Federal Register 1992-01-02: Vol 57 Iss 1

33 Pages·2.3 MB·English

Thursday
January 2, 1992
Part IV
Office of Personnel
Management
5 CFR Parts 831, et al.
Court Orders Affecting Retirement Benefits;
Proposed Rule
120 Federal Register / Vol. 57. No. 1 / Thursday, January 2. 1992 / Proposed Rules
OFFICE OF PERSONNEL amimding the interim regulations order that awards a benefit to a former
MANAGEMENT published May 13,1985, The September spouse of a CSRS or FERS retiree, the
8th interim regulations implemented retiree can protest OPM’s decision
5 CFR Parts 831,838, 841,842, and 843 several changes to CSRSEA made by the through frequently lengthy
Federal Employees Benefits administrative procedures. This may
RIN 3206-AE14 Improvement Act of 1986 (Pub. L 99- create financial hardship because, under
251). The September 8th interim CSRS procedures, no money is paid
Court Orders Affecting Retirement
regulations also included changes based while the administrative proceedings
Benefits
on comments received in response to the are pending. Since the aftermath of
agency: Office of Personnel interim regulations published May 13, many divorces is often an emotionally
Management. 1985. charged situation, some retirees
action: Proposed rule. On February 3.1987, we published (at deliberately use the process to delay
52 FR 3209) interim regulations payments for as long as possible.
SUMMARY: The Office of Personnel amending the interim regulations for The proposed regulations synthesize
Management (OPM) is issuing proposed processing court orders under CSRS to our experience in processing court
regulations to improve processing of implement the Federal Employees’ orders since 1978, and contain two
court orders affecting retirement Retirement System Technical important changes that we believe will
benefits under the Civil Service Corrections Act of 1986 (Pub. L 99-556). improve our service to people affected
Retirement System (CSRS) and the On March 12,1990, we published (at by these orders. First, the regulations
Federal Employees Retirement System 55 FR 9093) amendments to the interim will make it easier for people to submit
(FERS). The proposed regulations would regulations implementing CSRSEA. The orders that will be acceptable to OPM.
establish rules of interpretation and amendments included revised guidelines The regulations are very detailed as to
procedures for processing court orders explaining how w^e interpret certain what constitutes a court order that is
that divide retirement benefits or award language used in court orders affecting
acceptable for processing, and as to the
survivor annuities, provide model CSRS benefits.
exact meaning of court order
paragraphs for use in preparing court The interim regulations published
terminology. The definitions in these
orders, and create a single uniform set May 13,1985, as amended, remain in
regulations are designed to give the
of procedures for processing court effect for court orders affecting CSRS
most commonly-used meaning to words
orders under FERS and CSRS. The benefits.
most often encountered in court orders.
regulations are needed to streamline On December 30,1986, we publi.Hhed
This will allow OPM to accept as many
OPM’s procedures to allow disputes (at 51 FR 47021) proposed regulations for
court orders as possible rather than
over the interpretation of State court revising our procedures for processing
rejecting orders, which would require
orders to be brought to closure more court orders under CSRS to expedite
the parties to return to State court. To
easily and quickly, minimizing hardship payments to the former spouses.
further facilitate preparation of
to the former spouse. On December 31,1986, we published
acceptable orders, appendices to the
dates: Comments must be received on (at 51 FR 47190) interim regulations for regulations contain model paragraphs
or before March 3.1992. processing court orders affecting FERS
that attorneys can use to ensure that, in
ADDRESSES: Send comments to Andrea basic benefits. Those interim regulations drafting orders, the language they select
Minniear Farran, Assistant Director for implemented for FERS the procedures will both produce the intended result
Retirement and Insurance Policy, that we had proposed the day before for and meet OPM’s processing
Retirement and Insurance Group, Office CSRS. The interim regulations published requirements.
of Personnel Management, P.O. Box 57, December 31,1986, remain in effect for
Washington, DC 20044; or deliver to court orders affecting FERS benefits. ^cond, because the regulations
prescribe in detail what is and is not
OPM. room 4351,1900 E Street NW.. 1. Reasons to Change Processing acceptable for processing. OPM can
Washington, DC Procedures now assume the appropriate role for
Comments on the information
The proposed regulations will make it itself, which is a ministerial role, rather
collection requirements contained in this
easier for the parties in a divorce to than a mediator in marital property
regulation also should be filed with the
ensure that OPM will divide CSRS or disputes. This role belongs to the State
Office of Management and Budget. (See
FERS benefits, or provide a survivor courts. If a court order is so flawed that
below under Paperwork Reduction Act.)
benefit, in accordance with their wishes. it is not sufficiently clear to satisfy our
FOR FURTHER INFORMATION CONTACT: In enacting the provisions allowing OPM requirements, the appropriate action is
Harold L. Siegelman, [phone].
to honor the decisions of State courts for the parties to return to the State
SUPPLEMENTARY INFORMATION: These respecting a former spouse’s interest in court to correct the problem. Likewise, if
regulations would replace the existing an employee’s retirement benefits, the the retiree contends that the court
separate sets of interim regulations intent of Congress was that the Federal intended its order to have a different
under the Civil Service Retirement Government not insert itself into marital meaning than the clear meaning it has
System (CSRS) and the Federal property disputes. The proposed under these regulations, the proper
Employees Retirement System (FERS). regulations assure that the dispute- forum for the retiree’s complaint is the
On May 13.1985, we published (at 50 resolution role rests in the hands of the State court. OPM will require the
FR 20064) interim regulations which, in State courts as was originally intended employees and former spouses to settle
part, revised our procedures for by the Congress. the disputes in the State courts where
processing court orders affecting Under the current regulations for court they belong, not in Federal proceedings.
