§ 8331. Definitions

Pub. L. 106–265, title II, Sept. 19, 2000, 114 Stat. 770, provided that: “SEC. 2001. SHORT TITLE; TABLE OF CONTENTS.“(a) Short Title.—This title may be cited as the ‘Federal Erroneous Retirement Coverage Corrections Act’. “(b) Table of Contents.— [Omitted.] “SEC. 2002. DEFINITIONS.“For purposes of this title:“(1) Annuitant.—The term ‘annuitant’ has the meaning given such term under section 8331(9) or 8401(2) of title 5, United States Code. “(2) CSRS.—The term ‘CSRS’ means the Civil Service Retirement System. “(3) CSRDF.—The term ‘CSRDF’ means the Civil Service Retirement and Disability Fund. “(4) CSRS covered.—The term ‘CSRS covered’, with respect to any service, means service that is subject to the provisions of subchapter III of chapter 83 of title 5, United States Code, other than service subject to section 8334(k) of such title. “(5) CSRS-offset covered.—The term ‘CSRS-Offset covered’, with respect to any service, means service that is subject to the provisions of subchapter III of chapter 83 of title 5, United States Code, and to section 8334(k) of such title. “(6) Employee.—The term ‘employee’ has the meaning given such term under section 8331(1) or 8401(11) of title 5, United States Code. “(7) Executive director.—The term ‘Executive Director of the Federal Retirement Thrift Investment Board’ or ‘Executive Director’ means the Executive Director appointed under section 8474 of title 5, United States Code. “(8) FERS.—The term ‘FERS’ means the Federal Employees’ Retirement System. “(9) FERS covered.—The term ‘FERS covered’, with respect to any service, means service that is subject to chapter 84 of title 5, United States Code. “(10) Former employee.—The term ‘former employee’ means an individual who was an employee, but who is not an annuitant. “(11) OASDI taxes.—The term ‘OASDI taxes’ means the OASDI employee tax and the OASDI employer tax. “(12) OASDI employee tax.—The term ‘OASDI employee tax’ means the tax imposed under section 3101(a) of the Internal Revenue Code of 1986 [26 U.S.C. 3101(a)] (relating to Old-Age, Survivors and Disability Insurance). “(13) OASDI employer tax.—The term ‘OASDI employer tax’ means the tax imposed under section 3111(a) of the Internal Revenue Code of 1986 [26 U.S.C. 3111(a)] (relating to Old-Age, Survivors and Disability Insurance). “(14) OASDI trust funds.—The term ‘OASDI trust funds’ means the Federal Old-Age and Survivors Insurance Trust Fund and the Federal Disability Insurance Trust Fund. “(15) Office.—The term ‘Office’ means the Office of Personnel Management. “(16) Retirement coverage determination.—The term ‘retirement coverage determination’ means a determination by an employee or agent of the Government as to whether a particular type of Government service is CSRS covered, CSRS-Offset covered, FERS covered, or Social Security-Only covered. “(17) Retirement coverage error.—The term ‘retirement coverage error’ means an erroneous retirement coverage determination that was in effect for a minimum period of 3 years of service after December 31, 1986. “(18) Social security-only covered.—The term ‘Social Security-Only covered’, with respect to any service, means Government service that—“(A) constitutes employment under section 210 of the Social Security Act (42 U.S.C. 410); and “(B)(i) is subject to OASDI taxes; but “(ii) is not subject to CSRS or FERS. “(19) Survivor.—The term ‘survivor’ has the meaning given such term under section 8331(10) or 8401(28) of title 5, United States Code. “(20) Thrift savings fund.—The term ‘Thrift Savings Fund’ means the Thrift Savings Fund established under section 8437 of title 5, United States Code. “SEC. 2003. APPLICABILITY.“(a) In General.—This title shall apply with respect to retirement coverage errors that occur before, on, or after the date of the enactment of this Act [Sept. 19, 2000]. “(b) Limitation.—Except as otherwise provided in this title, this title shall not apply to any erroneous retirement coverage determination that was in effect for a period of less than 3 years of service after December 31, 1986. “SEC. 2004. IRREVOCABILITY OF ELECTIONS.“Any election made (or deemed to have been made) by an employee or any other individual under this title shall be irrevocable. “Subtitle A—Description of Retirement Coverage Errors to Which This Title Applies and Measures for Their Rectification“chapter 1—employees and annuitants who should have been fers covered, but who were erroneously csrs covered or csrs-offset covered instead, and survivors of such employees and annuitants“SEC. 2101. EMPLOYEES.“(a) Applicability.—This section shall apply in the case of any employee or former employee who should be (or should have been) FERS covered but, as a result of a retirement coverage error, is (or was) CSRS covered or CSRS-Offset covered instead. “(b) Uncorrected Error.—“(1) Applicability.—This subsection applies if the retirement coverage error has not been corrected before the effective date of the regulations described under paragraph (3). As soon as practicable after discovery of the error, and subject to the right of an election under paragraph (2), if CSRS covered or CSRS-Offset covered, such individual shall be treated as CSRS-Offset covered, retroactive to the date of the retirement coverage error. “(2) Coverage.—“(A) Election.—Upon written notice of a retirement coverage error, an individual may elect to be CSRS-Offset covered or FERS covered, effective as of the date of the retirement coverage error. Such election shall be made not later than 180 days after the date of receipt of such notice. “(B) Nonelection.—If the individual does not make an election by the date provided under subparagraph (A), a CSRS-Offset covered individual shall remain CSRS-Offset covered and a CSRS covered individual shall be treated as CSRS-Offset covered. “(3) Regulations.—The Office shall prescribe regulations to carry out this subsection. “(c) Corrected Error.—“(1) Applicability.—This subsection applies if the retirement coverage error was corrected before the effective date of the regulations described under subsection (b). “(2) Coverage.—“(A) Election.—“(i) CSRS-offset covered.—Not later than 180 days after the date of the enactment of this Act [Sept. 19, 2000], the Office shall prescribe regulations authorizing individuals to elect, during the 18-month period immediately following the effective date of such regulations, to be CSRS-Offset covered, effective as of the date of the retirement coverage error. “(ii) Thrift savings fund contributions.—If under this section an individual elects to be CSRS-Offset covered, all employee contributions to the Thrift Savings Fund made during the period of FERS coverage (and earnings on such contributions) may remain in the Thrift Savings Fund in accordance with regulations prescribed by the Executive Director, notwithstanding any limit under title 5, United States Code, that would otherwise be applicable. “(B) Previous settlement payment.—An individual who previously received a payment ordered by a court or provided as a settlement of claim for losses resulting from a retirement coverage error shall not be entitled to make an election under this subsection unless that amount is waived in whole or in part under section 2208, and any amount not waived is repaid. “(C) Ineligibility for election.—An individual who, subsequent to correction of the retirement coverage error, received a refund of retirement deductions under section 8424 of title 5, United States Code, or a distribution under section 8433(b), (c), or (h)(1)(A) of title 5, United States Code, may not make an election under this subsection. “(3) Corrective action to remain in effect.—If an individual is ineligible to make an election or does not make an election under paragraph (2) before the end of any time limitation under this subsection, the corrective action taken before such time limitation shall remain in effect. “SEC. 2102. ANNUITANTS AND SURVIVORS.“(a) In General.—This section shall apply in the case of an individual who is—“(1) an annuitant who should have been FERS covered but, as a result of a retirement coverage error, was CSRS covered or CSRS-Offset covered instead; or “(2) a survivor of an employee who should have been FERS covered but, as a result of a retirement coverage error, was CSRS covered or CSRS-Offset covered instead. “(b) Coverage.—“(1) Election.—Not later than 180 days after the date of the enactment of this Act [Sept. 19, 2000], the Office shall prescribe regulations authorizing an individual described under subsection (a) to elect CSRS-Offset coverage or FERS coverage, effective as of the date of the retirement coverage error. “(2) Time limitation.—An election under this subsection shall be made not later than 18 months after the effective date of the regulations prescribed under paragraph (1). “(3) Reduced annuity.—“(A) Amount in account.—If the individual elects CSRS-Offset coverage, the amount in the employee’s Thrift Savings Fund account under subchapter III of chapter 84 of title 5, United States Code, on the date of retirement that represents the Government’s contributions and earnings on those contributions (whether or not such amount was subsequently distributed from the Thrift Savings Fund) will form the basis for a reduction in the individual’s annuity, under regulations prescribed by the Office. “(B) Reduction.—The reduced annuity to which the individual is entitled shall be equal to an amount which, when taken together with the amount referred to in subparagraph (A), would result in the present value of the total being actuarially equivalent to the present value of an unreduced CSRS-Offset annuity that would have been provided the individual. “(4) Reduced benefit.—If—“(A) a surviving spouse elects CSRS-Offset benefits; and “(B) a FERS basic employee death benefit under section 8442(b) of title 5, United States Code, was previously paid, then the survivor’s CSRS-Offset benefit shall be subject to a reduction, under regulations prescribed by the Office. The reduced annuity to which the individual is entitled shall be equal to an amount which, when taken together with the amount of the payment referred to under subparagraph (B) would result in the present value of the total being actuarially equivalent to the present value of an unreduced CSRS-Offset annuity that would have been provided the individual. “(5) Previous settlement payment.—An individual who previously received a payment ordered by a court or provided as a settlement of claim for losses resulting from a retirement coverage error may not make an election under this subsection unless repayment of that amount is waived in whole or in part under section 2208, and any amount not waived is repaid. “(c) Nonelection.—If the individual does not make an election under subsection (b) before any time limitation under this section, the retirement coverage shall be subject to the following rules:“(1) Corrective action previously taken.—If corrective action was taken before the end of any time limitation under this section, that corrective action shall remain in effect. “(2) Corrective action not previously taken.—If corrective action was not taken before such time limitation, the employee shall be CSRS-Offset covered, retroactive to the date of the retirement coverage error. “chapter 2—employee who should have been fers covered, csrs-offset covered, or csrs covered, but who was erroneously social security-only covered instead“SEC. 2111. APPLICABILITY.“This chapter shall apply in the case of any employee who—“(1) should be (or should have been) FERS covered but, as a result of a retirement coverage error, is (or was) Social Security-Only covered instead; “(2) should be (or should have been) CSRS-Offset covered but, as a result of a retirement coverage error, is (or was) Social Security-Only covered instead; or “(3) should be (or should have been) CSRS covered but, as a result of a retirement coverage error, is (or was) Social Security-Only covered instead. “SEC. 2112. CORRECTION MANDATORY.“(a) Uncorrected Error.—If the retirement coverage error has not been corrected, as soon as practicable after discovery of the error, such individual shall be covered under the correct retirement coverage, effective as of the date of the retirement coverage error. “(b) Corrected Error.—If the retirement coverage error has been corrected, the corrective action previously taken shall remain in effect. “chapter 3—employee who should or could have been social security-only covered but who was erroneously csrs-offset covered or csrs covered instead“SEC. 2121. EMPLOYEE WHO SHOULD BE SOCIAL SECURITY-ONLY COVERED, BUT WHO IS ERRONEOUSLY CSRS OR CSRS-OFFSET COVERED INSTEAD.“(a) Applicability.