 31315, May 31, 2005; 73 FR 66156, Nov. 7, 2008]



                      Subpart F_Survivor Annuities

    Source: 50 FR 20070, May 13, 1985, unless otherwise noted.

     Organization and Structure of Regulations on Survivor Annuities



Sec. 831.601  Purpose and scope.

    (a) This subpart explains the annuity benefits payable in the event 
of the death of employees, retirees, and Members; the actions that 
employees, retirees, Members, and their current spouses, former spouses, 
and eligible children must take to qualify for survivor annuities; and 
the types of evidence required to demonstrate entitlement to provide 
survivor annuities or qualify for survivor annuities.
    (b) Unless otherwise specified, this subpart, except Sec. Sec. 
831.682 and 831.683 and the provisions relating to children's survivor 
annuities, only applies to employees and Members who retire under a 
provision of law that permits election of a reduced annuity to provide a 
survivor annuity.

[55 FR 9099, Mar. 12, 1990, as amended at 58 FR 52880, Oct. 13, 1993]



Sec. 831.602  Relation to other regulations.

    (a) Part 838 of this chapter contains information about former 
spouses' entitlement to survivor annuities based on provisions in court 
orders or court-approved property settlement agreements.
    (b) Subpart T of this part contains information about entitlement to 
lump-sum death benefits.
    (c) Parts 870, 871, 872 and 873 of this chapter contain information 
about coverage under the Federal Employees' Group Life Insurance 
Program.
    (d) Part 890 of this chapter contains information about coverage 
under the Federal Employees Health Benefits Program.
    (e) Section 831.109 contains information about the administrative 
review rights available to a person who has been denied a survivor 
annuity or an opportunity to make an election under this subpart.
    (f) Subparts C and U of this part contain information about service 
credit deposits by survivors of employees or Members.

[50 FR 20070, May 13, 1985, as amended at 51 FR 31931, Sept. 8, 1986; 58 
FR 43493, Aug. 17, 1993]



Sec. 831.603  Definitions.

    As used in this subpart--
    CSRS means subchapter III of chapter 83 of title 5, United States 
Code.
    Current spouse means a living person who is married to the employee, 
Member, or retiree at the time of the employee's, Member's, or retiree's 
death.
    Current spouse annuity means a recurring benefit under CSRS that is 
payable (after the employee's, Member's, or retiree's death) to a 
current spouse who meets the requirements of Sec. 831.642.
    Deposit means a deposit required by the Civil Service Retirement 
Spouse Equity Act of 1984, Pub. L. 98-615, 98

[[Page 106]]

Stat. 3195. Deposit, as used in this subpart does not include a service 
credit deposit or redeposit under sections 8334(c) or (d) of title 5, 
United States Code.
    First regular monthly payment means the first annuity check payable 
on a recurring basis (other than an estimated payment or an adjustment 
check) after OPM has initially adjudicated the regular rate of annuity 
payable under CSRS and has paid the annuity accrued since the time of 
retirement. The ``first regular monthly payment'' is generally preceded 
by estimated payments before the claim can be adjudicated and by an 
adjustment check (including the difference between the estimated rate 
and the initially adjudicated rate).
    Former spouse means a living person who was married for at least 9 
months to an employee, Member, or retiree who performed at least 18 
months of creditable service in a position covered by CSRS and whose 
marriage to the employee was terminated prior to the death of the 
employee, Member, or retiree. Except in Sec. Sec. 831.682 and 831.683, 
former spouse includes only persons who were married to an employee or 
Member on or after May 7, 1985, or who were the spouse of a retiree who 
retired on or after May 7, 1985, regardless of the date of termination 
of the marriage.
    Former spouse annuity means a recurring benefit under CSRS that is 
payable to a former spouse after the employee's, Member's, or retiree's 
death.
    Fully reduced annuity means the recurring payments under CSRS 
received by a retiree who has elected the maximum allowable reduction in 
annuity to provide a current spouse annuity and/or a former spouse 
annuity or annuities.
    Insurable interest annuity means the recurring payments under CSRS 
to a retiree who has elected a reduction in annuity to provide a 
survivor annuity to a person with an insurable interest in the retiree.
    Marriage means a marriage recognized in law or equity under the 
whole law of the jurisdiction with the most significant interest in the 
marital status of the employee, Member, or retiree unless the law of 
that jurisdiction is contrary to the public policy of the United States. 
If a jurisdiction would recognize more than one marriage in law or 
equity, the Office of Personnel Management (OPM) will recognize only one 
marriage, but will defer to the local courts to determine which marriage 
should be recognized.
    Member means a Member of Congress.
    Net annuity means the net annuity as defined in Sec. 838.103 of 
this chapter.
    Partially reduced annuity means the recurring payments under CSRS to 
a retiree who has elected less than the maximum allowable reduction in 
annuity to provide a current spouse annuity or a former spouse annuity.
    Present value factor means the amount of money (earning interest at 
an assumed rate) required at the time of retirement to fund an annuity 
that starts out at the rate of $1 a month and is payable in monthly 
installments for the annuitant's lifetime based on mortality rates for 
non-disability annuitants under the Civil Service Retirement System; and 
increases each year at an assumed rate of inflation. Interest, 
mortality, and inflation rates used in computing the present value are 
those used by the Board of Actuaries of the Civil Service Retirement 
System for valuation of the System, based on dynamic assumptions. The 
present value factors are unisex factors obtained by averaging six 
distinct present value factors, weighted by the total dollar value of 
annuities typically paid to new retirees at each age.
    Qualifying court order means a court order that awards a former 
spouse annuity and that satisfies the requirements of section 8341(h) of 
title 5, United States Code, for awarding a former spouse annuity.
    Retiree means a former employee or Member who is receiving recurring 
payments under CSRS based on service by the employee or Member. 
``Retiree,'' as used in this subpart, does not include a current spouse, 
former spouse, child, or person with an insurable interest receiving a 
survivor annuity.
    Self-only annuity means the recurring unreduced payments under CSRS 
to a retiree with no survivor annuity to anyone.

[[Page 107]]

    Time of retirement means the effective commencing date for a retired 
employee's or Member's annuity.

[50 FR 20070, May 13, 1985, as amended at 51 FR 31931, Sept. 8, 1986; 57 
FR 33597-33598, July 29, 1992; 58 FR 52880, Oct. 13, 1993]

                   Elections at the Time of Retirement



Sec. 831.611  Election at time of retirement of fully reduced annuity
to provide a current spouse annuity.

    (a) A married employee or Member retiring under CSRS will receive a 
fully reduced annuity to provide a current spouse annuity unless--
    (1) The employee or Member, with the consent of the current spouse, 
elects a self-only annuity, a partially reduced annuity, or a fully 
reduced annuity to provide a former spouse annuity, in accordance with 
Sec. 831.612(b) or Sec. 831.614; or
    (2) The employee or Member elects a self-only annuity, a partially 
reduced annuity or a fully reduced annuity to provide a former spouse 
annuity, and current spousal consent is waived in accordance with Sec. 
831.608.
    (b) Qualifying court orders that award former spouse annuities 
prevent payment of current spouse annuities to the extent necessary to 
comply with the court order and Sec. 831.614.
    (c) The maximum rate of a current spouse annuity is 55 percent of 
the rate of the retiring employee's or Member's self-only annuity if the 
employee or Member is retiring based on a separation from a position 
under CSRS on or after October 11, 1962. The maximum rate of a current 
spouse annuity is 50 percent of the rate of the retiring employee's or 
Member's self-only annuity if the employee or Member is retiring based 
on a separation from a position covered under CSRS between September 30, 
1956, and October 11, 1962.
    (d)(1) The amount of the reduction to provide a current spouse 
annuity equals 2\1/2\ percent of the first $3600 of the designated 
survivor base plus 10 percent of the portion of the designated survivor 
base which exceeds $3600, if--
    (i) The employee's or Member's separation on which the retirement is 
based was on or after October 11, 1962; or
    (ii) The reduction is to provide a current spouse annuity (under 
Sec. 831.631) for a spouse acquired after retirement.
    (2) The amount of the reduction to provide a current spouse annuity 
under this section for former employees or Members whose retirement is 
based on separations before October 11, 1962, equals 2\1/2\ percent of 
the first $2400 of the designated survivor base plus 10 percent of the 
portion of the designated survivor base which exceeds $2400.

[50 FR 20070, May 13, 1985, as amended at 51 FR 31931, Sept. 8, 1986; 58 
FR 52880, Oct. 13, 1993. Redesignated at 58 FR 52882, Oct. 13, 1993]



Sec. 831.612  Election at time of retirement of a fully reduced annuity 
or a partially reduced annuity to provide a former spouse annuity.

    (a) An unmarried employee or Member retiring under CSRS may elect a 
fully reduced annuity or a partially reduced annuity to provide a former 
spouse annuity or annuities.
    (b) A married employee or Member retiring under CSRS may elect a 
fully reduced annuity or a partially reduced annuity to provide a former 
spouse annuity or annuities instead of a fully reduced annuity to 
provide a current spouse annuity, if the current spouse consents to the 
election in accordance with Sec. 831.614 or spousal consent is waived 
in accordance with Sec. 831.618.
    (c) An election under paragraph (a) or (b) of this section is void 
to the extent that it--
    (1) Conflicts with a qualifying court order; or
    (2) Would cause the total of current spouse annuities and former 
spouse annuities payable based on the employee's or Member's service to 
exceed 55 percent (or 50 percent if based on a separation before October 
11, 1962) of the self-only annuity to which the employee or Member would 
be entitled.
    (d) Any reduction in an annuity to provide a former spouse annuity 
will terminate on the first day of the month after the former spouse 
remarries before age 55 or dies, or the former spouse's eligibility for 
a former spouse annuity terminates under the terms of a qualifying court 
order, unless--

[[Page 108]]

    (1) The retiree elects, within 2 years after the former spouse's 
death or remarriage, to continue the reduction to provide or increase a 
former spouse annuity for another former spouse, or to provide or 
increase a current spouse annuity; or
    (2) A qualifying court order requires the retiree to provide another 
former spouse annuity.
    (e) The maximum rate of a former spouse annuity under this section 
or Sec. 831.632 is 55 percent of the rate of the retiring employee's or 
Member's self-only annuity if the employee or Member is retiring based 
on a separation from a position under CSRS on or after October 11, 1962. 
The maximum rate of a former spouse annuity under this section or Sec. 
831.632 is 50 percent of the rate of the retiring employee's or Member's 
self-only annuity if the employee or Member is retiring based on a 
separation from a position covered under CSRS between September 30, 
1956, and October 11, 1962.
    (f)(1) The amount of the reduction to provide one or more former 
spouse annuities or a combination of a current spouse annuity and one or 
more former spouse annuities under this section equals 2\1/2\ percent of 
the first $3600 of the total designated survivor base plus 10 percent of 
the portion of the total designated survivor base which exceeds $3600, 
if--
    (i) The employee's or Member's separation on which the retirement is 
based was on or after October 11, 1962; or
    (ii) The reduction is to provide a former spouse annuity (under 
Sec. 831.632) for a former spouse from whom the employee or Member was 
divorced after retirement.
    (2) The amount of the reduction to provide one or more former spouse 
annuities or a combination of a current spouse annuity and one or more 
former spouse annuities under this section for employees or Members 
whose retirement is based on separations before October 11, 1962, equals 
2\1/2\ percent of the first $2400 of the total designated survivor base 
plus 10 percent of the portion of the total designated survivor base 
which exceeds $2400.

[50 FR 20070, May 13, 1985, as amended at 51 FR 31931, Sept. 8, 1986; 55 
FR 9100, Mar. 12, 1990; 58 FR 52880, Oct. 13, 1993. Redesignated at 58 
FR 52882, Oct. 13, 1993]



Sec. 831.613  Election of insurable interest annuity.

    (a) At the time of retirement, an employee or Member in good health, 
who is applying for a non-disability annuity, may elect an insurable 
interest annuity. Spousal consent is not required, but an election under 
this section does not exempt a married employee or Member from the 
provisions of Sec. 831.611(a).
    (b) An insurable interest annuity may be elected by an employee or 
Member electing a fully reduced annuity or a partially 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 this section may not be made on behalf of a current spouse unless 
that current spouse has consented to an election not to provide a 
current spouse annuity in accordance with Sec. 831.611(a)(1).
    (2) A consent (to an election not to provide a current spouse 
annuity in accordance with Sec. 831.611(a)(1)) required by paragraph 
(c)(1) of this section to be eligible to be the beneficiary of an 
insurable interest annuity is cancelled if--
    (i) The retiree fails to qualify to receive the insurable interest 
annuity; or
    (ii) The retiree changes his or her election to receive an insurable 
interest annuity under Sec. 831.621; or
    (iii) The retiree elects a fully or partially reduced annuity to 
provide a current spouse annuity under Sec. 831.685.
    (3) An election of a partially reduced annuity under Sec. 
831.622(b) or Sec. 831.685 to provide a current spouse annuity for a 
current spouse who is the beneficiary of an insurable interest annuity 
is void unless the spouse consents to the election.
    (4) If a retiree who had elected an insurable interest annuity to 
benefit a current spouse elects a fully reduced

[[Page 109]]

annuity to provide a current spouse annuity (or, with the consent of the 
current spouse, a partially reduced annuity to provide a current spouse 
annuity) under Sec. 831.622(b) or Sec. 831.685, the election of the 
insurable interest annuity is cancelled.
    (5)(i) A retiring employee or Member may not elect a fully reduced 
annuity or a partially reduced annuity to provide a former spouse 
annuity and an insurable interest annuity to benefit the same former 
spouse.
    (ii) If a retiring employee or Member who is required by court order 
to provide a former spouse annuity elects an insurable interest annuity 
to benefit the former spouse with the court-ordered entitlement--
    (A) If the benefit based on the election is greater than or equal to 
the benefit based on the court order, the election of the insurable 
interest annuity will satisfy the requirements of the court order as 
long as the insurable interest annuity continues.
    (B) If the benefit based on the election is less than the benefit 
based on the court order, the election of the insurable interest annuity 
is void.
    (iii) An election under Sec. 831.632 of a fully reduced annuity or 
a partially reduced annuity to benefit a former spouse by a retiree who 
elected and continues to receive an insurable interest annuity to 
benefit that former spouse is void.
    (d) To elect an insurable interest annuity, an employee or Member 
must indicate the intention to make the election on the application for 
retirement; submit evidence to demonstrate that he or she is in good 
health; and arrange and pay for the medical examination that shows that 
he or she is in good health. A report of the medical examination, signed 
and dated by a licensed physician, must be furnished to OPM on such 
forms and at such time and place as OPM may prescribe.
    (e) An insurable interest annuity may be elected to provide a 
survivor benefit only for a person who has an insurable interest in the 
retiring employee or Member.
    (1) An insurable interest is presumed to exist with--
    (i) The current spouse;
    (ii) A blood or adopted relative closer than first cousins;
    (iii) A former spouse;
    (iv) A person to whom the employee or Member is engaged to be 
married;
    (v) A person with whom the employee or Member is living in a 
relationship which would constitute a common-law marriage in 
jurisdictions recognizing common-law marriages.
    (2) When an insurable interest in not presumed, the employee or 
Member must submit affidavits from one or more persons with personal 
knowledge of the named beneficiary's insurable interest in the employee 
or Member. The affidavits must set forth the relationship, if any, 
between the named beneficiary and the employee or Member, the extent to 
which the named beneficiary is dependent on the employee or Member, and 
the reasons why the named beneficiary might reasonably expect to derive 
financial benefit from the continued life of the employee or Member.
    (3) The employee or Member may be required to submit documentary 
evidence to establish the named beneficiary's date of birth.
    (f) After receipt of all required evidence to support an election of 
an insurable interest annuity, OPM will notify the employee or Member of 
initial monthly annuity rates with and without the election of an 
insurable interest annuity and the initial rate payable to the named 
beneficiary. No election of an insurable interest annuity is effective 
unless the employee or Member confirms the election in writing, dies, or 
becomes incompetent no 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 
annuity and a fully reduced annuity or a partially reduced annuity to 
provide a current spouse annuity and/or a former spouse annuity or 
annuities, each reduction is computed based on the self-only annuity 
computation. The combined reduction may exceed the maximum 40 percent 
reduction in the retired employee's or Member's annuity permitted under 
section 8339(k)(1) of title 5, United States Code, applicable to 
insurable interest annuities.

[[Page 110]]

    (2) The rate of annuity paid to the beneficiary of an insurable 
interest election, when the employee or Member also elected a fully 
reduced annuity or a partially reduced annuity, equals 55 (or 50 percent 
if based on a separation before October 11, 1962) percent of the rate of 
annuity after the insurable interest reduction. The additional reduction 
to provide a current spouse annuity or a former spouse annuity is not 
considered in determining the rate of annuity paid to the beneficiary of 
the insurable interest election.
    (h)(1) Except as provided in Sec. 831.612(d), if a retiree who is 
receiving a fully reduced annuity or a partially reduced annuity to 
provide a former spouse annuity has also elected an insurable interest 
annuity to benefit a current spouse and if the eligible former spouse 
remarries before age 55, dies, or loses eligibility under the terms of 
the court order, and no other former spouse is entitled to a survivor 
annuity based on an election made in accordance with Sec. 831.632 or a 
qualifying court order, the retiree may elect, within 2 years after the 
former spouse's remarriage, death, or loss of eligibility under the 
terms of the court order, to convert the insurable interest annuity to a 
fully reduced annuity to provide a current spouse annuity, effective on 
the first day of the month following the event causing the former spouse 
to lose eligibility.
    (2) An election under paragraph (h)(1) of this section cancels any 
consent not to receive a current spouse annuity required by paragraph 
(c) of this section for the current spouse to be eligible for an annuity 
under this section.
    (3) When a former spouse receiving an annuity under section 8341(h) 
of title 5, United States Code, loses eligibility to that annuity, a 
beneficiary of an insurable interest annuity who was the current spouse 
at both the time of the retiree's retirement and death may, within 2 
years after the former spouse's death, 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 had been 
receiving. The election is effective on the first day of the month 
following the event causing the former spouse to lose eligibility.
    (i) Upon the death of the current spouse, a retiree whose annuity is 
reduced to provide both a current spouse annuity and an insurable 
interest benefit for a former spouse is not permitted to convert the 
insurable interest annuity to a reduced annuity to provide a former 
spouse annuity.
    (j) An employee or Member may name only one natural person as the 
named beneficiary of an insurable interest annuity. OPM will not accept 
the designation of contingent beneficiaries and such a designation is 
void.
    (k)(1) An election under this section is prospectively voided by an 
election of a reduced annuity to provide a current spouse annuity under 
Sec. 831.631 that would benefit the same person.
    (2)(i) If the spouse is not the beneficiary of the election under 
this section, a retiree may prospectively void an election under this 
section at the time the retiree elects a reduced annuity to provide a 
current spouse annuity under Sec. 831.631.
    (ii) A retiree's election to void an election under paragraph 
(k)(2)(i) of this section must be filed at the same time as the election 
under Sec. 831.631.
    (3) An annuity reduction under this section terminates on the first 
day of the month after the beneficiary of the insurable interest annuity 
dies.

[50 FR 20070, May 13, 1985, as amended at 51 FR 31931, Sept. 8, 1986; 52 
FR 10216, Mar. 31, 1987; 55 FR 9100, Mar. 12, 1990; 58 FR 52880, Oct. 
13, 1993. Redesignated at 58 FR 52882, Oct. 13, 1993; as amended at 66 
FR 66711, Dec. 27, 2001]



Sec. 831.614  Election of a self-only annuity or partially reduced 
annuity by married employees and Members.

    (a) A married employee may not elect a self-only annuity or a 
partially reduced annuity to provide a current spouse annuity without 
the consent of the current spouse or a waiver of spousal consent by OPM 
in accordance with Sec. 831.618.
    (b) Evidence of spousal consent or a request for waiver of spousal 
consent must be filed on a form prescribed by OPM.
    (c) The form will require that a notary public or other official 
authorized to administer oaths certify that the

[[Page 111]]

current spouse presented identification, gave consent, signed or marked 
the form, and acknowledged that the consent was given freely in the 
notary's or official's presence.
    (d) The form described in paragraph (c) of this section may be 
executed before a notary public, an official authorized by the law of 
the jurisdiction where executed to administer oaths, or an OPM employee 
designated for that purpose by the Associate Director.

[50 FR 20070, May 13, 1985, as amended at 55 FR 9100, Mar. 12, 1990; 58 
FR 52880, Oct. 13, 1993. Redesignated at 58 FR 52882, Oct. 13, 1993]



Sec. 831.615  [Reserved]



Sec. 831.616  Elections by previously retired retiree with new 
title to an annuity.

    (a) A reemployed retiree (after 5 or more years of reemployed 
annuitant service) who elects a redetermined annuity under section 8344 
of title 5, United States Code, is subject to Sec. Sec. 831.611 through 
831.622 at the time of the redetermination.
    (b) A disability retiree who recovers from disability or is restored 
to earning capacity is subject to Sec. Sec. 831.611 through 622 at the 
time that he or she retires under section 8336 or 8338 of title 5, 
United States Code.
    (c) A retiree who is dropped from the retirement rolls and 
subsequently gains a new annuity right by fulfilling the requirements of 
section 8333(b) of title 5, United States Code, is subject to Sec. Sec. 
831.611 through 831.622 when he or she retires under that new annuity 
right.

[50 FR 20070, May 13, 1985, as amended at 58 FR 52881, Oct. 13, 1993. 
Redesignated at 58 FR 52882, Oct. 13, 1993]



Sec. 831.617  [Reserved]



Sec. 831.618  Waiver of spousal consent requirement.

    (a) The spousal consent requirement will be waived upon a showing 
that the spouse's whereabouts cannot be determined. A request for waiver 
on this basis must be accompanied by--
    (1) A judicial determination that the spouse's whereabouts cannot be 
determined; or
    (2) (i) Affidavits by the employee or Member and two other persons, 
at least one of whom is not related to the employee or Member, attesting 
to the inability to locate the current spouse and stating the efforts 
made to locate the spouse; and
    (ii) Documentary corroboration such as tax returns filed separately 
or newspaper stories about the spouse's disappearance.
    (b) The spousal consent requirement will be waived based on 
exceptional circumstances if the employee or Member presents a judicial 
determination finding that--
    (1) The case before the court involves a Federal employee who is in 
the process of retiring from Federal employment and the spouse of that 
employee;
    (2) The nonemployee spouse has been given notice and an opportunity 
to be heard concerning this order;
    (3) The court has considered sections 8339(j)(1) of title 5, United 
States Code, and this section as they relate to waiver of the spousal 
consent requirement for a married Federal employee to elect an annuity 
without a reduction to provide a survivor benefit to a spouse at 
retirement; and
    (4) The court finds that exceptional circumstances exist justifying 
waiver of the nonemployee spouse's consent.

[50 FR 20070, May 13, 1985, as amended at 51 FR 31932, Sept. 8, 1986; 55 
FR 9100, Mar. 12, 1990. Redesignated at 58 FR 52882, Oct. 13, 1993]



Sec. 831.619  Marital status at time of retirement.

    An employee or Member is unmarried at the time of retirement for all 
purposes under this subpart only if the employee or Member was unmarried 
on the date that the annuity begins to accrue.

[50 FR 20070, May 13, 1985. Redesignated at 58 FR 52882, Oct. 13, 1993]

                      Changes of Survivor Elections



Sec. 831.621  Changes of election before final adjudication.

    An employee or Member may name a new survivor or change his election 
of type of annuity if, not later than 30 days after the date of the 
first regular monthly payment, the named survivor

[[Page 112]]

dies or the employee or Member files with OPM a new written election. 
All required evidence of spousal consent or justification for waiver of 
spousal consent, if applicable, must accompany any new written election 
under this section.

[50 FR 20070, May 13, 1985. Redesignated at 58 FR 52882, Oct. 13, 1993]



Sec. 831.622  Changes of election after final adjudication.

    (a) Except as provided in section 8339 (j) or (k) of title 5, United 
States Code, or Sec. Sec. 831.682, 831.684, 831.685, or paragraph (b) 
of this section, an employee or Member may not revoke or change the 
election or name another survivor later than 30 days after the date of 
the first regular monthly payment.
    (b)(1) Except as provided in Sec. 831.613 and paragraphs (b)(2) and 
(b)(3) of this section, a retiree who was married at the time of 
retirement and has elected a self-only annuity, or a partially reduced 
annuity to provide a current spouse annuity, or a fully reduced annuity 
or a partially reduced annuity to provide a former spouse annuity, or an 
insurable interest annuity may elect, no later than 18 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) of this section cannot be paid if it will, when combined with any 
former spouse annuity or annuities that are required by court order, 
exceed the maximum survivor annuity permitted under Sec. 831.641.
    (3) To make an election under paragraph (b)(1) of this section, the 
retiree must pay, in full, a deposit determined under Sec. 831.662, 
plus interest, at the rate provided under Sec. 831.105(g), no later 
than 18 months after the time of retirement.
    (4) If a retiree makes an election under paragraph (b)(1) of this 
section and is prevented from paying the deposit within the 18-month 
time limit because OPM did not send him or her a notice of the amount of 
the deposit at least 30 days before the time limit expires, the time 
limit for making the deposit will be extended to 30 days after OPM sends 
the notice of the amount of the deposit.
    (5) An election under paragraph (b)(1) of this section, cancels any 
spousal consent under Sec. 831.611 to the extent of the election.
    (6) An election under paragraph (b)(1) of this section is void 
unless it is filed with OPM before the retiree dies.
    (7) If a retiree who had elected a fully reduced annuity or a 
partially reduced annuity to provide a former spouse annuity or former 
spouse annuities makes an election under paragraph (b)(1) of this 
section which would cause the combined current spouse annuity and former 
spouse annuity (or annuities) to exceed the maximum allowed under Sec. 
831.641, the former spouse annuity (or annuities) must be reduced to not 
exceed the maximum allowable under Sec. 831.641.

[51 FR 31932, Sept. 8, 1986, as amended at 58 FR 52881, Oct. 13, 1993. 
Redesignated at 58 FR 52882, Oct. 13, 1993]

                        Post-Retirement Elections



Sec. 831.631  Post-retirement election of fully reduced annuity or 
partially reduced annuity to provide a current spouse annuity.

    (a) Except as provided in paragraph (c) of this section, in cases of 
retirees who retired before May 7, 1985, and married after retirement 
but before February 27, 1986:
    (1) A retiree who was unmarried at the time of retirement may elect, 
within 1 year after a post-retirement marriage, a fully reduced annuity 
or a partially reduced annuity to provide a current spouse annuity.
    (2) A retiree who was married and elected a fully reduced annuity or 
a partially reduced annuity at the time of retirement may elect, within 
1 year after a postretirement marriage, to provide a current spouse 
annuity. If a retiree elects a fully reduced annuity or a partially 
reduced annuity under this paragraph, the election must equal the 
election made at the time of retirement.
    (3) The reduction under paragraphs (a)(1) or (a)(2) of this section 
commences on the first day of the month beginning 1 year after the date 
of the post-retirement marriage.

[[Page 113]]

    (b) Except as provided in paragraph (c) of this section, in cases 
involving retirees who retired on or after May 7, 1985, or married on or 
after February 27, 1986--
    (1) A retiree who was unmarried at the time of retirement may elect, 
within 2 years after a post-retirement marriage, a fully reduced annuity 
or a partially reduced annuity to provide a current spouse annuity.
    (2) A retiree who was married at the time of retirement may elect, 
within 2 years after a post-retirement marriage--
    (i) A fully reduced annuity or a partially reduced annuity to 
provide a current spouse annuity if--
    (A) The retiree was awarded a fully reduced annuity under Sec. 
831.611 at the time of retirement; or
    (B) The election at the time of retirement was made with a waiver of 
spousal consent in accordance with Sec. 831.618; or
    (C) The marriage at the time of retirement was to a person other 
than the spouse who would receive a current spouse annuity based on the 
post-retirement election; or
    (ii) A partially reduced annuity to provide a current spouse annuity 
no greater than the current spouse annuity elected for the current 
spouse at retirement if--
    (A) The retiree elected a partially reduced annuity under Sec. 
831.614 at the time of retirement;
    (B) The election at the time of retirement was made with spousal 
consent in accordance with Sec. 831.614; and
    (C) The marriage at the time of retirement was to the same person 
who would receive a current spouse annuity based on the post-retirement 
election.
    (3)(i) Except as provided in paragraph (b)(3)(ii) or (b)(4) of this 
section, a retiree making an election under this section must deposit an 
amount equal to the difference between the amount of annuity actually 
paid to the retiree and the amount of annuity that would have been paid 
if the reduction elected under paragraphs (b)(1) or (b)(2) of this 
section had been in effect continuously since the time of retirement, 
plus 6 percent annual interest, computed under Sec. 831.105, from the 
date when each difference occurred.
    (ii) An election under this section may be made without deposit, if 
that election prospectively voids an election of an insurable interest 
annuity.
    (4)(i) An election under this section is irrevocable when received 
by OPM.
    (ii) An election under this section is effective when the marriage 
duration requirements of Sec. 831.642 are satisfied.
    (iii) If an election under paragraph (b)(1) or (b)(2) of this 
section does not become effective, no deposit under paragraph (b)(3) of 
this section is required.
    (iv) If payment of the deposit under paragraph (b)(3) of this 
section is not required because the election never became effective and 
if some or all of the deposit has been paid, the amount paid will be 
returned to the retiree, or, if the retiree has died, to the person who 
would be entitled to any lump-sum benefits under the order of precedence 
in section 8342 of title 5, United States Code.
    (5) Any reduction in an annuity to provide a current spouse annuity 
will terminate effective on the first day of the month after the 
marriage to the current spouse ends, unless--
    (i) The retiree elects, within 2 years after a divorce terminates 
the marriage, to continue the reduction to provide for a former spouse 
annuity; or
    (ii) A qualifying court order requires the retiree to provide a 
former spouse annuity.
    (c)(1) Qualifying court orders prevent payment of current spouse 
annuities to the extent necessary to comply with the court order and 
Sec. 831.641.
    (2) If an election under this section causes the total of all 
current and former spouse annuities provided by a qualifying court order 
or elected under Sec. 831.612, Sec. 831.632, or this section to exceed 
the maximum survivor annuity permitted under Sec. 831.641, OPM will 
accept the election but will pay the portion in excess of the maximum 
only when permitted by Sec. 831.641(c).
    (d) The amount of the reduction to provide a current spouse annuity 
under this section equals 2\1/2\ percent of the first $3600 of the 
designated survivor base plus 10 percent of the portion of

[[Page 114]]

the designated survivor base which exceeds $3600.

[55 FR 9101, Mar. 12, 1990, as amended at 56 FR 16263, Apr. 22, 1991; 58 
FR 52881, Oct. 13, 1993. Redesignated at 58 FR 52882, Oct. 13, 1993]



Sec. 831.632  Post-retirement election of fully reduced annuity or 
partially reduced annuity to provide a former spouse annuity.

    (a)(1) Except as provided in paragraphs (b) and (c) of this section, 
when the marriage of a retiree who retired on or after May 7, 1985, 
terminates after retirement, he or she may elect in writing a fully 
reduced annuity or a partially reduced annuity to provide a former 
spouse annuity. Such an election must be filed with OPM within 2 years 
after the retiree's marriage to the former spouse terminates.
    (2) Except as provided in paragraphs (b) and (c) of this section, a 
retiree who retired before May 7, 1985, and whose marriage was 
terminated on or after May 7, 1985, may elect in writing a fully reduced 
annuity or a partially reduced annuity to provide a former spouse 
annuity if the retiree while married to the former spouse had elected, 
prior to May 7, 1985, a reduced annuity to provide a current spouse 
annuity for that spouse. Such an election must be filed with OPM within 
2 years after the retiree's marriage to the former spouse terminates.
    (3) Except as provided in paragraphs (b) and (c) of this section, a 
retiree who retired on or after May 7, 1985, and before February 27, 
1986, and whose marriage terminated before May 7, 1985, may elect in 
writing a fully reduced annuity or a partially reduced annuity to 
provide a former spouse annuity. Such an election must be made no later 
than February 27, 1988.
    (b)(1) Qualifying court orders prevent payment of former spouse 
annuities to the extent necessary to comply with the court order and 
Sec. 831.641.
    (2) A retiree who elects a fully or partially reduced annuity to 
provide a former spouse annuity may not elect to provide a former spouse 
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 on a retiree's elections under Sec. Sec. 831.611, 831.612, 
831.631 and this section to exceed 55 percent of the rate of the 
retiree's self-only annuity if the retiree's retirement was based on a 
separation from a position under CSRS on or after October 11, 1962, or 
50 percent of the rate of the retiree's self-only annuity if the 
retiree's retirement was based on a separation from a position under 
CSRS before October 11, 1962.
    (3) An election under this section is void--
    (i) In the case of a married retiree, if the current spouse does not 
consent to the election on a form as described in Sec. 831.614(c) and 
spousal consent is not waived by OPM in accordance with Sec. 831.618; 
or
    (ii) To the extent that it provides a former spouse annuity for the 
spouse who was married to the retiree at the time of retirement in an 
amount that is inconsistent with any joint designation or waiver made at 
the time of retirement under Sec. 831.611 (a)(1) or (a)(2); or
    (iii) In the case of an election under paragraph (a)(2) of this 
section, to the extent that it provides a former spouse annuity that 
exceeds the proportion of the retiree's annuity to which the former 
spouse would have been entitled as a current spouse annuity as of May 7, 
1985.
    (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 annuity actually paid to the retiree and the amount of annuity 
that would have been paid if the reduction elected under paragraph (a) 
of this section had been in effect continuously since the time of 
retirement, plus 6 percent annual interest, computed under Sec. 
831.105, from the date when each difference occurred.
    (d) Any reduction in an annuity to provide a former spouse annuity 
will terminate on the first day of the month after the former spouse 
remarries before age 55 or dies, or the former spouse's eligibility for 
a former spouse annuity terminates under the terms of a qualifying court 
order, unless--

[[Page 115]]

    (1) The retiree elects, within 2 years after the event causing the 
former spouse to lose eligibility, to continue the reduction to provide 
or increase a former spouse annuity for another former spouse, or to 
provide or increase a current spouse annuity; or
    (2) A qualifying court order requires the retiree to provide another 
former spouse annuity.
    (e)(1) The amount of the reduction to provide one or more former 
spouse annuities or a combination of a current spouse annuity and one or 
more former spouse annuities under this section equals 2\1/2\ percent of 
the first $3600 of the total designated survivor base plus 10 percent of 
the portion of the total designated survivor base which exceeds $3600, 
if--
    (i) The employee's or Member's separation on which the retirement is 
based was on or after October 11, 1962; or
    (ii) The reduction is to provide a former spouse annuity (under 
Sec. 831.632) for a former spouse whom the employee or Member married 
after retirement.
    (2) The amount of the reduction to provide one or more former spouse 
annuities or a combination of a current spouse annuity and one or more 
former spouse annuities under this section for employees or Members 
whose retirement is based on separations before October 11, 1962, equals 
2\1/2\ percent of the first $2400 of the total designated survivor base 
plus 10 percent of the portion of the total designated survivor base 
which exceeds $2400.

[50 FR 20070, May 13, 1985, as amended at 51 FR 31932, Sept. 8, 1986; 52 
FR 3209, Feb. 3, 1987; 55 FR 9100, Mar. 12, 1990; 56 FR 16262, Apr. 22, 
1991; 58 FR 52881, Oct. 13, 1993. Redesignated at 58 FR 52882, Oct. 13, 
1993]

                               Eligibility



Sec. 831.641  Division of a survivor annuity.

    (a) Except as provided in Sec. Sec. 831.682 and 831.683, the 
maximum combined total of all current and former spouse annuities (not 
including any benefits based on an election of an insurable interest 
annuity) payable based on the service of a former employee or Member 
equals 55 percent (or 50 percent if based on a separation before October 
11, 1962) of the rate of the self-only annuity that otherwise would have 
been paid to the employee, Member, or retiree.
    (b) By using the elections available under this subpart or to comply 
with a court order under subpart Q, a survivor annuity may be divided 
into a combination of former spouse annuities and a current spouse 
annuity so long as the aggregate total of current and former spouse 
annuities does not exceed the maximum limitation in paragraph (a) of 
this section.
    (c) Upon termination of former spouse annuity payments because of 
death or remarriage of the former spouse, or by operation of a court 
order, the current spouse will be entitled to a current spouse annuity 
or an increased current spouse annuity if--
    (1) The employee or Member died while employed in a position covered 
under CSRS; or
    (2) The current spouse was married to the employee or Member 
continuously from the time of retirement and did not consent to an 
election not to provide a current spouse annuity; or
    (3) The current spouse married a retiree after retirement and the 
retiree elected, under Sec. 831.631, to provide a current spouse 
annuity for that spouse in the event that the former spouse annuity 
payments terminate.

[50 FR 20070, May 13, 1985, as amended at 51 FR 31933, Sept. 8, 1986; 58 
FR 52881, Oct. 13, 1993. Redesignated at 58 FR 52282, Oct. 13, 1993]



Sec. 831.642  Marriage duration requirements.

    (a) The surviving spouse of a retiree who retired on or after May 7, 
1985, or of a retiree who retired before May 7, 1985, but married that 
surviving spouse on or after November 8, 1984, or of an employee or 
Member who dies while serving in a position covered by CSRS on or after 
May 7, 1985, or of an employee or Member who died while serving in a 
position covered by CSRS before May 7, 1985, but married that surviving 
spouse on or after November 8, 1984, can qualify for a current spouse 
annuity only if--
    (1) The surviving spouse and the employee, Member, or retiree had 
been

[[Page 116]]

married for at least 9 months, as explained in paragraph (b) of this 
section; or
    (2) A child was born of the marriage, as explained in paragraph (c) 
of this section; or
    (3) The death of the employee, Member, or retiree was accidental as 
explained in paragraph (d) of this section.
    (b) For satisfying the 9-month marriage requirement of paragraph 
(a)(1) of this section, the aggregate time of all marriages between the 
spouse applying for a current spouse annuity and the employee, Member, 
or retiree is included.
    (c) For satisfying the child-born-of-the-marriage requirement of 
paragraph (a)(2) of this section, any child, including a posthumous 
child, born to the spouse and the employee, Member, or retiree is 
included. This includes a child born out of wedlock or of a prior 
marriage between the same parties.
    (d)(1) A death is accidental if it results from homicide or from 
bodily injuries incurred solely through violent, external, and 
accidental means. The term ``accidental'' does not include a death--
    (i) Caused wholly or partially, directly or indirectly, by disease 
or bodily or mental infirmity, or by medical or surgical treatment or 
diagnosis thereof; or
    (ii) Caused wholly or partially, directly, or indirectly, by 
ptomaine, by bacterial infection, except only septic infection of and 
through a visible wound sustained solely through violent, external, and 
accidental means; or
    (iii) Caused wholly or partially, directly or indirectly, by hernia, 
no matter how or when sustained; or
    (iv) Caused by or the result of intentional self-destruction or 
intentionally self-inflicted injury, while sane or insane; or
    (v) Caused by or as a result of the self-administration or illegal 
or illegally obtained drugs.
    (2) A State judicial or administrative adjudication of the cause of 
death for criminal or insurance purposes is conclusive evidence of 
whether a death is accidental.
    (3) A death certificate showing the cause of death as accident or 
homicide is prima facie evidence that the death was accidental.

[50 FR 20070, May 13, 1985; 50 FR 21031, May 22, 1985, as amended at 51 
FR 31933, Sept. 8, 1986; 56 FR 16263, Apr. 22, 1991. Redesignated at 58 
FR 52882, Oct. 13, 1993]



Sec. 831.643  Time for filing applications for death benefits.

    (a) A survivor of a deceased employee, Member, or retiree, may file 
an application for annuity, personally or through a representative, at 
any time within 30 years after the death of the employee, Member, or 
retiree.
    (b) A former spouse claiming eligibility for an annuity based on 
Sec. 831.683 may file an application at any time between November 8, 
1984 and May 7, 1989. Within this period, the date that the first 
correspondence indicating a desire to file a claim is received by OPM 
will be treated as the application date for meeting timeliness deadlines 
and determining the commencing date of the survivor annuity under Sec. 
831.683 if the former spouse is eligible on that date.

[55 FR 9102, Mar. 12, 1990, as amended at 58 FR 52881, Oct. 13, 1993. 
Redesignated at 58 FR 52882, Oct. 13, 1993]



Sec. 831.644  Remarriage.

    (a)(1) If a recipient of a current spouse annuity remarried before 
November 8, 1984, the current spouse annuity terminates on the last day 
of the month before the recipient remarried before attaining age 60.
    (2) If a recipient of a current spouse annuity remarries on or after 
November 8, 1984, a current spouse annuity terminates on the last day of 
the month before the recipient remarries before attaining age 55.
    (b) A former spouse annuity or eligibility for a future former 
spouse annuity terminates on the last day of the month before the month 
in which the former spouse remarries before attaining age 55.
    (c) If a current spouse annuity is terminated because of remarriage 
of the recipient, the annuity is reinstated on the day of the 
termination of the remarriage by death, annulment, or divorce if--
    (1) The surviving spouse elects to receive this annuity instead of a 
survivor

[[Page 117]]

benefit to which he or she may be entitled, under CSRS or another 
retirement system for Government employees, by reason of the remarriage; 
and
    (2) Any lump sum paid on termination of the annuity is repaid (in a 
single payment or by withholding payment of the annuity until the amount 
of the lump sum has accrued).
    (d) (1) If present or future entitlement to a former spouse annuity 
is terminated because of remarriage before age 55, the entitlement will 
not be reinstated upon termination of the remarriage by death or 
divorce.
    (2) If present or future entitlement to a former spouse annuity is 
terminated because of remarriage before age 55, the entitlement will not 
be reinstated upon annulment of the remarriage unless--
    (i) The decree of annulment states that the marriage is without 
legal effect retroactively from the marriage's inception; and
    (ii) The former spouse's entitlement is based on section 4(b)(1)(B) 
or section (4)(b)(4) of Pub. L. 98-615.
    (3) If a retiree who is receiving a reduced annuity to provide a 
former spouse annuity and who has remarried that former spouse (before 
the former spouse attained age 55) dies, the retiree will be deemed to 
have elected to continue the reduction to provide a current spouse 
annuity unless the retiree requests (or has requested) in writing that 
OPM terminate the reduction.

[50 FR 20070, May 13, 1985, as amended at 51 FR 31935, Sept. 8, 1986. 
Redesignated at 58 FR 52882, Oct. 13, 1993, as amended at 60 FR 14202, 
Mar. 16, 1995]



Sec. 831.645  Elections between survivor annuities.

    (a) A current spouse annuity cannot be reinstated under Sec. 
831.644 unless--
    (1) The surviving spouse elects to receive the reinstated current 
spouse annuity instead of any other payments (except any accrued but 
unpaid annuity and any unpaid employee contributions) to which he or she 
may be entitled under CSRS, or any other retirement system for 
Government employees, by reason of the remarriage; and
    (2) Any lump sum paid on termination of the annuity is returned to 
the Civil Service Retirement and Disability Fund.
    (b) A current spouse is entitled to a current spouse annuity based 
on an election under Sec. 831.631 only upon electing this current 
spouse annuity instead of any other payments (except any accrued but 
unpaid annuity and any unpaid employee contributions) to which he or she 
may be entitled under CSRS, or any other retirement system for 
Government employees.
    (c) A former spouse who marries a retiree is entitled to a former 
spouse annuity based on an election by that retiree under Sec. 831.632, 
or Sec. 831.682, or a qualifying court order terminating that marriage 
to that retiree only upon electing this former spouse annuity instead of 
any other payments (except any accrued but unpaid annuity and any unpaid 
employee contributions) to which he or she may be entitled under CSRS, 
or any other retirement system for Government employees.
    (d) As used in this section, ``any other retirement system for 
Government employees'' does not include Survivor Benefit Payments from a 
military retirement system or social security benefits.

[55 FR 9103, Mar. 12, 1990, as amended at 58 FR 52881, Oct. 13, 1993. 
Redesignated at 58 FR 52882, Oct. 13, 1993]

                      Payment of Survivor Annuities



Sec. 831.651  Commencing and terminating dates of survivor annuities.

    (a) Except as provided in paragraph (b) of this section, current 
spouse annuities, former spouse annuities, children's survivor 
annuities, and survivor annuities for beneficiaries of insurable 
interest annuities under CSRS begin to accrue on the day after death of 
the employee, Member, or retiree.
    (b)(1) A current spouse annuity begins to accrue--
    (i) Upon attainment of age 50 when, under section 12 of the Civil 
Service Retirement Act Amendments of February 29, 1948, the annuity is 
deferred until age 50; or
    (ii) Upon OPM's receipt of a claim for an annuity authorized for 
unremarried widows and widowers by section 2 of the Civil Service 
Retirement Act

[[Page 118]]

Amendments of June 25, 1958, 72 Stat. 218.
    (2) A former spouse annuity begins to accrue--
    (i) For annuities under Sec. 831.683, on the later of the day after 
date of death of the retiree or the first day of the second month after 
the date the application for annuity is received in OPM; or
    (ii) For annuities when a former spouse annuity is authorized by 
court order under section 8341(h) of title 5, United States Code, on the 
later of the day after the date of death of the employee, Member, or 
retiree or the first day of the second month after the court order 
awarding the former spouse annuity and the supporting documentation 
required by Sec. 838.721 or Sec. 838.1005 of this chapter are received 
in OPM.
    (c) A survivor annuity terminates at the end of the month preceding 
death or any other terminating event.
    (d) A current spouse annuity terminated for reasons other than death 
may be restored under conditions defined in sections 8341(e)(2) and 
8341(g) of title 5, United States Code.
    (e) A survivor annuity accrues on a daily basis, one-thirtieth of 
the monthly rate constituting the daily rate. An annuity does not accrue 
for the 31st day of any month, except in the initial month if the 
survivor's (of a deceased employee) annuity commences on the 31st day. 
For accrual purposes, the last day of a 28-day month constitutes 3 days 
and the last day of a 29-day month constitutes 2 days.
    (f) Initial cost-of-living increases on current and former spouse 
annuities, and annuities to beneficiaries of insurable interest 
annuities are prorated under section 8340(c) of title 5, United States 
Code.

[50 FR 20070, May 13, 1985, as amended at 51 FR 31933, Sept. 8, 1986; 55 
FR 9102, Mar. 12, 1990; 57 FR 33597, July 29, 1992; 58 FR 52881, Oct. 
13, 1993. Redesignated at 58 FR 52882, Oct. 13, 1993]

                       Survivor Election Deposits



Sec. 831.661  Deposits not subject to waiver.

    (a) The deposits required to elect fully or partially reduced 
annuities under Sec. Sec. 831.622, 831.631, 831.632, 831.682, 831.684, 
or 831.685 are not annuity overpayments and their collection is not 
subject to waiver. They are subject to reconsideration only to determine 
whether the amount has been correctly computed.
    (b) [Reserved]

[50 FR 20070, May 13, 1985, as amended at 51 FR 31935, Sept. 8, 1986; 57 
FR 33597, July 29, 1992; 58 FR 52881, Oct. 13, 1993. Redesignated and 
amended at 58 FR 52882, Oct. 13, 1993]



Sec. 831.662  Deposits required to change an election after final adjudication.

    The amount of the deposit required under Sec. 831.622 or Sec. 
831.685 equals the sum of the monthly differences between the annuity 
paid to the retiree and the annuity that would have been paid if the 
additional annuity reduction elected under Sec. 831.622 or Sec. 
831.685 had been in effect since the time of retirement, plus 24.5 
percent of the increase in the designated base (computed as of the time 
of retirement) on which the survivor annuity is calculated.

[51 FR 31935, Sept. 8, 1986, as amended at 58 FR 52881, Oct. 13, 1993. 
Redesignated and amended at 58 FR 52882, Oct. 13, 1993]



Sec. 831.663  Actuarial reduction in annuity of retirees who make
post-retirement elections to provide a current spouse annuity

or a former spouse annuity.

    (a) Applicability of this section. This section applies to all 
retirees who are required to pay deposits under Sec. 831.631 or Sec. 
831.632 and have not paid any portion of the deposit prior to October 1, 
1993, or from annuity accruing before that date.
    (b) Other methods of payment not available. Retirees described in 
paragraph (a) of this section must have a permanent annuity reduction 
computed under paragraph (d) of this section.
    (c) Commencing date of the reduction. A reduction under this section 
commences on the same date as the annuity reduction under Sec. 831.631 
or Sec. 831.632.
    (d) Computing the amount of the reduction. The annuity reduction 
under this section is equal to the lesser of--
    (1) The amount of the deposit under Sec. 831.631 or Sec. 831.632 
divided by the present value factor for the retiree's

[[Page 119]]

age on the commencing date of the reduction under paragraph (c) of this 
section (plus any previous reduction(s) in the retiree's annuity 
required under this section Sec. 831.664); or
    (2) Twenty-five percent of the rate of the retiree's self-only 
annuity on the commencing date of the reduction under paragraph (c) of 
this section.
    (e) Termination of the reduction. (1) The reduction under this 
section terminates on the date that the retiree dies.
    (2) If payment of a retiree's annuity is suspended or terminated and 
later reinstated, or if a new annuity becomes payable, OPM will increase 
the amount of the original reduction computed under paragraph (d) of 
this section by any cost-of-living adjustments under section 8340 of 
title 5, United States Code, occurring between the commencing date of 
the original reduction and the commencing date of the reinstated or new 
annuity (but the adjusted reduction may not exceed 25 percent of the 
rate of the reinstated or new self-only annuity).

[58 FR 52882, Oct. 13, 1993]



Sec. 831.664  Post-retirement survivor election deposits that
were partially paid before October 1, 1993.

    (a) Applicability of this section. This section applies to all 
retirees who are required to pay deposits under Sec. 831.631, Sec. 
831.632, Sec. 831.682, or Sec. 831.684 and have paid some portion (but 
not all) of the deposit prior to October 1, 1993, or from annuity 
accruing before that date.
    (b) Other methods of payment not available. Retirees described in 
paragraph (a) of this section must have a permanent annuity reduction 
computed under paragraph (d) of this section.
    (c) Commencing date of the reduction. A reduction under this section 
commences on October 1, 1993.
    (d) Computing the amount of the reduction. The annuity reduction 
under this section is equal to the lesser of--
    (1) The amount of the principal balance remaining to be paid on 
October 1, 1993, divided by the present value factor for the retiree's 
age on October 1, 1993; or
    (2) Twenty-five percent of the rate of the retiree's self-only 
annuity on October 1, 1993.
    (e) Termination of the reduction. (1) The reduction under this 
section terminates on the date that the retiree dies.
    (2) If payment of a retiree's annuity is suspended or terminated and 
later reinstated, or if a new annuity becomes payable, OPM will increase 
the amount of the original reduction computed under paragraph (d) of 
this section by any cost-of-living adjustments under section 8340 of 
title 5, United States Code, occurring between the commencing date of 
the original reduction and the commencing date of the reinstated or new 
annuity (but the adjustment reduction may not exceed 25 percent of the 
rate of the reinstated or new self-only annuity).

[58 FR 52883, Oct. 13, 1993]



Sec. 831.665  Payment of deposits under Sec. 831.631, Sec. 831.632,
Sec. 831.682, or Sec. 831.684 under pre-October 1, 1993, law or

when the retiree has 
          died prior to October 1, 1993.

    (a) If a retiree fails to make a deposit required under Sec. 
831.682 or Sec. 831.684 within 60 days after the date of the notice 
required by Sec. 831.682(e) or Sec. 831.684(c), the deposit will be 
collected by offset from his or her annuity in installments equal to 25 
percent of the retiree's net annuity (as defined in Sec. 838.103 of 
this chapter).
    (b) If a retiree fails to make a deposit required by Sec. 831.631 
or Sec. 831.632 within 2 years after the date of the post-retirement 
marriage or divorce, the deposit will be collected by offset from his or 
her annuity in installments equal to 25 percent of the retiree's net 
annuity (as defined in Sec. 838.103 of this chapter).
    (c) If a retiree dies before a deposit required under Sec. Sec. 
831.631, 831.632, 831.682, or 831.684 is fully made, the deposit will be 
collected from the survivor annuity (for which the election required the 
deposit) before any payments of the survivor annuity are made.

[50 FR 20070, May 13, 1985, as amended at 51 FR 31935, Sept. 8, 1986; 57 
FR 33597, July 29, 1992; 58 FR 52881, Oct. 13, 1993. Redesignated and 
amended at 58 FR 52882, Oct. 13, 1993]

[[Page 120]]

                          Children's Annuities



Sec. 831.671  Proof of eligibility for a child's annuity.

    (a) Proof of paternity. (1) A judicial determination of parentage 
conclusively establishes the paternity of a child.
    (2) Except as provided in paragraph (a)(1) of this section, a child 
born to the wife of a married person is presumed to be the child of the 
wife's husband. This presumption may be rebutted only by clear and 
convincing evidence that the husband is not the father of the child.
    (3) When paternity is not established under paragraph (a)(1) or 
(a)(2) of this section, paternity is determined by a preponderance of 
the credible evidence as defined in Sec. 1201.56(c)(2) of this title.
    (b) Proof of adoption. (1) An adopted child is--
    (i) A child adopted by the employee or retiree before the death of 
the employee or retiree; or
    (ii) A child who lived with the employee or retiree and for whom a 
petition for adoption was filed by the employee or retiree and who is 
adopted by the current spouse of the employee or retiree after the death 
of the employee or retiree.
    (2) The only acceptable evidence to prove status as an adopted child 
under paragraph (b)(1)(i) of this section is a copy of the judicial 
decree of adoption.
    (3) The only acceptable evidence to prove status as an adopted child 
under paragraph (b)(1)(ii) of this section is copies of--
    (i) The petition for adoption filed by the employee or retiree 
(clearly showing the date filed); and
    (ii) The judicial decree of adoption.
    (c) Dependency. To be eligible for survivor annuity benefits, a 
child must have been dependent on the employee or retiree at the time of 
the employee's or retiree's death.
    (d) Proof of dependency. (1) A child is presumed to have been 
dependent on the deceased employee or retiree if he or she is--
    (i) A legitimate child; or
    (ii) An adopted child; or
    (iii) A stepchild or recognized natural child who lived with the 
employee or retiree in a regular parent-child relationship at the time 
of the employee's or retiree's death; or
    (iv) A recognized natural child for whom a judicial determination of 
support was obtained; or
    (v) A recognized natural child to whose support the employee or 
retiree made regular and substantial contributions.
    (2) The following are examples of proofs of regular and substantial 
support. More than one of the following proofs may be required to show 
support of a child who did not live with the employee or retiree in a 
regular parent-child relationship and for whom a judicial determination 
of support was not obtained.
    (i) Evidence of eligibility as a dependent child for benefits under 
other State or Federal programs;
    (ii) Proof of inclusion of the child as a dependent on the 
decedent's income tax returns for the years immediately before the 
employee's or retiree's death;
    (iii) Cancelled checks, money orders, or receipts for periodic 
payments received from the employee or retiree for or on behalf of the 
child;
    (iv) Evidence of goods or services that shows regular contributions 
of considerable value;
    (v) Proof of coverage of the child as a family member under the 
employee's or retiree's Federal Employees Health Benefits enrollment; 
and
    (vi) Other proof of a similar nature that OPM may find to be 
sufficient to demonstrate support or parentage.
    (3) Survivor benefits may be denied--
    (i) If evidence shows that the deceased employee or retiree did not 
recognize the claimant as his or her own despite a willingness to 
support the child; or
    (ii) If evidence casts doubt upon the parentage of the claimant, 
despite the deceased employee's or retiree's recognition and support of 
the child.

[55 FR 9102, Mar. 12, 1990, as amended at 58 FR 43493, Aug. 17, 1993. 
Redesignated at 58 FR 52882, Oct. 13, 1993]

[[Page 121]]



Sec. 831.672  Annuity for a child age 18 to 22 during full-time
school attendance.

    (a) General requirements for an annuity. (1) For a child age 18 to 
22 to be eligible to receive an annuity as a full-time student, the 
child must also meet all other requirements applicable to qualify for an 
annuity by a child who has not attained age 18.
    (2) In addition to the requirements of paragraph (a)(1) of this 
section, OPM must receive certification, in a form prescribed by OPM, 
that the child is regularly pursuing a full-time course of study in an 
accredited institution.
    (b) Full-time course of study. (1) Generally, a full-time course of 
study is a noncorrespondence course which, if successfully completed, 
will lead to completion of the education within the period generally 
accepted as minimum for completion, by a full-time day student, of the 
academic or training program concerned.
    (2) A certification by an accredited institution that the student's 
workload is sufficient to constitute a full-time course of study for the 
program in which the student is enrolled is prima facie evidence that 
the student is pursuing a full-time course of study.
    (c) Certification of school attendance. (1) OPM may periodically 
request the recipient of a child's annuity payments to furnish 
certification of school attendance. The certification must be completed 
in the form prescribed by OPM.
    (2) If OPM requests the recipient of a child's annuity payments to 
provide a self-certification of school attendance, the recipient must 
complete and sign the certification form.
    (3) If OPM requests the recipient of a child's annuity payments to 
provide a certification by the school, the certification must be signed 
by an official who is either in charge of the school or in charge of the 
school's records. OPM will not accept certification forms signed by 
instructors, counselors, aides, roommates, or others not in charge of 
the school or the records.
    (i) If the educational institution is above the high school level, 
the certification must be signed by the president or chancellor, vice 
president or vice chancellor, dean or assistant dean, registrar or 
administrator, assistant registrar or assistant administrator, or the 
equivalent.
    (ii) If the educational institution is at the high school level, the 
certification must be signed by the superintendent of schools, assistant 
superintendent of schools, principal, vice principal, assistant 
principal, or the equivalent.
    (iii) If the educational institution is a technical or trade school, 
the certification must be signed by the president, vice president, 
director, assistant director, or the equivalent.
    (4) OPM will accept a facsimile signature of a school official only 
if it is accompanied by a raised seal of the institution or other 
evidence clearly demonstrating the authenticity of the certification and 
making unauthorized use of the signature stamp unlikely.
    (d) Continuation of annuity during interim breaks. A child's annuity 
continues during interim breaks between school years if the following 
conditions are satisfied:
    (1) The student must have been a full-time student at the end of the 
school term immediately before the break.
    (2) The break between the end of the last term of full-time 
attendance and the return to full-time attendance must not exceed 5 
months. (See Sec. 831.107, concerning calculation of this time period.)
    (3) The recipient of a child's annuity payments must show that the 
student has a bona fide intent to return to school as a full-time 
student immediately after the break. The full-time certification for the 
prior term and the certification (in a form prescribed by OPM) by the 
recipient of a child's annuity payments that the student intends to 
return to school (immediately after the break) as a full-time student 
constitute prima facie evidence of a bona fide intent to return to 
school.
    (e) Benefits after age 22. (1) A student's eligibility for a child's 
annuity terminates based on reaching age 22 on--
    (i) June 30 of the calendar year of the child's 22nd birthday if the 
child's birthday is before July 1; or
    (ii) The last day of the month before the child's 22nd birthday if 
the child's

[[Page 122]]

birthday occurs after June 30 but before September 1 of the calendar 
year; or
    (iii) June 30 of the year after the one in which the child attains 
age 22 if the child's birthday is after August 31 of the calendar year.
    (2)(i) An otherwise eligible child who becomes a full-time student 
after his or her 22nd birthday but before the date the annuity 
terminates under paragraph (e)(1) of this section is eligible for 
annuity while he or she is a full-time student until the termination 
date under paragraph (e)(1) of this section.
    (ii) An otherwise eligible child who is a full-time student, and 
whose parent dies after the child's 22nd birthday but before the date 
the annuity terminates under paragraph (e)(1) of this section, is 
eligible for annuity while he or she is a full-time student after the 
death of the parent until the termination date under paragraph (e)(1) of 
this section.

[58 FR 32052, June 8, 1993. Redesignated at 58 FR 52882, Oct. 13, 1993]



Sec. 831.673  Rates of child annuities.

    (a) (1) The rate of annuity payable to a child survivor whose 
annuity commenced before February 27, 1986, is computed in accordance 
with the law in effect on the date when the annuity began to accrue, 
unless the rate of annuity is recomputed under paragraph (e) of this 
section on or after February 27, 1986.
    (2) The rate of annuity payable to a child survivor whose annuity 
commenced on or after February 27, 1986, or was recomputed under 
paragraph (e) of this section on or after February 27, 1986, is computed 
under paragraph (b), (c), or (d) of this section.
    (b) Except as provided in paragraph (a) of this section, the rate of 
annuity of a child survivor is computed under section 8341(e)(2) (i) 
through (iii) of title 5, United States Code, with adjustments in 
accordance with section 8340 of title 5, United States Code, when the 
deceased employee, Member or annuitant was never married to a natural or 
adoptive parent of that surviving child of the former employee or 
Member.
    (c) Except as provided in paragraphs (a) and (b) of this section, 
the rate of annuity payable to a child survivor is computed under 
section 8341(e)(2) (A) through (C) of title 5, United States Code, with 
adjustments in accordance with section 8340 of title 5, United States 
Code, whenever a deceased employee, Member, or retiree is survived by a 
natural or adoptive parent of that surviving child of the employee, 
Member, or retiree.
    (d) Except as provided in paragraph (a) of this section, the rate of 
annuity payable to a child survivor is computed under section 8341(e)(2) 
(i) through (iii) of title 5, United States Code, with adjustments in 
accordance with section 8340 of title 5, United States Code, when the 
deceased employee, Member, or retiree is not survived by a natural or 
adoptive parent of that surviving child of the former employee or 
Member.
    (e) On the death of a natural or adoptive parent or termination of 
the annuity of a child, the annuity of any other child or children is 
recomputed and paid as though the parent or child had not survived the 
former employee or Member.

[51 FR 31933, Sept. 8, 1986. Redesignated at 58 FR 52882, Oct. 13, 1993]

             Regulations Pertaining to Noncodified Statutes



Sec. 831.681  Annual notice required by Public Law 95-317.

    At least once every 12 consecutive months, OPM will send a notice to 
all retirees to inform them about the survivor annuity elections 
available to them, under sections 8339(j), 8339(k)(2), and 8339(o) of 
title 5, United States Code.

[56 FR 16263, Apr. 22, 1991, as amended at 58 FR 43493, Aug. 17, 1993. 
Redesignated at 58 FR 52882, Oct. 13, 1993]



Sec. 831.682  Election by a retiree who retired before May 7, 1985, 
to provide a former spouse annuity.

