Federal Register: February 23, 2001 (Volume 66, Number 37)

[Federal Register: March 19, 2001 (Volume 66, Number 53)]
[Rules and Regulations]
[Page 15605-15618]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19mr01-17]

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Part VI

Office of Personnel Management

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5 CFR Parts 831, 839, 841, and 846

Corrections of Retirement Coverage Errors Under the Federal Erroneous
Retirement Coverage Corrections Act; Interim Rule

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OFFICE OF PERSONNEL MANAGEMENT

5 CFR PARTS 831, 839, 841, and 846

RIN 3206-AJ38

Corrections of Retirement Coverage Errors Under the Federal
Erroneous Retirement Coverage Corrections Act

AGENCY: Office of Personnel Management.

ACTION: Interim rule with request for comments.

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SUMMARY: The Office of Personnel Management is amending its regulations
to include new rules for correcting certain retirement coverage errors.
We are amending the regulations to implement the provisions of the
Federal Erroneous Retirement Coverage Corrections Act (the FERCCA),
title II of Public Law 106-265. The regulations will allow agencies and
OPM to correct affected retirement coverage errors.

DATES: This interim rule is effective March 19, 2001. We must receive
your comments by April 18, 2001.

ADDRESSES: Send comments on this interim rule to Mary Ellen Wilson,
Director, Retirement Policy Center, Office of Personnel Management,
Washington, DC 20415-3200. You may also submit comments by sending
electronic mail (E-mail) to: commbox@opm.gov.

FOR FURTHER INFORMATION CONTACT: Cynthia Reinhold, 202-606-0299.

SUPPLEMENTARY INFORMATION:

Introduction

The Office of Personnel Management (OPM) is amending parts 831,
841, and 846 of title 5, Code of Federal Regulations, and adding a new
part 839, to implement the Federal Erroneous Retirement Coverage
Corrections Act (FERCCA), title II of Public Law 106-265, which was
enacted on September 19, 2000. The law provides a set of remedies to
correct substantive retirement coverage errors. The law requires OPM to
issue implementing regulations.

Background

Participation in the Civil Service Retirement System (CSRS), the
Civil Service Retirement System Offset (CSRS Offset) plan, the Federal
Employees' Retirement System (FERS), and the Thrift Savings Plan (TSP)
is governed by title 5 of the United States Code. Social Security
coverage for benefit purposes is governed by section 210 of the Social
Security Act. Sections 3101(a) and 3111(a) of the Internal Revenue Code
of 1986 govern the collection and payment of Social Security taxes.
Coverage under these Federal retirement plans and Social Security is
mandatory for employees who meet the statutory requirements. Prior to
passage of this legislation, neither OPM, the Treasury Department, nor
the Federal Retirement Thrift Investment Board had the statutory
authority to waive the rules for retirement plan or Social Security
participation. When errors in retirement coverage occurred, correction
was mandatory. The employee was ``forced,'' retroactively, into a
different retirement plan. The mandatory retroactive correction of a
retirement coverage error can place an employee in a difficult
financial situation with regard to retirement planning.
Retirement coverage errors that prevent an employee from saving for
retirement are usually the most damaging because it is extremely
difficult to make up the lost opportunity to save. These are primarily
errors that cause an employee to believe that he or she is covered by
CSRS rather than FERS. The FERS basic benefit is a little over half
that of the CSRS benefit. To obtain retirement income under FERS that
is similar to CSRS, the employee needs to save for retirement in the
TSP or elsewhere. Because of the error, the employee may not have
contributed to the TSP, believing that CSRS benefits were enough to
meet retirement needs. If the error is undiscovered for a long period,
the employee is forced to begin saving during the years after the error
is corrected. In the absence of the error, the employee could have
saved for retirement over his or her entire career.

The FERCCA's Provisions

The retirement coverage error must have lasted for at least 3 years
of service after December 1986. January 1, 1987, is the date that FERS
took effect. From 1984 through 1986, there was no TSP. Accordingly,
employees did not become disadvantaged with respect to the TSP until
FERS began. The 3-year yardstick parallels the TSP's 3-year vesting
rule applicable to most FERS participants.
The FERCCA provides a choice between retirement plans in many
situations. Most individuals with a qualifying retirement coverage
error have the opportunity to choose their retirement coverage under
the FERCCA. The availability of a choice between retirement plans
applies to individuals:
With newly discovered retirement coverage errors,
With an error that was discovered and corrected in the
past,
Who have retired from Federal service, or
Who are survivors of an individual with a retirement
coverage error.
For an individual who is erroneously put in CSRS and belonged in
FERS, the choice is between CSRS Offset or FERS. CSRS Offset coverage
is for an employee mandatorily covered by Social Security and CSRS, and
provides, through combined CSRS and Social Security benefits, a benefit
that is at least equivalent to, if not more than, CSRS. While working,
the individual earns retirement credits under the CSRS formula and also
adds to any Social Security benefits already earned, increasing career
earnings under Social Security and, as a result, the Social Security
benefit. At retirement, OPM computes the CSRS Offset benefit under the
same rules that apply to other CSRS retirees. At age 62 (when the
individual becomes eligible for Social Security benefits), OPM reduces,
or offsets, the CSRS retirement benefit. This reduction is based on the
value of the Social Security benefit earned during CSRS Offset service.
For a person erroneously put in CSRS, CSRS Offset provides the benefit
the person could reasonably have expected to receive without requiring
a change in retirement saving behavior.
The FERCCA disqualifies certain separated employees from making a
choice between retirement plans. Separated employees whose retirement
coverage error was previously discovered and corrected to FERS and
later took a refund of FERS deductions or a distribution from the TSP,
are not eligible to elect between FERS and CSRS Offset. Their coverage
will remain FERS for the period of service affected by the retirement
coverage error.
Some individuals do not have a choice about their retirement
coverage. If an individual should have had Social Security coverage
during Federal employment, then he or she must have Social Security
coverage in addition to Federal retirement coverage. In these cases,
the FERCCA does not provide a choice about Social Security coverage. If
an individual was incorrectly placed in CSRS rather than CSRS Offset,
then the retirement coverage must be corrected to CSRS Offset.
Likewise, if an individual was incorrectly placed in CSRS Offset
instead of CSRS, then the retirement coverage must be corrected to
CSRS. Although the individual cannot choose to keep Social Security
coverage, the Social Security Administration will allow credit for all
but the last 3 years before the retirement coverage was corrected.
In addition, an employee who was erroneously excluded from
retirement coverage under CSRS, CSRS Offset, or

[[Page 15607]]