benefits under CSRS. Those interim orders, a process has evolved that, The courts issuing the orders are in the
rules were necessary to implement the rather than truly protecting the rights of best position to determine the meaning
Civil Service Retirement Spouse Equity all parties, often simply resulted in of their own orders. This will result in
Act of 1984 (CSRSEA) (Pub. L. 98-615). delays in payments to former spouses faster resolution of disputes and
On September 8,1986, we published and hardships to them. Under existing eliminate the delay in payments to
(at 51 FR 31927) interim regulations regulations, when we receive a court former spouses with court orders that
Federal Register / Vol. 57. No. 1 / Thursday, January 2. 1992 / Proposed Rules - 121
comply with the requirements of the believe that it also makes them simpler survivor aimuity, only subparts A, G, H.
regulations. for attorneys and others to use. and I of these regulations apply. More
The term, “former spouse annuity," detail on the regulatory structure is
2. Changes Having Broad Application
which is used in the current regulations, available in the analysis of S 838.102.
The proposed regulations would has been replaced by “former spouse
4. Section Analysis
consolidate the CSRS and FERS survivor annuity." Comments on prior
regulations concerning court orders regulations demonstrated that most Section 838.101(a) states the purpose
affecting retirement benehts into a commenters did not understand that of the regulations. The regulations cover
single set of regulations applicable to “former spouse annuity” in the current both CSRS and FERS. Our role under the
bo^ retirement systems. regulations is only used when we are proposed regulations changes from one
We have made several changes to referring to the survivor benefit payable of an active adjudicator of disputes
make the regulations easier to use by to a former spouse. The term has never concerning the interpretation of court
both the legal community in drafting and included payments to a former spouse orders to one of performing only the
submitting court orders and by 0PM during a retiree's lifetime. ministerial function of executing clear,
staff in applying the regulations to court The term, “qualifying court order,” specific, and unambiguous instructions.
orders. The proposed regulations which is used in the current regulations, As we explained in the section of this
distinguish clearly among regulations has been replaced by “court order supplementary information entitled
that affect employee annuities, refunds acceptable for processing.” The “Reasons to Change Processing
of employee contributions, and former principal reason for this change is to Procedures," the proper place to resolve
spouse survivor annuities. Under the eliminate any similarity in terminology disputes concerning division of
current regulation, some sections between court orders affecting CSRS retirement benefits upon termination of
contain regulations pertaining to more and FERS benefits and “qualified marriage is the State courts.
than one of these different benefits. This domestic relations orders,” QDRO's, OPM’s comments on the legislation
resulted in a lack of clarity about which under the Employees Retirement Income that in 1978 enacted section 8345(j) of
Security Act (ERISA), 29 U.S.C. 1001 et
regulatory provisions apply to which title 5, United States Code, favored
seq. In addition, the new term is more
types of beneHt. The proposed placing the responsibility for deciding
consistent with our role under the
regulations also divide rules into the issue of divisions of CSRS employee
proposed regulations as the ministerial
separate subparts covering procedures, aimuities and refunds of employee
processor of court orders.
requirements, and terminology. These contributions as marital property in the
changes make it easier for the legal 3. Preparing a Court Order State courts. On May 7,1979, the
community to focus on the provisions supplementary information for the
A court order may affect any of three
that effect benefits involved in the case original proposed regulations (published
types of retirement benefits paid by
with which they are concerned. A side at 44 FR 26885) recognized the
0PM. The regulations treat each of the
effect of clearly dividing the regulations traditional role of State courts in
three—employee annuities, refunds of
by the type of benefits the order seeks to domestic relations matters. Despite the
employee contributions, and survivor
affect is repetition of provisions that legislative intent to have all property
annuities—independently. In preparing
apply to more than one type of benefit. issues resolved in the State court, we, in
a court order, attorneys should keep in
The repetition has added greatly to the interpreting ambiguous orders, have
mind that we consider each of the three
length of these regulations; however, been drawn into marital disputes.
types of awards separate and
separate provisions about the effect of Section 838.101(a) states our intent to
independent of the other two, and
court orders on different types of separate ourselves from these marital
should exercise great care in each type
beneHts will simplify this very difficult of benefit they intend to affect. Our disputes. The approach of these
subject and enhance the usability of the requirement that the award of each type regulations is to require the State courts
regulations. of benefits be independent does not to resolve all disputes, requiring us to
These proposed regulations change mean that the court award of one type of perform only the ministerial function of
several terms that have caused benefit cannot affect another. For following the State criurts’ instructions.