—This section applies in the case of a retirement coverage error in which a Social Security-Only covered employee was erroneously CSRS covered or CSRS-Offset covered. “(b) Uncorrected Error.—“(1) Applicability.—This subsection applies if the retirement coverage error has not been corrected before the effective date of the regulations described in paragraph (3). “(2) Coverage.—In the case of an individual who is erroneously CSRS covered, as soon as practicable after discovery of the error, and subject to the right of an election under paragraph (3), such individual shall be CSRS-Offset covered, effective as of the date of the retirement coverage error. “(3) Election.—“(A) In general.—Upon written notice of a retirement coverage error, an individual may elect to be CSRS-Offset covered or Social Security-Only covered, effective as of the date of the retirement coverage error. Such election shall be made not later than 180 days after the date of receipt of such notice. “(B) Nonelection.—If the individual does not make an election before the date provided under subparagraph (A), the individual shall remain CSRS-Offset covered. “(C) Regulations.—The Office shall prescribe regulations to carry out this paragraph. “(c) Corrected Error.—“(1) Applicability.—This subsection applies if the retirement coverage error was corrected before the effective date of the regulations described under subsection (b)(3). “(2) Election.—Not later than 180 days after the date of the enactment of this Act [Sept. 19, 2000], the Office shall prescribe regulations authorizing individuals to elect, during the 18-month period immediately following the effective date of such regulations, to be CSRS-Offset covered or Social Security-Only covered, effective as of the date of the retirement coverage error. “(3) Nonelection.—If an eligible individual does not make an election under paragraph (2) before the end of any time limitation under this subsection, the corrective action taken before such time limitation shall remain in effect. “chapter 4—employee who was erroneously fers covered“SEC. 2131. EMPLOYEE WHO SHOULD BE SOCIAL SECURITY-ONLY COVERED, CSRS COVERED, OR CSRS-OFFSET COVERED AND IS NOT FERS-ELIGIBLE, BUT WHO IS ERRONEOUSLY FERS COVERED INSTEAD.“(a) Applicability.—This section applies in the case of a retirement coverage error in which a Social Security-Only covered, CSRS covered, or CSRS-Offset covered employee not eligible to elect FERS coverage under authority of section 8402(c) of title 5, United States Code, was erroneously FERS covered. “(b) Uncorrected Error.—“(1) Applicability.—This subsection applies if the retirement coverage error has not been corrected before the effective date of the regulations described in paragraph (2). “(2) Coverage.—“(A) Election.—“(i) In general.—Upon written notice of a retirement coverage error, an individual may elect to remain FERS covered or to be Social Security-Only covered, CSRS covered, or CSRS-Offset covered, as would have applied in the absence of the erroneous retirement coverage determination, effective as of the date of the retirement coverage error. Such election shall be made not later than 180 days after the date of receipt of such notice. “(ii) Treatment of fers election.—An election of FERS coverage under this subsection is deemed to be an election under section 301 of the Federal Employees Retirement System Act of 1986 (5 U.S.C. 8331 note; Public Law 99–335; 100 Stat. 599). “(B) Nonelection.—If the individual does not make an election before the date provided under subparagraph (A), the individual shall remain FERS covered, effective as of the date of the retirement coverage error. “(3) Employee contributions in thrift savings fund.—If under this section, an individual elects to be Social Security-Only covered, CSRS covered, or CSRS-Offset covered, all employee contributions to the Thrift Savings Fund made during the period of erroneous FERS coverage (and all earnings on such contributions) may remain in the Thrift Savings Fund in accordance with regulations prescribed by the Executive Director, notwithstanding any limit under section 8351 or 8432 of title 5, United States Code. “(4) Regulations.—Except as provided under paragraph (3), the Office shall prescribe regulations to carry out this subsection. “(c) Corrected Error.—“(1) Applicability.—This subsection applies if the retirement coverage error was corrected before the effective date of the regulations described under paragraph (2). “(2) Election.—Not later than 180 days after the date of the enactment of this Act [Sept. 19, 2000], the Office shall prescribe regulations authorizing individuals to elect, during the 18-month period immediately following the effective date of such regulations to remain Social Security-Only covered, CSRS covered, or CSRS-Offset covered, or to be FERS covered, effective as of the date of the retirement coverage error. “(3) Nonelection.—If an eligible individual does not make an election under paragraph (2), the corrective action taken before the end of any time limitation under this subsection shall remain in effect. “(4) Treatment of fers election.—An election of FERS coverage under this subsection is deemed to be an election under section 301 of the Federal Employees Retirement System Act of 1986 (5 U.S.C. 8331 note; Public Law 99–335; 100 Stat. 599). “SEC. 2132. FERS-ELIGIBLE EMPLOYEE WHO SHOULD HAVE BEEN CSRS COVERED, CSRS-OFFSET COVERED, OR SOCIAL SECURITY-ONLY COVERED, BUT WHO WAS ERRONEOUSLY FERS COVERED INSTEAD WITHOUT AN ELECTION.“(a) In General.—“(1) FERS election prevented.—If an individual was prevented from electing FERS coverage because the individual was erroneously FERS covered during the period when the individual was eligible to elect FERS under title III of the Federal Employees Retirement System Act [Pub. L. 99–335] or the Federal Employees’ Retirement System Open Enrollment Act of 1997 (Public Law 105–61; 111 Stat. 1318 et seq.) [5 U.S.C. 8331 notes], the individual—“(A) is deemed to have elected FERS coverage; and “(B) shall remain covered by FERS, unless the individual declines, under regulations prescribed by the Office, to be FERS covered. “(2) Declining fers coverage.—If an individual described under paragraph (1)(B) declines to be FERS covered, such individual shall be CSRS covered, CSRS-Offset covered, or Social Security-Only covered, as would apply in the absence of a FERS election, effective as of the date of the erroneous retirement coverage determination. “(b) Employee Contributions in Thrift Savings Fund.—If under this section, an individual declines to be FERS covered and instead is Social Security-Only covered, CSRS covered, or CSRS-Offset covered, as would apply in the absence of a FERS election, all employee contributions to the Thrift Savings Fund made during the period of erroneous FERS coverage (and all earnings on such contributions) may remain in the Thrift Savings Fund in accordance with regulations prescribed by the Executive Director, notwithstanding any limit under title 5, United States Code, that would otherwise be applicable. “(c) Inapplicability of Duration of Erroneous Coverage.—This section shall apply regardless of the length of time the erroneous coverage determination remained in effect. “SEC. 2133. RETROACTIVE EFFECT.“This chapter shall be effective as of January 1, 1987, except that section 2132 shall not apply to individuals who made or were deemed to have made elections similar to those provided in this section under regulations prescribed by the Office before the effective date of this title. “chapter 5—employee who should have been csrs-offset covered, but who was erroneously csrs covered instead“SEC. 2141. APPLICABILITY.“This chapter shall apply in the case of any employee who should be (or should have been) CSRS-Offset covered but, as a result of a retirement coverage error, is (or was) CSRS covered instead. “SEC. 2142. CORRECTION MANDATORY.“(a) Uncorrected Error.—If the retirement coverage error has not been corrected, as soon as practicable after discovery of the error, such individual shall be covered under the correct retirement coverage, effective as of the date of the retirement coverage error. “(b) Corrected Error.—If the retirement coverage error has been corrected before the effective date of this title, the corrective action taken before such date shall remain in effect. “chapter 6—employee who should have been csrs covered, but who was erroneously csrs-offset covered instead“SEC. 2151. APPLICABILITY.“This chapter shall apply in the case of any employee who should be (or should have been) CSRS covered but, as a result of a retirement coverage error, is (or was) CSRS-Offset covered instead. “SEC. 2152. CORRECTION MANDATORY.“(a) Uncorrected Error.—If the retirement coverage error has not been corrected, as soon as practicable after discovery of the error, such individual shall be covered under the correct retirement coverage, effective as of the date of the retirement coverage error. “(b) Corrected Error.—If the retirement coverage error has been corrected before the effective date of this title, the corrective action taken before such date shall remain in effect. “Subtitle B—General Provisions“SEC. 2201. IDENTIFICATION AND NOTIFICATION REQUIREMENTS.“Government agencies shall take all such measures as may be reasonable and appropriate to promptly identify and notify individuals who are (or have been) affected by a retirement coverage error of their rights under this title. “SEC. 2202. INFORMATION TO BE FURNISHED TO AND BY AUTHORITIES ADMINISTERING THIS TITLE.“(a) Applicability.—The authorities identified in this subsection are—“(1) the Director of the Office of Personnel Management; “(2) the Commissioner of Social Security; and “(3) the Executive Director of the Federal Retirement Thrift Investment Board. “(b) Authority To Obtain Information.—Each authority identified in subsection (a) may secure directly from any department or agency of the United States information necessary to enable such authority to carry out its responsibilities under this title. Upon request of the authority involved, the head of the department or agency involved shall furnish that information to the requesting authority. “(c) Authority To Provide Information.—Each authority identified in subsection (a) may provide directly to any department or agency of the United States all information such authority believes necessary to enable the department or agency to carry out its responsibilities under this title. “(d) Limitation; Safeguards.—Each of the respective authorities under subsection (a) shall—“(1) request or provide only such information as that authority considers necessary; and “(2) establish, by regulation or otherwise, appropriate safeguards to ensure that any information obtained under this section shall be used only for the purpose authorized. “SEC. 2203. SERVICE CREDIT DEPOSITS.“(a) CSRS Deposit.—In the case of a retirement coverage error in which—“(1) a FERS covered employee was erroneously CSRS covered or CSRS-Offset covered; “(2) the employee made a service credit deposit under the CSRS rules; and “(3) there is a subsequent retroactive change to FERS coverage, the excess of the amount of the CSRS civilian or military service credit deposit over the FERS civilian or military service credit deposit, together with interest computed in accordance with paragraphs (2) and (3) of section 8334(e) of title 5, United States Code, and regulations prescribed by the Office, shall be paid to the employee, the annuitant or, in the case of a deceased employee, to the individual entitled to lump-sum benefits under section 8424(d) of title 5, United States Code. “(b) FERS Deposit.—“(1) Applicability.—This subsection applies in the case of an erroneous retirement coverage determination in which—“(A) the employee owed a service credit deposit under section 8411(f) of title 5, United States Code; and “(B)(i) there is a subsequent retroactive change to CSRS or CSRS-Offset coverage; or “(ii) the service becomes creditable under chapter 83 of title 5, United States Code. “(2) Reduced annuity.—“(A) In general.—If at the time of commencement of an annuity there is remaining unpaid CSRS civilian or military service credit deposit for service described under paragraph (1), the annuity shall be reduced based upon the amount unpaid together with interest computed in accordance with section 8334(e)(2) and (3) of title 5, United States Code, and regulations prescribed by the Office. “(B) Amount.—The reduced annuity to which the individual is entitled shall be equal to an amount that, when taken together with the amount referred to under subparagraph (A), would result in the present value of the total being actuarially equivalent to the present value of the unreduced annuity benefit that would have been provided the individual. “(3) Survivor annuity.