FERS does not have an option under the FERCCA to remain excluded from
retirement coverage.
Errors where the employee is erroneously placed in FERS. In 1993,
OPM published interim rules at 5 CFR 846.204(b)(2), for deemed
elections of FERS coverage. These rules permit an employee erroneously
in FERS during a time when the employee should have had an opportunity
to elect FERS, the option of keeping the erroneous FERS coverage. The
FERCCA does not affect these regulations. Those who had the opportunity
to elect coverage under OPM's existing regulations at
Sec. 846.204(b)(2) may not have another election opportunity based on
the same retirement coverage error. In addition, OPM's regulation
provides a choice between retirement plans regardless of the length of
the error. The FERCCA also allows a choice in this situation regardless
of the length of the error. However, the new provisions in subparts H
and L of the new part 839 apply only if the error lasted for at least 3
years of service after December 31, 1986.
Lost earnings on employee make-up contributions to the TSP. The
FERCCA provides lost earnings on make-up employee TSP contributions
under certain circumstances. Employees who choose to make-up missed
contributions to the TSP continue to be entitled to lost earnings on
the make-up agency contributions they receive as a result of an agency
error.
Financial relief from costs associated with correcting a retirement
coverage error. Under the FERCCA, individuals newly discovered to be in
the wrong retirement plan are not responsible for paying any additional
employee retirement deductions needed to correct a retirement coverage
error. The FERCCA requires that any amount that should have been
withheld as Social Security tax but was erroneously withheld as CSRS
deductions must be treated as withheld Social Security tax. All the
amounts required as Social Security tax, but wrongly treated as CSRS
deductions during the error, are kept by the Government to the credit
of Social Security.
The Internal Revenue Code's 3-year statute of limitations on
retroactive taxes applies to Social Security tax amounts that were not
withheld during the period of the error. This means that, for an
employee erroneously in CSRS, any Social Security taxes that should
have been withheld from pay that was subject to Social Security taxes
but not CSRS deductions (such as overtime or awards), must be collected
from the employee, but not for periods beyond the 3-year statute.
However, OPM has the authority under the FERCCA to reimburse an
employee for payments of Social Security taxes that were not withheld
because of a retirement coverage error.
Reimbursement for certain expenses related to the error. The FERCCA
allows OPM to reimburse certain expenses related to a retirement
coverage error. Claimed losses related to forgone contributions and
earnings in the TSP (except for lost earnings on employee make-up
contributions to the TSP payable under subpart J of the new part 839)
or other investment opportunities are not reimbursable under the
FERCCA. The payments, if approved, are made from the Civil Service
Retirement and Disability Fund.
In addition, OPM may waive repayment of settlements employees
received after suing for damages from a coverage error. If an employee
has settled a dispute over having been forced retroactively into FERS,
the employee generally should not keep the amount received and regain
CSRS Offset benefits under the FERCCA. However, if the employee can
show that getting CSRS Offset coverage does not fully compensate him or
her, the FERCCA authorizes OPM to allow the CSRS Offset election with
partial or no repayment of the settlement.
Credit for service that was not subject to retirement deductions.
Individuals may have civilian service that was not subject to
retirement deductions (nondeduction service), and perhaps military
service, performed before the error in retirement coverage. The amount
of the deposit for nondeduction and military service depends on the
individual's retirement coverage. Under FERS deposit rules, the deposit
is 1.3 percent of basic pay for civilian service or 3 percent for
military service, plus interest. Under CSRS rules, the deposit for both
civilian and military service is 7 percent of basic pay, plus interest.
Therefore, a retirement coverage error can cause a significant increase
in the deposit an individual expected to pay for nondeduction and
military service.
If a retirement coverage error led to a deposit being erroneously
computed under FERS rules, when it should have been computed under CSRS
rules, the FERCCA allows credit for the service without actual payment
of the deposit. The balance of the deposit owed at retirement forms the
basis for an actuarial reduction in the retirement or survivor benefit.
The deposit is considered paid by a life-time reduction in the benefit.
This provision applies to all deposits that are computed under CSRS
rules rather than FERS rules because of a retirement coverage error,
regardless of the length of the error.

Analysis

Section 831.205 requires that any future placement in CSRS will
have to be approved by OPM in situations where a CSRS employee has had
a break in CSRS service of more than 1 year.
Sections 831.301 and 831.303 provide a new method for payment of
certain deposits for civilian and military service. The FERCCA permits
credit for certain types of service that are not subject to retirement
deductions without actual payment of a service credit deposit. The
deposit requirement may be satisfied instead by an actuarial reduction
in the annuity that continues for the life of the retiree or survivor.
This alternative is also available to individuals whose errors lasted
for less than 3 years of service. It applies to individuals who owed a
FERS deposit, and because of a retirement coverage error, learn that
the deposit must be computed under CSRS rather than FERS rules.
A new part 839 is established in question-and-answer format.
Section 841.604 is amended to allow OPM to pay interest to
individuals who overpaid the amount of a service credit deposit because
of a retirement coverage error. Interest is payable only if the error
lasted for at least 3 years of service after December 31,1986.
Section 846.204(b)(2) is amended to clarify that this section
(concerning deemed elections of FERS coverage) applies only to errors
lasting for less than 3 years of service. If the error lasted for at
least 3 years of service, then it is corrected in accordance with the
newly established part 839.

Waiver of General 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 for making these rules effective in less than
30 days. These regulations will affect the operation of all Federal
agencies on and after March 19, 2001. Publication of a general notice
of proposed rulemaking would be contrary to the public interest because
it would delay the intended relief provided to individuals harmed by a
retirement coverage error.

Regulatory Flexibility Act

I certify that this rule will not have a significant economic
impact on a substantial number of small entities because the rule only
affects Federal employees, agencies, and benefits

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payments to retired Federal employees and their survivors.

Executive Order 12866, Regulatory Review

This rule has been reviewed by the Office of Management and Budget
in accordance with Executive Order 12866.

List of Subjects

5 CFR Part 831

Administrative practice and procedure, Alimony, Claims, Disability
benefits, Firefighters, Government employees, Income taxes,
Intergovernmental relations, Law enforcement officers, Pensions,
Reporting and recordkeeping requirements, Retirement.

5 CFR Part 839

Administrative practice and procedure, Annuities, Claims,
Employment, Employment taxes, Government employees, Pensions, Reporting
and recordkeeping requirements, Retirement, Social Security.

5 CFR Part 841

Administrative practice and procedure, Air traffic controllers,
Claims, Disability benefits, Firefighters, Government employees, Income
taxes, Intergovernmental relations, Law enforcement officers, Pensions,
Retirement.

5 CFR Part 846

Administrative practice and procedure, Air traffic controllers,
Firefighters, Government employees, Law enforcement officers, Pensions,
Retirement.

Office of Personnel Management.
Steven R. Cohen,
Acting Director.