    (a) A retiree who retired before May 7, 1985, including a retiree 
receiving a fully reduced annuity to provide a current spouse annuity, 
may elect a fully reduced annuity or a partially reduced annuity to 
provide a former spouse annuity.

[[Page 123]]

    (b) The election should be made by letter addressed to OPM. The 
election must--
    (1) Be in writing; and
    (2) Agree to pay any deposit due under paragraph (c) of this 
section; and
    (3) Be signed by the retiree; and
    (4) Be filed with OPM before September 8, 1987.
    (c)(1)(i) If a retiree who is receiving an insurable interest 
annuity elects a fully reduced annuity or a partially reduced annuity 
under this section to benefit the same person, the insurable interest 
annuity terminates. A retiree who is receiving an insurable interest 
annuity at the time that an annuity is elected under this section does 
not owe any further deposit.
    (ii) If a retiree who had been receiving an insurable interest 
annuity, which was terminated to elect a reduced annuity to provide a 
current spouse annuity for a spouse acquired after retirement, elects to 
provide a former spouse annuity for a former spouse who was the 
beneficiary of the insurable interest annuity, the retiree must deposit 
an amount equal to the sum of the monthly differences between the self-
only annuity and a fully reduced annuity or partially reduced annuity 
(with the same base as elected to provide the former spouse annuity) 
from the date the insurable interest annuity terminated, plus 6 percent 
annual interest, computed under Sec. 831.105, from the date to which 
each monthly difference is attributable.
    (2) A retiree who elects a fully reduced annuity or a partially 
reduced annuity under this section, to provide a former spouse annuity 
for a former spouse for whom the retiree had elected (during the 
marriage to that former spouse) a reduced annuity to provide a current 
spouse annuity, must deposit an amount equal to the sum of the monthly 
differences between the self-only annuity and the amount of annuity that 
would have been in effect had a fully reduced annuity or partially 
reduced annuity (with the same base as elected to provide the former 
spouse annuity) been in effect continuously since the time of 
retirement, plus 6 percent annual interest, computed under Sec. 
831.105, from the date to which each monthly difference is attributable, 
except that the retiree will not be charged for any period during which 
the survivor reduction was in effect for that former spouse.
    (3) A retiree who elects a fully reduced annuity or a partially 
reduced annuity under this section, and is not covered under paragraph 
(c)(1) or (c)(2) of this section, must deposit an amount equal to the 
sum of the monthly difference between the self-only annuity and a fully 
reduced annuity or a partially reduced annuity (with the same base as 
elected to provide the former spouse annuity) since the time of 
retirement, plus 6 percent annual interest, computed under Sec. 
831.105, from the date to which each monthly difference is attributable.
    (d) If a retiree who is receiving a fully reduced annuity or a 
partially reduced annuity to provide a current spouse annuity elects a 
fully reduced annuity or a partially reduced annuity under this section 
to provide a former spouse annuity, the annuity will be reduced 
separately to provide for the current and former spouse annuities. Each 
separate reduction will be computed based on the self-only annuity, and 
the separate reductions are cumulative.
    (e)(1) In response to a retiree's inquiry about providing a former 
spouse annuity under this section, OPM will send an application form. 
The application form will include a notice to retirees that filing the 
application constitutes an official election which cannot be revoked 
after 30 days after the annuity check in which the annuity reduction 
first appears.
    (2) If the retiree returns the application electing a fully reduced 
annuity or a partially reduced annuity under this section, OPM will 
notify the retiree of--
    (i) The rate of the fully reduced annuity or partially reduced 
annuity; and
    (ii) The rate of the potential former spouse annuity; and
    (iii) The amount of the deposit, including interest, that is due as 
of the date that the annuity reduction is scheduled to begin; and
    (iv) The amount and duration of installment payments if no deposit 
is made.
    (3) The notice under paragraph (e)(2) of this section will advise 
the retiree

[[Page 124]]

that the deposit will be collected in installments under Sec. 831.665, 
unless lump-sum payment is made within 60 days from the date of the 
notice.
    (4) OPM will reduce the annuity and begin collection of the deposit 
in installments effective with the first check payable more than 60 days 
after the date on the notice required under paragraph (e)(2) of this 
section.
    (f)(1) A retiree who made an election under this section prior to 
September 9, 1986 may modify that election by designating a lesser 
portion of the retiree's annuity be used as the base for the annuity 
reduction and the former spouse annuity.
    (2) Any modification under paragraph (f)(1) of this section must be 
in writing and received in OPM no later than the date provided for 
applications in paragraph (b)(4) of this section.
    (g) The annuity reduction resulting in a fully reduced annuity or 
partially reduced annuity to provide a former spouse annuity under this 
section terminates on the first day of the month after the former spouse 
remarries before age 55 or dies.
    (h) A former spouse is eligible to receive only one survivor annuity 
based on the service of one employee or Member.
    (i) If a former spouse is entitled to a former spouse annuity based 
on an election under this section, but absent that election would have 
been entitled to a former spouse annuity under Sec. 831.683 (i.e., 
filed a timely application as well as meeting all other requirements), 
the amount of the former spouse annuity payable will equal 55 percent of 
the annuity of the retiree on whose service the survivor annuity is 
based.

[50 FR 20070, May 13, 1985, as amended at 51 FR 31934, Sept. 8, 1986; 55 
FR 9102, Mar. 12, 1990; 56 FR 16263, Apr. 22, 1991; 58 FR 52881, Oct. 
13, 1993. Redesignated at 58 FR 52882, Oct. 13, 1993]



Sec. 831.683  Annuities for former spouses of employees or Members 
retired before May 7, 1985.

    (a)(1) The former spouse of a retiree who retired before May 7, 1985 
(or of an employee or Member who died before May 7, 1985, was employed 
in a position covered by CSRS at the time of death, and was eligible to 
retire at the time of death), is entitled, after the death of the 
retiree, employee, or Member, to a survivor annuity equal to 55 percent 
of the self-only annuity of the retiree on whose service the survivor 
annuity is based if the former spouse, at the time of application, meets 
all of the following requirements:
    (i) The former spouse's marriage to the retiree, employee, or Member 
was dissolved after September 14, 1978, and before May 8, 1987. The date 
of dissolution of a marriage is the date when the marriage between the 
former spouse and the retiree, employee, or Member ended under the law 
of the jurisdiction that terminated the marriage, rather than the date 
when restrictions on remarriage ended. The date of entry of the decree 
terminating the marriage will be rebuttably presumed to be the date when 
the marriage was dissolved.
    (ii) The former spouse was married to the retiree, employee, or 
Member for at least 10 years of the retiree's, employee's, or Member's 
creditable service. Creditability of service is determined in accordance 
with section 8332 of title 5, United States Code, and subpart C of this 
part.
    (iii) The former spouse has not remarried before reaching age 55.
    (iv) The former spouse applies to OPM for a survivor annuity, in 
accordance with paragraph (b) of this section and Sec. 831.643(b), 
before May 8, 1989.
    (v) The former spouse is at least 50 years old on May 7, 1987, and 
when filing the application.
    (2) A former spouse who is not eligible for an annuity under 
paragraph (a)(1) of this section and who is the former spouse of a 
retiree who retired before May 7, 1985 (or of an employee or Member who 
died before May 7, 1985, was employed in a position covered by CSRS at 
the time of death, and was eligible to retire at the time of death), is 
entitled, after the death of the retiree, employee, or Member, to a 
survivor annuity equal to 55 percent of the self-only annuity of the 
retiree on whose service the survivor annuity is based if the former 
spouse, at the time of application, meets all of the following 
requirements:
    (i) The former spouse was married to the retiree, employee, or 
Member for at

[[Page 125]]

least 10 years of the retiree's, employee's, or Member's creditable 
service. Creditability of service is determined in accordance with 
section 8332 of title 5, United States Code, and subpart C of this part.
    (ii) The former spouse has not remarried after September 14, 1978, 
before reaching age 55.
    (iii) The former spouse applies to OPM for a survivor annuity, in 
accordance with paragraph (b) of this section and Sec. 831.643(b), 
before May 8, 1989.
    (iv) The former spouse is at least 50 years old on May 7, 1987, and 
when filing the application.
    (v) No current spouse, other former spouse, or insurable interest 
designee is receiving or has been designated to receive a survivor 
annuity based on the service of the employee, Member, or retiree.
    (3) If two or more eligible former spouses of a retiree, employee, 
or Member apply for annuities under paragraph (a)(2) of this section 
based on the service of the same retiree, employee, or Member, and 
neither meets the requirements of paragraph (a)(1) of this section, the 
former spouse whose application OPM receives first is entitled to the 
annuity.
    (b)(1) Application must be filed on the form prescribed for that 
purpose by OPM. The application form will require the former spouse to 
certify under the penalty provided by section 1001 of title 18, United 
States Code, that he or she meets the requirements listed in paragraph 
(a) of this section.
    (2) In addition to the application form required in paragraph (b)(1) 
of this section, the former spouse must submit proof of his or her age 
and the date when the marriage to the retiree commenced, and a certified 
copy of the divorce decree terminating the marriage to the retiree.
    (3)(i) Former spouses applying for benefits under this section must 
meet the requirements of paragraph (a) of this section at the time of 
application.
    (ii) An annuity under this section terminates on the last day of the 
month before the former spouse remarries before age 55 or dies, except 
that a remarriage before September 15, 1978, does not cause termination 
of a former spouse annuity under this section. A former spouse who is 
receiving a former spouse annuity under this section must notify OPM 
within 30 days after he or she remarries before age 55.
    (c) Survivor annuities payable under this section commence on the 
later of the day after the date of death of the retiree or the first day 
of the second month after the application is filed under Sec. 
831.643(b).
    (d) Cost-of-living adjustments under section 8340 of title 5, United 
States Code, are applicable to annuities payable under this section.
    (e) If a former spouse is eligible for a former spouse annuity under 
this section and another current spouse annuity or former spouse annuity 
(under the Civil Service Retirement System or the Federal Employees 
Retirement System) resulting from the death of the same retiree, the 
annuity under this section will be paid instead of the other current 
spouse annuity or former spouse annuity.

[50 FR 20070, May 13, 1985, as amended at 51 FR 31933, Sept. 8, 1986; 55 
FR 9103, Mar. 12, 1990; 56 FR 16263, Apr. 22, 1991; 58 FR 52881, Oct. 
13, 1993. Redesignated at 58 FR 52882, Oct. 13, 1993]



Sec. 831.684  Second chance elections to provide survivor benefits.

    (a) A married retiree who retired before May 7, 1985, and is not 
currently receiving a fully or partially reduced annuity to provide a 
current spouse annuity may elect a fully or partially reduced annuity to 
provide a current spouse annuity for a spouse acquired after retirement 
if the following conditions are met:
    (1) (i) The retiree was married at the time of retirement and did 
not elect a survivor annuity at that time; or
    (ii) The retiree failed to elect a fully or partially reduced 
annuity within 1 year after a post-retirement marriage that occurred 
before November 8, 1984, and the retiree attempted to elect a fully or 
partially reduced annuity after the time limit expired and that request 
was disallowed as untimely.
    (2) The retiree applies for a fully or partially reduced annuity 
under this section before November 9, 1985.
    (3) The retiree agrees to pay the amount due under paragraph (d) of 
this section.

[[Page 126]]

    (b) Applications must be filed on the form prescribed by OPM, except 
filing the form is excused when the retiree dies before filing the 
required form if:
    (1) The retiree made a written request, after November 8, 1984, to 
elect a fully or partially reduced annuity under this section, and
    (2) The retiree was denied the opportunity to file the required form 
because the retiree, without fault, did not receive the form in 
sufficient time for the retiree to be reasonably expected to complete 
the form before death.
    (c)(1) In response to a retiree's inquiry about providing a current 
spouse annuity under this section, OPM will send an application form. 
This application will include instructions to assist the retiree in 
estimating the amount of reduction in the annuity to provide the current 
spouse annuity and the amount of the required deposit. The application 
form will include a notice to retirees that filing the application 
constitutes an official election which cannot be revoked after 30 days 
after the annuity check in which the annuity reduction first appears.
    (2) If the retiree returns the application electing a fully or 
partially reduced annuity under this section, OPM will notify the 
retiree of--
    (i) The rate of the fully reduced annuity; and
    (ii) The rate of the potential current spouse annuity; and
    (iii) The amount of the deposit, including interest, that is due as 
of the date that the annuity reduction is scheduled to begin; and
    (iv) The amount and duration of installment payments if no deposit 
is made.
    (3) The notice under paragraph (c)(2) of this section will advise 
the retiree that the deposit will be collected in installments under 
Sec. 831.665, unless lump-sum payment is made within 60 days from the 
date of this notice.
    (4) OPM will reduce the annuity and begin collection of the deposit 
in installments effective with the first check payable more than 60 days 
after the date on the notice required under paragraph (c)(2) of this 
section.
    (d) The retiree must state on the application form whether the 
application is made under paragraph (a)(1)(i) of this section or 
paragraph (a)(1)(ii) of this section. If the application is made under 
paragraph (a)(1)(ii) of this section, the retiree must prove that he or 
she had attempted to elect a fully reduced annuity and that OPM rejected 
that application because it was filed too late. The proof must consist 
of a copy of OPM's letter rejecting the previous election as untimely 
filed or an affidavit swearing or affirming that he or she made an 
untimely application which OPM rejected. The affidavit is sufficient 
documentation to provide proof of the retiree's attempt to elect a 
reduced annuity, unless the record contains convincing evidence to rebut 
the certification.
    (e) A retiree who elects to provide a current spouse annuity under 
this section must agree to pay a deposit equal to the difference between 
the amount of annuity actually paid to the retiree and the amount of 
annuity that would have been paid if a fully reduced annuity were being 
paid continuously since the time of retirement, plus 6 percent annual 
interest, computed under Sec. 831.105, from the date when each 
difference occurred.
    (f) The rate of a survivor annuity under this section will be 
computed under the laws in effect at the time of the retiree's 
separation from the Federal service.

[50 FR 20070, May 13, 1985, as amended at 51 FR 31935, Sept. 8, 1986; 58 
FR 52881, Oct. 13, 1993. Redesignated at 58 FR 52882, Oct. 13, 1993]



Sec. 831.685  Changes in elections to provide a current spouse annuity
by a retiree who retired before May 28, 1986.

    (a) Except as provided in Sec. 831.613 and paragraphs (b) and (c) 
of this section, a retiree who retired before May 28, 1986, was married 
at the time of retirement, and at the time of retirement did not elect a 
fully reduced annuity to provide a current spouse annuity may elect a 
fully reduced annuity or a greater partially reduced annuity to provide 
a current spouse annuity.
    (b)(1) An election under paragraph (a) of this section may be made 
only by a retiree who is married to the same spouse to whom the retiree 
was married at the time of retirement.

[[Page 127]]

    (2) A current spouse annuity based on an election under paragraph 
(a) of this section cannot be paid if it will, when combined with any 
former spouse annuity or annuities that are required by court order, 
exceed the maximum survivor annuity permitted under Sec. 831.641.
    (3)(i) Except as provided in paragraph (b)(4) of this section, to 
make an election under paragraph (a) of this section, the retiree must 
pay the deposit computed under Sec. 831.662, in full, no later than 
November 28, 1987.
    (ii) Except as provided in paragraph (b)(4) of this section, failure 
to pay the deposit, in full, before November 29, 1987, voids an election 
made under paragraph (a) of this section.
    (4) If a retiree makes an election under paragraph (a) of this 
section and is prevented from paying the deposit within the 18-month 
time limit because OPM did not send him or her a notice of the amount of 
the deposit at least 30 days before the time limit expires, the time 
limit for making the deposit will be extended to 30 days after OPM sends 
the notice of the amount of the deposit.
    (5) For a retiree whose annuity commenced on or after May 7, 1985, 
an election under paragraph (a) of this section cancels any spouse 
consent under Sec. 831.611 to the extent of the election.
    (c) If a retiree who had elected a fully reduced annuity or a 
partially reduced annuity to provide a former spouse annuity makes an 
election under paragraph (a) of this section that would cause the 
combined current spouse annuity and former spouse annuity (or annuities) 
to exceed the maximum allowed under Sec. 831.641, the former spouse 
annuity (or annuities) must be reduced to conform with that allowed 
under Sec. 831.641.
    (d) An election under paragraph (a) of this section is void unless 
it is filed with OPM before the retiree dies.

[51 FR 31935, Sept. 8, 1986, as amended at 55 FR 9103, Mar. 12, 1990; 58 
FR 52881, Oct. 13, 1993. Redesignated at 58 FR 52882, Oct. 13, 1993]



                   Subpart G_Computation of Annuities



Sec. 831.701  Effective dates of annuities.

    (a) Except as provided in paragraphs (b) and (c) of this section, an 
annuity of an employee or Member commences on the first day of the month 
after--
    (1) Separation from the service; or
    (2) Pay ceases and the service and age requirements for title to 
annuity are met, if earlier than the date of separation.
    (b) An annuity of--
    (1) An employee involuntarily separated from service (except by 
removal for cause on charges of misconduct or delinquency) and eligible 
for an immediate annuity based on that involuntary separation;
    (2) An employee or Member retiring due to a disability; and
    (3) An employee or Member retiring after serving three days or less 
in the month of retirement--shall commence on the day after separation 
from the service or the day after pay ceases and the service and age or 
disability requirements for title to annuity are met.
    (c) An annuity granted under section 8338, title 5, United States 
Code, commences on the appropriate birthday of the employee or Member.
    (d) Survivor annuities commence as provided in Sec. 831.651.
    (e) Except as provided in Sec. 831.502, annuity terminates on the 
date of death or on the date of any other terminating event in each case 
when OPM terminates the annuity.
    (f) Annuity accrues on a daily basis, one-thirtieth of the monthly 
rate constituting the daily rate. Annuity does not accrue for the 
thirty-first day of any month, except in the initial month if the 
employee's annuity commences on the 31st of a 31-day month. For accrual 
purposes, the last day of a 28-day month constitutes 3 days and the last 
day of a 29-day month constitutes 2 days.

[48 FR 38786, Aug. 26, 1983, as amended at 51 FR 31936, Sept. 8, 1986; 
58 FR 52881, Oct. 13, 1993]



Sec. 831.702  Adjustment of annuities.

    (a)(1) An annuity which includes creditable National Guard 
technician

[[Page 128]]

service performed prior to January 1, 1969, shall be reduced by the 
portion of any benefits under any State retirement system to which an 
annuitant is entitled (or on proper application would be entitled) for 
any month in which the annuitant is eligible for State benefits based on 
the same pre-1969, service.
    (2) Any cost-of-living increases in the State benefit shall require 
a corresponding deduction in the civil service annuity.
    (3) Any cost-of-living increase to a civil service annuity shall 
apply to the gross annuity before deduction for benefits under any State 
retirement system.
    (b) In the adjudication of claims arising under subchapter III of 
chapter 83 of title 5, United States Code, OPM shall take appropriate 
action to obtain the data that it considers necessary to assure the 
proper annuity deduction. Upon request by OPM, an annuitant shall 
promptly submit this data.

[48 FR 38786, Aug. 26, 1983]



Sec. 831.703  Computation of annuities for part-time service.

    (a) Purpose. The computational method in this section shall be used 
to determine the annuity for an employee who has part-time service on or 
after April 7, 1986.
    (b) Definitions. In this section--
    Full-time service means any actual service in which the employee is 
schedule to work the number of hours and days required by the 
administrative workweek for his or her grade or class (normally 40 
hours).
    Intermittent service means any actual service performed with no 
prescheduled regular tour of duty.
    Part-time service means any actual service performed on a less than 
full-time basis, by an individual whose appointment describes a 
regularly scheduled tour of duty, and any period of time credited as non 
pay status time under 5 U.S.C. 8332(f), which follows a period of part-
time service without any intervening period of actual service other than 
part-time service. This definition is not limited to part-time career 
employment because it includes part-time temporary employment as well.
    Post-April 6, 1986 average pay means the largest annual rate 
resulting from averaging, over any period of 3 consecutive years of 
creditable service, the annual rate of basic pay that would be payable 
for full-time service by an employee during that period, with each rate 
weighted by the time it was in effect, except that for periods of 
service before April 7, 1986, the actual rate of basic pay based on the 
employee's established tour of duty, if different, is used in the 
computation. The rates of pay included in the computation for 
intermittent service or temporary service performed on a full-time basis 
are the actual rates of basic pay during those periods of creditable 
service.
    Pre-April 7, 1986, average pay means the largest annual rate 
resulting from averaging, over any period of 3 consecutive years of 
creditable service, an employee's actual rates of basic pay during that 
period, with each rate weighted by the time it was in effect.
    Proration factor means a fraction expressed as a percentage rounded 
to the nearest percent. The numerator is the sum of the number of hours 
the 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 schedule to work during the same period of service included in 
the numerator. If an employee has creditable service in addition to 
part-time service (full-time service, intermittent service, or temporary 
service performed on a full-time basis), such service must be included 
in the numerator and denominator of the fraction. In general, this is 
done by including the number of days of such intermittent service, 
multiplied by 8, and the number of weeks of such temporary service or 
full-time service, multiplied by 40 in both the numerator and the 
denominator. The additional credit for unused sick leave under 5 U.S.C. 
8339(m) is not included in the fraction.
    Temporary service means service under an appointment limited to one 
year or less, exclusive of intermittent service.
    (c) Pre-April 7, 1986, basic annuity. The partial annuity for pre-
April 7, 1986, service is computed in accordance with 5 U.S.C. 8339 
using the pre-April 7, 1986,

[[Page 129]]

average pay and length of service (increased by the unused sick leave 
credit at time of retirement) prior to April 7, 1986.
    (d) Post-April 6, 1986, basic annuity. The partial annuity for post-
April 6, 1986, service is computed in accordance with 5 U.S.C. 8339 
using the post-April 6, 1986, average pay and length of service after 
April 6, 1986. This amount is then multiplied by the proration factor.
    (e) Combined basic annuity. The combined basic annuity is equal to 
the sum of the partial annuity amounts computed under paragraphs (c) and 
(d). This amount is the yearly rate of annuity (on which the monthly 
rate is based) before reductions for retirement before age 55; pre-
October 1, 1982, nondeduction service and survivor benefits; or the 
reduction for an alternative annuity under section 204 of Pub. L 99-335.
    (f) Limitations. The use of the post-April 6, 1986, average pay is 
limited to the purposes stated in this section. It may not be used as 
the basis for computing:
    (1) The 80-percent limit on annuity under 5 U.S.C. 8339(f);
    (2) The minimum annuity amount under 5 U.S.C. 8339(e) (concerning 
air traffic controller annuity) or 5 U.S.C. 8339(g) (concerning 
disability annuity); or
    (3) A supplemental annuity under 5 U.S.C. 8344(a).

[52 FR 22434, June 12, 1987]



Sec. 831.704  Annuities including credit for service with a 
nonappropriated fund instrumentality.

    (a) An annuity that includes credit for service with a 
nonappropriated fund instrumentality performed after December 31, 1965, 
based on an election under 5 CFR part 847, subpart D, is computed under 
5 CFR part 847, subpart F.
    (b) An annuity that includes credit for service with a 
nonappropriated fund instrumentality based on an election under 5 CFR 
part 847, subpart H, is computed under 5 CFR part 847, subpart I.

[68 FR 2178, Jan. 16, 2003]



                  Subpart H_Nuclear Materials Couriers

    Source: 65 FR 2522, Jan. 18, 2000, unless otherwise noted.



Sec. 831.801  Applicability and purpose.

    (a) This subpart contains regulations of the Office of Personnel 
Management (OPM) to supplement 5 U.S.C. 8336(c), which establishes 
special retirement eligibility for nuclear materials couriers employed 
under the Civil Service Retirement System; 5 U.S.C. 8334(a)(1) and (c), 
pertaining to deductions, contributions, and deposits; 5 U.S.C. 8335(b), 
pertaining to mandatory retirement; and 5 U.S.C. 8339(d), pertaining to 
computation of annuity.
    (b) The regulations in this subpart are issued pursuant to the 
authority given to OPM in 5 U.S.C. 8347 to prescribe regulations to 
carry out 5 U.S.C., chapter 83, subchapter III, and in 5 U.S.C. 1104 to 
delegate authority for personnel management to the heads of agencies.



Sec. 831.802  Definitions.

    In this subpart--
    Agency head means the Secretary of Energy. For purposes of this 
subpart, agency head is also deemed to include the designated 
representative of the Secretary of Energy, except that the designated 
representative must be a department headquarters-level official who 
reports directly to the Secretary of Energy, or to the Deputy Secretary 
of Energy, and who is the sole such representative for the entire 
department.
    Nuclear materials courier means an employee of the Department of 
Energy, the duties of whose position are primarily to transport, and 
provide armed escort and protection during transit of, nuclear weapons, 
nuclear weapon components, strategic quantities of special nuclear 
materials or other materials related to national security, including an 
employee engaged in this activity who is transferred directly to a 
supervisory or administrative position within the same Department of 
Energy organization, after performing this activity for at least 3 
years. (See 5 U.S.C. 8331(27).)
    Primary duties are those duties of a position that--

[[Page 130]]

    (1)(i) Are paramount in influence or weight; that is, constitute the 
basic reasons for the existence of the position;
    (ii) Occupy a substantial portion of the individual's working time 
over a typical work cycle; and
    (iii) Are assigned on a regular and recurring basis.
    (2) Duties that are of an emergency, incidental, or temporary nature 
cannot be considered primary even if they meet the substantial portion 
of time criterion. In general, if an employee spends an average of at 
least 50 percent of his or her time performing a duty or group of 
duties, they are his or her primary duties.
    Primary position means a position that is in an organization of the 
Department of Energy and whose primary duties are to transport, and 
provide armed escort and protection during transit of, nuclear weapons, 
nuclear weapon components, strategic quantities of special nuclear 
materials or other materials related to national security.
    Secondary position means a position that:
    (1) Is clearly in the nuclear materials transportation field;
    (2) Is in an organization of the Department of Energy having a 
nuclear materials transportation mission; and
    (3) Is either--
    (i) Supervisory; i.e., a position whose primary duties are as a 
first-level supervisor of nuclear materials couriers in primary 
positions; or
    (ii) Administrative; i.e., an executive, managerial, technical, 
semiprofessional, or professional position for which experience in a 
primary nuclear materials courier position is a prerequisite.



Sec. 831.803  Conditions for coverage in primary positions.

    (a) An employee's service in a position that has been determined by 
the Secretary of the Department of Energy to be a primary nuclear 
materials courier position is covered under the provisions of 5 U.S.C. 
8336(c).
    (b) An employee who is not in a primary position, nor covered while 
in a secondary position, and who is detailed or temporarily promoted to 
a primary position is not covered under the provisions of 5 U.S.C. 
8336(c).



Sec. 831.804  Conditions for coverage in secondary positions.

    (a) An employee's service in a position that has been determined by 
the Secretary of the Department of Energy to be a secondary nuclear 
materials courier position following 3 years of service in a primary 
nuclear materials courier position is covered under the provisions of 5 
U.S.C. 8336(c) if all of the following criteria are met:
    (1) The employee is transferred directly (i.e., without a break in 
service exceeding 3 days) from a primary position to a secondary 
position; and
    (2) If applicable, the employee has been continuously employed in 
secondary positions since transferring from a primary position without a 
break in service exceeding 3 days, except that a break in employment in 
secondary positions which begins with an involuntary separation (not for 
cause), within the meaning of 5 U.S.C. 8336(d)(1), is not considered in 
determining whether the service in secondary positions is continuous for 
this purpose.
    (b) An employee who is not in a primary position, nor covered while 
in a secondary position, and who is detailed or temporarily promoted to 
a secondary position is not covered under the provisions of 5 U.S.C. 
8336(c).



Sec. 831.805  Evidence.

    (a) The Secretary of Energy's determination under Sec. 831.803 that 
a position is a primary position must be based solely on the official 
position description of the position in question, and any other official 
description of duties and qualifications. The official documentation for 
the position must establish that it satisfies the requirements defined 
in Sec. 831.802.
    (b) A determination under Sec. 831.804 must be based on the 
official position description and any other evidence deemed appropriate 
by the agency head for making the determination.
    (c) If an employee is in a position not subject to the one-half 
percent higher withholding rate of 5 U.S.C. 8334(a)(1), and the employee 
does not, within 6 months after entering the position or

[[Page 131]]

after any significant change in the position, formally and in writing 
seek a determination from the employing agency that his or her service 
is properly covered by the higher withholding rate, the agency head's 
determination that the service was not so covered at the time of the 
service is presumed to be correct. This presumption may be rebutted by a 
preponderance of the evidence that the employee was unaware of his or 
her status or was prevented by cause beyond his or her control from 
requesting that the official status be changed at the time the service 
was performed.



Sec. 831.806  Requests from individuals.

    (a) An employee who requests credit for service under 5 U.S.C. 
8336(c) bears the burden of proof with respect to that service, and must 
provide the employing agency with all pertinent information regarding 
duties performed.
    (b) An employee who is currently serving in a position that has not 
been approved as a primary or secondary position, but who believes that 
his or her service is creditable as service in a primary or secondary 
position may request the agency head to determine whether or not the 
employee's current service should be credited and, if it qualifies, 
whether it should be credited as service in a primary or secondary 
position. A written request for current service must be made within 6 
months after entering the position or after any significant change in 
the position.
    (c) A current or former employee (or the survivor of a former 
employee) who believes that a period of past service in an unapproved 
position qualifies as service in a primary or secondary position and 
meets the conditions for credit may request the agency head to determine 
whether or not the employee's past service should be credited and, if it 
qualifies, whether it should be credited as service in a primary or 
secondary position. A written request for past service must be made no 
later than December 31, 2000.
    (d) The agency head may extend the time limit for filing under 
paragraph (b) or (c) of this section when, in the judgment of such 
agency head, the individual shows that he or she was prevented by 
circumstances beyond his or her control from making the request within 
the time limit.



Sec. 831.807  Withholdings and contributions.

    (a) During the service covered under the conditions established by 
Sec. 831.803 and Sec. 831.804, the Department of Energy will deduct 
and withhold from the employee's base pay the amount required under 5 
U.S.C. 8334(a) for such positions and submit that amount, together with 
agency contributions required by 5 U.S.C. 8334(a), to OPM in accordance 
with payroll office instructions issued by OPM.
    (b) If the correct withholdings and/or Government contributions are 
not submitted to OPM for any reason whatsoever, including cases in which 
it is finally determined that past service of a current or former 
employee was subject to the higher deduction and Government contribution 
rates, the Department of Energy must correct the error by submitting the 
correct amounts (including both employee and agency shares) to OPM as 
soon as possible. Even if the Department of Energy waives collection of 
the overpayment of pay under any waiver authority that may be available 
for this purpose, such as 5 U.S.C. 5584, or otherwise fails to collect 
the debt, the correct amount must still be submitted to OPM without 
delay as soon as possible.
    (c) Upon proper application from an employee, former employee or 
eligible survivor of a former employee, the Department of Energy will 
pay a refund of erroneous additional withholdings for service that is 
found not to have been covered service. If an individual has paid to OPM 
a deposit or redeposit, including the additional amount required for 
covered service, and the deposit or redeposit is later determined to be 
erroneous because the service was not covered service, OPM will pay the 
refund, upon proper application, to the individual, without interest.
    (d) The additional employee withholding and agency contribution for 
covered or creditable service properly made as required under 5 U.S.C. 
8334(a)(1) or deposited under 5 U.S.C. 8334(c) are not separately 
refundable, even in the event that the employee or his or her survivor 
does not qualify for

[[Page 132]]

a special annuity computation under 5 U.S.C. 8339(d).
    (e) While an employee who does not hold a primary or secondary 
position is detailed or temporarily promoted to a primary or secondary 
position, the additional withholdings and agency contributions will not 
be made. While an employee who does hold a primary or secondary position 
is detailed or temporarily promoted to a position which is not a primary 
or secondary position, the additional withholdings and agency 
contributions will continue to be made.



Sec. 831.808  Mandatory separation.

    (a) Effective on and after October 17, 1999, the mandatory 
separation provisions of 5 U.S.C. 8335(b) apply to all nuclear materials 
couriers in primary and secondary positions. A mandatory separation 
under 5 U.S.C. 8335(b) is not an adverse action under part 752 of this 
chapter or a removal action under part 359 of this chapter. Section 
831.502 provides the procedures for requesting an exemption from 
mandatory separation.
    (b) In the event an employee is separated mandatorily under 5 U.S.C. 
8335(b), or is separated for optional retirement under 5 U.S.C. 8336(c), 
and OPM finds that all or part of the minimum service required for 
entitlement to immediate annuity was in a position which did not meet 
the requirements of a primary or secondary position and the conditions 
set forth in this subpart, such separation will be considered erroneous.



Sec. 831.809  Reemployment.

    An employee who has been mandatorily separated under 5 U.S.C. 
8335(b) is not barred from reemployment in any position except a primary 
position after age 60. Service by a reemployed annuitant is not covered 
by the provisions of 5 U.S.C. 8336(c).



Sec. 831.810  Review of decisions.

    The following decisions may be appealed to the Merit Systems 
Protection Board under procedures prescribed by the Board:
    (a) The final decision of the Department of Energy issued to an 
employee, former employee, or survivor as the result of a request for 
determination filed under Sec. 831.806; and
    (b) The final decision of the Department of Energy that a break in 
service referred to in Sec. 831.804(a)(2) did not begin with an 
involuntary separation within the meaning of 5 U.S.C. 8336(d)(1).



Sec. 831.811  Oversight of coverage determinations.

    (a) Upon deciding that a position is a nuclear materials courier 
position, the agency head must notify OPM (Attention: Associate Director 
for Retirement and Insurance) stating the title of each position, the 
number of incumbents, and whether the position is primary or secondary. 
The Director of OPM retains the authority to revoke the agency head's 
determination that a position is a primary or secondary position, or 
that an individual's service in any other position is creditable under 5 
U.S.C. 8336(c).
    (b) The Department of Energy must establish a file containing each 
coverage determination made by the agency head under Sec. 831.803 and 
Sec. 831.804, and all background material used in making the 
determination.
    (c) Upon request by OPM, the Department of Energy will make 
available the entire coverage determination file for OPM to audit to 
ensure compliance with the provisions of this subpart.
    (d) Upon request by OPM, the Department of Energy must submit to OPM 
a list of all covered positions and any other pertinent information 
requested.



           Subpart I_Law Enforcement Officers and Firefighters

    Source: 58 FR 64367, Dec. 7, 1993, unless otherwise noted.



Sec. 831.901  Applicability and purpose.

    (a) This subpart contains regulations of the Office of Personnel 
Management (OPM) to supplement 5 U.S.C. 8336(c), which establishes 
special retirement eligibility for law enforcement officers and 
firefighters employed under the Civil Service Retirement System; 5 
U.S.C. 8331(3) (C) and (D), pertaining to basic pay; 5 U.S.C. 8334(a) 
(1) and (c), pertaining to deductions, contributions, and deposits; 5 
U.S.C. 8335(b), pertaining to mandatory retirement;

[[Page 133]]

and 5 U.S.C. 8339(d), pertaining to computation of annuity.
    (b) The regulations in this subpart are issued pursuant to the 
authority given to OPM in 5 U.S.C. 8347 to prescribe regulations to 
carry out subchapter III of chapter 83 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.



Sec. 831.902  Definitions.

    In this subpart--
    Agency head means, for the executive branch agencies, the head of an 
executive agency as defined in 5 U.S.C. 105; for the legislative branch, 
the Secretary of the Senate, the Clerk of the House of Representatives, 
or the head of any other legislative branch agency; for the judicial 
branch, the Director of the Administrative Office of the U.S. Courts; 
for the Postal Service, the Postmaster General; and for any other 
independent establishment that is an entity of the Federal Government, 
the head of the establishment. For the purpose of an approval of 
coverage under this subpart, agency head is also deemed to include the 
designated representative of the head of an executive department as 
defined in 5 U.S.C. 101, except that the designated representative must 
be a department headquarters-level official who reports directly to the 
executive department head, or to the deputy department head, and who is 
the sole such representative for the entire department. For the purpose 
of a denial of coverage under this subpart, agency head is also deemed 
to include the designated representative of the agency head, as defined 
in the first sentence of this definition, at any level within the 
agency.
    Detention duties means duties that require frequent direct contact 
in the detention, direction, supervision, inspection, training, 
employment, care, transportation, or rehabilitation of individuals 
suspected or convicted of offenses against the criminal laws of the 
United States or the District of Columbia or offenses against the 
punitive articles of the Uniform Code of Military Justice (10 U.S.C. 
chapter 47). (See 5 U.S.C. 8331(20).)
    Firefighter means an employee, whose duties are primarily to perform 
work directly connected with the control and extinguishment of fires or 
the maintenance and use of firefighting apparatus and equipment. Also 
included in this definition is an employee engaged in this activity who 
is transferred to a supervisory or administrative position. (See 5 
U.S.C. 8331(21).) An employee whose primary duties are the performance 
of routine fire prevention inspection is excluded from this definition.
    Frequent direct contact means personal, immediate, and regularly-
assigned contact with detainees while performing detention duties, which 
is repeated and continual over a typical work cycle.
    Law enforcement officer means an employee, the duties of whose 
position are primarily the investigation, apprehension, or detention of 
individuals suspected or convicted of offenses against the criminal laws 
of the United States, including an employee engaged in this activity who 
is transferred to a supervisory or administrative position. (See 5 
U.S.C. 8331(20).) The definition does not include an employee whose 
primary duties involve maintaining law and order, protecting life and 
property, guarding against or inspecting for violations of law, or 
investigating persons other than persons who are suspected or convicted 
of offenses against the criminal laws of the United States.
    Primary duties are those duties of a position that--
    (1) (i) Are paramount in influence or weight; that is, constitute 
the basic reasons for the existence of the position;
    (ii) Occupy a substantial portion of the individual's working time 
over a typical work cycle; and
    (iii) Are assigned on a regular and recurring basis.
    (2) Duties that are of an emergency, incidental, or temporary nature 
cannot be considered ``primary'' even if they meet the substantial 
portion of time criterion. In general, if an employee spends an average 
of at least 50 percent of his or her time performing a duty or group of 
duties, they are his or her primary duties.
    Primary position means a position whose primary duties are:

[[Page 134]]

    (1) To perform work directly connected with controlling and 
extinguishing fires or maintaining and using firefighter apparatus and 
equipment; or
    (2) Investigation, apprehension, or detention of individuals 
suspected or convicted of offenses against the criminal laws of the 
United States.
    Secondary position means a position that:
    (1) Is clearly in the law enforcement or firefighting field;
    (2) Is in an organization having a law enforcement or firefighting 
mission; and
    (3) Is either--
    (i) Supervisory; i.e., a position whose primary duties are as a 
first-level supervisor of law enforcement officers or firefighters in 
primary positions; or
    (ii) Administrative; i.e., an executive, managerial, technical, 
semiprofessional, or professional position for which experience in a 
primary law enforcement or firefighting position, or equivalent 
experience outside the Federal government, is a prerequisite.

[58 FR 64367, Dec. 7, 1993, as amended at 60 FR 3339, Jan. 17, 1995; 66 
FR 38524, July 25, 2001; 70 FR 42253, July 22, 2005]



Sec. 831.903  Conditions for coverage in primary positions.

    (a) An employee's service in a position that has been determined by 
the employing agency head to be a primary law enforcement officer or 
firefighter position is covered under the provisions of 5 U.S.C. 
8336(c).
    (b) An employee who is not in a primary position, nor covered while 
in a secondary position, and who is detailed or temporarily promoted to 
a primary position is not covered under the provisions of 5 U.S.C. 
8336(C)



Sec. 831.904  Conditions for coverage in secondary positions.

    (a) An employee's service in a position that has been determined by 
the employing agency head to be a secondary law enforcement officer or 
firefighter position is covered under the provisions of 5 U.S.C. 8336(c) 
if all of the following criteria are met:
    (1) The employee is transferred directly (i.e., without a break in 
service exceeding 3 days) from a primary position to a secondary 
position; and
    (2) If applicable, the employee has been continuously employed in 
secondary positions since transferring from a primary position without a 
break in service exceeding 3 days, except that a break in employment in 
secondary positions which begins with an involuntary separation (not for 
cause), within the meaning of 8336(d)(1) of title 5, United States Code, 
is not considered in determining whether the service in secondary 
positions is continuous for this purpose.
    (b) This requirement for continuous employment in a secondary 
position applies only to voluntary breaks in service beginning after 
January 19, 1988.
    (c) An employee who is not in a primary position, nor covered while 
in a secondary position, and who is detailed or temporarily promoted to 
a secondary position is not covered under the provisions of 5 U.S.C. 
8336(c).
    (d) The service of an employee who is in a position on January 19, 
1988, that has been approved as a secondary position under this subpart 
will continue to be covered under the provisions of 5 U.S.C. 8336(c) as 
long as the employee remains in that position without a voluntary break 
in service, and coverage is not revoked by OPM under Sec. 831.911, or 
by the agency head.



Sec. 831.905  Evidence.

    (a) An agency head's determination that a position is a primary 
position must be based solely on the official position description of 
the position in question, and any other official description of duties 
and qualifications. The official documentation for the position must 
establish that it satisfies the requirements defined in Sec. 831.902.
    (b) A determination under Sec. 831.904 must be based on the 
official position description and any other evidence deemed appropriate 
by the agency head for making the determination.



Sec. 831.906  Requests from individuals.

    (a) An employee who requests credit for service under 5 U.S.C. 
8336(c) bears the burden of proof with respect to

[[Page 135]]

that service, and must provide the employing agency with all pertinent 
information regarding duties performed, including--
    (1) For law enforcement officers, a list of the provisions of 
Federal criminal law the incumbent is responsible for enforcing and 
arrests made; and
    (2) For firefighters, number of fires fought, names of fires fought, 
dates of fires, and position occupied while on firefighting duty.
    (b) An employee who is currently serving in a position that has not 
been approved as a primary or secondary position, but who believes that 
his or her service is creditable as service in a primary or secondary 
position may request the agency head to determine whether or not the 
employee's service should be credited and, if it qualifies, whether it 
should be a primary or secondary position.
    (c) A current or former employee (or the survivor of a former 
employee) who believes that a period of past service in an unapproved 
position qualifies as service in a primary or secondary position and 
meets the conditions for credit must follow the procedure in paragraph 
(b) of this section. Except as provided in paragraph (d) of this 
section, the request must be made to the agency where the claimed 
service was performed.
    (d) For a current or former employee seeking credit under 5 U.S.C. 
8336(c) for service performed at an agency that is no longer in 
existence, and for which there is no successor agency, OPM will accept, 
directly from the current or former employee (or the survivor of a 
former employee), a request for a determination as to whether a period 
of past service qualifies as service in a primary or secondary position 
and meets the conditions for credit.
    (e) Coverage in a position or credit for past service will not be 
granted for a period greater than 1 year prior to the date that the 
request from an individual is received under paragraphs (b), (c), or (d) 
of this section by the employing agency, the agency where past service 
was performed, or OPM.
    (f) An agency head, in the case of a request filed under paragraph 
(b) or (c) of this section, or OPM, in the case of request filed under 
paragraph (d) of this section, may extend the time limit for filing 
when, in the judgment of such agency head or OPM, the individual shows 
that he or she was prevented by circumstances beyond his or her control 
from making the request within the time limit.



Sec. 831.907  Withholdings and contributions.

    (a) During the service covered under the conditions established by 
Sec. 831.903 and Sec. 831.904, the employing agency will deduct and 
withhold from the employee's base pay the amount required under 5 U.S.C. 
8334(a) for such positions and submit that amount, together with agency 
contributions required by 5 U.S.C. 8334(a), to OPM in accordance with 
payroll office instructions issued by OPM.
    (b) If the correct withholdings and/or Government contributions are 
not submitted to OPM for any reason whatsoever, including cases in which 
it is finally determined that past service of a current or former 
employee was subject to the higher deduction and Government contribution 
rates, the employing agency must correct the error by submitting the 
correct amounts (including both employee and agency shares) to OPM as 
soon as possible. Even if the agency waives collection of the 
overpayment of pay under any waiver authority that may be available for 
this purpose, such as 5 U.S.C. 5584, or otherwise fails to collect the 
debt, the correct amount must still be submitted to OPM without delay as 
soon as possible.
    (c) Upon proper application from an employee, former employee or 
eligible survivor of a former employee, an employing agency or former 
employing agency will pay a refund of erroneous additional withholdings 
for service that is found not to have been covered service. If an 
individual has paid to OPM a deposit or redeposit, including the 
additional amount required for covered service, and the deposit or 
redeposit is later determined to be erroneous because the service was 
not covered service, OPM will pay the refund, upon proper application, 
to the individual, without interest.
    (d) The additional employee withholding and agency contribution for

[[Page 136]]

covered or creditable service properly made as required under 5 U.S.C. 
8334(a)(1) or deposited under 5 U.S.C. 8334(c) are not separately 
refundable, even in the event that the employee or his or her survivor 
does not qualify for a special annuity computation under 5 U.S.C. 
8339(d).
    (e) While an employee who does not hold a primary or secondary 
position is detailed or temporarily promoted to a primary or secondary 
position, the additional withholdings and agency contributions will not 
be made. While an employee who does hold a primary or secondary position 
is detailed or temporarily promoted to a position which is not a primary 
or secondary position, the additional withholdings and agency 
contributions will continue to be made.

[58 FR 64367, Dec. 7, 1993, as amended at 60 FR 3339, Jan. 17, 1995]



Sec. 831.908  Mandatory separation.

    (a) The mandatory separation provisions of 5 U.S.C. 8335(b) apply to 
all law enforcement officers and firefighters in primary and secondary 
positions. A mandatory separation under section 8335(b) is not an 
adverse action under part 752 of this chapter or a removal action under 
part 359 of this chapter. Section 831.502 provides the procedures for 
requesting an exemption from mandatory separation.
    (b) In the event an employee is separated mandatorily under 5 U.S.C. 
8335(b), or is separated for optional retirement under 5 U.S.C. 8336(c), 
and OPM finds that all or part of the minimum service required for 
entitlement to immediate annuity was in a position which did not meet 
the requirements of a primary or secondary position and the conditions 
set forth in this subpart, such separation will be considered erroneous.

[58 FR 64367, Dec. 7, 1993, as amended at 66 FR 38524, July 25, 2001]



Sec. 831.909  Reemployment.

    An employee who has been mandatorily separated under 5 U.S.C. 
8335(b) is not barred from reemployment in any position except a primary 
position after age 60. Service by a reemployed annuitant is not covered 
by the provisions of 5 U.S.C. 8336(c).



Sec. 831.910  Review of decisions.

    (a) The final decision of an agency head or OPM issued to an 
employee, former employee, or survivor as the result of a request for 
determination filed under Sec. 831.906 may be appealed to the Merit 
Systems Protection Board under procedures prescribed by the Board.
    (b) The final decision of an agency head that a break in service 
referred to in Sec. 831.904(a)(2) did not begin with an involuntary 
separation within the meaning of 5 U.S.C. 8336(d)(1) may be appealed to 
the Merit Systems Protection Board under procedures prescribed by the 
Board.

[66 FR 38524, July 25, 2001]



Sec. 831.911  Oversight of coverage determinations.

    (a) Upon deciding that a position is a law enforcement officer or 
firefighter position, each agency head must notify OPM (Attention: 
Associate Director for Retirement and Insurance) stating the title of 
each position, the number of incumbents, and whether the position is 
primary or secondary. The Director of OPM retains the authority to 
revoke an agency head's determination that a position is a primary or 
secondary position, or that an individual's service in any other 
position is creditable under 5 U.S.C. 8336(c).
    (b) Each agency must establish a file containing each coverage 
determination made by an agency head under Sec. 831.903 and Sec. 
831.904, and all background material used in making the determination.
    (c) Upon request by OPM, the agency will make available the entire 
coverage determination file for OPM to audit to ensure compliance with 
the provisions of this subpart.
    (d) Upon request by OPM, an agency must submit to OPM a list of all 
covered positions and any other pertinent information requested.
    (e) A coverage determination issued by OPM or its predecessor, the 
Civil Service Commission, will not be reopened by an employing agency, 
unless the agency head determines that new and material evidence is 
available that, despite due diligence, was not

[[Page 137]]

available before the decision was issued.

             Regulations Pertaining to Noncodified Statutes



Sec. 831.912  Elections to be deemed a law enforcement officer for
retirement purposes by certain police officers employed by 

the Metropolitan Washington 
          Airports Authority (MWAA).

    (a) Who may elect. Metropolitan Washington Airports Authority (MWAA) 
police officers employed as members of the MWAA police force as of 
December 21, 2000, who are covered by the provisions of the Civil 
Service Retirement System by 49 U.S.C. 49107(b) may elect to be deemed a 
law enforcement officer for retirement purposes and have past service as 
a member of the MWAA and Federal Aviation Administration police forces 
credited as law enforcement officer service.
    (b) Procedure for making an election. Elections by an MWAA police 
officer to be treated as a law enforcement officer for retirement 
purposes must be made in writing to the MWAA and filed in the employee's 
personnel file in accordance with procedures established by OPM in 
consultation with the MWAA.
    (c) Time limit for making an election. An election under paragraph 
(a) of this section must be made either before the MWAA police officer 
separates from service with the MWAA or July 25, 2002.
    (d) Effect of an election. An election under paragraph (a) of this 
section is effective on the beginning of the first pay period following 
the date of the MWAA police officer's election.
    (e) Irrevocability. An election under paragraph (a) of this section 
becomes irrevocable when received by the MWAA.
    (f) Employee payment for past service. (1) An MWAA police officer 
making an election under this section must pay an amount equal to the 
difference between law enforcement officer retirement deductions and 
retirement deductions actually paid by the police officer for the police 
officer's past police officer service with the Metropolitan Washington 
Airports Authority and Federal Aviation Administration. The amount paid 
under this paragraph shall be computed with interest in accordance with 
5 U.S.C. 8334(e) and paid to the MWAA prior to separation.
    (2) Starting with the effective date under paragraph (d) of this 
section, the MWAA must make deductions and withholdings from the 
electing MWAA police officer's base pay in accordance with 5 CFR 
831.907.
    (g) Employer contributions. (1) Upon the police officer's payment 
for past service credit under paragraph (f) of this section, the MWAA 
must, in accordance with procedures established by OPM, pay into the 
Civil Service Retirement and Disability Fund the additional agency 
retirement contribution amounts required for the police officer's past 
service, plus interest.
    (2) Starting with the effective date under paragraph (d) of this 
section, the MWAA must make agency contributions for the electing police 
officer in accordance with 5 CFR 831.907.
    (h) Mandatory Separation. (1) An MWAA police officer who elects to 
be treated as a law enforcement officer for CSRS retirement purposes is 
subject to the mandatory separation provisions of 5 U.S.C. 8335(b) and 5 
CFR 831.502(a).
    (2) The President and Chief Operating Officer of the MWAA is deemed 
to be the head of an agency for the purpose of exempting an MWAA police 
officer from mandatory separation in accordance with the provisions of 5 
U.S.C. 8335(b) and 5 CFR 831.502.
    (i) Reemployment. An MWAA police officer who has been mandatorily 
separated under 5 U.S.C. 8335(b) is not barred from reemployment after 
age 60 in any position except a CSRS primary or secondary law 
enforcement officer position or a FERS rigorous law or secondary 
enforcement officer position. Service by a reemployed former MWAA police 
officer who retired under 5 U.S.C. 8336(c) is not covered by the 
provisions of 5 U.S.C. 8336(c).

[66 FR 38524, July 25, 2001]



                          Subpart J_CSRS Offset

    Source: 57 FR 38743, Aug. 27, 1992, unless otherwise noted.



Sec. 831.1001  Purpose.

    This subpart sets forth the provisions concerning employees and 
Members

[[Page 138]]

who are simultaneously covered by the Old Age, Survivors, and Disability 
Insurance (OASDI) tax and the Civil Service Retirement System (CSRS). 
Except as provided under this subpart, these employees and Members are 
treated the same as other covered employees and Members under the CSRS.



Sec. 831.1002  Definitions.

    Contribution and benefit base means the contribution and benefit 
base in effect with respect to the tax year involved, as determined 
under section 230 of the Social Security Act (42 U.S.C. 430).
    CSRS means the Civil Service Retirement System established under 
subchapter III of chapter 83 of title 5, United States Code.
    Employee means an employee subject to CSRS.
    Federal service means service covered under CSRS and subject to the 
OASDI tax by operation of section 101 of Public Law 98-21 (42 U.S.C. 
410(a)). Federal service does not include--
    (1) Service performed before January 1, 1984;
    (2) Service subject to the OASDI tax only (that is, no simultaneous 
CSRS deductions), except in the case of an employee or Member who 
elected not to have any CSRS deductions withheld from salary pursuant to 
section 208(a)(1)(A) of Public Law 98-168, 97 Stat. 1111, or section 
2206(b) of Public Law 98-369, 98 Stat. 1059, (relating to certain senior 
officials; and
    (3) Service subject to the full rate of CSRS deductions (7, 7\1/2\, 
or 8 percent) and the OASDI tax, pursuant to an election under section 
208(a)(1)(B) of Public Law 98-168, 97 Stat. 1111, except in the case of 
an employee or Member who elects to become subject to this subpart under 
section 301(b) of Public Law 99-335, 100 Stat. 599.
    Federal wages means basic pay, as defined under 5 U.S.C. 8331(4), of 
an employee or Member performing Federal service.
    Member means a Member of Congress as defined by 5 U.S.C. 8331(2).
    OASDI tax means, with respect to Federal wages, the Old Age, 
Survivors, and Disability Insurance tax imposed under section 3101(a) of 
the Internal Revenue Code of 1986 (31 U.S.C. 3101(a)).



Sec. 831.1003  Deductions from pay.

    (a) Except as otherwise provided in this section, the employing 
agency, the Secretary of the Senate, or the Clerk of the House of 
Representatives must withhold 7 percent of an employee's Federal wages 
to cover both the OASDI tax and the CSRS deduction. The difference 
between the OASDI tax and the full amount withheld under this paragraph 
is the CSRS deduction.
    (b) For a Congressional employee as defined by 5 U.S.C. 2107 and a 
law enforcement officer or firefighter as defined by 5 U.S.C. 8331, the 
appropriate percentage under paragraph (a) of this section is 7\1/2\ 
percent.
    (c) For a Member, a judge of the United States Court of Military 
Appeals, a United States magistrate, and a bankruptcy judge as defined 
by 5 U.S.C. 8331(22), the appropriate percentage under paragraph (a) of 
this section is 8 percent.
    (d) For any amount of Federal wages paid after reaching the 
contribution and benefit base calculated including all wages, but before 
reaching the contribution and benefit base calculated using only Federal 
wages, the amount withheld under this section is the difference between 
7, 7\1/2\, or 8 percent, as appropriate, and the OASDI tax rate, even 
though the Federal wages in question are not subject to the OASDI tax.
    (e) For any amount of Federal wages paid after reaching the 
contribution and benefit base calculated on the basis of Federal wages 
only, the full percentage required under paragraph (a), (b), or (c) of 
this section (7, 7\1/2\, or 8 percent) must be withheld from Federal 
wages.



Sec. 831.1004  Agency contributions.

    The employing agency, the Secretary of the Senate, and the Clerk of 
the House of Representatives must submit to OPM, in accordance with 
instructions issued by OPM, a contribution to the CSRS equal to the 
amount required to be contributed for the employee or Member under 5 
U.S.C. 8334(a)(1) as if the employee or Member were not subject to the 
OASDI tax.

[[Page 139]]



Sec. 831.1005  Offset from nondisability annuity.

    (a) OPM will reduce the annuity of an individual who has performed 
Federal service, if the individual is entitled, or on proper application 
would be entitled, to old-age benefits under title II of the Social 
Security Act.
    (b) The reduction required under paragraph (a) of this section is 
effective on the 1st day of the month during which the employee--
    (1) Is entitled to an annuity under CSRS; and
    (2) Is entitled, or on proper application would be entitled, to old-
age benefits under title II of the Social Security Act.
    (c) Subject to paragraphs (d) and (e) of this section, the amount of 
the reduction required under paragraph (a) of this section is the lesser 
of--
    (1) The difference between--
    (i) The Social Security old-age benefit for the month referred to in 
paragraph (b) of this section; and
    (ii) The old-age benefit that would be payable to the individual for 
the month referred to in paragraph (b) of this section, excluding all 
wages from Federal service, and assuming the annuitant was fully insured 
(as defined by section 215(a) of the Social Security Act (42 U.S.C. 
414(a)); or
    (2) The product of--
    (i) The old-age benefit to which the individual is entitled or 
would, on proper application, be entitled; and
    (ii) A fraction--
    (A) The numerator of which is the annuitant's total Federal service, 
rounded to the nearest whole number of years not exceeding 40 years; and
    (B) The denominator of which is 40.
    (d) Cost-of-living adjustments under 5 U.S.C. 8340 occurring after 
the effective date of the reduction required under paragraph (a) of this 
section will be based on only the annuity remaining after reduction 
under this subpart.
    (e) The amounts for paragraphs (c)(1)(i), (c)(1)(ii), and (c)(2)(i) 
of this section are computed without regard to subsections (b) through 
(l) of section 203 of the Social Security Act (42 U.S.C. 403) (relating 
to reductions in Social Security benefits), and without applying the 
provisions of the second sentence of section 215(a)(7)(B)(i) or section 
214(d)(5)(ii) of the Social Security Act (42 U.S.C. 415(a)(7)(B)(i) or 
415(d)(5)(ii) (relating to part of the computation of the Social 
Security windfall elimination provisions).
    (f) OPM will accept the determination of the Social Security 
Administration, submitted in a form prescribed by OPM, concerning 
entitlement to Social Security benefits and the date thereof.



Sec. 831.1006  Offset from disability or survivor annuity.

    (a) OPM will reduce the disability annuity (an annuity under 5 
U.S.C. 8337) of an individual who performed Federal service, if the 
individual is (or would on proper application be) entitled to disability 
payments under section 223 of the Social Security Act (42 U.S.C. 423).
    (b)(1) Before an application for disability retirement under 5 
U.S.C. 8337 can be finally approved in the case of an employee who has 
Federal service, the applicant must provide OPM with--
    (i) Satisfactory evidence that the applicant has filed an 
application for disability insurance benefits under section 223 of the 
Social Security Act; or
    (ii) An official statement from the Social Security Administration 
that the individual is not insured for disability insurance benefits as 
defined in section 223(c)(1) of the Social Security Act.
    (2) A disability retirement application under 5 U.S.C. 8337 will be 
dismissed when OPM is notified by the Social Security Administration 
that the application referred to in paragraph (b)(1)(i) of this section 
has been withdrawn unless the evidence described in paragraph (b)(1)(ii) 
of this section has been provided.
    (c) OPM will reduce a survivor annuity (an annuity under 5 U.S.C. 
8341) based on the service of an individual who performed Federal 
service, if the survivor annuitant is entitled, or on proper application 
would be entitled, to survivor benefits under section 202 (d), (e), or 
(f) (relating to children's, widow's, and widowers' benefits, 
respectively) of the Social Security Act (42 U.S.C. 202 (d), (e), or 
(f)).
    (d) The reduction required under paragraphs (a) and (c) of this 
section begins (or is reinstated) on the 1st day

[[Page 140]]

of the month during which the disability or survivor annuitant--
    (1) Is entitled to disability or survivor annuity under CSRS; and
    (2) Is entitled, or on proper application would be entitled, to 
disability or survivor benefits under the Social Security Act provisions 
mentioned in paragraphs (a) and (c) of this section, respectively.
    (e) The reduction under paragraphs (a) and (c) of this section will 
be computed and adjusted in a manner consistent with the provisions of 
Sec. 831.1005(c) through (e).
    (f) A reduction under paragraph (a) or (c) of this section stops on 
the date entitlement to the disability or survivor benefits under title 
II of the Social Security Act terminates. In the case of a disability or 
survivor annuitant who has not made proper application for the Social 
Security benefit, the reduction under paragraph (a) or (c) of this 
section stops on the date entitlement to such disability or survivor 
benefits would otherwise terminate. If a Social Security benefit is 
reduced under any provision of the Social Security Act, even if reduced 
to zero, entitlement to that benefit is not considered to have 
terminated.
    (g) OPM will accept the determination or certification of the Social 
Security Administration, submitted in a form prescribed by OPM, 
concerning entitlement to Social Security disability or survivor 
benefits and the beginning and ending dates thereof.
    (h) If a disability annuitant who is not entitled to disability 
benefits under title II of the Social Security Act subsequently becomes 
entitled to old-age benefits under the Social Security Act, a reduction 
under Sec. 831.1005 will begin on the 1st day of the month during which 
the annuitant becomes entitled, or on proper application would be 
entitled, to Social Security old-age insurance benefits.



             Subpart K_Prohibition on Payments of Annuities



Sec. 831.1101  Scope.

    This subpart prescribes the procedures to be followed in determining 
whether payment of an annuity under subchapter III of chapter 83 of 
title 5, United States Code, is prohibited by subchapter II of that 
chapter.



Sec. 831.1102  Definitions.

    As used in this subpart, ``annuitant'' means an individual who, on 
the basis of his service, or as a survivor annuitant, has met all the 
requirements of subchapter III of chapter 83 of title 5, United States 
Code, for title to an annuity and has filed claim therefor.



Sec. 831.1104  Notice.

    When the Associate Director determines that subchapter II of chapter 
83 of title 5, United States Code, appears to prohibit payment of 
annuity, he shall notify the annuitant in writing of his intention to 
withhold payment of the annuity. The notice shall set forth the reasons 
for this determination. The notice may be served by registered or 
certified mail and shall inform the annuitant that he is entitled to 
submit an answer and request a hearing.

[34 FR 17618, Oct. 31, 1969]



Sec. 831.1105  Answer; request for hearing.

    (a) The annuitant has 30 calendar days from the day he receives the 
notice within which to submit an answer and to request a hearing. The 
Associate Director may extend this time limit for good cause shown. If 
the annuitant answers, he shall specifically admit, deny, or explain 
each fact alleged in the notice, unless he states that he is without 
knowledge. If a hearing is desired, the annuitant must file a specific 
request therefor with or as a part of his answer.
    (b) An annuitant who fails to answer or to request a hearing within 
the time permitted under paragraph (a) of this section is considered to 
have waived his right to answer or to a hearing. If an annuitant neither 
answers nor requests a hearing within the time permitted, or answers but 
fails to request a hearing, the Associate Director shall decide the case 
on the basis of the administrative record, including the notice and any 
documents, affidavits, or other relevant evidence. The decision of the 
Associate Director shall (1) be served on the annuitant or his counsel

[[Page 141]]

by certified or registered mail; (2) include a statement of findings and 
conclusions with the reasons therefor; and (3) become the final decision 
of OPM unless the case is appealed or reviewed pursuant to Sec. 
831.1111.