—“(A) In general.—If at the time of commencement of a survivor annuity, there is remaining unpaid any CSRS service credit deposit described under paragraph (1), and there has been no actuarial reduction in an annuity under paragraph (2), the survivor annuity shall be reduced based upon the amount unpaid together with interest computed in accordance with section 8334(e)(2) and (3) of title 5, United States Code, and regulations prescribed by the Office. “(B) Amount.—The reduced survivor annuity to which the individual is entitled shall be equal to an amount that, when taken together with the amount referred to under subparagraph (A), would result in the present value of the total being actuarially equivalent to the present value of an unreduced survivor annuity benefit that would have been provided the individual. “SEC. 2204. PROVISIONS RELATED TO SOCIAL SECURITY COVERAGE OF MISCLASSIFIED EMPLOYEES.“(a) Definitions.—In this section, the term—“(1) ‘covered individual’ means any employee, former employee, or annuitant who—“(A) is or was employed erroneously subject to CSRS coverage as a result of a retirement coverage error; and “(B) is or was retroactively converted to CSRS-offset coverage, FERS coverage, or Social Security-Only coverage; and “(2) ‘excess CSRS deduction amount’ means an amount equal to the difference between the CSRS deductions withheld and the CSRS-Offset or FERS deductions, if any, due with respect to a covered individual during the entire period the individual was erroneously subject to CSRS coverage as a result of a retirement coverage error. “(b) Reports to Commissioner of Social Security.—“(1) In general.—In order to carry out the Commissioner of Social Security’s responsibilities under title II of the Social Security Act [42 U.S.C. 401 et seq.], the Commissioner may request the head of each agency that employs or employed a covered individual to report (in coordination with the Office of Personnel Management) in such form and within such timeframe as the Commissioner may specify, any or all of—“(A) the total wages (as defined in section 3121(a) of the Internal Revenue Code of 1986 [26 U.S.C. 3121(a)]) paid to such individual during each year of the entire period of the erroneous CSRS coverage; and “(B) such additional information as the Commissioner may require for the purpose of carrying out the Commissioner’s responsibilities under title II of the Social Security Act (42 U.S.C. 401 et seq.). “(2) Compliance.—The head of an agency or the Office shall comply with a request from the Commissioner under paragraph (1). “(3) Wages.—For purposes of section 201 of the Social Security Act (42 U.S.C. 401), wages reported under this subsection shall be deemed to be wages reported to the Secretary of the Treasury or the Secretary’s delegates pursuant to subtitle F of the Internal Revenue Code of 1986 [26 U.S.C. 6001 et seq.]. “(c) Payment Relating to OASDI Employee Taxes.—The Office shall transfer from the Civil Service Retirement and Disability Fund to the General Fund of the Treasury an amount equal to the lesser of the excess CSRS deduction amount or the OASDI taxes due for covered individuals (as adjusted by amounts transferred relating to applicable OASDI employee taxes as a result of corrections made, including corrections made before the date of the enactment of this Act [Sept. 19, 2000]). If the excess CSRS deductions exceed the OASDI taxes, any difference shall be paid to the covered individual or survivors, as appropriate. “(d) Payment of OASDI Employer Taxes.—“(1) In general.—Each employing agency shall pay an amount equal to the OASDI employer taxes owed with respect to covered individuals during the applicable period of erroneous coverage (as adjusted by amounts transferred for the payment of such taxes as a result of corrections made, including corrections made before the date of the enactment of this Act [Sept. 19, 2000]). “(2) Payment.—Amounts paid under this subsection shall be determined subject to any limitation under section 6501 of the Internal Revenue Code of 1986 [26 U.S.C. 6501]. “SEC. 2205. THRIFT SAVINGS PLAN TREATMENT FOR CERTAIN INDIVIDUALS.“(a) Applicability.—This section applies to an individual who—“(1) is eligible to make an election of coverage under section 2101 or 2102, and only if FERS coverage is elected (or remains in effect) for the employee involved; or “(2) is described in section 2111, and makes or has made retroactive employee contributions to the Thrift Savings Fund under regulations prescribed by the Executive Director. “(b) Payment Into Thrift Savings Fund.—“(1) In general.—“(A) Payment.—With respect to an individual to whom this section applies, the employing agency shall pay to the Thrift Savings Fund under subchapter III of chapter 84 of title 5, United States Code, for credit to the account of the employee involved, an amount equal to the earnings which are disallowed under section 8432a(a)(2) of such title on the employee’s retroactive contributions to such Fund. “(B) Amount.—Earnings under subparagraph (A) shall be computed in accordance with the procedures for computing lost earnings under section 8432a of title 5, United States Code. The amount paid by the employing agency shall be treated for all purposes as if that amount had actually been earned on the basis of the employee’s contributions. “(C) Exceptions.—If an individual made retroactive contributions before the effective date of the regulations under section 2101(c), the Director may provide for an alternative calculation of lost earnings to the extent that a calculation under subparagraph (B) is not administratively feasible. The alternative calculation shall yield an amount that is as close as practicable to the amount computed under subparagraph (B), taking into account earnings previously paid. “(2) Additional employee contribution.—In cases in which the retirement coverage error was corrected before the effective date of the regulations under section 2101(c), the employee involved shall have an additional opportunity to make retroactive contributions for the period of the retirement coverage error (subject to applicable limits), and such contributions (including any contributions made after the date of the correction) shall be treated in accordance with paragraph (1). “(c) Regulations.—“(1) Executive director.—The Executive Director shall prescribe regulations appropriate to carry out this section relating to retroactive employee contributions and payments made on or after the effective date of the regulations under section 2101(c). “(2) Office.—The Office, in consultation with the Federal Retirement Thrift Investment Board, shall prescribe regulations appropriate to carry out this section relating to the calculation of lost earnings on retroactive employee contributions made before the effective date of the regulations under section 2101(c). “SEC. 2206. CERTAIN AGENCY AMOUNTS TO BE PAID INTO OR REMAIN IN THE CSRDF.“(a) Certain Excess Agency Contributions To Remain in the CSRDF.—“(1) In general.—Any amount described under paragraph (2) shall—“(A) remain in the CSRDF; and “(B) may not be paid or credited to an agency. “(2) Amounts.—Paragraph (1) refers to any amount of contributions made by an agency under section 8423 of title 5, United States Code, on behalf of any employee, former employee, or annuitant (or survivor of such employee, former employee, or annuitant) who makes an election to correct a retirement coverage error under this title, that the Office determines to be excess as a result of such election. “(b) Additional Employee Retirement Deductions To Be Paid by Agency.—If a correction in a retirement coverage error results in an increase in employee deductions under section 8334 or 8422 of title 5, United States Code, that cannot be fully paid by a reallocation of otherwise available amounts previously deducted from the employee’s pay as employment taxes or retirement deductions, the employing agency—“(1) shall pay the required additional amount into the CSRDF; and “(2) shall not seek repayment of that amount from the employee, former employee, annuitant, or survivor. “SEC. 2207. CSRS COVERAGE DETERMINATIONS TO BE APPROVED BY OPM.“No agency shall place an individual under CSRS coverage unless—“(1) the individual has been employed with CSRS coverage within the preceding 365 days; or “(2) the Office has agreed in writing that the agency’s coverage determination is correct. “SEC. 2208. DISCRETIONARY ACTIONS BY DIRECTOR.“(a) In General.—The Director of the Office of Personnel Management may—“(1) extend the deadlines for making elections under this title in circumstances involving an individual’s inability to make a timely election due to a cause beyond the individual’s control; “(2) provide for the reimbursement of necessary and reasonable expenses incurred by an individual with respect to settlement of a claim for losses resulting from a retirement coverage error, including attorney’s fees, court costs, and other actual expenses; “(3) compensate an individual for monetary losses that are a direct and proximate result of a retirement coverage error, excluding claimed losses relating to forgone contributions and earnings under the Thrift Savings Plan under subchapter III of chapter 84 of title 5, United States Code, and all other investment opportunities; and “(4) waive payments required due to correction of a retirement coverage error under this title. “(b) Similar Actions.—In exercising the authority under this section, the Director shall, to the extent practicable, provide for similar actions in situations involving similar circumstances. “(c) Judicial Review.—Actions taken under this section are final and conclusive, and are not subject to administrative or judicial review. “(d) Regulations.—The Office of Personnel Management shall prescribe regulations regarding the process and criteria used in exercising the authority under this section. “(e) Report.—The Office of Personnel Management shall, not later than 180 days after the date of the enactment of this Act [Sept. 19, 2000], and annually thereafter for each year in which the authority provided in this section is used, submit a report to each House of Congress on the operation of this section. “SEC. 2209. REGULATIONS.“(a) In General.—In addition to the regulations specifically authorized in this title, the Office may prescribe such other regulations as are necessary for the administration of this title. “(b) Former Spouse.—The regulations prescribed under this title shall provide for protection of the rights of a former spouse with entitlement to an apportionment of benefits or to survivor benefits based on the service of the employee. “Subtitle C—Other Provisions“SEC. 2301. PROVISIONS TO AUTHORIZE CONTINUED CONFORMITY OF OTHER FEDERAL RETIREMENT SYSTEMS.“(a) Foreign Service.—Sections 827 and 851 of the Foreign Service Act of 1980 (22 U.S.C. 4067 and 4071) shall apply with respect to this title in the same manner as if this title were part of—“(1) the Civil Service Retirement System, to the extent this title relates to the Civil Service Retirement System; and “(2) the Federal Employees’ Retirement System, to the extent this title relates to the Federal Employees’ Retirement System. “(b) Central Intelligence Agency.—Sections 292 and 301 of the Central Intelligence Agency Retirement Act (50 U.S.C. 2141 and 2151) shall apply with respect to this title in the same manner as if this title were part of—“(1) the Civil Service Retirement System, to the extent this title relates to the Civil Service Retirement System; and “(2) the Federal Employees’ Retirement System, to the extent this title relates to the Federal Employees’ Retirement System. “SEC. 2302. AUTHORIZATION OF PAYMENTS.“All payments authorized or required by this title to be paid from the Civil Service Retirement and Disability Fund, together with administrative expenses incurred by the Office in administering this title, shall be deemed to have been authorized to be paid from that Fund, which is appropriated for the payment thereof. “SEC. 2303. INDIVIDUAL RIGHT OF ACTION PRESERVED FOR AMOUNTS NOT OTHERWISE PROVIDED FOR UNDER THIS TITLE.“Nothing in this title shall preclude an individual from bringing a claim against the Government of the United States which such individual may have under section 1346(b) or chapter 171 of title 28, United States Code, or any other provision of law (except to the extent the claim is for any amounts otherwise provided for under this title). “Subtitle D—Effective Date“SEC. 2401. EFFECTIVE DATE.“Except as otherwise provided in this title, this title shall take effect on the date of the enactment of this Act [Sept. 19, 2000].”