For the reasons stated in the preamble, the Office of Personnel
Management amends 5 CFR parts 831, 841, and 846 and adds part 839, as
follows:

PART 831--RETIREMENT

1. The authority citation for part 831 is revised to read as
follows:

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 section 7001 of Pub. L. 105-
174, 112 Stat. 58; 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 sections 11202(f), 11232(e), and
11246(b) of Pub. L. 105-33, 111 Stat. 251; Sec. 831.201(g) also
issued under sections 7(b) and 7(e) of Pub. L. 105-274, 112 Stat.
2419; Sec. 831.201(i) also issued under sections 3 and 7(c) of Pub.
L. 105-274, 112 Stat. 2419; Sec. 831.204 also issued under section
102(e) of Pub. L. 104-8, 109 Stat. 102, as amended by section 153 of
Pub. L. 104-134, 110 Stat. 1321; Sec. 831.205 also issued under
section 2207 of Pub. L. 106-265, 114 Stat. 784; Sec. 831.301 also
issued under section 2203 of Pub. L. 106-265, 114 Stat. 780; Sec.
831.303 also issued under 5 U.S.C. 8334(d)(2) and section 2203 of
Pub. L. 106-235, 114 Stat. 780; Sec. 831.502 also issued under 5
U.S.C. 8337; Sec. 831.502 also issued under section 1(3), E.O.
11228, 3 CFR 1964-1965 Comp. p. 317; Sec. 831.663 also issued under
5 U.S.C. 8339(j) and (k)(2); Secs. 831.663 and 831.664 also issued
under section 11004 (c)(2) of Pub. L. 103-66, 107 Stat. 412; Sec.
831.682 also issued under section 201(d) of Pub. L. 99-251, 100
Stat. 23; subpart V also issued under 5 U.S.C. 8343a and section
6001 of Pub. L. 100-203, 101 Stat. 1330-275; Sec. 831.2203 also
issued under section 7001(a)(4) of Pub. L. 101-508, 104 Stat. 1388-
328.

Subpart B--Coverage

2. Add Sec. 831.205 to subpart B to read as follows:

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.

Subpart C--Credit for Service

3. Amend Sec. 831.301 to revise paragraph (a)(3)(ii) and the first
sentence of paragraph (b)(3) to read as follows:

Sec. 831.301 Military service.

(a) * * *
(3) * * *
(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.
* * * * *
(b) * * *
(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. * * *
* * * * *

4. Amend Sec. 831.303 to add paragraph (d) to read as follows:

Sec. 831.303 Civilian service.

* * * * *
(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

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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.

5. Add part 839 to read as follows:

PART 839--CORRECTION OF RETIREMENT COVERAGE ERRORS UNDER THE
FEDERAL ERRONEOUS RETIREMENT COVERAGE CORRECTIONS ACT

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 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 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?

[[Page 15610]]

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 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.

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
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.
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.

[[Page 15611]]

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 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 Sec. 842.204(c) or Sec. 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) or other similar
record of personnel actions.
Retirement plan means the same as retirement coverage.
Separated employee means a former employee or Member who has
separated from service and who has not met all the requirements for
retirement under CSRS or FERS.
Social Security coverage means service as a Federal employee that
is employment under section 210 of the Social Security Act (42 U.S.C.
410) and is subject to Social Security taxes.
Social Security-Only means coverage under Social Security without
concurrent coverage under CSRS, CSRS Offset, or FERS.
Social Security taxes means the Old Age, Survivors, and Disability
Insurance taxes imposed on employees under section 3101(a) of the
Internal Revenue Code of 1986 (31 U.S.C. 3101(a)) and on employers
under section 3111(a) of the Internal Revenue Code of 1986 (31 U.S.C.
3111(a)).
Survivor means a person entitled to benefits under chapter 83 or 84
of title 5, United States Code, based on the service of a deceased
employee, separated employee, or retiree.
Thrift Savings Plan or TSP means the Federal Retirement Thrift
Savings Plan established by the Federal Employees' Retirement System
Act of 1986, Pub. L. 99-335, 100 Stat. 514, which has been codified, as
amended, primarily at 5 U.S.C. 8351 and 8401-8479.

Subpart B--Eligibility

General Provisions

839.201 Do these rules apply to me?

(a) These rules apply to employees who had a qualifying retirement
coverage error. For all purposes, a qualifying retirement coverage
error must have lasted for at least 3 years of Federal service after
December 31, 1986, as stated in the definitions section (Sec. 839.102).
It does not matter whether you have left Federal service, retired, or
have been reemployed as an annuitant, as long as you had a qualifying
retirement coverage error. In addition, the survivor of an employee,
separated employee, or retiree who had a qualifying retirement coverage
error is also covered by these rules.
(b) An error that lasted less than 3 years of Federal service after
December 31, 1986, is not qualifying under the rules in this part.
(c) For errors lasting less than 3 years that involve erroneous
placement in FERS during a period that the employee was eligible to
elect FERS, see Sec. 846.204(b) of this chapter for guidance.

Election Opportunity

Sec. 839.211 If these rules apply to me because I had a qualifying
retirement coverage error, can I choose which retirement plan I want to
be in?

The FERCCA does not provide an election opportunity in all
situations where there was a qualifying retirement coverage error. Even
if your error is one that provides an election opportunity under the
FERCCA, certain events may disqualify you from making an election under
the FERCCA. If you had a qualifying retirement coverage error, your
eligibility to choose your retirement plan may be affected by the
situations described in the next seven questions.

Sec. 839.212 May I make a retirement coverage election if I received a
refund of my retirement deductions after I was corrected to FERS?

If your qualifying retirement coverage error was previously
corrected to FERS and you then received a refund of your FERS
retirement deductions, you are not allowed to elect retirement plan
coverage under the FERCCA.

Sec. 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?

(a) You may not make a retirement coverage election if your
qualifying retirement coverage error was previously corrected to FERS,
and you later received one of the following TSP withdrawals:
(1) A TSP annuity after separation from service, but before
receiving a FERS annuity; or
(2) A single payment or monthly payments after separation from
service; or
(3) An age-based in-service withdrawal.
(b) If you received an automatic cashout of your TSP account after
you separated (because your account balance was $3,500 or less), or if
you received a financial hardship in-service withdrawal, you may make a
retirement coverage election.

Sec. 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?

No, you may make an election of retirement coverage under the
FERCCA if you made a TSP withdrawal as a retiree.

[[Page 15612]]

Sec. 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?

You can make a retirement coverage election under the FERCCA if OPM
waives repayment of the entire amount under Sec. 839.1202. If OPM does
not waive the entire repayment, you must pay back the amount that OPM
did not waive.

Previous Election Opportunity

Sec. 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?

No, OPM regulations allow certain employees who were put in FERS in
error to choose between remaining in FERS or being covered under their
automatic retirement coverage. (See Sec. 846.204(b)(2) of this
chapter). If you already had this opportunity to choose your retirement
coverage; then you may not make an election of retirement coverage
based on the same error under these rules.

Court-Ordered Benefits for Former Spouses

Sec. 839.231 Can I make an election if my former spouse is entitled to
a portion of my retirement benefits by qualifying court order?

Yes, but if you want to elect FERS you need your former spouse's
consent to the election. If you are subject to a qualifying court order
and want to elect FERS, the requirements in Sec. 846.722 of this
chapter (Former Spouse's Consent to an Election of FERS Coverage) apply
to you.

Sec. 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?

