(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

§ 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.

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 re-
tirement 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 eligi-
ble 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 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?

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 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.

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 § 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.

CSRS component means the part of a FERS retirement benefit that is computed under CSRS provisions (see § 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 §831.2202 or §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 §846.702 of this chapter, referring to court orders that affect CSRS or FERS payments following a divorce or legal separation.

error

Qualifying retirement coverage 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 December 31, 1986.

Reemployed annuitant means a CSRS or FERS retiree who is reemployed under conditions that do not terminate the CSRS or FERS annuity. (See part 837 of this chapter for additional information on reemployed annuitants.)

Retiree means a former employee or Member who is receiving, or meets the statutory age and service requirements for, an annuity under either CSRS or FERS. This includes individuals who meet the statutory requirements for benefits and chose to postpone the beginning date of the annuity under § 842.204(c) or §842.212(b)(1)(ii) of this chapter (pertaining to FERS MRA+10 and FERS deferred benefits). Retiree does not include a current spouse, former spouse, child, or person with an insurable interest receiving a survivor annuity. An individual who has left Federal service after completing 5 years of service but has not reached the age at which annuity payments may begin is considered a "separated employee" rather than a retiree.

Retirement coverage means participation in CSRS, CSRS Offset, FERS, or Social Security-Only. Retirement coverage is shown on the Notification of Personnel Action (Standard Form 50)