Federal Employees’ Retirement System Open Enrollment Act of 1997

Pub. L. 105–61, title VI, § 642(a)–(c), Oct. 10, 1997, 111 Stat. 1318, as amended by Pub. L. 105–66, title III, § 348, Oct. 27, 1997, 111 Stat. 1451, known as the “Federal Employees’ Retirement System Open Enrollment Act of 1997”, provided that any individual who, as of Jan. 1, 1998, was employed by the Federal Government, and on such date was subject to subchapter III of chapter 83 of this title, other than a Member of Congress, could elect to become subject to chapter 84 of this title, and directed Office of Personnel Management to promulgate regulations which would provide for an election to be made not before July 1, 1998, or after Dec. 31, 1998.

Pilot Programs for Defense Employees Converted to Contractor Employees Due to Privatization at Closed Military Installations

Pub. L. 104–201, div. A, title XVI, § 1616, Sept. 23, 1996, 110 Stat. 2741, as amended by Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814, provided that: “(a) Pilot Programs Authorized.—(1) The Secretary of Defense, after consultation with the Director of the Office of Personnel Management, may establish one or more pilot programs under which Federal retirement benefits are provided in accordance with this section to persons who convert from Federal employment to employment by a Department of Defense contractor in connection with the privatization of the performance of functions at selected military installations being closed under the base closure and realignment process. “(2) The Secretary of Defense shall select the military installations to be covered by a pilot program under this section. “(b) Eligible Converted Employees.—(1) A person is a converted employee eligible for Federal retirement benefits under this section if the person is a former employee of the Department of Defense (other than a temporary employee) who—“(A) while employed by the Department of Defense at a military installation selected to participate in a pilot program, performed a function that was recommended, in a report of the Defense Base Closure and Realignment Commission submitted to the President under the Defense Base Closure and Realignment Act of 1990 ([part A of] title XXIX of Public Law 101–510; 10 U.S.C. 2687 note), to be privatized for performance by a defense contractor at the same installation or in the vicinity of the installation; “(B) while so employed, separated from Federal service after being notified that the employee would be separated in a reduction in force resulting from such privatization; “(C) at the time separated from Federal service, was covered under the Civil Service Retirement System, but was not eligible for an immediate annuity under the Civil Service Retirement System; “(D) does not withdraw retirement contributions under section 8342 of title 5, United States Code; “(E) within 60 days following such separation, is employed by the defense contractor selected to privatize the function to perform substantially the same function performed by the person before the separation; and “(F) remains employed by the defense contractor (or a successor defense contractor) or subcontractor of the defense contractor (or successor defense contractor) until attaining early deferred retirement age (unless the employment is sooner involuntarily terminated for reasons other than performance or conduct of the employee). “(2) A person who, under paragraph (1), would otherwise be eligible for an early deferred annuity under this section shall not be eligible for such benefits if the person received separation pay or severance pay due to a separation described in subparagraph (B) of that paragraph unless the person repays the full amount of such pay with interest (computed at a rate determined appropriate by the Director of the Office of Personnel Management) to the Department of Defense before attaining early deferred retirement age. “(c) Retirement Benefits of Converted Employees.—In the case of a converted employee covered by a pilot program, payment of a deferred annuity for which the converted employee is eligible under section 8338(a) of title 5, United States Code, shall commence on the first day of the first month that begins after the date on which the converted employee attains early deferred retirement age, notwithstanding the age requirement under that section. If the employment of a converted employee is involuntarily terminated by the defense contractor or subcontractor as described in subsection (b)(1)(F) and the converted employee resumes Federal service before the converted employee attains early deferred retirement age, the converted employee shall once again be covered under the Civil Service Retirement System instead of the pilot program. “(d) Computation of Average Pay.—(1)(A) This paragraph applies to a converted employee who was employed in a position classified under the General Schedule immediately before the employee’s covered separation from Federal service. “(B) Subject to subparagraph (C), for purposes of computing the deferred annuity for a converted employee referred to in subparagraph (A), the average pay of the converted employee, computed under section 8331(4) of title 5, United States Code, as of the date of the employee’s covered separation from Federal service, shall be adjusted at the same time and by the same percentage that rates of basic pay are increased under section 5303 of such title during the period beginning on that date and ending on the date on which the converted employee attains early deferred retirement age. “(C) The average pay of a converted employee, as adjusted under subparagraph (B), may not exceed the amount to which an annuity of the converted employee could be increased under section 8340 of title 5, United States Code, in accordance with the limitation in subsection (g)(1) of such section (relating to maximum pay, final pay, or average pay). “(2)(A) This paragraph applies to a converted employee who was a prevailing rate employee (as defined under section 5342(2) [5342(a)(2)] of title 5, United States Code) immediately before the employee’s covered separation from Federal service. “(B) For purposes of computing the deferred annuity for a converted employee referred to in subparagraph (A), the average pay of the converted employee, computed under section 8331(4) of title 5, United States Code, as of the date of the employee’s covered separation from Federal service, shall be adjusted at the same time and by the same percentage that pay rates for positions that are in the same area as, and are comparable to, the last position the converted employee held as a prevailing rate employee, are increased under section 5343(a) of such title during the period beginning on that date and ending on the date on which the converted employee attains early deferred retirement age. “(e) Payment of Unfunded Liability.—(1) The military department concerned shall be liable for that portion of any estimated increase in the unfunded liability of the Civil Service Retirement and Disability Fund established under section 8348 of title 5, United States Code, which is attributable to any benefits payable from such Fund to a converted employee, and any survivor of a converted employee, when the increase results from—“(A) an increase in the average pay of the converted employee under subsection (d) upon which such benefits are computed; and “(B) the commencement of an early deferred annuity in accordance with this section before the attainment of 62 years of age by the converted employee. “(2) The estimated increase in the unfunded liability for each department referred to in paragraph (1) shall be determined by the Director of the Office of Personnel Management. In making the determination, the Director shall consider any savings to the Fund as a result of a pilot program established under this section. The Secretary of the military department concerned shall pay the amount so determined to the Director in 10 equal annual installments with interest computed at the rate used in the most recent valuation of the Civil Service Retirement System, with the first payment thereof due at the end of the fiscal year in which an increase in average pay under subsection (d) becomes effective. “(f) Contractor Service Not Creditable.—Service performed by a converted employee for a defense contractor after the employee’s covered separation from Federal service is not creditable service for purposes of subchapter III of chapter 83 of title 5, United States Code. “(g) Receipt of Benefits While Employed by a Defense Contractor.—A converted employee may commence receipt of an early deferred annuity in accordance with this section while continuing to work for a defense contractor. “(h) Lump-Sum Credit Payment.—If a converted employee dies before attaining early deferred retirement age, such employee shall be treated as a former employee who dies not retired for purposes of payment of the lump-sum credit under section 8342(d) of title 5, United States Code. “(i) Continued Federal Health Benefits Coverage.—Notwithstanding section 8905a(e)(1)(A) of title 5, United States Code, the continued coverage of a converted employee for health benefits under chapter 89 of such title by reason of the application of section 8905a of such title to such employee shall terminate 90 days after the date of the employee’s covered separation from Federal employment. For the purposes of the preceding sentence, a person who, except for subsection (b)(2), would be a converted employee shall be considered a converted employee. “(j) Report by Government Accountability Office.—The Comptroller General shall conduct a study of each pilot program, if any, established under this section and submit a report on the pilot program to Congress not later than two years after the date on which the program is established. The report shall contain the following:“(1) A review and evaluation of the program, including—“(A) an evaluation of the success of the privatization outcomes of the program; “(B) a comparison and evaluation of such privatization outcomes with the privatization outcomes with respect to facilities at other military installations closed or realigned under the base closure laws; “(C) an evaluation of the impact of the program on the Federal workforce and whether the program results in the maintenance of a skilled workforce for defense contractors at an acceptable cost to the military department concerned; and “(D) an assessment of the extent to which the program is a cost-effective means of facilitating privatization of the performance of Federal activities. “(2) Recommendations relating to the expansion of the program to other installations and employees. “(3) Any other recommendation relating to the program. “(k) Implementing Regulations.—Not later than 30 days after the Secretary of Defense notifies the Director of the Office of Personnel Management of a decision to establish a pilot program under this section, the Director shall prescribe regulations to carry out the provisions of this section with respect to that pilot program. Before prescribing the regulations, the Director shall consult with the Secretary. “(l) Definitions.—In this section:“(1) The term ‘converted employee’ means a person who, pursuant to subsection (b), is eligible for benefits under this section. “(2) The term ‘covered separation from Federal service’ means a separation from Federal service as described under subsection (b)(1)(B). “(3) The term ‘Civil Service Retirement System’ means the retirement system under subchapter III of chapter 83 of title 5, United States Code. “(4) The term ‘defense contractor’ means any entity that—“(A) contracts with the Department of Defense to perform a function previously performed by Department of Defense employees; “(B) performs that function at the same installation at which such function was previously performed by Department of Defense employees or in the vicinity of that installation; and “(C) is the employer of one or more converted employees. “(5) The term ‘early deferred retirement age’ means the first age at which a converted employee would have been eligible for immediate retirement under subsection (a) or (b) of section 8336 of title 5, United States Code, if such converted employee had remained an employee within the meaning of section 8331(1) of such title continuously until attaining such age. “(6) The term ‘severance pay’ means severance pay payable under section 5595 of title 5, United States Code. “(7) The term ‘separation pay’ means separation pay payable under section 5597 of title 5, United States Code. “(m) Application of Pilot Program.—In the event that a pilot program is established for a military installation, the pilot program shall apply to a covered separation from Federal service by an employee of the Department of Defense at the installation occurring on or after August 1, 1996.”

Additional Agency Contributions to Retirement Fund

Pub. L. 103–226, § 4, Mar. 30, 1994, 108 Stat. 114, as amended by Pub. L. 104–52, title IV, § 3, Nov. 19, 1995, 109 Stat. 490; Pub. L. 108–487, title IV, § 401(b)(2), Dec. 23, 2004, 118 Stat. 3946, provided that: “(a) Relating to Voluntary Separation Incentive Payments.—“(1) In general.—In addition to any other payments which it is required to make under subchapter III of chapter 83 of title 5, United States Code, an agency shall remit to the Office of Personnel Management for deposit in the Treasury of the United States to the credit of the Civil Service Retirement and Disability Fund an amount equal to 9 percent of the final basic pay of each employee of the agency—“(A) who, on or after the date of the enactment of this Act [Mar. 30, 1994] retires under section 8336(d)(2) of such title; and “(B) to whom a voluntary separation incentive payment has been or is to be paid by such agency based on that retirement. “(2) Definitions.—For the purpose of this subsection—“(A) the term ‘final basic pay’, with respect to an employee, means the total amount of basic pay which would be payable for a year of service by such employee, computed using the employee’s final rate of basic pay, and, if last serving on other than a full-time basis, with appropriate adjustment therefor; and “(B) the term ‘voluntary separation incentive payment’ means—“(i) a voluntary separation incentive payment under section 3 [5 U.S.C. 5597 note] (including under any program established under section 3(f)); and “(ii) any separation pay under section 5597 of title 5, United States Code. “(b) Relating to Fiscal Years 1995 Through 1998.—“(1) In general.—In addition to any other payments which it is required to make under subchapter III of chapter 83 or chapter 84 of title 5, United States Code, in fiscal years 1995, 1996, 1997, and 1998 (and in addition to any amounts required under subsection (a)), each agency shall, before the end of each such fiscal year, remit to the Office of Personnel Management for deposit in the Treasury of the United States to the credit of the Civil Service Retirement and Disability Fund an amount equal to the product of—“(A) the number of employees of such agency who, as of March 31st of such fiscal year, are subject to subchapter III of chapter 83 or chapter 84 of such title; multiplied by “(B) $80. “(2) Definition.—For the purpose of this subsection, the term ‘agency’ means an Executive agency (as defined by section 105 of title 5, United States Code), but does not include the General Accounting Office [now Government Accountability Office]. “(c) Regulations.—The Director of the Office of Personnel Management may prescribe any regulations necessary to carry out this section.”

Coordination With Pay Periods

Pub. L. 99–556, title V, § 505, Oct. 27, 1986, 100 Stat. 3141, provided that: “Under regulations prescribed by the Office of Personnel Management, any reference to a specific date in section 302, 303, 305 [5 U.S.C. 8331 notes], or 702(a) [5 U.S.C. 8401 note] of the Federal Employees’ Retirement System Act of 1986 (Public Law 99–335; 100 Stat. 514) shall, for purposes of individual contributions (including deductions from basic pay), Government contributions, and refunds, be deemed to be a reference to the first day of the first applicable pay period beginning on or after such date, or to the day before such first day, as appropriate.”