If the employee dies before making an election of retirement
coverage under the FERCCA, all eligible potential survivors, that is,
both the current and any former spouses, must consent to an election of
FERS coverage. If they do not all consent, the election cannot be made.

Elections

Sec. 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 Sec. 839.212 through Sec. 839.232 apply to me?

If you were in CSRS or CSRS Offset and should have been in FERS or
Social Security-Only, or if you were in FERS and should have been in
CSRS, CSRS Offset, or Social Security-Only, then you have an election
opportunity. This is summarized in the following chart:

------------------------------------------------------------------------
You are or were in: And you belong in:
------------------------------------------------------------------------
CSRS or CSRS Offset....................... FERS.
CSRS or CSRS Offset....................... Social Security-Only.
FERS...................................... Social Security-Only.
FERS...................................... CSRS.
FERS...................................... CSRS Offset.
------------------------------------------------------------------------

Sec. 839.242 Do these rules apply to me if I had multiple errors?

You must be in the wrong retirement plan for at least 3 years of
Federal service after December 31, 1986. You need not be in the same
wrong retirement plan during the entire 3-year period. If you had more
than one type of erroneous retirement coverage, then you will have a
retirement plan election under these rules if one of the errors is of a
type that qualifies you for an election.

Subpart C--Employer Responsibility to Notify Employees

Sec. 839.301 What should I do if I am not sure whether I am or was in
the wrong retirement plan?

(a) If you are an employee, your employer has your personnel
records and will review them to determine whether an error has been
made. Therefore, you should notify your employer's human resources
office if you believe an error has been made in your case. Notify your
current employer even if you believe the error occurred while you were
employed at another agency.
(b) If you are not currently employed by the Federal Government,
you should notify OPM at: U.S. Office of Personnel Management,
Retirement Operations Center, Post Office Box 45, Boyers, Pennsylvania
16017. You can also contact us by electronic mail at FERCCA@OPM.GOV.
Notify OPM regardless of whether you are a retiree, survivor, or
separated employee.
(c) You may also get additional information about the FERCCA and
whether or not you qualify at: www.opm.gov/benefits/correction.

Sec. 839.302 Will my employer give me a written explanation?

(a) Your employer must provide you with written notice of the
error. The notice must include an explanation of the error, your
options regarding the error, and any time limits that apply.
(b) Your employer must inform you if they find that you do not have
a retirement coverage error.

Sec. 839.303 Is my employer required to find employees with a
retirement coverage error?

The FERCCA requires your employer to take reasonable and
appropriate measures to identify individuals affected by a qualifying
retirement coverage error and notify them of their rights under the
law.

Sec. 839.304 What if my employer does not notify me?

(a) If your error has not previously been corrected, the 6-month
time limit on making an election of retirement coverage under the
FERCCA (see Sec. 839.611(a)) does not begin to run until you are
notified of the error.
(b) If your error was previously corrected, the 18-month time limit
on making an election of retirement coverage ends on September 19,
2002. Employers and OPM may extend the time limit if you were prevented
from making a timely election due to a cause beyond your control (see
Sec. 839.612).

Subpart D--Retirement Coverage Elections for Errors That Were Not
Previously Corrected

Erroneous CSRS or CSRS Offset

Sec. 839.401 What can I elect if I was put in CSRS or CSRS Offset by
mistake?

If you were placed in CSRS or CSRS Offset due to a qualifying
retirement coverage error and you should have been in FERS, you may
elect CSRS Offset or FERS. If you were placed in CSRS or CSRS Offset
due to a qualifying retirement coverage error and you should have been
in Social Security-Only, you may elect CSRS Offset or Social Security-
Only. This is summarized in the following chart:

------------------------------------------------------------------------
You are in: And you belong in: You may elect:
------------------------------------------------------------------------
CSRS............................ FERS.............. CSRS Offset or
FERS.
CSRS Offset..................... FERS..............
CSRS............................ Social Security- CSRS Offset or
Only. Social Security-
Only.
CSRS Offset..................... Social Security-
Only.
------------------------------------------------------------------------

Erroneous FERS

Sec. 839.411 What can I elect if I was put in FERS by mistake?

If you were placed in FERS due to a qualifying retirement coverage
error and you should have been in CSRS, you may elect FERS or CSRS. If
you were placed in FERS due to a qualifying retirement coverage error
and you should have been in CSRS Offset, you may elect FERS or CSRS
Offset. If you were placed

[[Page 15613]]

in FERS due to a qualifying retirement coverage error and you should
have been in Social Security-Only, you may elect FERS or Social
Security-Only. This is summarized in the following chart:

------------------------------------------------------------------------
You are in: And you belong in: You may elect:
------------------------------------------------------------------------
FERS............................ CSRS.............. FERS or CSRS.
FERS............................ CSRS Offset....... FERS or CSRS
Offset.
FERS............................ Social Security- FERS or Social
Only. Security-Only.
------------------------------------------------------------------------

Subpart E--Retirement Coverage Elections for Errors That Were
Previously Corrected

Moved Out of CSRS or CSRS Offset

Sec. 839.501 What can I elect if my employer moved me out of CSRS or
CSRS Offset?

If you were moved out of CSRS or CSRS Offset due to a qualifying
retirement coverage error and were placed in FERS, you may elect CSRS
Offset or remain in FERS. If you were moved out of CSRS or CSRS Offset
due to a qualifying retirement coverage error and were placed in Social
Security-Only, you may elect CSRS Offset or remain in Social Security-
Only. This is summarized in the following chart:

------------------------------------------------------------------------
And your coverage
You were in: was previously You may elect:
corrected to:
------------------------------------------------------------------------
CSRS............................ FERS.............. CSRS Offset or
FERS.
CSRS Offset..................... FERS..............
CSRS............................ Social Security- CSRS Offset or
Only. Social Security-
Only.
CSRS Offset..................... Social Security-
Only..
------------------------------------------------------------------------

Sec. 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?

An employee who was erroneously placed in FERS during a time when
the employee should have had an opportunity to elect FERS is allowed to
keep the erroneous FERS coverage. If the employee was given an
opportunity to remain in FERS, then the employee is disqualified from
making an election of retirement coverage under the FERCCA (see
Sec. 839.221). If you were not allowed to remain in FERS and were
placed in CSRS due to a qualifying retirement coverage error, you may
elect FERS or remain in CSRS. If you were not allowed to remain in FERS
and were placed in CSRS Offset due to a qualifying retirement coverage
error, you may elect FERS or remain in CSRS Offset. If you were not
allowed to remain in FERS and were placed in Social Security-Only due
to a qualifying retirement coverage error, you may elect FERS or remain
in Social Security-Only. This is summarized in the following chart:

------------------------------------------------------------------------
And your coverage
You were in: was previously You may elect:
corrected to:
------------------------------------------------------------------------
FERS............................ CSRS.............. CSRS or FERS.
FERS............................ CSRS Offset....... CSRS Offset or
FERS.
FERS............................ Social Security- Social Security-
Only. Only or FERS.
------------------------------------------------------------------------

Subpart F--Making an Election

General Provisions

Sec. 839.601 How do I make an election?