[34 FR 17618, Oct. 31, 1969]



Sec. 831.1106  Hearing.

    (a) OPM's hearing examiner shall preside at any hearing held 
pursuant to this subpart, unless OPM designates another presiding 
officer. The presiding officer shall fix the time and place of the 
hearing after giving due consideration to the convenience of the 
annuitant. The hearing is open to the public unless otherwise ordered by 
OPM or the presiding officer.
    (b) The hearing shall be recorded by an official reporter designated 
by OPM. OPM shall furnish to the annuitant, without charge, a copy of 
the transcript of the hearing.



Sec. 831.1107  Powers of presiding officers.

    The presiding officer may:
    (a) Administer oaths and affirmations;
    (b) Rule upon offers of proof and receive relevant evidence;
    (c) Fix the time and place of hearing;
    (d) Regulate the course of the hearing;
    (e) Exclude any person from the hearing for contumacious conduct or 
misbehavior that obstructs the hearing;
    (f) Hold conferences for simplification of the issues, or for any 
other purpose;
    (g) Dispose of procedural requests or similar matters;
    (h) Authorize the filing of briefs and set the time for filing;
    (i) Make initial decisions; and
    (j) Take any other action in the course of the proceeding consistent 
with the purposes of this subpart.



Sec. 831.1108  Witnesses.

    (a) Witnesses shall testify under oath or affirmation and shall be 
subject to cross-examination.
    (b) Each party is responsible for securing the attendance of his 
witnesses. OPM has no power of subpena in these cases.



Sec. 831.1109  Evidence.

    (a) Rules of evidence are not strictly applied, but the presiding 
officer shall exclude irrelevant or unduly repetitious evidence.
    (b) Each exhibit of a documentary character shall be submitted to 
the presiding officer, duly marked, and made a part of the record. An 
exhibit does not become evidence unless received in evidence by the 
presiding officer.



Sec. 831.1110  Initial decision.

    (a) Upon completion of a hearing pursuant to Sec. 831.1106, the 
presiding officer shall make and file an initial decision, a copy of 
which shall be served on each party or counsel by certified or 
registered mail.
    (b) The initial decision shall include a statement of findings and 
conclusions, with the reasons therefor, and shall be based upon a 
consideration of the entire record.
    (c) The initial decision shall become the final decision of OPM 
unless the case is appealed or reviewed pursuant to Sec. 831.1111.



Sec. 831.1111  Appeal and review.

    (a) An appeal from an initial decision, or a decision of the 
Associate Director under Sec. 831.1105(b), may be made to OPM, with 
service on the other party, within 30 calendar days from the date of the 
decision. An appeal shall be in writing and shall state plainly and 
concisely the grounds for the appeal, with a specific reference to the 
record when issues of fact are raised. The other party may file an 
opposition to the appeal within 15 days after service on him. On notice 
to the parties, OPM may extend the time limits prescribed in this 
paragraph.
    (b) Within 30 calendar days from the date of an initial decision or 
a decision of the Associate Director, OPM, on its own motion, may direct 
that the record be certified to it for review.

[34 FR 17618, Oct. 31, 1969]



Sec. 831.1112  Final decision.

    (a) On appeal from or review of an initial decision or a decision of 
the Associate Director, OPM shall decide the

[[Page 142]]

case on the record. The record shall include the notice, answer, 
transcript of testimony and exhibits, briefs, the initial decision or 
the decision of the Associate Director, the papers filed in connection 
with the appeal and opposition to the appeal and all other papers, 
requests and exceptions filed in the proceeding.
    (b) OPM may adopt, modify, or set aside the findings, conclusions, 
or order of the presiding officer or the Associate Director.
    (c) The final decision of OPM shall be in writing and include a 
statement of findings and conclusions, the reasons or basis therefor, 
and an appropriate order, and shall be served on the parties.

[33 FR 12498, Sept. 4, 1968, as amended at 34 FR 17618, Oct. 31, 1969]



                     Subpart L_Disability Retirement

    Source: 58 FR 49179, Sept. 22, 1993, unless otherwise noted.



Sec. 831.1201  Introduction.

    This subpart sets out the requirements an employee must meet to 
qualify for disability retirement, how an employee applies for 
disability retirement, how an agency applies for disability retirement 
for an employee, when a disability annuity ends, an individual's 
retirement rights after the disability annuity ends, and the effect of 
reemployment in the Federal service on a disability annuitant.



Sec. 831.1202  Definitions.

    As used in this subpart--
    Accommodation means an adjustment made to an employee's job or work 
environment that enables the employee to perform the duties of the 
position. Reasonable accommodation may include modifying the worksite; 
adjusting the work schedule; restructuring the job; obtaining or 
modifying equipment or devices; providing interpreters, readers, or 
personal assistants; and reassigning or retraining the employee.
    Basic pay means the pay an employee receives that is subject to 
civil service retirement deductions. The definition is the same as the 
definition of ``basic pay'' under 5 U.S.C. 8331(3).
    Commuting area means the geographic area that usually constitutes 
one area for employment purposes. It includes a population center (or 
two or more neighboring ones) and the surrounding localities in which 
people live and can reasonably be expected to travel back and forth 
daily from home to work in their usual employment.
    Disabled and disability mean unable or inability, because of disease 
or injury, to render useful and efficient service in the employee's 
current position, or in a vacant position in the same agency at the same 
grade or pay level for which the individual is qualified for 
reassignment.
    Examination and reexamination mean an evaluation of evidentiary 
material related to the question of disability. Unless OPM exercises its 
choice of a physician, the cost of providing medical documentation rests 
with the employee or disability annuitant, who must provide any 
information OPM needs to make an evaluation.
    Medical condition means a health impairment resulting from a disease 
or injury, including a psychiatric disease. This is the same definition 
of ``medical condition'' as in Sec. 339.104 of this chapter.
    Medical documentation and documentation of a medical condition mean 
a statement from a licensed physician or other appropriate practitioner 
that provides information OPM considers necessary to determine an 
individual's entitlement to benefits under this subpart. Such a 
statement must meet the criteria set forth in Sec. 339.104 of this 
chapter.
    Permanent position means an appointment without time limitation.
    Physician and practitioner have the same meanings given in Sec. 
339.104 of this chapter.
    Qualified for reassignment means able to meet the minimum 
requirements for the grade and series of the vacant position in 
question.
    Same grade or pay level means, in regard to a vacant position within 
the same pay system as the employee currently occupies, the same grade 
and an equivalent amount of basic pay. A position under a different pay 
system or schedule is at the ``same pay level'' if

[[Page 143]]

the representative rate, as defined in Sec. 532.401 of this chapter, 
equals the representative rate of the employee's current position.
    Useful and efficient service means (1) acceptable performance of the 
critical or essential elements of the position; and (2) satisfactory 
conduct and attendance.
    Vacant position means an unoccupied position of the same grade or 
pay level and tenure for which the employee is qualified for 
reassignment that is located in the same commuting area and is serviced 
by the same appointing authority of the employing agency. The vacant 
position must be full time, unless the employee's current position is 
less than full time, in which case the vacant position must have a work 
schedule of no less time than that of the current position. In the case 
of an employee of the United States Postal Service, a vacant position 
does not include a position in a different craft or a position to which 
reassignment would be inconsistent with the terms of a collective 
bargaining agreement covering the employee.



Sec. 831.1203  Basic requirements for disability retirement.

    (a) Except as provided in paragraph (b) of this section, the 
following conditions must be met for an individual to be eligible for 
disability retirement:
    (1) The individual must have completed at least 5 years of civilian 
service that is creditable under the Civil Service Retirement System.
    (2) The individual must, while employed in a position subject to the 
Civil Service Retirement System, have become disabled because of a 
medical condition, resulting in a service deficiency in performance, 
conduct, or attendance, or if there is no actual service deficiency, the 
disabling medical condition must be incompatible with either useful and 
efficient service or retention in the position.
    (3) The disabling medical condition must be expected to continue for 
at least 1 year from the date the application for disability retirement 
is filed.
    (4) The employing agency must be unable to accommodate the disabling 
medical condition in the position held or in an existing vacant 
position.
    (5) An application for disability retirement must be filed with the 
employing agency before the employee or Member separates from service, 
or with the former employing agency or the Office of Personnel 
Management (OPM) within 1 year thereafter. This time limit can be waived 
only in certain instances explained in Sec. 831.1204.
    (b) A National Guard technician who is retiring under the special 
provisions of 5 U.S.C. 8337(h) is not required to meet the conditions 
given in paragraphs (a) (2), (3), and (4) of this section. Instead, the 
individual must be disabled for membership in the National Guard or for 
the military grade required to hold his or her position and meet the 
other eligibility requirements under 5 U.S.C. 8337(h)(2).

[58 FR 49179, Sept. 22, 1993, as amended at 63 FR 17049, Apr. 8, 1998]



Sec. 831.1204  Filing disability retirement applications: General.

    (a) Except as provided in paragraphs (c) and (d) of this section, an 
application for disability retirement is timely only if it is filed with 
the employing agency before the employee or Member separates from 
service, or with the former employing agency or OPM within 1 year 
thereafter.
    (b) An application for disability retirement that is filed with OPM, 
an employing agency or former employing agency by personal delivery is 
considered filed on the date on which OPM, the employing agency or 
former employing agency receives it. The date of filing by facsimile is 
the date of the facsimile. The date of filing by mail is determined by 
the postmark date; if no legible postmark date appears on the mailing, 
the application is presumed to have been mailed 5 days before its 
receipt, excluding days on which OPM, the employing agency or former 
employing agency, as appropriate, is closed for business. The date of 
filing by commercial overnight delivery is the date the application is 
given to the overnight delivery service.
    (c) An application for disability retirement that is filed with OPM 
or the applicant's former employing agency within 1 year after the 
employee's separation, and that is incompletely executed or submitted in 
a letter or other

[[Page 144]]

form not prescribed by OPM, is deemed timely filed. OPM will not 
adjudicate the application or make payment until the application is 
filed on a form prescribed by OPM.
    (d) OPM may waive the 1-year time limit if the employee or Member is 
mentally incompetent on the date of separation or within 1 year 
thereafter, in which case the individual or his or her representative 
must file the application with the former employing agency or OPM within 
1 year after the date the individual regains competency or a court 
appoints a fiduciary, whichever is earlier.
    (e) An agency may consider the existence of a pending disability 
retirement application when deciding whether and when to take other 
personnel actions. An employee's filing for disability retirement does 
not require the agency to delay any appropriate personnel action.

[63 FR 17049, Apr. 8, 1998]



Sec. 831.1205  Agency-filed disability retirement applications.

    (a) Basis for filing an application for an employee. An agency must 
file an application for disability retirement of an employee who has 5 
years of civilian Federal service when all of the following conditions 
are met:
    (1) The agency has issued a decision to remove the employee;
    (2) The agency concludes, after its review of medical documentation, 
that the cause for unacceptable performance, attendance, or conduct is 
disease or injury;
    (3) The employee is institutionalized, or the agency concludes, 
based on a review of medical and other information, that the employee is 
incapable of making a decision to file an application for disability 
retirement;
    (4) The employee has no personal representative or guardian; and
    (5) The employee has no immediate family member who is willing to 
file an application on his or her behalf.
    (b) Agency procedures. (1) When an agency issues a decision to 
remove an employee and not all of the conditions described in paragraph 
(a) of this section have been satisfied, but the removal is based on 
reasons apparently caused by a medical condition, the agency must advise 
the employee in writing of his or her possible eligibility for 
disability retirement.
    (2) If the agency is filing a disability retirement application on 
the employee's behalf, the agency must inform the employee in writing at 
the same time it informs the employee of its removal decision, or at any 
time before the separation is effected, that--
    (i) The agency is submitting a disability retirement application on 
the employee's behalf to OPM;
    (ii) The employee may review any medical information in accordance 
with the criteria in Sec. 294.106(d) of this chapter; and
    (iii) The action does not affect the employee's right to submit a 
voluntary application for retirement under this part.
    (3) When an agency submits an application for disability retirement 
to OPM on behalf of an employee, it must provide OPM with copies of the 
decision to remove, the medical documentation, and any other documents 
needed to show that the cause for removal is due to a medical condition. 
Following separation, the agency must provide OPM with a copy of the 
documentation of the separation.
    (c) OPM procedures. (1) OPM will not act on any application for 
disability retirement filed by an agency on behalf on an employee until 
it receives the appropriate documentation of the separation. When OPM 
receives a complete application for disability retirement under this 
section, it will notify the former employee that it has received the 
application, and that he or she may submit medical documentation. OPM 
will determine entitlement to disability benefits under Sec. 831.1206.
    (2) OPM will cancel any disability retirement when a final decision 
of an administrative authority or court reverses the removal action and 
orders the reinstatement of an employee to the agency rolls.



Sec. 831.1206  Evidence supporting entitlement to disability benefits.

    (a) Evidence to support disability retirement application. (1) 
Before OPM determines whether an individual meets the basic requirements 
for disability retirement under Sec. 831.1203, an applicant

[[Page 145]]

for disability retirement or the employing agency must submit to OPM the 
following forms included in Standard Form 2824, ``Documentation in 
Support of Disability Retirement Application:''
    (i) Standard Form 2824A--``Applicant's Statement;''
    (ii) Standard Form 2824B--``Supervisor's Statement;''
    (iii) Standard Form 2824D--``Agency Certification or Reassignment 
and Accommodation Efforts;'' and
    (iv) Standard Form 2824E--``Disability Retirement Application Check-

list.''
    (2) Standard Form 2824C--``Physician's Statement'' and the 
supporting

medical documentation may be submitted directly to OPM.
    (3) The applicant, or the employing agency, must also obtain and 
submit additional documentation as may be required by OPM to determine 
entitlement to the disability retirement benefit.
    (4) Refusal by the applicant, physician, or employing agency to 
submit the documentation OPM has determined is necessary to decide 
eligibility for disability retirement is grounds for disallowance of the 
application.
    (b) OPM procedures for processing a disability retirement 
application. (1) OPM will review the documentation submitted under 
paragraph (a) of this section in support of an application for 
disability retirement to determine whether the applicant has met the 
conditions stated in Sec. 831.1203 of this part. OPM will issue its 
decision in writing to the applicant and to the employing agency. The 
decision will include a statement of the findings and conclusions, and 
an explanation of the right to request consideration under Sec. 831.109 
of this part.
    (2) OPM may rescind a decision to allow an application for 
disability retirement at any time if there is an indication of error in 
the original decision, such as fraud or misstatement of fact, or if 
additional medical documentation is needed. The written notification 
will include a statement of the findings and conclusions, and an 
explanation of the right to request reconsideration under Sec. 831.109 
of this part.
    (c) Medical examination. OPM may offer the applicant a medical 
examination when it determines that additional medical evidence is 
necessary to make a decision on an application. The medical evaluation 
will be conducted by a medical officer of the United States or a 
qualified physician or board of physicians designated by OPM. The 
applicant's refusal to submit to an examination is grounds for 
disallowance of the application.
    (d) Responsibility for providing evidence. It is the responsibility 
of the applicant to obtain and submit documentation that is sufficient 
for OPM to determine whether there is a service deficiency, caused by 
disease or injury, of sufficient degree to preclude useful and efficient 
service, or a medical condition that warrants restriction from the 
critical task or duties of the position held. It is also the 
responsibility of the disability annuitant to obtain and submit evidence 
OPM requires to show continuing entitlement to disability benefits.



Sec. 831.1207  Withdrawal of disability retirement applications.

    (a) OPM will honor, without question, an applicant's request to 
withdraw an employee-filed disability retirement application if it 
receives the withdrawal request before the employing agency has 
separated the current employee, or, if the employee has already 
separated from the service, the withdrawal request is received before 
the official notice of approval has been issued by OPM. Similarly, OPM 
will honor, without question, an agency's request to withdraw an agency-
filed disability retirement application if it receives the withdrawal 
request before the employee has separated from the service. Once the 
request to withdraw the application is accepted, an applicant must 
reapply to receive any further consideration.
    (b) Withdrawal of a disability retirement application does not 
ensure the individual's continued employment. It is the employing 
agency's responsibility to determine whether it is appropriate to 
continue to employ the individual.
    (c) OPM considers voluntary acceptance of a permanent position in 
which

[[Page 146]]

the employee has civil service retirement coverage, including a position 
at a lower grade or pay level, to be a withdrawal of the employee's 
disability retirement application. The employing agency must notify OPM 
immediately when an applicant for disability retirement accepts a 
position of this type.
    (d) OPM also considers a disability retirement application to be 
withdrawn when the agency reports to OPM that it has reassigned an 
applicant or an employee has refused a reassignment to a vacant 
position, or the agency reports to OPM that it has successfully 
accommodated the medical condition in the employee's current position. 
Placement consideration is limited only by agency authority and can 
occur after OPM's allowance of the application up to the date of 
separation for disability retirement. The employing agency must notify 
OPM immediately if any of these events occur.
    (e) After OPM allows a disability retirement application and the 
employee is separated, the application cannot be withdrawn. However, an 
individual entitled to a disability annuity may decline to accept all or 
any part of the annuity under the waiver provisions of 5 U.S.C. 8345(d) 
or request to be found medically recovered under Sec. 831.1208(e) of 
this part.



Sec. 831.1208  Termination of disability annuity because of recovery.

    (a) Each annuitant receiving disability annuity from the Fund shall 
be examined under the direction of OPM at the end of 1 year from the 
date of disability retirement and annually thereafter until the 
annuitant becomes 60 years of age unless the disability is found by OPM 
to be permanent in character. OPM may order a medical or other 
examination at any time to determine the facts relative to the nature 
and degree of disability of the annuitant. Failure to submit to 
reexamination shall result in suspension of annuity.
    (b) A disability annuitant may request medical reevaluation under 
the provisions of this section at any time. OPM will reevaluate the 
medical condition of disability annuitants age 60 or over only on their 
own request.
    (c) Recovery based on medical documentation. When an examination or 
reevaluation shows that a disability annuitant has medically recovered 
from the disability, OPM will terminate the annuity effective on the 
first day of the month beginning 1 year after the date of the medical 
examination showing recovery.
    (d) Recovery based on reemployment by the Federal Government. 
Reemployment by an agency at any time before age 60 is evidence of 
recovery if the reemployment is in a permanent position at the same or 
higher grade or pay level as the position from which the disability 
annuitant retired. The permanent position must be full-time unless the 
position the disability annuitant occupied immediately before retirement 
was less than full-time, in which case the permanent position must have 
a work schedule of no less time than that of the position from which the 
disability annuitant retired. In this instance, OPM needs no medical 
documentation to find the annuitant recovered. Disability annuity 
payments will terminate effective on the first day of the month 
following the month in which the recovery finding is made under this 
paragraph.
    (e) Recovery based on a voluntary request. OPM will honor a written 
and signed statement of medical recovery voluntarily filed by a 
disability annuitant when the medical documentation on file does not 
demonstrate that the annuitant is mentally incompetent. OPM needs no 
other documentation to find the annuitant recovered. Disability annuity 
payments will terminate effective on the first day of the month 
beginning 1 year after the date of the statement. A disability annuitant 
can withdraw the statement only if the withdrawal is received by OPM 
before annuity payments terminate.
    (f) When an agency reemploys a recovered disability annuitant at any 
grade or rate of pay within the 1-year period pending termination of the 
disability retirement benefit under paragraph (c), (d), or (e) of this 
section, OPM will terminate the annuity effective on the date of 
reemployment.

[[Page 147]]



Sec. 831.1209  Termination of disability annuity because of restoration
to earning capacity.

    (a) Restoration to earning capacity. If a disability annuitant is 
under age 60 on December 31 of any calendar year and his or her income 
from wages or self-employment or both during that calendar year equal at 
least 80 percent of the current rate of basic pay of the position 
occupied immediately before retirement, the annuitant's earning capacity 
is considered to be restored. The disability annuity will terminate on 
the June 30 after the end of the calendar year in which earning capacity 
is restored. When an agency reemploys a restored disability annuitant at 
any grade or rate of pay within the 180-day waiting period pending 
termination of the disability retirement benefit, OPM will terminate the 
annuity effective on the date of reemployment.
    (b) Current rate of basic pay for the position occupied immediately 
before retirement. (1) A disability annuitant's income for a calendar 
year is compared to the gross annual rate of basic pay in effect on 
December 31 of that year for the position occupied immediately before 
retirement. The income for most disability annuitants is based on the 
rate for the grade and step which reflects the total amount of basic pay 
(both the grade and step and any additional basic pay) in effect on the 
date of separation from the agency for disability retirement. Additional 
basic pay is included subject to the premium pay restrictions of 5 
U.S.C. 5545 (c)(1) and (c)(2). A higher grade and step will be 
established if it results from using either the date of application for 
disability retirement or the date of reasonable accommodation, as 
adjusted by any increases in basic pay that would have been effected 
between each respective date and the date of final separation. Use of 
these two alternative pay setting methods is subject to paragraph (b)(1) 
(i) and (ii) of this section. The highest grade and step established as 
a result of setting pay under the normal method and the two alternative 
methods is designated as the rate of basic pay for the position occupied 
immediately before retirement and applies only to restoration to earning 
capacity decisions. In cases involving use of either of the two 
alternative pay setting methods, the determination of the rate of basic 
pay for the position occupied immediately before retirement is made by 
the employing agency at the time the disability retirement is allowed. 
OPM must review the rate so determined to establish whether the correct 
rate has been established, and will inform the employee of the proper 
rate at the time the disability annuity is awarded. This rate of basic 
pay becomes the basis for all future earning capacity determinations.
    (i) The ``date of application for disability retirement'' is the 
date the application is signed by the authorized official of the 
employing agency immediately before forwarding the application to OPM.
    (ii) The ``date of reasonable accommodation'' is the date of the 
employing agency's notice of reasonable accommodation to an employee's 
medical condition (as a result of its review of medical documentation) 
which results in a reduction in the rate of basic pay. The use of the 
date of reasonable accommodation to establish the rate of basic pay for 
the position held at retirement is subject to the following conditions:
    (A) The date of the employing agency's notice to provide 
accommodation is no more than 1 year before the date the disability 
retirement application is signed by the authorized official in the 
employing agency immediately before forwarding it to OPM; and
    (B) A complete record of the date of the personnel decision, the 
medical documentation substantiating the existence of the medical 
condition, and the justification for the accommodation is established in 
writing and included at the time the agency submits the application for 
disability retirement. OPM will review the record to determine whether 
the medical documentation demonstrates that the medical condition 
existed at the time of the accommodation and warranted the accommodation 
made.
    (2) In the case of an annuitant whose basic pay rate on the date 
determined under paragraph (b)(1) of this section did not match a 
specific grade and step in a pay schedule:

[[Page 148]]

    (i) For those retiring from a merit pay position, a position for 
which a special pay rate is authorized (except as provided in paragraph 
(b)(2)(ii) of this section), or any other position in which the rate of 
basic pay is not equal to a grade and step in a pay schedule, the grade 
and step will be established for this purpose at the lowest step in the 
pay schedule grade that is equal to or greater than the actual rate of 
basic pay payable. This rule will not be applied when the rate exceeds 
that of the schedule applicable to the organization from which the 
individual retired, when there is no existing apposite schedule with 
grades and steps, or in other organizations which are excluded from 
coverage of schedules with grades and steps, as in the case of pay 
systems using pay bands.
    (ii) For those retiring with a retained rate of basic pay or from a 
position for which a special pay rate is in effect but whose rate of 
basic pay exceeds the highest rate payable in the pay schedule grade 
applicable to the position held, the grade and step is established for 
this purpose in the grade in the schedule that is closest to the grade 
of the position held and within which the amount of the retained pay 
falls. The step is established for this purpose at the lowest step in 
that grade which equals or exceeds the actual rate of pay payable.
    (iii) When the pay system under which an annuitant retired has been 
either modified or eliminated since the individual retired, the 
individual will be treated as if he or she had been employed at their 
retirement grade and step at the time of the system change, and will be 
deemed to have been placed under the new system using whatever rules 
would have been applicable at that time. This will only apply when a pay 
system has been abolished or modified, and not when the grade and step 
of a position has been modified subsequent to retirement by 
reclassification or other action, in which case the grade and step in 
effect at the time of retirement will control.
    (iv) If using the above rules it is not possible to set a grade and 
step for computing the current rate of pay, then if possible the current 
rate of pay will be set using the relative position in the range of pay 
applicable to the position from which the individual retired. For 
example, if at the time of retirement the rate of pay was $75,000 in a 
range from $70,000 to $90,000, for all future determinations, the 
current rate of pay would be 25% up the new pay range from the bottom. 
If the new range was $96,000 to $120,000, then the new current rate of 
pay would be $102,000 ($96,000 plus 0.25 times $24,000 ($120,000 minus 
$96,000)).
    (v) In those cases, such as of some former Congressional staff 
employees and others whose pay is not set under a formal system, where 
none of the above guidelines will yield a current rate of pay, OPM will 
ascertain the current rate of pay after consultation with the former 
employing organization, or successor organization.
    (3) For annuitants retiring from the United States Postal Service, 
only cost-of-living allowances subject to civil service retirement 
deductions are included in determining the current rate of basic pay of 
the position held at retirement.
    (c) Income. Earning capacity for the purposes of this section is 
demonstrated by an annuitant's ability to earn post-retirement income in 
a calendar year through personal work efforts or services. The total 
amount of income from all sources is used to determine earning capacity. 
This includes income received as gross wages from one or more employers, 
net earnings from one or more self-employment endeavors, and deferred 
income that is earned in a calendar year. In determining an annuitant's 
income for a calendar year, the following considerations apply:
    (1) There are two sources of income: wages and self-employment 
income. All income which is subject to Federal employment taxes (i.e., 
social security or Medicare taxes) or self-employment taxes constitutes 
earned income. In addition, any other income as described in this 
section also constitutes earned income. The determination of whether a 
disability annuitant earns wages as an employee of an organization or 
earns income as a self-employed person is based on the usual common law 
rules applicable in determining the existence of an employer-employee 
relationship.

[[Page 149]]

Whether the relationship exists under the usual common law rules will be 
determined by OPM after the examination of the particular facts of each 
case.
    (2) Income earned from one source is not offset by losses from 
another source. Income earned as wages is not reduced by a net loss from 
self-employment. The net income from each self-employment endeavor is 
calculated separately, and the income earned as net earnings from one 
self-employment endeavor is not reduced by a net loss from another self-
employment endeavor. The net incomes from each separate self-employment 
endeavor are added together to determine the total amount of income from 
self-employment for a calendar year.
    (3) Only income earned from personal work efforts or services is 
considered in determining earning capacity. All forms of non-work-
related unearned income are excluded. Paragraph (f) of this section 
includes a representative list of the types of unearned income that are 
not considered.
    (4) Income earned in a calendar year may only be reduced by certain 
self-employment business expenses, as provided in paragraph (e) of this 
section; job-connected expenses incurred because of the disabling 
condition, as provided in paragraph (g) of this section; and the return 
from investment allowance, as provided in paragraph (h) of this section. 
Once earned, income cannot be reduced by any other means. Thus, income 
cannot be lowered by such means as leave buy-back provisions, conversion 
of wages for paid time to leave without pay or a similar non-paid 
status, reductions in wages attributable to cash shortages or product 
losses, etc.
    (5) For determining annual income from wages or self-employment or 
both, income is earned in the calendar year the annuitant actually 
renders the personal work effort or service and either actually or 
constructively receives the remuneration, except as provided under 
paragraph (c)(7) of this section. For this purpose, income paid on a 
regular basis (i.e., on a weekly, bi-weekly, monthly or similar pay 
period basis) will be deemed earned in the year in which payment is made 
in the regular course of business.
    (6) Deferred income is included as income in the calendar year in 
which it is constructively received. Income is constructively received 
when it is credited, set apart, or otherwise made available so that the 
annuitant may draw upon it at any time, or could draw upon it during the 
calendar year if the annuitant had given notice of the intent to do so. 
Deferred income includes all earnings, whether in the form of cash or 
property or applied to provide a benefit for the employee, which are 
subject to the disability annuitant's designation or assignment. 
Usually, the earnings are set aside by a salary-reduction agreement, a 
deferred compensation arrangement, or the designation of specific 
earnings amounts towards the purchase of non-taxable employee fringe 
benefits. Thus, any earnings for which the individual has the 
opportunity to adjust the amount of income received in a calendar year 
by controlling the remuneration of voluntarily giving up the right to 
control the remuneration, regardless of whether a written instrument 
exists, are income for earning capacity purposes.
    (7) The Internal Revenue Code provides exceptions to the general 
rule on constructive receipt for certain deferred compensation plans 
which, by their design, defer receipt of income for Federal employment 
tax purposes as of the later of when services are performed or when 
there is no substantial risk of forfeiture of the rights to such amount. 
Even though these special deferred compensation plans defer the 
constructive receipt of the income for tax purposes to future years 
beyond the year in which the income is actually earned, the income 
reflects earning capacity. Therefore, employer contributions and 
employee payments to these special deferred compensation plans are 
considered income in the calendar year in which the services are 
performed, even though the Internal Revenue Code may exclude these 
contributions and payments from income for tax purposes.
    (d) Wages. For purposes of earning capacity determinations, the term 
``wages'' means the gross amount of all remuneration for services 
performed by

[[Page 150]]

an employee for his or her employer, unless specifically excluded 
herein, before any deductions or withholdings.
    (1) The name by which the remuneration for services is designated is 
immaterial. Remuneration includes but is not limited to one-time or 
recurring--
    (i) Base salary or pay; tips; commissions; professional fees; 
honoraria; bonuses and gift certificates of any type; golden parachute 
payments; payments for any non-work periods, such as vacation, holiday, 
or sick pay; pay advances; overtime pay; severance pay; dismissal pay; 
termination pay; and back pay;
    (ii) Deferred income, within the meaning of paragraphs (c) (6) and 
(7) of this section, or other employer contributions or payments in an 
arrangement in which the employee has the opportunity (whether exercised 
or not) to adjust income by recovering the contributions or payments 
during the calendar year in which earned, for general discretionary 
income purposes;
    (iii) Non-cash wages or payment of in-kind benefits, such as shares 
of stock in the business, real or personal property, stock in trade, 
inventory items, goods, lodging, food, and clothing. The valuation for 
all non-cash wages or other in-kind benefits is determined in a manner 
consistent with the fair value standards that appear in the Social 
Security Administration's regulations at 20 CFR 404.1041(d).
    (2) Any amount offset or deducted under 5 U.S.C. 8344 is treated as 
wages if the annuity continues while the annuitant is reemployed by the 
Federal Government.
    (3) As a general rule, remuneration as wages does not include any 
contribution, payment, benefits furnished, or service provided by an 
employer in any of the following areas:
    (i) The general retirement system established by the employer for 
its employees, usually either a qualified pension, profit-sharing, stock 
bonus plan, or a qualified annuity contract plan;
    (ii) Medical or hospitalization health benefit plans;
    (iii) Life insurance plans;
    (iv) Sickness or accident disability pay beyond 6 months of illness, 
or workers' compensation payments;
    (v) The value of meals and lodgings provided at the convenience of 
the employer;
    (vi) Moving expenses;
    (vii) Educational assistance programs;
    (viii) Dependent care assistance programs;
    (ix) Scholarships and fellowship grants;
    (x) De minimis fringe benefits, such as items of merchandise given 
by the employer at holidays which are not readily convertible into cash 
and courtesy discounts on company products offered not as remuneration 
for services performed but as a means of promoting good will;
    (xi) Qualified group legal services plans;
    (xii) Uniforms and tools supplied by the employer, including 
employer-provided allowances for such items, for the exclusive use by 
the employee on the job; and
    (xiii) Amounts that an employer pays the individual specifically, 
either as advances or reimbursements, for traveling or other ordinary 
and necessary expenses incurred, or reasonably expected to be incurred 
in the employer's business.
    (4) However, there are two exceptions to this general rule:
    (i) When it is provided under circumstances in which either a salary 
reduction or deferral agreement is used (whether evidenced by a written 
instrument or otherwise); or
    (ii) When the employee had the opportunity (whether exercised or 
not) to elect to receive the cash value, whether in the form of money or 
personal or real property, of the employer-provided amount or service.
    (e) Self-employment income. (1) Self-employment income is the 
remuneration that is received as an independent contractor, either as
    (i) A sole proprietor of a business or farm;
    (ii) A professional in one's own practice; or
    (iii) A member of a partnership or corporation, as these terms are 
defined by the Internal Revenue Code, and regardless of whether the 
business entity is operated for profit.

[[Page 151]]

    (2) The term ``net earnings'' from self-employment in a business 
enterprise means the gross revenue to the business endeavor from all 
sources before any other deductions or withholdings, minus
    (i) Allowable business expenses, as provided in paragraph (e)(3) of 
this section;
    (ii) Any job-connected disability expenses, as provided in paragraph 
(g) of this section; and
    (iii) Any return from investment allowance, as provided in paragraph 
(h) of this section.
    (3) Certain expenses of a self-employed business entity may be 
offset from the gross revenue from all sources of that self-employed 
business in determining the amount of net earnings for a particular 
calendar year. Expenses which may be deducted are only those items and 
costs which are permitted by the Internal Revenue Code for income tax 
purposes as ordinary and necessary to the operation of the business. 
However, expenses incurred on behalf of the disability annuitant may not 
be deducted, regardless of whether they are permitted by the Internal 
Revenue Code. These expenses that are incurred but cannot be deducted 
include the costs for wages paid to the individual, interest earnings, 
guaranteed payments, dividends, employee benefits, pension plans, and 
salary reduction or deferral plans. Also, self-employed disability 
annuitants may not deduct the costs of other withdrawals or expenses 
which are not used solely for business purposes. Examples of items that 
cannot be deducted if used at all for personal use by the self-employed 
disability annuitant include personal property items, such as 
automobiles and boats; real property, such as vacation property or 
residences; and memberships, dues, or fees for professional associations 
or public or private organizations or clubs.
    (4) Fees paid to an annuitant as a director of a corporation are a 
part of net earnings from self-employment.
    (f) Income not included. Other types of income not considered in 
determining earning capacity include--
    (1) Investment income, such as interest or dividends from savings 
accounts, stocks, personal loans or home mortgages held, unless the 
disability annuitant receives the return from capital investment in the 
course of his or her trade or business;
    (2) Capital gains from sales of real or personal property that the 
disability annuitant owns, unless received in the course of his or her 
trade or business:
    (3) Rents or royalties, unless received in the course of his or her 
trade or business;
    (4) Distributions from pension plans, annuity plans, Individual 
Retirement Accounts (IRA's), Simplified Employee Benefit-IRA's (SEP-
IRA's), Keogh Accounts, employee stock ownership plans, profit sharing 
plans, or deferred income payments that are received by the annuitant in 
any year after the calendar year in which the funds were contributed to 
the plan;
    (5) Income earned before the commencing date of civil service 
retirement annuity payments;
    (6) Scholarships or fellowships;
    (7) Proceeds from life insurance, inheritances, estates, trusts, 
endowments, gifts, prizes, awards, gambling or lottery winnings, and 
amounts received in court actions whether by verdict or settlement, 
unless received in the course of their trade or business;
    (8) Unemployment compensation under State or Federal law, 
supplemental unemployment benefits, or workers' compensation:
    (9) Alimony, child support, or separate maintenance payments 
received;
    (10) Pay for jury duty; and
    (11) Entitlement payments from other Federal agencies, such as 
benefits from the Social Security Administration or the Veterans 
Administration, Railroad Retirement System retirement pay, or military 
retirement pay.
    (g) Job-connected expenses incurred because of the disabling 
condition may be deducted from income. (1) Job-connected expenses 
deductible from income for purposes of determining earning capacity are 
those expenses that are primarily for and essential to the annuitant's 
occupation or business and are directly connected with or result from 
the disability for which the disability annuity was allowed.
    (2) The determination of whether a job-connected expense may be 
deducted

[[Page 152]]

from income is governed by the following considerations:
    (i) The expense must be directly attributable to the disability and 
must be one which would not have been incurred in the absence of the 
annuitant working in his or her business or occupation. Expenses 
incurred for the preservation of the annuitant's health, alleviation of 
his or her physical or mental discomfort, or other expenses of an 
employed person cannot be deducted.
    (ii) The disability must be of such severity that it requires the 
annuitant to use special means of transportation, services, or equipment 
to perform the duties of the occupation or business. Examples of such 
disabilities include blindness, paraplegia, multiple sclerosis, and 
cerebral hemorrhage. Claims involving transportation or equipment may be 
deducted only in the amount normally allowed for business expenses or as 
depreciation by the Internal Revenue Service for Federal income tax 
purposes.
    (iii) Claims involving services performed by a family member or 
other individual directly employed by the annuitant may be deducted only 
if a true employer-employee relationship exists between the annuitant 
and the employed individual, and the amount claimed as an expense does 
not exceed the local market rate of payment to individuals who provide 
similar services. It is the responsibility of the annuitant to provide 
evidence demonstrating that an employer-employee relationship exists, 
and what the local market rate is for such services. For the purpose of 
this paragraph, to establish that a true employer-employee relationship 
exists, the annuitant must provide evidence that all statutorily 
mandated employment requirements are met, including (but not limited to) 
income tax withholdings, FICA tax deductions and payments, and 
unemployment insurance. If the annuitant fails to provide evidence of 
the local market rate for such services, payments may be deducted only 
if the amount claimed does not exceed the Federal minimum hourly rate in 
effect on December 31 of the calendar year in which claimed. Absent 
evidence that it is customary and regular practice in the local labor 
market to work more hours per week, payment may not be deducted for 
services provided by an individual in excess of 40 hours a week.
    (3) A job-connected expense can be deducted only in the calendar 
year in which paid.
    (4) Claims for items used for both personal and job-related purposes 
may be deducted only by the prorated amount attributable to the job-
related use.
    (5) A job-connected expense may not be deducted from income from 
self-employment if the expense has already been deducted as a business 
expense.
    (6) It is the responsibility of the annuitant claiming job-connected 
expense to provide adequate documentation to substantiate the amount 
claimed. Adequate documentation will generally include the following 
information:
    (i) Written recommendation of a physician, vocational rehabilitation 
specialist, occupational health resource specialist, or other similar 
professional specialist that the retiree should use the transportation, 
services, or equipment;
    (ii) A description of the item and an explanation of its use by the 
annuitant in the performance of his or her occupation or business;
    (iii) A copy of the receipt of purchase, bill of sale, or leasing 
agreement for the item claimed with the date, duration of the agreement, 
and agreed upon price clearly specified;
    (iv) A complete supporting explanation of how the amount claimed for 
the job-connected expense has been calculated; and
    (v) An explanation of the circumstances and calculation of the 
prorated cost of the item if used for both personal and business use.
    (h) Return from investment allowance. A disability annuitant may 
reduce the net earnings from a self-employed business endeavor (adjusted 
for any interest paid on borrowed capital) by 6 percent of his or her 
capital investment in that business, owned or borrowed. The capital 
investment's value is its fair-market value as of December 31 of the 
year for which the income is being reported.

[[Page 153]]

    (i) Requirement to report income. All disability annuitants who, on 
December 31 of any calendar year, are under age 60 must report to OPM 
their income from wages or self-employment or both for that calendar 
year. Each year as early as possible, OPM will send a form to annuitants 
to use in reporting their income from the previous calendar year. The 
form specifies the date by which OPM must receive the report. OPM will 
determine entitlement to continued annuity on the basis of the report. 
If an annuitant fails to submit the report, OPM may stop annuity 
payments until it receives the report.



Sec. 831.1210  Annuity rights after a disability annuity terminates.

    (a) An individual is entitled to an immediate annuity when the 
disability annuity stops because of recovery or restoration to earning 
capacity if the individual is not reemployed in a position subject to 
civil service retirement coverage and--
    (1) Is at least age 50 when the disability annuity stops and had 20 
or more years of service at the time of retirement for disability; or
    (2) Had 25 or more years of service at the time of retirement for 
disability regardless of age.
    (b) An individual whose annuity stops because of recovery or 
restoration to earning capacity and who is not eligible for an immediate 
annuity under paragraph (a) of this section, is eligible for a deferred 
annuity upon reaching age 62.
    (c) The disability annuity of an individual whose annuity stopped 
because of recovery or restoration to earning capacity may be reinstated 
under Sec. 831.1212 of this part.



Sec. 831.1211  Reinstatement of disability annuity.

    (a) When a disability annuity stops, the individual must again prove 
that he or she meets the eligibility requirements in order to have the 
annuity reinstated.
    (b) When a recovered disability annuitant under age 62 whose annuity 
was terminated because he or she was found recovered on the basis of 
medical evidence (Sec. 831.1208(b)), is not reemployed in a position 
subject to civil service retirement coverage, and, based on the results 
of a current medical examination, OPM finds that the individual's 
medical condition has worsened since the finding of recovery and that 
the original disability on which retirement was based has recurred, OPM 
will reinstate the disability annuity. The right to the reinstated 
annuity begins with the date of the medical examination showing that the 
disability recurred.
    (c) OPM will reinstate the disability annuity of a recovered 
disability annuitant under age 62 whose annuity was terminated because 
he or she was found recovered on the basis of Federal reemployment 
(Sec. 831.1208(c)) when--
    (1) The results of a current medical examination show that the 
disabling medical condition that was the basis of the disability 
retirement continues to exist; and
    (2) Within 1 year after the date of reemployment, this medical 
condition has again caused the individual to be unable to provide useful 
and efficient service, and the employee has been--
    (i) Separated and not reemployed in a position subject to civil 
service retirement coverage; or
    (ii) Placed in a position that results in a reduction in grade or 
pay below the grade from which the individual retired, or in a change to 
a non-permanent position. The right to the reinstated annuity begins 
with the date of the medical examination showing that the disabling 
medical condition continues to exist, but not earlier than the first day 
after separation, or the effective date of the placement in the position 
which results in a reduction in grade or pay or change to a non-
permanent position.
    (d) When a recovered disability annuitant under age 62 whose annuity 
was terminated because he or she was found recovered on the basis of a 
voluntary request (Sec. 831.1208(e)), is not reemployed in a position 
subject to civil service retirement coverage, and, based on the results 
of a current medical examination, OPM finds that the disability has 
recurred, OPM will reinstate the disability annuity. The right to the 
reinstated annuity begins with the date of the medical examination 
showing that the disability recurred, but not earlier

[[Page 154]]

than 1 year before the date the request for reinstatement is received by 
OPM.
    (e) When a disability annuitant whose earning capacity has been 
restored but who is not reemployed in a position in which he or she is 
subject to civil service retirement coverage, and who (except in the 
case of a National Guard technician whose annuity was awarded under 5 
U.S.C. 8337(h)), has not recovered from the disability for which 
retired, loses his or her earning capacity, as determined by OPM, before 
reaching age 62, OPM will reinstate the disability annuity. The 
reinstated annuity is payable from January 1 of the year following the 
calendar year in which earning capacity was lost. Earning capacity is 
lost if, during any calendar year, the individual's income from wages or 
self-employment or both is less than 80 percent of the current rate of 
basic pay of the position held at retirement.
    (f) A reinstated annuity is the same type as the original annuity 
and is paid at the rate of annuity to which the annuitant was entitled 
on the date his or her disability annuity was last discontinued.
    (g) Reinstatement of the disability annuity ends the right to any 
other annuity based on the same service, unless the annuitant makes a 
written election to receive the other annuity instead of the disability 
annuity.
    (h) When OPM reinstates an employee's disability annuity, the agency 
must offset the employee's pay by the amount of annuity allocable to the 
period of employment, unless the annuitant is exempted from this 
requirement under the provisions of 5 U.S.C. 8344(i). The offset begins 
on the date of OPM's determination of eligibility for reinstatement. OPM 
must reduce any retroactive payment of annuity for a period of 
employment with an agency before that date by the amount of pay earned 
during that period.
    (i) When an individual's annuity is terminated upon reemployment 
(subject to subchapter III of chapter 83, title 5, United States Code), 
OPM must determine the individual's future annuity rights under the law 
in effect at the date of his or her subsequent separation. If, upon 
separation from such reemployment, the individual does not meet the 
eligibility requirements under subchapter III of chapter 83, title 5, 
United States Code, for title to annuity based on such separation, OPM 
will resume payment of the terminated annuity at the rate last payable, 
unless payment is otherwise barred.

[58 FR 12498, Sept. 4, 1968. Redesignated at 59 FR 27214, May 26, 1994]



Sec. 831.1212  Administrative review of OPM decisions.

    The right to administrative review of an initial decision of OPM is 
set forth in Sec. 831.109 of this part. The right to appeal a final 
decision of OPM to the Merit Systems Protection Board is set forth in 
Sec. 831.110 of this part.

[58 FR 12498, Sept. 4, 1968. Redesignated at 59 FR 27214, May 26, 1994]



                      Subpart M_Collection of Debts

    Source: 50 FR 34664, Aug. 27, 1985, unless otherwise noted.



Sec. 831.1301  Purpose.

    This subpart prescribes procedures to be followed by the Office of 
Personnel Management (OPM) , which are consistent with the Federal 
Claims Collection Standards (FCCS) (Chapter II of title 4, Code of 
Federal Regulations), in the collection of debts owed to the Civil 
Service Retirement and Disability Fund.



Sec. 831.1302  Scope.

    This subpart covers the collection of debts due the Civil Service 
Retirement and Disability Fund, with the exception of the collection of 
court-imposed judgments, amounts referred to the Department of Justice 
because of fraud, and amounts collected from back pay awards in 
accordance with Sec. 550.805(e)(2) of this chapter.



Sec. 831.1303  Definitions.

    In this subpart--
    Additional charges means interest, penalties, and/or administrative 
costs owed on a debt.
    Annuitant means a retired employee or Member of Congress, spouse, 
widower, or child receiving recurring benefits under the provisions of 
subchapter

[[Page 155]]

III, chapter 83, of title 5, United States Code.
    Compromise is an adjustment of the total amount of the debt to be 
collected based upon the considerations established by the FCCS (4 CFR 
part 103).
    Consumer reporting agency has the same meaning provided in 31 U.S.C. 
3701(a)(3).
    Debt means a payment of benefits to an individual in the absence of 
entitlement or in excess of the amount to which an individual is 
properly entitled.
    Delinquent has the same meaning provided in 4 CFR 101.2(b).
    FCCS means the Federal Claims Collection Standards (Chapter II of 
title 4, Code of Federal Regulations).
    Offset means to withhold the amount of a debt, or a portion of that 
amount, from one or more payments due the debtor. Offset also means the 
amount withheld in this manner.
    Reconsideration means the process of reexamining an individual's 
liability for a debt based on--
    (1) Proper application of law and regulation; and
    (2) Correctness of the mathematical computation.
    Repayment schedule means the amount of each payment and number of 
payments to be made to liquidate the debt as determined by OPM.
    Retirement fund means the Civil Service Retirement and Disability 
Fund.
    Voluntary repayment agreement means an alternative to offset that is 
agreed to by OPM and includes a repayment schedule.
    Waiver is a decision not to recover a debt under authority of 5 
U.S.C. 8346(b).



Sec. 831.1304  Processing.

    (a) Notice. Except as provided in Sec. 831.1305, OPM will, before 
starting collection, tell the debtor in writing--
    (1) The reason for and the amount of the debt;
    (2) The date on which the full payment is due;
    (3) OPM's policy on interest, penalties, and administrative charges;
    (4) If payment in full would create financial hardship to the debtor 
and offset is available, the types of payment(s) to be offset, the 
repayment schedule, the right to request an adjustment in the repayment 
schedule and the right to request a voluntary repayment agreement in 
lieu of offset;
    (5) The individual's right to inspect and/or receive a copy of the 
Government's records relating to the debt;
    (6) The method and time period (30 calendar days) for requesting 
reconsideration, waiver, and/or compromise and, in the case of offset, 
an adjustment to the repayment schedule;
    (7) The standards used by OPM for determining entitlement to waiver 
and compromise;
    (8) The right to a hearing by the Merit Systems Protection Board on 
a waiver request (if OPM's waiver decision finds the individual liable) 
in accordance with paragraph (c)(2) of this section; and
    (9) The fact that a timely filing of a request for reconsideration, 
waiver and/or compromise, or a later timely appeal of a waiver denial to 
the Merit Systems Protection Board, will stop collection proceedings, 
unless (i) failure to take the offset would substantially prejudice the 
Government's ability to collect the debt; and (ii) the time before the 
payment is to be made does not reasonably permit the completion of these 
procedures.
    (b) Requests for reconsideration, waiver, and/or compromise. (1) If 
a request for reconsideration, waiver and/or compromise is returned to 
us by mail, it must be postmarked within 30 calendar days of the date of 
the notice detailed in paragraph (a) of this section. If a request for 
reconsideration, waiver, and/or compromise is hand delivered, it must be 
received within 30 calendar days of the date of the notice detailed in 
paragraph (a) of this section. OPM may extend the 30 day time limit for 
filing when individuals can prove that they: (i) Were not notified of 
the time limit and were not otherwise aware of it; or (ii) were 
prevented by circumstances beyond their control from making the request 
within the time limit.
    (2) When a request for reconsideration, waiver, and/or compromise 
covered by this paragraph is properly filed before the death of the 
debtor, it will be processed to completion unless the

[[Page 156]]

relief sought is nullified by the debtor's death.
    (3) Individuals requesting reconsideration, waiver, and/or 
compromise will be given a full opportunity to present any pertinent 
information and documentation supporting their position.
    (4) An individual's request for waiver will be evaluated on the 
basis of the standards set forth in subpart N of this part. An 
individual's request for compromise will be evaluated on the basis of 
standards set forth in the FCCS (4 CFR part 103).
    (c) Reconsideration, waiver, and/or compromise decisions. (1) OPM's 
decision will be based upon the individual's written submissions, 
evidence of record, and other pertinent available information.
    (2) After consideration of all pertinent information, a written 
decision will be issued. The decision will state the extent of the 
individual's liability, and, for waiver and compromise requests, whether 
the debt will be waived or compromised. If the individual is determined 
to be liable for all or a portion of the debt, the decision will 
reaffirm or modify the conditions for the collection previously proposed 
under paragraph (a) of this section. The decision will state the 
individual's right to appeal to the Merit Systems Protection Board as 
provided by Sec. 1201.3 of this title, and, in the case of a denial of 
waiver, that a timely appeal will stop collection of the debt.



Sec. 831.1305  Collection of debts.

    (a) Means of collection. Collection of a debt may be made by means 
of offset under Sec. 831.1306, or under any statutory provision 
providing for offset of money due the debtor from the Federal 
Government, or by referral to the Justice Department for litigation, as 
provided in Sec. 831.1306. Referral may also be made to a collection 
agency under the provisions of the FCCS.
    (b) Additional charges. Interest, penalties, and administrative 
costs will be assessed on the debt in accordance with standards 
established in the FCCS at 4 CFR 102.13. Additional charges will be 
waived when required by the FCCS. In addition, such charges may be 
waived when OPM determines--
    (1) Collection would be against equity and good conscience under the 
standards prescribed in Sec. Sec. 831.1403 through 831.1405 of this 
part; or
    (2) Waiver would be in the best interest of the United States.
    (c) Collection in installments. Whenever feasible, debts will be 
collected in one lump sum. However, when the debtor is financially 
unable to pay in one lump sum of fails to respond to a demand for full 
payment and off-set is available, installment payments may be effected. 
The amount of the installment payments will be set in accordance with 
the criteria in 4 CFR 102.11.
    (d) Commencement of collection. (1) Except as provided in paragraph 
(d)(2) of this section, collection will begin after the time limits for 
requesting further rights stated in Sec. 831.1304(a)(6) expire or OPM 
has issued decisions on all timely requests for those rights and the 
Merit Systems Protection Board has acted on any timely appeal of a 
waiver denial, unless: (i) Failure to make an offset would substantially 
prejudice the Government's ability to collect the debt; and (ii) the 
time before the payment is to be made does not reasonably permit the 
completion of the proceedings in Sec. 831.1304 or litigation. When 
offset begins without completion of the administrative review process, 
these procedures will be completed promptly, and amounts recovered by 
offset but later found not owed will be refunded promptly.
    (2) The procedures identified in Sec. 831.1304 will not be applied 
when the debt is caused by (i) a retroactive adjustment in the periodic 
rate of annuity or any deduction taken from annuity when the adjustment 
is a result of the annuitant's election of different entitlements under 
law, if the adjustment is made within 120 days of the effective date of 
the election; or (ii) interim, estimated payments made before the formal 
determination of entitlement to annuity, if the amount is recouped from 
the total annuity payable on the first day of the month following the 
last advance payment or the date the formal determination is made, 
whichever is later.

[[Page 157]]



Sec. 831.1306  Collection by administrative offset.

    (a) Offset from retirement payments. A debt may be collected in 
whole or in part from lump-sum retirement payment or recurring annuity 
payments.
    (b) Offset from other payments--(1) Administrative offset. (i) A 
debt may be offset from other payments due the debtor from other 
agencies in accordance with 4 CFR 102.3, except that offset from back 
pay awarded under the provisions of 5 U.S.C. 5596 (and 5 CFR 550.801 et 
seq.) will be made in accordance with Sec. 550.805(e)(2) of this 
chapter.
    (ii) In determining whether to collect claims by means of 
administrative offset after the expiration of the six year limitation 
provided in 5 U.S.C. 2415, the Director or his designee will determine 
the cost effectiveness of leaving a claim unresolved for more than 6 
years. This decision will be based on such factors as the amount of the 
debt; the cost of collection; and the likelihood of recovering the debt.
    (2) Salary offset. When the debtor is an employee, or a member of 
the Armed Forces or a reserve component of the Armed Forces, OPM may 
effect collection action by offset of the debtor's pay in accordance 
with 5 U.S.C. 5514 and 5 CFR 550.1101 et seq. Due process described in 
Sec. 831.1304 will apply. The questions of fact and liability, and 
entitlements to waiver or compromise determined through that process are 
deemed correct and will not be amended under salary offset procedures. 
When the debtor did not receive a hearing on the amount of the offset 
under Sec. 831.1304 and requests such hearing, one will be conducted in 
accordance with subpart K of part 550 of this chapter.



Sec. 831.1307  Use of consumer reporting agencies.

    (a) Notice. If a debtor's response to the notice described in Sec. 
831.1304(a) does not result in payment in full, payment by offset, or 
payment in accordance with a voluntary repayment agreement or other 
repayment schedule acceptable to OPM, and the debtor's rights under 
Sec. 831.1304 have been exhausted, OPM may report the debtor to a 
consumer reporting agency. In addition, a debtor's failure to make 
subsequent payments in accordance with a repayment schedule may result 
in a report to a consumer reporting agency. Before making a report to a 
consumer reporting agency, OPM will notify the debtor in writing that--
    (1) The payment is overdue;
    (2) OPM intends, after 60 days, to make a report as described in 
paragraph (b) of this section to a consumer reporting agency;
    (3) The debtor's right to dispute the liability has been exhausted 
under Sec. 831.1304; and
    (4) The debtor may suspend OPM action on referral by paying the debt 
in one lump sum or making payments current under a repayment schedule.
    (b) Report. When a debtor's response to the notice described in 
paragraph (a) of this section fails to comply with paragraph (a)(4) of 
this section and 60 days have elapsed since the notice was mailed, OPM 
may report to a consumer reporting agency that an individual is 
responsible for an unpaid debt and provide the following information:
    (1) The individual's name, address, taxpayer identification number, 
and any other information necessary to establish the identity of the 
individual;
    (2) The amount, status, and history of the debt; and
    (3) The fact that the debt arose in connection with the 
administration of the Civil Service Retirement System.
    (c) Subsequent reports. OPM will update its report to the consumer 
reporting agency whenever it has knowledge of events that substantially 
change the status or the amount of the liability.



Sec. 831.1308  Referral to a collection agency.

    (a) OPM may refer certain debts to commercial collection agencies 
under the following conditions:
    (1) All processing required by Sec. 831.1304 has been completed 
before the debt is released.
    (2) A contract for collection services has been negotiated.
    (3) OPM retains the responsibility for resolving disputes, 
compromising claims, referring the debt for litigation, or suspending or 
terminating collection action.

[[Page 158]]



Sec. 831.1309  Referral for litigation.

    From time to time and in a manner consistent with the General 
Accounting Office's and the Justice Department's instructions, OPM will 
refer certain overpayments to the Justice Department for litigation. 
Referral for litigation will suspend processing under this subpart.



             Subpart N_Standards for Waiver of Overpayments

    Source: 45 FR 23635, Apr. 8, 1980, unless otherwise noted.



Sec. 831.1401  Conditions for waiver.

    Recovery of an overpayment from the Civil Service Retirement and 
Disability Fund may be waived pursuant to section 8346(b), of title 5, 
United States Code, when the annuitant (a) is without fault and (b) 
recovery would be against equity and good conscience. Where it has been 
determined that the recipient of an overpayment is ineligible for 
waiver, the individual is nevertheless entitled to an adjustment in the 
recovery schedule if he/she shows that it would cause him/her financial 
hardship to make payment at the rate scheduled.



Sec. 831.1402  Fault.

    A recipient of an overpayment is without fault if he/she performed 
no act of commission or omission which resulted in the overpayment. The 
fact that the Office of Personnel Management may have been at fault in 
initiating an overpayment will not necessarily relieve the individual 
from liability.
    (a) Considerations. Pertinent considerations in finding fault are--
    (1) Whether payment resulted from the individual's incorrect but not 
necessarily fraudulent statement, which he/she should have known to be 
incorrect;
    (2) Whether payment resulted from the individual's failure to 
disclose material facts in his/her possession which he/she should have 
known to be material; or
    (3) Whether he/she accepted a payment which he/she knew or should 
have known to be erroneous.
    (b) Mitigation factors. The individual's age, physical and mental 
condition or the nature of the information supplied to him/her by OPM or 
a Federal agency may mitigate against finding fault if one or more 
contributed to his/her submission of an incorrect statement, a statement 
which did not disclose material facts in his/her possession, or his/her 
acceptance of an erroneous overpayment.



Sec. 831.1403  Equity and good conscience.

    (a) Defined. Recovery is against equity and good conscience when--
    (1) It would cause financial hardship to the person from whom it is 
sought;
    (2) The recipient of the overpayment can show (regardless of his or 
her financial circumstances) that due to the notice that such payment 
would be made or because of the incorrect payment either he/she has 
relinquished a valuable right or changed positions for the worse; or
    (3) Recovery could be unconscionable under the circumstances.



Sec. 831.1404  Financial hardship.

    Financial hardship may be deemed to exist in--but not limited to--
those situations where the annuitant from whom collection is sought 
needs substantially all of his/her current income and liquid assets to 
meet current ordinary and necessary living expenses and liabilities.
    (a) Considerations. Some pertinent considerations in determining 
whether recovery would cause financial hardship are as follows:
    (1) The individual's financial ability to pay at the time collection 
is scheduled to be made.
    (2) Income to other family member(s), if such member's ordinary and 
necessary living expenses are included in expenses reported by the 
annuitant.
    (b) Exemptions. Assets exempt from execution under State law should 
not be considered in determining an individual's ability to repay the 
indebtedness, rather primary emphasis shall be placed upon the 
annuitant's liquid assets and current income in making such 
determinations.

[[Page 159]]



Sec. 831.1405  Ordinary and necessary living expenses.

    An individual's ordinary and necessary living expenses include rent, 
mortgage payments, utilities, maintenance, food, clothing, insurance 
(life, health and accident), taxes, installment payments, medical 
expenses, support expenses when the annuitant is legally responsible, 
and other miscellaneous expenses which the individual can establish as 
being ordinary and necessary.



Sec. 831.1406  Waiver precluded.

    (a) When not granted. Waiver of an overpayment cannot be granted 
when--
    (1) The overpayment was obtained by fraud; or
    (2) The overpayment was made to an estate.



Sec. 831.1407  Burdens of proof.

    (a) Burden of OPM. The Associate Director for Compensation must 
establish by the preponderance of the evidence that an overpayment 
occurred.
    (b) Burden of annuitant. The recipient of an overpayment must 
establish by substantial evidence that he/she is eligible for waiver or 
an adjustment.



            Subpart O_Allotments From Civil Service Annuities

    Source: 42 FR 52373, Sept. 30, 1977; 42 FR 61240, Dec. 2, 1977, 
unless otherwise noted.



Sec. 831.1501  Definitions.

    (a) Allotment means a specified deduction from the annuity payments 
due an annuitant voluntarily authorized by the annuitant to be paid to 
an allottee.
    (b) Allottee means the institution or organization to which the 
allotment is paid.
    (c) Allotter means the annuitant from whose annuity payments an 
allotment is deducted.
    (d) Annuity Payments means the net monthly annuity payment due an 
annuitant after all authorized deductions (such as those for health 
benefits, Federal income tax, overpayment of annuity, payment of a 
government claim, etc. have been made.



Sec. 831.1511  Authorized allottees.

    (a) An annuitant may make an allotment to the national office or 
headquarters of any of the following organizations:
    (1) A labor organization recognized under Executive Order 11491, as 
amended;
    (2) An employee organization recognized under 5 U.S.C. 8901(8);
    (3) Other lawful organizations which:
    (i) Are national in scope,
    (ii) Are nonprofit and noncommercial, existing primarily for the 
purpose of representing employee or annuitant interests in their 
dealings with employing agencies or OPM,
    (iii) Consist primarily of Federal employees and/or annuitants, and
    (iv) Existed as of December 23, 1975.
    (b) OPM, in its sole discretion, may approve the individual 
organizations which may receive allotments only after the organization 
has collected, in accordance with procedures prescribed by OPM, a 
minimum of two thousand (2,000) allotment authorizations from civil 
service annuitants.
    (c) OPM shall permit an annuitant to make an allotment to an 
organization only when:
    (1) The organization has been approved as an allottee by OPM, and
    (2) The organization has agreed in writing to solicit and process 
allotments in accordance with requirements prescribed by OPM.



Sec. 831.1521  Limitations.

    (a) The amount of any allotment may not be less than one dollar ($1) 
and, in the absence of compelling circumstances, shall be in whole 
dollars.
    (b) The total amount of any allotment(s) may not exceed the net 
monthly annuity due the allotter.
    (c) An annuitant may make only one allotment payable to the same 
allottee at the same time and may make no more than a total of two 
allotments.
    (d) Payment of an allotment shall be discontinued when the 
allotter's annuity payments are terminated or suspended by OPM.
    (e) Allotments shall be disbursed on one of the regularly designated 
paydays of the allotter in accordance with OPM's agreement with the 
allottee.