Continued Coverage Under Certain Federal Employee Benefit Programs for Certain Employees of Saint Elizabeths Hospital

Pub. L. 99–335, title II, § 207(o), as added by Pub. L. 100–238, title I, § 109(a), Jan. 8, 1988, 101 Stat. 1748, provided that: “An employee of Saint Elizabeths Hospital who is appointed to a position in the government of the District of Columbia on October 1, 1987, pursuant to the Saint Elizabeths Hospital and District of Columbia Mental Health Services Act (Public Law 98–621; 98 Stat. 3369 and following) [see Short Title note set out under section 225 of Title 24, Hospitals and Asylums] shall, for purposes of chapters 83, 87, and 89 of title 5, United States Code, be treated in the same way as an individual first employed by the government of the District of Columbia before October 1, 1987.”

[Pub. L. 100–238, title I, § 109(b), Jan. 8, 1988, 101 Stat. 1749, provided that: “The amendment made by this section [enacting note above] shall be effective as of October 1, 1987.” ]

Election of Coverage Under Chapter 84

Pub. L. 99–335, title III, §§ 301–303, June 6, 1986, 100 Stat. 599–605, as amended by Pub. L. 99–556, title III, §§ 301, 302, Oct. 27, 1986, 100 Stat. 3135, 3136; Pub. L. 100–20, § 1(a), Apr. 7, 1987, 101 Stat. 265; Pub. L. 100–238, title I, §§ 106, 107, 113(a)(1), 118, 119, 134(b), (c), Jan. 8, 1988, 101 Stat. 1746, 1747, 1750, 1752, 1764, 1765; Pub. L. 108–176, title II, § 226(b)(2)(D), Dec. 12, 2003, 117 Stat. 2530, provided that: “SEC. 301. ELECTIONS.“(a) Elections for Individuals Subject to the Civil Service Retirement System.—(1)(A) Any individual (other than an individual under subsection (b)) who, as of June 30, 1987, is employed by the Federal Government, and who is then subject to subchapter III of chapter 83 of title 5, United States Code, may elect to become subject to chapter 84 of such title. “(B) An election under this paragraph may not be made before July 1, 1987, or after December 31, 1987. “(2)(A) Any individual who, after June 30, 1987, becomes reemployed by the Federal Government, and who is then subject to subchapter III of chapter 83 of title 5, United States Code, may elect to become subject to chapter 84 of such title. “(B) An election under this paragraph shall not be effective unless it is made during the six-month period beginning on the date on which reemployment commences. “(3)(A) Except as provided in subparagraph (B), any individual—“(i) who is excluded from the operation of subchapter III of chapter 83 of title 5, United States Code, under subsection (g), (i), (j), or (l) of section 8347 of such title, and “(ii) with respect to whom chapter 84 of title 5, United States Code, does not apply because of section 8402(b)(2) of such title, shall, for purposes of an election under paragraph (1) or (2), be treated as if such individual were subject to subchapter III of chapter 83 of title 5, United States Code. “(B) An election under this paragraph may not be made by any individual who would be excluded from the operation of chapter 84 of title 5, United States Code, under section 8402(c) of such title (relating to exclusions based on the temporary or intermittent nature of one’s employment). “(4) A member of the Foreign Service described in section 103(6) of the Foreign Service Act of 1980 [22 U.S.C. 3903(6)] shall be ineligible to make any election under this subsection. “(b) Elections for Certain Individuals Serving Continuously Since December 31, 1983.—The following rules shall apply in the case of any individual described in section 8402(b)(1) of title 5, United States Code:“(1) If, as of December 31, 1986, the individual is subject to subchapter III of chapter 83 of title 5, United States Code, but is not subject to section 204 of the Federal Employees’ Retirement Contribution Temporary Adjustment Act of 1983 [section 204 of Pub. L. 98–168, set out below], the individual shall remain so subject to such subchapter unless the individual elects, after June 30, 1987, and before January 1, 1988—“(A) to become subject to such subchapter under the same terms and conditions as apply in the case of an individual described in section 8402(b)(2) of such title who is subject to such subchapter; or “(B) to become subject to chapter 84 of such title. An individual eligible to make an election under this paragraph may make the election described in subparagraph (A) or (B), but not both. “(2) If, as of December 31, 1986, the individual is subject to subchapter III of chapter 83 of title 5, United States Code, and is also subject to section 204 of the Federal Employees’ Retirement Contribution Temporary Adjustment Act of 1983 [set out below], the individual—“(A) shall, as of January 1, 1987, become subject to such subchapter under the same terms and conditions as apply in the case of an individual described in section 8402(b)(2) of such title who is subject to such subchapter; and “(B) may (during the six-month period described in subsection (a)(1)(B)) elect to become subject to chapter 84 of such title. “(3)(A) If, as of December 31, 1986, the individual is not subject to subchapter III of chapter 83 of title 5, United States Code, such individual may, during the 6-month period described in subsection (a)(1)(B)—“(i) elect to become subject to chapter 84 of such title; or “(ii) if such individual has not since made an election described in subparagraph (B), elect to become subject to subchapter III of chapter 83 of such title under the same terms and conditions as apply in the case of an individual described in section 8402(b)(2) of such title who is subject to such subchapter. “(B) Nothing in this paragraph shall be considered to preclude the individual from electing to become subject to subchapter III of chapter 83 of such title pursuant to notification under section 8331(2) of such title—“(i) during the period after December 31, 1986, and before July 1, 1987; or “(ii) after December 31, 1987, if such individual has not since become subject to subchapter III of chapter 83, or chapter 84, of such title. “(C) Any individual who becomes subject to subchapter III of chapter 83 of such title pursuant to notification under section 8331(2) of such title after December 31, 1986, shall become subject to such subchapter under the same terms and conditions as apply in the case of an individual described in section 8402(b)(2) of such title who is subject to such subchapter. “(c) Effective Date; Irrevocability.—An election made under this section—“(1) shall take effect beginning with the first pay period beginning after the date of the election; and “(2) shall be irrevocable. “(d) Condition for Making an Election; Extension To Satisfy Condition.—(1) An election under this section to become subject to chapter 84 of title 5, United States Code, shall not be considered effective in the case of an individual having one or more former spouses, unless the election is made with the written consent of such former spouse (or each such former spouse, if there is more than one). “(2)(A) This subsection applies with respect to a former spouse who (based on the service of the individual involved) is entitled to benefits under section 8341(h) or 8345(j) of title 5, United States Code, under the terms of a decree of divorce or annulment, or a court order or court-approved property settlement incident to any such decree, with respect to which the Office of Personnel Management has been duly notified. “(B) This subsection does not apply with respect to a former spouse who has ceased to be so entitled as a result of remarrying before age 55. “(3) The requirement under paragraph (1) shall be considered satisfied with respect to a former spouse if the individual seeking to make the election establishes to the satisfaction of the Office (in accordance with regulations prescribed by the Office)—“(A) that the former spouse’s whereabouts cannot be determined; or “(B) that, due to exceptional circumstances, requiring the individual to seek the former spouse’s consent would otherwise be inappropriate. “(4)(A) The Office shall, upon application of an individual, grant an extension for such individual to make an election referred to in paragraph (1) if such individual—“(i) files application for extension before the end of the period during which such individual would otherwise be eligible to make such election; and “(ii) demonstrates to the satisfaction of the Office that the extension is needed to secure the modification of a decree of divorce or annulment (or a court order or court-approved property settlement incident to any such decree) in order to satisfy the consent requirement under paragraph (1). “(B) An extension under this paragraph shall be for 6 months or for such longer period as the Office considers appropriate. “(e) Exclusions.—This section does not apply to an individual under section 8331(1)(G) of title 5, United States Code. “SEC. 302. EFFECT OF AN ELECTION UNDER SECTION 301 TO BECOME SUBJECT TO THE FEDERAL EMPLOYEES’ RETIREMENT SYSTEM.“(a) General and Special Rules.