[Federal Register: August 29, 2005 (Volume 70, Number 166)]
[Rules and Regulations]
[Page 50951-50954]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29au05-1]
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Rules and Regulations
Federal Register
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This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
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[[Page 50951]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 842
RIN 3206-AK84
Retirement Credit for Certain Government Service Performed Abroad
AGENCY: Office of Personnel Management.
ACTION: Interim rule with request for comment.
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SUMMARY: The Office of Personnel Management (OPM) is issuing interim
regulations to implement a section of the Foreign Relations
Authorization Act, Fiscal Year 2003 affecting the Federal Employees
Retirement System. These regulations describe how individuals who
performed certain Government service at a United States diplomatic
mission, consular post, or other Foreign Service post abroad after
December 31, 1988, and before May 24, 1998, can get retirement credit
for that service under the Federal Employees' Retirement System.
DATES: This interim rule is effective August 29, 2005. We must receive
your comments by October 28, 2005.
ADDRESSES: You may submit comments, identified by RIN number 3206-AK84,
by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
E-mail: combox@opm.gov. Include RIN number 3206-AK84 in
the subject line of the message.
Mail: Mary Ellen Wilson, Manager, Retirement Group, Office
of Personnel Management; 1900 E Street, NW., Washington, DC 20415-3200.
FAX: (202) 606-0990.
FOR FURTHER INFORMATION CONTACT: Jim Giuseppe, (202) 606-0299.
SUPPLEMENTARY INFORMATION: Section 321 of Public Law 107-228, 116 Stat.
1380, the Foreign Relations Authorization Act, Fiscal Year 2003, allows
retirement credit under the Federal Employees' Retirement System (FERS)
for certain Government service performed abroad under a temporary
appointment. Service performed after December 31, 1988, and before May
24, 1998, under a temporary appointment pursuant to sections 309 and
311 of the Foreign Service Act of 1980, may now be creditable under
FERS provided all of the following conditions set out in section 321
are satisfied.
The service must have been performed at a United States
diplomatic mission, consular post (other than a consular agency), or
other Foreign Service post abroad.
The individual who performed the service must have
satisfied all eligibility requirements under regulations of the
Department of State (as in effect on September 30, 2002) for a family
member limited non-career appointment at the time the service was
performed. Individuals not employed by the Department of State while
performing such service shall be treated as if they were so employed
for the purposes of this requirement.
The service would have been creditable under FERS had it
been performed before 1989 and had the appropriate service credit
deposit been paid.
The service cannot otherwise be creditable under FERS or
any other retirement system for employees of the United States
Government (disregarding title II of the Social Security Act).
The service must have totaled 90 days or more.
The individual who performed the service must file an
application to pay a deposit for the service no later than 36 months
after the effective date of these regulations, and pay the deposit. The
deposit equals the amount of FERS employee deductions that would have
been withheld from the individual's basic pay had the service been
subject to FERS deductions, plus interest. If the individual who
performed the service is deceased, any person who is or would be
eligible for a survivor annuity under FERS based on the service of the
individual can apply for the service credit and pay this deposit.
The department or agency where the individual performed
the service must pay a deposit for the service. The deposit the
department or agency owes equals the FERS Government contributions that
would have been due had the service been subject to FERS, plus
interest.
These provisions allowing FERS service credit for certain
Government service performed abroad differ from other FERS provisions
that allow service credit for service not subject to FERS retirement
deductions in three important respects. First, they specify a specific
location where the service must have been performed--at a United States
diplomatic mission, consular post, or other Foreign Service post abroad
as defined under the Foreign Service Act of 1980. Second, they require
the application of Department of State regulations in determining if
the service is creditable. And third, they require that Government
contributions accompany the deposit that individuals have to pay for
the service. The department or agency where the individual performed
the service must pay those Government contributions. While individuals
may have performed this service at any number of departments or
agencies, including the Departments of Defense, Commerce, and
Agriculture, and the United States Agency for International
Development, we believe that most of the individuals affected by this
legislation worked for the Department of State.
Because of these unique service credit provisions, we have
established a process for obtaining service credit for certain
Government service performed abroad that differs from the normal
process used for establishing service credit for other types of
civilian service. Where normally the Office of Personnel Management
(OPM) determines whether service is creditable for FERS retirement
purpose, these regulations recognize that the Department of State is in
a better position than OPM to interpret the Foreign Service Act and the
Department of State's own regulations to determine if the service is
creditable. And where normally the individual applying for service
credit for civilian service applies to OPM and pays a deposit to OPM,
these regulations require that the individual apply for service credit
to the department or agency where the individual performed the service
(the Department of State in most cases) and pay the deposit to that
[[Page 50952]]
department or agency. The department or agency must then submit the
individual's deposit to OPM, along with the Government contributions,
so that OPM receives the full payment for the service at the same time.