[[Page 160]]

    (f) Allotters shall agree that OPM shall be held harmless for any 
authorized allotment request made by an allottee in accordance with the 
allottee's agreement with OPM.
    (g) Allotters shall agree that disputes regarding any authorized 
allotment shall be a matter between the allotter and the allottee.
    (h) The total number of allottees shall be limited to twenty (20), 
with first preference given to those organizations participating in the 
Federal Employees Health Benefits Program. Thereafter, preference shall 
be based on the date of application and the number of annuitants who 
have completed allotment authorizations.
    (i) OPM, in its discretion, shall recover from the allottee, the 
incremental costs of making allotments.
    (j) OPM, in its sole discretion, may terminate an allottee's 
participation in the allotment program described by this subpart at any 
time in accordance with its agreement with the allottee.

Subparts P-Q [Reserved]



 Subpart R_Agency Requests to OPM for Recovery of a Debt from the Civil 
                 Service Retirement and Disability Fund

    Source: 51 FR 45443, Dec. 19, 1986, unless otherwise noted.



Sec. 831.1801  Purpose.

    This subpart prescribes the procedures to be followed by a Federal 
agency when it requests the Office of Personnel Management (OPM) to 
recover a debt owed to the United States by administrative offset 
against money due and payable to the debtor from the Civil Service 
Retirement and Disability Fund (the Fund). This subpart also prescribes 
the procedures that OPM must follow to make these administrative 
offsets.



Sec. 831.1802  Scope.

    This subpart applies to agencies, employees, and Members, as defined 
by Sec. 831.1803.



Sec. 831.1803  Definitions.

    For purposes of this subpart, terms are defined as follows--
    Act means the Federal Claims Collection Act of 1966 as amended by 
the Debt Collection Act of 1982 and implemented by 4 CFR 101.1 et seq., 
the Federal Claims Collection Standards (FCCS).
    Administrative offset means withholding money payable from the Fund 
to satisfy a debt to the United States under 31 U.S.C. 3716.
    Agency means (a) an Executive agency as defined in section 105 of 
title 5, United States Code, including the U.S. Postal Service and the 
U.S. Postal Rate Commission; (b) a military department, as defined in 
section 102 of title 5, United States Code; (c) an agency or court in 
the judicial branch, including a court as defined in section 610 of 
title 28, United States Code, the District Court for the Northern 
Mariana Islands, and the Judicial Panel on Multidistrict Litigation; (d) 
an agency of the legislative branch, including the U.S. Senate and the 
U.S. House of Representatives; and (e) other independent establishments 
that are entities of the Federal Government.
    Annuitant has the same meaning as in section 8331(9) of title 5, 
United States Code.
    Annuity means the monthly benefit payable to an annuitant or 
survivor annuitant.
    Compromise has the same meaning as in 4 CFR part 103.
    Consent means the debtor has agreed in writing to administrative 
offset after receiving notice of all rights under 31 U.S.C. 3716 and 
this subpart.
    Creditor agency means the agency to which the debt is owed.
    Debt means an amount owed to the United States on account of loans 
insured or guaranteed by the United States, and other amounts due the 
United States from fees, duties, leases, rents, royalties, services, 
sales of real or personal property, overpayments, fines, penalties, 
damages, interests, taxes, forfeitures, etc.
    Debt claim means an agency request for recovery of a debt in a form 
approved by OPM.
    Debtor means a person who owes a debt, including an employee, former

[[Page 161]]

employee, Member, former Member, or the survivor of one of these 
individuals.
    Employee has the same meaning as in section 8331(1) of title 5, 
United States Code, and includes reemployed annuitants and employees of 
the U.S. Postal Service.
    Fraud claim means any debt designated by the Attorney General (or 
designee) as involving an indication of fraud, the presentation of a 
false claim, or misrepresentation on the part of the debtor or any other 
party having an interest in the claim.
    Fund means the Civil Service Retirement and Disability Fund 
established under 5 U.S.C. 8348.
    Lump-sum credit has the same meaning as in section 8331(8) of title 
5, United States Code.
    Member has the same meaning as in section 8331(2) of title 5, United 
States Code.
    Net annuity means annuity after excluding amounts required by law to 
be deducted. For example, Federal income tax is excluded up to the 
maximum amount that the individual is entitled to for all dependents. 
Other examples of exclusions are group health insurance premiums 
(including amounts deducted for Medicare) and group life insurance 
premiums.
    Paying agency means the agency that employs the debtor and 
authorizes the disbursement of his or her current pay account.
    Refund means the payment of a lump-sum credit to an individual who 
meets all requirements for payment and files application for it.



Sec. 831.1804  Conditions for requesting an offset.

    An agency may request that money payable from the Fund be offset to 
recover any valid debt due the United States when all of the following 
conditions are met:
    (a) The debtor failed to pay all of the debt on demand, or the 
creditor agency has collected as much as possible from payments due the 
debtor from the paying agency; and
    (b) The creditor agency sends a debt claim to OPM (under Sec. 
831.1805(b) (1), (2), (3), or (4), as appropriate) after doing one of 
the following:
    (1) Obtaining a court judgment for the amount of the debt;
    (2) Following the procedures required by 31 U.S.C. 3716 and 4 CFR 
102.4;
    (3) Following the procedures required by 5 U.S.C. 5514 and Sec. 
550.1107 of this title; or
    (4) Following the procedures agreed upon by the creditor agency and 
OPM, if it is excepted by Sec. 831.1805(b)(4) from the completion of 
procedures prescribed by Sec. 831.1805(b)(3).



Sec. 831.1805  Creditor agency processing for non-fraud claims.

    (a) Where to submit the debt claim, judgment or notice of debt--(1) 
Creditor agencies that are not the debtor's paying agency. (i) If the 
creditor agency knows that the debtor is employed by the Federal 
Government, it should send the debt claim to the debtor's paying agency 
for collection.
    (ii) If some of the debt is unpaid after the debtor separates from 
the paying agency, the creditor agency should send the debt claim to OPM 
as described in paragraph (b) of this section.
    (2) Creditor agencies that are the debtor's paying agency. 
Ordinarily, debts owed the paying agency should be offset under 31 
U.S.C. 3716 from any final payments (salary, accrued annual leave, etc.) 
due the debtor. If a balance is due after offsetting the final payments 
or the debt is discovered after the debtor has been paid, the paying 
agency may send the debt claim to OPM as described in paragraph (b) of 
this section.
    (b) Procedures for submitting a debt claim, judgment or notice of 
debt to OPM--(1) Debt claims for which the agency has a court judgment. 
If the creditor agency has a court judgment against the debtor 
specifying the amount of the debt to be recovered, the agency should 
send the debt claim and two certified copies of the judgment to OPM.
    (2) Debt claims previously processed under 5 U.S.C. 5514. If the 
creditor agency previously processed the debt claim under section 5514, 
it should--
    (i) Notify the debtor that the claim is being sent to OPM to 
complete collection from the Fund; and
    (ii) Send the debt claim (on SF 2805) to OPM with two copies of the 
paying agency's certification of the amount

[[Page 162]]

collected and one copy of the notice to the debtor that the claim was 
sent to OPM.
    (3) Debt claims not processed under 5 U.S.C. 5514, reduced to court 
judgment, or excepted by paragraph (b)(4) of this section. (i) If the 
debt claim was not processed under Sec. 5514, reduced to court judgment 
or excepted by paragraph (b)(4) of this section, the creditor agency 
must--
    (A) Comply with the procedures required by 4 CFR 102.4--issuing 
written notice to the debtor of the nature and amount of the debt, the 
agency's intention to collect by offset, the opportunity to inspect and 
copy agency records pertaining to the debt, the opportunity to obtain 
review within the agency of the determination of indebtedness, and the 
opportunity to enter into a written agreement with the agency to repay 
the debt; and
    (B) Complete the appropriate debt claim.
    (ii) If the debtor does not respond to the creditor agency's notice 
within the allotted time and there is no reason to believe that he or 
she did not receive the notice, the creditor agency may submit the debt 
claim to OPM after certifying that notice was issued and the debtor 
failed to reply.
    (iii) If the debtor responds to the notice by requesting a review 
(or hearing if one is available), the review (or hearing) must be 
completed before the creditor agency submits the debt claim.
    (iv) If the debtor receives the notice and responds by consenting to 
the collection, the creditor agency must send a copy of the debtor's 
consent along with the debt claim.
    (4) Debt claims excepted from procedures described in paragraph 
(b)(3) of this section. Creditor agencies follow specific procedures 
approved by OPM, rather than those described in paragraph (b)(3) of this 
section, for the collection of--
    (i) Debts due because of the individual's failure to pay health 
benefits premiums while he or she was in nonpay status or while his or 
her salary was not sufficient to cover the cost of premiums;
    (ii) Unpaid Federal taxes to be collected by Internal Revenue 
Service levy;
    (iii) Premiums due because of the annuitant's election of Part B, 
Medicare coverage (retroactive collection limited to 6 months of 
premiums); or
    (iv) Overpaid military retired pay an annuitant elects in writing to 
have withheld from his or her annuity.
    (5) General certification requirements for debt claims. Creditor 
agencies submitting debt claims must certify--
    (i) That the debt is owed to the United States;
    (ii) The amount and reason for the debt and whether additional 
interest accrues;
    (iii) The date the Government's right to collect the debt first 
accrued;
    (iv) The agency has complied with the applicable statutes, 
regulations, and OPM procedures;
    (v) That if a competent administrative or judicial authority issues 
an order directing OPM to pay a debtor an amount previously paid to the 
agency (regardless of the reasons behind the order), the agency will 
reimburse OPM or pay the debtor directly within 15 days of the date of 
the order (NOTE: OPM may, at its discretion, decline to collect other 
debt claims sent by an agency that does not abide by this 
certification.);
    (vi) If the collection will be in installments, the amount or 
percentage of net annuity in each installment; and,
    (vii) If the debtor does not (in writing) consent to the offset, or 
does not (in writing) acknowledge receipt of the required notices and 
procedures, or the creditor agency does not document a judgment offset 
or a previous salary offset, the action(s) taken to comply with 4 CFR 
102.3, including any required hearing or review, and the date(s) the 
action(s) was taken.
    (6) Notice of debt. When a creditor agency cannot send a complete 
debt claim, it should notify OPM of the existence of the debt so the 
lump-sum will not be paid before the debt claim arrives.
    (i) The notice to OPM must include a statement that the debt is owed 
to the United States, the date the debt first accrued, and the basis for 
and amount of the debt, if known. If the amount of the debt is not 
known, the agency must establish the amount and notify OPM

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in writing as soon as possible after submitting the notice.
    (ii) The creditor agency may either notify OPM by making a notation 
in column 8 [Remarks] under ``Fiscal Record'' on the Standard Form 2806 
(Individual Retirement Record), if the SF 2806 is in its possession, or 
if not, by submitting a separate document identifying the debtor by 
name, giving his or her date of birth, social security number, and date 
of separation, if known.
    (c) Time limits for sending records and debt claims to OPM--(1) Time 
limits for submitting debt claims. Unless there is an application for 
refund pending, there is no specific time for submitting a debt claim or 
notice of debt to OPM. Generally, however, agencies must file a debt 
claim before the statute of limitations expires (4 CFR 102.4(c)) or 
before a refund is paid. Time limits are imposed (see Sec. 831.1806(a)) 
when the debtor is eligible for a refund and OPM receives his or her 
application requesting payment. In the latter situation, creditor 
agencies must file a complete debt claim within 120 days (or 180 days if 
the agency requests an extension of time before the refund is paid) of 
the date OPM requests a complete debt claim.
    (2) Time limit for submitting retirement records to OPM. A paying 
agency must send an individual's SF 2806 to OPM no later than 60 days 
after the separation, termination, or entrance on duty in a position in 
which the employee is not covered by the Civil Service Retirement 
System.



Sec. 831.1806  OPM processing for non-fraud claims.

    (a) Refunds--incomplete debt claims. (1) If a creditor agency sends 
OPM a notice of debt or an incomplete debt claim against a refund OPM is 
processing for payment, OPM will withhold the amount of the debt but 
will not make any payment to the creditor agency. OPM will notify the 
creditor agency that the procedures in this subpart and 4 CFR 102.4 must 
be completed; and a debt claim must be completed and returned to OPM 
within 120 days of the date of OPM's notice to the creditor agency. Upon 
request, OPM will grant the creditor agency one extension of up to 60 
days if the request for extension is received before the lump-sum 
payment has been made. The extension will commence on the day after the 
120-day period expires so that the total time OPM holds payment of the 
refund will not exceed 180 days.
    (2) During the period allotted the creditor agency for sending OPM a 
complete debt claim, OPM will handle the debtor's application for refund 
under section 8342(a) of title 5, United States Code, in one of two 
ways:
    (i) If the amount of the debt is known, OPM will notify the debtor 
of the debt claim against his or her lump-sum credit, withhold the 
amount of the debt, and pay the balance to the debtor, if any.
    (ii) If the amount of the debt is not known, OPM will not pay any 
amount to the debtor until the creditor agency certifies the amount of 
the debt, submits a complete debt claim, or the time limit for 
submission of the debt claim expires, whichever comes first.
    (b) Refunds--complete debt claims--(1) If OPM receives an 
application from the debtor prior to or at the same time as the agency's 
debt claim. (i) If a refund has been paid, we will notify the creditor 
agency there are no funds available for offset. Except in the case of 
debts due because of the employee's failure to pay health benefits 
premiums while he or she is in nonpay status or while his or her salary 
was not sufficient to cover the cost of premiums, creditor agencies 
should refer to the instructions in the FCCS for other measures to 
recover the outstanding debt; however, OPM will retain the SF 2805 on 
file in the event the debtor is once again employed in a position 
subject to retirement deductions.
    (ii) If a refund is payable, and the creditor agency submits a 
complete debt claim in accordance with Sec. 831.1805(b) (1), (2), (3), 
or (4), the debt will be collected from the refund and any balance paid 
to the debtor. OPM will send the debtor a copy of the debt claim, 
judgment, consent, or other document, and notify him or her that the 
creditor agency was paid.
    (2) If OPM has not received an application from the debtor when the 
agency's debt claim is received. If a debtor has not filed application 
for a refund, OPM will

[[Page 164]]

retain the debt claim for future recovery. OPM will make the collection 
whenever an application is received, provided the creditor agency 
initiated the administrative offset before the statute of limitations 
expired. (See 4 CFR 102.3(b)(3) and 102.4(c).) OPM will notify the 
creditor agency that it does not have an application from the debtor so 
that the agency may take other action to recover the debt. (Note: If the 
recovery action is successful, the creditor agency must notify OPM so it 
can void the debt claim).
    (3) Future recovery. (i) If OPM receives an application for refund 
within 1 year of the date the agency's debt claim was received and the 
creditor agency does not indicate that interest is accruing on the debt, 
the debt will be processed as stated in paragraph (b)(1)(ii) of this 
section.
    (ii) If OPM receives an application for refund within 1 year of the 
date the agency's debt claim was received and the creditor agency 
indicates that interest accrues on the debt, when necessary, OPM will 
contact the creditor agency to confirm that the debt is outstanding and 
request submission in writing, of the total additional accrued interest. 
OPM will not make interest computations for creditor agencies.
    (iii) When OPM receives an application for refund more than 1 year 
after the creditor agency's debt claim was received, whether interest 
accrues or not, OPM will contact the creditor agency to see if the debt 
is still outstanding and, when necessary, request an update of the 
interest charges. If the debt is still due, the creditor agency must 
give the debtor an opportunity to establish that his or her changed 
financial circumstances, if any, would make the offset unjust. (See 4 
CFR 102.4(c).) If the creditor agency determines that offset as 
requested in the debt claim would be unjust because of the debtor's 
changed financial circumstances, the agency should permit the debtor to 
offer a satisfactory repayment plan in lieu of offset. If the agency 
decides to pursue the offset, it must submit to OPM the requested 
information and any new instructions within 60 days of the date of OPM's 
request or the claim may be voided and the balance paid to the 
individual.
    (c) Annuities--incomplete debt claims. If a creditor agency sends 
OPM notice of a debt or an incomplete debt claim against a debtor who is 
receiving an annuity, OPM will not offset the annuity. OPM will notify 
the creditor agency that the procedures in this subpart and 4 CFR 102.4 
must be completed; and a debt claim must be completed and sent to OPM. 
No time limit will be given for the submission of a debt claim against 
an annuity; however, a complete debt claim must be received within 10 
years of the date the Government's right to collect first accrued (4 CFR 
102.3(b)(3)).
    (d) Annuities--complete debt claims--(1) General--(i) Notice. When 
OPM receives a complete debt claim and an application for annuity, OPM 
will offset the annuity, pay the creditor agency, and mail the debtor a 
copy of the debt claim along with notice of the payment to the creditor 
agency.
    (ii) Beginning deductions. If OPM has already established the 
debtor's annuity payment, deductions will begin with the next available 
annuity payment. If OPM is in the process of establishing the annuity 
payments, deductions will not be taken from advance annuity payments, 
but will begin with the annuity payable on the first day of the month 
following the last advance payment.
    (iii) Updating accrued interest. Once OPM has completed a 
collection, if there are additional accrued interest charges, the 
creditor agency must contact OPM regarding any additional amount due 
within 90 days of the date of the final payment.
    (2) Claims held for future recovery. (i) If OPM receives an 
application for annuity within 1 year of the date the agency's debt 
claim was received, the debt will be processed as stated in paragraph 
(d)(1) of this section.
    (ii) If OPM receives an application for annuity more than 1 year 
after the agency's debt claim was submitted, OPM will contact the 
creditor agency to see if the debt is still outstanding. If the debt is 
still due, the creditor agency should permit the debtor to offer a 
satisfactory repayment plan in lieu of offset if the debtor establishes 
that his or her changed financial circumstances would make the offset 
unjust. (See 4

[[Page 165]]

CFR 102.4(c).) If the agency decides to pursue the offset, it must 
submit the requested information and any new instructions about the 
collection to OPM.
    (3) Limitations on OPM review. In no case will OPM review--
    (1) The merits of a creditor agency's decision with regard to 
reconsideration, compromise, or waiver; or
    (2) The creditor agency's decision that a hearing was not required 
in any particular proceeding.



Sec. 831.1807  Installment withholdings.

    (a) When possible, OPM will collect a creditor agency's full claim 
in one payment from the debtor's refund or annuity.
    (b) If collection must be made from an annuity and the debt is 
large, the creditor agency must generally accept payment in 
installments. The responsibility for establishing and notifying the 
debtor of the amount of the installments belongs to the creditor agency 
(see Sec. 831.1805(b)(5)). However, OPM will not make an installment 
deduction for more than 50 percent of net annuity, unless a higher 
percentage is needed to satisfy a judgment against a debtor within 3 
years or the annuitant has consented to the higher amount in writing. 
All correspondence concerning installment deductions received by OPM 
will be referred to the creditor agency for consideration.



Sec. 831.1808  Special processing for fraud claims.

    When an agency sends a claim indicating fraud, presentation of a 
false claim, misrepresentation by the debtor or any other party 
interested in the claim, or any claim based in whole or part on conduct 
violating the antitrust laws, to the Department of Justice (Justice) for 
possible treatment as a fraud claim (4 CFR 101.3), the following special 
procedures apply.
    (a) Agency processing. If the debtor is separated or separates while 
Justice is reviewing the claim, the paying agency must send the SF 2806 
to OPM, as required by Sec. 831.1805(c)(2). The agency where the claim 
arose must send OPM notice that a claim is pending with Justice. (See 
Sec. 831.1805(b)(6) for instructions on giving OPM a notice of debt.)
    (b) Department of Justice processing. (1) The Attorney General or a 
designee will decide whether a debt claim sent in by an agency will be 
reserved for collection by Justice as a fraud claim. Upon receiving a 
possible fraud claim to be collected by offset from the Fund, the 
Attorney General or a designee must notify OPM. The notice to OPM must 
contain the following:
    (i) The name, date of birth, and social security number of the 
debtor;
    (ii) The amount of the possible fraud claim, if known;
    (iii) The basis of the possible fraud claim; and
    (iv) A statement that the claim is being considered as a possible 
fraud claim, the collection of which is reserved to Justice.
    (2) When there is a pending refund application, the Attorney General 
or designee must file a complaint seeking a judgment on the claim and 
send a copy of the complaint to OPM; or as provided in 4 CFR 101.3, 
refer the claim to the agency where the claim arose and submit a copy of 
the referral to OPM within 180 days of the date of either notice from 
the agency that a claim is pending with Justice (paragraph (a) of this 
section) or notice from Justice that it has received a possible fraud 
claim (paragraph (b)(1) of this section) whichever is earlier. When the 
claim is referred to the agency where it arose, the agency must begin 
administrative collection action under 4 CFR 102.4 and send a complete 
debt claim to OPM as required in Sec. 831.1805.
    (c) OPM processing against refunds. (1) Upon receipt of a notice 
under paragraph (a) or (b)(1) of this section, whichever is earlier, OPM 
will withhold the amount of the debt claim, if known; notify the debtor 
that the amount of the debt will be withheld from the refund for at 
least 180 days from the date of the notice that initiated OPM 
processing; and pay the balance to the debtor. If the amount of the debt 
claim is not known, OPM will notify the debtor that a debt claim may be 
offset against his or her refund and that OPM will not pay any amount 
until either the amount of the debt claim is established, or the time 
limit

[[Page 166]]

for filing a complaint in court or submitting the debt claim expires, 
whichever comes first.
    (2) If the Attorney General files a complaint and notifies OPM 
within the applicable 180-day period, OPM will continue to withhold 
payment of the lump-sum credit until there is a final judgment.
    (3) If the Attorney General refers the claim to the agency where the 
claim arose (creditor agency) and notifies OPM within the applicable 
180-day period, OPM will notify the creditor agency that the procedures 
in this subpart and 4 CFR 102.4 must be completed; and a debt claim must 
be sent to OPM within 120 days of the date of OPM's notice to the 
creditor agency. At the request of the creditor agency, one extension of 
time of not more than 60 days will be granted, as provided by Sec. 
831.1806(a).
    (4) If OPM is not notified that a complaint has been filed or that 
the claim has been referred to the creditor agency within the applicable 
180-day period, OPM will pay the balance of the refund to the debtor.
    (d) OPM processing against annuities. If the debtor has filed an 
annuity claim, OPM will not take action against the annuity. OPM will 
continue to pay the annuity unless and until there is a final judgment 
for the United States or submission of a complete debt claim.
    (e) OPM collection and payment of the debt. (1) If the United States 
obtains a judgment against the debtor for the amount of the debt or the 
creditor agency submits a complete debt claim, OPM will collect and pay 
the debt to the creditor agency as provided in Sec. Sec. 831.1806 and 
831.1807.
    (2) If the suit or the administrative proceeding results in a 
judgment for the debtor without establishing a debt to the United 
States, OPM will pay the balance of the refund to the debtor upon 
receipt of a certified copy of the judgment or administrative decision.



                 Subpart S_State Income Tax Withholding

    Source: 47 FR 50679, Nov. 9, 1982, unless otherwise noted.



Sec. 831.1901  Definitions.

    For the purpose of this subpart:
    Agreement means the Federal-State agreement contained in this 
subpart.
    Annuitant means an employee or Member retired, or a spouse, widow, 
or widower receiving survivor benefits, under the provisions of 
subchapter III, chapter 83 of title 5, United States Code.
    Effective date means, with respect to a request or revocation, that 
the request or revocation will be reflected in payments authorized after 
that date, and before the next request or revocation is implemented.
    Fund means the Civil Service Retirement and Disability Fund as 
established and described in section 8348 of title 5, United States 
Code.
    Income tax and State income tax mean any form of tax for which, 
under a State statute, (a) collection is provided, either in imposing on 
employers generally the duty of withholding sums from the compensation 
of employees and making returns of such sums to the State or by granting 
to employers generally the authority to withhold sums from the 
compensation of employees, if any employee voluntarily elects to make 
such sums withheld; and (b) the duty to withhold generally is imposed, 
or the authority to withhold generally is granted, with respect to the 
compensation of employees who are residents of the State.
    Net recurring payment means the amount of annuity or survivor 
benefits (not recurring interim payments made while a claim is pending 
adjudication) payable to the annuitant on a monthly basis less the 
amounts currently being deducted for health benefits, Medicare, life 
insurance, Federal income tax, overpayment of annuity, indebtedness to 
the Government, voluntary allotments, waivers, or being paid to a third 
party or a court officer in compliance with a court order or decree.
    Net withholding means the amount of State income tax deductions 
withheld during the previous calendar quarter as a result of requests 
which designated the State as payee, less similar deductions taken from 
prior payments which were cancelled in the previous calendar quarter. 
Proper State official means a State officer authorized to bind the

[[Page 167]]

State contractually in matters relating to tax administration.
    Received means, in respect to the magnetic tape containing requests 
and revocations, received at the special mailing address established by 
OPM for income tax requests, or, for those items not so received, 
received at the OPM data processing center charged with processing 
requests.
    Request means, in regard to a request for tax withholding, a change 
in the amount withheld, or revocation of a prior request, a written 
submission from an annuitant in a format acceptable to the State which 
provides the annuitant's name, Civil Service Retirement Claim number, 
Social Security identification number, address, the amount to be 
withheld and the State to which payment is to be made, which is signed 
by the annuitant or, in the case of incompetence, his or her 
representative payee.
    State means a State, the District of Columbia, or any territory or 
possession of the United States.



Sec. 831.1902  Federal-State agreements.

    OPM will enter into an agreement with any State within 120 days of 
an application for agreement from the proper State official. The terms 
of the standard agreement will be Sec. Sec. 831.1903 through 831.1906 
of this subpart. OPM and the State may agree to additional terms and 
provisions, insofar as those additional terms and provisions do not 
contradict or otherwise limit the terms of the standard agreement.



Sec. 831.1903  OPM responsibilities.

    OPM will, in performance of this agreement:
    (a) Process the magnetic tape containing State tax transactions 
against the annuity roll once a month at the time monthly recurring 
payments are prepared for the United States Treasury Department. Errors 
that are identified will not be processed into the file, and will be 
identified and returned to the State for resolution via the monthly 
error report. Collections of State income tax will continue in effect 
until the State requesting the initial action supplies either a valid 
revocation or change. The magnetic tape must be received 35 days prior 
to the date of the check in which the transactions are to be effective. 
For example, withholding transactions for the July 1 check must be 
received 5 days prior to June 1. If the magnetic tape submitted by the 
State cannot be read, OPM will notify the State of this fact, and if a 
satisfactory replacement can be supplied in time for monthly processing, 
it will be processed.
    (b) Deduct from the regular, recurring annuity payments of an 
annuitant the amount he or she has so requested to be withheld, provided 
that:
    (1) The amount of the request is an even dollar amount, not less 
than Five Dollars nor more than the net recurring amount. The State may 
set any even dollar amount above Five Dollars as a minimum withholding 
amount.
    (2) The annuitant has not designated more than one other State for 
withholding purposes within the calendar year. The State can set any 
limit on the number of changes an annuitant may make in the amount to be 
withheld.
    (c) Retain the amounts withheld in the Fund until payment is due.
    (d) Pay the net withholding to the State on the last day of the 
first month following each calendar quarter.
    (e) Make the following reports:
    (1) A monthly report which will include all the State tax 
withholdings, cancellations and adjustments for the month, and also each 
request OPM was not able to process, with an explanation, in coded 
format, of the reason for rejection.
    (2) A quarterly report which will include State, State address, 
quarterly withholdings, quarterly cancellations and adjustments, 
quarterly net withholdings and year-to-date amounts. Where cancelled or 
adjusted payments were made in a previous year, OPM shall append a 
listing of the cancelled or adjusted payments which shows the date and 
amount of each cancelled or adjusted tax withholding, and the name and 
Social Security identification number of the annuitant from whom it was 
withheld. If either party terminates the agreement and the amount of 
cancelled or adjusted deductions exceeds the amount withheld for the 
final quarter, then the quarterly report shall show the amount to

[[Page 168]]

be refunded to OPM and the address to which payment should be made.
    (3) An annual summary report which contains the name, Social 
Security identification number, and total amount withheld from non-
cancelled payments during the previous calendar year, for each annuitant 
who requested tax withholding payable to the State. In the event the 
annuitant had State income tax withholding in effect for more than one 
State in that calendar year, the report will show only the amount 
withheld for the State receiving the report.
    (4) An annual report to each annuitant for whom State income taxes 
were withheld giving the amount of withholding paid to the State during 
the calendar year.



Sec. 831.1904  State responsibilities.

    The State will, in performance of this agreement:
    (a) Accept requests and revocations from annuitants who have 
designated that State income tax deductions will go to the State.
    (b) Convert these requests on a monthly basis to a machine-readable 
magnetic tape using specifications received from OPM, and forward that 
tape to OPM for processing.
    (c) Inform annuitants whose tax requests are rejected by OPM that 
the request was so rejected and of the reason why it was so rejected.
    (d) Recognize that, to the extent not prohibited by State laws, 
records maintained by the State relating to this program are considered 
jointly maintained by OPM and are subject to the Privacy Act of 1974 (5 
U.S.C. 552a). Accordingly, the States will maintain such records in 
accordance with that statute and OPM's implementing regulations at 5 CFR 
part 297.
    (e) Respond to requests of annuitants for information and advice in 
regard to State income tax withholding.
    (f) Credit the amounts withheld from civil service annuities to the 
State tax liability of the respective annuitants, and, subject to 
applicable provisions of State law to the contrary, refund any balance 
over and above that liability to the annuitant, unless he or she should 
request otherwise.
    (g) Surrender all tax withholding requests to OPM when this 
agreement is terminated or when the documents are not otherwise needed 
for this State tax withholding program.
    (h) Allow OPM, the Comptroller General or any of their duly 
authorized representatives access to, and the right to examine, all 
records, books, papers or documents related to the processing of 
requests for State income tax withholding from civil service annuities.



Sec. 831.1905  Additional provisions.

    These additional provisions are also binding on the State and OPM:
    (a) A request or revocation is effective when processed by OPM. OPM 
will process each request by the first day of the second month following 
the month in which it is received, but incurs no liability or 
indebtedness by its failure to do so.
    (b) Any amount deducted from an annuity payment and paid to the 
State as a result of a request is deemed properly paid, unless the 
annuity payment itself is cancelled.
    (c) OPM will provide the State with the information necessary to 
properly process a request for State income tax withholding.
    (d) If the State is paid withholding which is contrary to the terms 
of the annuitant's request, the State is liable to the annuitant for the 
amount improperly withheld, and subject to account verification from 
OPM, agrees to pay that amount to the annuitant on demand.
    (e) In the case of a disputed amount in any of the reports described 
and authorized by this agreement, the Associate Director for 
Compensation of OPM will issue an accounting. If the State finds this 
accounting unacceptable, it may then and only then pursue such remedies 
as are otherwise available.
    (f) If a State receives an overpayment of monies properly belonging 
to the Fund, OPM will offset the overpayment from a future payment due 
the State. If there are no further payments due the State, OPM will 
inform the State in writing of the amount due. Within 60 days of the 
date of receipt of that communication the State will make payment of the 
amount due.

[[Page 169]]



Sec. 831.1906  Agreement modification and termination.

    This agreement may be modified or terminated in the following 
manner:
    (a) Either party may suggest a modification of non-regulatory 
provisions of the agreement in writing to the other party. The other 
party must accept or reject the modification within 60 calendar days of 
the date of the suggestion.
    (b) The agreement may be terminated by either party on 60 calendar 
days written notice.
    (c) OPM may modify this agreement unilaterally through the rule 
making process described in sections 553, 1103, 1105 of title 5, United 
States Code.



                     Subpart T_Payment of Lump Sums

    Source: 50 FR 20081, May 13, 1985, unless otherwise noted.



Sec. 831.2001  Definitions.

    Court order or decree means the order or decree of any court of any 
State, the District of Columbia, the Commonwealth of Puerto Rico, Guam, 
the Northern Mariana Islands, the Virgin Islands or any Indian court, as 
defined section 8331(24) of title 5, United States Code.
    Current spouse means a person who is married to the employee or 
Member at the time the application for refund is filed.
    Duly appointed representative of the deceased employee's, separated 
employee's, retiree's, survivor's or Member's estate means an individual 
named in an order of a court having jurisdiction over the estate of the 
deceased which grants the individual the authority to receive, or the 
right to possess, the property of the deceased; and also means, where 
the law of the domicile of the deceased has provided for the 
administration of estates through alternative procedures which dispense 
with the need for a court order, an individual who demonstrates that he 
or she is entitled to receive, or possess, the property of the deceased 
under the terms of those alternative procedures.
    Former spouse means a living person who was married for at least 9 
months to an employee or Member who had performed at least 18 months of 
creditable service in a position covered by the retirement system.
    Retirement system means the civil service retirement system as 
described in subchapter III of chapter 83 of title 5, United States 
Code.

[50 FR 20081, May 13, 1985, as amended at 57 FR 29784, July 7, 1992]



Sec. 831.2002  Eligibility for lump-sum payment upon filing an 
Application for Refund of Retirement Deductions (SF 2802).

    Except as provided in Sec. Sec. 831.2007 through 2009 or in section 
3716 of title 31, United States Code, on administrative offset for 
government claims, a former employee or Member who has been separated 
from a covered position for at least 31 days at the time of filing an 
application for refund and who is ineligible for an annuity commencing 
within 31 days after the date of filing an application for refund is 
eligible for a refund for the total lump-sum credit to his or her credit 
in the Retirement Fund.



Sec. 831.2003  Eligibility for lump-sum payment upon death or retirement.

    (a) If there is no survivor who is entitled to monthly survivor 
annuity benefits on the death of a former employee, Member, annuitant, 
or survivor annuitant, the total lump-sum credit to the former 
employee's or Member's credit in the Retirement Fund is payable, except 
as provided in section 3716 of title 31, United States Code, on 
administrative offset for government claims, to the person(s) entitled 
in the normal order of precedence described in section 8342(c) of title 
5, United States Code. If a deceased employee, separated employee, 
retiree or Member provided in a valid designation of beneficiary that 
the lump sum proceeds shall be payable to the deceased's estate, or to 
the Executor, Administrator, or other representative of the deceased's 
estate, or if the proceeds would otherwise be properly payable to the 
duly appointed representative of the deceased's estate under the order 
of precedence specified in 5 U.S.C. 8342(c), payment of the proceeds to 
the duly appointed representative of the deceased's estate will bar 
recovery by any other person.

[[Page 170]]

    (b) If an annuity is payable, the former employee, Member or the 
person entitled in the order of precedence described in section 8342(c) 
of title 5, United States Code, may be paid, except as provided in 
section 3716 of title 31, United States Code, administrative offset for 
government claims, lump-sum payment of--
    (1) Retirement deductions withheld from the employee's or Member's 
pay after he or she became eligible for the maximum annuity, if the 
employee or Member does not elect to treat those deductions as voluntary 
contributions toward the purchase of an additional annuity; and
    (2) Retirement deductions withheld from the employee's or Member's 
pay during his or her final period of service if the employee or Member 
was not subject to the retirement system for at least one of the last 2 
years before final separation from service and if the service covered by 
the deductions is not used for title to annuity; and
    (3) Except as provided in paragraph (d) of this section, partial 
redeposits of refunds previously paid; and
    (4) Partial deposits for civilian service performed on and after 
October 1, 1982; and
    (5) Partial deposits for post-1956 military service; and
    (6) Annuity accrued and unpaid.
    (c) A former employee, Member, or survivor who is eligible for an 
annuity may not be paid a lump-sum payment of--
    (1) Partial or completed deposits for nondeduction civilian service 
performed before October 1, 1982, unless the service covered by the 
deposit is not creditable under the retirement system; or
    (2) Completed deposits for nondeduction civilian service performed 
on and after October 1, 1982, unless the service covered by the deposit 
is not creditable under the retirement system; or
    (3) Completed deposits for post-1956 military services, unless the 
service covered by the deposit is not creditable under the retirement 
system.


Payments of the partial or completed deposits mentioned in this 
paragraph are subject to 31 U.S.C. 3716 (administrative offset for 
government claims).
    (d) A former employee or Member who is eligible for a nondisability 
annuity may not be paid a lump-sum payment of a partial redeposit for 
refunded deductions relating to a period of service that ended before 
October 1, 1990.

[50 FR 20081, May 13, 1985, as amended at 56 FR 6550, Feb. 19, 1991; 57 
FR 29784, July 7, 1992]



Sec. 831.2004  Amount of lump-sums.

    If applicable, the amount of a refund will include interest computed 
as described in Sec. 831.105(b).



Sec. 831.2005  Designation of beneficiary for lump-sum payment.

    (a) The Designation of Beneficiary must be in writing, signed, and 
witnessed,and received in OPM before the death of the designator.
    (b) No change or cancellation of beneficiary in a last will or 
testament, or in any other document not witnessed and filed as required 
by this section, has any force or effect.
    (c) A witness to a Designation of Beneficiary is ineligible to 
receive payment as a beneficiary.
    (d) Any person, firm, corporation, or legal entity may be named as 
beneficiary.
    (e) A change of beneficiary may be made at any time and without the 
knowledge or consent of the previous beneficiary, and this right cannot 
be waived or restricted.



Sec. 831.2006  Designation of agent by next of kin.

    When a deceased employee, Member, or annuitant has not named a 
beneficiary and one of the next of kin entitled makes a claim for lump-
sum benefit, other next of kin entitled to share in the lump-sum benefit 
may designate the one who made the claim to act as their agent to 
receive their distributive shares.



Sec. 831.2007  Notification of current and/or former spouse before 
payment of lump sum.

    (a) Payment of the lump-sum credit based on a refund application 
filed on or after May 7, 1985, may be made only if any current spouse 
and any former spouse (from whom the employee or Member was divorced 
after May 6, 1985)

[[Page 171]]

are notified of the former employee's or Member's application.
    (b)(1) Notification of the former spouse will not be required if the 
marriage to the former spouse was of less than 9 months duration or if 
the employee has not completed a total of 18 months of creditable 
service covered under the retirement system.
    (2) Applicants for payment of the lump-sum credit must certify on a 
form prescribed by OPM whether the applicant has a current or former 
spouse subject to the notification requirement.
    (c) Proof of notification will consist of a signed and witnessed 
Statement by the current and/or former spouse on a form provided by OPM 
acknowledging that he or she has been informed of the former employee's 
or Member's application for refund and the consequences of the refund on 
the current or former spouse's possible annuity entitlement. This 
Statement must be presented to the employing agency or OPM when filing 
the Application for Refund of Retirement Deductions.
    (d) If the current and/or former spouse refuses to acknowledge the 
notification or the employee or Member is otherwise unable to obtain the 
acknowledgement, the employee or Member must submit--
    (1) Affidavits signed by two individuals who witnessed the 
employee's or Member's attempt to personally notify the current or 
former spouse. The witnesses must attest that they were in the presence 
of the employee or Member and the current or former spouse when the 
employee or Member gave or attempted to give the notification form to 
the current or former spouse and that the employee's or Member's purpose 
should have been clear to the current or former spouse; or
    (2) The current mailing address of the current or former spouse. OPM 
will attempt to notify (by certified mail--return receipt requested) the 
current or former spouse at the address provided by the employee or 
Member. Except as provided in paragraph (e) of this section, the lump-
sum credit will not be paid until at least 20 days after OPM receives 
the signed return receipt.
    (e) If an OPM notice sent under paragraph (d)(2) of this section is 
returned and OPM has no reason to believe that the current or former 
spouse does not live at the address to which the notice was sent, OPM 
will re-mail the notice by first class mail and wait at least 20 days 
after the notice has been re-mailed before paying the refund.

[50 FR 20081, May 13, 1985, as amended at 51 FR 31936, Sept. 8, 1986; 55 
FR 9106, Mar. 12, 1990; 55 FR 29340, July 19, 1990]



Sec. 831.2008  Waiver of spouse and/or former spouse notification requirement.

    The current and/or former spouse notification requirement will be 
waived upon a showing that the current and/or former spouse's 
whereabouts cannot be determined. A request for waiver on this basis 
must be accompanied by--
    (a) A judicial or administrative determination that the current and/
or former spouse's whereabouts cannot be determined; or
    (b) Affidavits by the former employee or Member and two other 
persons at least one of whom is not related to the former employee or 
Member attesting to the inability to locate the current and/or former 
spouse and stating the efforts made to locate the current and/or former 
spouse.



Sec. 831.2009  Lump sum payments which include contributions made to a 
retirement system for employees of a nonappropriated fund instrumentality.

    A lump sum payment will include employee contributions and interest 
as provided under subpart G of part 847 of this chapter.

[61 FR 41720, Aug. 9, 1996]



Sec. 831.2010  Transfers between retirement systems.

    Transfers of employees' contributions between the Civil Service 
Retirement and Disability Fund and other retirement systems for Federal 
or District of Columbia employees when made in accordance with Federal 
statute for the purpose of transferring retirement service credit to the 
other retirement system are not subject to the notice requirements or 
court order provisions of this subpart.

[51 FR 31937, Sept. 8, 1986]

[[Page 172]]



Sec. 831.2011  Effect of part 772 of this chapter on 
CSRS lump-sum payments.

    (a) An interim appointment under Sec. 772.102 of this chapter does 
not affect the lump-sum payment of retirement contributions made to a 
separated employee unless it becomes effective within 31 days of the 
employee's separation from the service. An interim appointment effective 
within 31 days of the employee's separation makes the employee 
ineligible for the lump-sum payment. Payments made in error will be 
collected under subpart M of part 831 of this chapter.
    (b) When an employee's separation is cancelled after the MSPB 
initial decision becomes final, when the Board issues a final order 
cancelling the employee's separation, or when the agency and the 
employee agree to cancel the separation, the agency must notify OPM and 
request the amount of the erroneous lump-sum payment.
    (c) At the time the employee's separation is cancelled, the agency 
must deduct the amount of the lump-sum payment from any back pay to 
which the employee is entitled as required by 5 CFR 550.805(e).
    (d) Amounts recovered from back pay will not be subject to waiver 
consideration under 5 U.S.C. 8346(b). If there is no back pay or the 
back pay is insufficient to recover the erroneous payment, the employee 
may request that OPM waive the recovery of the uncollected portion of 
the overpayment. If waiver is not granted, the employee must repay the 
erroneous payment.

[57 FR 3713, Jan. 31, 1992]



                 Subpart U_Deposits for Military Service

    Source: 48 FR 38788, Aug. 26, 1983, unless otherwise noted.



Sec. 831.2101  Purpose.

    This subpart prescribes the procedures to be followed when an 
employee or Member (or survivor of an employee or Member) wishes to make 
a deposit for service, and when a former employee or Member who retires 
or separates from civilian service with title to annuity after September 
8, 1982, but before October 1, 1983 (or survivor of such employee or 
Member), wishes to make a deposit for service.



Sec. 831.2102  Scope.

    This subpart applies to all agencies with employees occupying 
positions subject to subchapter III of chapter 83 of title 5, United 
States Code, the United States Senate, and the United States House of 
Representatives.



Sec. 831.2103  Definitions.

    Employee shall have the same meaning as in 5 U.S.C. 8331(1).
    Estimated earnings is an estimate of basic pay for a period of 
military service, as determined by an authorized official of the 
Department of Defense the Department of Transportation, the Department 
of Commerce, or the Department of Health and Human Services.
    Fund is the Civil Service Retirement and Disability Fund.
    Member shall have the same meaning as in 5 U.S.C. 8331(2).
    OPM is the Office of Personnel Management.
    Period of service is the total years, months, and days from date of 
initial entry on active duty (or January 1, 1957, if that is later) to 
date of final discharge for enlisted military personnel, and to date of 
final release from active duty for officers and reservists. ``Period of 
service'' includes consecutive periods of service where there is no 
break in service, but does not include any lost time.
    Service is active honorable military service performed after 
December 31, 1956.
    Sufficient evidence of basic pay for service exists when the 
employee, Member, or survivor eligible to make a deposit for service 
provides copies of all official military pay documents, as identified in 
instructions published by OPM, which show the exact basic pay he or she 
received for a full period of service. If an employee, Member, or 
survivor does not have sufficient evidence of basic pay, he or she shall 
obtain a statement of estimated earnings from the appropriate branch of 
the military service.

[[Page 173]]

    Survivor shall have the same meaning as in 5 U.S.C. 8331(10).

[48 FR 38788, Aug. 26, 1983, as amended at 66 FR 66711, Dec. 27, 2001]



Sec. 831.2104  Eligibility to make deposit.

    The following individuals may make deposit for any full period of 
service performed before the separation on which title to civil service 
annuity is based:
    (a) An employee or Member currently occupying a position subject to 
subchapter III of chapter 83 of title 5, United States Code, and the 
survivor(s) of such an employee or Member who dies in service (including 
a person who was eligible to make a deposit under this paragraph but who 
failed to make the deposit before separation from service due to 
administrative error); and
    (b) A former employee or Member who was separated with title to an 
annuity or who retired from a position subject to subchapter III of 
chapter 83 of title 5, United States Code, after September 8, 1982, and 
before October 1, 1983, and the survivor(s) of such an employee or 
Member.

[48 FR 38788, Aug. 26, 1983, as amended at 49 FR 20631, May 16, 1984]



Sec. 831.2105  Filing an application to make deposit.

    (a) An individual described in Sec. 831.2104(a) of this subpart 
shall file an application for deposit with the appropriate office in the 
employing agency, or, for Members and Congressional employees, with the 
Secretary of the Senate or the Clerk of the House of Representatives, as 
appropriate.
    (b) An individual described in Sec. 831.2104(b) of this subpart 
may, at the time of filing an application for retirement or death 
benefits, file an application for deposit or complete a deposit with 
OPM.



Sec. 831.2106  Processing applications for deposit for service.

    (a) The agency, Clerk of the House of Representatives, or Secretary 
of the Senate shall have the employee or Member:
    (1) Complete an application to make deposit;
    (2) Provide a copy of his or her DD 214 or its equivalent to verify 
the period(s) of service; and
    (3) Provide sufficient evidence of basic pay, if available, or a 
statement of estimated earnings.
    (b) Upon receipt of the application, the DD 214(s), and either 
sufficient evidence of basic pay, if available, or a statement of 
estimated earnings, the agency, Clerk of the House of Representatives, 
or Secretary of the Senate shall multiply the amount of basic pay by 7 
percent to compute the exact deposit owed, exclusive of any interest.
    (c) If interest is applicable, it shall be computed in accordance 
with instructions published by OPM.
    (d) The agency, Clerk of the House of Representatives, or Secretary 
of the Senate shall establish a deposit account showing the total amount 
due, and a payment schedule (unless deposit is made in a lump sum), and 
record the date and amount of each payment.
    (e) An individual who is eligible to make deposit to OPM shall 
submit an application to make deposit, accompanied by a copy of his or 
her DD 214(s) or its (their) equivalent(s), as well as sufficient 
evidence of basic pay, if available, or a statement of estimated 
earnings, to OPM.

[48 FR 38788, Aug. 26, 1983, as amended at 66 FR 66711, Dec. 27, 2001]



Sec. 831.2107  Payments on deposits.

    (a) Deposits made to agencies, the Clerk of the House of 
Representatives or the Secretary of the Senate.
    (1) Deposits made to agencies, the Clerk of the House of 
Representatives or the Secretary of the Senate shall be collected in 
full in one lump sum whenever this is possible. Notwithstanding the 
provisions of paragraph (a)(2) of this section, a separated employee 
who, through administrative error, did not make or complete the deposit 
prior to his or her separation must complete the deposit in a lump sum 
within the time limit set by OPM when it rules that an administrative 
error has been made.
    (2) If the employee or Member cannot make payment in a lump sum, the 
agency, the Clerk of the House of Representatives, or the Secretary of 
the

[[Page 174]]

Senate shall accept installment payments (by allotments or otherwise). 
However, agencies, the Clerk of the House of Representatives, and the 
Secretary of the Senate will not be required to accept individual checks 
in amounts of less than $50.
    (3) If the employee or Member dies, the employing agency, the Clerk 
of the House of Representatives or the Secretary of the Senate shall 
advise the survivor of the right to make or complete a deposit. If the 
survivor decides to make or complete the payment, the agency, the Clerk 
of the House of Representatives, or the Secretary of the Senate shall 
collect the amount due in one lump sum.
    (4) Payments received by the employing agency, the Clerk of the 
House of Representatives, or the Secretary of the Senate shall be 
remitted immediately to OPM for deposit to the Fund.
    (5) Once the employee's, Member's, or survivor's deposit has been 
paid in full or closed out, the employing agency, the Clerk of the House 
of Representatives, or the Secretary of the Senate shall submit 
documentation pertaining to the deposit to OPM, in accordance with 
instructions published by OPM issuances.
    (6) Deposits must be made for full periods of service.
    (b) Deposits made to OPM.
    (1) Deposits made to OPM shall be made in a lump sum prior to final 
adjudication of the application for retirement or survivor benefits.
    (2) Deposits must be made for full periods of service.

[48 FR 38788, Aug. 26, 1983, as amended at 49 FR 20631, May 16, 1984; 66 
FR 66711, Dec. 27, 2001]



                Subpart V_Alternative Forms of Annuities

    Source: 51 FR 42989, Nov. 28, 1986, unless otherwise noted.



Sec. 831.2201  Purpose.

    This subpart explains the benefits available to employees and 
Members who elect an alternative form of annuity under section 8343a of 
title 5, United States Code.



Sec. 831.2202  Definitions.

    In this subpart--
    Alternative form of annuity means the benefit elected under Sec. 
831.2204.
    Current spouse annuity has the same meaning as in Sec. 831.603.
    Date of final adjudication means the date 30 days after the date of 
the first regular monthly payment as defined in Sec. 831.603.
    Former spouse annuity has the same meaning as in Sec. 831.603.
    Lump-sum credit has the same meaning as in 5 U.S.C. 8331(8).
    Present value factor represents the amount of money (earning 
interest at an assumed rate) required at the time of retirement to fund 
an annuity that: (a) Starts out at the rate of $1 a month and is payable 
in monthly installments for the annuitant's lifetime based on mortality 
rates for non-disability annuitants under the Civil Service Retirement 
System; and (b) increases each year at an assumed rate of inflation. 
Interest, mortality, and inflation rates used in computing the present 
value are those used by the Board of Actuaries of the Civil Service 
Retirement System for valuation of the System, based on dynamic 
assumptions. The present value factors are unisex factors obtained by 
averaging sex-distinct present value factors, weighted by the total 
dollar value of annuities typically paid to new retirees at each age.
    Time of retirement has the same meaning as in Sec. 831.603.

[51 FR 42989, Nov. 28, 1986, as amended at 54 FR 10136, Mar. 10, 1989]



Sec. 831.2203  Eligibility.

    (a) Except as provided in paragraphs (b), (c), and (h) of this 
section, an employee or Member whose annuity entitlement commences after 
June 5, 1986, under any provision of subchapter III of chapter 83 of 
title 5, United States Code (other than section 8337 of that title), may 
elect an alternative form of annuity instead of any other benefits under 
the subchapter.
    (b) An employee or Member who, at the time of retirement has a 
former spouse who is entitled to a portion of the employee's or Member's 
retirement benefits or a former spouse annuity

[[Page 175]]

under a court order acceptable for processing as defined by Sec. 
838.103 of this chapter or under a qualifying court order as defined in 
Sec. 838.1003 of this chapter may not elect an alternative form of 
annuity.
    (c) An employee or Member who is married at the time of retirement 
may not elect an alternative form of annuity unless the employee's or 
Member's spouse specifically consents to the election before the date of 
final adjudication. OPM may waive spousal consent only under the 
conditions prescribed by Sec. 831.618.
    (d) The election of an alternative form of annuity and evidence of 
spousal consent must be filed on a form prescribed by OPM. The form will 
require that a notary public or other official authorized to administer 
oaths certify that the current spouse presented identification, gave 
consent to the specific election as executed by the retiree, signed or 
marked the form, and acknowledged that the consent was given freely in 
the notary's or official's presence.
    (e) An election of the alternative form of annuity must be in 
writing and received by OPM on or before the date of final adjudication. 
After the date of final adjudication, an election of the alternative 
form of annuity is irrevocable.
    (f) Except as provided in paragraph (g), an annuitant who dies 
before the date of final adjudication is deemed to have made an 
affirmative election under paragraph (a) with a fully reduced annuity to 
provide a current spouse annuity, regardless of any election completed 
under Sec. 831.614, and the lump-sum credit will be paid in accordance 
with the order of precedence established under 5 U.S.C. 8342(c).
    (g) If an annuitant described in paragraph (f) has completed an 
election under Sec. 831.611(a) or (b)--
    (1) The lump-sum credit will be paid in accordance with the order of 
precedence established under 5 U.S.C. 8342(c); and
    (2) The election under Sec. 831.611(a) or (b) will be honored.
    (h)(1)(i) An individual whose annuity commences after December 1, 
1990, and before October 1, 1994, may elect an alternative form of 
annuity only if that individual is--
    (A) An employee or Member who meets the conditions and fulfills the 
requirements described in Sec. 831.2207(c) (2) and (3); or
    (B) An employee who is separated involuntarily other than for cause 
on charges of misconduct or delinquency;
    (ii) An individual whose annuity commences on or after October 1, 
1994, may elect an alternative form of annuity only if that individual 
is an employee or Member who meets the conditions and fulfills the 
requirements described in Sec. 831.2207(c) (2) and (3).
    (2) For the purpose of paragraph (h)(1)(i)(B) of this section, the 
term ``employee'' does not include--
    (i) Members of Congress;
    (ii) Individuals in positions in the Executive Schedule under 
sections 5312 through 5317 of title 5, United States Code;
    (iii) Presidential appointees under section 105(a)(1), 106(a)(1), or 
107 (a)(1) or (b)(1) of title 3, United States Code, if the maximum 
basic pay for such positions is at or above the rate for Executive 
Schedule, level V;
    (iv) Noncareer appointees in the Senior Executive Service or 
noncareer members of the Senior Foreign Service; and
    (v) Any individual in a position that is excepted from the 
competitive service because of its confidential, policy-determining, 
policy-making, or policy-advocating character.
    (3) Notwithstanding paragraph (h)(1) of this section, an employee 
whose annuity commences after December 1, 1990, and before December 2, 
1991, may elect an alternative form of annuity if that individual--
    (i)(A) Was ordered to active military duty (other than for training) 
before December 1, 1990, in connection with Operation Desert Shield; or
    (B) Is an employee of the Department of Defense who is certified by 
the Secretary of Defense to have performed, after November 30, 1990, 
duties essential to support Operation Desert Shield, and the 
certification is submitted to OPM in a form prescribed by OPM; and

[[Page 176]]

    (ii) Would have been eligible, as of November 30, 1990, to elect an 
alternative form of annuity under paragraph (a) of this section.

[51 FR 42989, Nov. 28, 1986, as amended at 53 FR 11634, Apr. 8, 1988; 56 
FR 6551, Feb. 19, 1991; 57 FR 33598, July 29, 1992; 58 FR 52882, Oct. 
13, 1993; 60 FR 54586, 54587, Oct. 25, 1995]



Sec. 831.2204  Alternative forms of annuities available.

    (a) An employee or Member who is eligible to make an election under 
Sec. 831.2203 may elect to receive his or her lump-sum credit plus an 
annuity computed in accordance with section 8339 of title 5, United 
States Code, for which they qualify (including any reduction for 
survivor benefits) and reduced under Sec. 831.2205.
    (b) A retired employee or Member who elected an alternative form of 
annuity is subject to all provisions of subchapter III of chapter 83 of 
title 5, United States Code, as would otherwise apply to a retired 
employee or Member who did not elect an alternative form of annuity, 
except that an individual who elected an alternative form of annuity is 
not eligible to apply for disability annuity under section 8337 of such 
subchapter.

[51 FR 42989, Nov. 28, 1986, as amended at 53 FR 11634, Apr. 8, 1988; 54 
FR 10136, Mar. 10, 1989]



Sec. 831.2205  Computation of alternative form of annuity.

    (a) To compute the beginning rate of annuity payable to a retiree 
who elects an alternative form of annuity, OPM will first compute the 
monthly rate of annuity otherwise payable under subchapter III of 
chapter 83 of title 5, United States Code, including all reductions 
provided under the subchapter other than those in Sec. 8343a. That 
monthly rate is then reduced by an amount equal to the retiree's lump-
sum credit divided by the present value factor for the retiree's 
attained age (in full years) at the time of retirement. The reduced 
monthly rate is then rounded to the next lowest dollar and becomes the 
rate of annuity payable.
    (b) OPM will publish a notice in the Federal Register announcing any 
proposed adjustments in present value factors at least 30 days before 
the effective date of the adjustments.



Sec. 831.2206  Election to pay deposit or redeposit for civilian service.

    (a) If an employee or Member who elects an alternative form of 
annuity owes a deposit or redeposit for civilian service, and elects to 
pay that deposit or redeposit before the date of final adjudication, OPM 
will compute the annuity as if the deposit or redeposit had been made 
and will deem that deposit or redeposit to be included in the lump-sum 
credit for the purpose of computing the reduction in annuity under Sec. 
831.2205.
    (b) The amount of a deposit or redeposit deemed paid under paragraph 
(a) of this section will include any interest owed by the employee or 
Member under 5 U.S.C. 8334.
    (c) For the purpose of paragraph (a) of this section, ``redeposit'' 
does not include a redeposit owed for service for which credit is 
allowed pursuant to Sec. 831.303(c)(1).

[54 FR 10136, Mar. 10, 1989, as amended at 56 FR 43865, Sept. 5, 1991]



Sec. 831.2207  Partial deferred payment of the lump-sum credit if 
annuity commences after January 3, 1988, and before October 1, 1989.

    (a) Except as provided in paragraph (c) of this section, if the 
annuity of an employee or Member commences after January 3, 1988, and 
before October 1, 1989, the lump-sum credit payable under Sec. 831.2204 
is payable to the individual, or his or her survivors, according to the 
following schedule:
    (1) Sixty percent of the lump-sum credit is payable at the time of 
retirement, and
    (2) Forty percent is payable, with interest determined under section 
8334(e)(3) of title 5, United States Code, one year after the time of 
retirement.
    (b) If an employee or Member whose annuity commences after January 
3, 1988, and before October 1, 1989, dies before the date of final 
adjudication, that individual is subject to Sec. 831.2203 (f) or (g), 
but the lump-sum credit will be paid in accordance with the schedule in 
paragraph (a) of this section.

[[Page 177]]

    (c) An annuitant is exempt from the deferred payment schedule under 
paragraph (a) of this section if the individual--
    (1) Separates involuntarily, other than for cause on charges of 
delinquency or misconduct, or
    (2) Has, at the time of retirement, a life-threatening affliction or 
other critical medical condition.
    (3)(i) For the purpose of this section, life-threatening affliction 
or other critical medical condition means a medical condition so severe 
as to reasonably limit an individual's probable life expectancy to less 
than 2 years.
    (ii) The existence of one of the following medical conditions is 
prima facie evidence of a life threatening affliction or other critical 
medical condition:
    (A) Metastatic and/or inoperable neoplasms.
    (B) Aortic stenosis (severe).
    (C) Class IV cardiac disease with congestive heart failure.
    (D) Respiratory failure.
    (E) Cor pulmonale with respiratory failure.
    (F) Emphysema with respiratory failure.
    (G) [Reserved]
    (H) Severe cardiomyopathy--Class IV.
    (I) Aplastic anemia.
    (J) Uncontrolled hypertension with hypertensive encephalopathy.
    (K) Cardiac aneurysm not amenable to surgical treatment.
    (L) Agranulocytosis.
    (M) Severe hepatic failure.
    (N) Severe Hypoxic brain damage.
    (O) Severe portal hypertension with esophageal varices.
    (P) AIDS (Active--Not AIDS Related Complex or only seropositivity).
    (Q) Life threatening infections (encephalitis, meningitis, rabies, 
etc.).
    (R) Scleroderma with severe esophageal involvement.
    (S) Amyotrophic lateral sclerosis (rapidly progressive).
    (T) Hemiplegia with life threatening complications.
    (U) Quadriplegia with life threatening complications.
    (iii) Evidence of the existence of a life-threatening affliction or 
other critical medical condition must be certified by a physician and 
sent to OPM on or before the date the annuitant elects to receive an 
alternative form of annuity. For the purpose of this section, 
``physician'' has the same meaning given that term in Sec. 339.102 of 
this chapter.
    (iv) If a medical condition other than those listed in paragraph 
(c)(3)(ii) of this section is claimed as a basis for exemption from the 
deferred payment schedule, OPM will review the physician's certification 
to determine whether the cited condition is life-threatening or 
critical.
    (v) The cost of providing medical documentation under this paragraph 
rests with the employee or Member, unless OPM exercises its choice of 
physician.

[53 FR 11634, Apr. 8, 1988, as amended at 60 FR 54586, Oct. 25, 1995]



Sec. 831.2208  Partial deferred payment of the lump-sum credit if
annuity commences after December 2, 1989, and before October 1, 1995.

    (a) Except as provided in paragraph (c) of this section, if the 
annuity of a retiree commences after December 2, 1989, and before 
October 1, 1994, the lump-sum credit payable under Sec. 831.2204 is 
payable to the individual, or his or her survivors, according to the 
following schedule:
    (1) Fifty percent of the lump-sum credit is payable at the time of 
retirement, and
    (2) Fifty percent is payable, with interest determined under section 
8334(e)(3) of title 5, United States Code, 1 year after the time of 
retirement, except if the payment date of the amount specified in 
paragraph (a)(1) of this section was after December 4, 1989, payment 
with interest will be made in the calendar year following the calendar 
year in which the payment specified in paragraph (a)(1) of this section 
was made.
    (b) If a retiree whose annuity commences after December 2, 1989, and 
before October 1, 1994, and who is otherwise entitled to a computation 
under this subpart, dies before the date of final adjudication, that 
individual is subject to Sec. 831.2203 (f) or (g), but the lump-sum 
credit will be paid in accordance with the schedule in paragraph (a) of 
this section.

[[Page 178]]

    (c)(1) A retiree is exempt from the deferred payment schedule under 
paragraph (a) of this section if the individual meets the conditions, 
and fulfills the requirements, described in Sec. 831.2207(c).
    (2)(i) A retiree who is exempt from the deferred payment schedule 
may waive that exemption by notifying OPM, in writing, on or before the 
date he or she elects to receive the alternative form of annuity.
    (ii) Paragraph (c)(2)(i) of this section does not apply to an 
individual whose annuity commences after December 1, 1990, if that 
individual's eligibility to elect an alternative form of annuity is 
pursuant to Sec. 831.2203(h)(1)(i)(A).
    (iii) A waiver under paragraph (c)(2)(i) of this section cannot be 
revoked.