confusion or misunderstandings under example, awarding a former spouse Section 838.101(b) states what is
the current regulations. We hope that survivor annuity requires a reduction in covered by these court order
the new terms will make the regulations the employee annuity. If the former regulations. Foiu* principal areas are
easier to understand. spouse has been awarded a portion of covered. The first area is the
The term, “employee retirement the gross or net employee annuity, the requirements that a court order must
benefits,” that is used in the current former spouse’s portion of the employee meet to enable us to process the court
regulations has been replaced by its two annuity will be affected. order without any adjudicatory role for
component parts, “Employee annuities” A complete court order requires three 0PM, that is, making OPM’s function
and “Refunds of employee separate provisions—one addressing merely a ministerial act. The second
contributions.” The failure to distinguish each type of benefit that the court can area is the procedures that the former
between these two distinct types of affect. However, fi^quently, courts spouse must follow to apply for benefits
benefits in the current regulations makes intend to award only a portion of the based on a court order. The third area is
the regulations more complex and employee annuity or a survivor annuity, the procedures that OPM will follow in
difficult to understand. Although most of rather than a complete retirement executing court orders and in making
the rules relating to “employee package. The regulatory structure is payments based on court orders. The
retirement benefits” apply to both designed to maintain a clear separation procedures cover how we handle
annuities and refunds, some of the rules between court orders affecting different applications based on court orders and
affecting “employee retirement benefits” types of benefits. This permits a court the limitations that we must apply in
make sense only for annuities, and that intends only to divide an employee executing court orders. The final area is
others, only for refunds. Treating annuity to consider only subparts A, B, the meanings assigned to words and
annuities and refunds separately makes C, and F of these regulations. Similarly, phrases commonly used in court orders
the regulations longer; however, we if the court intends to award only a to provide notice of the effect that these
122 Federal RegistM / Vol. 57. No. 1 / Thursday. January 2, 1992 / Proposed Rules
terms will have if used in a court order. The subparts (B, D and G) regulating CSRS or FERS benefits are subject to
With this notice, we must assume that procedures contain rules relating to State court orders except when
courts use these terms with a full former spouse filing requirements and to expressly authorized by Federal statute.
understanding of their regulatory our actions upon receipt of court orders. These regulations (part 838) contain the
definition, making terms that could In addition, they contain rules and regulations for the exceptions that
otherwise be ambiguous, completely limitations that the State court cannot permit State court orders under section
clear and precise, diereby allowing us to change such as when benefits are paid. 8345(j), section 8341(h), section 8467, or
process the court order as a ministerial The subparts (C. E, and H) regulating section 8445 of title 5, United States
act. requirements that court orders must Code. Part 581 of title 5, Code of Federal
Section 838.101(c) provides the rule for satisfy contain rules pertaining to the Regulations, regulates the exception for
determining whether we will process a requirements that a court order must garnishments for alimony and child
court order under the new relations. meet to be acceptable for processing. support under sections 659, 661, and 662
We must retain the old CSRS The subparts (F and I) defining terms of title 42, United States Code.
regulations for court orders filed before explains our understanding of the Sections 838.121 through 838.124 state
the new regulations begin to apply to meaning of terms commonly used in the responsibilities of everyone affected
preser\’e the legitimate expectations of court orders. By choosing the correct by the process. OPM’s role is limited to
people who filed court orders that were term, the State court can tell us exactly the ministerial function of complying
drafted in reliance on the current what to do. We assume that State courts with court orders that meet the statutory
regulations. We have thousands of court are familiar with our assigned meanings and regulatory requirements. The State
orders on file that, under the current of these terms and have used them in court is the proper forum for resolving
regulation, we are holding without the way that they are defined in these all disputes over the validity or the
decision until benefits become payable. subparts. effect of court orders. The court is also
The acceptability of these court orders Paragraphs (b) through (i) of § 838.102 responsible for issuing orders that
must be judged under the regulatory contain cross references to other conform to the statutory and regulatory
standards in effect at the time that they regulations concerning court orders or requirements. The former spouse must
were filed. Applying the new, more former spouse benefits. This information comply with the application
stringent standards of these regulations may assist people doing research. requirements of these regulations. The
to them would be unfair to the Section 838.103 contains definitions of person who worked under CSRS or
employees and former spouses who terms. These definitions apply to FERS and the former spouse must
obtained the court orders in good faith. subparts A through I. Subpart) (for submit all their disputes concerning
The delay before the new regulations orders filed before the new requirements entitlement to benefits to the
become effective is necessary to give the and procedures become applicable) appropriate State court for resolution.
public, especially the legal commimity, contains its own definitions. Most of the Section 838.131 contains rules for
notice of the new requirements and definitions are the same as used in the computing the timeliness throughout
standards that apply to court orders current CSRS regulations. As explained part 838. Paragraph (a) provides that the
affecting CSRS or FERS benefits and to in the section of the Supplementary normal CSRS and FERS rules for
provide an adjustment period before Information entitled “Changes Having computing timeframes apply under part
those requirements and standards apply. Broad Application,” the term “court 838. Paragraph (b) provides rules for
We must assume that State courts and order acceptable for processing" determining the date when OPM
attorneys involved with divorces of replaces “qualifying court order,” and receives a court order. The date of
Federal employees and retirees will “employee annuity” and “refund of receipt may be important for
become thoroughly familiar with the employee contributions” replace determining whether the order is
requirements and terminology in the “employee retirement benefits.” controlled by subparts A through I or
regulations. We do not wish to require The definition of "net annuity” is subpart J, the timeliness of filing, or the
the parties to return to court changed to exclude from “net annuity” commencing date of benefits. The
unnecessarily. The delayed effective amounts withheld for State income methodology for determining the date of
date provides time for the effective taxes under section 8345(k) or section receipt is similar to the methodology
dissemination of this information. 8469 of title 5, United States Code to the applicable to determining the date of
Section 838.102 provides a guide to same extent that current regulations service of process for garnishments
finding regulations that relate to court exclude amounts withheld for Federal under subpart B of part 581 of title 5,
orders. Paragraph (a) outlines the income tax. “Net annuity” has two Code of Federal Regulations.