When the Department of State or other appropriate department or
agency responsible for processing the application for service credit
under these regulations (hereinafter the employing entity) receives an
application from an individual for certain Government service performed
abroad, it must determine if the service qualifies for service credit
under Section 321 of Public Law 107-228. (If the employing entity is
not the Department of State, it may need to consult with the Department
of State if there are any questions about whether or not the service is
creditable.) The employing entity must then compute the amount of the
deposit the individual owes for the service and notify the individual
of the amount due. It must also compute the amount of the Government
contributions it owes for the service; collect the deposit from the
individual; and immediately forward both the individual's deposit and
the Government contributions to OPM in a manner prescribed by OPM. If
the employing entity finds that the service is not creditable under
Section 321 of Public Law 107-228, it must provide the individual with
a written decision explaining the reason why the service is not
creditable and explaining the individual's rights to appeal the
decision to the Merit Systems Protection Board (MSPB).
When the employing entity is not the Department of State, the
Department of State must provide whatever assistance is necessary to
help the employing entity determine if the service performed abroad is
creditable under Section 321 of Public Law 107-228. If the employing
entity no longer exists, the Department of State must assume most of
the employing entity's duties related to these regulations. The only
exception is that the Department of State, when performing these duties
for an employing entity that is no longer in existence, does not have
to forward the actual Government contributions to OPM. If the
Department of State finds that the service is not creditable, it must
provide the individual with a written notice that explains the reason
why the service is not creditable and explains the individual's rights
to appeal to the MSPB.
Individuals eligible to make the deposit must pay the deposit to
the appropriate employing entity in one lump sum within 180 days of
being notified of the amount of the deposit. The employing entity must
then forward the individual's deposit along with the Government deposit
and all relevant information relating to the period of service to OPM
in a manner prescribed by OPM. If the individual making the deposit is
currently receiving a retirement or survivor annuity, OPM will
recompute the annuity to include credit for the service and pay the
additional annuity resulting from the service credit retroactive to the
date the annuity began. If the individual making the deposit is not
currently receiving a retirement or survivor annuity, OPM will evaluate
whether or not the individual qualifies to begin receiving an annuity
with the additional service credit. If an individual becomes eligible
to receive an annuity with the additional service credit, OPM will send
the individual the appropriate application for benefits. After the
individual returns the application, OPM will begin to pay the annuity
as of the earliest date that the annuity could commence, subject to the
commencing date provisions in chapter 84 of title 5 United States Code.
Therefore, OPM is amending 5 CFR part 842, subpart C, the subpart
concerning credit for service. Specifically, subpart C is amended at 5
CFR 842.304 and 842.305.
In Sec. 842.304, paragraph (e) is added outlining the conditions
for crediting certain Government service performed abroad.
In Sec. 842.305, paragraph (j) is added outlining how the
individual and employer deposits for the service should be processed.
Waiver of Notice of Proposed Rulemaking
Under section 553(b)(3)(B) and (d)(3) of title 5, United States
Code, I find that good cause exists for waiving the general notice of
proposed rulemaking and to make these rules effective in less than 30
days. The processing of deposits for certain Government service
performed abroad under these regulations will affect only a relatively
limited number of qualifying individuals' retirement eligibility or
eligibility for survivor benefits, and the amounts of their retirement
or survivor benefits. We recognize that notice and comment may be
waived when the agency for good cause finds that notice and public
procedure are impracticable, unnecessary, or contrary to the public
interest. Publication of a general notice of proposed rulemaking in
this situation would be contrary to the public interest because it
would unnecessarily and unreasonably delay the availability of the
potential benefits of Public Law 107-228, and because no individual or
group will suffer any detriment, financial or otherwise, because of the
application of this regulation without notice and comment. The
application of these regulations benefits a specific group of
individuals by revising an existing regulatory provision that is
contrary to the benefit enacted by the Congress. The application of
this regulation before public comment is consistent with the limited
interest in this matter by the general public and in which the interest
of the affected public, those seeking FERS retirement credit for
certain Government service earned while working abroad, would be set
back by any unnecessary requirement of advance notice.
Regulatory Flexibility Act
I certify that this regulation will not have a significant economic
impact on a substantial number of small entities because it affects
only certain Federal employees.