[56 FR 6551, Feb. 19, 1991, as amended at 56 FR 43865, Sept. 5, 1991; 60 
FR 54587, Oct. 25, 1995]



Sec. 831.2209  Redetermined annuity after reemployment.

    (a) For purposes of this section, ``lump-sum credit'' does not 
include--
    (1) The amount by which the lump-sum credit attributable to service 
performed before the annuitant's first retirement was reduced by annuity 
payments that were not reimbursed by the employing agency under section 
8344(a) of title 5, United States Code, or
    (2) Any part of the lump-sum credit attributable to service 
performed before the annuitant's first retirement that has already been 
paid to the annuitant pursuant to an election or an alternative form of 
annuity.
    (b) An annuitant who meets the requirements for a redetermined 
annuity under subpart H, and who meets all requirements of Sec. 
831.2203, may elect an alternative form of annuity.
    (c) To compute the beginning rate of the redetermined annuity 
payable to an annuitant who elects an alternative form of annuity, OPM 
will first compute the monthly rate payable under subchapter III of 
chapter 83 of title 5, United States Code, including all reductions 
provided under the subchapter other than those in section 8343a. That 
monthly rate is then reduced by the sum of--
    (1)(i) Any reduction that was computed under Sec. 831.2205 at the 
time of the annuitant's prior retirement, increased by--
    (ii) All cost-of-living adjustments under section 8340 of title 5, 
United States Code that applied to the annuitant before the commencing 
date of the redetermined annuity, and
    (2) An amount equal to the annuitant's lump-sum credit, divided by 
the present value factor for the annuitant's attained age on the date 
the redetermined annuity commences.
    (d) The beginning rate of a redetermined annuity payable to an 
annuitant who does not elect, or is not eligible to elect, an 
alternative form of annuity will be reduced in accordance with paragraph 
(c)(1) of this section.

[54 FR 10136, Mar. 10, 1989. Redesignated at 55 FR 4597, Feb. 9, 1990]



PART 835_DEBT COLLECTION--Table of Contents



Subparts A-E [Reserved]

       Subpart F_Collection of Debts by Federal Tax Refund Offset

Sec.
835.601 Purpose.
835.602 Past-due legally enforceable debt.
835.603 Notification of intent to collect.
835.604 Reasonable attempt to notify.
835.605 OPM action as a result of consideration of evidence submitted as 
          a result of the notice of intent.
835.606 Change in notification to Internal Revenue Service.
835.607 Administrative charges.

    Authority: 5 U.S.C. 8347(a) and 8461(g). Subpart F also issued under 
31 U.S.C. 3720A.

    Source: 57 FR 61771, Dec. 29, 1992, unless otherwise noted.

Subparts A-E [Reserved]



       Subpart F_Collection of Debts by Federal Tax Refund Offset



Sec. 835.601  Purpose.

    This subpart establishes procedures for OPM to refer past-due 
legally enforceable debts to the Internal Revenue Service (IRS) for 
offset against the income tax refunds of persons owing debts to OPM. It 
specifies the agency procedures and the rights of the debtor

[[Page 179]]

applicable to claims referred under the Federal Tax Refund Offset 
Program for the collection of debts owed to OPM.



Sec. 835.602  Past-due legally enforceable debt.

    A past-due legally enforceable debt for referral to the IRS is a 
debt that--
    (a) Resulted from--
    (1) Erroneous payments made under the Civil Service Retirement or 
the Federal Employees' Retirement Systems; or
    (2) Unpaid health or life insurance premiums due under the Federal 
Employees' Health Benefits or Federal Employees' Group Life Insurance 
Programs; or
    (3) Any other statute administered by OPM;
    (b) Is an obligation of a debtor who is a natural person;
    (c) Except in the case of a judgment debt, has been delinquent at 
least 3 months but not more than 10 years at the time the offset is 
made;
    (d) Is at least $25.00;
    (e) With respect to which the individual's rights described in 5 CFR 
831.1301 through 831.1309 have been exhausted;
    (f) With respect to which either:
    (1) OPM's records do not contain evidence that the person owing the 
debt (or his or her spouse) has filed for bankruptcy under title 11 of 
the United States Code; or
    (2) OPM can clearly establish at the time of the referral that the 
automatic stay under 11 U.S.C. 362 has been lifted or is no longer in 
effect with respect to the person owing the debt or his or her spouse, 
and the debt was not discharged in the bankruptcy proceeding;
    (g) Cannot currently be collected under the salary offset provisions 
of 5 U.S.C. 5514(a)(1);
    (h) Is not eligible for administrative offset under 31 U.S.C. 
3716(a) because of 31 U.S.C. 3716(c)(2), or cannot currently be 
collected as an administrative offset by OPM under 31 U.S.C. 3716(a) 
against amounts payable to the debtor by OPM; and
    (i) Has been disclosed by OPM to a consumer reporting agency as 
authorized by 31 U.S.C. 3711(f), unless the consumer reporting agency 
would be prohibited from reporting information concerning the debt by 
reason of 15 U.S.C. 1681c, or unless the amount of the debt does not 
exceed $100.



Sec. 835.603  Notification of intent to collect.

    (a) Notification before submission to the IRS. A request for 
reduction of an IRS income tax refund will be made only after OPM makes 
a determination that an amount is owed and past-due and gives or makes a 
reasonable attempt to give the debtor 60 days written notice of the 
intent to collect by IRS tax refund offset.
    (b) Contents of notice. OPM's notice of intention to collect by IRS 
tax refund offset (Notice of Intent) will state:
    (1) The amount of the debt;
    (2) That unless the debt is repaid within 60 days from the date of 
OPM's Notice of Intent, OPM intends to collect the debt by requesting 
the IRS to reduce any amounts payable to the debtor as a Federal income 
tax refund by an amount equal to the amount of the debt and all 
accumulated interest and other charges;
    (3) A mailing address for forwarding any written correspondence and 
a contract name and a telephone number for any questions; and
    (4) That the debtor may present evidence to OPM that all or part of 
the debt is not past due or legally enforceable by--
    (i) Sending a written request for a review of the evidence to the 
address provided in the notice;
    (ii) Stating in the request the amount disputed and the reasons why 
the debtor believes that the debt is not past-due or is not legally 
enforceable;
    (iii) Including in the request any documents that the debtor wishes 
to be considered or stating that the additional information will be 
submitted within the remainder of the 60-day period.



Sec. 835.604  Reasonable attempt to notify.

    In order to constitute a reasonable attempt to notify the debtor, 
OPM must have used a mailing address for the debtor obtained from the 
IRS pursuant to 26 U.S.C. 6103(m)(2) within a period of 1 year preceding 
the attempt to notify the debtor, unless OPM received clear and concise 
notification from the debtor that notices from the

[[Page 180]]

agency are to be sent to an address different from the address obtained 
from IRS. Clear and concise notice means that the debtor has provided 
the agency with written notification, including the debtor's name and 
identifying number (as defined in 26 CFR 301.6109-1), and the debtor's 
intent to have the agency notices sent to the new address.



Sec. 835.605  OPM action as a result of consideration of evidence 
submitted as a result of the notice of intent.

    (a) Consideration of evidence. If, as a result of the Notice of 
Intent, OPM receives notice that the debtor will submit additional 
evidence or receives additional evidence from the debtor within the 
prescribed time period, any notice to the IRS will be stayed until OPM 
can--
    (1) Consider the evidence presented by the debtor; and
    (2) Determine whether or not all or a portion of the debt is still 
past due and legally enforceable; and
    (3) Notify the debtor of its determination.
    (b) Notification to the debtor. Following review of the evidence, 
OPM will issue a written decision notifying the debtor whether OPM has 
sustained, amended, or canceled its determination that the debt is past-
due and legally enforceable. The notice will advise the debtor of any 
further action to be taken and explain the supporting rationale for the 
decision.
    (c) OPM action on the debt. (1) OPM will notify the debtor of its 
intent to refer the debt to the IRS for offset against the debtor's 
Federal income tax refund, if it sustains its decision that the debt is 
past-due and legally enforceable. OPM will also notify the debtor 
whether the amount of the debt remains the same or is modified.
    (2) OPM will not refer the debt to the IRS for offset against the 
debtor's Federal income tax refund, if it reverses its decision that the 
debt is past-due and legally enforceable.



Sec. 835.606  Change in notification to Internal Revenue Service.

    (a) Except as noted in paragraph (b) of this section, after OPM 
sends IRS notification of an individual's liability for a debt, OPM will 
promptly notify IRS of any change in the notification, if OPM--
    (1) Determines that an error has been made with respect to the 
information contained in the notification;
    (2) Receives a payment or credits a payment to the account of the 
debtor named in the notification that reduces the amount of the debt 
referred to the IRS for offset; or
    (3) Receives notification that the individual owing the debt has 
filed for bankruptcy under title 11 of the United States Code or has 
been adjudicated bankrupt and the debt has been discharged.
    (b) OPM will not notify the IRS to increase the amount of a debt 
owed by a debtor named in OPM's original notification to the IRS.
    (c) If the amount of a debt is reduced after referral by OPM and 
offset by the IRS, OPM will refund to the debtor any excess amount and 
will promptly notify the IRS of any refund made by OPM.



Sec. 835.607  Administrative charges.

    All administrative charges incurred in connection with the referral 
of the debts to the IRS will be assessed on the debt and thus increase 
the amount of the offset.



PART 837_REEMPLOYMENT OF ANNUITANTS--Table of Contents



                      Subpart A_General Provisions

Sec.
837.101 Applicability.
837.102 Definitions.
837.103 Notice.
837.104 Reemployment of former employees of nonappropriated fund 
          instrumentalities.

                 Subpart B_Annuitant and Employee Status

837.201 Annuitant status.
837.202 Annuities that terminate on reemployment.
837.203 Annuities that are suspended during reemployment.

                  Subpart C_Coverage and Contributions

837.301 Coverage.
837.302 Agency contributions.
837.303 Annuity offset.
837.304 Agency liability for payments.

[[Page 181]]

837.305 Lump-sum credit not reduced.
837.306 Refund of lump-sum credit.

             Subpart D_Reemployment of Disability Annuitants

837.401 Generally.
837.402 Special notice.
837.403 Termination of annuity during reemployment.
837.404 Reinstatement of annuity during a period of employment not 
          subject to CSRS or FERS.

               Subpart E_Retirement Benefits on Separation

837.501 Refund of retirement deductions.
837.502 Reinstatement of annuity.
837.503 Supplemental annuity.
837.504 Redetermined annuity.
837.505 Cost-of-living adjustments on Member annuities.
837.506 Computation of redetermined annuity for former employees of 
          nonappropriated fund instrumentalities.

                        Subpart F_Death Benefits

837.601 Generally.
837.602 Lump-sum payment of retirement deductions.
837.603 Increased survivor benefits.

                          Subpart G_CSRS Offset

837.701 Offset from supplemental annuity.
837.702 Offset from supplemental survivor annuity.

       Subpart H_Alternative Entitlements and Canceled Retirements

837.801 Unperfected entitlement to CSRS benefits based on a prior 
          separation.
837.802 Benefits under another retirement system for Federal employees 
          based on the most recent separation.
837.803 Cancellation of retirement by judicial or administrative 
          authority.
837.804 Finality of elections under this subpart.

    Authority: 5 U.S.C. 8337, 8344, 8347, 8455, 8456, 8461, and 8468; 
and section 302 of Pub. L. 99-335, June 6, 1986, as amended.

    Source: 58 FR 48266, Sept. 15, 1993, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 837.101  Applicability.

    (a) This part prescribes rules governing--
    (1) Reemployment of an annuitant by the Federal Government;
    (2) Reemployment of an annuitant by the government of the District 
of Columbia when the annuitant--
    (i) Had been employed subject to CSRS by the District of Columbia 
prior to October 1, 1987;
    (ii) Is an employee of the government of the District of Columbia 
not excluded from CSRS under Sec. 831.201(g) or Sec. 831.201(i); or
    (iii) Is an employee of the District of Columbia who is deemed to be 
a Federal employee for FERS purposes under Sec. 842.107 or Sec. 
842.108 of this chapter; and
    (3) The payment of retirement and death benefits based on 
reemployment covered by this part.
    (b) This part is not applicable to reemployment, in the Executive 
Branch, under 5 U.S.C. 8344(i) or 8468(f) (see part 553 of this 
chapter), relating to reemployment of retirees to meet exceptional 
employment needs, or to employment under 5 U.S.C. 8344 (j) or (k) or 5 
U.S.C. 8468 (g) or (h) in the Judicial or Legislative Branches.

[58 FR 48266, Sept. 15, 1993, as amended at 62 FR 50996, Sept. 30, 1997; 
64 FR 15288, Mar. 31, 1999]



Sec. 837.102  Definitions.

    Actual service means the period of time during which an annuitant is 
reemployed, excluding periods of separation and non-pay status.
    Annuitant means a former employee or Member who is receiving, or 
meets the legal requirements and has filed claim for, annuity under 
either CSRS or FERS based on his or her service.
    Another retirement system or ``other retirement system'' means a 
program created by Federal or District of Columbia statute or regulation 
and administered by an agency of the Federal Government or District of 
Columbia that provides retirement and/or death benefits to Federal or 
District of Columbia employees whose employment would otherwise be 
subject to the provisions of CSRS or FERS, or that credits service in 
the computation of benefits that would otherwise be credited in the 
computation of a CSRS or FERS benefit, or that provides a death benefit 
when a death benefit is payable from CSRS or FERS.

[[Page 182]]

    CSRS means the Civil Service Retirement System, as described in 
subchapter III of chapter 83 of title 5, United States Code.
    CSRS annuitant means an annuitant retired under CSRS.
    CSRS-Offset service means service by a reemployed CSRS annuitant 
that is subject to the OASDI tax by operation of section 101 of Public 
Law 98-21. It does not include any service performed before January 1, 
1984.
    CSRS-Offset wages means basic pay, as defined under 5 U.S.C. 
8331(3), of an employee or Member performing CSRS-Offset service, but 
not to exceed the contribution and benefit base for the calendar year 
involved.
    Continuous service means reemployment without a period of separation 
from service, or conversion to intermittent status, of more than 3 days.
    Contribution and benefit base means the contribution and benefit 
base in effect with respect to the period involved, as determined under 
section 230 of the Social Security Act.
    FEC means Federal Employees Compensation, that is, benefits paid on 
the basis of a work-related disease or injury under the provisions of 
chapter 81 of title 5, United States Code, but does not include a 
scheduled award under the provisions of 5 U.S.C. 8107, or medical 
services under 5 U.S.C. 8103.
    FERS means the Federal Employees Retirement System, as described in 
chapter 84 of title 5, United States Code.
    FERS annuitant means an annuitant who retired under FERS, or a 
reemployed CSRS annuitant whose election of FERS coverage under part 846 
of this chapter is effective on or after January 8, 1988.
    Full-time equivalent to part-time service means the amount of actual 
service that would result if the total hours worked on a part-time basis 
had been performed on a full-time basis, and the remaining portion of 
the period of reemployment was in a non-pay status.
    Full-time service means actual service in which the reemployed 
annuitant is scheduled to work the number of hours and days required by 
the administrative workweek for his or her grade or class (normally 40 
hours).
    Fund means the Civil Service Retirement and Disability Fund as 
described at 5 U.S.C. 8348.
    Intermittent service means any actual service performed on a less 
than full-time basis with no prescheduled regular tour of duty.
    Lump-sum credit has the same meaning as the term is defined at 
section 8401(19) or section 8331(8) of title 5, United States Code, as 
may be applicable under the circumstances.
    OASDI tax means, with respect to Federal wages, the Old Age, 
Survivors, and Disability Insurance tax imposed under section 3101(a) of 
the Internal Revenue Code of 1986.
    Part-time service means actual service performed on a less than 
full-time basis under a pre-scheduled regular tour of duty.
    Pay means the basic pay of the position to which the reemployed 
annuitant is appointed, prior to reduction for retirement contributions 
and annuity offset, and excludes any other benefits or compensation the 
reemployed annuitant receives, such as benefits authorized under the 
provisions of chapter 81 of title 5, United States Code.
    Reemployed means reemployed in an appointive or elective position 
with the Federal Government, or reemployed in an appointive or elective 
position with the District of Columbia (when the annuitant was first 
employed subject to CSRS by the District of Columbia before October 1, 
1987, or is an employee of the government of the District of Columbia 
not excluded from CSRS under Sec. 831.201(g) or Sec. 831.201(i) of 
this chapter, or is an employee of the government of the District of 
Columbia who is deemed to be a Federal employee for FERS purposes under 
Sec. 842.107 or Sec. 842.108 of this chapter), whether the position is 
subject to CSRS, FERS, or another retirement system, but does not 
include appointment as a Governor of the Board of Governors of the 
United States Postal Service, or reemployment under the provisions of 
law that exclude offset of pay by annuity, that is, sections 8344(i), 
(j), or (k), or 8468(f), (g), or (h) of title 5, United States Code.
    Retired Member means a former Member of Congress, as defined by 5 
U.S.C. 2106, who has met the requirements for

[[Page 183]]

Member retirement as specified at sections 8336(g), 8337(a), 8338(b), 
8412, 8413, and 8451(b) of title 5, United States Code, and who has 
filed claim therefor.
    Suspension, in regard to payment of annuity, means that payment of 
annuity stops but annuitant status continues.
    Termination in regard to payment of annuity, means that both payment 
of annuity and annuitant status cease.

[58 FR 48266, Sept. 15, 1993, as amended at 62 FR 50996, Sept. 30, 1997; 
64 FR 15288, Mar. 31, 1999]



Sec. 837.103  Notice.

    (a) To OPM. On or before the date a reemployed annuitant is 
appointed, the appointing agency must notify OPM in writing of the 
appointment, and provide OPM with the following information--
    (1) The annuitant's name, date of birth, social security number (if 
applicable), and retirement claim number;
    (2) A description of the kind of appointment;
    (3) Whether the amount of annuity allocable to the period of 
reemployment is, or will be, withheld from the reemployed annuitant's 
pay, in accordance with Sec. 837.303 of this part; and
    (4) When the appointment is an interim appointment under Sec. 
772.102 of this chapter, an explicit statement that the appointment is 
required by the Whistleblower Protection Act of 1989.
    (b) To annuitant. The agency should advise the annuitant in writing, 
generally, of the effect reemployment has on annuitant status and/or the 
continued receipt of annuity, the possible, future retirement benefits 
that may be payable to an annuitant on the basis of reemployment, and, 
for CSRS annuitants, whether the annuitant may elect to have retirement 
deductions withheld from his or her basic pay.
    (c) Obligation of annuitant to provide information. Before 
appointment, and as a condition of reemployment, the annuitant must 
provide the employing agency with the following information--
    (1) Whether the annuitant is then in receipt of annuity;
    (2) The gross monthly amount of annuity the annuitant is then 
receiving;
    (3) Whether the annuitant is a disability annuitant, and if so, 
whether OPM has found the annuitant recovered from his or her 
disability, or restored to earning capacity; and.
    (4) If the annuitant is a CSRS annuitant, whether the annuitant's 
retirement was based on an involuntary separation, not for charges of 
misconduct or delinquency.



Sec. 837.104  Reemployment of former employees of nonappropriated
fund instrumentalities.

    A former employee of a nonappropriated fund instrumentality who has 
made an election of retirement coverage under part 847 of this chapter 
will continue to be covered under the elected retirement system for all 
periods of service as a reemployed annuitant.

[61 FR 41720, Aug. 9, 1996]



                 Subpart B_Annuitant and Employee Status



Sec. 837.201  Annuitant status.

    Unless his or her annuity is terminated under the provisions of 
Sec. 837.202 or Sec. 837.403 of this part, an annuitant continues to 
be an annuitant throughout the period of reemployment, whether or not he 
or she continues to receive annuity payments during the period of 
reemployment.



Sec. 837.202  Annuities that terminate on reemployment.

    (a) FERS annuitants. (1) The annuity of a FERS annuitant who is a 
disability annuitant whom OPM has found recovered or restored to earning 
capacity prior to reemployment terminates on reemployment.
    (2) The annuity of a FERS annuitant who is a former military reserve 
technician awarded a disability retirement annuity under 5 U.S.C. 8456, 
in addition to being subject to paragraph (a)(1) of this section, shall 
terminate on the date the annuitant declines an offer of employment with 
a department or agency, where the employment is in the same commuting 
area and of the same grade as, or a level equivalent to, the position 
from which the annuitant retired.

[[Page 184]]

    (b) CSRS annuitants. (1) The annuity of a CSRS annuitant terminates 
on reemployment if--
    (i) The annuitant is a disability annuitant whom OPM has found 
recovered or restored to earning capacity prior to reemployment, or 
whose disability annuity was awarded under the provisions of 5 U.S.C. 
8337(h) because the annuitant was a National Guard Technician who was 
medically disqualified for continued membership in the National Guard;
    (ii) The annuitant is not a retired Member and the annuity is based 
on an involuntary separation (other than a separation that was mandated 
by statute based on the annuitant's age and length of service, or a 
separation for cause on charges of misconduct or delinquency) where the 
reemployment would, if the individual were not an annuitant, be covered 
by CSRS;
    (iii) The annuitant is not a retired Member and is appointed by the 
President to a position that would, if the individual were not an 
annuitant, be covered by CSRS; or
    (iv) The annuitant is not a retired Member and is elected as a 
Member.
    (2) A disability annuity awarded a former National Guard Technician 
under the provisions of 5 U.S.C. 8337(h) shall terminate on the date the 
annuitant declines an offer of employment with a department or agency, 
where the employment is in the same commuting area and of the same grade 
as, or a level equivalent to, the position from which the annuitant 
retired.



Sec. 837.203  Annuities that are suspended during reemployment.

    (a) All annuitants. Payment of annuity is suspended when--
    (1) The annuitant is appointed as a justice or judge of the United 
States, as defined by section 451 of title 28, United States Code; or
    (2) The annuitant receives an interim appointment under Sec. 
772.102 of this chapter.
    (b) CSRS annuitants only. Payment of annuity is suspended when the 
annuitant is a retired Member and becomes employed in an elective 
position, or is appointed to a position that is not intermittent or 
without pay.



                  Subpart C_Coverage and Contributions



Sec. 837.301  Coverage.

    (a) When annuity terminates on, or is suspended during, 
reemployment. Retirement coverage under either CSRS or FERS is governed 
by subpart B of part 831 or subpart A of part 842 of this chapter, as is 
appropriate.
    (b) When annuity continues. (1) Unless a reemployed FERS annuitant's 
employment is on an intermittent basis, as an employee subject to 
another retirement system, or as President, deductions for the Fund 
shall be made under 5 U.S.C. 8422(a).
    (2) A CSRS annuitant is not subject to deductions, unless he or she 
is serving in an other-than-intermittent status (except as President), 
is not covered by another retirement system, and elects to have 
retirement deductions made from his or her pay. Generally, deductions 
are made no later than the beginning of the first pay period immediately 
following the date the reemployed annuitant files the election with the 
employing agency. When the annuitant elects to have deductions made, he 
or she may not change the election during continuous service with that 
agency.
    (3) The amount of basic pay prior to offset of annuity under Sec. 
837.303 of this part is used in computing the amount of deductions. The 
rate of retirement deductions is that which attaches to the position 
under the provisions of sections 8334(a), 8334(k), or 8422(a) of title 
5, United States Code, as is applicable.



Sec. 837.302  Agency contributions.

    (a) FERS annuitants. An agency that reemploys a FERS annuitant 
subject to retirement deductions under Sec. 837.301(b)(1) of this part 
shall make contributions, as specified in 5 U.S.C. 8423, to the Fund, 
based on the reemployed annuitant's pay prior to offset of annuity under 
the provisions of Sec. 837.303 of this part.
    (b) CSRS annuitants. An agency that reemploys a CSRS annuitant is 
required to make an agency contribution when--

[[Page 185]]

    (1) The annuity is suspended or terminated under the provisions of 
subpart B of this part; and
    (2) The appointment is subject to CSRS deductions under the 
provisions of subpart B of part 831 of this chapter.



Sec. 837.303  Annuity offset.

    (a) Applicability. When the right to receive annuity continues 
during reemployment (even though actual receipt of annuity may have been 
waived under 5 U.S.C. 8345(d) or 8465(a)), the pay of the reemployed 
annuitant shall be offset by the amount of annuity allocable to the 
period of reemployment, except that--
    (1) No amount shall be offset from pay in accordance with this 
section for a period for which the annuitant has elected to receive FEC 
benefits in lieu of annuity; and
    (2) No amount shall be offset from a lump-sum payment of annual 
leave, made on or after termination of the reemployment period.
    (b) Payment. The employing agency shall pay to the Fund the full 
amount required to be offset from a reemployed annuitant's salary under 
this section in accordance with instructions issued by OPM. Payment in 
full to the Fund is not contingent on actual offset from the reemployed 
annuitant's salary.
    (c) Computation. To compute the amount of the annuity offset for any 
particular pay period, divide the amount of annuity for the calendar 
days included in the pay period by the number of hours that would 
constitute a full-time tour of duty for that pay period, then multiply 
the result by the number of hours actually paid for the pay period, not 
to exceed the number of hours that constitutes a full-time tour of duty.



Sec. 837.304  Agency liability for payments.

    (a) The agency will remit funds properly withheld from the pay of a 
reemployed annuitant in accordance with this subpart to OPM in the 
manner prescribed for the transmission of withholdings and contributions 
as soon as possible, but not later than provided by standards 
established by OPM.
    (b) When the employing agency fails to withhold from the pay of the 
reemployed annuitant some or all of the amounts required to be withheld 
from that pay by this subpart, the employee has received an overpayment 
of pay. The employing agency must collect the overpayment of pay (unless 
it is waived under 5 U.S.C. 5584 or some other applicable statute) and 
remit the proper funds to OPM in the manner prescribed for the 
transmission of withholdings and contributions as soon as possible, but 
not later than provided by standards established by OPM.
    (c) If the employing agency waives the annuitant's repayment of the 
salary overpayment, it must submit--on behalf of the reemployed 
annuitant--an amount equal to the correct deduction from pay (or the 
balance due in the case of a partial deduction) to OPM in the manner 
prescribed for the transmission of withholdings and contributions as 
soon as possible, but not later than provided by standards established 
by OPM.

[58 FR 48266, Sept. 15, 1993, as amended at 66 FR 66711, Dec. 27, 2001]



Sec. 837.305  Lump-sum credit not reduced.

    When annuity continues during the period of reemployment, and the 
reemployment is subject to annuity offset under the provisions of Sec. 
837.303 of this subpart, or any similar provision of law or regulation, 
the amount of an annuitant's lump-sum credit to the Fund shall not be 
reduced by the amount of annuity allocable to the period of 
reemployment.



Sec. 837.306  Refund of lump-sum credit.

    An annuitant serving as a justice or judge of the United States, as 
defined by section 451 of title 28, United States Code, may apply for 
and receive payment of the annuitant's lumpsum credit, less the amount 
of annuity or other benefits previously paid on that account. Receipt of 
a refund under this section will irrevocably terminate the right to 
annuity, and the annuitant status, of the recipient, based on any prior 
separations from employment covered by CSRS or FERS.

[[Page 186]]



             Subpart D_Reemployment of Disability Annuitants



Sec. 837.401  Generally.

    A disability annuitant may be reemployed in any position for which 
he or she is qualified.



Sec. 837.402  Special notice.

    (a) To annuitant. In addition to the advice described in paragraph 
837.103(b) of this part, the agency should generally also advise a 
disability annuitant, in writing, prior to reemployment, that--
    (1) Reemployment on a permanent basis in a position equivalent in 
grade and pay to the position from which the annuitant retired may 
constitute the basis for an OPM finding of recovery from disability;
    (2) Reemployment subject to medical and physical qualification 
standards equivalent to those of the position from which the annuitant 
retired may constitute the basis for an OPM finding of recovery from 
disability;
    (3) The pay of the position in which the annuitant is reemployed, 
prior to the offset of annuity, or the pay of an interim appointment 
under Sec. 772.102 of this chapter, as may be applicable, will be 
included as earnings in determining whether the disability annuity will 
be terminated due to restoration to earning capacity;
    (4) Receipt of, or continued entitlement to receive, full or partial 
FEC benefits during reemployment, when those benefits are based on the 
same injury or medical condition that is the basis for OPM's award of 
disability retirement, is conclusive evidence (unless there is 
contravening medical evidence) that the annuitant has not recovered from 
the disability; and
    (5) A disability annuitant age 60 or over cannot be found by OPM to 
be restored to earning capacity, and can only be found recovered at the 
annuitant's request.
    (b) To OPM. On reemployment of a disability annuitant, the employing 
agency shall, in addition to the notice required by Sec. 837.103(a) of 
this part, notify OPM in writing of--
    (1) The physical and medical requirements of the position (providing 
a copy of the employee's position description);
    (2) The position's grade level and/or rate of pay;
    (3) Whether the employment is full-time, part-time, or intermittent;
    (4) Whether, to the best of the agency's knowledge, the reemployed 
annuitant is receiving, or entitled to receive, FEC benefits; and
    (5) Whether any medical evidence was used in making the employment 
decision, and if so, provide OPM with a copy of the medical information.



Sec. 837.403  Termination of annuity during reemployment.

    (a) Agency action. When a reemployed disability annuitant is found 
recovered from disability or restored to earning capacity by OPM, OPM 
shall terminate the annuity as of the date of the finding, and the 
employing agency shall cease reducing pay by the amount of annuity 
allocable to the period of reemployment effective that same date. If the 
appointment is subject to retirement deductions, retirement deductions 
will begin or continue, as the case may be.
    (b) Subsequent benefits--(1) CSRS. If, on separation from a period 
of reemployment during which the disability annuity was terminated 
because of recovery or restoration to earning capacity, the former 
disability annuitant is entitled to either an immediate or deferred 
annuity based on the most recent separation, any right to an annuity 
based on a prior separation is permanently extinguished. If no such 
right to immediate or deferred annuity accrues based on this most recent 
separation, however, any right to immediate or deferred annuity will be 
determined on the basis of the next prior separation.
    (2) FERS. If a disability annuity is terminated during a period of 
reemployment because of recovery or restoration to earning capacity, any 
right to an annuity based on a prior separation is permanently 
extinguished, except as otherwise provided by Sec. 844.405(b)(2) of 
this chapter.



Sec. 837.404  Reinstatement of annuity during a period of employment 
not subject to CSRS or FERS.

    When OPM reinstates the disability annuity of an individual employed 
in a

[[Page 187]]

position not subject to CSRS or FERS, the employing agency shall 
withhold retirement deductions and offset pay subject to the provisions 
of subpart C of this part, as of the date of OPM's administrative 
determination of reinstatement. OPM shall offset from any retroactive 
payment of annuity for a period that is also a period of employment an 
amount equal to the amount of annuity, or the pay for the period of 
employment, whichever is the lesser.



               Subpart E_Retirement Benefits on Separation



Sec. 837.501  Refund of retirement deductions.

    A reemployed annuitant who separates from reemployment without title 
to either a supplemental annuity or a redetermined annuity under this 
subpart is entitled to have any retirement deductions withheld from pay 
during the period of reemployment refunded without interest.



Sec. 837.502  Reinstatement of annuity.

    (a) When appropriate. (1) When an annuity was terminated because of 
reemployment under the provisions of Sec. 837.202 of this part, or any 
similar provision of statute or regulation in effect prior to the 
promulgation of this part, the annuity that was terminated will be 
reinstated effective the date immediately following the date the 
reemployed annuitant separated from reemployment, if--
    (i) The reemployed annuitant's right to annuity has not been 
terminated under any other provision of regulation or statute; and
    (ii) The reemployed annuitant is not entitled to either an immediate 
or deferred CSRS or FERS annuity based on the separation from 
reemployment.
    (2) When an annuity was suspended because of reemployment under the 
provisions of Sec. 837.203 of this part, the annuity that was suspended 
will be reinstated effective the date immediately following the date the 
reemployed annuitant separated from reemployment.
    (b) Amount of reinstated annuity. The amount of an annuity 
reinstated under the provisions of paragraph (a)(2) of this section will 
be the amount of the annuity at the effective date of termination, 
adjusted by such adjustments as would have occurred had the annuity 
remained payable during the period of reemployment.



Sec. 837.503  Supplemental annuity.

    (a) Title requirements. A reemployed annuitant is entitled, on 
separation, or conversion to intermittent service, to a supplemental 
annuity if--
    (1) The annuitant performed--
    (i) At least 1 year of actual, continuous, full-time service;
    (ii) Actual, continuous part-time service equivalent to 1 year of 
actual full-time service; or
    (iii) A combination of part-time and full-time actual, continuous 
service that is equivalent to 1 year of actual full-time service; and
    (2)(i) The annuity is not terminated or suspended on reemployment; 
and
    (ii) The pay during reemployment was subject to offset by the amount 
of annuity allocable to the period of reemployment; or
    (iii) The reemployed annuitant separates from an interim appointment 
made under the provisions of Sec. 772.102 of this chapter.
    (b) Computation of supplemental annuity--(1) CSRS. (i) That portion 
of a supplemental annuity that is based on the total years and full 
months of creditable reemployment service performed while covered under 
CSRS, is computed under the provisions of 5 U.S.C. 8339(a), (b), (d), 
(e), (h), (i), (n) and (q). Unused sick leave to the reemployed 
annuitant's credit immediately prior to separation from reemployed 
annuitant service will be credited under the rules prescribed in Sec. 
831.302 of this chapter, and 5 U.S.C. 8339(m), not to exceed the amount 
of unused sick leave available immediately before the effective date of 
an election of FERS coverage, and not including any unused sick leave 
included in the computation of an annuity or supplemental annuity the 
annuitant is receiving at the time of separation from the most recent 
period of reemployment.
    (ii) A supplemental annuity computed in whole or in part under the 
provisions of this paragraph, using CSRS-Offset service, is subject to 
reduction under subpart G of this part.

[[Page 188]]

    (2) FERS. That portion of a supplemental annuity that is based on 
the total years and full months of creditable reemployment service 
performed on and after the effective date of FERS coverage is computed 
under the provisions of 5 U.S.C. 8415 (a) through (f).
    (3) Average pay. The average pay used in the computation of a 
supplemental annuity is the average basic pay for the entire period of 
actual continuous reemployment service, excluding intermittent service.
    (4) Survivor reduction. If the reemployed annuitant's annuity, at 
the time he or she applies for supplemental annuity, is reduced to 
provide a survivor benefit for a spouse, (or, for FERS annuitants only, 
a former spouse), the supplemental annuity will be reduced by 10 
percent, and the survivor annuities increased, if the annuitant was 
retired under CSRS, by 55 percent of the supplemental annuity, and if 
the annuitant was retired under FERS, by 50 percent of the supplemental 
annuity, unless the reemployed annuitant notifies OPM at the time of 
application that he or she does not wish to have such reductions and 
increases effected.
    (c) Creditable service. (1) All actual reemployment service 
performed after the date of retirement on a full-time or part-time basis 
may be credited in the computation of a supplemental annuity provided--
    (i) When the reemployment service was performed on or after October 
1, 1982, retirement deductions were withheld or, for CSRS annuitants, a 
deposit has been paid under the provisions of 5 U.S.C. 8334;
    (ii) The reemployment service was not performed subject to another 
retirement system, except when the deductions under the other retirement 
system have been refunded and a deposit paid to OPM, where the law so 
permits, or benefits under the other retirement system have been waived 
in favor of CSRS or FERS benefits; and
    (iii) The reemployment service has not been used in the computation 
of another supplemental or redetermined annuity.
    (2) A period of reemployment service during which annuitant status 
continues and annuity is paid, and which is excluded from the normal 
annuity offset from pay by special statutory provision, cannot be 
credited in the computation of a supplemental annuity or any subsequent 
annuity entitlement.
    (d) Commencing date. (1) Except as provided in clause (2) of this 
subparagraph, the supplemental annuity commences on the earlier of the 
first day of the month following--
    (i) The day the annuitant is separated from reemployment; or
    (ii) The day the annuitant is converted to an intermittent status.
    (2) The supplemental annuity of a FERS annuitant, and the 
supplemental annuity of a CSRS reemployed annuitant who has not elected 
FERS coverage and who was--
    (i) Involuntarily separated from the reemployment service (except by 
removal for cause on charges of misconduct or delinquency);
    (ii) Involuntarily converted to an intermittent status, or;
    (iii) Separated from reemployment service, or converted to 
intermittent status, after serving 3 days or less in the month of such 
separation or conversion--shall commence on the earlier of the day after 
separation from reemployment service, the effective date of conversion 
to intermittent status, or the day after the date pay ceases.



Sec. 837.504  Redetermined annuity.

    (a) Title requirements. (1) A reemployed annuitant is entitled, on 
separation, or conversion to intermittent service, to a redetermined 
annuity if--
    (i) The annuitant performed--
    (A) At least 5 years of actual, continuous, full-time service;
    (B) Actual, continuous part-time service equivalent to 5 years of 
actual full-time service, or;
    (C) A combination of part-time and full-time actual, continuous 
service that is equivalent to 5 years of actual full-time service.
    (ii)(A) The annuity was not terminated or suspended during 
reemployment; and
    (B) The pay during reemployment was subject to offset by the amount 
of annuity allocable to the period of reemployment; or

[[Page 189]]

    (C) The reemployed annuitant separated from an interim appointment 
made under the provisions of Sec. 772.102 of this chapter.
    (iii) Retirement deductions are withheld, or a deposit is paid, for 
the entire period of continuous reemployment service immediately 
preceding the most recent separation from reemployment service; and
    (iv) The reemployed annuitant elects the redetermined annuity in 
lieu of his or her prior annuity and the supplemental annuity that would 
be payable under Sec. 837.503 of this subpart.
    (2) An employee whose annuity was terminated under the provisions of 
Sec. 837.202(b)(1)(iii) of this part, and who has not elected FERS 
coverage, is entitled to a redetermined annuity on separation.
    (b) Computation. (1) A redetermined annuity is computed using all 
the reemployed annuitant's creditable service, under the provisions of 
law in effect governing the payment of CSRS and/or FERS annuities, as 
may be applicable, at the time of separation from reemployment service, 
or conversion to intermittent status.
    (2) The amount of the redetermined annuity of an individual whose 
previous annuity was terminated under the provisions of Sec. 
837.202(b)(1)(iii) of this part will at least equal the amount of the 
terminated annuity plus any increases under section 8340 of title 5, 
United States Code, occurring after the termination of the previous 
annuity and before the commencement of the redetermined annuity, 
adjusted by any annuity increase or reduction resulting from additional 
or different elections made by the reemployed annuitant.
    (c) Commencing date. The commencing date of the redetermined annuity 
is the same as the law and/or regulations would provide in the case of a 
retiring employee.



Sec. 837.505  Cost-of-living adjustments on Member annuities.

    (a) Applying cost-of-living adjustments to recomputed Member 
annuities under CSRS. A member annuity benefit that is recomputed under 
section 8344(d)(1) of title 5, United States Code, which applies to 
certain former Members who become employed in an appointive position 
subject to CSRS, will include the cost-of-living adjustments under 
section 8340 of title 5, United States Code, that are effective after 
the commencing date of the benefit computed under section 8344(d)(1).
    (b) Limitations on cost-of-living adjustments on recomputed Member 
annuities under CSRS. For purposes of determining limitations on cost-
of-living adjustments under section 8340(g) of title 5, United States 
Code, the final (or average) salary of a Member whose benefit has been 
recomputed under section 8344(d)(1) of title 5, United States Code, 
which applies to certain former Members who become employed in an 
appointive position subject to CSRS, will be increased by adjustments in 
the rates of the General Schedule under subpart I of chapter 53 of title 
5, United States Code, that are effective after the commencing date of 
the benefit computed under section 8344(d)(1).

[59 FR 10267, Mar. 4, 1994]



Sec. 837.506  Computation of redetermined annuity for former employees 
of nonappropriated fund instrumentalities.

    (a) The redetermined annuity of a former employee of a 
nonappropriated fund instrumentality who elected CSRS or FERS coverage 
under 5 CFR part 847, subpart D, is recomputed under 5 CFR part 847, 
subpart F.
    (b) The redetermined annuity of a former employee of a 
nonappropriated fund instrumentality who elected CSRS or FERS retirement 
credit under 5 CFR part 847, subpart H, is recomputed under 5 CFR part 
847, subpart I.

[68 FR 2178, Jan. 16, 2003]



                        Subpart F_Death Benefits



Sec. 837.601  Generally.

    Except as otherwise provided by this subpart, when an annuitant who 
is reemployed under circumstances that provide for continuation of 
annuitant status during reemployment dies, death benefits are payable 
under CSRS or FERS as if the individual died as an annuitant, and not as 
employee.

[[Page 190]]



Sec. 837.602  Lump-sum payment of retirement deductions.

    If an annuitant reemployed subject to the provisions of this part 
dies while so reemployed, and the annuitant would not have been entitled 
to a supplemental annuity, had the separation been for reasons other 
than death, or if there is no supplemental spousal survivor annuity 
payable (including a survivor annuity payable to a former spouse, if the 
annuitant retired under FERS) the amount of retirement deductions 
withheld during the period of reemployment will be paid in a lump sum to 
the person entitled under the provisions of 5 U.S.C. 8342(c) or 8424(d), 
as appropriate.



Sec. 837.603  Increased survivor benefits.

    (a) Supplemental survivor annuity. (1) If an annuitant reemployed 
subject to the provisions of this part dies while so reemployed, and the 
annuitant would have been entitled to a supplemental annuity, had the 
separation been for reasons other than death, and there is a spousal 
survivor annuity payable (including a survivor annuity payable to a 
former spouse, if the annuitant retired under FERS) the amount of the 
spousal survivor annuity will, if any necessary deposit for service 
credit is made, be increased by 55 percent of the supplemental annuity, 
if the reemployed annuitant was retired under CSRS, or 50 percent of the 
supplemental annuity, if the reemployed annuitant was retired under 
FERS.
    (2) Supplemental survivor annuity benefits payable under this 
paragraph, computed in whole or in part under the provisions of Sec. 
837.503(b)(1)(i) of this part, using CSRS-Offset service, are subject to 
reduction under subpart G of this part.
    (b) Redetermined survivor annuity. If an annuitant reemployed 
subject to the provisions of this part dies while so reemployed, and the 
annuitant would have been entitled to elect a redetermined annuity, had 
the separation been for reasons other than death, and if there is a 
spousal survivor annuity payable (including a survivor annuity payable 
to a former spouse, if the annuitant retired under FERS), a person 
entitled to a spousal survivor annuity may elect to have his or her 
survivor annuity computed as if the annuitant had elected a redetermined 
annuity, provided any necessary deposit for service credit is made.



                          Subpart G_CSRS Offset



Sec. 837.701  Offset from supplemental annuity.

    (a) OPM will reduce the supplemental annuity of an individual who 
has performed CSRS-Offset service, if the individual is entitled, or on 
proper application would be entitled, to old-age benefits under title II 
of the Social Security Act.
    (b) The reduction required under paragraph (a) of this section is 
effective on the first day of the month during which the reemployed 
annuitant--
    (1) Is entitled to a supplemental annuity under this part; and
    (2) Is entitled, or on proper application would be entitled, to old-
age benefits under title II of the Social Security Act.
    (c) Subject to paragraphs (d) and (e) of this section, the amount of 
the reduction required under paragraph (a) of this section is the lesser 
of--
    (1) The difference between--
    (i) The social security old-age benefit for the month referred to in 
paragraph (b) of this section; and
    (ii) The old-age benefit that would be payable to the individual for 
the month referred to in paragraph (b) of this section, excluding all 
CSRS-Offset wages as a reemployed annuitant, and assuming the annuitant 
was fully insured (as defined by section 214(a) of the Social Security 
Act); or
    (2) The product of--
    (i) The old-age benefit to which the individual is entitled or 
would, on proper application, be entitled; and
    (ii) A fraction--
    (A) The numerator of which is the annuitant's total CSRS-Offset 
service as a reemployed annuitant, rounded to the nearest whole number 
of years not exceeding 40 years; and
    (B) The denominator of which is 40.
    (d) Cost-of-living adjustments under 5 U.S.C. 8340 occurring after 
the effective date of the reduction required under paragraph (a) of this 
section will be

[[Page 191]]

based on only the supplemental annuity remaining after reduction under 
this subpart.
    (e) The amounts for paragraphs (c)(1)(i), (c)(1)(ii), and (c)(2)(i) 
of this section are computed without regard to subsections (b) through 
(1) of section 203 of the Social Security Act (relating to reductions in 
social security benefits), and without applying the provisions of the 
second sentence of section 215(a)(7)(B)(i) or section 215(d)(5)(ii) of 
the Social Security Act (relating to part of the computation of the 
social security windfall elimination provisions).
    (f) OPM will accept the determination of the Social Security 
Administration, submitted in a form prescribed by OPM, concerning 
entitlement to social security benefits and the beginning and ending 
dates thereof.



Sec. 837.702  Offset from supplemental survivor annuity.

    (a) OPM will reduce a supplemental survivor annuity (an annuity 
under 5 U.S.C. 8341) based on the service of an individual who performed 
CSRS-Offset service, if the survivor annuitant is entitled, or on proper 
application would be entitled, to survivor benefits under section 
202(d), (e), or (f) (relating to children's, widows', and widowers' 
benefits, respectively) of the Social Security Act.
    (b) The reduction required under paragraph (a) of this section 
begins (or is reinstated) on the first day of the month during which the 
survivor annuitant--
    (1) Is entitled to a disability or survivor annuity under CSRS; and
    (2) Is entitled, or on proper application would be entitled, to 
survivor benefits under the Social Security Act provisions mentioned in 
paragraphs (a) and (c) of this section, respectively.
    (c) The reduction under paragraphs (a) of this section will be 
computed and adjusted in a manner consistent with the provisions of 
Sec. 837.701 (c) through (e) of this part.
    (d) A reduction under paragraph (a) of this section stops on the 
date entitlement to the disability or survivor benefits under title II 
of the Social Security Act terminates. In the case of a survivor 
annuitant who has not made proper application for the social security 
benefit, the reduction under paragraph (a) of this section stops on the 
date entitlement to such survivor benefits would otherwise terminate. If 
a social security benefit is reduced under any provision of the Social 
Security Act, even if reduced to zero, entitlement to that benefit is 
not considered to have terminated.
    (e) OPM will accept the determination or certification of the Social 
Security Administration, submitted in a form prescribed by OPM, 
concerning entitlement to social security survivor benefits and the 
beginning and ending dates thereof.



       Subpart H_Alternative Entitlements and Canceled Retirements



Sec. 837.801  Unperfected entitlement to CSRS benefits based on a 
prior separation.

    (a) An employee who meets the age and service requirements for title 
to a non-disability annuity under CSRS on the basis of a prior 
separation, but did not apply for that annuity before a subsequent 
separation from service to which a different annuity entitlement 
attaches, may elect, on application, to receive either--
    (1) The annuity based on the later separation; or
    (2) The annuity based on the prior separation, with payment of 
annuity suspended during the period(s) of employment subsequent to the 
commencing date of annuity, and such benefits as would be payable had 
the subsequent period(s) of employment been performed under the 
provisions of this part.
    (b) When an individual who has applied for a deferred annuity under 
CSRS is reemployed under CSRS before the commencing date of that 
annuity, the application is deemed to have not been made.



Sec. 837.802  Benefits under another retirement system for Federal 
employees based on the most recent separation.

    (a) Generally. An annuitant who has performed reemployment service 
after the commencing date of annuity under

[[Page 192]]

the provisions of another retirement system, and who is entitled to an 
annuity benefit from the other retirement system during a period in 
which he or she is also entitled to an annuity benefit under CSRS or 
FERS, may receive both benefits simultaneously, or for the same period, 
except that the annuitant may not receive both benefits simultaneously, 
or for the same period, if--
    (1) The provisions of law or regulation governing the other 
retirement system do not permit the annuitant to receive both benefits 
simultaneously, or for the same period of time; or
    (2) Entitlement to the annuity from the other retirement system is 
based on service credited in the computation of the CSRS or FERS 
annuity, or service credited in the computation of the annuity from the 
other retirement system was used in the computation of the CSRS or FERS 
annuity.
    (b) Election of alternative benefits. (1) Where simultaneous receipt 
of, or entitlement to, both annuities is barred under the provisions of 
paragraph (a)(1) of this section, the annuitant must elect to receive 
either the annuity under the other retirement system, or the CSRS 
annuity.
    (2) Where the annuitant, under the provisions of paragraph (b)(1) of 
this section, elects to receive annuity from the other retirement system 
in lieu of the CSRS or FERS annuity, the CSRS or FERS annuity terminates 
as of the commencing date of the other annuity, and any overpayment of 
CSRS annuity will be offset from the other annuity and paid to OPM.
    (c) Recomputation. Where simultaneous receipt of annuities from more 
than one retirement system is barred by paragraph (a)(2), but not by 
paragraph (a)(1), of this section, the CSRS or FERS annuity may be 
recomputed to exclude credit for service credited in determining 
entitlement to, or the amount of, the annuity from the other retirement 
system, effective as of the commencing date of the annuity from the 
other retirement system for Federal employees, and the recomputed CSRS 
or FERS annuity may be paid simultaneous with, or for the same period 
as, the annuity from the other retirement system for Federal employees.
    (d) Forfeiture. Where an annuitant's coverage as an employee under 
another retirement system, whether by election or by operation of law or 
regulation, results in forfeiture of annuity rights under CSRS or FERS, 
the CSRS or FERS annuity will terminate as of the effective date of 
coverage.
    (e) Survivors. The rules detailed in this section in regard to dual 
entitlement to annuity benefits under CSRS or FERS and another 
retirement system also apply to dual entitlement to survivor benefits 
under CSRS or FERS and another retirement system, unless the particular 
circumstance is otherwise governed by specific provision of statute or 
regulation.
    (f) Agency responsibilities. The agency responsible for 
administering another retirement system must--
    (1) Promptly notify OPM of an election of coverage under that 
retirement system by a reemployed CSRS or FERS annuitant, or the 
coverage of a reemployed CSRS annuitant under that retirement system by 
election or operation of law or regulation, when such coverage affects 
the annuitant's entitlement to CSRS annuity;
    (2) Promptly notify OPM when a reemployed annuitant separates with 
entitlement to an annuity under the other retirement system that cannot, 
under the provisions of paragraph (a) of this section, be paid 
simultaneous with, or during the same period as, the CSRS annuity; and
    (3) Reimburse OPM for overpayments of annuity resulting from a 
failure to comply with paragraphs (b) (1) and (2) of this section.



Sec. 837.803  Cancellation of retirement by judicial or administrative
authority.

    (a) Cancellation of retirement action. A separation from employment 
on which an application for retirement is based may only be canceled by 
the former employing agency in response to a direct and final order of a 
judicial or administrative body charged with the responsibility of 
reviewing the legality of the separation, and authorized to make such 
order, or by agreement between

[[Page 193]]

the annuitant and the former employing agency in resolution of a 
grievance, complaint, dispute, appeal or other action, involving an 
allegedly erroneous separation, before such authority.
    (b) Agency notification to OPM. Upon receiving a final order 
requiring cancellation of the annuitant's separation or after the 
annuitant and the agency agree to cancel the separation, the employing 
agency must notify OPM and request the amount of the erroneous payment 
to be recovered under Sec. 550.805(e) of this chapter from any back pay 
adjustment to which the employee may be entitled.
    (c) Collection of erroneously paid retirement benefits. (1) If OPM 
determines that an overpayment of annuity or lump-sum credit has 
occurred and the employee is entitled to receive back pay because of the 
canceled separation, the overpaid retirement benefits must be deducted 
to the extent they can be recovered from the back pay adjustment as 
required by Sec. 550,805(e) of this chapter.
    (2) Amounts recovered from back pay will not be subject to waiver 
consideration under the provisions of 5 U.S.C. 8346(b) or 8470(b). If 
there is no back pay or the back pay is insufficient to recover the 
entire payment, the employee may request that OPM waive the uncollected 
portion of the overpayment. If waiver is not granted, the employee must 
repay the erroneous payment.



Sec. 837.804  Finality of elections under this subpart.

    Except as otherwise provided by this subpart, an election of 
coverage under, or annuity from, another retirement system, in lieu of 
CSRS or FERS coverage or annuity, or the election between simultaneous 
entitlements under CSRS or FERS, is final and conclusive for the period 
of simultaneous entitlement to coverage or annuity.



PART 838_COURT ORDERS AFFECTING RETIREMENT BENEFITS--Table of Contents



                    Subpart A_Court Orders Generally

        Organization and Structure of Regulations on Court Orders

Sec.
838.101 Purpose and scope.
838.102 Regulatory structure.
838.103 Definitions.

                  Statutory Limit on Court's Authority

838.111 Exemption from legal process except as authorized by Federal 
          law.

                      Division of Responsibilities

838.121 OPM's responsibilities.
838.122 State courts' responsibilities.
838.123 Claimants' responsibilities.
838.124 Employees' and retirees' responsibilities.

                Procedures Applicable to All Court Orders

838.131 Computation of time.
838.132 Payment schedules.
838.133 Minimum awards.
838.134 Receipt of multiple court orders.
838.135 Settlements.
838.136 Administrative appeal rights.

                Address for Filing Court Orders With OPM

Appendix A to Subpart A--Addresses for Serving Court Orders Affecting 
          CSRS or FERS Benefits

  Subpart B_Procedures for Processing Court Orders Affecting Employee 
                                Annuities

                          Regulatory Structure

838.201 Purpose and scope.

                          Availability of Funds

838.211 Amounts subject to court orders.

                  Application and Processing Procedures

838.221 Application requirements.
838.222 OPM action on receipt of a court order acceptable for 
          processing.
838.223 OPM action on receipt of a court order not acceptable for 
          processing.
838.224 Contesting the validity of court orders.
838.225 Processing amended court orders.

                           Payment Procedures

838.231 Commencing date of payments.
838.232 Suspension of payments.
838.233 Termination of payments.
838.234 Collection of arrearages.
838.235 Payment of lump-sum awards.
838.236 Court orders barring payment of annuities.
838.237 Death of the former spouse.

               Procedures for Computing the Amount Payable

838.241 Cost-of-living adjustments.
838.242 Computing lengths of service.
838.243 Minimum amount of awards.

[[Page 194]]

  Subpart C_Requirements for Court Orders Affecting Employee Annuities

838.301 Purpose and scope.
838.302 Language not acceptable for processing.
838.303 Expressly dividing employee annuity.
838.304 Providing for payment to the former spouse.
838.305 OPM computation of formulas.
838.306 Specifying type of annuity for application of formula, 
          percentage or fraction.

 Subpart D_Procedures for Processing Court Orders Affecting Refunds of 
                         Employee Contributions

                          Regulatory Structure

838.401 Purpose and scope.

                          Availability of Funds

838.411 Amounts subject to court orders.

                  Application and Processing Procedures

838.421 Application requirements.
838.422 Timeliness of application.
838.423 OPM action on receipt of a court order acceptable for 
          processing.
838.424 OPM action on receipt of a court order not acceptable for 
          processing.
838.425 Contesting the validity of court orders.

                           Payment Procedures

838.431 Correcting failures to provide required spousal notification.
838.432 Court orders barring payment of refunds.

               Procedures for Computing the Amount Payable

838.441 Computing lengths of service.

 Subpart E_Requirements for Court Orders Affecting Refunds of Employee 
                              Contributions

838.501 Purpose and scope.
838.502 Expressly dividing a refund of employee contributions.
838.503 Providing for payment to the former spouse.
838.504 OPM computation of formulas.
838.505 Barring payment of refunds.

Subpart F_Terminology Used in Court Orders Affecting Employee Annuities 
                  or Refunds of Employee Contributions

                          Regulatory Structure

838.601 Purpose and scope.

                       Identification of Benefits

838.611 Identifying the retirement system.
838.612 Distinguishing between annuities and contributions.

                         Computation of Benefits

838.621 Prorata share.
838.622 Cost-of-living and salary adjustments.
838.623 Computing lengths of service.
838.624 Distinguishing between formulas and fixed amounts.
838.625 Types of annuity.

                            Model Paragraphs

Appendix A to Subpart F--Recommended Language for Court Orders Dividing 
          Employee Annuities

Subpart G_Procedures for Processing Court Orders Awarding Former Spouse 
                           Survivor Annuities

                          Regulatory Structure

838.701 Purpose and scope.

                    Limitations on Survivor Annuities

838.711 Maximum former spouse survivor annuity.

                  Application and Processing Procedures

838.721 Application requirements.
838.722 OPM action on receipt of a court order acceptable for 
          processing.
838.723 OPM action on receipt of a court order not acceptable for 
          processing.
838.724 Contesting the validity of court orders.
838.725 Effect on employee and retiree election rights.

                           Payment Procedures

838.731 Commencing date of payments.
838.732 Termination of entitlement.
838.733 Rights of current and other former spouses after termination of 
          a former spouse's entitlement.
838.734 Payment of lump-sum awards by survivor annuity.
838.735 Cost-of-living adjustments.

Subpart H_Requirements for Court Orders Awarding Former Spouse Survivor 
                                Annuities

838.801 Purpose and scope.
838.802 CSRS limitations.
838.803 Language not acceptable for processing.
838.804 Court orders must expressly award a former spouse survivor 
          annuity or expressly direct an employee or retiree to elect to 
          provide a former spouse survivor annuity.
838.805 OPM computation of formulas in computing the designated base.
838.806 Amended court orders.

[[Page 195]]

838.807 Cost must be paid by annuity reduction.

   Subpart I_Terminology Used in Court Orders Awarding Former Spouse 
                           Survivor Annuities

                          Regulatory Structure

838.901 Purpose and scope.

                       Identification of Benefits

838.911 Identifying the retirement system.
838.912 Specifying an award of a former spouse survivor annuity.

                         Computation of Benefit

838.921 Determining the amount of a former spouse survivor annuity.
838.922 Prorata share defined.
838.923 Cost-of-living adjustment before the death of a retiree.

                        Miscellaneous Provisions

838.931 Court orders that provide temporary awards of former spouse 
          survivor annuities.
838.932 Court orders that permit the former spouse to elect to receive a 
          former spouse survivor annuity.
838.933 Payment of the cost of a former spouse survivor annuity.

                            Model Paragraphs

Appendix A to Subpart I--Recommended Language for Court Orders Awarding 
          Former Spouse Survivor Annuities

   Subpart J_Court Orders Affecting Civil Service Retirement Benefits

838.1001 [Reserved]
838.1002 Relation to other regulations.
838.1003 Definitions.
838.1004 Qualifying court orders.
838.1005 Applications by former spouse.
838.1006 Amounts payable.
838.1007 Preliminary review.
838.1008 Notifications.
838.1009 Decisions.
838.1010 Court orders or decrees preventing payment of lump sums.
838.1011 Effective dates.
838.1012 Death of the former spouse.
838.1013 Limitations.
838.1014 Guidelines on interpreting court orders.
838.1015 Liability.
838.1016 Receipt of multiple court orders.
838.1017 Cost-of-living adjustments.
838.1018 Settlements.

Appendix A to Subpart J--Guidelines for Interpreting State Court Orders 
          Dividing Civil Service Retirement Benefits
Appendix B to Subpart J--Guidelines for Interpreting State Court Orders 
          Awarding Survivor Annuity Benefits to Former Spouses

     Subpart K_Court Orders Under the Child Abuse Accountability Act

                          Regulatory Structure

838.1101 Purpose and scope.

                          Availability of Funds

838.1111 Amounts subject to child abuse judgment enforcement orders.

   Application, Processing, and Payment Procedures and Documentation 
                              Requirements

838.1121 Procedures and requirements.

    Authority: 5 U.S.C. 8347(a) and 8461(g). Subparts B, C, D, E, J, and 
K also issued under 5 U.S.C. 8345(j)(2) and 8467(b). Sections 838.221, 
838.422, and 838.721 also issued under 5 U.S.C. 8347(b).

    Source: 57 FR 33574, July 29, 1992, unless otherwise noted.



                    Subpart A_Court Orders Generally

        Organization and Structure of Regulations on Court Orders



Sec. 838.101  Purpose and scope.

    (a)(1) This part regulates the Office of Personnel Management's 
handling of court orders affecting the Civil Service Retirement System 
(CSRS) or the Federal Employees Retirement System (FERS), both of which 
are administered by the Office of Personnel Management (OPM). Generally, 
OPM must comply with court orders, decrees, or court-approved property 
settlement agreements in connection with divorces, annulments of 
marriage, or legal separations of employees, Members, or retirees that 
award a portion of the former employee's or Member's retirement benefits 
or a survivor annuity to a former spouse.
    (2) In executing court orders under this part, OPM must honor the 
clear instructions of the court. Instructions must be specific and 
unambiguous. OPM will not supply missing provisions, interpret ambiguous 
language, or clarify the court's intent by researching individual State 
laws. In carrying out the court's instructions,

[[Page 196]]

OPM performs purely ministerial actions in accordance with these 
regulations. Disagreement between the parties concerning the validity or 
the provisions of any court order must be resolved by the court.
    (b) This part prescribes--
    (1) The requirements that a court order must meet to be acceptable 
for processing under this part;
    (2) The procedures that a former spouse or child abuse creditor must 
follow when applying for benefits based on a court order under sections 
8341(h), 8345(j), 8445 or 8467 of title 5, United States Code;
    (3) The procedures that OPM will follow in honoring court orders and 
in making payments to the former spouse or child abuse creditor; and
    (4) The effect of certain words and phrases commonly used in court 
orders affecting retirement benefits.
    (c)(1) Subparts A through I of this part apply only to court orders 
received by OPM on or after January 1, 1993.
    (2) Subpart J of this part applies only to court orders received by 
OPM before January 1, 1993.
    (3) Subpart K of this part applies only to court orders received by 
OPM on or after October 14, 1994.
    (d) This part has no application to the Thrift Savings Plan 
described in subchapter III of chapter 84 of title 5, United States 
Code.

[57 FR 33574, July 29, 1992, as amended at 59 FR 66637, 66638, Dec. 28, 
1994]



Sec. 838.102  Regulatory structure.