structure of part 838. Subpart A contains applications. First, “net annuity” is the Section 838.132 states the statutory
definitions and other material of maximum amount of employee annuity payment schedule for CSRS and FERS
significance to all types of court orders that a State court can award to a former annuity benefits under sections 8345(a)
affecting CSRS and FERS. The rest of spouse. “Net annuity” is also one of the and 8463 of title 5, United States Code,
the part is divided into three major units three types of annuity that may be used respectively. We are required by statute
depending on whether the court order to satisfy the requirements of § 838.306 to pay CSRS and FERS annuity benefits
applies to employee annuities, refunds for identifying the type of aimuity to on the first business day of the month
of employee contributions, or former which a formula, percentage, or fraction after the month in which the benefits
spouse survivor annuities. For each unit, applies. The other two types, “gross accrue. State courts have no authority to
separate subparts cover procediu^s for annuity” and “self-only annuity” are alter this payment schedule.
processing, requirements that court also defined in section 838.103. Those Section 838.133 continues the rule
orders must satisfy, and definitions of definitions are essentially the same as under section 831.1713(b) of title 5, Code
terms frequently used in court orders. under the current regulations. of Federal Regulations, and Guidelines
(The terminology section for employee Section 838.111 states the general LG of appendix A and IIl.F of appendix
annuities and refunds of employee statutory exemption from legal process B to subpart Q of part 831 of title 5, Code
contributions are combined to avoid under section 8346(a) or section 8470 of of Federal Regulations, that provides
excessive duplication.) title 5, United States Code. Neither that the minimum monthly amount
Federal Register / Vol. 57. No. 1 / Thursday, January 2, 1992 / Proposed Rules 123
payable under a court order is one acceptable for processing to change the orders. The regulations state the
dollar. This section discontinues the amount. information that OPM will provide to
provision in the current regulation that Subpart B regulates the procedures the employee or retiree and the former
requires that the former spouse's share that apply to former spouse’s spouse affected by a court order. Section
of employee annuity be rounded to the applications and our processing of court 838.222(d) provides that payments to the
nearest whole dollar. Although the gross orders directed at employee annuities. former spouse and withholding from the
amount of an employee annuity is The distinctions among procedures, employee annuity will begin on time,
always in whole dollars, the amount requirements and terminology are even if the information is not provided
paid to the employee after deductions discussed in connection with § 838.102. to the retiree before the annuity
usually is not. Rounding the former Section 838.201 lists the topics covered withholding begins.
spouse benefit to the nearest dollar by subpart B and contains cross Section 838.224 provides procedures
appears to serve no useful purpose. references to related regulations. that the employee or retiree must follow
Section 838.134 states the order of Section 838.211 regulates when a to dispute the validity of the court order.
precedence for honoring court orders former spouse’s share of employee The burden is on the employee or retiree
when we receive more than one court annuity becomes available for payment to obtain a court order invalidating the
order affecting one employee or retiree. and the maximum amount payable to a court order submitted by the former
This section does not change the current former spouse. These rules are spouse. The proper forum for deciding
unchanged from the current regulations, issues relating to the validity of court
rules. Except for court orders that make
§§ 831.1706 and 841.905 of title 5, Code orders is the courts, not Federal
prohibited modifications of survivor
of Federal Regulations. administrative proceedings. Paragraphs
annuity provisions (i.e., modifications
Section 838.211(c] regulates when a 838.224 (a) and (b) require the retiree to
that are ineffective under sections
court order prevents a retiree from submit all challenges to the validity of a
8341(h)(4] and 8445(d) of title 5, United
waiving his or her annuity under section court order to the court for adjudication.
States Code], the last court order
8345(d] or 8465(a) of title 5, United Section 838.225 regulates processing
concerning any former spouse
States Code. Our rule has always been amended court orders. Amended court
supersedes all earlier court orders
that waiver is permitted until the court orders are processed as new court
affecting that former spouse. For cases
order has affected the annuity. Under orders. Paragraph (b) clarifies the rule
involving more than one former spouse,
CSRS, the court order affects an annuity for collection of amounts past due or
the court order issued first has priority.
only after expiration of the 30-day notice correcting excessive payments under
Section 838.134(c) provides the rules that period during which the retiree can file S 831.1711(a)(2) or § 841.910(b)(1) of title
we will follow if the employee or retiree
an objection to give reasons that OPM 5, Code of Federal Regulations. To have
and the former spouse obtain conflicting
should not honor the court order. OPM collect an arrearage or correct for
court orders. The rules for determining
Accordingly, S 831.1706(b] of title 5, excessive payments the court order
which court order we must follow
Code of Federal Regulations, ends the must expressly tell us to take that
provide that we will honor the
right to waive at the end of the 30-day action, tell us the total amount of the
determination by courts of the notice period. Under FERS and the adjustment, and tell us how much of the
employee’s domicile (as shown by oiu* proposed regulations, the court order adjustment should be made each month.