Executive Order 12866, Regulatory Review
This rule has been reviewed by the Office of Management and Budget
in accordance with Executive Order 12866.
Lists of Subjects in 5 CFR Part 842
Air traffic controllers, Alimony, Firefighters, Government
employees, Law enforcement officers, Pensions, Retirement.
U.S. Office of Personnel Management.
Linda M. Springer,
Director.
0
For the reasons stated in the preamble, the Office of Personnel
Management amends 5 CFR part 842 as follows:
PART 842--FEDERAL EMPLOYEES RETIREMENT SYSTEM--BASIC ANNUITY
0
1. The authority citation for part 842 is revised to read as follows:
Authority: 5 U.S.C. 8461(g); Secs. 842.104 and 842.106 also
issued under 5 U.S.C. 8461(n); Sec. 842.104 also issued under
sections 3 and 7(c) of Pub. L. 105-274, 112 Stat. 2419; Sec. 842.105
also issued under 5 U.S.C. 8402(c)(1) and 7701(b)(2); Sec. 842.106
also issued under section 102(e) of Pub. L. 104-8, 109 Stat. 102, as
amended by section 153 of Pub. L. 104-134, 110 Stat. 1321-102; Sec.
842.107 also issued under sections 11202(f), 11232(e), and 11246(b)
of Pub. L. 105-33, 111 Stat. 251, and section 7(b) of Pub. L. 105-
274, 112 Stat. 2419; Sec. 842.108 also issued under section 7(e) of
Pub. L. 105-274, 112 Stat. 2419; Sec. 842.213 also issued under 5
U.S.C. 8414(b)(1)(B) and section 1313(b)(5) of Pub. L. 107-296, 116
Stat. 2135; Secs. 842.304 and 842.305 also
[[Page 50953]]
issued under section 321(f) of Pub. L. 107-228, 116 Stat. 1383,
Secs. 842.604 and 842.611 also issued under 5 U.S.C. 8417; Sec.
842.607 also issued under 5 U.S.C. 8416 and 8417; Sec. 842.614 also
issued under 5 U.S.C. 8419; Sec. 842.615 also issued under 5 U.S.C.
8418; Sec. 842.703 also issued under section 7001(a)(4) of Pub. L.
101-508, 104 Stat. 1388; Sec. 842.707 also issued under section 6001
of Pub. L. 100-203, 101 Stat. 1300; Sec. 842.708 also issued under
section 4005 of Pub. L. 101-239, 103 Stat. 2106 and section 7001 of
Pub. L. 101-508, 104 Stat. 1388; subpart H also issued under 5
U.S.C. 1104; Sec. 842.810 also issued under section 636 of Appendix
C to Pub. L. 106-554 at 114 Stat. 2763A-164; Sec. 842.811 also
issued under section 226(c)(2) of Public Law 108-176, 117 Stat.
2529.
Subpart C--Credit for Service
0
2. In Sec. 842.304, add paragraph (e) to read as follows:
Sec. 842.304 Civilian service.
* * * * *
(e) Certain Government service performed abroad after December 31,
1988, and before May 24, 1998. (1) Definition. In this section, certain
Government service performed abroad is service performed at a United
States diplomatic mission, consular post (other than a consular
agency), or other Foreign Service post abroad under a temporary
appointment pursuant to sections 309 and 311 of the Foreign Service Act
of 1980 (22 U.S.C. 3949 and 3951).
(2) Conditions for Creditability. Service credit is allowed under
section 321 of Pub. L. 107-228 for certain Government service performed
abroad after December 31, 1988, and before May 24, 1998, provided--
(i) The service in the aggregate totaled 90 days or more;
(ii) The individual performing the service would have satisfied all
eligibility requirements under regulations of the Department of State
(as in effect on September 30, 2002) for a family member limited
noncareer appointment (within the meaning of such regulations, as in
effect on September 30, 2002) at the time the service was performed,
except that, in applying this paragraph, an individual not employed by
the Department of State while performing the service shall be treated
as if then so employed;
(iii) The service would have been creditable under FERS had it been
performed before 1989 and had the deposit requirements of Sec. 842.305
been met;
(iv) The service is not otherwise creditable under FERS or any
other retirement system for employees of the U.S. Government
(disregarding title II of the Social Security Act);
(v) The individual applying for the service credit submits a
written application to make a deposit with the department or agency
where the service was performed, and completes the deposit, in
accordance with Sec. 842.305(j); and
(vi) The department or agency where the service was performed
remits Government contributions for the service to OPM in accordance
with Sec. 842.305(j).