—All provisions of chapter 84 of title 5, United States Code (including those relating to disability benefits, survivor benefits, and any reductions to provide for survivor benefits) shall apply with respect to any individual who becomes subject to such chapter pursuant to an election under section 301, except if, or to the extent that, such provisions are inconsistent with the following:“(1)(A) Any civilian service which is performed before the effective date of the election under section 301 shall not be creditable under chapter 84 of title 5, United States Code, except as otherwise provided in this subsection. “(B) Any service described in subparagraph (A) which is covered service within the meaning of section 203(a)(3) of the Federal Employees’ Retirement Contribution Temporary Adjustment Act of 1983 (97 Stat. 1107; 5 U.S.C. 8331 note) (hereinafter in this section referred to as ‘covered service’) shall be creditable under chapter 84 of title 5, United States Code, if—“(i) with respect to any such service performed before January 1, 1987, 1.3 percent of basic pay for such service was withheld in accordance with such Act or, if either such withholding was not made or was made, but the amount so withheld was subsequently refunded, 1.3 percent of basic pay for such period is deposited to the credit of the Civil Service Retirement and Disability Fund (hereinafter in this section referred to as the ‘Fund’), with interest (computed under section 8334(e) of such title); and “(ii) with respect to any such service performed after December 31, 1986, and before the effective date of the election, an amount equal to the percentage of basic pay for such service which would be required to be withheld under section 8422(a) of title 5, United States Code, has been contributed to the Fund by the individual involved, whether by withholdings from pay or, if either no withholding was made or was made, but the amount withheld was subsequently refunded, the aforementioned percentage of basic pay for such period is deposited to the credit of the Fund, with interest (computed under section 8334(e) of such title). “(C) Any service described in subparagraph (A)—“(i) which is not covered service; “(ii) which constitutes service of a type described in section 8411(b)(3) of title 5, United States Code (determined without regard to whether such service was performed before, on, or after January 1, 1989, and without regard to the provisions of section 8411(f) of such title); and “(iii) which, in the aggregate, is equal to less than 5 years; shall be creditable under chapter 84 of such title, subject to section 8411(f) of such title. “(D) Any service described in subparagraph (A)—“(i) which is not covered service; “(ii) which constitutes service of a type described in section 8411(b)(3) of title 5, United States Code (determined without regard to whether such service was performed before, on, or after January 1, 1989, and without regard to the provisions of section 8411(f) of such title); and “(iii) which, in the aggregate, is equal to 5 years or more; shall be creditable for purposes of— “(I) section 8410 of such title, relating to the minimum period of civilian service required to be eligible for an annuity; “(II) any provision of section 8412 (other than subsection (d) or (e) thereof), 8413, 8414, 8442(b)(1), 8443(a)(1), or 8451 of such title which relates to a minimum period of service for entitlement to an annuity; “(III) the provisions of paragraphs (4) and (6); “(IV) any provision of section 8412(d) of such title which relates to a minimum period of service for entitlement to an annuity, but only if and to the extent that the service described in subparagraph (A) was as a law enforcement officer or firefighter; “(V) any provision of section 8412(e) of such title which relates to a minimum period of service for entitlement to an annuity, but only if and to the extent that the service described in subparagraph (A) was as an air traffic controller; and “(VI) the provision of subsection (h) [now (i)] of section 8415 which relates to the minimum period of service required to qualify for the higher accrual rate under such subsection. “(2)(A) Except as provided in subparagraph (B), the creditability under chapter 84 of title 5, United States Code, of any military service which is performed before the effective date of the election under section 301 shall be determined in accordance with applicable provisions of such chapter. “(B) If the electing individual has performed service described in clauses (i) through (iii) of paragraph (1)(D), service described in subparagraph (A) which, but for the provisions of subsection (b), would be creditable under subchapter III of chapter 83 of title 5, United States Code, as in effect on December 31, 1986, shall be creditable for purposes of—“(i) any provision of section 8412 (other than subsection (d) or (e) thereof), 8413, or 8414 of such title which relates to a minimum period of service for entitlement to an annuity; and “(ii) the provisions of paragraph (4). “(3)(A)(i) If the electing individual becomes entitled to an annuity under subchapter II of chapter 84 of title 5, United States Code, or dies leaving a survivor or survivors entitled to benefits under subchapter IV of such chapter, the annuity for such individual shall be equal to the sum of the individual’s accrued benefits under the Civil Service Retirement System (as determined under paragraph (4)) and the individual’s accrued benefits under the Federal Employees’ Retirement System (as determined under paragraph (5)). “(ii) An annuity computed under this subparagraph shall be deemed to be the individual’s annuity computed under section 8415 of title 5, United States Code. “(B) If the electing individual becomes entitled to an annuity under subchapter V of chapter 84 of title 5, United States Code, and if it becomes necessary to compute an annuity under section 8415 of such title with respect to such individual as a result of such individual’s having become so entitled, the methodology set forth in subparagraph (A) shall be used in computing any such annuity under section 8415. “(4) Accrued benefits under this paragraph shall be computed in accordance with applicable provisions of subchapter III of chapter 83 of title 5, United States Code (but without regard to subsection (j) or (k), or the second sentence of subsection (e), of section 8339 of such title) using only any civilian service under paragraph (1)(D), and any military service under paragraph (2)(B), which would be creditable for purposes of computing an annuity under such subchapter. Notwithstanding the preceding sentence, in computing accrued benefits under this paragraph for an individual retiring under section 8412(g) or 8413(b) of title 5, United States Code, section 8339(h) of such title (relating to reductions based on age at date of separation) shall not apply. “(5) Accrued benefits under this paragraph shall be computed under section 8415 of title 5, United States Code, using—“(A) total service creditable under chapter 84 of such title which is performed on or after the effective date of the election under section 301; and “(B) with respect to service performed before such effective date—“(i) creditable civilian service (as determined under applicable provisions of this subsection) other than any service described in paragraph (1)(D); and “(ii) creditable military service (as determined under applicable provisions of this subsection) other than any service described in paragraph (2)(B). “(6)(A) For purposes of any computation under paragraph (4) or (5), the average pay to be used shall be the largest annual rate resulting from averaging the individual’s rates of basic pay in effect over any 3 consecutive years of creditable service or, in the case of an annuity based on service of less than 3 years, over the total period of service so creditable, with each rate weighted by the period it was in effect. “(B) For purposes of subparagraph (A), service shall be considered creditable if it would be considered creditable for purposes of determining average pay under chapter 83 or 84 of title 5, United States Code. “(7) The cost-of-living adjustments for the annuity of the electing individual shall be made as follows:“(A) The portion of the annuity attributable to paragraph (4) shall be adjusted at the time and in the amount provided for under section 8340 of title 5, United States Code. “(B) The portion of the annuity attributable to paragraph (5) shall be adjusted at the time and in the amount provided for under section 8462 of title 5, United States Code. “(8) For purposes of any computation under paragraph (4) in the case of an individual who retires under section 8412 or 8414 of title 5, United States Code, or who dies leaving a survivor or survivors entitled to benefits under subchapter IV of such chapter, sick leave creditable under section 8339(m) of such title shall be equal to the number of days of unused sick leave to the individual’s credit as of the date of retirement or as of the effective date of the individual’s election under section 301, whichever is less. “(9) In computing the annuity under paragraph (3) for an individual retiring under section 8412(g) or 8413(b) of title 5, United States Code, the reduction under section 8415(g) [now 8415(h)] of such title shall apply with respect to the sum computed under such paragraph. “(10) An annuity supplement under section 8421 of title 5, United States Code, shall be computed using the same service as is used for the computation under paragraph (5). “(11) Effective from its commencing date, an annuity payable to an annuitant’s survivor (other than a child under section 8443 of title 5, United States Code) shall be increased by the total percent by which the deceased annuitant’s annuity was increased under paragraph (7). “(12)(A)(i) If the electing individual is a reemployed annuitant under section 8344 of title 5, United States Code, under conditions allowing the annuity to continue during reemployment, payment of the annuitant’s annuity shall continue after the effective date of the election, and an amount equal to the annuity allocable to the period of actual employment shall continue to be deducted from the annuitant’s pay and deposited as provided in subsection (a) of such section. Deductions from pay under section 8422(a) of such title and contributions under section 8423 of such title shall begin effective on the effective date of the election. “(ii) Notwithstanding any provision of section 301, an election under such section shall not be available to any reemployed