records] in preference to the courts of
affects the annuity when we receive the Section 838.231 regulates the
any other jurisdiction and we will honor court order. Accordingly, S 841.905(b) of commencing date of payments to the
a later determination in preference to an title 5, Code of Federal Regulations, and former spouse. Section 838.231(a]
earlier one. The former is appropriate § 838.221(c) terminate the right to waive provides that the former spouse’s share
because the courts of the employee's or the employee annuity at that time. of an employee annuity begins to accrue
retiree’s domicile have the best claim to Section 838.221 states the application on the first day of the second month
jurisdiction over his or her property, requirements that a former spouse must after we receive a court order
including the employee annuity. The meet. The requirements are the same as acceptable for processing. The statute
latter is appropriate because the latest the current FERS requirements under does not provide a commencing date.
court order is presumably issued with § 841.905 of title 5, Code of Federal This commencing date corresponds to
knowledge of all earlier court orders and Regulations. The only difference from the earliest commencing date permitted
is intended to supersede them. the CSRS requirements under § 831.1705 by statute for a survivor annuity based
Section 838.135 eliminates the former of title 5, Code of Federal Regulations, is on a court order under sections
spouse's option under § 831.1718 of title that the former spouse must provide the 8341(h)(3)(A) and 8445(c)(1) of title 5,
5, Code of Federal Regulations, to have employee’s mailing address if the court United States Code. This commencing
us honor an agreement between an order affects the benefits of someone date is the same as is used in the current
employee or retiree and the former who is still an employee. Under the FERS regulations under § 841.910(b)(2)
spouse that gives the former spouse a CSRS regulations, we do not process of title 5, Code of Federal Regulations.
smaller portion of the employee’s or court orders until benefits become Section 838.231(b) regulates the
retiree’s benefits than the former spouse payable. Under the current FERS commencing dates of accrual and
would receive under the court order. regulations and the proposed payment of the former spouse’s share of
The current regulation should be regulations, we need the employee’s an employee annuity when the former
changed because it is inconsistent with mailing address because we process the spouse submits an incomplete
OPM’s role of merely following the court court order upon receipt In processing a application. Former spouses frequently
instructions. If the employee or retiree court order, we send information to the submit copies of court orders that do not
and the former spouse agree on an employee. bear original court certifications, and
amount other than the one that we Sections 838.222 and 838.223 provide therefore, do not satisfy the
determine must be paid in accordance procedures for our processing of coiui requirements of S 838.221. We also
with these regulations based on the orders. The procedures eliminate the receive applications lacking other
terms of the court order, they must delays in payments to the former spouse documents required by that section for
obtain an amended court order and streamline our handling of court proving validity of the court order.
124 Federal Register / Vol. 57, No. 1 / Thursday, January 2, 1992 / Proposed Rules
Section B38.231(b) provides that the only Section 838.234 provides the special guidelines I.A and I.C of appendix A to
document necessary to begin accrual of requirements applicable to a court order subpart Q of part 831 of title 5, Code of
the former spouse’s share of the that directs us to collect an arrearage. Federal Regulations. Our policy not to
employee annuity is a copy of the court The special requirement is discussed in compute lengths of time smaller than
order, even if that copy is not an original connection with § 838.225. months is based on section 8332 of title
court certified copy. However, we Section 838.235 states how we will 5, United States Code, that allows credit
cannot pay accrued benefits to the pay lump-sum awards from employee for service for years or twelfth parts
former spouse until we have received all annuity. If the court specifies the thereof. We will not honor requests that
the required documentation. If monthly rate of payment, we will use we calculate smaller units of time.
necessary, we will make a retroactive that rate. Otherwise, we will withhold at Section 838.243 duplicates the
payment to the former spouse covering the rate of 50 percent of the gross minimum amount of a former spouse’s
annuity that accrued after we receive a annuity at the time that payments start. share of employee annuity requirement
copy of the court order but prior to our Payments will continue at the same rate established in § 838.133 of these
receipt of all necessary documentation. until the lump sum has been paid. regulations.
No Federal statute authorizes State Subpart C states the requirements that
Section 838.232(a} restates the
courts to delay or stop annuity a court order directed at employee
requirement under § 831.1713(d) or
payments. We are required by sections annuity must satisfy to qualify as a
§ 841.912(b) of title 5, Code of Federal
8345(a) and 8463 of title 5, United States court order acceptable for processing.
Regulations, that we must suspend a
Code, to pay employee annuity monthly. Each section is structured to exclude
former spouse's share of an employee
Sections 8345(j) and 8467 of title 5, court orders that do not satisfy the
annuity if the employee annuity is
United States Code, authorize State requirements of that section. This
stopped. Section 838.232(b) provides an
courts in certain situations to direct structure is designed to allow us to point
exception to the suspension requirement
payment to someone other than the to specific regulatory language that
to curb abuses by retirees.
retiree but not to stop payments. Section expressly states that a court order that
Section 838.233 regulates the 838.236 states this statutory prohibition does not contain a necessary provision
termination of the former spouse's share against court orders seeking to stop is not acceptable for processing. Unless
of an employee annuity. It does not payments that we are required to make. a specific regulation declares a court
change current practice. Paragraph (a) Section 838.237 changes the order not acceptable, the court order is
provides for termination in accordance procedures that we will follow upon the acceptable for processing.
with the terms of the court order. death of the former spouse. Currently, Section 838.302 clarifies that court
Paragraph (b) provides for termination § 831.1712 of title 5, Code of Federal orders that contain language that make
as soon as possible after we receive a Regulations, requires us to contact the it impossible for us to process the court
court order invalidating the court order State court when the former spouse dies. order while maintaining our ministerial
submitted by the former spouse. If we At that time, we request the State court role are not acceptable for processing.