(3) Departments or agencies no longer in existence. If the
department or agency where the individual performed certain Government
service abroad no longer exists, the Department of State must process
applications for service credit under this section. Government
contributions for the service will not need to be remitted to OPM.
0
3. In Sec. 842.305, add paragraph (j) to read as follows:
Sec. 842.305 Deposits for civilian service.
* * * * *
(j) Certain Government service performed abroad after December 31,
1988, and before May 24, 1998.
(1) Eligibility-current and former employees, and retirees. A
current or former employee, or a retiree who performed certain
Government service abroad described in Sec. 842.304(e) may make a
deposit for such service, in a form prescribed by OPM.
(2) Eligibility-survivors. A survivor of a current employee, former
employee, or a retiree eligible to make a deposit under paragraph
(j)(1) of this section may make a deposit under this section if the
current or former employee, or retiree is deceased and the survivor is
eligible or would be eligible for a survivor annuity under FERS based
on the service of the current or former employee, or retiree.
(3) Filing of deposit application. An individual eligible to make a
deposit under paragraphs (j)(1) and (2) of this section for service
described in Sec. 842.304(e) must submit a written application to make
a deposit for such service with the appropriate office in the
department or agency where such service was performed. If the
department or agency where the service was performed no longer exists,
the individual must submit the written application to the appropriate
office in the Department of State.
(4) Time limit for filing application. An application to make a
deposit under this section must be submitted on or before August 29,
2008.
(5) Amount of deposit. (i) A deposit under this section must be
computed using distinct periods of service. For the purpose of this
section, a distinct period of service means a period of service not
interrupted by a break in service of more than 3 days. A deposit may be
made for any or all distinct periods of service.
(ii) The amount of deposit under this section equals the amount of
deductions from basic pay that would have been required under section
8422 of title 5, United States Code, if at the time the service was
performed the service had been subject to FERS deductions under that
section, plus interest.
(6) Forms of deposit. A deposit under this section must be made as
a single lump sum within 180 days of being notified of the deposit
amount.
(7) Processing deposit applications and payments. (i) The
department or agency where the service described in Sec. 842.304(e)
was performed must process the deposit applications and payments under
this section. If the department or agency where the service was
performed no longer exists, the Department of State must process the
deposit applications and payments under this section.
(ii) Whenever requested, the Department of State must assist the
department or agency responsible for processing deposit applications
under this section determine whether the application meets the
requirements of Sec. 842.304(e ).
(iii) Upon receiving a deposit application under this section, the
department or agency must determine whether the application meets the
requirements of Sec. 842.304(e); compute the deposit, including
interest; and advise the applicant of the total amount of deposit due.
(iv) The department or agency must establish a deposit account
showing the total amount due.
(v) When it receives an individual's payment for the service, the
department or agency must remit the payment to OPM immediately for
deposit to the Civil Service Retirement and Disability Fund in
accordance with instructions issued by OPM.
(vi) Once a deposit has been paid in full or otherwise closed out,
the department or agency must submit the documentation pertaining to
the deposit to OPM in accordance with instructions issued by OPM.
(8) Government contributions. (i) The department or agency where
service described in Sec. 842.304(e) was performed must pay Government
contributions for each period of service covered by a deposit under
this section.
(ii) The amount of contributions under this section equals the
amount of Government contributions which would have been required for
the service under section 8423 of title 5, United States
[[Page 50954]]
Code, if the service had been covered under chapter 84 of title 5,
United States Code, plus interest.
(iii) The department or agency must remit the amount of Government
contributions under this section to OPM at the same time it remits the
employee deposit for this service to OPM in accordance with
instructions issued by OPM.
(9) Interest. Interest must be computed as described under
paragraphs (2) and (3) of 5 U.S.C. 8334(e). Interest must be computed
for each distinct period of service from the midpoint of each distinct
period of service. The interest accrues annually on the outstanding
deposit and is compounded annually, until the deposit is paid.
(10) Effect of deposit. An individual completing a deposit under
this section will receive retirement credit for the service covered by
the deposit when OPM receives certification that the deposit has been
paid in full, and the deposit payment and agency contributions are
remitted to the Civil Service Retirement and Disability Fund.
(11) Appeal rights. When the department or agency processing an
application for deposit under this section determines that the
individual is not eligible to make a deposit for a period of service,
it must provide the individual with a written decision explaining the
reason for the decision and explaining the individual's right to appeal
the decision to the Merit Systems Protection Board.
[FR Doc. 05-17053 Filed 8-26-05; 8:45 am]
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