    (a) This part is organized as follows:
    (1) Subpart A contains information and rules of general application 
to all court orders directed at CSRS or FERS retirement benefits.
    (2) Subparts B and C of this part contain information about court 
orders directed at ongoing employee annuity payments.
    (3) Subparts D and E of this part contain information about court 
orders directed at refunds of employee contributions.
    (4) Subpart F of this part contains information about the effect of 
words and phrases commonly used in court orders affecting ongoing 
employee annuity payments and refunds of employee contributions.
    (5) Subparts G, H, and I of this part contain information about 
court orders awarding former spouse survivor annuities.
    (6) Subpart J of this part contains the rules applicable to court 
orders filed under procedures in effect prior to the implementation of 
this part. These rules continue to apply to court orders received by OPM 
before January 1, 1993.
    (7) Subpart K of this part contains rules applicable to court orders 
for the enforcement of judgments rendered against employees or 
annuitants for physical, sexual, or emotional abuse of a child.
    (b) Part 890 of this chapter contains information about coverage 
under the Federal Employees Health Benefits Program.
    (c) Part 581 of this chapter contains information about garnishment 
of Government payments including salary and CSRS and FERS retirement 
benefits.
    (d) Parts 294 and 297 of this chapter and Sec. Sec. 831.106 and 
841.108 contain information about disclosure of information from OPM 
records.
    (e) Subpart V of part 831 of this chapter and subpart G of part 842 
of this chapter contain information about how court orders affect 
eligibility to make an alternative form of annuity election.
    (f) Part 1600 of this title contains information about court orders 
affecting the Federal Employees Thrift Savings Plan.
    (g) Subpart F of part 831 of this chapter, subpart F of part 841 of 
this chapter, and part 843 of this chapter contain information about 
entitlement to survivor annuities.
    (h) Subpart T of part 831 of this chapter and subpart B of part 843 
of this chapter contain information about refunds of employee 
contributions and lump-sum death benefits.
    (i) Parts 870, 871, 872, and 873 of this chapter contain information 
about the Federal Employees Group Life Insurance Program.

[57 FR 33574, July 29, 1992, as amended at 59 FR 66637, Dec. 28, 1994]

[[Page 197]]



Sec. 838.103  Definitions.

    In this part (except subpart J)--
    Child abuse creditor means an individual who applies for benefits 
under CSRS or FERS based on a child abuse judgment enforcement order.
    Child abuse judgment enforcement order means a court or 
administrative order requiring OPM to pay a portion of an employee 
annuity or a refund of employee contributions to a child abuse creditor 
as a means of collection of a ``judgment rendered for physically, 
sexually, or emotionally abusing a child'' as defined in sections 
8345(j)(3)(B) and 8467(c)(2) of title 5, United States Code.
    Civil Service Retirement System or CSRS means the retirement system 
for Federal employees described in subchapter III of chapter 83 of title 
5, United States Code.
    Court order means any judgment or property settlement issued by or 
approved by any court of any State, the District of Columbia, the 
Commonwealth of Puerto Rico, Guam, The Northern Mariana Islands, or the 
Virgin Islands, or any Indian court in connection with, or incident to, 
the divorce, annulment of marriage, or legal separation of a Federal 
employee or retiree.
    Court order acceptable for processing means a court order as defined 
in this section that meets the requirements of subpart C of this part to 
affect an employee annuity, subpart E of this part to affect a refund of 
employee contributions, or subpart H of this part to award a former 
spouse survivor annuity.
    Employee means an employee or Member covered by CSRS or FERS.
    Employee annuity means the recurring payments under CSRS or FERS 
made to a retiree. Employee annuity does not include payments of accrued 
and unpaid annuity after the death of a retiree under section 8342(g) or 
section 8424(h) of title 5, United States Code.
    ERISA means the Employees Retirement Income Security Act, 29 U.S.C. 
1001 et seq.
    Federal Employees Retirement System or FERS means the retirement 
system for Federal employees described in chapter 84 of title 5, United 
States Code.
    Former spouse means (1) in connection with a court order affecting 
an employee annuity or a refund of employee contributions, a living 
person whose marriage to an employee has been subject to a divorce, 
annulment of marriage, or legal separation resulting in a court order, 
or (2) in connection with a court order awarding a former spouse 
survivor annuity, a living person who was married for at least 9 months 
to an employee or retiree who performed at least 18 months of civilian 
service covered by CSRS or who performed at least 18 months of civilian 
service creditable under FERS, and whose marriage to the employee of 
retiree was terminated prior to the death of the employee or retiree.
    Former spouse survivor annuity means a recurring benefit under CSRS 
or FERS, or the basic employee death benefit under FERS as described in 
part 843 of this chapter, that is payable to a former spouse after the 
employee's or retiree's death.
    Gross annuity means the amount of monthly annuity payable after 
reducing the self-only annuity to provide survivor annuity benefits, if 
any, but before any other deduction. Unless the court order expressly 
provides otherwise, gross annuity also includes any lump-sum payments 
made to the retiree under section 8343a or section 8420a of title 5, 
United States Code.
    Member means a Member of Congress covered by CSRS or FERS.
    Net annuity means the amount of monthly annuity payable after 
deducting from the gross annuity any amounts that are--
    (1) Owed by the retiree to the United States;
    (2) Deducted for health benefits premiums under section 8906 of 
title 5, United States Code, and Sec. Sec. 891.401 and 891.402 of this 
chapter;
    (3) Deducted for life insurance premiums under section 8714a(d) of 
title 5, United States Code;
    (4) Deducted for Medicare premiums;
    (5) Properly withheld for Federal income tax purposes, if the 
amounts withheld are not greater than they would be if the retiree 
claimed all dependents to which he or she was entitled;

[[Page 198]]

    (6) Properly withheld for State income tax purposes, if the amounts 
withheld are not greater than they would be if the retiree claimed all 
dependents to which he or she was entitled; or
    (7) Already payable to another person based on a court order 
acceptable for processing or a child abuse judgment enforcement order.

Unless the court order expressly provides otherwise, net annuity also 
includes any lump-sum payments made to the retiree under section 8343a 
or section 8420a of title 5, United States Code.
    Reduction to provide survivor benefits means the reduction required 
by section 8339(j)(4) or section 8419(a) of title 5, United States Code.
    Refund of employee contributions means a payment of the lump-sum 
credit to a separated employee under section 8342(a) or section 8424(a) 
of title 5, United States Code. Refund of employee contributions does 
not include lump-sum payments made under section 8342(c) through (f) or 
section 8424(d) through (g) of title 5, United States Code.
    Retiree means a former employee or Member who is receiving recurring 
payments under CSRS or FERS based on his or her service as an employee. 
Retiree does not include a person receiving an annuity only as a current 
spouse, former spouse, child, or person with an insurable interest. 
Self-only annuity means the recurring payments to a retiree who has 
elected not to provide a survivor annuity to anyone. Unless the court 
order expressly provides otherwise, self-only annuity also includes any 
lump-sum payments made to the retiree under section 8343a or section 
8420a of title 5, United States Code.
    Self-only annuity means the recurring unreduced payments under CSRS 
or FERS to a retiree with no survivor annuity payable to anyone.
    Separated employee means a former employee or Member who has 
separated from a position in the Federal Government covered by CSRS and 
FERS under subpart B of part 831 of this chapter or subpart A of part 
842 of this chapter, respectively, and is not currently employed in such 
a position, and who is not a retiree.

[57 FR 33574, July 29, 1992, as amended at 58 FR 3202, Jan. 8, 1993; 59 
FR 66637, Dec. 28, 1994]

                  Statutory Limit on Court's Authority



Sec. 838.111  Exemption from legal process except as authorized by Federal law.

    (a) Employees, retirees, and State courts may not assign CSRS and 
FERS benefits except as provided in this part.
    (b) CSRS and FERS benefits are not subject to execution, levy, 
attachment, garnishment or other legal process except as expressly 
provided by Federal law.

                      Division of Responsibilities



Sec. 838.121  OPM's responsibilities.

    OPM is responsible for authorizing payments in accordance with 
clear, specific and express provisions of court orders acceptable for 
processing.



Sec. 838.122  State courts' responsibilities.

    State courts are responsible for--
    (a) Providing due process to the employee or retiree;
    (b) Issuing clear, specific, and express instructions consistent 
with the statutory provisions authorizing OPM to provide benefits to 
former spouses or child abuse creditors and the requirements of this 
part for awarding such benefits;
    (c) Using the terminology defined in this part only when it intends 
to use the meaning given to that terminology by this part;
    (d) Determining when court orders are invalid; and
    (e) Settling all disputes between the employee or retiree and the 
former spouse or child abuse creditor.

[57 FR 33574, July 29, 1992, as amended at 59 FR 66638, Dec. 28, 1994]



Sec. 838.123  Claimants' responsibilities.

    Claimants are responsible for--
    (a) Filing a certified copy of court orders and all other required 
supporting information with OPM;
    (b) Keeping OPM advised of their current mailing addresses;

[[Page 199]]

    (c) Notifying OPM of any changes in circumstances that could affect 
their entitlement to benefits; and
    (d) Submitting all disputes with employees or retirees to the 
appropriate State court for resolution.



Sec. 838.124  Employees' and retirees' responsibilities.

    Employees and retirees are responsible for--
    (a) Raising any objections to the validity of a court order in the 
appropriate State court; and
    (b) Submitting all disputes with former spouses to the appropriate 
State court for resolution.

                Procedures Applicable to all Court Orders



Sec. 838.131  Computation of time.

    (a) The rules applicable for computation of time under Sec. Sec. 
831.107 and 841.109 of this chapter apply to this part.
    (b)(1) Appendix A of this subpart lists the proper addresses for 
submitting court orders affecting CSRS and FERS benefits.
    (2) A former spouse or child abuse creditor should submit the 
documentation required by this part to the address provided in appendix 
A of this subpart. The component of OPM responsible for processing court 
orders will note the date of receipt on court orders that it receives.
    (3) If a court order is delivered to OPM at an address other than 
the address in appendix A of this subpart, the recipient will forward 
the court order to the component of OPM responsible for processing court 
orders. However, OPM is not considered to have received the court order 
until the court order is received in the component of OPM responsible 
for processing orders.

[57 FR 33574, July 29, 1992, as amended at 59 FR 66638, Dec. 28, 1994]



Sec. 838.132  Payment schedules.

    (a) Under CSRS and FERS, employee annuities and survivor annuities 
are payable on the first business day of the month following the month 
in which the benefit accrues.
    (b) In honoring and complying with a court order, OPM will not 
disrupt the payment schedule described in paragraph (a) of this section, 
despite any provision in the court order directing a different schedule 
of accrual or payment of amounts due the former spouse or child abuse 
creditor.

[57 FR 33574, July 29, 1992, as amended at 59 FR 66638, Dec. 28, 1994]



Sec. 838.133  Minimum awards.

    Payments under this part will not be less than one dollar per month. 
Any court order that awards a former spouse a portion of an employee 
annuity or a former spouse survivor annuity in an amount of less than 
one dollar per month will be treated as an award of an annuity equal to 
one dollar per month.



Sec. 838.134  Receipt of multiple court orders.

    (a) Except as provided in paragraph (c) of this section, for court 
orders affecting employee annuities or awarding former spouse survivor 
annuities, in the event that OPM receives two or more court orders 
acceptable for processing--
    (1) When the court orders relate to two or more individuals (former 
spouses or child abuse creditors), the court orders will be honored in 
the order in which they were received by OPM to the maximum extent 
possible under Sec. 838.211 or Sec. 838.711.
    (2) When two or more court orders relate to the same former spouse, 
separated spouse, or child abuse creditor the one issued last will be 
honored.
    (b)(1) Except as provided in paragraph (c) of this section, for 
court orders affecting refunds of employee contributions, in the event 
that OPM receives two or more court orders acceptable for processing--
    (i) When the court orders affect two or more former spouses--
    (A) The refund will not be paid if either court order prohibits 
payment of the refund of contributions; otherwise,
    (B) The court orders will be honored in the order in which they were 
issued until the contributions have been exhausted.
    (ii) When two or more court orders relate to the same former spouse, 
the one issued last will be honored first.

[[Page 200]]

    (2) In no event will the amount paid out exceed the amount of the 
refund of employee contributions.
    (c) With respect to issues relating to the validity of a court order 
or to the amount of payment--
    (1) If the employee, separated employee, retiree, or other person 
adversely affected by the court order and former spouse submit 
conflicting court orders from the same jurisdiction, OPM will consider 
only the latest court order; or
    (2) If the employee, separated employee, retiree, or other person 
adversely affected by the court order and former spouse submit 
conflicting court orders from different jurisdictions--
    (i) If one of the court orders is from the jurisdiction shown as the 
employee's, separated employee's, or retiree's address in OPM's records, 
OPM will consider only the court order issued by that jurisdiction; or
    (ii) If none of the court orders is from the jurisdiction shown as 
the employee's, separated employee's, or retiree's address in OPM's 
records, OPM will consider only the latest court order.

[57 FR 33574, July 29, 1992, as amended at 59 FR 66638, Dec. 28, 1994]



Sec. 838.135  Settlements.

    (a) OPM must comply with the terms of a properly filed court order 
acceptable for processing even if the retiree and the former spouse 
agree that they want OPM to pay an amount different from the amount 
specified in the court order. Information about OPM's processing of 
amended court orders is contained in Sec. Sec. 838.225 and 838.806.
    (b)(1) OPM will not honor a request from the former spouse that an 
amount less than the amount provided in the court order be withheld from 
an employee annuity or a refund of employee contributions.
    (2) OPM will not honor a request from the retiree that an amount 
greater than the amount provided in the court order be withheld from an 
employee annuity or a refund of employee contributions.

[57 FR 33574, July 29, 1992, as amended at 58 FR 3202, Jan. 8, 1993]



Sec. 838.136  Administrative appeal rights.

    (a) Issues concerning application of these regulations are not 
appealable to the Merit Systems Protection Board. OPM's actions to apply 
these regulations are not subject to further administrative review.
    (b)(1) Issues concerning the validity of these regulations are 
appealable to the Merit Systems Protection Board. Such an appeal must be 
filed in accordance with the procedures established by the Board and may 
not be filed before OPM has issued its final decision, including a 
notice of the right to appeal, on the validity of the regulation. Such 
an appeal is limited to the issue of the validity of the regulation.
    (2) Any claim that a provision of these regulations is invalid, must 
be presented to the Merit Systems Protection Board before the validity 
of the regulation may be reviewed in the Federal courts.

                Address for Filing Court Orders With OPM



 Sec. Appendix A to Subpart A of Part 838--Addresses for Serving Court 
                 Orders Affecting CSRS or FERS Benefits

    (a) The mailing address for delivery of court orders affecting CSRS 
or FERS benefits by the United States Postal Service is--

Office of Personnel Management, Retirement and Insurance Group, P.O. Box 
17, Washington, DC 20044-0017

    (b) The address for delivery of court orders affecting CSRS or FERS 
benefits by process servers, express carriers, or other forms of 
handcarried delivery is--

Court-ordered Benefits Section, Allotments Branch, Retirement and 
Insurance Group, Office of Personnel Management, 1900 E Street, NW., 
Washington, DC

[57 FR 33574, July 29, 1992, as amended at 58 FR 3202, Jan. 8, 1993]

[[Page 201]]



  Subpart B_Procedures for Processing Court Orders Affecting Employee 
                                Annuities

                          Regulatory Structure



Sec. 838.201  Purpose and scope.

    (a) This subpart regulates the procedures that the Office of 
Personnel Management will follow upon the receipt of claims arising out 
of State court orders directed at employee annuities under CSRS or FERS. 
OPM must comply with qualifying court orders, decrees, or court-approved 
property settlements in connection with divorces, annulments of 
marriages, or legal separations of employees or retirees that award a 
portion of an employee annuity to a former spouse.
    (b) This subpart prescribes--
    (1) The circumstances that must occur before employee annuities are 
available to satisfy a court order acceptable for processing; and
    (2) The procedures that a former spouse must follow when applying 
for a portion of an employee annuity based on a court order under 
section 8345(j) or section 8467 of title 5, United States Code.
    (c)(1) Subpart C of this part contains the rules that a court order 
must satisfy to be a court order acceptable for processing to affect an 
employee annuity.
    (2) Subpart F of this part contains definitions that OPM uses to 
determine the effect on employee annuity of a court order acceptable for 
processing.

                          Availability of Funds



Sec. 838.211  Amounts subject to court orders.

    (a)(1) Employee annuities are subject to court orders acceptable for 
processing only if all of the conditions necessary for payment of the 
employee annuity to the former employee have been met, including, but 
not limited to--
    (i) Separation from a position in the Federal service covered by 
CSRS or FERS under subpart B of part 831 of this chapter or subpart A of 
part 842 of this chapter, respectively;
    (ii) Application for payment of the employee annuity by the former 
employee; and
    (iii) The former employee's immediate entitlement to an employee 
annuity.
    (2) Money held by an employing agency or OPM that may be payable at 
some future date is not available for payment under court orders 
directed at employee annuities.
    (3) OPM cannot pay a former spouse a portion of an employee annuity 
before the employee annuity begins to accrue.
    (b) Payment to a former spouse under a court order may not exceed 
the net annuity.
    (c) Waivers of employee annuity payments under the terms of section 
8345(d) or section 8465(a) of title 5, United States Code, exclude the 
waived portion of the annuity from availability for payment under a 
court order if such waivers are postmarked or received before the date 
that OPM receives a court order acceptable for processing.

                  Application and Processing Procedures



Sec. 838.221  Application requirements.

    (a) A former spouse (personally or through a representative) must 
apply in writing to be eligible for a court-awarded portion of an 
employee annuity. No special form is required.
    (b) The application letter must be accompanied by--
    (1) A certified copy of the court order acceptable for processing 
that is directed at employee annuity;
    (2) A certification from the former spouse or the former spouse's 
representative that the court order is currently in force and has not 
been amended, superseded, or set aside;
    (3) Information sufficient for OPM to identify the employee or 
retiree, such as his or her full name, CSRS or FERS claim number, date 
of birth, and social security number;
    (4) The current mailing address of the former spouse; and
    (5) If the employee has not retired under CSRS or FERS or died, the 
mailing address of the employee.

[[Page 202]]

    (c)(1) When court-ordered payments are subject to termination (under 
the terms of the court order) if the former spouse remarries, no payment 
will be made until the former spouse submits to OPM a statement in the 
form prescribed by OPM certifying--
    (i) That a remarriage has not occurred;
    (ii) That the former spouse will notify OPM within 15 calendar days 
of the occurrence of any remarriage; and
    (iii) That the former spouse will be personally liable for any 
overpayment to him or her resulting from a remarriage.
    (2) OPM may subsequently require periodic recertification of the 
statements required under paragraph (c)(1) of this section.



Sec. 838.222  OPM action on receipt of a court order acceptable for processing.

    (a) If OPM receives a court order acceptable for processing that is 
directed at an employee annuity that is in pay status, OPM will inform--
    (1) The former spouse--
    (i) That the court order is acceptable for processing;
    (ii) Of the date on which OPM received the court order, the date on 
which the former spouse's benefit begins to accrue, and if known, the 
date on which OPM commences payment under the order;
    (iii) Of the amount of the former spouse's monthly benefit and the 
formula OPM used to compute the monthly benefit; and
    (iv) That, if he or she disagrees with the amount of the monthly 
benefits, he or she must obtain, and submit to OPM, an amended court 
order clarifying the amount; and
    (2) The retiree--
    (i) That the former spouse has applied for benefits under this 
subpart;
    (ii) That the court order is acceptable for processing and that OPM 
must comply with the court order;
    (iii) Of the date on which OPM received the court order, the date on 
which the former spouse's benefit begins or accrue, and if known, the 
date on which OPM commences payment under the court order;
    (iv) Of the amount of the former spouse's monthly benefit and the 
formula OPM used to compute the monthly benefit;
    (v) That, if he or she contests the validity of the court order, he 
or she must obtain, and submit to OPM, a court order invalidating the 
court order submitted by the former spouse; and
    (vi) That, if he or she disagrees with the amount of the former 
spouse's monthly benefits, he or she must obtain, and submit to OPM, an 
amended court order clarifying the amount.
    (b) If OPM receives a court order acceptable for processing that is 
directed at an employee annuity but the employee has died, or if a 
retiree dies after payments from an employee to a former spouse have 
begun, OPM will inform the former spouse that the employee or retiree 
has died and that OPM can only honor court orders dividing employee 
annuities during the lifetime of the retiree.
    (c) If OPM receives a court order acceptable for processing that is 
directed at an employee annuity that is not in pay status, OPM will 
inform--
    (1) The former spouse--
    (i) That the court order is acceptable for processing;
    (ii) That benefits cannot begin to accrue until the employee 
retires;
    (iii) To the extent possible, the formula that OPM will use to 
compute the former spouse's monthly benefit; and
    (iv) That, if he or she disagrees with the formula, he or she must 
obtain, and submit to OPM, an amended court order clarifying the amount; 
and
    (2) The employee, separated employee, or retiree--
    (i) That the former spouse has applied for benefits under this 
subpart;
    (ii) That the court order is acceptable for processing and that OPM 
must comply with the court order;
    (iii) To the extent possible, the formula that OPM will use to 
compute the former spouse's monthly benefit;
    (iv) That, if he or she contests the validity of the court order, he 
or she must obtain, and submit to OPM, a court order invalidating the 
court order submitted by the former spouse; and

[[Page 203]]

    (v) That, if he or she disagrees with the amount of the former 
spouse's monthly benefits, he or she must obtain, and submit to OPM, an 
amended court order clarifying the amount.
    (d) The failure of OPM to provide, or of the employee, separated 
employee, or retiree or the former spouse to receive, the information 
specified in this section prior to the commencing date of a reduction or 
accrual does not affect--
    (1) The validity of payment under the court order; or
    (2) The commencing date of the reduction in the employee annuity or 
the commencing date of the accrual of former spouse benefits as 
determined under Sec. 838.231.



Sec. 838.223  OPM action on receipt of a court order not acceptable
for processing.

    If OPM receives an application from a former spouse not based on a 
court order acceptable for processing, OPM will inform the former spouse 
that OPM cannot approve the application and provide the specific 
reason(s) for disapproving the application. Examples of reasons for 
disapproving an application include that the court order does not meet 
the definition of court order in Sec. 838.103 or does not meet one or 
more of the requirements of subpart C of this part.



Sec. 838.224  Contesting the validity of court orders.

    (a) An employee, separated employee, or retiree who alleges that a 
court order is invalid must prove the invalidity of the court order by 
submitting a court order that--
    (1) Declares the court order submitted by the former spouse is 
invalid; or
    (2) Sets aside the court order submitted by the former spouse.
    (b) OPM must honor a court order acceptable for processing that 
appears to be valid and that the former spouse has certified is 
currently in force and has not been amended, superseded, or set aside, 
until OPM receives a court order described in paragraph (a) of this 
section or a court order amending or superseding the court order 
submitted by the former spouse.



Sec. 838.225  Processing amended court orders.

    (a) If the employee, separated employee, retiree, or former spouse 
submits an amended court order pertaining to payment of a portion of the 
employee annuity, OPM will process the amended court order prospectively 
only, effective against employee annuity accruing beginning the first 
day of the second month after OPM receives the amended court order.
    (b) A court order is not effective to adjust payments prior to the 
first day of the second month after OPM receives the court order 
unless--
    (1) The court order--
    (i) Expressly directs OPM to adjust for payment made under the prior 
court order; and
    (ii) Determines the total amount of the adjustment or the length of 
time over which OPM will make the adjustment; and
    (iii) Provides a specific monthly amount of the adjustment or a 
formula to compute the amount of the monthly adjustment; and
    (2) Annuity continues to be available from which to make the 
adjustment.

                           Payment Procedures



Sec. 838.231  Commencing date of payments.

    (a) A court order acceptable for processing is effective against 
employee annuity accruing beginning the first day of the second month 
after OPM receives the court order.
    (b)(1) OPM will not begin payments to the former spouse until OPM 
receives all the documentation required by Sec. 838.221 (b) and (c).
    (2) If payments are delayed under paragraph (b)(1) of this section, 
after OPM receives all required documentation, it will authorize payment 
of the annuity that has accrued since the date determined under 
paragraph (a) of this section but the payment of which was delayed under 
paragraph (b)(1) of this section.



Sec. 838.232  Suspension of payments.

    (a) Payments from employee annuities under this part will be 
discontinued whenever the employee annuity payments are suspended or 
terminated.

[[Page 204]]

If employee annuity payments to the retiree are restored, payments to 
the former spouse will also resume subject to the terms of any court 
order acceptable for processing in effect at that time.
    (b) Paragraph (a) of this section will not be applied to permit a 
retiree to deprive a former spouse of payment by causing suspension of 
payment of employee annuity.



Sec. 838.233  Termination of payments.

    A former spouse portion of an employee annuity stops accruing at the 
earliest of--
    (a) The date on which the terms of the court order require 
termination;
    (b)(1) The last day of the first month before OPM receives a court 
order invalidating, vacating, or setting aside the court order submitted 
by the former spouse if OPM receives the latest court order no later 
than 20 days before the end of the month; or
    (2) The last day of the month in which OPM receives a court order 
invalidating, vacating, or setting aside the court order submitted by 
the former spouse if OPM receives the latest court order than 20 days 
before the end of the month; or
    (c) The last day of the first month after OPM receives an amended 
court order;
    (d) The last day of the first month before the death of the retiree; 
or
    (e) Except as provided in Sec. 838.237, the date on which the 
former spouse dies.



Sec. 838.234  Collection of arrearages.

    Specific instructions are required before OPM may pay any arrearage. 
Except as provided in Sec. 838.225(b), OPM will not increase a former 
spouse's share of employee annuity to satisfy an arrearage due the 
former spouse. However, under Sec. 838.225, OPM will prospectively 
honor the terms of an amended court order that either increases or 
decreases the court order's entitlement.



Sec. 838.235  Payment of lump-sum awards.

    If a court order acceptable for processing awards a former spouse a 
lump-sum amount from the employee annuity and does not state the monthly 
rate at which OPM should pay the lump-sum, OPM will pay the former 
spouse equal monthly installments at 50 percent of the gross annuity 
(subject to the limitations under Sec. 838.211) at the time of 
retirement or the date of the order, whichever comes later, until the 
lump-sum amount is paid.



Sec. 838.236  Court orders barring payment of annuities.

    (a) State courts lack authority to prevent OPM from paying employee 
annuities as required by section 8345(a) or section 8463 of title 5, 
United States Code. OPM will not honor court orders directing that OPM 
delay or otherwise not pay employee annuities at the time or in the 
amount required by statute.
    (b) Except as otherwise provided in this subpart, OPM will honor 
court orders acceptable for processing that direct OPM to pay the 
employee annuity to the court, an officer of the court acting as a 
fiduciary, or a State or local government agency during the pendency of 
a divorce or legal separation proceeding.



Sec. 838.237  Death of the former spouse.

    (a) Unless the court order acceptable for processing expressly 
provides otherwise, the former spouse's share of an employee annuity 
terminates on the last day of the month before the death of the former 
spouse, and the former spouse's share of employee annuity reverts to the 
retiree.
    (b) Except as otherwise provided in this subpart, OPM will honor a 
court order acceptable for processing or an amended court order 
acceptable for processing that directs OPM to pay, after the death of 
the former spouse, the former spouse's share of the employee annuity 
to--
    (1) The court;
    (2) An officer of the court acting as fiduciary;
    (3) The estate of the former spouse; or
    (4) One or more of the retiree's children as defined in section 
8342(c) or section 8424(d) of title 5, United States Code.

[57 FR 33574, July 29, 1992, as amended at 58 FR 43493, Aug. 17, 1993]

[[Page 205]]

               Procedures for Computing the Amount Payable



Sec. 838.241  Cost-of-living adjustments.

    Unless otherwise provided in the court order, when the terms of the 
court order or Sec. 838.621 provide for cost-of-living adjustments on 
the former spouse's payment from employee annuity, the cost-of-living 
adjustment will be effected at the same time and at the same percentage 
rate as the cost-of-living adjustment in the employee annuity.



Sec. 838.242  Computing lengths of service.

    (a)(1) The smallest unit of time that OPM will calculate in 
computing a formula in a court order is a month, even where the court 
order directs OPM to make a more precise calculation.
    (2) If the court order states a formula using a specified simple or 
decimal fraction other than twelfth parts of a year, OPM will use the 
specified number to perform simple mathematical computations.
    (b) Unused sick leave is counted as ``creditable service'' on the 
date of separation for an immediate CSRS annuity; it is not apportioned 
over the time when earned. Unused sick leave is not countable as 
``creditable service'' in a FERS annuity (except in a CSRS component for 
an employee who transferred to FERS) or in a deferred CSRS annuity.



Sec. 838.243  Minimum amount of awards.

    OPM will treat any court order that awards a former spouse a portion 
of an employee annuity equal to less than $12 per year as awarding the 
former spouse $1 per month.



  Subpart C_Requirements for Court Orders Affecting Employee Annuities



Sec. 838.301  Purpose and scope.

    This subpart regulates the requirements that a court order directed 
at employee annuity must meet to be a court order acceptable for 
processing.



Sec. 838.302  Language not acceptable for processing.

    (a) Qualifying Domestic Relations Orders. (1) Any court order 
labeled as a ``qualified domestic relations order'' or issued on a form 
for ERISA qualified domestic relations orders is not a court order 
acceptable for processing unless the court order expressly states that 
the provisions of the court order concerning CSRS or FERS benefits are 
governed by this part.
    (2) When a court order is required by paragraph (a)(1) of this 
section to state that the provisions of a court order concerning CSRS or 
FERS benefits are governed by this part the court order must expressly--
    (i) Refer to part 838 of title 5, Code of Federal Regulations, and
    (ii) State that the provisions of the court order concerning CSRS or 
FERS benefits are drafted in accordance with the terminology used in 
this part.
    (3) Although any language satisfying the requirements of paragraph 
(a)(2) of this section is sufficient to prevent a court order from being 
unacceptable under paragraph (a)(1) of this section, OPM recommends the 
use of the language provided in ] 001 in appendix A to subpart F of this 
part to state that the provisions of the court order concerning CSRS or 
FERS benefits are governed by this part.
    (4) A court order directed at employee annuity that contains the 
language described in paragraph (a)(2) of this section must also satisfy 
all other requirements of this subpart to be a court order acceptable 
for processing.
    (b) Benefits for the lifetime of the former spouse. Any court order 
directed at employee annuity that expressly provides that the former 
spouse's portion of the employee annuity may continue after the death of 
the employee or retiree, such as a court order providing that the former 
spouse's portion of the employee annuity will continue for the lifetime 
of the former spouse, is not a court order acceptable for processing.

[[Page 206]]



Sec. 838.303  Expressly dividing employee annuity.

    (a) A court order directed at employee annuity is not a court order 
acceptable for processing unless it expressly divides the employee 
annuity as provided in paragraph (b) of this section.
    (b) To expressly divide employee annuity as required by paragraph 
(a) of this section the court order must--
    (1) Identify the retirement system using terms that are sufficient 
to identify the retirement system as explained in Sec. 838.611; and
    (2) Expressly state that the former spouse is entitled to a portion 
of the employee annuity using terms that are sufficient to identify the 
employee annuity as explained in Sec. 838.612.



Sec. 838.304  Providing for payment to the former spouse.

    (a) A court order directed at employee annuity is not a court order 
acceptable for processing unless it provides for OPM to pay the former 
spouse a portion of an employee annuity as provided in paragraph (b) of 
this section.
    (b) To provide for OPM to pay the former spouse a portion of an 
employee annuity as required by paragraph (a) of this section the court 
order must--
    (1) Expressly direct OPM to pay the former spouse directly;
    (2) Direct the retiree to arrange or to execute forms for OPM to pay 
the former spouse directly; or
    (3) Be silent concerning who is to pay the portion of the employee 
annuity awarded to the former spouse.
    (c) Except when the court order directed at employee annuity 
contains a provision described in paragraph (b)(2) of this section, a 
court order directed at employee annuity that instructs the retiree to 
pay a portion of the employee annuity to the former spouse is not a 
court order acceptable for processing.
    (d) Although paragraphs (b)(2) and (b)(3) of this section provide 
acceptable methods for satisfying the requirement that a court order 
directed at employee annuity provide for OPM to pay the former spouse, 
OPM strongly recommends that any court order directed at employee 
annuity expressly direct OPM to pay the former spouse directly.



Sec. 838.305  OPM computation of formulas.

    (a) A court order directed at employee annuity is not a court order 
acceptable for processing unless the court order provides sufficient 
instructions and information that OPM can compute the amount of the 
former spouse's monthly benefit using only the express language of the 
court order, subparts A, B, and F of this part, and information from 
normal OPM files.
    (b)(1) To provide sufficient instructions and information for OPM to 
compute the amount of the former spouse's share of the employee annuity 
as required by paragraph (a) of this section the court order must state 
the former spouse's share as--
    (i) A fixed amount;
    (ii) A percentage or a fraction of the employee annuity; or
    (iii) A formula that does not contain any variables whose values are 
not readily ascertainable from the face of the court order directed at 
employee annuity or normal OPM files.
    (2) Normal OPM files include information about--
    (i) The dates of employment for all periods of creditable civilian 
and military service;
    (ii) The rate of basic pay for all periods of creditable civilian 
service;
    (iii) The annual rates of basic pay for each grade and step under 
the General Schedule since 1920;
    (iv) The amount of premiums for basic and optional life insurance 
under the Federal Employees Group Life Insurance Program;
    (v) The amount of the Government and the employee shares of premiums 
for any health insurance plan under the Federal Employees Health 
Benefits Program;
    (vi) The standard Federal income tax withholding tables;
    (vii) The amount of cost-of-living adjustments under section 8340 or 
section 8462 of title 5, United States Code, and the amount of the 
percentage change in the national index on which the adjustment is 
based;
    (viii) The amount of pay adjustments to the General Schedule under 
section

[[Page 207]]

5303 (or section 5305 prior to November 5, 1990) of title 5, United 
States Code, and the amount of the percentage change in the national 
index on which the adjustment is based;
    (ix) The provision of law under which a retiree has retired; and
    (x) Whether a retiree has elected to provide survivor benefits for a 
current spouse, former spouse, or a person with an insurable interest.
    (c)(1) A court order directed at employee annuity is not a court 
order acceptable for processing if OPM would have to examine a State 
statute or court decision (on a different case) to understand, 
establish, or evaluate the formula for computing the former spouse's 
share of the employee annuity.
    (2) A court order directed at employee annuity is not a court order 
acceptable for processing if it awards the former spouse a ``community 
property'' fraction, share, or percentage of the employee annuity and 
does not provide a formula by which OPM can compute the amount of the 
former spouse's share of the employee annuity from the face of the court 
order or from normal OPM files.
    (d) A court order directed at employee annuity is not a court order 
acceptable for processing if the court order awards a portion of the 
``present value'' of an annuity unless the amount of the ``present 
value'' is stated in the court order.
    (e) A court order directed at employee annuity is not a court order 
acceptable for processing if the court order directs OPM to determine a 
rate of employee annuity that would require OPM to determine a salary or 
average salary, other than a salary or average salary actually used in 
computing the employee annuity, as of a date prior to the date of the 
employee's separation and to adjust that salary for use in computing the 
former spouse share unless the adjustment is by--
    (1) A fixed amount or fixed annual amounts that are stated in the 
order;
    (2) The rate of cost-of-living or salary adjustments as those terms 
are described in Sec. 838.622;
    (3) The percentage change in pay that the employee actually received 
excluding changes in grade and/or step; or
    (4) The percentage change in either of the national indices used to 
compute cost-of-living or salary adjustments as those terms are 
described in Sec. 838.622.



Sec. 838.306  Specifying type of annuity for application of formula,
percentage or fraction.

    (a) A court order directed at employee annuity that states the 
former spouse's share of employee annuity as a formula, percentage, or 
fraction is not a court order acceptable for processing unless OPM can 
determine the type of annuity on which to apply the formula, percentage, 
or fraction.
    (b) The standard types of annuity to which OPM can apply the 
formula, percentage, or fraction are net annuity, gross annuity, or 
self-only annuity, which are defined in Sec. 838.103. Unless the court 
order otherwise directs, OPM will apply the formula, percentage, or 
fraction to gross annuity. Section 838.625 contains information on other 
methods of describing these types of annuity.



 Subpart D_Procedures for Processing Court Orders Affecting Refunds of 
                         Employee Contributions

                          Regulatory Structure



Sec. 838.401  Purpose and scope.

    (a) This subpart regulates the procedures that the Office of 
Personnel Management will follow upon the receipt of claims arising out 
of State court orders that affect refunds of employee contributions 
under CSRS or FERS. OPM must comply with court orders, decrees, or 
court-approved property settlements in connection with divorces, 
annulments of marriages, or legal separations of employees or retirees 
that--
    (1) Award a portion of a refund of employee contributions to a 
former spouse; or
    (2) If the requirements of Sec. Sec. 838.431 and 838.505 are met, 
bar payment of a refund of employee contributions.
    (b) This subpart prescribes--
    (1) The circumstances that must occur before refunds of employee 
contributions are available to satisfy a court order acceptable for 
processing; and

[[Page 208]]

    (2) The procedures that a former spouse must follow when applying 
for a portion of a refund of employee contributions based on a court 
order under section 8345(j) or section 8467 of title 5, United States 
Code.
    (c)(1) Subpart E of this part contains the rules that a court order 
directed at a refund of employee contributions must satisfy to be a 
court order acceptable for processing.
    (2) Subpart F of this part contains definitions that OPM uses to 
determine the effect on a refund of employee contributions of a court 
order acceptable for processing.

                          Availability of Funds



Sec. 838.411  Amounts subject to court orders.

    (a)(1) Refunds of employee contributions are subject to court orders 
acceptable for processing only if all of the conditions necessary for 
payment of the refund of employee contributions to the separated 
employee have been met, including, but not limited to--
    (i) Separation from a covered position in the Federal service;
    (ii) Application for payment of the refund of employee contributions 
by the separated employee; and
    (iii) Immediate entitlement to a refund of employee contributions.
    (2) Money held by an employing agency or OPM that may be payable at 
some future date is not available for payment under court orders 
directed at refunds of employee contributions.
    (b) Payment under a court order may not exceed the amount of the 
refund of employee contributions.

                  Application and Processing Procedures



Sec. 838.421  Application requirements.

    (a) A former spouse (personally or through a representative) must 
apply in writing to be eligible for a court-awarded portion of a refund 
of employee contributions. No special form is required.
    (b) The application letter must be accompanied by--
    (1) A certified copy of the court order acceptable for processing 
that is directed at a refund of employee contributions.
    (2) A certification from the former spouse or the former spouse's 
representative that the court order is currently in force and has not 
been amended, superseded, or set aside;
    (3) Information sufficient for OPM to identify the employee or 
separated employee, such as his or her full name, date of birth, and 
social security number;
    (4) The current mailing address of the former spouse; and
    (5) If the employee or separated employee has not applied for a 
refund of employee contributions, the current mailing address of the 
employee or separated employee.



Sec. 838.422  Timeliness of application.

    (a) Except as provided in Sec. 838.431 and paragraph (b) of this 
section, a court order acceptable for processing that is directed at a 
refund of employee contributions is not effective unless OPM receives 
the documentation required by Sec. 838.421 not later than--
    (1) The last day of the second month before payment of the refund; 
or
    (2) Twenty days after OPM receives the Statement required by Sec. 
831.2007(c) or Sec. 843.208(b) of this chapter if the former spouse has 
indicated on that Statement that such a court order exists.
    (b) If OPM receives a copy of a court order acceptable for 
processing that is directed at a refund of employee contributions but 
not all of the documentation required by Sec. 838.421, OPM will notify 
the former spouse that OPM must receive the missing items within 15 days 
after the date of the notice or OPM cannot comply with the court order.

[57 FR 33574, July 29, 1992, as amended at 58 FR 43493, Aug. 17, 1993]



Sec. 838.423  OPM action on receipt of a court order acceptable for processing.

    (a) If OPM receives a court order acceptable for processing that is 
directed at a refund of employee contributions, OPM will inform--
    (1) The former spouse--
    (i) That the court order is acceptable for processing;
    (ii) Of the date on which OPM received the court order;

[[Page 209]]

    (iii) Whether OPM has a record of unrefunded employee contributions 
on the employee;
    (iv) That the former spouse's share of the refund of employee 
contributions cannot be paid unless the employee separates from the 
Federal service and applies for a refund of employee contributions;
    (v) To the extent possible, the formula that OPM will use to compute 
the former spouse's share of a refund of employee contributions; and
    (vi) That, if the former spouse disagrees with the formula, the 
former spouse must obtain, and submit to OPM, an amended court order 
clarifying the amount; and
    (2) The employee or separated employee--
    (i) That the former spouse has applied for benefits under this 
subpart;
    (ii) That the court order is acceptable for processing and that OPM 
must comply with the court order;
    (iii) Of the date on which OPM received the court order;
    (iv) That the former spouse's share of the refund of employee 
contributions cannot be paid unless the employee separates from the 
Federal service and applies for a refund of employee contributions;
    (v) To the extent possible, the formula that OPM will use to compute 
the former spouse's share of the refund of employee contributions;
    (vi) That, if he or she contests the validity of the court order, he 
or she must obtain, and submit to OPM, a court order invalidating the 
court order submitted by the former spouse; and
    (vii) That, if he or she disagrees with the formula, he or she must 
obtain, and submit to OPM, an amended court order clarifying the amount.
    (b) The failure of OPM to provide, or of the employee or separated 
employee or the former spouse to receive, the information specified in 
this section does not affect the validity of payment under the court 
order.



Sec. 838.424  OPM action on receipt of a court order not acceptable 
for processing.

    If OPM receives an application from a former spouse not based on a 
court order acceptable for processing, OPM will inform the former spouse 
that OPM cannot approve the application and provide the specific 
reason(s) for disapproving the application. Examples of reasons for 
disapproving an application include that the order does not meet the 
definition of court order in Sec. 838.103 or does not meet one or more 
of the requirements of subpart E of this part.



Sec. 838.425  Contesting the validity of court orders.

    (a) An employee or separated employee who alleges that a court order 
is invalid must prove the invalidity of the court order by submitting a 
court order that--
    (1) Declares invalid the court order submitted by the former spouse; 
or
    (2) Sets aside the court order submitted by the former spouse.
    (b) OPM must honor a court order acceptable for processing that 
appears to be valid and that the former spouse has certified is 
currently in force and has not been amended, superseded, or set aside, 
until the employee or separated employee submits a court order described 
in paragraph (a) of this section or a court order amending or 
superseding the court order submitted by the former spouse.

                           Payment Procedures



Sec. 838.431  Correcting failures to provide required spousal notification.

    The interests of a former spouse with a court order acceptable for 
processing that is directed at a refund of employee contributions who 
does not receive notice of an application for refund of employee 
contributions because the employee or separated employee submits 
fraudulent proof of notification or fraudulent proof that the former 
spouse's whereabouts are unknown are protected if, and only if--
    (a) The former spouse files a court order acceptable for processing 
that affects or bars the refund of employee contributions with OPM no 
later than the last day of the second month before the payment of the 
refund; or
    (b) The former spouse submits proof that--

[[Page 210]]

    (1) The evidence submitted by the employee was fraudulent; and
    (2) Absent the fraud, the former spouse would have been able to 
submit the necessary documentation required by Sec. 838.421 within the 
time limit prescribed in Sec. 838.422.



Sec. 838.432  Court orders barring payment of refunds.

    A court order, notice, summons, or other document that attempts to 
restrain OPM from paying a refund of employee contributions is not 
effective unless it meets all the requirements of Sec. 838.505 or part 
581 of this chapter.

               Procedures for Computing the Amount Payable



Sec. 838.441  Computing lengths of service.

    (a) The smallest unit of time that OPM will calculate in computing a 
formula in a court order is a month, even where the court order directs 
OPM to make a more precise calculation.
    (b) If the court order states a formula using a specified simple or 
decimal fraction other than twelfth parts of a year, OPM will use the 
specified number to perform simple mathematical computations.



 Subpart E_Requirements for Court Orders Affecting Refunds of Employee 
                              Contributions



Sec. 838.501  Purpose and scope.

    This subpart regulates the requirements that a court order directed 
at or barring a refund of employee contributions must meet to be a court 
order acceptable for processing.
    (a) A court order is directed at a refund of employee contributions 
if it awards a former spouse a portion of a refund of employee 
contributions.
    (b) A court order bars a refund of employee contributions if it 
prohibits payment of a refund of employee contributions to preserve a 
former spouse's court-awarded entitlement to a portion of an employee 
annuity or to a former spouse survivor annuity.



Sec. 838.502  Expressly dividing a refund of employee contributions.

    (a) A court order directed at a refund of employee contributions is 
not a court order acceptable for processing unless it expressly awards a 
former spouse a portion of a refund of employee contributions as 
provided in paragraph (b) of this section.
    (b) To expressly award a former spouse a portion of a refund of 
employee contributions as required by paragraph (a) of this section, the 
court order must--
    (1) Identify the retirement system using terms that are sufficient 
to identify the retirement system as explained in Sec. 838.611; and
    (2) Expressly state that the former spouse is entitled to a portion 
of a refund of employee contributions using terms that are sufficient to 
identify the refund of employee contributions as explained in Sec. 
838.612.



Sec. 838.503  Providing for payment to the former spouse.

    (a) A court order directed at a refund of employee contributions is 
not a court order acceptable for processing unless it provides for OPM 
to pay a portion of a refund of employee contributions to the former 
spouse as provided in paragraph (b) of this section.
    (b) To provide for OPM to pay a portion of a refund of employee 
contributions to the former spouse as required by paragraph (a) of this 
section, the court order must--
    (1) Expressly direct OPM to pay the former spouse directly;
    (2) Direct the employee or separated employee to arrange or to 
execute forms for OPM to pay the former spouse directly; or
    (3) Be silent concerning who is to pay the portion of the refund of 
employee contributions awarded to the former spouse.
    (c) Although paragraphs (b)(2) and (b)(3) of this section provide 
acceptable methods for satisfying the requirement that the court order 
provide for OPM to pay the former spouse, OPM strongly recommends that 
the court order expressly direct OPM to pay the former spouse directly.



Sec. 838.504  OPM computation of formulas.

    (a) A court order directed at a refund of employee contributions is 
not a court order acceptable for processing

[[Page 211]]

unless the court order provides sufficient instructions and information 
so that OPM can compute the amount of the former spouse's share of the 
refund of employee contributions using only the express language of the 
court order, subparts A, D, and F of this part, and information from 
normal OPM files.
    (b) To provide sufficient instructions and information that OPM can 
compute the amount of the former spouse's share of the refund of 
employee contributions as required by paragraph (a) of this section 
requires that the court order state the former spouse's share as--
    (1) A fixed amount;
    (2) A percentage or a fraction of the refund of employee 
contributions; or
    (3) A formula that does not contain any variables whose values are 
not readily ascertainable from the face of the court order or normal OPM 
files.
    (c) A court order directed at a refund of employee contributions is 
not a court order acceptable for processing if OPM would have to examine 
a State statute or court decision (on a different case) to understand, 
establish, or evaluate the formula for computing the former spouse's 
share of the refund of employee contributions.



Sec. 838.505  Barring payment of refunds.

    A court order barring payment of a refund of employee contributions 
is not a court order acceptable for processing unless--
    (a) It expressly directs OPM not to pay a refund of employee 
contributions;
    (b) It awards, or a prior court order acceptable for processing has 
awarded, the former spouse a former spouse survivor annuity or a portion 
of the employee annuity; and
    (c) Payment of the refund of employee contributions would prevent 
payment to the former spouse under the court order described in 
paragraph (b) of this section.



Subpart F_Terminology Used in Court Orders Affecting Employee Annuities 
                  or Refunds of Employee Contributions

                          Regulatory Structure



Sec. 838.601  Purpose and scope.

    (a) This subpart regulates the meaning of terms necessary to award 
benefits in a court order directed at an employee annuity or a refund of 
employee contributions. OPM applies the meanings to determine whether a 
court order directed at an employee annuity or a refund of employee 
contributions is a court order acceptable for processing and to 
establish the amount of the former spouse's share of an employee annuity 
or a refund of employee contributions.
    (b)(1) This subpart establishes a uniform meaning to be used for 
terms and phrases frequently used in awarding a former spouse a portion 
of an employee annuity or a refund of employee contributions.
    (2) This subpart informs the legal community about the definitions 
to apply terms used in drafting court orders so that the resulting court 
orders contain the proper language to accomplish the aims of the court.
    (c)(1) To assist attorneys and courts in preparing court orders that 
OPM can honor in the manner that the court intends, appendix A of this 
subpart contains model language to accomplish many of the more common 
objectives associated with the award of a former spouse's share of an 
employee annuity or a refund of employee contributions.
    (2) By using the language in appendix A of this subpart, the court, 
attorneys, and parties will know that the court order will be acceptable 
for processing and that OPM will treat the terminology used in the court 
order in the manner stated in the appendix.

                       Identification of Benefits



Sec. 838.611  Identifying the retirement system.

    (a) To satisfy the requirements of Sec. 838.303(b)(1) or Sec. 
838.502(b)(1), a court order must contain language identifying the 
retirement system to be affected. For example, ``CSRS,'' ``FERS,''

[[Page 212]]

``OPM,'' or ``Federal Government'' benefits, or benefits payable ``based 
on service with the U.S. Department of Agriculture,'' etc., are 
sufficient identification of the retirement system.
    (b) Except as provided in paragraphs (b)(1) and (b)(2) of this 
section, language referring to benefits under another retirement system, 
such as military retired pay, Foreign Service retirement benefits or 
Central Intelligence Agency retirement benefits, does not satisfy the 
requirements of Sec. 838.303(b)(1) or Sec. 838.502(b)(1).
    (1) A court order that mistakenly labels CSRS benefits as FERS 
benefits and vice versa satisfies the requirements of Sec. Sec. 
838.303(b)(1) and 838.502(b)(1).
    (2) Unless the court order expressly provides otherwise, for 
employees transferring to FERS, court orders directed at CSRS benefits 
apply to the entire FERS basic benefit, including the CSRS component, if 
any. Such a court order satisfies the requirements of Sec. Sec. 
838.303(b)(1) and 838.502(b)(1).
    (c) A court order affecting military retired pay, even when military 
retired pay has been waived for inclusion in CSRS annuities, does not 
award a former spouse a portion of an employee annuity or a refund of 
employee contributions under CSRS or FERS. Such a court order does not 
satisfy the requirements of Sec. 838.303(b)(1) or Sec. 838.502(b)(1).



Sec. 838.612  Distinguishing between annuities and contributions.

    (a) A court order using ``annuities,'' ``pensions,'' ``retirement 
benefits,'' or similar terms satisfies the requirements of Sec. Sec. 
838.303(b)(2) and 838.502(b)(2) and may be used to divide an employee 
annuity and a refund of employee contributions.
    (b)(1) A court order using ``contributions,'' ``deductions,'' 
``deposits,'' ``retirement accounts,'' ``retirement fund,'' or similar 
terms satisfies the requirements of Sec. 838.502(b)(2) and may be used 
only to divide the amount of contributions that the employee has paid 
into the Civil Service Retirement and Disability Fund.
    (2) Unless the court order specifically states otherwise, when an 
employee annuity is payable, a court order using the terms specified in 
paragraph (b)(1) of this section satisfies the requirements of Sec. 
838.303(b)(2) and awards the former spouse a benefit to be paid in equal 
monthly installments at 50 percent of the gross annuity at the time of 
retirement or the date of the court order, whichever comes later, until 
the specific dollar amount is reached.

                         Computation of Benefits



Sec. 838.621  Prorata share.

    (a) Prorata share means one-half of the fraction whose numerator is 
the number of months of Federal civilian and military service that the 
employee performed during the marriage and whose denominator is the 
total number of months of Federal civilian and military service 
performed by the employee.
    (b) A court order that awards a former spouse a prorata share of an 
employee annuity or a refund of employee contributions by using the term 
``prorata share'' and identifying the date when the marriage began 
satisfies the requirements of Sec. Sec. 838.305 and 838.504 and awards 
the former spouse a prorata share as defined in paragraph (a) of this 
section.
    (c) A court order that awards a portion of an employee annuity as of 
a specified date before the employee's retirement awards the former 
spouse a prorata share as defined in paragraph (a) of this section.
    (d) A court order that awards a portion of the ``value'' of an 
annuity as of a specific date before retirement, without specifying what 
``value'' is, awards the former spouse a prorata share as defined in 
paragraph (a) of this section.



Sec. 838.622  Cost-of-living and salary adjustments.

    (a)(1) A court order that awards adjustments to a former spouse's 
portion of an employee annuity stated in terms such as ``cost-of-living 
adjustments'' or ``COLA's'' occurring after the date of the decree but 
before the date of retirement provides increases equal to the 
adjustments described in or effected under section 8340 or section 8462 
of title 5, United States Code.
    (2) A court order that awards adjustments to a former spouse's 
portion of an employee annuity stated in terms

[[Page 213]]

such as ``salary adjustments'' or ``pay adjustments'' occurring after 
the date of the decree provides increases equal to the adjustments 
described in or effected under section 5303 of title 5, United States 
Code until the date of retirement.
    (b)(1) Unless the court order directly and unequivocally orders 
otherwise, a court order that awards a former spouse a portion of an 
employee annuity either on a percentage basis or by use of a fraction or 
formula provides that the former spouse's share of the employee annuity 
will be adjusted to maintain the same percentage or fraction whenever 
the employee annuity changes as a result of--
    (i) Salary adjustments occurring after the date of the decree and 
before the employee retires; and
    (ii) Cost-of-living adjustments occurring after the date of the 
decree and after the date of the employee's retirement.
    (2) A court order that awards a former spouse a specific dollar 
amount from the employee annuity prevents the former spouse from 
benefiting from salary and cost-of-living adjustments after the date of 
the decree, unless the court expressly orders their inclusion.
    (c)(1)(i) Except as provided in paragraph (b) of this section, a 
court order that contains a general instruction to calculate the former 
spouse's share effective at the time of divorce or separation entitles 
the former spouse to the benefit of salary adjustments occurring after 
the specified date to the same extent as the employee.
    (ii) To prevent the application of salary adjustments after the date 
of the divorce or separation, the court order must either state the 
exact dollar amount of the award to the former spouse or specifically 
instruct OPM not to apply salary adjustments after the specified date in 
computing the former spouse's share of the employee annuity.
    (2)(i) Except as provided in paragraph (b) of this section, a court 
order that requires OPM to compute a benefit as of a specified date 
before the employee's retirement, and specifically instructs OPM not to 
apply salary adjustments after the specified date in computing the 
former spouse's share of an employee annuity provides that the former 
spouse is entitled to the application of cost-of-living adjustments 
after the date of the employee's retirement in the manner described in 
Sec. 838.241.
    (ii) To award cost-of-living adjustments between a specified date 
and the employee's retirement, the court order must specifically 
instruct OPM to adjust the former spouse's share of the employee annuity 
by any cost-of-living adjustments occurring between the specified date 
and the date of the employee's retirement.
    (iii) To prevent the application of cost-of-living adjustments that 
occur after the employee annuity begins to accrue to the former spouse's 
share of the employee annuity, the decree must either state the exact 
dollar amount of the award to the former spouse or specifically instruct 
OPM not to apply cost-of-living adjustments occurring after the date of 
the employee's retirement.



Sec. 838.623  Computing lengths of service.

    (a) Sections 838.242 and 838.441 contain information on how OPM 
calculates lengths of service.
    (b) Unless the court order otherwise expressly directs--
    (1) For the purpose of describing a period of time to be excluded 
from any element of a computation, the term ``military service'' means 
military service as defined in section 8331(13) of title 5, United 
States Code, and does not include civilian service with the Department 
of Defense or the Coast Guard; and
    (2) For the purpose of describing a period of time to be included in 
any element of a computation, the term ``military service'' means all 
periods of military and civilian service performed with the Department 
of Defense or the Coast Guard.
    (c)(1) When a court order contains a formula for dividing employee 
annuity that requires a computation of service worked as of a date prior 
to separation and using terms such as ``years of service,'' ``total 
service,'' ``service performed,'' or similar terms, the time 
attributable to unused sick leave will not be included.

[[Page 214]]

    (2) When a court order contains a formula for dividing employee 
annuity that requires a computation of ``creditable service'' (or some 
other phrase using ``credit'' or its equivalent) as of a date prior to 
retirement, unused sick leave will be included in the computation 
(involving a CSRS employee annuity or the CSRS component of a FERS 
employee annuity) as follows:
    (i) If the amount of unused sick leave is specified, the court order 
awards a portion of the employee annuity equal to the monthly employee 
annuity at retirement times a fraction, the numerator of which is the 
number of months of ``creditable service'' as of the date specified plus 
the number of months of unused sick leave specified (which sum is 
rounded to eliminate partial months) and whose denominator is the months 
of ``creditable service'' used in the retirement computation.
    (ii) If the amount of unused sick leave is not specified, the court 
order awards a portion of the employee annuity equal to the monthly rate 
at the time of retirement times a fraction, the numerator of which is 
the number of months of ``creditable service'' as of the date specified 
(no sick leave included) and whose denominator is the number of months 
of ``creditable service'' used in the retirement computation (sick leave 
included).
    (d)(1) General language such as ``benefits earned as an employee 
with the U.S. Postal Service * * *'' provides only that CSRS retirement 
benefits are subject to division and does not limit the period of 
service included in the computation (i.e., service performed with other 
Government agencies will be included).
    (2) To limit the computation of benefits to a particular period of 
employment, the court order must--
    (i) Use language expressly limiting the period of service to be 
included in the computation (e.g., ``only U.S. Postal Service'' or 
``exclusive of any service other than U.S. Postal Service employment''); 
or
    (ii) Specify the number of months to be included in the computation; 
or
    (iii) Describe specifically the period of service to be included in 
the computation (e.g., ``only service performed during the period 
Petitioner and Defendant were married'' or ``benefits based on service 
performed through the date of divorce'').



Sec. 838.624  Distinguishing between formulas and fixed amounts.

    (a) A court order that contains both a formula or percentage 
instruction and a dollar amount is deemed to include the dollar amount 
only as the court's estimate of the initial amount of payment. The 
formula or percentage instruction controls.
    (b) A court order that awards a portion of the ``present value'' of 
an employee annuity and specifically states the amount of either the 
``present value'' of the employee annuity or of the award is deemed to 
give the former spouse ``a specific dollar amount'' that is payable from 
a monthly employee annuity and will be paid as a lump-sum award in 
accordance with Sec. 838.235.



Sec. 838.625  Types of annuity.

    (a) Terms that are synonymous with net annuity are--
    (1) Disposable annuity; and
    (2) Retirement check.
    (b) Terms that are synonymous with self-only annuity are--
    (1) Life rate annuity;
    (2) Unreduced annuity; and
    (3) Annuity without survivor benefit.
    (c) All court orders that do not specify net annuity or self-only 
annuity apply to gross annuity.

                            Model Paragraphs



Sec. Appendix A to Subpart F of Part 838--Recommended Language for Court 
                   Orders Dividing Employee Annuities

    This appendix provides recommended language for use in court orders 
attempting to divide employee annuity. A court order directed at 
employee annuity should include five elements:
     Identification of the benefits;
     Instructions that OPM pay the former spouse;
     A method for computing the amount of the former 
spouse's benefit;
     Identification of the type of annuity to which to 
apply a fraction, percentage or formula; and
     Instructions on what OPM should do if the 
employee leaves Federal service before

[[Page 215]]

retirement and applies for a refund of employee contributions.
    The court order may also include instructions for disposition of the 
former spouse's share if the former spouse dies before the employee. By 
using the model language, courts will know that the court order will 
have the effect described in this appendix.
    The model language in this appendix does not award a benefit that is 
payable after the death of the employee. A separate, distinct award of a 
former spouse survivor annuity is necessary to award a former spouse a 
benefit that is payable after the death of the employee. Appendix A to 
subpart I of this part contains model language for awarding survivor 
annuities and contains some examples that award both a portion of an 
employee annuity and a survivor annuity.
    The model language uses the terms ``[former spouse]'' to identify 
the spouse who is receiving a former spouse's portion of an employee 
annuity and ``[employee]'' to identify the Federal employee whose 
employment was covered by the Civil Service Retirement System or the 
Federal Employees Retirement System. Obviously, in drafting an actual 
court order the appropriate terms, such as ``Petitioner'' and 
``Respondent,'' or the names of the parties should replace ``[former 
spouse]'' and ``[employee].''
    Similarly, the models are drafted for employees covered by the Civil 
Service Retirement System. The name of the retirement system should be 
changed for employees covered by the Federal Employees Retirement 
System.

                            Table of Contents

                000 Series--Special technical provisions.

] 001 Language required in Qualified Domestic Relations Orders.

100 Series--Identification of the benefits and instructions that OPM pay 
                           the former spouse.

] 101 Identifying retirement benefits and directing OPM to pay the 
          former spouse.
] 102-110 [Reserved]
] 111 Protecting a former spouse entitled to military retired pay.

    200 Series--Computing the amount of the former spouse's benefit.

] 201 Award of a fixed monthly amount.
] 202 Award of a percentage.
] 203 Award of a fraction.
] 204 Award of a prorata share.
] 205-210 [Reserved]
] 211 Award based on a stated formula.
] 212-230 [Reserved]
] 231 Awarding COLA's on fixed monthly amounts.
] 232 Excluding COLA's on awards other than fixed monthly amounts.

                      300 Series--Type of annuity.

] 301 Awards based on benefits actually paid.
] 302-310 [Reserved]
] 311 Awards of earned annuity in cases where the actual annuity is 
          based on disability.

             400 Series--Refunds of employee contributions.

] 401 Barring payment of a refund of employee contributions.
] 402 Dividing a refund of employee contributions.

                 500 Series--Death of the former spouse.

] 501 Full annuity restored to the retiree.
] 502 Former spouse share paid to children.
] 503 Former spouse share paid to the court.

                000 Series--Special technical provisions.

 001 Language required in Qualified Domestic Relations Orders.
    Using the following paragraph will expressly state that the 
provisions of the court order concerning CSRS or FERS benefits are 
governed by this part. A court order directed at employee annuity (or 
awarding a survivor annuity) that is labelled a ``Qualified Domestic 
Relations Order'' or is issued on an ERISA form will not be 
automatically rendered unacceptable under Sec. 838.302(a) or Sec. 
838.803(a) if the court order contains the following paragraph.
    ``The court has considered the requirements and standard terminology 
provided in part 838 of Title 5, Code of Federal Regulations. The 
terminology used in the provisions of this order that concern benefits 
under the Civil Service Retirement System are governed by the standard 
conventions established in that part.''