receive the court order at least 20 days to provide additional instructions for the Section 838.302(a) defines as
before the end of the month we disposition of the former spouse portion unprocessable all court orders labeled
generally can stop the next check of the employee annuity. Only a court “qualified domestic relations order” or
(which is for annuity accruing during the order issued after the death of the issued on ERISA forms. Such a court
month in which we received the court former spouse meets the requirements of order demonstrates on its face that the
order). If we receive the court order the current regulation. Section 838.237 court does not understand that CSRS
when there are fewer than 20 days left changes our approach to eliminate our and FERS are not covered by ERISA.
in the month, we will not stop the check involvement in the process. We will no More importantly, the court order itself
for the month in which we receive the longer solicit additional instructions proves that our necessary presumption
court order, but the former spouse's from the court or require an after-death that the court is familiar with these
share of the employee annuity will cease court order to resolve entitlement. regulations and that the court used the
accruing at the end of that month. Unless that court order includes express terms defined by these regulations
Paragraph (c) provides that a court order instructions telling us what to do with intending those terms to have the
becomes ineffective when an amended the former spouse's share of the meaning assigned by these regulations is
court order that supersedes it becomes employee aimuity when the former incorrect. Accordingly, we cannot
effective. Paragraph (d) provides that if spouse dies, the former spouse’s share process such a court order.
the retiree dies, the former spouse’s reverts to the employee upon the death Section 838.302(b) also defines as
share stops when annuity to the retiree of the former spouse. The limitations on unprocessable court orders that attempt
stops, effective at the end of the month whom we will pay after the death of the to award a former spouse a portion of
before death. No Federal statute gives former spouse that currently exist under an employee aimuity that continues
State courts any authority over accrued, § 831.1712 of title 5, Code of Federal after the death of the employee. Our
unpaid annuity that would have been Regulations, would continue under system provides only two types of
due the retiree for the part of the month § 838.237. benefits, employee annuities that are
in which the retiree dies. We must pay it Section 838.241 states that we add payable to the employee and terminate
in accordance with the order of cost-of-living adjustments to annuities in at the employee's death and survivor
precedence in section 8342 or section accordance with section 8340 or section annuities that are payable to the
8424 of title 5, United States Code. For 8462 of title 5, United States Code. If the employee’s survivors after the
cases in which the former spouse court wants us to apply a different rate employee's death. Sections 8345(j) and
predeceases the retiree, paragraph (e) or add them at a different time, the court 8467 of title 5, United States Code,
provides that unless the court order order must include specific instructions. permit a State court to redirect
expressly provides otherwise, accrual of Section 838.242 states the current rules payments that would otherwise be made
the former spouse's share ceases at the that we use to calculate lengths of to a former employee to a former
end of the month before the former service in evaluating formulas used in a spouse, but our system does not allow
spouse dies. court order. The current rule is in the State court to partition the employee
Federal Register / Vol. 57, No. 1 / Thursday. January 2, 1992 / Proposed Rules 125
annuity to create a separate annuity that (§ 831.1704(b) of title 5, Code of Federal evaluating a formula. Both of these
can continue independent the Regulations), we will pay the former provisions arise from our concern about
employee’s continued entitlement to the spouse if the court order directs us to the types of salary rate information that
employee annuity. Only a survivor pay, or if the court order is neutral will be available under the Federal
annuity can continue after the death of concerning the source of payment, or if Employees Pay Comparability Act of
the employee. the court order directs the retiree to pay 1990, section 529 of Ihiblic Law 101-509,
Our current guidelines provide that and the retiree does not object to our enacted November 5,1990, especially,
unless the court order clearly and paying directly. Under the current FERS information about locality pay
specihcally provides that it is awarding regulation (§ 841.903(b) of title 5, Code differentials under section 5305 of title 5,
an annuity that begins after the death of of Federal Regulations), we will pay the United States Code. Section
the employee or retiree, rather than a former spouse unless the court order 838.622(b)(2) contains a list of items that
continuation of the former spouse's expressly directs us not to pay the courts should feel comfortable in
share of the employee annuity—a former spouse directly. Under both of expecting us to evaluate. Courts should
continuation not authorized by statute— these approaches, we acted in an be wary about expecting us to evaluate
the court order is not acceptable. How adjudicatory role. Considering that most variables that require us to Hnd
that distinction affects the use of these of the court orders that we currently information not on the list. Section
regulations is discussed in the section of accept are neutral concerning the source 838.622(e) provides that a court order is
this supplementary information of payments and we do not wish to not acceptable for processing if it directs
concerning preparing a court order. This needlessly require former spouses to us to adjust the salary component of an
approach is justified for a number of return to court to correct technical annuity computation by an amount other
reasons. Continuing the spouse's portion deficiencies in court orders, we will than one of the four factors listed in the
of an employee annuity after the death continue to accept court orders that are paragraph.
of the employee is a product of ERISA neutral concerning who is to make the Section 838.306 provides that a court
which permits a permanent partition of payments. Nevertheless, we strongly order that awards the former spouse a
an employee annuity. As previously recommend that court orders expressly percentage or fraction of the employee
discussed, CSRS and FERS are exempt direct 0PM to pay the former spouse annuity or gives us a formula for
from ERISA and do not permit partition directly. Court orders that direct the computing the amount of the former
of an employee aimuity. Our statutes retiree to pay the former spouse are not spouse's share of the employee annuity
only permit payment that would acceptable for processing. must use as a base for our computation
otherwise be made to a former employee Section 838.305 states the the self-only, gross, or net annuity and
to be redirected to the former spouse. requirements for specifying how much of must provide us with a way to tell which
We must also be assured that the court the employee annuity is payable to the of these three types of annuity to use.