You may make your election using the form issued by OPM. If you are
an employee, your employer will provide you with this form. If you are
not a current employee, OPM will provide the form.

Sec. 839.602 What if I don't make an election?

(a) If your qualifying retirement coverage error was not previously
corrected and you fail to make an election within the time limit under
Sec. 839.611(a), your retirement coverage is summarized in the
following chart:

------------------------------------------------------------------------
You are considered
If you are in: And you belong in: to have elected:
------------------------------------------------------------------------
CSRS or CSRS Offset............. FERS.............. CSRS Offset.
FERS............................ CSRS, CSRS Offset FERS.
or Social
Security-Only.
CSRS or CSRS Offset............. Social Security- CSRS Offset.
Only.
------------------------------------------------------------------------

(b) If your qualifying retirement covereage error was previously
corrected and you fail to make an election within the time limit under
Sec. 839.611(b), you are considered to have elected to remain in your
current retirement plan.

Sec. 839.603 Can I later change my election?

Your election is irrevocable once your employer or OPM processes
it. If you do not make a timely election, the resulting coverage (see
Sec. 839.602) is also irrevocable.

Sec. 839.604 When is my election effective?

Your election is effective on the date that the retirement coverage
error first occurred. This means that your election will be
retroactive, or will change your retirement coverage for a period of
service in the past.

Time Limits

Sec. 839.611 What are the time limits for making an election?

(a) If your qualifying retirement coverage error was not previously
corrected, you have 6 months from the date you receive notice of the
error under Sec. 839.302 to make an election.
(b) If your qualifying retirement coverage error was previously
corrected, the time limit for making an election expires on September
19, 2002.

Sec. 839.612 Can I make a belated election?

(a) If you are an employee, your employer can waive the time limit
for making an election if you request such a waiver in writing. The
employer would have to determine that you exercised due diligence, but
could not make an election within the time limit because of
circumstances beyond your control.
(b) Your employer's decision not to waive the time limit under this
section must be in writing and include notice of your right to request
OPM to reconsider the decision.
(c) OPM can waive the time limit for separated employees, retirees,
and survivors who exercised due diligence but could not make an
election because of circumstances beyond their control if a request is
submitted to OPM, and OPM concludes that a waiver is justified.

FERS Elections

Sec. 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?

If you were erroneously in CSRS, CSRS Offset, or Social Security-
Only at the time you elected FERS and you have an election opportunity
under the FERCCA, you can choose whether you want the FERS election to
remain in effect. However, you may not choose whether you want your
FERS election to remain in effect if you chose FERS after your employer
notified you that you were put in FERS by mistake (see Sec. 839.221).

[[Page 15614]]

Sec. 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?

Yes, your FERS coverage election does not disqualify you from
making a retirement coverage election under the FERCCA. You can choose
whether you want the FERS election to remain in effect. However, you
may not choose whether you want your FERS election to remain in effect
if you chose FERS after your employer notified you that you were put in
FERS by mistake (see Sec. 839.221).

Sec. 839.623 If I decide to keep the FERS election in effect, may I
change the effective date of the FERS election?

No, If you decide to keep FERS, the original FERS election will
remain unchanged.

Subpart G--Errors That Don't Permit an Election

Sec. 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?

Under the FERCCA, the types of retirement coverage errors listed in
Sec. 839.241 trigger a right to make a retirement coverage election.
The following chart summarizes the types of errors that do not trigger
an election right:

------------------------------------------------------------------------
Your coverage must
You are in: And you belong in: be corrected to:
------------------------------------------------------------------------
CSRS Offset..................... CSRS.............. CSRS.
CSRS............................ CSRS Offset....... CSRS Offset.
Social Security-Only............ CSRS.............. CSRS.
Social Security-Only............ CSRS Offset....... CSRS Offset.
Social Security-Only............ FERS.............. FERS.
------------------------------------------------------------------------

Sec. 839.702 How do these rules apply to me if I don't have an
election right under the FERCCA, but I did have a qualifying retirement
coverage error?

After your retirement coverage is corrected to the proper plan,
your retirement deductions will be adjusted in accordance with subpart
H of this part and your Social Security taxes will be adjusted in
accordance with subpart I of this part, if applicable. You may also
file a claim for losses in accordance with subpart L of this part.

Subpart H--Adjusting Retirement Deductions and Contributions

Employee Retirement Deductions

Sec. 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?

(a) No, your employer is responsible for paying any additional
amount to the Fund. Your employer will not bill you for any additional
retirement deductions.
(b) For qualifying retirement coverage errors corrected under this
part, the rules at Sec. 831.111(b) of this chapter (pertaining to
employee options when the employer fails to withhold CSRS or CSRS
Offset retirement deductions) do not apply.

Sec. 839.802 If I was in CSRS during my qualifying retirement coverage
error, paid into the Fund 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?

CSRS Offset and FERS require employees to pay Social Security taxes
in addition to retirement deductions. When you are retroactively
changed under the FERCCA to CSRS Offset, FERS, or Social Security-Only,
the deductions you paid in under CSRS will be used to pay both the
amounts required for retirement deductions under CSRS Offset or FERS,
as applicable to you, and also the Social Security taxes that you would
have paid had you been in CSRS-Offset, FERS, or Social Security-Only.

Sec. 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?

Yes, either OPM or your employer, as appropriate, will issue the
payment in accordance with OPM instructions.

Sec. 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?

(a) If you (as a reemployed annuitant) were erroneously in CSRS and
had retirement deductions withheld from pay, and later are corrected to
CSRS Offset or FERS coverage, the amount erroneously withheld under
CSRS will be used to pay the retroactive CSRS Offset or FERS retirement
deductions and Social Security taxes.
(b) If you (as a reemployed annuitant) were erroneously placed in
CSRS and elected not to have retirement deductions withheld from pay,
and later are corrected to CSRS Offset or FERS, your share of
retroactive Social Security taxes will be treated as an overpayment of
salary. If you are corrected to CSRS Offset, you may elect to have
retirement deductions withheld from future salary as a reemployed
annuitant and may also make a deposit to cover the retirement
deductions for past service as a reemployed annuitant in accordance
with Sec. 837.503(c) of this chapter. If you are corrected to FERS,
your retirement deductions under FERS will be treated as an overpayment
of salary.
(c) If you (as a reemployed annuitant) were erroneously in CSRS
Offset and had retirement deductions withheld from pay, and later are
corrected to CSRS or FERS coverage, the amount erroneously withheld
under CSRS Offset will be used to pay the retroactive CSRS or FERS
retirement deductions. The employer is responsible for paying to the
Fund any additional retirement deductions.
(d) If you (as a reemployed annuitant) were erroneously placed in
CSRS Offset and elected not to have retirement deductions withheld from
pay, and later are corrected to CSRS, you may elect to have retirement
deductions withheld from future salary as a reemployed annuitant and
may also make a deposit to cover the retirement deductions for past
service as a reemployed annuitant in accordance with Sec. 837.503(c) of
this chapter. Your retirement deductions under CSRS will be treated as
an overpayment of salary.
(e) If you (as a reemployed annuitant) were erroneously placed in
CSRS Offset and elected not to have retirement deductions withheld from
pay, and later are corrected to FERS, your retirement deductions under
FERS will be treated as an overpayment of salary.
(f) A reemployed annuitant erroneously placed in FERS and later
corrected to CSRS or CSRS Offset is considered to have elected
retirement deductions as a reemployed annuitant under the corrected
coverage. The employer is responsible for paying to the Fund any
additional retirement deductions under the corrected retirement
coverage.
(g) If you have a salary overpayment, your employer will inform you
of your rights regarding the overpayment.
(h) These rules are summarized in the following chart:

[[Page 15615]]

----------------------------------------------------------------------------------------------------------------
And retirement And you are corrected
Wrong coverage is: deductions were to Then
----------------------------------------------------------------------------------------------------------------
(1) CSRS........................... Taken................. CSRS Offset or FERS... The erroneous CSRS
deductions are used to pay
the retroactive CSRS
Offset or FERS deductions
and Social Security taxes.
Retirement
deductions will continue
to be withheld from
salary.
Social Security
taxes must be withheld
from salary.
(2) CSRS........................... Not taken............. CSRS Offset........... Retroactive Social
Security taxes are treated
as an overpayment of
salary.
You may elect to
have retirement deductions
withheld from future
salary.
Social Security
taxes must be withheld
from salary.
You may pay a
deposit to OPM for past
retirement deductions.
(3) CSRS........................... Not taken............. FERS.................. Retroactive Social
Security taxes are treated
as an overpayment of
salary.
Retirement
deductions and Social
Security taxes must be
withheld from salary.
Your retirement
deductions for past
service under FERS are
treated as an overpayment
of salary.
(4) CSRS Offset.................... Taken................. CSRS or FERS.......... The erroneous CSRS
Offset deductions are used
to pay retroactive CSRS or
FERS retirement
deductions.
Retirement
deductions will continue
to be withheld from
salary.
Social Security
taxes must be withheld
from salary if correct
coverage is FERS.
Employer must pay
any additional amount of
retirement deductions.
(5) CSRS Offset.................... Not taken............. CSRS.................. You may elect to
have retirement deductions
withheld from future
salary.
You may pay a
deposit to OPM for past
retirement deductions.
(6) CSRS Offset.................... Not taken............. FERS.................. Your retirement
deductions for past
service under FERS will be
treated as an overpayment
of salary.
(7) FERS........................... Taken................. CSRS or CSRS Offset... You are considered
to have elected retirement
deductions as a reemployed
annuitant under the
corrected coverage.
Employer must pay
any additional retirement
deductions due for past
service.
----------------------------------------------------------------------------------------------------------------

Employer Retirement Contributions

Sec. 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?

Yes, your employer must pay any additional retirement contributions
to the Fund.

Sec. 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?

No, if you were erroneously in CSRS, CSRS Offset, or Social
Security-Only, then a correction of a retirement coverage error will
not reduce the employer retirement contribution owed. Also, the FERCCA
states that an employer may not remove from the Fund FERS employer
contributions when correcting a qualifying retirement coverage error
under this part.

Records Correction

Sec. 839.821 Who is responsible for correcting my records?

(a) Your current employer will correct your records in accordance
with OPM instructions. Your employer must not delay correcting your
records.
(b) For former employees and retirees, the last employer will
correct the records. For survivors, the employee's last employer will
correct the records. If an employer no longer exists as an
organization, and there is no successor agency, then OPM will correct
the records.

Sec. 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?

Your current or most recent employer will be responsible for this
purpose. Even if that employer was not involved in the retirement
coverage error, it must issue corrected records for the entire period
of the retirement coverage error.

Subpart I--Social Security Taxes

Sec. 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?

(a) If you are in CSRS by mistake and belong in CSRS Offset, FERS,
or Social Security-Only, your employer must begin withholding Social
Security taxes by changing your retirement coverage to CSRS Offset.
Your employer must begin this withholding as soon as possible after the
error is discovered.
(b) Your employer will correct your retirement coverage back to the
date the error first occurred once you are notified of the error and
have an opportunity to make any elections that you are eligible to
make.

Sec. 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?

(a) If your qualifying retirement coverage error was not previously
corrected, the amount erroneously withheld for CSRS retirement
deductions will be:
(1) Used to pay your new retirement deduction amount; and
(2) Applied toward any Social Security taxes you owe for the time
you were in the wrong retirement plan.
(b) You will get Social Security credit for all the time you were
erroneously covered by CSRS. Your employer will send the Social
Security Administration a record of your earnings for all the years you
should have had Social Security coverage.

[[Page 15616]]

Sec. 839.903 What happens to the Social Security taxes I erroneously
paid when my employer corrects my retirement coverage to CSRS?

(a) Except for the last 3 years, the money you erroneously paid
into Social Security will remain to your credit in the Social Security
fund. The Social Security Administration will include all but those
last 3 years in determining your eligibility for, and the amount of,
future benefits.
(b) The amount you paid into Social Security for the last 3 years
will be used to help pay your CSRS retirement deductions.

Subpart J--Lost Earnings for Certain Make-up Contributions to the
TSP

Sec. 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?

The Board's error correction regulations (5 CFR 1605 of chapter VI)
generally allow you to increase your TSP account through a schedule of
make-up contributions to replace the missed employee contributions. In
addition, the FERCCA allows certain employees who have completed a
schedule of make-up contributions, or who plan to schedule make-up
contributions, to receive lost earnings on those contributions under
certain circumstances. Employees are (and have been) entitled to lost
earnings on the make-up agency contributions they receive as a result
of the correction of an agency error.

Sec. 839.1002 Will OPM compute the lost earnings if my qualifying
retirement coverage error was previously corrected and I made TSP make-
up contributions?

If you made contributions to the TSP after your qualifying
retirement coverage error was previously corrected, OPM will compute
the lost earnings on your make-up contributions to the TSP under the
following circumstances:

------------------------------------------------------------------------
And were
You were in: previously And under these
corrected to: rules you elect:
------------------------------------------------------------------------
CSRS............................ FERS.............. FERS.
CSRS Offset..................... FERS.............. ..................
Social Security-Only............ FERS.............. No election
required.
Social Security-Only............ CSRS.............. ..................
Social Security-Only............ CSRS Offset....... ..................
------------------------------------------------------------------------

Sec. 839.1003 How will OPM compute the amount of lost earnings?

(a) Lost earnings will generally be computed in accordance with the
Board's lost earnings regulations (5 CFR 1606 of chapter VI). However,
the FERCCA states that OPM may compute the lost earnings in an
alternative manner if such a computation is not administratively
feasible. The alternative manner will yield an amount that is as close
as practicable to the amount computed under 5 CFR 1606 of chapter VI.
(b) Your employer is required to submit to OPM all information
required to compute the amount of lost earnings.