annuitant who would be excluded from the operation of chapter 84 of title 5, United States Code, under section 8402(c) of such title (relating to exclusions based on the temporary or intermittent nature of one’s employment). “(B) If the annuitant serves on a full-time basis for at least 1 year, or on a part-time basis for periods equivalent to at least 1 year of full-time service, such annuitant’s annuity, on termination of reemployment, shall be increased by an annuity computed—“(i) with respect to reemployment service before the effective date of the election, under section 8339(a), (b), (d), (e), (h), (i), and (n) of title 5, United States Code, as may apply based on the reemployment in which such annuitant was engaged before such effective date; and “(ii) with respect to reemployment service on or after the effective date of the election, under section 8415(a) through (g) [now 8415(a)–(c), (e)–(h)] of such title, as may apply based on the reemployment in which such annuitant was engaged on or after such effective date; with the ‘average pay’ used in any computation under clause (i) or (ii) being determined (based on rates of pay in effect during the period of reemployment, whether before, on, or after the effective date of the election) in the same way as provided for in paragraph (6). If the annuitant is receiving a reduced annuity as provided in section 8339(j) or section 8339(k)(2) of title 5, United States Code, the increase in annuity payable under this subparagraph is reduced by 10 percent and the survivor annuity payable under section 8341(b) of such title is increased by 55 percent of the increase in annuity payable under this subparagraph, unless, at the time of claiming the increase payable under this subparagraph, the annuitant notifies the Office of Personnel Management in writing that such annuitant does not desire the survivor annuity to be increased. If the annuitant dies while still reemployed, after having been reemployed for at least 1 full year (or the equivalent thereof, in the case of part-time employment), any survivor annuity payable under section 8341(b) of such title based on the service of such annuitant is increased as though the reemployment had otherwise terminated. In applying paragraph (7) to an amount under this subparagraph, any portion of such amount attributable to clause (i) shall be adjusted under subparagraph (A) of such paragraph, and any portion of such amount attributable to clause (ii) shall be adjusted under subparagraph (B) of such paragraph. “(C)(i) If the annuitant serves on a full-time basis for at least 5 years, or on a part-time basis for periods equivalent to at least 5 years of full-time service, such annuitant may elect, instead of the benefit provided by subparagraph (B), to have such annuitant’s rights redetermined, effective upon separation from employment. If the annuitant so elects, the redetermined annuity will become payable as if such annuitant were retiring for the first time based on the separation from reemployment service, and the provisions of this section concerning computation of annuity (other than any provision of this paragraph) shall apply. “(ii) If the annuitant dies while still reemployed, after having been reemployed for at least 5 full years (or the equivalent thereof, in the case of part-time employment), any person entitled to a survivor annuity under section 8341(b) of title 5, United States Code, based on the service of such annuitant shall be permitted to elect to have such person’s rights redetermined in accordance with regulations which the Office shall prescribe. Redetermined benefits elected under this clause shall be in lieu of any increased benefits which would otherwise be payable in accordance with the next to last sentence of subparagraph (B). “(D) If the annuitant serves on a full-time basis for less than 1 year (or the equivalent thereof, in the case of part-time employment), any amounts withheld under section 8422(a) of title 5, United States Code, from such annuitant’s pay for the period (or periods) involved shall, upon written application to the Office, be payable to such annuitant (or the appropriate survivor or survivors, determined in the order set forth in section 8342(c) of such title). “(E) For purposes of determining the period of an annuitant’s reemployment service under this paragraph, a period of reemployment service shall not be taken into account unless—“(i) with respect to service performed before the effective date of the election under section 301, it is service which, if performed for at least 1 full year, would have allowed such annuitant to elect under section 8344(a) of title 5, United States Code, to have deductions withheld from pay; or “(ii) with respect to service performed on or after the effective date of the election under section 301, it is service with respect to which deductions from pay would be required to be withheld under the second sentence of section 8468(a) of title 5, United States Code. “(b) Chapter 83 Generally Inapplicable.—(1) Except as provided in subsection (a) or paragraph (2), subchapter III of chapter 83 of title 5, United States Code, shall not apply with respect to any individual who becomes subject to chapter 84 of title 5, United States Code, pursuant to an election under section 301. “(2)(A) Nothing in paragraph (1), or in subchapter III of chapter 83 of title 5, United States Code, shall preclude the making of a deposit under such subchapter with respect to any civilian service under subsection (a)(1)(D) or military service under subsection (a)(2)(B) either by the electing individual or, for purposes of survivor annuities, by a survivor of such individual. “(B) Nothing in paragraph (1) shall preclude the payment of any lump-sum credit in accordance with section 8342 of title 5, United States Code. “(c) Refunds Relating to Certain Civilian Service.—(1) Any individual who makes an election under section 301 to become subject to chapter 84 and who, with respect to any period before the effective date of the election, has made a contribution to the Civil Service Retirement System (whether by deductions from pay or by a deposit or redeposit) and has not taken a refund of the contribution (as so made), shall be entitled to a refund equal to—“(A) for a period of service under clause (i) of subsection (a)(1)(B), the amount by which—“(i) the amount contributed with respect to such period, exceeds “(ii) the amount required under such clause (i) with respect to such period; “(B) for a period of service under clause (ii) of subsection (a)(1)(B), the amount by which—“(i) the amount so contributed with respect to such period, exceeds “(ii) the amount required under such clause (ii) with respect to such period; and “(C) for a period of service under subparagraph (C) of subsection (a)(1), the amount by which—“(i) the amount so contributed with respect to such period, exceeds “(ii) the amount required under such subparagraph with respect to such period. “(2) In accordance with regulations prescribed by the Office of Personnel Management, a refund under this subsection shall be payable upon written application therefor filed with the Office and shall include interest at the rate provided in section 8334(e)(3) of title 5, United States Code. Interest on the refund shall accrue monthly and shall be compounded annually. “SEC. 303. PROVISIONS RELATING TO AN ELECTION TO BECOME SUBJECT TO CHAPTER 83 SUBJECT TO CERTAIN OFFSETS RELATING TO SOCIAL SE­CURITY.“(a) Refund.—Any individual who makes an election under section 301(b)(1)(A) shall, upon written application to the Office of Personnel Management, be entitled to a refund equal to—“(1) for the period beginning on January 1, 1984, and ending on December 31, 1986, the amount by which—“(A) the total amount deducted from such individual’s basic pay under section 8334(a)(1) of title 5, United States Code, for such period, exceeds “(B) 1.3 percent of such individual’s total basic pay for such period; and “(2) for the period beginning on January 1, 1987, and ending on the day before the effective date of the election, the amount by which—“(A) the total amount deducted from such individual’s basic pay under such section 8334(a)(1) for such period, exceeds “(B) the total amount which would have been deducted if such individual’s basic pay had instead been subject to section 8334(k) of such title during such period. A refund under this subsection shall be computed with interest in accordance with section 302(c)(2) and regulations prescribed by the Office of Personnel Management. “(b) Deposit Requirements.—(1) In the case of an individual who becomes subject to subchapter III of chapter 83 of title 5, United States Code, pursuant to notification as described in the second sentence of section 301(b)(3)(B), service performed by such individual before the effective date of the notification shall not be considered creditable under such subchapter unless—“(A) for any service during the period beginning on January 1, 1987, and ending on the day before such effective date, there is deposited to the credit of the Fund a percentage of basic pay for such period equal to the percentage which would have applied under section 8334(k) of such title if such individual’s pay had been subject to such section during such period; “(B) for any period of service beginning on January 1, 1984, and ending on December 31, 1986, there is deposited to the credit of the Fund an amount equal to 1.3 percent of basic pay for such period; and “(C) for any period of service before January 1, 1984, there is deposited to the credit of the Fund any amount required with respect to such period under such subchapter. “(2) A deposit under this subsection may be made by the individual or, for purposes of survivor annuities, a survivor of such individual.”