understood that the award of a survivor former spouse. The section continues the
Subpart D regulates the procedures
benefit results in a reduction of the current requirements of §§ 831.1704(b)
applicable to court orders directed at
employee’s annuity. A court order that and 841.903(b) of title 5, and guidelines
refunds of employee contributions. Its
implies that partition of an employee I.C and VI of appendix A to subpart Q of
structure is similar to subpart B, which
aimuity is permitted demonstrates that part 831 of title 5, Code of Federal
contains the corresponding rules for
the court is not familiar with the Regulations, with one exception. The
employee annuity. Sections 838.401,
requirements of these regulations. Thus, current guidelines (guideline VI.A.2 of
838.411, 838.421, 838.423 through 838.425,
we must be able to rely on famiUarity to appendix A to subpart Q of part 831 of
and 838.441 correspond to §§ 838.201,
make our function of executing court title 5, Code of Federal Regulations)
838.211, 838.221, 838.222 through 838.224
orders in accordance with these provide one exception to the general
and 838.242, respectively.
regulations ministerial. rule that we “will not research,
Unlike annuities that are paid each
We have, in the past, interpreted interpret, or apply State laws regarding
month, refunds of employee
language that attempted to award the community or marital property rights or
contributions are paid only once and
former spouse a portion of the employee divisions.” The exception in current
they extinguish any entitlement to a
annuity that would continue after the guidelines requires us to apply State law
deferred annuity benefit. After the
death of the employee as providing a to determine whether disability
portion of the employee annuity that retirement benefits are subject to refund is paid, no funds are left to
terminates at the employee's death. division as marital property upon satisfy a court order.
However, such an interpretation would divorce. Section 838.305 abolishes that Section 838.422 regulates the time
not be consistent with our limited exception and applies the general rule to limits for a former spouse to file an
ministerial role under these regulations. all court orders. Unless the court order application for a court order to affect a
The number of court orders affected by expressly directs us not to apply it to an refund of employee contributions. The
this provision should be negligible. employee annuity based on disability, time limits are the same as currently
Section 838.303 requires that the court we will apply the court order to any apply under § 831.2009 of title 5, Code of
order identify the retirement system and employee annuity payable. If State law Federal Regulations. We must generally
state that the former spouse is entitled does not permit ^vision of disability receive the court order no later than the
to a portion of the employee annuity. retirement benefits until the retiree last day of the second month before we
This requirement is derived from current reaches age 62, and the court wants pay the refund; however, if the former
regulations, §§ 8311704(a) and OPM to follow the State rule, the court spouse indicates on the form for spousal
841.903(b) of title 5, Code of Federal order must state that it does not apply to notification of a refund application that
Regulations. disability retirement benefits until the he or she is submitting a court order, the
Section 838.304 changes the current retiree reaches age 62 and provide court order is timely filed if we receive it
rule on the degree of specificity required sufficient instruction for dividing the no later than 20 days after we receive
for a court order to direct us to pay the employee annuity after age 62. the form for spousal notification of a
former spouse s share of an employee Section 838.305 (b)(2) and (e) contain refund application.
annuity directly to the former spouse. new material concerning the information Section 838.431 provides a remedy for
Under current CSRS regulations that courts can expect us to locate in former spouses who are harmed by not
126 Federal Register / Vol. 57, No. 1 / Thursday. January 2, 1992 / Proposed Rules
receiving notice of an application for a toward the benefit paid by OPM. This is Under the current guidelines, “military
refund of employee contributions. This necessary for two reasons. A practical service” excludes such periods of
section continues the current rule under reason is that we would not be able to civilian employment “except where the
§ 831.2009(f) of title 5. Code of Federal compute benefits based on a retirement exclusion of such civilian service would
Regulations. system administered by another agency. be manifestly contrary to the intent of
Section 838.432 states the statutory The legal reason is that no court order the court order.” This change is
requirement under sections 8342(j) and authorizes OPM to pay a portion of the necessary because exercising judgment
8424(b) of title 5, United States Code, retiree annuity to the former spouse. to determine whether “the exclusion of
that a State court may prevent the Section 838.612 contains information such civilian service would be
payment of a refund of employee about provisions used to identify manifestly contrary to the intent of the
contributions only if a court order employee annuities or refunds of court order," would be inconsistent with
entitles the former spouse to a portion of employee contributions to satisfy the limiting our role in executing court
the employee annuity or to a former requirements of § 838.303 or § 838.502 of orders to perform the ministerial
spouse survivor annuity. The current these regulations. Section 838.612 function of carrying out the court’s
regulation implementing that statute is continues the current rules under instructions. Our experience has shown
§ 831.2009(g) of title 5. Code of Federal guideline IV of appendix A to subpart Q that the court usually intends to include
Regulations. of part 831 of title 5, Code of Federal this civilian service in each element of
As subpart C states the requirements Regulations. Paragraph (a) lists terms the computation: therefore, we drafted
that a court order directed at employee that are usually used to identify any the regulation to implement what has
annuity must satisfy to qualify as a type of retirement benefit actually paid. been the court’s most likely intent.