Sec. 839.1004 Are lost earnings payable if I separated or if the
employee died?

(a) Yes. If the TSP account is not withdrawn, the lost earnings are
paid to the account.
(b) If there is no TSP account at the time the lost earnings are
payable, you or your survivors will receive the payment directly.

Subpart K--Effect of Election

General Provisions

Sec. 839.1101 How are my retirement benefits computed if I elect CSRS
or CSRS Offset under this part?

Unless otherwise stated in this part, your retirement benefit is
computed as if you were properly put in CSRS or CSRS Offset on the
effective date of the error. All the eligibility and benefit
computation rules for CSRS or CSRS Offset apply to your retirement
benefit.

Sec. 839.1102 How are my retirement benefits computed if I elect FERS
under this part?

OPM will compute your retirement benefit as if you were properly
put in FERS on the effective date of the error. All the eligibility and
benefit computation rules for FERS apply to your retirement benefit.

Sec. 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?

No, employees who should have been automatically placed in FERS
(generally because they did not have 5 years of past service under CSRS
rules) do not have a CSRS component in their future FERS benefit. All
service must be treated as FERS service in this circumstance.

Retirees and Survivors

Sec. 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?

(a) Yes, if you elect to change your retirement coverage under the
FERCCA, you will have an opportunity to change the election you made
for survivor benefits.
(b) If you elect less than the maximum survivor benefit, your
spouse's consent is necessary in accordance with Sec. 831.614 or
Sec. 842.603(a)(1) of this chapter, as applicable.

Sec. 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?

Yes, you may retroactively change your decision regarding waiver of
your military retired pay.

Sec. 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?

Yes, you or your survivor will have a new opportunity to decide
whether to pay any deposits or redeposits.

Sec. 839.1114 Will OPM actuarially reduce my benefit if I elect to
change my retirement coverage under these rules?

Your annuity may be subject to three possible actuarial reductions
under the FERCCA. These reductions may be required for an unpaid
deposit (see Sec. 831.303(d) and Sec. 839.1116 of this chapter), for
Government contributions in a TSP account (see Sec. 839.1118), or for a
previous payment of the Basic Employee Death Benefit (see
Sec. 839.1121).

Sec. 839.1115 What is an actuarial reduction?

An actuarial reduction allows you to receive benefits without
having to pay an amount due in a lump sum. OPM reduces your annuity in
a way that, on average, allows the Fund to recover the amount of the
missing lump sum over your lifetime. The actuarial reduction becomes a
permanent reduction in your benefit. The amount of the reduction
depends on your age and the amount of the lump sum you would otherwise
have to pay at that time. To compute an actuarial reduction, OPM
divides the lump sum amount by the present value factor for your age at
retirement.

Sec. 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 deposit due or will OPM actuarially reduce
my annuity?

You can choose to pay the additional deposit amount. If you choose
not to pay the deposit, OPM will actuarially reduce your annuity, as
explained in 831.303(d) of this chapter.

[[Page 15617]]

Sec. 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?

No, the FERCCA allows OPM to reduce an annuity by an actuarial
reduction only for the deposit amount that remains unpaid.

Sec. 839.1118 Will my annuity be actuarially reduced because I had
Government contributions in my TSP account?

Retirees and survivors of deceased employees who received a
Government contribution to their TSP account after being corrected to
FERS and who later elect CSRS Offset under the FERCCA are allowed to
keep the Government contributions, and earnings on the Government
contributions in the TSP account. Instead of adjusting the TSP account,
the FERCCA requires that the CSRS-Offset annuity be reduced
actuarially.

Sec. 839.1119 How is the actuarial reduction for TSP computed?

(a) The part of your TSP account on the date you retired that is
Government contributions and earnings on those Government contributions
forms the basis for the actuarial reduction. OPM will divide the
Government contributions and earnings by the present value factor for
your age (in full years) at the time you retired. OPM will then round
the result to the next highest dollar amount, which will be the monthly
actuarial reduction amount.
(b) If a survivor annuity is the only benefit that is payable, the
present value factor for the survivor's age at the time of death is
used. The survivor benefit is not reduced for TSP if the retiree's rate
was reduced.

Survivor Benefits

Sec. 839.1121 What is the Actuarial Reduction for the Basic Employee
Death Benefit (BEDB)?

If you received a BEDB under FERS and you elect CSRS Offset under
these rules, you do not have to pay back the BEDB. Instead, the FERCCA
requires that OPM actuarially reduce your survivor annuity. The
reduction will be the amount of the BEDB divided by the present value
factor for your age at the time of the employee's death. The result is
rounded to the next highest dollar amount and is the monthly actuarial
reduction amount. If you elected to receive the BEDB in installments
rather than a lump sum, the lump-sum amount is used for the purpose of
computing the actuarial reduction.

Sec. 839.1122 Does receipt of a one-time payment of retirement
contributions as a death benefit prevent me from electing CSRS Offset?

You may still elect CSRS Offset if otherwise eligible. OPM will
collect the amount of the one-time death benefit from any survivor
benefits that are payable.

Subpart L--Discretionary Actions by OPM

Sec. 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?

(a) The FERCCA allows OPM, in its sole discretion, to reimburse you
for necessary and reasonable expenses you actually incurred while
pursuing a legal or administrative remedy of your qualifying retirement
coverage error.
(b) Necessary and reasonable expenses include actual amounts paid
for attorney fees, court costs, expert witness fees, and other
litigation expenses.
(c) You may not receive reimbursement under this section if you
received a monetary award that compensated you for your litigation
expenses.
(d) You must support your request for reimbursement with evidence
that supports your claim.
(e) In determining what is a necessary and reasonable expense, OPM
will consider:
(1) The type and amount of the expense;
(2) The circumstances that gave rise to the expense; and
(3) Whether the expense is directly related to litigation
concerning a retirement coverage error.

Sec. 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?

(a) The FERCCA allows OPM, in its sole discretion, to waive
repayment of all or part of a settlement payment or court-ordered
payment if you can demonstrate that CSRS Offset coverage does not fully
compensate you for your losses.
(b) Your request for waiver must state why you believe waiver of
repayment is appropriate and include any evidence that supports your
request.

Sec. 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?

(a) The FERCCA allows OPM, in its sole discretion, to compensate
you for a monetary loss that is a direct and proximate result of your
retirement coverage error.
(b) Monetary losses include payments of additional Social Security
taxes, payment of additional retirement deductions, and other out-of-
pocket expenses that you incurred because of a retirement coverage
error.
(c) You must substantiate your claim for losses with any evidence
that supports your request.
(d) OPM cannot pay you for:
(1) Claimed losses related to forgone contributions and earnings
under the TSP, other than lost earnings on make-up contributions to the
TSP as provided in subpart J of this part; and
(2) Claimed losses related to any other investment opportunities.