[Pub. L. 100–238, title I, § 113(a)(2), Jan. 8, 1988, 101 Stat. 1750, provided that: “The amendment made by paragraph (1) [amending section 301(a) of Pub. L. 99–335 set out above] shall be effective as of June 30, 1987. Any refund which becomes payable as a result of the preceding sentence shall, to the extent that such refund involves an individual’s contributions to the Thrift Savings Fund (established under section 8437 of title 5, United States Code), be adjusted to reflect any earnings attributable thereto.” ]

[Amendment by section 134(b) of Pub. L. 100–238 to section 302(a) of Pub. L. 99–335 applicable with respect to any election made by a reemployed annuitant on or after Jan. 8, 1988, see section 134(d) of Pub. L. 100–238, set out as an Effective Date of 1988 Amendment note under section 8468 of this title.]

Construction of Adjustments in Retirement Provisions Made by Pub. L. 98–353

Pub. L. 98–353, title I, § 117, July 10, 1984, 98 Stat. 344, provided that: “The adjustments in the retirement provisions made by this Act shall not be construed to be a ‘new government retirement system’ for purposes of the Federal Employees Retirement Contribution Temporary Adjustment Act of 1983 (Public Law 98–168) [set out below]”.

Election of Retirement Plan Under Federal Employees’ Retirement Contribution Temporary Adjustment Act of 1983

Pub. L. 98–369, div. B, title II, § 2206, July 18, 1984, 98 Stat. 1059, provided that: “(a) For the purposes of this section, the term ‘covered retirement system’ shall have the same meaning as provided in section 203(a)(2) of the Federal Employees’ Retirement Contribution Temporary Adjustment Act of 1983 (Public Law 98–168; 97 Stat. 1107) [set out below]. “(b)(1) Any individual who was entitled to make an election under section 208(a) of the Federal Employees’ Retirement Contribution Temporary Adjustment Act of 1983 (97 Stat. 1111) [set out below], but who did not make such an election, may make an election under such section not later than September 15, 1984. “(2)(A) Not later than September 15, 1984, any such individual who made an election under paragraph (1) of section 208(a) of the Federal Employees’ Retirement Contribution Temporary Adjustment Act of 1983 [set out below] may—“(i) make any other election which such individual was entitled to make under such section before January 1, 1984; or “(ii) elect to become a participant in a covered retirement system (if such individual is otherwise eligible to participate in such system), subject to sections 201 through 207 of such Act [set out below]. “(B) Not later than September 15, 1984, any such individual who made an election under paragraph (2) of section 208(a) of the Federal Employees’ Retirement Contribution Temporary Adjustment Act of 1983 may—“(i) make any other election which such individual was entitled to make under such section before January 1, 1984; or “(ii) elect to terminate participation in the covered retirement system with respect to which such individual made the election under such paragraph (2). “(3) An election under this subsection shall be made by a written application submitted to the official by whom the electing individual is paid. “(4) An election made as provided in this subsection shall take effect with respect to service performed on or after the first day of the first applicable pay period commencing after September 15, 1984. “(c)(1) Section 8342(a)(4) of title 5, United States Code, does not apply for the purpose of determining an entitlement to a refund under section 208(c) of the Federal Employees’ Retirement Contribution Temporary Adjustment Act of 1983 (97 Stat. 1111) [set out below]. “(2) Paragraph (1) shall take effect with respect to any election made under section 208(a) of such Act or this Act before, on, or after January 1, 1984. “(d) Nothing in this section or the Federal Employees’ Retirement Contribution Temporary Adjustment Act of 1983 [set out below] affects any entitlement to benefits accrued under a covered retirement system before January 1, 1984, except to the extent that any amount refunded under section 208(c) of such Act is not redeposited in the applicable retirement fund.”

Federal Employees’ Retirement Contribution Temporary Adjustment