100 Series--Identification of the benefits and instructions that OPM pay 
                           the former spouse.

 101 Identifying retirement benefits and directing OPM to pay 
the former spouse.
    Using the following paragraph will expressly divide employee annuity 
to satisfy the requirements of Sec. 838.303 and direct OPM to pay the 
former spouse a share of an employee annuity to satisfy the requirements 
of Sec. 838.304.
    ``[Employee] is (or will be) eligible for retirement benefits under 
the Civil Service Retirement System based on employment with the United 
States Government. [Insert language for computing the former spouse's 
share from 200 series of this appendix.] The United States Office of 
Personnel Management is directed to pay [former spouse]'s share directly 
to [former spouse].''
 102-110 [Reserved]
 111 Protecting a former spouse entitled to military retired 
pay.

[[Page 216]]

    Using the following paragraph will protect the former spouse 
interest in military retired pay in the event that the employee waives 
the military retired pay to allow crediting the military service under 
CSRS or FERS. The paragraph should be used only if the former spouse is 
awarded a portion of the military retired pay. ``If [Employee] waives 
military retired pay to credit military service under the Civil Service 
Retirement System, [insert language for computing the former spouse's 
share from 200 series of this appendix]. The United States Office of 
Personnel Management is directed to pay [former spouse]'s share directly 
to [former spouse].''

    200 Series--Computing the amount of the former spouse's benefits.

    Paragraphs 201 through 204 contain model language for the most 
common types of wards that court orders make to former spouses. 
Subsequent paragraphs in the 200 series contain model language for less 
common, more complex awards.
    Awards other than fixed amounts require that the court order specify 
the type of annuity (``gross,'' ``net,'' or self-only) on which the 
award is computed. The types of annuity are defined in Sec. 838.103. 
Variations on type of annuity are covered by the 300 series of this 
appendix.
 201 Award of a fixed monthly amount.
    Using the following paragraph will award the former spouse a fixed 
monthly amount. OPM will not apply COLA's to a fixed monthly amount 
unless the court order expressly directs that OPM and COLA's using the 
language in ] 231 of this appendix or similar language.
    ``[Employee] is (or will be) eligible for retirement benefits under 
the Civil Service Retirement System based on employment with the United 
States Government. [Former spouse] is entitled to $[insert a number] per 
month from [employee]'s civil service retirement benefits. The United 
States Office of Personnel Management is directed to pay [former 
spouse]'s share directly to [former spouse].''

 202 Award of a percentage.
    Using the following paragraph will award the former spouse a stated 
percentage of the employee annuity. Unless the court order expressly 
directly that OPM not add COLA's to the former spouse's share of the 
employee annuity, OPM will add COLA's to keep the former spouse's share 
at the stated percentage. Paragraph 232 of this appendix provides 
language for excluding COLA's.
    ``[Employee] is (or will be) eligible for retirement benefits under 
the Civil Service Retirement System based on employment with the United 
States Government. [Former spouse] is entitled to [insert a number] 
percent of [employee]'s [insert ``gross,'' ``net,'' or ``self-only''] 
monthly annuity under the Civil Service Retirement System. The United 
States Office of Personnel Management is directed to pay [former 
spouse]'s share directly to [former spouse].''

 203 Award of a fraction.
    Using the following paragraph will award the former spouse a stated 
fraction of the employee annuity. Unless the court order expressly 
directly that OPM not add COLA's to the former spouse's share of the 
employee annuity, OPM will add COLA's to keep the former spouse's share 
at the stated percentage. Paragraph 232 of this appendix provides 
language for excluding COLA's.
    ``[Employee] is (or will be) eligible for retirement benefits under 
the Civil Service Retirement System based on employment with the United 
States Government. [Former spouse] is entitled to [insert fraction] ths 
of [employee]'s [insert ``gross,'' ``net,'' or ``self-only''] monthly 
annuity under the Civil Service Retirement System. The United States 
Office of Personnel Management is directed to pay [former spouse]'s 
share directly to [former spouse].''

 204 Award of a prorata share.
    Using the following paragraph will award the former spouse a prorata 
share of the employee annuity. Prorata share is defined in Sec. 
838.621. To award a prorata share the court order must state the date of 
the marriage. Unless the court order specifies a different ending date, 
the marriage ends for computation purposes on the date that the court 
order is filed with the court clerk. Unless the court order expressly 
directs that OPM not add COLA's to the former spouse's share of the 
employee annuity, OPM will add COLA's to keep the former spouse's share 
at the stated percentage. Paragraph 232 of this appendix provides 
language for excluding COLA's.
    ``[Employee] is (or will be) eligible for retirement benefits under 
the Civil Service Retirement System based on employment with the United 
States Government. [Former spouse] is entitled to a prorata share of 
[employee]'s [insert `gross,' `net,' or self-only] monthly annuity under 
the Civil Service Retirement System. The marriage began on [insert 
date]. The United States Office of Personnel Management is directed to 
pay [former spouse]'s share directly to [former spouse].''

 205-210 [Reserved]

 211 Award based on a stated formula.
    Using the following paragraphs will award the former spouse a share 
of the employee annuity based on a formula stated in the court order. 
The formula must be stated in the court order (including a court-
approved property settlement agreement). The formula may not be 
incorporated by reference to a statutory provision or a court decision

[[Page 217]]

in another case. If the court order uses a formula, the court order must 
include any data that is necessary for OPM to apply the formula unless 
the necessary data is contained in normal OPM files.
    ``[Employee] is (or will be) eligible for retirement benefits under 
the Civil Service Retirement System based on employment with the United 
States Government. [Former spouse] is entitled to a share of 
[employee]'s [insert `gross,' `net,' or self-only] monthly annuity under 
the Civil Service Retirement System to be computed as follows: [Insert 
formula for computing the former spouse's share.]''
    ``The United States Office of Personnel Management is directed to 
pay [former spouse]'s share directly to [former spouse].''

 212-230

 231 Awarding COLA's on fixed monthly amounts.
    Using the following paragraph will award COLA's in addition to a 
fixed monthly amount to the former spouse. The model awards COLA's at 
the same rate applied to the employee annuity.
    ``[Employee] is (or will be) eligible for retirement benefits under 
the Civil Service Retirement System based on employment with the United 
States Government. [Former spouse] is entitled to $[insert a number] per 
month from [employee]'s civil service retirement benefits. When COLA's 
are applied to [employee]'s retirement benefits, the same COLA applies 
to [former spouse]'s share. The United States Office of Personnel 
Management is directed to pay [former spouse]'s share directly to 
[former spouse].''

 232 Excluding COLA's on awards other than fixed monthly 
amounts.
    Using the following paragraph will prevent application of COLA's to 
a former spouse's share of an employee annuity in cases where the former 
spouse has been awarded a percentage, fraction or prorata share of the 
employee annuity, rather than a fixed dollar amount.
    ``[Employee] is (or will be) eligible for retirement benefits under 
the Civil Service Retirement System based on employment with the United 
States Government. [Insert language for computing the former spouse's 
share from ] 202, ] 203, ] 204, or ] 211 of this appendix.] The United 
States Office of Personnel Management is directed to determine the 
amount of [former spouse]'s share on the date [insert `when [employee] 
retires' if the employee has not retired, or `of this order' if the 
employee is already retired] and not to apply COLA's to that amount. The 
United States Office of Personnel Management is directed to pay [former 
spouse]'s share directly to [former spouse].''

                      300 Series--Type of annuity.

    Awards of employee annuity to a former spouse (other than awards of 
fixed dollar amounts) must specify whether OPM will use the ``gross,'' 
``net,'' or self-only annuity as defined in Sec. 838.103 in determining 
the amount of the former spouse's entitlement. The court order may 
contain a formula that has the effect of creating other types of 
annuity, but the court order may only do this by providing a formula 
that starts from ``gross,'' ``net,'' or self-only annuity as defined in 
Sec. 838.103.

 301 Awards based on benefits actually paid.
    The court order may include a formula that effectively uses the 
court's definition of net annuity rather than the one provided by Sec. 
838.103. For example, using the following paragraph will award the 
former spouse a prorata share of the employee annuity reduced only by 
the amount deducted as premiums for basic life insurance under the 
Federal Employee Group Life Insurance Program.
    ``[Employee] is (or will be) eligible for retirement benefits under 
the Civil Service Retirement System based on employment with the United 
States Government. [Former spouse] is entitled to a prorata share of 
[employee]'s monthly annuity under the Civil Service Retirement System, 
where monthly annuity means the self-only annuity less the amount 
deducted as premiums for basic life insurance under the Federal Employee 
Group Life Insurance Program. The marriage began on [insert date]. The 
United States Office of Personnel Management is directed to pay [former 
spouse]'s share directly to [former spouse].''

 302-310 [Reserved]

 311 Awards of earned annuity in cases where the actual annuity 
is based on disability.
    Using the following paragraph will award a former spouse a prorata 
share of what the employee annuity would have been based on only the 
employee's actual service in cases where the actual employee annuity is 
based on disability. The paragraph also allows the court order to 
provide for the former spouse's share to begin when the employee reaches 
a stated age, using age 62 as an example. As with all other formulas the 
court order must specify whether the computation applies to ``gross,'' 
``net,'' or self-only annuity. OPM will apply COLA's that occurred after 
the date of the disability retirement to the former spouse's share. The 
following paragraph should be used only for disability retirees under 
CSRS. Under FERS, section 8452 of title 5, United States Code, provides 
a formula for recomputation of disability annuities at age 62 to 
approximate an earned annuity. Therefore to award a portion of the

[[Page 218]]

``earned'' benefit under FERS add the introductory phrase, ``Starting 
when [employee] reaches age 62,'' to the paragraph describing how to 
compute the amount.
    ``[Employee] is (or will be) eligible for retirement benefits under 
the Civil Service Retirement System based on employment with the United 
State's Government. Starting when [employee] reaches age 62, [former 
spouse] is entitled to a prorata share of [employee]'s [insert 
``gross,'' ``net,'' or self-only] monthly annuity under the Civil 
Service Retirement System, where monthly annuity means the amount of 
[employee]'s monthly annuity computed as though [employee] had retired 
on an immediate, nondisability annuity on the commencing date of 
[employee]'s annuity based on disability. In computing the amount of the 
immediate annuity, the United States Office of Personnel Management will 
deem [employee] to have been age 62 at the time that [employee] retired 
on disability. The marriage began on [insert date]. The United States 
Office of Personnel Management is directed to pay [former spouse]'s 
share directly to [former spouse].''

             400 Series--Refunds of employee contributions.

    Court orders that award a former spouse a portion of a future 
employee annuity of an employee who is not then eligible to retire 
should include an additional paragraph containing instructions that tell 
OPM what to do if the employee separates before becoming eligible to 
retire and requests a refund of employee contributions. The court order 
may award the former spouse a portion of the refund of employee 
contributions or bar payment of the refund of employee contributions.

 401 Barring payment of a refund of employee contributions.
    Using the following paragraph will bar payment of the refund of 
employee contributions if payment of the refund of employee 
contributions would extinguish the former spouse's entitlement to a 
portion of the employee annuity. ``The United States Office of Personnel 
Management is directed not to pay [employee] a refund of employee 
contributions.''

 402 Dividing a refund of employee contributions.
    Using the following paragraph will allow the refund of employee 
contributions to be paid but will award a prorata share of the refund of 
employee contributions to the former spouse. The sentence on the 
beginning date of the marriage is unnecessary if the beginning is stated 
elsewhere in the order. The award of a prorata share is used only as an 
example; the court order could provide another fraction, percentage, or 
formula, or a fixed amount. Note that a refund of employee contributions 
voids the employee's rights to an employee annuity and the former 
spouse's right to any portion of that annuity.
    ``If [employee] becomes eligible and applies for a refund of 
employee contributions, [former spouse] is entitled to a prorata share 
of the refund of employee contributions. The marriage began on [insert 
date]. The United States Office of Personnel Management is directed to 
pay [former spouse]'s share directly to [former spouse].''

                 500 Series--Death of the former spouse.

 501 Full annuity restored to the retiree.
    No special provision is necessary to restore the entire annuity to 
the retiree upon the death of the former spouse. Unless the court order 
expressly provides otherwise, OPM will pay the former spouse's share to 
the retiree after the death of the former spouse.

 502 Former spouse share paid to children.
    Using the following paragraph will award the former spouse's share 
of an employee annuity to the children, including any adopted children, 
of the employee and former spouse.
    ``If [former spouse] dies before [employee], the United States 
Office of Personnel Management is directed to pay [former spouse]'s 
share of [employee]'s civil service retirement benefits to surviving 
children of the marriage including any adopted children, in equal 
shares. Upon the deaths of any child, that child's share will be 
distributed among the other surviving children.''
    The language may be modified to terminate the payments to the 
children when they reach a stated age. A court order that includes such 
a provision for termination must include sufficient information (such as 
the children's dates of birth) to permit OPM to determine when the 
children's interest terminate. OPM will not consider evidence outside 
the court order (and normal OPM files) to establish the children's dates 
of birth.

 503 Former spouse share paid to the court.
    Using the following paragraph will provide for payment of the former 
spouse's share of an employee annuity to the court after the death of 
the former spouse. This would allow a court officer to administer the 
funds. ``If [former spouse] dies before [employee], the United States 
Office of Personnel Management is directed to pay [former spouse]'s 
share of [employee]'s civil service retirement benefits to this court at 
the following address: ``[Insert address where checks should be sent. 
The address may be up to six lines and should include sufficient 
information for court officials to credit the correct account.]''

[[Page 219]]



Subpart G_Procedures for Processing Court Orders Awarding Former Spouse 
                           Survivor Annuities

                          Regulatory Structure



Sec. 838.701  Purpose and scope.

    (a) This subpart regulates the procedures that the Office of 
Personnel Management will follow upon the receipt of claims arising out 
of State court orders awarding former spouse survivor annuities under 
CSRS or FERS (including the FERS basic employee death benefit as defined 
in Sec. 843.102 of this chapter). OPM must comply with qualifying court 
orders, decrees, or court-approved property settlements in connection 
with divorces, annulments of marriages, or legal separations of 
employees or retirees that award former spouse survivor annuities.
    (b) This subpart prescribes--
    (1) The commencing and terminating dates of former spouse survivor 
annuities based on court orders acceptable for processing; and
    (2) The procedures that a former spouse must follow when applying 
for a former spouse survivor annuity based on a court order under 
section 8341(h) or section 8445 of title 5, United States Code.
    (c)(1) Subpart H of this part contains the rules that a court order 
must satisfy to be a court order acceptable for processing to award a 
former spouse survivor annuity.
    (2) Subpart I of this part contains definitions that OPM uses to 
determine the effect of a court order in connection with a former spouse 
survivor annuity.

[57 FR 33574, July 29, 1992, as amended at 58 FR 43493, Aug. 17, 1993]

                    Limitations on Survivor Annuities



Sec. 838.711  Maximum former spouse survivor annuity.

    (a) Under CSRS, payments under a court order may not exceed the 
amount provided in Sec. 831.641 of this chapter.
    (b) Under FERS, payments under a court order may not exceed amount 
provided in Sec. 842.613 of this chapter plus the basic employee death 
benefit as defined in Sec. 843.102 of this chapter.

[57 FR 33574, July 29, 1992, as amended at 58 FR 52882, Oct. 13, 1993]

                  Application and Processing Procedures



Sec. 838.721  Application requirements.

    (a)(1) A former spouse (personally or through a representative) must 
apply in writing to be eligible for a former spouse survivor annuity 
based on a court order acceptable for processing. No special form is 
required to give OPM notice of the court order.
    (2) OPM may require an additional application after the death of the 
employee, separated employee, or retiree. This additional application 
will be on a form prescribed by OPM.
    (b)(1) The application letter under paragraph (a)(1) of this section 
must be accompanied by--
    (i) A certified copy of the court order;
    (ii) A certification from the former spouse or the former spouse's 
representative that the court order is currently in force and has not 
been amended, superseded, or set aside;
    (iii) Information sufficient for OPM to identify the employee or 
retiree, such as his or her full name, CSRS or FERS claim number, date 
of birth, and social security number;
    (iv) The current mailing address of the former spouse;
    (v) If the employee has not retired or died, the mailing address of 
the employee; and
    (vi) A statement in the form prescribed by OPM certifying--
    (A) That the former spouse has not remarried before age 55;
    (B) That the former spouse will notify OPM within 15 calendar days 
of the occurrence of any remarriage before age 55; and
    (C) That the former spouse will be personally liable for any 
overpayment to him or her resulting from a remarriage before age 55.
    (2) OPM may subsequently require recertification of the statements 
required by this paragraph.

[[Page 220]]



Sec. 838.722  OPM action on receipt of a court order acceptable for processing.

    (a) If OPM receives a court order acceptable for processing that 
awards a former spouse survivor annuity based on the service of a living 
retiree, OPM will inform--
    (1) The former spouse--
    (i) That the court order is acceptable for processing;
    (ii) Of the date on which OPM received the court order; and
    (iii) Of the present amount of the monthly former spouse survivor 
annuity if the retiree were to die immediately and the formula OPM used 
to compute the monthly benefit; and
    (2) The retiree--
    (i) That the former spouse has applied for benefits under this 
subpart;
    (ii) That the court order is acceptable for processing and that OPM 
must comply with the court order;
    (iii) Of the date on which OPM received the court order;
    (iv) Of the amount and commencing date of the reduction in the 
retiree's annuity;
    (v) Of the present amount of the monthly former spouse survivor 
annuity if the retiree were to die immediately and the formula OPM used 
to compute the amount of the former spouse survivor annuity; and
    (vi) That, if he or she contests the validity of the court order, he 
or she must obtain, and submit to OPM, a court order invalidating the 
court order submitted by the former spouse.
    (b) If OPM receives a court order acceptable for processing that 
awards a former spouse survivor annuity, but the employee, separated 
employee, or retiree has died, OPM will inform--
    (1) The former spouse--
    (i) That the court order is acceptable for processing;
    (ii) Of the date on which OPM received the court order, the date on 
which the former spouse's benefit will begin to accrue, and if known the 
date on which OPM will commence payment under the court order; and
    (iii) Of the amount on the monthly former spouse survivor annuity 
and the formula OPM used to compute the former spouse survivor annuity.
    (2) Anyone whom OPM knows will be adversely affected by the court 
order--
    (i) That the former spouse has applied for benefits under this 
subpart;
    (ii) That the court order is acceptable for processing and that OPM 
must comply with the court order;
    (iii) Of the date on which OPM received the court order;
    (iv) How the court order may adversely affect him or her; and
    (v) That, if he or she contests the validity of the court order, he 
or she must obtain, and submit to OPM, a court order invalidating the 
court order submitted by the former spouse.
    (c) If OPM receives a court order acceptable for processing that 
awards a former spouse survivor annuity and the employee or separated 
employee has not retired or died, OPM will attempt to inform--
    (1) The former spouse--
    (i) That the court order is acceptable for processing;
    (ii) To the extent possible, the formula that OPM will use to 
compute the former spouse survivor annuity (including the FERS basic 
employee death benefit as defined in Sec. 843.102 of this chapter, if 
applicable); and
    (iii) That, if he or she disagrees with the formula, he or she must 
obtain, and submit to OPM, an amended court order clarifying the amount 
before the employee or separated employee retires or dies; and
    (2) The employee or separated employee--
    (i) That the former spouse has applied for benefits under this 
subpart;
    (ii) That the court order is acceptable for processing and the OPM 
must comply with the court order;
    (iii) To the extent possible, the formula that OPM will use to 
compute the former spouse survivor annuity (including the FERS basic 
employee death benefit as defined in Sec. 843.102 of this chapter, if 
applicable); and
    (iv) That, if he or she--
    (A) Contests the validity of the court order, he or she must obtain, 
and submit to OPM, a court order invalidating the court order submitted 
by the former spouse; or
    (B) Disagrees with the formula, he or she must obtain, and submit to 
OPM,

[[Page 221]]

an amended court order clarifying the amount before he or she retires or 
dies.
    (d) The failure of OPM to provide, or of the employee, separated 
employee, or retiree, the former spouse, or anyone else to receive, the 
information specified in this section does not affect--
    (1) The validity of payment under the court order; or
    (2) The commencing date of the reduction in the employee annuity or 
the commencing date of the former spouse's entitlement as determined 
under Sec. 838.731.

[57 FR 33574, July 29, 1992, as amended at 58 FR 43493, Aug. 17, 1993]



Sec. 838.723  OPM action on receipt of a court order not acceptable
for processing.

    If OPM receives an application from a former spouse not based on a 
court order acceptable for processing, OPM will inform the former spouse 
that OPM cannot approve the application and provide the specific 
reason(s) for disapproving the application. Examples of reasons for 
disapproving an application include that the order does not meet the 
definition of court order in Sec. 838.103 or does not meet one or more 
of the requirements of subpart H of this part.



Sec. 838.724  Contesting the validity of court orders.

    (a) An employee, retiree or person adversely affected by a court 
order who alleges that a court order is invalid must prove the 
invalidity of the court order by submitting to OPM a court order that--
    (1) Declares invalid the court order submitted by the former spouse; 
or
    (2) Sets aside the court order submitted by the former spouse.
    (b) OPM must honor a court order acceptable for processing that 
appears to be valid and that the former spouse has certified is 
currently in force and has not been amended, superseded, or set aside, 
until the employee, separated employee, retiree, or person adversely 
affected by the court order submits to OPM a court order described in 
paragraph (a) of this section or, if issued before the retirement or 
death of the employee or separated employee, a court order acceptable 
for processing amending or superseding the court order submitted by the 
former spouse.



Sec. 838.725  Effect on employee and retiree election rights.

    (a) A court order acceptable for processing that awards a former 
spouse survivor annuity does not affect a retiring employee's or 
retiree's rights and obligations to make survivor elections under 
subpart F of part 831 of this chapter or subpart F of part 842 of this 
chapter.
    (b) A court order acceptable for processing that awards a former 
spouse survivor annuity requires OPM to pay a former spouse survivor 
annuity and prevents OPM from paying an elected survivor benefit to a 
widow or widower or another former spouse if the election is 
inconsistent with the court order.

                           Payment Procedures



Sec. 838.731  Commencing date of payments.

    (a) A former spouse survivor annuity based on a court order 
acceptable for processing begins to accrue in accordance with the terms 
of the court order but no earlier than the later of--
    (1) The first day after the date of death of the employee, separated 
employee, or retiree; or
    (2) The first day of the second month after OPM receives a copy of 
the court order acceptable for processing.
    (b) OPM will not authorize payment of the former spouse survivor 
annuity until it receives an application and supporting documentation 
required under Sec. 838.721.



Sec. 838.732  Termination of entitlement.

    (a) A former spouse survivor annuity (other than the FERS basic 
employee death benefit as defined in Sec. 843.102 of this chapter) or 
the right to a future former spouse survivor annuity based on a court 
order acceptable for processing terminates in accordance with the terms 
of the court order but no later than the last day of the month before 
the former spouse remarries before age 55 or dies.
    (b) If the employee dies before the former spouse remarries before 
age 55

[[Page 222]]

or dies, the former spouse's entitlement to the FERS basic employee 
death benefit as defined in Sec. 843.102 of this chapter based on a 
court order acceptable for processing terminates in accordance with the 
terms of the court order.

[57 FR 33574, July 29, 1992, as amended at 58 FR 43493, Aug. 17, 1993]



Sec. 838.733  Rights of current and other former spouses after 
termination of a former spouse's entitlement.

    (a) If a former spouse of a retiree loses entitlement to a former 
spouse survivor annuity based on a court order acceptable for processing 
while the retiree is living and--
    (1) If court orders acceptable for processing award former spouse 
survivor annuities to other former spouses, OPM will continue the 
reduction to comply with court orders in the order specified in Sec. 
838.135;
    (2) If paragraph (a)(1) of this section does not obligate the entire 
entitlement lost by he former spouse, OPM will continue the reduction to 
provide a current spouse survivor annuity or a former spouse survivor 
annuity based on a timely-filed election under Sec. 831.611, Sec. 
831.612, Sec. 831.631, Sec. 831.632, Sec. 842.603, Sec. 842.604, 
Sec. 842.611, or Sec. 842.612 of this chapter; or
    (3) If paragraphs (a)(1) and (a)(2) of this section do not obligate 
the entire entitlement lost by the former spouse, the retiree (except a 
retiree under CSRS who retired before May 7, 1985 and who remarried 
before February 27, 1986) may elect within 2 years after the former 
spouse loses entitlement to continue the reduction to provide a survivor 
annuity for a spouse acquired after retirement.
    (b)(1) If a former spouse of an employee or retiree loses 
entitlement to a former spouse survivor annuity based on a court order 
acceptable for processing after the death of the employee or retiree 
and--
    (i) If court orders acceptable for processing award former spouse 
survivor annuities to other former spouses, OPM will pay the next 
entitled former spouse in the order specified in Sec. 838.135; or
    (ii) If paragraph (b)(1) of this section does not obligate the 
entire entitlement lost by the former spouse, OPM will pay the balance 
to a current spouse of the deceased--
    (A) Retiree who had elected a reduced annuity to provide a current 
spouse annuity (as defined in Sec. 831.603 or Sec. 842.602); or
    (B) Employee.
    (2) Except as provided in Sec. 838.734--
    (i) The former spouse survivor annuity based on paragraph (b)(1)(i) 
of this section begins to accrue in accordance with the terms of the 
court order but no earlier than the later of--
    (A) The first day of the month in which the former spouse with the 
earlier-issued court order loses entitlement; or
    (B) The first day of the second month after OPM receives a copy of 
the court order acceptable for processing; or
    (ii) The current spouse annuity under paragraph (b)(1) (ii) of this 
section begins to accrue on the first day of the month in which the 
former spouse loses entitlement.
    (c) OPM will not authorize payment of the former spouse survivor 
annuity until it receives an application and supporting documentation 
required under Sec. 838.721.

[57 FR 33574, July 29, 1992, as amended at 58 FR 52882, Oct. 13, 1993]



Sec. 838.734  Payment of lump-sum awards by survivor annuity.

    OPM will not honor court orders awarding lump-sum payments (other 
than the FERS basic employee death benefit as defined in Sec. 843.102 
of this chapter) to a former spouse upon the death of an employee or 
retiree.

[57 FR 33574, July 29, 1992, as amended at 58 FR 43493, Aug. 17, 1993]



Sec. 838.735  Cost-of-living adjustments.

    (a) OPM applies cost-of-living adjustments to all former spouse 
survivor annuities in pay status at the time of the adjustment and in 
the amount provided by Federal statute.
    (b) OPM will not honor provisions of a court order that alters the 
time or amount of cost-of-living adjustments or that attempts to prevent 
OPM from applying cost-of-living adjustments to a former spouse survivor 
annuity in pay status.

[[Page 223]]



Subpart H_Requirements for Court Orders Awarding Former Spouse Survivor 
                                Annuities



Sec. 838.801  Purpose and scope.

    This subpart regulates the requirements that a court order awarding 
a former spouse survivor annuity must meet to be a court order 
acceptable for processing.



Sec. 838.802  CSRS limitations.

    (a) A court order awarding a former spouse survivor annuity under 
CSRS is not a court order acceptable for processing unless the marriage 
terminated on or after May 7, 1985.
    (b) In the case of a retiree who retired under CSRS before May 7, 
1985, a court order awarding a former spouse survivor annuity under CSRS 
is not a court order acceptable for processing unless the retiree was 
receiving a reduced annuity to provide a survivor annuity to benefit 
that spouse on May 7, 1985.



Sec. 838.803  Language not acceptable for processing.

    (a) Qualifying Domestic Relations Orders. (1) Any court order 
labeled as a ``qualified domestic relations order'' or issued on a form 
for ERISA qualified domestic relations orders is not a court order 
acceptable for processing unless the court order expressly states that 
the provisions of the court order concerning CSRS or FERS benefits are 
governed by this part.
    (2) When a court order is required by paragraph (a)(1) of this 
section to state that the provisions of a court order concerning CSRS or 
FERS benefits are governed by this part the court order must--
    (i) Expressly refer to part 838 of Title 5, Code of Federal 
Regulations, and
    (ii) Expressly state that the provisions of the court order 
concerning CSRS or FERS benefits are drafted in accordance with the 
terminology used in this part.
    (3) Although any language satisfying the requirement of paragraph 
(a) (2) of this section is sufficient to prevent a court order from 
being unacceptable under paragraph (a)(1) of this section, OPM 
recommends the use of the language provided in ] 001 in appendix A to 
subpart F of this part to state that the provisions of the court order 
concerning CSRS or FERS benefits are governed by this part.
    (4) A court order directed at employee annuity that contains the 
language described in paragraph (a)(2) of this section must also satisfy 
all other requirements of this subpart to be a court order acceptable 
for processing.
    (b) Employee annuity cannot continue after the death of the retiree. 
Any court order that provides that the former spouse's portion of the 
employee annuity shall continue after the death of the employee or 
retiree, by using language such as ``will continue to receive benefits 
after the death of'' the employee, that the former spouse ``will 
continue to receive benefits for his (or her) lifetime,'' or ``that 
benefits will continue after the death of'' the employee, but does not 
use terms such as ``survivor annuity,'' ``death benefits,'' ``former 
spouse annuity,'' or similar terms is not a court order acceptable for 
processing.



Sec. 838.804  Court orders must expressly award a former spouse survivor
annuity or expressly direct an employee or retiree to elect to provide

a former spouse 
          survivor annuity.

    (a) A court order awarding a former spouse survivor annuity is not a 
court order acceptable for processing unless it expressly awards a 
former spouse survivor annuity or expressly directs an employee or 
retiree to elect to provide a former spouse survivor annuity as 
described in paragraph (b) of this section.
    (b) To expressly award a former spouse survivor annuity or expressly 
direct an employee or retiree to elect to provide a former spouse 
survivor annuity as required by paragraph (a) of this section the court 
order must--
    (1) Identify the retirement system using terms that are sufficient 
to identify the retirement system as explained in Sec. 838.911; and
    (2) (i) Expressly state that the former spouse is entitled to a 
former spouse survivor annuity using terms that are sufficient to 
identify the survivor annuity as explained in Sec. 838.912; or

[[Page 224]]

    (ii) Expressly direct the retiree to elect to provide a former 
spouse survivor annuity using terms that are sufficient to identify the 
survivor annuity as explained in Sec. 838.912.



Sec. 838.805  OPM computation of formulas in computing the designated base.

    (a) A court order awarding a former spouse survivor annuity is not a 
court order acceptable for processing unless the court order provides 
sufficient instructions and information so that OPM can determine the 
amount of the former spouse's monthly benefit using only the express 
language of the court order, subparts A, G and I of this part, and 
information from normal OPM files.
    (b) To provide sufficient instructions and information for OPM to 
compute the amount of a former spouse survivor annuity as required by 
paragraph (a) of this section, if the court order uses a formula to 
determine the former spouse survivor annuity, it must not use any 
variables whose values are not readily ascertainable from the face of 
the court order or normal OPM files.
    (c) A court order awarding a former spouse survivor annuity is not a 
court order acceptable for processing if OPM would have to examine a 
State statute or court decision (on a different case) to understand, 
establish, or evaluate the formula for computing the former spouse 
survivor annuity.



Sec. 838.806  Amended court orders.

    (a) A court order awarding a former spouse survivor annuity is not a 
court order acceptable for processing if it is issued after the date of 
retirement or death of the employee and modifies or replaces the first 
order dividing the marital property of the employee or retiree and the 
former spouse.
    (b) For purposes of awarding, increasing, reducing, or eliminating a 
former spouse survivor annuity, or explaining, interpreting, or 
clarifying a court order that awards, increases, reduces or eliminates a 
former spouse survivor annuity, the court order must be--
    (1) Issued on a day prior to the date of retirement or date of death 
of the employee; or
    (2) The first order dividing the marital property of the retiree and 
the former spouse.
    (c) A court order that awards a former spouse survivor annuity and 
that is issued after the first order dividing the marital property of 
the retiree and the former spouse has been vacated, set aside, or 
otherwise declared invalid is not a court order acceptable for 
processing if--
    (1) It is issued after the date of retirement or death of the 
retiree;
    (2) It changes any provision concerning a former spouse survivor 
annuity in the court order that was vacated, set aside or otherwise 
declared invalid; and
    (3)(i) The court order is effective prior to the date when it is 
issued; or
    (ii) The retiree and former spouse do not compensate the Civil 
Service Retirement and Disability Fund for any uncollected annuity 
reduction due as a result of the court order vacating, setting aside, or 
otherwise invalidating the first order terminating the marital 
relationship between the retiree and the former spouse.
    (d) In this section, ``date of retirement'' means the later of--
    (1) The date that the employee files an application for retirement; 
or
    (2) The effective commencing date for the employee's annuity.
    (e) In this section, ``issued'' means actually filed with the clerk 
of the court, and does not mean the effective date of a retroactive 
court order that is effective prior to the date when actually filed with 
the clerk of the court (e.g., a court order issued nunc pro tunc).
    (f)(1) In this section, the ``first order dividing the marital 
property of the retiree and the former spouse'' means--
    (i) The original written order that first ends (or first documents 
an oral order ending) the marriage if the court divides any marital 
property (or approves a property settlement agreement that divides any 
marital property) in that order, or in any order issued before that 
order); or
    (ii) The original written order issued after the marriage has been 
terminated in which the court first divides any marital property (or 
first approves a

[[Page 225]]

property settlement agreement that divides any marital property) if no 
marital property has been divided prior to the issuance of that order.
    (2) The first order dividing marital property does not include--
    (i) Any court order that amends, explains, clarifies, or interprets 
the original written order regardless of the effective date of the court 
order making the amendment, explanation, clarification, or 
interpretation; or
    (ii) Any court order issued under reserved jurisdiction or any other 
court order issued subsequent to the original written order that divide 
any marital property regardless of the effective date of the court 
order.

[57 FR 33574, July 29, 1992, as amended at 58 FR 3202, Jan. 8, 1993]



Sec. 838.807  Cost must be paid by annuity reduction.

    (a) A court order awarding a former spouse survivor annuity is not a 
court order acceptable for processing unless it permits OPM to collect 
the annuity reduction required by section 8339(j)(4) or section 8419 of 
title 5, United States Code, from annuity paid by OPM. OPM will not 
honor a court order that provides for the retiree or former spouse to 
pay OPM the amount of the annuity reduction by any other means.
    (b) The amount of the annuity reduction required by section 
8339(j)(4) or section 8419 of title 5, United States Code, may be paid--
    (1) By reduction of the former spouse's entitlement under a court 
order acceptable for processing that is directed at employee annuity; or
    (2) By reduction of the employee annuity.
    (c) Unless the court order otherwise directs, OPM will collect the 
annuity reduction required by section 8339(j)(4) or section 8419 of 
title, 5, United States Code, from the employee annuity.



   Subpart I_Terminology Used in Court Orders Awarding Former Spouse 
                           Survivor Annuities

                          Regulatory Structure



Sec. 838.901  Purpose and scope.

    (a) This subpart regulates the meaning of terms necessary to award a 
former spouse survivor annuity in a court order, and for OPM to 
determine whether a court order awarding a former spouse survivor 
annuity is a court order acceptable for processing and the amount of the 
former spouse survivor annuity.
    (b)(1) This subpart establishes a uniform meaning to be used for 
terms and phrases frequently used in awarding a former spouse survivor 
annuity.
    (2) This subpart informs the legal community about the definition to 
be applied to terms used in court orders, to permit the resulting orders 
to be more carefully drafted, using the proper language to accomplish 
the aims of the court.
    (c)(1) To assist attorneys and courts in preparing court orders that 
OPM can honor in the manner that the court intends, appendix A of this 
subpart contains model language to accomplish many of the more common 
objectives associated with the award of a former spouse survivor 
annuity.
    (2) By using the language in appendix A of this subpart, the court, 
attorneys, and parties will know that the court order will be acceptable 
for processing and that OPM will treat the terminology used in the court 
order in the manner stated in the appendix.

                       Identification of Benefits



Sec. 838.911  Identifying the retirement system.

    (a) To satisfy the requirements of Sec. 838.804(b)(1), a court 
order must contain language identifying the retirement system affected. 
For example, ``CSRS,'' ``FERS,'' ``OPM,'' or ``Federal Government'' 
survivor benefits, or ``survivor benefits payable based on service with 
the U.S. Department of Agriculture,'' etc., are sufficient 
identification of the retirement system.

[[Page 226]]

    (b) Except as provided in paragraphs (b)(1) and (b)(2) of this 
section, language referring to benefits under another retirement system, 
such as military retired pay, Foreign Service retirement benefits and 
Central Intelligence Agency retirement benefits, does not satisfy the 
requirements of Sec. 838.804(b)(1).
    (1) A court order that mistakenly labels CSRS benefits as FERS 
benefits and vice versa satisfies the requirements of Sec. 
838.804(b)(1).
    (2) Unless the court order expressly provides otherwise, for 
employees transferring to FERS, court orders directed at CSRS benefits 
apply to this entire FERS basic benefit, including the CSRS component, 
if any. Such a court order satisfies the requirements of Sec. 
838.804(b)(1).
    (c) A court order affecting military retired pay, even when military 
retired pay has been waived for inclusion in CSRS annuities, does not 
award a former spouse survivor annuity under CSRS or FERS. Such a court 
order does not satisfy the requirements of Sec. 838.804(b)(1).
    (d) A court order that requires an employee or retiree to maintain 
survivor benefits covering the former spouse satisfies the requirements 
of Sec. 838.804(b)(1), if the former spouse was covered by a CSRS or 
FERS survivor annuity or the FERS basic employee death benefit as 
defined in Sec. 843.102 of this chapter at the time of the divorce.

[57 FR 33574, July 29, 1992, as amended at 58 FR 43493, Aug. 17, 1993]



Sec. 838.912  Specifying an award of a former spouse survivor annuity.

    (a) To satisfy the requirements of Sec. 838.804(b)(2), a court 
order must specify that it is awarding a former spouse survivor annuity. 
The court order must contain language such as ``survivor annuity,'' 
``death benefits,'' ``former spouse survivor annuity under 5 U.S.C. 
8341(h)(1),'' etc.
    (b)(1) A court order that provides that the former spouse is to 
``continue as'' or ``be named as'' the beneficiary of CSRS survivor 
benefits or similar language satisfies the requirements of Sec. 
838.804(b)(2).
    (2) A court order that requires an employee or retiree to maintain 
survivor benefits covering the former spouse satisfies the requirements 
of Sec. 838.804(b)(2), if the former spouse was covered by a CSRS or 
FERS survivor annuity or the FERS basic employee death benefit as 
defined in Sec. 843.102 of this chapter at the time of the divorce.
    (c) Two types of potential survivor annuities may be provided by 
retiring employees to cover former spouses. Under CSRS, section 8341(h) 
of title 5, United States Code, provides for ``former spouse survivor 
annuities'' and section 8339(k) of title 5, United States Code, provides 
for ``insurable interest annuities.'' These are distinct benefits, each 
with its own advantages. The corresponding FERS provisions are sections 
8445 and 8444, respectively.
    (1) OPM will enforce court orders to provide section 8341(h) or 
section 8445 annuities. These annuities are less expensive and have 
fewer restrictions than insurable interest annuities but the former 
spouse's interest will automatically terminate upon remarriage before 
age 55. To provide a section 8341(h) or section 8445 annuity, the court 
order must use terms such as ``former spouse survivor annuity,'' 
``section 8341(h) annuity,'' or ``survivor annuity.''
    (2) OPM cannot enforce court orders to provide ``insurable interest 
annuities'' under section 8339(k) or section 8444. These annuities may 
only be elected at the time of retirement by a retiring employee who is 
not retiring under the disability provision of the law and who is in 
good health. The retirees may also elect to cancel the insurable 
interest annuity to provide a survivor annuity for a spouse acquired 
after retirement. The parties might seek to provide this type of annuity 
interest if the nonemployee spouse expects to remarry before age 55, if 
the employee expects to remarry a younger second spouse before 
retirement or if another former spouse has already been awarded a 
section 8341(h) annuity. However, the court will have to provide its own 
remedy if the employee is not eligible for or does not make the 
election. OPM cannot enforce the court order. Language including the 
words ``insurable interest'' or referring to section 8339(k) or section 
8444 does not

[[Page 227]]

satisfy the requirements of Sec. 838.804(b)(2).
    (3) In court orders which contain internal contradictions about the 
type of annuity, such as ``insurable interest annuity under section 
8341(h),'' the section reference will control.

[57 FR 33574, July 29, 1992, as amended at 58 FR 43493, Aug. 17, 1993]

                         Computation of Benefit



Sec. 838.921  Determining the amount of a former spouse survivor annuity.

    (a) A court order that contains no provision stating the amount of 
the former spouse survivor annuity provides the maximum former spouse 
survivor annuity permitted under Sec. 831.641 or Sec. 842.613 of this 
chapter and satisfies the requirements of Sec. 838.805.
    (b)(1) A court order that provides that ``a former spouse will 
keep'' or ``an employee or retiree will maintain'' the survivor annuity 
to which he or she was entitled at the time of the divorce satisfies the 
requirements of Sec. 838.805 and provides a former spouse survivor 
annuity in the same proportion to the maximum survivor annuity under 
Sec. 831.641 or Sec. 842.613 of this chapter as the former spouse had 
at the time of divorce. For example, a former spouse of an employee 
would be entitled to a maximum survivor benefit; a former spouse of a 
retiree (who was married to the retiree at retirement and continuously 
until the divorce resulting in the court order) would be entitled to the 
survivor benefit elected at retirement.
    (2) If, at the time of divorce, the employee covered by FERS had at 
least 18 months of civilian service creditable under FERS but less than 
10 years of service creditable under FERS, a former spouse with a court 
order described in paragraph (b)(1) or paragraph (b)(2) of this section 
may be entitled to the basic employee death benefit as defined in Sec. 
843.102 of this chapter, but is not entitled to any other former spouse 
survivor annuity based on the court order.
    (c)(1) A court order that awards a former spouse survivor annuity of 
less than $12 per year satisfies the requirements of Sec. 838.805 and 
provides an initial rate of $1 per month plus all cost-of-living 
increases occurring after the later of--
    (i) The date of the court order; or
    (ii) The date when the employee retires.
    (2) The reduction in the employee annuity will be computed as though 
the court order provided a former spouse survivor annuity of $1 per 
month.
    (d)(1) A court order that awards a former spouse survivor annuity 
while authorizing the employee or retiree to elect a lesser former 
spouse survivor annuity upon the employee's or retiree's remarriage 
satisfies the requirements of Sec. 838.805, and provides the former 
spouse survivor annuity at the rate initially provided in the court 
order but does not allow the employee or retiree to elect a lesser 
benefit for the former spouse.
    (2) To provide full survivor annuity benefits to a former spouse 
while authorizing the employee or retiree to elect a lesser former 
spouse survivor annuity benefit in order to provide survivor annuity 
benefits for a subsequent spouse, the court order must provide for a 
reduction in the former spouse survivor annuity upon the employee's or 
retiree's election of survivor annuity benefits for a subsequent spouse.
    (3) A reduction in the amount of survivor benefits provided to the 
former spouse does not satisfy the requirements of Sec. 838.805 if it 
is contingent upon the employee's or annuitant's remarriage rather than 
his or her election of survivor annuity benefits for a subsequent 
spouse.

[57 FR 33574, July 29, 1992, as amended at 58 FR 43493, Aug. 17, 1993; 
58 FR 52882, Oct. 13, 1993]



Sec. 838.922  Prorata share defined.

    (a) Prorata share means the fraction of the maximum survivor annuity 
allowable under Sec. 831.641 or Sec. 842.613 of this chapter whose 
numerator is the number of months of Federal civilian and military 
service that the employee performed during the marriage and whose 
denominator is the total number of months of Federal civilian and 
military service performed by the employee.
    (b) A court order that awards a former spouse a ``prorata share'' of 
a survivor annuity by using that term

[[Page 228]]

and identifying the date when the marriage began satisfies the 
requirements of Sec. 838.805 and awards the former spouse a former 
spouse survivor annuity equal to the prorata share as defined in 
paragraph (a) of this section.
    (c) A court order that awards a portion of a survivor annuity, as of 
a specified date before the employee's retirement, awards the former 
spouse a former spouse survivor annuity equal to the prorata share as 
defined in paragraph (a) of this section.
    (d) A court order that awards a portion of the ``value'' of a 
survivor annuity as of a specific date before retirement, without 
specifying what ``value'' is, awards the former spouse a former spouse 
survivor annuity equal to a prorata share as defined in paragraph (a) of 
this section.

[57 FR 33574, July 29, 1992, as amended at 58 FR 52882, Oct. 13, 1993]



Sec. 838.923  Cost-of-living adjustment before the death of a retiree.

    A court order that awards a former spouse survivor annuity is deemed 
to order OPM to add to the survivor annuity rate cost-of-living 
adjustments that occur before the death of a retiree (in the same manner 
as these adjustments are applied to the survivor rate generally) unless 
the court order contains an instruction expressly directing OPM not to 
add these adjustments to the survivor annuity rate. (See Sec. 838.735 
for information concerning cost-of-living adjustments after the death of 
an employee or retiree.)

                        Miscellaneous Provisions



Sec. 838.931  Court orders that provide temporary awards of former 
spouse survivor annuities.

    A provision in a court order that temporarily awards a former spouse 
survivor annuity satisfies the requirements of Sec. 838.804(b)(2), but 
the temporary award becomes permanent on the date on which OPM is barred 
from honoring a modification of the court order (the date of retirement 
or death, or, in the case of a post-retirement divorce, the date of the 
initial court order), as provided in sections 8341(h)(4) and 8445(d) of 
title 5, United States Code.

[57 FR 33574, July 29, 1992, as amended at 58 FR 43493, Aug. 17, 1993]



Sec. 838.932  Court orders that permit the former spouse to elect to
receive a former spouse survivor annuity.

    (a) Except as provided in paragraph (b) of this section, a court 
order that gives the former spouse the right to elect a former spouse 
survivor annuity satisfies the requirements of Sec. 838.804(b)(2) and 
provides a former spouse survivor annuity in the amount otherwise 
provided by the court order.
    (b) A former spouse who has been awarded a former spouse survivor 
annuity by a court order that gives the former spouse the right to elect 
a former spouse survivor annuity may irrevocably elect not to be 
eligible for a former spouse survivor annuity based on the court order.
    (c) The former spouse may make the election under paragraph (b) of 
this section at any time after the issuance of the court order. An 
election under paragraph (b) of this section--
    (1) Must be in writing and in the form prescribed by OPM;
    (2) Is effective on the first day of the month following the month 
in which OPM received the election; and
    (3) Is irrevocable once it has become effective.
    (d) The reduction in an employee annuity based on a court order that 
gives the former spouse the right to elect a former spouse survivor 
annuity terminates on the last day of the month in which OPM receives 
the former spouse's election under paragraph (b) of this section.

[57 FR 33574, July 29, 1992, as amended at 58 FR 43493, Aug. 17, 1993]



Sec. 838.933  Payment of the cost of a former spouse survivor annuity.

    (a) A court order that unequivocally awards a former spouse survivor 
annuity and directs the former spouse to pay for that benefit satisfies 
the requirements of Sec. 838.805, and--
    (1) If the former spouse has also been awarded a portion of the 
employee annuity then the cost of the survivor benefit will be deducted 
from the former spouse's share of the employee annuity

[[Page 229]]

(if sufficient to cover the total cost--there will be no partial 
withholding); otherwise,
    (2) The reduction will be taken from the employee annuity and 
collection from the former spouse will be a private matter between the 
parties.
    (b) a court order that conditions the award of a former spouse 
survivor annuity on the former spouse's payment of the cost of the 
benefit satisfies the requirements of Sec. 838.805 only if a court 
order acceptable for processing also awards the former spouse a portion 
of the employee annuity sufficient to cover the cost.

                            Model Paragraphs



Sec. Appendix A to Subpart I of Part 838--Recommended Language for Court 
            Orders Awarding Former Spouse Survivor Annuities

    This appendix provides recommended language for use in court orders 
awarding former spouse survivor annuities. A former spouse survivor 
annuity is not a continuation of a former spouse's share of an employee 
annuity after the death of the employee. A former spouse's entitlement 
to a portion of an employee annuity cannot continue after the death of 
the employee. A court order that attempts to extend the former spouse's 
entitlement to a portion of an employee annuity past the death of the 
employee is not effective. The model language in this appendix does not 
award benefits payable to the former spouse during the lifetime of the 
employee. A separate, distinct award of a portion of the employee 
annuity is necessary to award a former spouse a benefit during the 
lifetime of the employee. Appendix A to subpart F of this part contains 
model language for a portion of an employee annuity.
    Attorneys should exercise great care in preparing provisions 
concerning former spouse survivor annuities because sections 8341(h)(4) 
and 8445(d) of title 5, United States Code, prohibit OPM from accepting 
modifications after the retirement or death of the employee. (See Sec. 
838.806 concerning unacceptable modifications.) A court order awarding a 
former spouse survivor annuity should include four elements:
     Identification of the retirement system;
     Explicit award of the former spouse survivor 
annuity.
     Method for computing the amount of the former 
spouse's benefit; and
     Instructions on what OPM should do if the 
employee leaves Federal service before retirement and applies for a 
refund of employee contributions.
    By using the model language, courts will know that the court order 
will have the effect described in this appendix.
    The model language uses the terms ``[former spouse]'' to identify 
the spouse who is receiving a former spouse survivor annuity and 
``[employee]'' to identify the Federal employee whose employment was 
covered by the Civil Service Retirement System or the Federal Employees 
Retirement System. Obviously, in drafting an actual court order the 
appropriate terms, such as ``Petitioner'' and ``Respondent,'' or the 
names of the parties should replace ``[former spouse]'' and 
``[employee].''
    Similarly, except when the provision applies only to the basic 
employee death benefit (defined in Sec. 843.103 of this chapter) that 
is available only under the Federal Employees Retirement System, the 
models are drafted for employees covered by the Civil Service Retirement 
System (5 U.S.C. 8331 et seq.). The name of the retirement system should 
be changed for employees covered by the Federal Employees Retirement 
System (5 U.S.C. chapter 84.).
    Statutory references used in the models are to CSRS provisions (such 
as section 8341(h) of title 5, United States Code). When appropriate, 
the corresponding FERS provision (such as section 8445 of title 5, 
United States Code) should be used.

                            Table of Contents

    700 Series--Computing the amount of the former spouse's benefit.

] 701 Award of the maximum survivor annuity.
] 702 Award that continues the pre-divorce survivor annuity benefits.
] 703 Award of a prorata share.
] 704 Award of a fixed monthly amount.
] 705-710 [Reserved]
] 711 Award of a percentage or fraction of the employee annuity.
] 712 Award based on a stated formula as a share of employee annuity.
] 713-720 [Reserved]
] 721 Award of a percentage or fraction of the maximum survivor annuity.
] 722 Award based on a stated formula as a share of maximum survivor 
          annuity.
] 723-750 [Reserved]
] 751 Changing amount of former spouse survivor annuity based on 
          remarriage before retirement.
] 752 Changing amount of former spouse survivor annuity based on 
          remarriage after retirement.

    800 Series--Paying the cost of a former spouse survivor annuity.

] 801 Costs to be paid from the employee annuity.
] 802 Costs to be paid from former spouse's share of the employee 
          annuity.

[[Page 230]]

             900 Series--Refunds of employee contributions.

] 901 Barring payment of a refund of employee contributions.
] 902 Dividing a refund of employee contributions.

    700 Series--Computing the amount of the former spouse's benefit.

    Paragraphs 701 through 704 contain model language for awards of 
former spouse survivor annuities in amounts that do not require 
specification of the base on which the former spouse's share will be 
computed. Situations in which the computational base need not be 
specified include amounts defined by law or regulation. For example, the 
maximum former spouse survivor annuity is fixed by statute generally at 
55 percent of the employee annuity under CSRS and 50 percent of the 
employee annuity under FERS.
    Paragraphs 711 and 712 contain model language for awards of former 
spouse survivor annuities that use the employee annuity as the base on 
which the portion awarded will be computed (that is, on which 
percentage, fraction or formula will be applied). Paragraphs 721 and 722 
contain model language for awards of former spouse survivor annuities 
that use the maximum possible survivor annuity as the base on which the 
portion awarded will be computed (that is, on which percentage, fraction 
or formula will be applied). Using the maximum possible survivor annuity 
as the base will generally award 55 percent under CSRS and 50 percent 
under FERS of the amount that using the employee annuity as the base 
would produce.
    Paragraphs 750 and higher contain model language to implement the 
most common other types of awards.
    Each model paragraph includes a reference to the statutory provision 
under CSRS that authorizes OPM to honor court orders awarding former 
spouse survivor annuities. The FERS statutory provision that corresponds 
to section 8341(h) (mentioned in the first sentence of each example) is 
section 8445.

 701 Award of the maximum survivor annuity.
    Using the following paragraph will award the maximum possible former 
spouse survivor annuity. Under CSRS, the maximum possible survivor 
annuity is 55 percent of the employee annuity unless the surviving 
spouse or former spouse was married to the retiree at retirement and 
agreed to a lesser amount at that time. Under FERS, the maximum possible 
survivor annuity is 50 percent of the employee annuity unless the 
surviving spouse or former spouse was married to the retiree at 
retirement and agreed to a lesser amount at that time.
    ``Under section 8341(h)(1) of title 5, United States Code, [former 
spouse] is awarded the maximum possible former spouse survivor annuity 
under the Civil Service Retirement System.''

 702 Award that continues the pre-divorce survivor annuity 
benefits.
    Using the following paragraph will award a former spouse survivor 
annuity equal to the amount that the former spouse would have received 
if the marriage were never terminated by divorce.
    ``Under section 8341(h)(1) of title 5, United States Code, [former 
spouse] is awarded a former spouse survivor annuity under the Civil 
Service Retirement System in the same amount to which [former spouse] 
would have been entitled if the divorce had not occurred.''

 703 Award of a prorata share.
    Using the following paragraph will award the former spouse a prorata 
share of the maximum possible survivor annuity. Prorata share is defined 
in Sec. 838.922. To award a prorata share the court order must state 
the date of the marriage. Unless the court order specifies a different 
ending date, the marriage ends for computation purposes on the date that 
the court order is filed with the court clerk.
    ``Under section 8341(h)(1) of title 5, United States Code, [former 
spouse] is awarded a former spouse survivor annuity under the Civil 
Service Retirement System. The amount of the former spouse survivor 
annuity will be equal to a prorate share. The marriage began on [insert 
date].''

 704 Award of a fixed monthly amount.
    Using the following paragraph will award a former spouse survivor 
annuity that will start at the amount stated in the order when the 
employee or retiree dies, unless the stated amount exceeds the maximum 
possible former spouse survivor annuity. If the amount stated in the 
order exceeds the maximum possible former spouse survivor annuity, the 
court order will be treated as awarding the maximum. After payment of 
the former spouse survivor annuity has began, COLA's will be applied in 
accordance with Sec. 838.735. If the final sentence of this model 
paragraph is omitted, OPM will add COLA's occurring after the date of 
the employee's retirement or the date of issuance of the court order, 
whichever is later.
    ``Under section 8341(h)(1) of title 5, United States Code, [former 
spouse] is awarded a former spouse survivor annuity under the Civil 
Service Retirement System. The amount of the former spouse survivor 
annuity will be equal to $[insert a number] per month. The Office of 
Personnel Management is ordered not to increase this amount by COLA's 
occurring before death of [employee or retiree].''
 705-710 [Reserved]
 711 Award of a percentage or fraction of the employee annuity.

[[Page 231]]

    Using the following paragraph will award a former spouse survivor 
annuity equal to the stated percentage or fraction of the employee 
annuity. The stated percentage or fraction may not exceed 55 percent 
under CSRS or 50 percent under FERS.
    ``Under section 8341(h)(1) of title 5, United States Code, [former 
spouse] is awarded a former spouse survivor annuity under the Civil 
Service Retirement System. The amount of the former spouse survivor 
annuity will be equal to [insert a percentage or fraction] percent of 
the [employee]'s employee annuity.''
 712 Award based on a stated formula as a share of employee 
annuity.
    Using the following paragraphs will award a former spouse survivor 
annuity in an amount to be determined by applying a stated formula to 
employee annuity. The amount of the former spouse survivor annuity may 
not exceed 55 percent of the employee annuity under CSRS or 50 percent 
under FERS. The formula must be stated in the court order (including a 
court-approved property settlement agreement). The formula may not be 
incorporated by reference to a statutory provision or a court decision 
in another case. If the court order uses a formula, the court order must 
include any data that is necessary for OPM to evaluate the formula 
unless the necessary data is contained in normal OPM files.
    ``Under section 8341(h)(1) of title 5, United States Code, [former 
spouse] is awarded a former spouse survivor annuity under the Civil 
Service Retirement System. The amount of the former spouse survivor 
annuity will be the portion of the [employee]'s employee annuity 
computed as follows:
    ``[Insert formula.]''
 713-720 [Reserved]
 721 Award of a percentage or fraction of the maximum survivor 
annuity.
    Using the following paragraph will award a former spouse survivor 
annuity equal to the stated percentage or fraction of the maximum 
possible survivor annuity. The stated percentage or fraction may not 
exceed 100 percent.
    ``Under section 8341(h)(1) of title 5, United States Code, [former 
spouse] is awarded a former spouse survivor annuity under the Civil 
Service Retirement System. The amount of the former spouse survivor 
annuity will be equal to [insert a percentage or fraction] of the 
maximum possible survivor annuity.
 722 Award based on a stated formula as a share of maximum 
survivor annuity.
    Using the following paragraphs will award a former spouse survivor 
annuity based on a stated formula to be applied to the maximum possible 
survivor annuity. The formula must be stated in the court order 
(including a court-approved property settlement agreement). The formula 
may not be incorporated by reference to a statutory provision or a court 
decision in another case. If the court order uses a formula, the court 
order must include any data that is necessary for OPM to evaluate the 
formula unless the necessary data is contained in normal OPM files.
    ``Under section 8341(h)(1) of title 5, United States Code, [former 
spouse] is awarded a former spouse survivor annuity under the Civil 
Service Retirement System. The amount of the former spouse survivor 
annuity will be the portion of the maximum possible survivor annuity 
computed as follows:
    ``[Insert formula.]''
 723-750 [Reserved]
 751 Changing amount of former spouse survivor annuity based on 
remarriage before retirement.
    Using the following paragraph will award the maximum possible former 
spouse survivor annuity unless the employee remarries before retirement. 
Upon the employee's remarriage before retirement the amount of the 
former spouse survivor annuity changes to a prorata share. The maximum 
possible and prorata share are used as examples only; other amounts may 
be substituted. Similar language is not acceptable for remarriages after 
retirement.
    ``Under section 8341(h)(1) of title 5, United States Code, [former 
spouse] is awarded the maximum possible former spouse survivor annuity 
under the Civil Service Retirement System unless [employee] remarries 
before retirement. If [employee] remarries before retirement, under 
section 8341(h)(1) of title 5, United States Code, [former spouse] is 
awarded a former spouse survivor annuity under the Civil Service 
Retirement System. The amount of the former spouse survivor annuity will 
be equal to a prorata share. The marriage to [former spouse] began on 
[insert data].''
 752 Changing amount of former spouse survivor annuity based on 
remarriage after retirement.
    Using the following paragraph will award the maximum possible former 
spouse survivor annuity unless the employee remarries after retirement 
and elects to provide a survivor annuity for the spouse acquired after 
retirement. Upon the employee's remarriage after retirement and election 
to provide a survivor annuity for the spouse acquired after retirement, 
the amount of the former spouse survivor annuity changes to a prorata 
share. The maximum possible and prorata share are used as examples only; 
other amounts maybe substituted. The change in the amount of the former 
spouse survivor annuity must be triggered by the election, which is a 
part of normal OPM files, rather than the remarriage, which is not 
documented in normal OPM files.
    ``Under section 8341(h)(1) of title 5, United States Code, [former 
spouse] is awarded the

[[Page 232]]

maximum possible former spouse survivor annuity under the Civil Service 
Retirement System unless [employee] elects to provide a survivor annuity 
for a new spouse acquired after retirement. If [employee] elects to 
provide a survivor annuity to a new spouse acquired after retirement, 
under section 8341(h)(1) of title 5, United States Code, [former spouse] 
is awarded a former spouse survivor annuity under the Civil Service 
Retirement System. The amount of the former spouse survivor annuity will 
be equal to a prorata share. The marriage to [former spouse] began on 
[insert data].''

    800 Series--Paying the cost of a former spouse survivor annuity.

    A court order awarding a former spouse survivor annuity requires 
that the employee annuity be reduced. The reduction lowers the gross 
employee annuity. The costs associated with providing the former spouse 
survivor annuity must be paid by annuity reduction. Under Sec. 838.807, 
if the former spouse is awarded a portion of the employee annuity 
sufficient to pay the cost associated with providing the survivor 
annuity, the former spouse's share maybe reduced to pay the cost.
 801 Costs to be paid from the employee annuity.
    No special provision on payment of the costs associated with 
providing the former spouse survivor annuity is necessary if the court 
intends the cost to be taken from the employee annuity.
 802 Costs to be paid from former spouse's share of the 
employee annuity.
    Using the following paragraph will award the former spouse a prorata 
share of the employee annuity and a prorata share of the maximum 
possible survivor annuity and provide that the cost associated with the 
survivor annuity be deducted from the former spouse's share of the 
employee annuity. Prorata share and self-only annuity are used as 
examples only; another amount or type of annuity may be substituted.
    ``[Employee] is (or will be) eligible for retirement benefits under 
the Civil Service Retirement System based on employment with the United 
States Government. [Former spouse] is entitled to a prorata share of 
[employee]'s self-only monthly annuity under the Civil Service 
Retirement System. [Former spouse]'s share of [employee]'s employee 
annuity will be reduced by the amount of the costs associated with 
providing the former spouse survivor annuity awarded in the next 
paragraph. The marriage began on [insert date]. The United States Office 
of Personnel Management is directed to pay [former spouse]'s share 
directly to [former spouse].''
    ``Under section 8341(h)(1) of title 5, United States Code, [former 
spouse] is awarded a former spouse survivor annuity under the Civil 
Service Retirement System. The amount of the former spouse survivor 
annuity will be equal to a prorata share.