Sec. 839.1204 On what basis will OPM review claims under this subpart?

(a) OPM will base its decision on only the written record,
including all of your submissions and other documentation in OPM's
possession.
(b) At OPM's discretion, OPM may request your employer to provide
an administrative report. The report may include:
(1) A description of the retirement coverage error;
(2) A statement as to whether a settlement or other court-ordered
award was made;
(3) The employer's recommendation for resolution of the claim; and
(4) Any other information your employer believes OPM should
consider.
(c) The burden of proof that the criteria for approving a
reimbursement of expenses is on you.

Sec. 839.1205 Does the Director of OPM review the claims?

The Associate Director for Retirement and Insurance and his or her
delegatees have the authority to perform the Director's actions, as set
out in this subpart (see section 2208 of the FERCCA).

Sec. 839.1206 How do I submit a claim under this subpart?

(a) No specific form is required. Your request must be in writing
and contain the following information:
(1) It must describe the basis for the claim and state the dollar
amount you seek to receive;
(2) It must include your name, address, and telephone number;
(3) It must include the name, address, and telephone number of your
current or last employer;
(4) It must be signed by you; and
(5) It must include any information you believe OPM should
consider, such as cancelled checks or other evidence of amounts you
paid.

[[Page 15618]]

(b) Send your claim to: Office of Personnel Management, Retirement
and Insurance Service, ATTN: FC Section, Washington, DC 20415-3200

Subpart M--Appeal Rights

Sec. 839.1301 What if my employer determines my error is not subject
to these rules?

(a) Your employer must provide you with a written decision. The
decision must include the reason for the decision, and notice of your
right to appeal the decision to the MSPB.
(b) If your employer determines that it cannot waive the time limit
for making an election under Sec. 839.612, the decision must inform you
of your right to ask OPM to review the decision. OPM will advise you in
writing of your appeal rights following its review of your employer's
decision.

Sec. 839.1302 What types of decisions can I appeal?

(a) You can appeal to the MSPB a decision that affects your rights
and interests under this part, except an OPM decision under subpart L
(see Sec. 839.1303). Some examples of decisions are:
(1) Your employer's determination that your error is not subject to
these rules;
(2) Your employer's determination that you are not eligible to
elect retirement coverage under these rules; and
(3) OPM's denial of your request for a waiver of the time limit for
making an election.
(b) You may not seek review of a decision under any employee
grievance procedures, including those established by chapter 71 of
title 5, United States Code, and 5 CFR part 771.

Sec. 839.1303 Are there any types of decisions that I cannot appeal?

Yes, OPM's decisions under subpart L (Discretionary Actions by OPM)
are final and conclusive and are not subject to administrative or
judicial review.

Sec. 839.1304 Is there anything else I can do if I am not satisfied
with the way my error was corrected?

(a) Except for claims under subpart L (see Sec. 839.1303), and
after exhausting your administrative remedies as set out in this
subpart, you may bring a claim against the Government under section
1346(b) or chapter 171 of title 28, United States Code.
(b) You may also bring a claim against the Government under any
other provision of law if your claim is for amounts not otherwise
provided for under these rules.

PART 841--FEDERAL EMPLOYEES' RETIREMENT SYSTEM--GENERAL
ADMINISTRATION

6. The authority citation for part 841 is revised to read as
follows:

Authority: 5 U.S.C. 8461; Sec. 841.108 also issued under 5
U.S.C. 552a; subpart D also issued under 5 U.S.C. 8423; Sec. 841.504
also issued under 5 U.S.C. 8422; Sec. 841.507 also issued under
section 505 of Pub. L. 99-335; subpart J also issued under 5 U.S.C.
8469; Sec. 841.506 also issued under 5 U.S.C. 7701(b)(2); Sec.
841.508 also issued under section 505 of Pub. L. 99-335; Sec.
841.604 also issued under Title II, Pub. L. 106-265, 114 Stat. 780.

7. Amend Sec. 841.604 to add paragraph (c) to read as follows:

Sec. 841.604 Interest on service credit deposits.

* * * * *
(c) In the case of a retirement coverage error that was corrected
under part 839 (pertaining to errors that lasted for at least 3 years
of service after December 31, 1986) in which:
(1) A CSRS service credit deposit was made; and
(2) There is a subsequent retroactive change to FERS, the excess of
the amount of the CSRS civilian or military service credit deposit over
the FERS civilian or military deposit, together with interest computed
under Sec. 842.305 of this chapter, shall be paid to the employee or
annuitant. In the case of a deceased employee or annuitant, payment is
made to the individual entitled to lump-sum benefits under subpart B of
part 843 of this chapter.

PART 846--FEDERAL EMPLOYEES' RETIREMENT SYSTEM--ELECTIONS OF
COVERAGE

8. The authority citation for part 846 is revised to read as
follows:

Authority: 5 U.S.C. 8347(a) and 8461(g) and Title III of Pub. L.
99-335, 100 Stat. 517; Sec. 846.201(b) also issued under 5 U.S.C.
7701(b)(2) and section 153 of Pub. L. 104-134, 110 Stat. 1321; Sec.
846.201(d) also issued under section 11246(b) of Pub. L. 105-33, 111
Stat. 251; Sec. 846.201(d) also issued under section 7(e) of Pub. L.
105-274, 112 Stat. 2419; Sec. 846.202 also issued under section
301(d)(3) of Pub. L. 99-335, 100 Stat. 517; Sec. 846.204(b) also
issued under Title II, Pub. L. 106-265, 114 Stat. 778; Sec. 846.726
also issued under 5 U.S.C. 1104; subpart G also issued under section
642 of Pub. L. 105-61, 111 Stat. 1272.

9. Amend Sec. 846.204 to revise paragraph (b)(2)(i) and add
paragraph (e) to read as follows:

Sec. 846.204 Belated elections and correction of administrative
errors.

* * * * *
(b) * * *
(2)(i) Erroneous FERS coverage for a period of less than 3 years of
service. For an employee, separated employee, or retiree whose
employing agency erroneously determined that the individual was covered
by FERS during the period under Sec. 846.201 when the individual was
eligible to elect FERS, and the employing agency should have placed the
individual in CSRS, CSRS Offset, or Social Security-Only, under
conditions that would have included an opportunity to elect FERS
coverage, and the employee, separated employee, or retiree remained in
FERS for less than 3 years of service, the employee, separated
employee, or retiree is deemed to have elected FERS coverage and the
individual will remain covered by FERS, unless the individual declines
under paragraph (b)(2)(ii) of this section to be covered by FERS.
* * * * *
(e) Errors lasting for at least 3 years of service. For an
employee, separated employee, or retiree whose employing agency
erroneously determined that the individual was covered by FERS during
the period under Sec. 846.201 of this chapter when the individual was
eligible to elect FERS and the individual remained in FERS for at least
3 years of service, the error is corrected in accordance with part 839
of this chapter.
[FR Doc. 01-6805 Filed 3-16-01; 9:30 am]
BILLING CODE 6325-50-P