             900 Series--Refunds of employee contributions.

    Court orders that award a former spouse survivor annuity based on 
the service of an employee who is not then eligible to retire should 
include an additional paragraph containing instructions that tell OPM 
what to do if the employee requests a refund of employee contributions 
before becoming eligible to retire. The court order may award the former 
spouse a portion of the refund of employee contributions or bar payment 
of the refund of employee contributions.
 901 Barring payment of a refund of employee contributions.
    Using the following paragraph will bar payment of the refund of 
employee contributions if payment of the refund of employee 
contributions would extinguish the former spouse's entitlement to a 
former spouse survivor annuity. ``The United States Office of Personnel 
Management is directed not to pay [employee] a refund of employee 
contributions.''
 902 Dividing a refund of employee contributions.
    Using the following paragraph will allow the refund of employee 
contributions to be paid but will award a prorata share of the refund of 
employee contributions to the former spouse. The award of a prorata 
share is used only an example; the court order could provide another 
fraction, percentage, or formula, or a fixed amount. A refund of 
employee contributions voids the employee's rights to an employee 
annuity unless the employee is reemployed under the retirement system. 
Payment of the refund of employee contributions will also extinguish the 
former spouse's right to a court-ordered portion of an employee annuity 
or a former spouse survivor annuity unless the employee is reemployed 
and reestablishes title to annuity benefits.
    ``If [employee] becomes eligible and applies for a refund of 
employee contributions, [former spouse] is entitled to a prorata share 
of the refund of employee contributions. The marriage began on [insert 
date]. The United States Office of Personnel Management is directed to 
pay [former spouse]'s share directly to [former spouse.]''



   Subpart J_Court Orders Affecting Civil Service Retirement Benefits

    Source: 50 FR 20077, May 13, 1985, unless otherwise noted. 
Redesignated at 57 FR 33596, July 29, 1992.

[[Page 233]]



Sec. 838.1001  [Reserved]



Sec. 838.1002  Relation to other regulations.

    (a) Part 581 of this chapter contains information about garnishment 
of Government payments including salaries and civil service retirement 
benefits.
    (b) Parts 294 and 297 of this chapter and Sec. 831.106 of this 
chapter contain information about disclosure of information from OPM 
records.
    (c) Subpart F of part 831 of this chapter, subpart F of part 842 of 
this chapter, and subpart C of part 843 of this chapter contain 
information about entitlement to survivor annuities.
    (d) Subpart T of part 831 of this chapter and subpart B of part 843 
of this chapter contain information about entitlement to lump-sum death 
benefits.
    (e) Parts 870, 871, 872, and 873 of this chapter contain information 
about coverage under the Federal Employees' Group Life Insurance 
Program.
    (f) Part 890 of this chapter contains information about coverage 
under the Federal Employees Health Benefits Program.
    (g) Section 831.109 of this chapter contains information about the 
administrative review rights available to a person who has been 
adversely affected by an OPM action under this subpart.

[50 FR 20077, May 13, 1985. Redesignated and amended at 57 FR 33596, 
33598, July 29, 1992]



Sec. 838.1003  Definitions.

    In this subpart:
    Associate Director means the Associate Director for Retirement and 
Insurance in the OPM or an OPM official authorized to act on his or her 
behalf.
    Court order means any judgment or property settlement issued by or 
approved by any court of any State, the District of Columbia, the 
Commonwealth of Puerto Rico, Guam, the Northern Mariana Islands, or the 
Virgin Islands, and any Indian court in connection with, or incident to, 
the divorce, annulment of marriage, or legal separation of a Federal 
employee or retiree.
    CSRS means subchapter III of chapter 83 of title 5, United States 
Code.
    Employee retirement benefits means employees' and Members' annuities 
and refunds of retirement contributions but does not include survivor 
annuities or lump-sum payments made pursuant to section 8342 (c) through 
(f) of title 5, United States Code.
    Former spouse means (1) in connection with a court order affecting 
employee retirement benefits, a living person whose marriage to an 
employee, Member, or retiree has been subject to a divorce, annulment, 
or legal separation resulting in a court order; or (2) in connection 
with a court order awarding a former spouse annuity, a living person who 
was married for at least 9 months to an employee, Member, or retiree who 
performed at least 18 months of creditable service in a position covered 
by CSRS and whose marriage to the employee was terminated prior to the 
death of the employee, Member, or retiree.
    Former spouse annuity means a former spouse annuity as defined in 
Sec. 831.603 of this chapter.
    Gross annuity means the amount of a self-only annuity less only 
applicable survivor reduction, but before any other deduction.
    Member means a Member of Congress.
    Net annuity means the amount of annuity payable after deducting from 
the gross annuity any amounts that are (1) owed by the retiree to the 
United States, (2) deducted for health benefits premiums pursuant to 
section 8906 of title 5, United States Code, and Sec. Sec. 891.401 and 
891.402 of this title, (3) deducted for life insurance premiums pursuant 
to section 8714a(d) of title 5, United States Code, (4) deducted for 
Medicare premiums, or (5) properly withheld for Federal income tax 
purposes, if amounts withheld are not greater than they would be if the 
individual claimed all dependents to which he or she was entitled.
    Qualifying court order means a court order that meets the 
requirements of Sec. 838.1004.
    Retiree means a former employee or Member who is receiving recurring 
payments under CSRS based on service by the employee or Member. Retiree, 
as used in the subpart, does not include a current spouse, former 
spouse, child or person with an insurable interest.
    Self-only annuity means the recurring payment to a retiree who has 
elected

[[Page 234]]

not to provide a survivor annuity to anyone.

[50 FR 20077, May 13, 1985, as amended at 55 FR 9103, Mar. 12, 1990; 56 
FR 45884, Sept. 9, 1991. Redesignated and amended at 57 FR 33596-33598, 
July 29, 1992]



Sec. 838.1004  Qualifying court orders.

    (a) A former spouse is entitled to a portion of an employee's 
retirement benefits only to the extent that the division of retirement 
benefits is expressly provided for by the court order. The court order 
must divide employee retirement benefits, award a payment from employee 
retirement benefits, or award a former spouse annuity.
    (b) The court order must state the former spouse's share as a fixed 
amount, a percentage or a fraction of the annuity, or by a formula that 
does not contain any variables whose value is not readily ascertainable 
from the face of the order or normal OPM files.
    (c)(1) For purposes of payments from employee retirement benefits, 
OPM will review court orders as a whole to determine whether the 
language of the order shows an intent by the court that the former 
spouse should receive a portion of the employee's retirement benefits 
directly from the United States.
    (i) Orders that direct or imply that OPM is to make payment of a 
portion of employee retirement benefits, or are neutral about the source 
of payment, will be honored unless the retiree can demonstrate that the 
order is invalid in accordance with Sec. 838.1009.
    (ii) Orders that specifically direct the retiree to pay a portion of 
employee retirement benefits to a former spouse (and do not contain 
language to show the court intends payment from the Civil Service 
Retirement System) will be honored unless the retiree objects to direct 
payment by OPM within the 30-day notice period prescribed in Sec. 
838.1008, but will not be honored even if the retiree raises only a 
general objection to payment by OPM within that 30-day notice period.
    (2) For purposes of awarding a former spouse annuity, the court 
order must either state the former spouse's entitlement to a survivor 
annuity or direct an employee, Member, or retiree to provide a former 
spouse annuity.
    (d) For purposes of affecting or awarding a former spouse annuity, a 
court order is not a qualifying court order whenever--
    (1) The marriage was terminated before May 7, 1985; or
    (2)(i) The marriage was terminated on or after May 7, 1985; and
    (ii) The employee or Member retired under CSRS before May 7, 1985; 
and
    (iii)(A) The employee or Member had elected not to provide a current 
spouse annuity for that spouse at the time of retirement; or,
    (B) In the case of a post-retirement marriage, the annuitant had not 
elected to provide a survivor annuity for that spouse before May 7, 
1985.
    (e)(1) For purposes of awarding, increasing, reducing, or 
eliminating a former spouse survivor annuity, or explaining, 
interpreting, or clarifying a court order that awards, increases, 
reduces or eliminates a former spouse annuity, the court order must be--
    (i) Issued on a day prior to the date of retirement or date of death 
of the employee; or
    (ii) The first order dividing the marital property of the retiree 
and the former spouse.
    (2) In paragraph (e)(1) of this section, ``date of retirement'' 
means the later of--
    (i) The date that the employee files an application for retirement; 
or
    (ii) The effective commencing date for the employee's annuity.
    (3) In paragraphs (e)(1) and (e)(4) of this section ``issued'' means 
actually filed with the clerk of the court, and does not mean the 
effective date of a retroactive court order that is effective prior to 
the date when actually filed with the clerk of the court (e.g., a court 
order issued nunc pro tunc).
    (4)(i) In paragraph (e)(1)(ii) of this section, the ``first order 
dividing the marital property of the retiree and the former spouse'' 
means--
    (A) The original written order that first ends (or first documents 
an oral order ending) the marriage if the court divides any marital 
property (or approves a property settlement agreement that divides any 
marital property) in that order, or in any order issued before that 
order; or

[[Page 235]]

    (B) The original written order issued after the marriage has been 
terminated in which the court first divides any marital property (or 
first approves a property settlement agreement that divides any marital 
property) if no marital property has been divided prior to the issuance 
of that order.
    (ii) The first order dividing marital property does not include--
    (A) Any court order that amends, explains, clarifies, or interprets 
the original written order regardless of the effective date of the court 
order making the amendment, explanation, clarification, or 
interpretation; or
    (B) Any court order issued under reserved jurisdiction or any other 
court orders issued subsequent to the original written order that divide 
any marital property regardless of the effective date of the court 
order.

[50 FR 20077, May 13, 1985, as amended at 51 FR 31936, Sept. 8, 1986; 52 
FR 3210, Feb. 3, 1987; 53 FR 48896, Dec. 5, 1988; 53 FR 49638, Dec. 8, 
1988. Redesignated and amended at 57 FR 33596-33597, July 29, 1992]



Sec. 838.1005  Applications by former spouse.

    (a) A former spouse (personally or through a representative) must 
apply in writing to be eligible for benefits under this subpart. No 
special form is required.
    (b) The application letter must be accompanied by--
    (1) A certified copy of the court order granting benefits under 
CSRS; and
    (2) A statement that the court order has not been amended, 
superseded, or set aside; and
    (3) Identifying information concerning the employee, Member, or 
retiree such as his or her full name, claim number, date of birth, and 
social security number, if available; and
    (4) The mailing address of the former spouse.
    (c) When payments are subject to termination upon remarriage, no 
payment shall be made until the former spouse submits to the Associate 
Director a statement on the form prescribed by OPM certifying--
    (1) That a remarriage has not occurred; and
    (2) That the former spouse will notify the Associate Director within 
15 calendar days of the occurrence of any remarriage; and
    (3) That the former spouse will be personally liable for any 
overpayment to him or her resulting from a remarriage. The Associate 
Director may subsequently require recertification of these statements.



Sec. 838.1006  Amounts payable.

    (a) Money held by an executive agency or OPM that may be payable at 
some future date is not available for payment under court orders unless 
all of the conditions necessary for payment of the money to the former 
employee or Member have been met, including, but not limited to--
    (1) Separation from a covered position in the Federal service; and
    (2) Application for payment of the money by the former employee or 
Member; and
    (3) The former employee's or Member's immediate entitlement to 
payment of the money subject to the order.
    (b) Waivers of employee or Member annuity payments under the terms 
of section 8345(d) of title 5, United States Code, exclude the waived 
portion of the annuity from availability for payment under a court order 
if such waivers are postmarked before the expiration of the 30-day 
notice period provided by Sec. 838.1008.
    (c) Payment under a court order may not exceed--
    (1) In cases involving employee or Member annuities, the net 
annuity.
    (2) In cases involving lump-sum payments (refunds), the amount of 
the lump-sum credit.
    (3) In cases involving former spouse annuities, the amount provided 
in Sec. 831.641 of this chapter.
    (d) In cases in which court orders award former spouse annuities--
    (1) Except as provided in paragraph (d)(2) of this section, former 
spouse annuities based on qualifying court orders will commence and 
terminate in accordance with the court order.
    (2) A court order will not be honored to the extent it would require 
an annuity to commence prior to the day after the employee, Member, or 
retiree dies, or the first day of the second month beginning after the 
date on which OPM

[[Page 236]]

receives written notice of the court order together with the additional 
information required by Sec. 838.1005. Further, a court order will not 
be honored to the extent it requires an annuity to be terminated 
contrary to section 8341(h)(3)(B) of title 5, United States Code.
    (3) A court order will not be honored to the extent is is 
inconsistent with any joint designation or waiver previously executed 
under Sec. 831.614 of this chapter with respect to the former spouse 
involved.

[50 FR 20077, May 13, 1985, as amended at 51 FR 31936, Sept. 8, 1986. 
Redesignated and amended at 57 FR 33596-33598, July 29, 1992; 58 FR 
52882, Oct. 13, 1993]



Sec. 838.1007  Preliminary review.

    (a)(1) Upon receipt of a court order and documentation required by 
Sec. 838.1005 affecting the future civil service retirement benefits of 
an employee or Member who is living and has not applied for benefits 
under CSRS, the Associate Director will notify the former spouse that 
OPM has received the court order and documentation. The court order and 
documentation will be filed for further review when the employee or 
Member dies or funds become available under Sec. 838.1006.
    (2) When OPM has received a court order and documentation required 
by Sec. 838.1005 affecting an employee or Member who retires, dies, or 
applies for a lump-sum benefit, the Associate Director will determine 
whether the court order is a qualifying court order under Sec. 
838.1004.
    (3) Upon receipt of a court order and necessary documentation 
required by Sec. 838.1005 affecting employee retirement benefits that 
are available under Sec. 838.1006 or awarding a former spouse annuity 
to a former spouse of an employee who retired under CSRS or died, the 
Associate Director will determine whether the court order is a 
qualifying court order under Sec. 838.1004.
    (b) Upon preliminary determination that the court order is 
qualifying, the Associate Director will give the notifications required 
by Sec. 838.1008.
    (c) Upon preliminary determination that the court order is not 
qualifying, the former spouse will be notified of the basis for the 
determination and the right to reconsideration under Sec. 831.109 of 
this chapter.

[50 FR 20077, May 13, 1985. Redesignated and amended at 57 FR 33596-
33598, July 29, 1992]



Sec. 838.1008  Notifications.

    (a) In a case in which the court order affects employee retirement 
benefits:
    (1) The Associate Director will notify the employee, Member, or 
retiree that a court order has been received that appears to require 
that a portion of his or her retirement benefits be paid to a former 
spouse and provide the employee, Member, or retiree with a copy of the 
court order. The notice will inform the former employee or Member--
    (i) That OPM intends to honor the court order; and
    (ii) Of the effect that the court order will have on the former 
employee or Member's retirement benefits; and
    (iii) That no payments will be made to the former spouse for a 
period of 30 days from the notice date to enable the former employee or 
Member to contest the court order.
    (2) The Associate Director will notify the former spouse--
    (i) That OPM intends to honor the court order; and
    (ii) Of the amount that the former spouse is entitled to receive 
under the court order, and in cases that award a portion of the benefits 
on a percentage basis or by a formula, how the amount was computed; and
    (iii) That payment is being delayed for a period of 30 days to give 
the former employee or Member an opportunity to contest the court order.
    (b) In a case in which the court order awards a former spouse 
annuity--
    (1) The Associate Director will notify the retiree, if living, or, 
if the employee, Member, or retiree is dead, his or her surviving 
spouse, or the person entitled to the lump-sum death benefit under 
section 8342 of title 5, United States Code, if possible, that a court 
order has been received that requires the payment of a former spouse 
annuity. The notice will include a copy of the court order. The notice 
will state--
    (i) That OPM intends to honor the court order; and
    (ii) The effect it will have on the potential retirement benefit of 
the person receiving the notice; and

[[Page 237]]

    (iii) That any objection to honoring the court order must be filed 
within 30 days from the notice date.
    (2) The former spouse will be notified--
    (i) That OPM intends to honor the court order; and
    (ii) Of the amount of survivor annuity that he or she will be 
entitled to receive and how the amount was computed; and
    (iii) That anyone adversely affected has a period of 30 days in 
which to contest the court order.
    (c) In a case in which the court order affects employee retirement 
benefits and awards a former spouse annuity all of the notices under 
paragraphs (a) and (b) of this section will be provided.



Sec. 838.1009  Decisions.

    (a)(1) When the individual does not respond within the 30-day notice 
period provided for by Sec. 838.1008, the court order will be honored 
in accordance with the notification.
    (2) When a timely response to the notification is received, the 
Associate Director will consider the response. The former spouse's claim 
will be denied and the former spouse will be notified of the right to 
request reconsideration under Sec. 831.109 of this chapter whenever is 
is shown that--
    (i) The court order is not a qualifying court order; or
    (ii) The court order is inconsistent with a contemporaneous or 
subsequent court order.
    (b) If any person who may lose benefits if OPM honors the court 
order objects to payment based on the validity of the court order and 
the record contains reasonable support for the objection, he or she will 
be granted 30 days to initiate legal action to determine the validity of 
the objection. If funds are available under Sec. 838.1006 and evidence 
is submitted that legal action had been started before the 30 days have 
expired, money will continue to be withheld, but no payment will be made 
to the former spouse pending judicial determination of the validity of 
the court order.

[50 FR 20077, May 13, 1985. Redesignated and amended at 57 FR 33596-
33598, July 29, 1992]



Sec. 838.1010  Court orders or decrees preventing payment of lump sums.

    (a) Payment of the lump-sum credit to a former employee or Member 
will be subject to the terms of any court order or decree issued with 
respect to any former spouse or to any current spouse from whom the 
employee or Member was legally separated, if--
    (1) The court order or decree expressly relates to any portion of 
the lump-sum credit involved; and
    (2) Payment of the lump-sum credit would extinguish entitlement of 
the current or former spouse to a survivor annuity under section 8341(h) 
of title 5, United States Code, or to any portion of an annuity under 
section 8345(j) of title 5, United States Code.
    (b) For paragraph (a) of this section to have effect, OPM must be in 
receipt of the court order or decree before authorizing payment of the 
refund.
    (c)(1) In the event that OPM receives two or more court orders or 
decrees--
    (i) When there are two former spouses, the court orders or decrees 
will be honored in the order in which they were issued until the lump-
sum has been exhausted.
    (ii) When there are two or more court orders or decrees relating to 
the same former spouse, the one issued last will be honored first.
    (2) In no event will the amount paid out exceed the amount of the 
lump-sum credit.
    (d) OPM is not liable for any payment made from money due from or 
payable by OPM to any individual pursuant to a court order or decree 
regular on its face, if such payment is made in accordance with this 
subpart.
    (e) Except as provided in paragraph (f) of this section, a court 
order or decree directed at a refund of retirement contributions is not 
effective unless the court order or decree and supporting documentation 
required by Sec. 838.1005 are received by OPM not later than--
    (1) The last day of the second month before payment of the refund; 
or
    (2) Twenty days after OPM receives the Statement required by Sec. 
831.2007(c) of this chapter if the former spouse has indicated on that 
Statement that such an order exists.

[[Page 238]]

    (f) The interests of a former spouse with a court order or decree 
who does not receive notice of a refund application because the former 
employee or Member submits fraudulent proof of notification or 
fraudulent proof that the former spouse's whereabouts are unknown are 
protected if, and only if--
    (1) The former spouse files the court order or decree with OPM no 
later than the last day of the second month before the payment of the 
refund; or
    (2) The former spouse submits proof that--
    (i) The evidence submitted by the employee was fraudulent; and
    (ii) Absent the fraud, the former spouse would have been able to 
submit the necessary documentation required by Sec. 838.1005 within the 
time limit prescribed in paragraph (e) of this section.
    (g) Court orders, notices, summons, or other documents that attempt 
to restrain OPM from paying refunds of retirement contributions are not 
effective unless they meet all the requirements of--
    (1) Paragraph (a) of this section, including the requirement that 
the court order or decree, or a prior court order or decree, has awarded 
the former spouse a former spouse annuity as defined in Sec. 831.603 of 
this chapter or a portion of the employee's or Member's future annuity 
benefit; or
    (2) Part 581 of this chapter.

[50 FR 20081, May 13, 1985, as amended at 51 FR 31937, Sept. 8, 1986; 55 
FR 9106, Mar. 12, 1990. Redesignated and amended at 57 FR 33596-33598, 
July 29, 1992]



Sec. 838.1011  Effective dates.

    (a)(1) The provisions of this subpart apply to any employee 
retirement benefits regardless of the date of issuance of the court 
order or the date when the employee or Member retires.
    (2) The Associate Director will not increase the amount apportioned 
from current retirement benefits to satisfy an arrearage due the former 
spouse unless the court order states the amount of the arrearage and 
directs that it be paid from the employee retirement benefit. However, 
the Associate Director will honor the terms of a new or revised court 
order that either increases or decreases the former spouse's 
entitlement. These changes will be prospective only.
    (3) Benefits payable to a former spouse from a retiree's annuity 
begin to accrue no earlier than the beginning of the month after receipt 
of a qualifying court order and the documentation required by Sec. 
838.1005, and terminate no later than the last day of the month before 
the death of the retiree.
    (b)(1) The provisions of this subpart concerning former spouse 
annuities apply only with respect to a former spouse of an employee, 
Member, or retiree who retires or dies while employed in a position 
covered by CSRS on or after May 7, 1985, or a former spouse whose 
marriage to an employee, Member, or retiree is terminated on or after 
May 7, 1985, regardless of the date the employee separates from a 
position covered by CSRS.
    (2) The survivor annuity for a former spouse commences and 
terminates in accordance with the court order. However, a court order 
will not be honored to the extent it would require an annuity to 
commence before--
    (i) The day after the employee, Member, or retiree dies; or
    (ii) The first day of the second month beginning after OPM receives 
the court order, together with such additional information required by 
Sec. 838.1005, whichever is later. Further, a court order will not be 
honored to the extent it requires an annuity to be terminated contrary 
to section 8341(h)(3)(B) of title 5, United States Code.

[50 FR 20077, May 13, 1985, as amended at 51 FR 31936, Sept. 8, 1986. 
Redesignated and amended at 57 FR 33596-33597, July 29, 1992]



Sec. 838.1012  Death of the former spouse.

    (a) Unless the qualifying court order expressly provides otherwise, 
the former spouse's share of employee retirement benefits terminates on 
the last day of the month before the death of the former spouse, and the 
former spouse's share of employee retirement benefits reverts to the 
retiree.
    (b) Except as otherwise provided in this subpart, OPM will honor a 
qualifying court order or an amended qualifying court order that directs 
OPM to pay, after the death of the former spouse, the former spouse's 
share of the employee annuity to--

[[Page 239]]

    (1) The court;
    (2) An officer of the court acting as a fiduciary;
    (3) The estate of the former spouse; or
    (4) One or more of the retiree's children as defined in section 
8342(c) or section 8424(d) of title 5, United States Code.

[57 FR 33597, July 29, 1992, as amended at 58 FR 43493, Aug. 17, 1993]



Sec. 838.1013  Limitations.

    (a) Employee retirement benefits are subject to apportionment by 
court order only while the former employee or Member is living. Payment 
of apportioned amounts will be made only to the former spouse and/or the 
children of the former employee or Member. Payment will not be made to 
any of the following:
    (1) The heirs or legatees of the former spouse; or
    (2) The creditors of the former employee or Member, or the former 
spouse; or
    (3) Other assignees of the former employee or Member, or the former 
spouse.
    (b) The amount of payment under this subpart will not be less than 
one dollar and, in the absence of compelling circumstances, will be in 
whole dollars.
    (c) In honoring and complying with a court order, the Associate 
Director will not disrupt the scheduled method of accruing retirement 
benefits or the normal timing for making such payment, despite the 
existence of a special schedule of accrual or payment of amounts due the 
former spouse.
    (d) Payments from employee retirement benefits under this subpart 
will be discontinued whenever the retiree's annuity payments are 
suspended or terminated. If annuity payments to the retiree are 
restored, payment to the former spouse will also resume.
    (e) Since the former spouse is entitled to payments from employee 
retirement benefits only while the former employee or Member is living, 
the former spouse is personally liable for any payments from employee 
retirement benefits received after the death of the retiree.



Sec. 838.1014  Guidelines on interpreting court orders.

    As circumstances require, OPM will publish in the Federal Register a 
notice of the guidelines it uses in interpreting court orders. Upon 
publication of the notice in the Federal Register of such guidelines, 
they will become an appendix to this subpart.



Sec. 838.1015  Liability.

    OPM is not liable for any payment made from employee retirement 
benefits pursuant to a court order if such payment is made in accordance 
with the provisions of this subpart.



Sec. 838.1016  Receipt of multiple court orders.

    In the event that OPM receives two or more qualifying court orders--
    (a) When there are two or more former spouses, the court orders will 
be honored in the order in which they were issued to the maximum extent 
possible under Sec. Sec. 831.641 of this chapter and 838.1006.
    (b) Where there are two or more court orders relating to the same 
former spouse, the one issued last will be honored.

[50 FR 20077, May 13, 1985. Redesignated and amended at 57 FR 33596-
33598, July 29, 1992; 58 FR 52882, Oct. 13, 1993]



Sec. 838.1017  Cost-of-living adjustments.

    In cases where the court order apportions a percentage of the 
employee retirement benefit, the Associate Director will initially 
determine the amount of proper payment. That amount will be increased by 
future cost-of-living increases unless the court directs otherwise.



Sec. 838.1018  Settlements.

    The former spouse may request that an amount be withheld from the 
retirement benefits that is less than the amount stipulated in the court 
order. This lower amount will be deemed a complete fulfillment of the 
obligation of OPM for the period in which the request is in effect.

[[Page 240]]



 Sec. Appendix A to Subpart J of Part 838--Guidelines for Interpreting 
      State Court Orders Dividing Civil Service Retirement Benefits

                        United States of America

                     Office of Personnel Management

                     Retirement and Insurance Group

 Guidelines for Interpreting State Court Orders Dividing Civil Service 
                           Retirement Benefits

    These guidelines explain the interpretation that the Office of 
Personnel Management (OPM) will place on terms and phrases frequently 
used in dividing benefits. These guidelines are intended not only for 
the use of OPM, but also for the legal community as a whole, with the 
hope that by informing attorneys, in advance, about the manner in which 
OPM will interpret terms written into court orders, the resulting orders 
will be more carefully drafted, using the proper language to accomplish 
the aims of the court.
    A substantial number of State court orders are drafted under the 
mistaken belief that the Employee Retirement Income Security Act (ERISA) 
(29 U.S.C. 1001 et seq.) applies to CSRS benefits. Sections 1003(b)(1) 
and 1051 of title 29, United States Code, exempt CSRS from ERISA, 
because CSRS is a ``governmental plan'' as defined in section 1001(23) 
of title 29, United States Code. Accordingly, OPM does not honor ERISA 
Qualifying Domestic Relations Orders (QDRO's) except to the extent that 
the law governing CSRS expressly authorizes compliance with State court 
orders. OPM will honor the orders to the extent permitted by CSRS. 
However, many provisions of ERISA QDRO's are not authorized under CSRS. 
Most significantly, a court cannot require that payments to the former 
spouse begin before the employee actually retires (i.e., begins to 
receive benefits) and, unless the order expressly provides that the 
former spouse is entitled to a survivor annuity, the payments to the 
former spouse cannot continue after the employee dies.

                        I. Computations generally

    A. Adjustments affecting court-awarded benefits. 1. Orders that 
award adjustments to a former spouse stated in terms such as ``cost-of-
living adjustments'' or ``COLAs'' occurring after the date of the decree 
but before the date of retirement will be interpreted to award increases 
equal to the adjustments described in or effected under section 8340 of 
title 5, United States Code.
    2. Orders that award adjustments to a former spouse stated in terms 
such as ``salary adjustments'' or ``pay adjustments'' occurring after 
the date of the decree will be interpreted to award increases equal to 
the adjustments described in or effected under section 5303 of title 5, 
United States Code until the date of retirement.
    3. Unless otherwise specified in the order, adjustments described in 
section 8340 of title 5, United States Code will be applied after the 
date of retirement.
    B. Application of COLAs. 1. Unless the court directly and 
unequivocally orders otherwise, decrees that divide annuities either on 
a percentage basis or by use of a formula will be interpreted to entitle 
the former spouse to salary adjustments occurring after the date of the 
decree and cost-of-living adjustments occurring after the date of the 
decree or occurring after the date of the employee's retirement, 
whichever comes later.
    2. On the other hand, decrees that award a former spouse a specific 
dollar amount from the annuity will be interpreted as excluding salary 
and cost-of-living adjustments after the date of the decree, unless the 
court expressly orders their inclusion.
    3. Orders that contain a general instruction to calculate the former 
spouse's share effective at the time of divorce or separation will not 
be interpreted to prevent the inclusion of salary adjustments occurring 
after the specified date. To prevent the application of salary 
adjustments after the date of the divorce or separation, the decree must 
either state the exact dollar amount of the award to the former spouse 
or specifically state that salary adjustments after the specified date 
are to be disregarded in computing the former spouse's share.
    4. Orders that require OPM to compute a benefit as of a specified 
date, and specifically state that salary adjustments after the specified 
date are to be disregarded in computing the former spouse's share will 
not be interpreted to prevent the application of COLAs after the date of 
the Federal employee's retirement. To award COLAs between the specified 
date and the Federal employee's retirement, the order must specifically 
state that the former spouse will receive the benefit of any COLAs 
occurring between the specified date and the date of the Federal 
employee's retirement. To prevent the application of COLAs after the 
retirement date, the decree must either state the exact dollar amount of 
the award to the former spouse or specifically state that the former 
spouse will not receive the benefit of COLAs occurring after the date of 
the Federal employee's retirement.
    C. Present value. 1. Orders that award a portion of the ``present 
value'' of an annuity will not be honored unless the amount of the 
``present value'' is stated in the order. (See 5 CFR 838.1004(b).)
    2. Orders that award a portion of the ``present value'' of an 
annuity stated in the

[[Page 241]]

order will be interpreted as awarding ``a specific dollar amount.'' 
Unless the court specifically states otherwise, such an award payable 
from a monthly annuity benefit will be paid in equal installments at 50 
percent of the monthly annuity rate at the time of retirement or the 
date of the order, whichever comes later, until the specific dollar 
amount is reached.
    3. Orders that award a portion of the ``value'' of an annuity as of 
a specific date before retirement, without specifying what ``value'' is, 
will be interpreted as awarding a portion of the annuity equal to the 
monthly annuity rate at the time of retirement times a fraction, the 
numerator of which is the number of months of ``creditable service'' or 
service worked as of the date specified and the denominator of which is 
the total number of months as of the time of retirement of ``creditable 
service'' or service worked, whichever term is used in the court order. 
(See III. C. of these Guidelines.)
    4. Orders that contain general language awarding a specified portion 
of a Federal employee's ``retirement benefits'' as of a specified date 
before retirement, but do not specify whether OPM should use 
``creditable service'' or ``service worked'' as of the date specified to 
complete the computation, will be interpreted to award a portion of the 
annuity equal to the monthly annuity rate at the time of retirement 
times a fraction, the numerator of which is the number of months of 
service worked as of the date specified and the denominator of which is 
the number of months of ``creditable service'' as of the time of 
retirement.
    D. Annuity as of a date before retirement. Orders that award a 
portion of an employee's annuity as of a specified date before the 
employee's retirement will be interpreted as awarding a portion of the 
annuity equal to the monthly annuity rate at the time of retirement 
times a fraction, the numerator of which is the number of months of 
``creditable service'' or service worked as of the date specified and 
the denominator of which is the number of months of ``creditable 
service'' or service worked used in the retirement computation.
    E. Formulas or percentage instructions. Orders that contain both a 
formula or percentage instruction and a dollar amount will be 
interpreted as including the dollar amount only as the court's estimate 
of the initial amount of payment. The formula or percentage instruction 
will control.
    F. Computation limited to a particular period of employment. In 
order to limit the computation of benefits to a particular period of 
employment, the court order must use language expressly limiting the 
period of service to be included in the computation. General language 
such as ``benefits accrued as a result of employment with the U.S. 
Postal Service * * *'' will be interpreted to mean only that CSRS 
retirement benefits are subject to division (see V.A. of appendix A to 
subpart J of part 838). Such language will not be interpreted to limit 
the period of service included in the computation (i.e., service 
performed with other Government agencies will be included). To limit the 
period of service, the court order should specify the number of months 
to be included in the computation or should describe specifically the 
period of service to be included in the computation (e.g., ``only U.S. 
Postal Service'' or ``exclusive of any service other than U.S. Postal 
Service employment'' or ``only service performed during the period 
Petitioner and Defendant were married'' or ``benefits based on service 
performed through the date of divorce,'' etc.).
    G. Amounts less than $12 per year. Orders awarding a former spouse 
less than $12 per year are qualifying court orders. Such orders will be 
interpreted as an award of $1 per month.

                          II. Types of annuity

    A. Gross annuity will be interpreted as the amount of the annuity 
payable after any applicable survivor reduction but before any other 
deduction.
    B. 1. To divide an annuity before any applicable survivor reduction, 
the decree must contain language to the effect that the division is to 
be made on the self-only annuity, the life-rate annuity, or the annuity 
unreduced for survivor benefit, or equivalent language. A division of 
``gross annuity'' will not accomplish this purpose.
    2. To divide an annuity before the social security offset under 
section 8349 of title 5, United States Code, the order must expressly 
state that the division is to occur before the social security offset. 
The term ``unreduced annuity'' will mean annuity after the social 
security offset.
    C. Net annuity or disposable annuity will be interpreted to mean net 
annuity as defined in Sec. 838.1003.
    D. Orders that fail to state the type of annuity that they are 
dividing will be interpreted as dividing gross annuity (defined above).
    E. Orders dividing a ``retirement check'' will be interpreted as 
dividing net annuity (as defined in Sec. 838.1003).

                          III. Calculating time

    A. The smallest unit of time that will be used in computing a 
formula in a decree is a month.
    1. This policy is based on section 8332 of title 5, United States 
Code, that allows credit for service for years or twelfth parts thereof. 
Requests to calculate smaller units of time will not be honored.
    2. Time calculations by the Office of Personnel Management will be 
no more precise than years and twelfth parts, even where the

[[Page 242]]

court order directs OPM to make a more precise calculation. However, if 
the court order states a formula using a specified simple or decimal 
fraction other than twelfth parts, OPM will use the specified number to 
perform simple mathematical computations. For example, the share of a 
former spouse awarded a portion of the annuity equal to \1/2\ of the 
fraction whose numerator is 12.863 years and whose denominator is the 
total service on which the annuity is based would be computed by taking 
\1/2\ of the quotient obtained by dividing 12.863 by the total service 
measured in years and twelfth parts.
    B. The term ``military service'' will generally be interpreted to 
include only periods of service within the definition of military 
service contained in section 8331(13) of title 5, United States Code, 
i.e., active duty military service. Civilian service with military 
organizations will not be included as ``military service,'' except where 
the exclusion of such civilian service would be manifestly contrary to 
the intent of the court order.
    C. 1. Unused sick leave is counted as ``creditable service'' on the 
date of separation for immediate retirement; it is not apportioned over 
the time when earned.
    2. When an order contains a formula for dividing annuity that 
requires a computation of service worked as of a date prior to 
separation and using terms such as ``years of service,'' ``total 
service,'' or similar terms, the time attributable to unused sick leave 
will not be included.
    3. When an order contains a formula for dividing annuity that 
requires a computation of ``creditable service'' (or some other phrase 
using ``credit'' or its equivalent) as of a date prior to retirement, 
unused sick leave will be included in the computation as follows--
    (i) If the amount of unused sick leave is specified, the order will 
be interpreted to award a portion of the annuity equal to the monthly 
annuity at retirement times a fraction, the numerator of which is the 
number of months of ``creditable service'' as of the date specified plus 
the number of months of unused sick leave specified and whose 
denominator is the months of ``creditable service'' used in the 
retirement computation.
    (ii) If the amount of unused sick leave is not specified, the order 
will be interpreted to award a portion of the annuity equal to the 
monthly rate at the time of retirement times a fraction, the numerator 
of which is the number of months of ``creditable service'' as of the 
date specified (no sick leave included) and whose denominator is the 
number of months of ``creditable service'' used in the retirement 
computation.

     IV. Distinguishing Between Divisions of Annuity and Refunds of 
                              Contributions

    A. Orders that are unclear about whether they are dividing an 
annuity or a refund of contributions will be interpreted as dividing an 
annuity.
    B. Orders using ``annuities,'' ``pensions,'' ``retirement 
benefits,'' or similar terms will be interpreted as dividing an annuity 
and whatever other employee benefits become payable, such as refunds. 
Orders using ``contributions,'' ``deductions,'' ``deposits,'' 
``retirement accounts,'' ``retirement fund,'' or similar terms will be 
interpreted as dividing the amount of contributions the employee has 
paid into the Civil Service Retirement Fund. Unless the court order 
specifically states otherwise, when an annuity is payable, such orders 
will be paid in equal monthly installments at 50 percent of the monthly 
annuity at the time of retirement or the date of the order, whichever 
comes later, until the specific dollar amount is reached.

                    V. Identifying Benefits Affected

    A. Orders that do not specify what pension or retirement benefits 
are to be divided will not be interpreted as dividing CSRS benefits. 
Terms such as ``CSRS,'' ``United States,'' ``OPM,'' ``Federal 
Government'' benefits, ``Postal Service retirement benefits,'' 
``retirement benefits payable based on service with the U.S. Department 
of Agriculture,'' or similar terms will be considered sufficient to 
identify civil service retirement benefits for division.
    B. Except as provided below, orders directed at other retirement 
systems will not be interpreted as affecting CSRS benefits.
    1. Orders that mistakenly label CSRS benefits as Federal Employees 
Retirement System (FERS) benefits, will be interpreted as dividing CSRS 
benefits and vice versa.
    2. Unless the order expressly provides otherwise, for employees 
transferring to FERS, orders directed at CSRS benefits will be 
interpreted as applying to the entire FERS basic benefit, including the 
CSRS component, if any.
    C. Orders directed at other Federal retirement systems such as 
military retired pay, Foreign Service retirement benefits and Central 
Intelligence Agency retirement benefits will not be interpreted as 
dividing CSRS benefits.
    D. Orders dividing military retired pay, even when military retired 
pay has been waived for inclusion in CSRS annuities, will not be 
interpreted as dividing CSRS benefits. (Such orders cannot be qualifying 
orders under section 838.1004(b), because the amount cannot be computed 
from the face of the order or from normal OPM files.)

               VI. State Law not Specified in Court Orders

    A. 1. Except as provided in Guideline VI.A.2., OPM will not 
research, interpret, or apply State law regarding community or marital 
property rights or divisions.

[[Page 243]]

    2. OPM will not divide disability retirement benefits when such a 
division would be contrary to State law unless the order expressly 
directs division of ``disability'' benefits.
    B. Orders that do not specify the ``community property'' fraction or 
percentage of the former spouse's share will not be considered 
qualifying because the amount of the benefit cannot be computed from the 
face of the order or from normal OPM files (5 CFR 838.1004(b)).

[55 FR 9103, Mar. 12, 1990. Redesignated and amended at 57 FR 33596-
33597, July 29, 1992]



 Sec. Appendix B to Subpart J of Part 838--Guidelines for Interpreting 
 State Court Orders Awarding Survivor Annuity Benefits to Former Spouses

                        United States of America

                     Office of Personnel Management

                     Retirement and Insurance Group

Guidelines for Interpreting State Court Orders Awarding Survivor Annuity 
                       Benefits to Former Spouses

    These guidelines explain the interpretation that the Office of 
Personnel Management (OPM) will place on terms and phrases frequently 
used in awarding survivor benefits. These guidelines are intended not 
only for the use of OPM, but also for the legal community as a whole, 
with the hope that by informing attorneys, in advance, about the manner 
in which OPM will interpret terms written into court orders, the 
resulting orders will be more carefully drafted, using the proper 
language to accomplish the aims of the court.

                     I. Insurable Interest Annuities

    Two types of potential survivor annuities may be provided by 
retiring employees to cover former spouses. Section 8341(h) of title 5, 
United States Code, provides for ``former spouse annuities.'' Section 
8339(k) of title 5, United States Code, provides for ``insurable 
interest annuities.'' These are distinct benefits, each with its own 
advantages.
    A. OPM will enforce State court orders to provide section 8341(h) 
annuities. These annuities are less expensive and have fewer 
restrictions than insurable interest annuities but the former spouse's 
interest will automatically terminate upon remarriage before age 55. To 
provide a section 8341(h) annuity, the order must use terms such as 
``former spouse annuity,'' ``section 8341(h) annuity,'' or ``survivor 
annuity.''
    B. OPM will not enforce State court orders to provide ``insurable 
interest annuities'' under section 8339(k). These annuities may only be 
elected at the time of retirement by a retiring employee who is not 
retiring under the disability provision of the law and who is in good 
health. The retiree may also elect to cancel the insurable interest 
annuity to provide a survivor annuity for a spouse acquired after 
retirement. The parties might seek to provide this type of annuity 
interest if the non-employee spouse expects to remarry before age 55, if 
the employee expects to remarry a younger second spouse before 
retirement, or if another former spouse has already been awarded a 
section 8341(h) annuity. However, the State court will have to provide 
its own remedy if the employee is not eligible for or does not make the 
election. OPM will not enforce the order. Language including the words 
``insurable interest'' or referring to section 8339(k) will be 
interpreted as providing for this type of survivor benefit.
    C. In orders which contain internal contradictions about the type of 
annuity, such as ``insurable interest annuity under section 8341(h),'' 
the section reference will control.

             II. Orders Directed at Other Retirement Systems

    A. Except as provided in paragraphs A1 and A2, orders directed at 
other retirement systems will not be interpreted as affecting Civil 
Service Retirement System (CSRS) benefits.
    1. Orders that mistakenly label CSRS benefits as Federal Employee's 
Retirement System (FERS) benefits, will be interpreted as affecting CSRS 
benefits and vice versa.
    2. Unless the order expressly provides otherwise, for employees 
transferring to FERS, orders directed at CSRS benefits will be 
interpreted as applying to the entire FERS basic benefit, including the 
CSRS component, if any.
    B. Orders directed at other Federal retirement systems such as 
military retired pay, Foreign Service retirement benefits and Central 
Intelligence Agency retirement benefits will not be interpreted as 
awarding a former spouse annuity under CSRS. Thus, orders should contain 
language identifying the retirement system from which survivor benefits 
are being awarded. For example, orders should contain terms such as 
``CSRS,'' ``OPM,'' ``Federal Government employee survivor benefits,'' or 
``survivor benefits payable based on service with the U. S. Department 
of Agriculture,'' etc.
    C. Orders affecting military retired pay, even when military retired 
pay has been waived for inclusion in CSRS annuities, will not be 
interpreted as awarding a former spouse annuity under CSRS.

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       III. Specificity Required To Award a Former Spouse Annuity.

    A. Orders must contain language identifying the benefits affected. 
For example, ``CSRS,'' ``OPM,'' or ``Federal Government'' survivor 
benefits, or ``survivor benefits payable based on service with the U.S. 
Department of Agriculture,'' etc., will be considered sufficient 
identification.
    B. 1. Except as provided paragraphs B2 through B4, orders must 
specify the benefit being awarded. Orders must contain language such as 
``survivor annuity,'' ``death benefits,'' ``former spouse annuity under 
5 U.S.C. 8341(h)(1),'' etc.
    2. Orders that provide that the former spouse is to ``continue as'' 
or ``be named as'' the ``designated beneficiary'' of CSRS benefits will 
be interpreted to award a former spouse annuity.
    3. Orders that provide that the former spouse will ``continue to 
receive benefits after the death of'' the employee or ``that benefits 
will continue after the death of'' the employee, but do not use terms 
such as ``survivor annuity,'' ``death benefits,'' ``former spouse 
annuity,'' or similar terms will not be interpreted to award a former 
spouse annuity.
    4. Orders that give the former spouse the right to elect a former 
spouse annuity will be interpreted to award a former spouse annuity. The 
former spouse does not have an election opportunity. OPM will not accept 
an election by the former spouse to eliminate the court-awarded former 
spouse annuity.
    C. 1. Orders that unequivocally award survivor annuity and direct 
the former spouse to pay for that benefit are qualifying court orders. 
If the former spouse has also been awarded a portion of the retiree's 
benefits then the cost of the survivor benefit will be deducted from the 
former spouse's portion of the annuity (if sufficient to cover the total 
cost--there will be no partial withholding). Otherwise, the reduction 
will be taken from the retiree's annuity and collection from the former 
spouse will be a private matter between the parties.
    2. Orders that condition the award of survivor annuity on the former 
spouse's payment of the cost of the benefit are qualifying only if there 
is also an award of retirement benefits sufficient to cover the cost. 
Absent a sufficient award of employee retirement benefits to pay the 
cost of survivor benefits, the order is not qualifying.
    D. Orders providing that former spouses will keep the survivor 
annuity to which they were entitled at the time of the divorce will be 
interpreted to award a former spouse annuity in the same amount as they 
had at the time of divorce.
    E. Orders that fail to state the amount of the former spouse annuity 
will be interpreted as providing the maximum former spouse annuity.
    F. Orders awarding a former spouse annuity of less than $12 per year 
are qualifying court orders. Such orders will be interpreted to provide 
an initial rate of $1 per month plus all cost-of-living increases 
occurring after the date of the order. The reduction in the retiree's 
annuity will be computed as though the order provided a former spouse 
annuity of $1 per month.
    G. Orders that provide full survivor annuity benefits to a former 
spouse with the contingency that the employee or annuitant may elect a 
lesser benefit for the former spouse upon his or her remarriage will be 
interpreted to provide only a full survivor annuity benefit to the 
former spouse. In order to provide full survivor annuity benefits to a 
former spouse with the contingency that the employee or annuitant may 
provide a lesser survivor annuity benefit to the former spouse in order 
to provide survivor annuity benefits for a subsequent spouse, the order 
should allow a reduction in the former spouse benefit contingent upon 
the employee's or annuitant's election of survivor annuity benefits for 
a subsequent spouse. A reduction in the amount of survivor benefits 
provided to the former spouse will not be permitted if it is contingent 
upon the employee's or annuitant's remarriage rather than his or her 
election of survivor annuity benefits for a subsequent spouse. (See 5 
CFR 838.1004(b).)

[55 FR 9105, Mar. 12, 1990. Redesignated and amended at 57 FR 33596-
33597, July 29, 1992]



     Subpart K_Court Orders Under the Child Abuse Accountability Act

    Source: 59 FR 66637, Dec. 28, 1994, unless otherwise noted.

                          Regulatory Structure



Sec. 838.1101  Purpose and scope.

    (a) This subpart regulates the procedures that the Office of 
Personnel Management will follow upon the receipt of claims arising out 
of child abuse judgment enforcement orders.
    (b) This subpart prescribes--
    (1) The circumstances that must occur before employee annuities or 
refunds of employee contributions are available to satisfy a child abuse 
judgment enforcement order; and
    (2) The procedures that a child abuse creditor must follow when 
applying for

[[Page 245]]

a portion of an employee annuity or refund of employee contributions 
based on a child abuse judgment enforcement order.

                          Availability of Funds



Sec. 838.1111  Amounts subject to child abuse judgment enforcement orders.

    (a)(1) Employee annuities and refunds of employee contributions are 
subject to child abuse enforcement orders only if all of the conditions 
necessary for payment of the employee annuity or refund of employee 
contributions to the former employee have been met, including, but not 
limited to--
    (i) Separation from the Federal service;
    (ii) Application for payment of the employee annuity or refund of 
employee contributions by the former employee; and
    (iii) Immediate entitlement to an employee annuity or refund of 
employee contributions.
    (2) Money held by an employing agency or OPM that may be payable at 
some future date is not available for payment under child abuse judgment 
enforcement orders.
    (3) OPM cannot pay a child abuse creditor a portion of an employee 
annuity before the employee annuity begins to accrue.
    (b) Waivers of employee annuity payments under the terms of section 
8345(d) or section 8465(a) of title 5, United States Code, exclude the 
waived portion of the annuity from availability for payment under a 
child abuse judgment enforcement order if such waivers are postmarked or 
received before the date that OPM receives the child abuse judgment 
enforcement order.

   Application, Processing, and Payment Procedures and Documentation 
                              Requirements



Sec. 838.1121  Procedures and requirements.

    (a) Except as otherwise expressly provided in this part, the 
procedures and requirements applicable to legal process under part 581 
of this chapter apply to OPM's administration of child abuse judgment 
enforcement orders.
    (b)(1) OPM will accept for processing any legal process under part 
581 of this chapter that appears valid on its face.
    (2)(i) After OPM has determined that a child abuse judgment 
enforcement order is valid on its face, OPM will not entertain any 
complaint concerning the validity of the order. Such complaints must be 
presented to authorities having jurisdiction to review the validity of 
the legal process.
    (ii) OPM will not delay compliance with a child abuse judgment 
enforcement order based on any complaint concerning the validity of the 
order unless instructed to do so by an appropriate authority under the 
law of the jurisdiction issuing the legal process, the office of the 
United States Attorney for the jurisdiction issuing the legal process, 
or the U.S. Department of Justice.
    (c)(1) The address for service of a child abuse judgment enforcement 
order is provided in appendix A to subpart A of this part.
    (2)(i) OPM considers service of legal process by mailing or delivery 
of the child abuse judgment enforcement order to the designated address 
appropriate service notwithstanding more formal requirements imposed on 
creditors under State law.
    (ii) OPM will execute forms required under a State procedure to 
waive any right to more formal procedures for service of legal process 
than specified in paragraph (c)(2)(i) of this section.



PART 839_CORRECTION OF RETIREMENT COVERAGE ERRORS UNDER THE 
FEDERAL ERRONEOUS RETIREMENT COVERAGE CORRECTIONS ACT--Table

of Contents



                      Subpart A_General Provisions

Sec.
839.101 What is the Federal Erroneous Retirement Coverage Corrections 
          Act?
839.102 Definitions.

                          Subpart B_Eligibility

                           General Provisions

839.201 Do these rules apply to me?

                          Election Opportunity

839.211 If these rules apply to me because I had a qualifying retirement 
          coverage

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          error, can I choose which retirement plan I want to be in?
839.212 May I make a retirement coverage election if I received a refund 
          of my retirement deductions after I was corrected to FERS?
839.213 May I make a retirement coverage election if I withdrew all or 
          part of my TSP account after I was corrected to FERS?
839.214 Am I disqualified from making an election of retirement coverage 
          under the FERCCA if I withdrew my TSP account after I retired 
          under FERS?
839.215 May I make a retirement coverage election under the FERCCA if I 
          received a payment as settlement of my claim for losses 
          because of a qualifying retirement coverage error?

                      Previous Election Opportunity

839.221 If my qualifying retirement coverage error was that I was put 
          into FERS by mistake and then, after the error was discovered, 
          I chose my current retirement coverage, can I now make another 
          election?

                Court-Ordered Benefits for Former Spouses

839.231 Can I make an election if my former spouse is entitled to a 
          portion of my retirement benefits by qualifying court order?
839.232 If a deceased employee's survivors include both a current spouse 
          and a former spouse, or spouses who are eligible for survivor 
          annuities, must all of them consent to an election of FERS?

                                Elections

839.241 Am I eligible to make an election under the FERCCA if I had a 
          qualifying retirement coverage error and none of the 
          conditions mentioned in 839.212 through 839.232 apply to me?
839.242 Do these rules apply to me if I had multiple errors?

          Subpart C_Employer Responsibility to Notify Employees

839.301 What should I do if I am not sure whether I am or was in the 
          wrong retirement plan?
839.302 Will my employer give me a written explanation?
839.303 Is my employer required to find employees with a retirement 
          coverage error?
839.304 What if my employer does not notify me?

    Subpart D_Retirement Coverage Elections for Errors That Were Not 
                          Previously Corrected

                      Erroneous CSRS or CSRS Offset

839.401 What can I elect if I was put in CSRS or CSRS Offset by mistake?

                             Erroneous FERS

839.411 What can I elect if I was put in FERS by mistake?

Subpart E_Retirement Coverage Elections for Errors That Were Previously 
                                Corrected

                    Moved Out of CSRS or CSRS Offset

839.501 What can I elect if my employer moved me out of CSRS or CSRS 
          Offset?

                            Moved Out of FERS

839.511 What can I elect under the FERCCA if my employer put me into 
          FERS by mistake and then I was not allowed to remain in FERS 
          when the error was discovered?

                      Subpart F_Making an Election

                           General Provisions

839.601 How do I make an election?
839.602 What if I don't make an election?
839.603 Can I later change my election?
839.604 When is my election effective?

                               Time Limits

839.611 What are the time limits for making an election?
839.612 Can I make a belated election?

                             FERS Elections

839.621 Can I cancel my FERS election if I was in the wrong retirement 
          plan at the time I elected FERS coverage and I have an 
          election opportunity under the FERCCA?
839.622 Can I cancel my FERS election if my qualifying retirement 
          coverage error was previously corrected and I now have an 
          election opportunity under the FERCCA?
839.623 If I decide to keep the FERS election in effect, may I change 
          the effective date of the FERS election?

             Subpart G_Errors That Don't Permit an Election

839.701 Is it correct that even though I had a qualifying retirement 
          coverage error under the FERCCA, I may not have a choice of 
          retirement coverage?
839.702 How do these rules apply to me if I don't have an election right 
          under the

[[Page 247]]

          FERCCA, but I did have a qualifying retirement coverage error?

       Subpart H_Adjusting Retirement Deductions and Contributions

                     Employee Retirement Deductions

839.801 Do I owe more money if I had a qualifying retirement coverage 
          error and the employee retirement deductions for the new 
          retirement plan are more than what I already paid?
839.802 If I was in CSRS during my qualifying retirement coverage error, 
          paid in more than I would have paid as a CSRS Offset, Social 
          Security-Only, or FERS employee and end up retroactively in 
          one of those retirement plans, will I get a refund of the 
          excess I had withheld from my pay?
839.803 If I am like the person in the previous question, but the amount 
          I paid as deductions under CSRS is more than the amount of 
          combined retirement deductions and Social Security taxes due 
          for my new retirement coverage, will I get a refund of the 
          excess?
839.804 If my qualifying retirement coverage error occurred while I was 
          a reemployed annuitant, and I am later corrected retroactively 
          to a different retirement plan, will I have to pay any 
          additional amount for retirement deductions?

                    Employer Retirement Contributions

839.811 Does my employer owe more money if I had a qualifying retirement 
          coverage error and the employer retirement contributions for 
          my new retirement plan are more than what was already paid?
839.812 Will my employer get a refund if I had a qualifying retirement 
          coverage error and the employer retirement contributions for 
          my new retirement plan are less than what was already paid?

                           Records Correction

839.821 Who is responsible for correcting my records?
839.822 Which employer is responsible for submitting the employee and 
          employer retirement deductions and contributions and 
          correcting my records if I had different employers?

                     Subpart I_Social Security Taxes

839.901 When will my employer begin withholding Social Security taxes if 
          I was erroneously in CSRS during my qualifying retirement 
          coverage error and my corrected coverage will now require me 
          to pay Social Security taxes?
839.902 Will my CSRS retirement deductions be used to pay the Social 
          Security taxes for the period of the qualifying retirement 
          coverage error if I was erroneously placed in CSRS and did not 
          pay Social Security taxes?
839.903 What happens to the Social Security taxes I erroneously paid 
          when my employer corrects my retirement coverage to CSRS?

  Subpart J_Lost Earnings for Certain Make-up Contributions to the TSP

839.1001 Does the FERCCA allow me to increase my TSP account if I was in 
          CSRS during my qualifying retirement coverage error and my 
          correct coverage will be FERS?
839.1002 Will OPM compute the lost earnings if my qualifying retirement 
          coverage error was previously corrected and I made TSP make-up 
          contributions?
839.1003 How will OPM compute the amount of lost earnings?
839.1004 Are lost earnings payable if I separated or if the employee 
          died?

                      Subpart K_Effect of Election

                           General Provisions

839.1101 How are my retirement benefits computed if I elect CSRS or CSRS 
          Offset under this part?
839.1102 How are my retirement benefits computed if I elect FERS under 
          this part?
839.1103 If my qualifying retirement coverage error started when I 
          should have been placed under FERS automatically, but my 
          agency put me in CSRS because I had some past service, will I 
          get a CSRS component in my FERS annuity for the service before 
          the error if I elect FERS?

                         Retirees and Survivors

839.1111 If I elect to change my retirement coverage under the FERCCA, 
          can I change the election I originally made at retirement for 
          survivor benefits?
839.1112 If I elect to change my retirement coverage under the FERCCA, 
          can I retroactively revoke the waiver of military retired pay 
          I made at retirement?
839.1113 If I elect to change my retirement coverage under the FERCCA, 
          can I change my decision about making a deposit or redeposit 
          for civilian or military service?
839.1114 Will OPM actuarially reduce my benefit if I elect to change my 
          retirement coverage under these rules?
839.1115 What is an actuarial reduction?
839.1116 If, because of the change in my retirement coverage, I will owe 
          larger deposits for military and civilian service credit, will 
          I have to pay the additional

[[Page 248]]

          deposit due or will OPM actuarially reduce my annuity?
839.1117 If I elect to change my retirement coverage under the FERCCA, 
          can I get a refund of the service credit deposit I made and 
          receive the actuarial reduction instead?
839.1118 Will my annuity be actuarially reduced because I had Government 
          contributions in my TSP account?
839.1119 How is the actuarial reduction for TSP computed?

                            Survivor Benefits

839.1121 What is the Actuarial Reduction for the Basic Employee Death 
          Benefit (BEDB)?
839.1122 Does receipt of a one-time payment of retirement contributions 
          as a death benefit prevent me from electing CSRS Offset?

                 Subpart L_Discretionary Actions by OPM

839.1201 If I took legal action against my employer because of a 
          qualifying retirement coverage error, can OPM reimburse me for 
          expenses related to my legal actions?
839.1202 Can OPM waive repayment of a monetary award I received as 
          resolution of the harm caused me by a qualifying retirement 
          coverage error?
839.1203 Can OPM compensate me for my losses if I did not take any legal 
          action against my employer, but did incur some expenses 
          because of a qualifying retirement coverage error?
839.1204 On what basis will OPM review claims under this subpart?
839.1205 Does the Director of OPM review the claims?
839.1206 How do I submit a claim under this subpart?

                         Subpart M_Appeal Rights

839.1301 What if my employer determines my error is not subject to these 
          rules?
839.1302 What types of decisions can I appeal?
839.1303 Are there any types of decisions that I cannot appeal?
839.1304 Is there anything else I can do if I am not satisfied with the 
          way my error was corrected?

    Authority: Title II, Pub. L. 106-265, 114 Stat. 770.

    Source: 66 FR 15609, Mar. 19, 2001, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 839.101  What is the Federal Erroneous Retirement Coverage
Corrections Act?

    (a) The Federal Erroneous Retirement Coverage Corrections Act 
(FERCCA) is Title II of Public Law 106-265, enacted September 19, 2000. 
The FERCCA addresses the problems created when employees are in the 
wrong retirement plan for an extended period.
    (b) Generally, you must be in the wrong retirement plan for at least 
3 years of service after December 31, 1986, before the FERCCA applies to 
you. Depending on the type of error, the FERCCA provides:
    (1) A choice between retirement plans,
    (2) New rules for crediting civilian and military service that was 
not subject to retirement deductions,
    (3) Payment of lost earnings on employee make-up contributions to 
the Thrift Savings Plan, and
    (4) Payment of certain out-of-pocket expenses that are a direct 
result of a retirement coverage error.



Sec. 839.102  Definitions.

    Agency means an executive agency as defined in section 105 of title 
5, United States Code; a legislative branch agency; a judicial branch 
agency; and the U.S. Postal Service and Postal Rate Commission.
    Agency automatic (1%) contributions means contributions made to a 
FERS participant's Thrift Savings Plan account by his or her employing 
agency under 5 U.S.C. 8432(c)(1) or (c)(3).
    Agency matching contributions means contributions made to a FERS 
participant's Thrift Savings Plan account by his or her employing agency 
under 5 U.S.C. 8432(c)(2).
    Annuitant means the same as Retiree.
    Basic Employee Death Benefit or BEDB means the FERS survivor benefit 
payable as a lump sum or over 36 months, described in Sec. 843.309 of 
this chapter.
    Board means the Federal Retirement Thrift Investment Board 
established under 5 U.S.C. 8472.
    CSRS means the Civil Service Retirement System, as described in 
subchapter III of chapter 83 of title 5, United States Code.

[[Page 249]]

    CSRS component means the part of a FERS retirement benefit that is 
computed under CSRS provisions (see Sec. 846.304 of this chapter).
    CSRS Offset means the Civil Service Retirement System Offset plan, 
which is for employees whose service is subject to CSRS deductions and 
Social Security taxes, as described in 5 U.S.C. 8349.
    Employee means an employee or Member individual as defined in 
section 8331(1) and (2) or 8401(11) and (20) of title 5, United States 
Code. Employee includes an individual who has applied for retirement 
benefits, but not separated from service.
    Employee retirement deductions means the amount that is deducted 
from basic pay under section 8334(a) of title 5, United States Code, for 
CSRS employees; or section 8334(k) of title 5, United States Code, for 
CSRS Offset employees; or the portion of the normal cost of FERS 
coverage that is deducted from an employee's basic pay under section 
8422(a) of title 5, United States Code.
    Employer means, with respect to an employee, that individual's 
employing agency.
    Employer retirement contributions means the employer share of 
retirement contributions that are required payments to the Fund under 
sections 8334(a) and 8423(a) of title 5, United States Code.
    Former spouse means a living person who was married to you for at 
least 9 months.
    FERCCA means the Federal Erroneous Retirement Coverage Corrections 
Act.
    FERS means the Federal Employees' Retirement System, as described in 
chapter 84 of title 5, United States Code.
    Fund means the Civil Service Retirement and Disability Fund 
described in section 8348 of title 5, United States Code.
    Government contributions means agency automatic (1%) contributions 
and agency matching contributions.
    Lost earnings means earnings that you would have received had your 
make-up contributions to the Thrift Savings Fund been made during the 
period of the error when they should have otherwise been made.
    Make-up contributions means employee contributions to the Thrift 
Savings Plan that should have been deducted from a participant's basic 
pay earlier, but were not due to an employing agency error.
    MSPB means the Merit Systems Protection Board described in chapter 
12 of title 5, United States Code.
    OPM means the Office of Personnel Management.
    Present value factor has the same meaning as in Sec. 831.2202 or 
Sec. 842.702 of this chapter, as applicable.
    Previously corrected means a retirement coverage error that has been 
properly corrected before March 19, 2001.
    Qualifying court order has the same meaning as in Sec. 846.702 of 
this chapter, referring to court orders that affect CSRS or FERS 
payments following a divorce or legal separation.
    Qualifying retirement coverage error means an erroneous decision by 
an employee or agent of the Government as to whether Government service 
is CSRS covered, CSRS Offset covered, FERS covered, or Social Security-
Only covered that remained in effect for at least 3 years of service 
after De