court order acceptable for processing, Although the literal meaning of some of Again, we must assume that, unless the
subpart E contains similar rules for the terms lifted in paragraph (a), such as court provides its own definition, the
court orders directed at refunds of “pensions” or “annuities,” would not court will use the term as we have
employee contributions. Its structure is include lump-sum distributions, such as defined it here.
similar to subpart C. Sections 838.501, refund of employee contributions, our Section 838.624 contains information
and 838.502 through 838.504 correspond experience has shown that these terms about how we will treat court orders
to §§ 838.301, and 838.303 through are broadly used to identify all that contain inconsistent instructions for
838.305, respectively. retirement benefits payable. determining the amount of former
Section 838.505 implements the
Accordingly, we will continue to accept spouse's share. It continues the current
statutory requirements for barring
these terms as affecting both employee rules under guidelines I.E. and I.C.2 of
payment of a refund of employee
annuities and refunds of employee appendix A to subpart Q of part 831 of
contributions that are stated in section
contributions. Paragraph (b) lists terms title 5, Code of Federal Regulations.
8342(j) or section 8424(b) of title 5,
used to describe lump-sum awards, that Section 838.625 contains lists of terms
United States Code. A court order can
is, awards either of a specified amount that are synonymous with the types of
prohibit payment of a refund of
that are usually based on the amount of annuity defined in § 838.103. The terms
employee contributions only if it awards
the employee contributions (rather than may be used to satisfy the requirements
a former spouse a portion of employee
on the amount of an employee annuity) of § 838.306 of these regulations. Section
annuity, or a former spouse survivor
or payable only from refunds of 838.625 continues the current rules under
annuity, that would be extinguished by
employee contributions. guideline II of appendix A to subpart Q
payment of the refund of employee
Section 838.621 establishes a new of part 831 of title 5, Code of Federal
contributions.
Subpart F explains our understanding term, “prorata share,” for the most Regulations.
of terms frequently used in court orders common type of formula used to divide Subpart G regulates the procedures
directed at employee annuities or retirement benebts. Court orders that applicable to court orders awarding
refunds of employee contributions and use this term are instructing us to divide former spouse survivor annuities. Its
states whether use of the term will the benefits in accordance with the structure is similar to subpart B that
satisfy specific requirements of subpart formula provided in paragraph (a). The contains the corresponding rules for
C or subpart E. When we process court section also identifies other terms that court orders awarding a portion of an
orders, we must assume that courts are award a “prorata share.” employee annuity. Sections 838.701,
familiar with the meanings assigned to Section 838.622 contains information 838.721 through 838.724, and 838.735
the terms defined in this subpart and about cost-of-living and salary correspond to §§ 838.201, 838.221
have used the terms in the way assigned adjustments that can be altered by through 838.224, and 838.241,
by subpart F. provisions in court orders. It continues respectively.
Section 838.611 contains information the current rules under guidelines I.A Section 838.711 states the statutory
about provisions that attempt to identify and I.B of appendix A to subpart Q of maximum amount that we may pay as a
the retirement system to satisfy the part 831 of title 5, Code of Federal former spouse survivor annuity. The
requirements of $ 838.303 or 9 838.502 of Regulations. total of all monthly survivor annuities
these regulations. Section 838.611 Section 838.623 contains information payable to the widow or widower and
continues the current rules under about terms used in court orders that all former spouses (except for the former
guideline V of appendix A to subpart Q attempt to describe periods of service or spouse survivor annuities authorized by
of part 831 of title 5, Code of Federal tell us how to compute lengths of service section 4(b) of CSRSEA) may never
Regulations. The court order must for use in formulas. It continues the exceed 55 percent of the employee
clearly provide that it affects CSRS or current rules under guidelines I.D, I.F, annuity under CSRS or 50 percent of the
FERS benehts. Court orders that award and III of appendix A to subpart Q of employee annuity under F^S. The
benehts paid by agencies other than part 831 of title 5, Code of Federal definition of former spouse survivor
OPM, most commonly military retired Regulations, except that the definition of annuity in § 838.103 includes the basic
pay paid by the Department of Defense, “military service” has been changed to employee death benefit as defined in
are not acceptable even if the other include periods of civilian employment § 843.102 of title 5, Code of Federal
benefit terminates to allow credit with military agencies. Regulations.
Federal Register / Vol. 57, No. 1 / Thursday, January 2, 1992 / Proposed Rules 127
Section 838.725 states the statutory widower) or other former spouse would for evading the statutory prohibition
provision in section 8341(h)(4) or section begin to receive a survivor annuity after against modification.
8445(d) of title 5. United States Code, the former spouse loses entitlement. Section 838.807 states the current
declaring ineffective court orders that, Section 838.734 states the rule that requirement under guideline III.C of
after the employee retires or dies, 0PM will not honor court orders that appendix B to subpart Q of part 831 of
modify any provision in a court order award lump-sum payments (other than title 5, Code of Federal Regulations, that
concerning a former spouse survivor the FERS basic employee death benefit) the cost of providing the survivor
annuity. This subject is covered in more to a former spouse upon the death of an annuity must be taken from the
detail by § 838.806. employee or retiree. employee annuity or the former spouse’s
Section 838.726 establishes as a Subpart H regulates the requirements share of the employee annuity. If the
regulation for the first time our existing applicable to court orders awarding court order directs us to take the cost
policy for handling employee and retiree former spouse survivor annuities. Its from the former spouse’s share of the
election rights in cases in which a structure is similar to subpart C, which employee annuity and the former
former spouse is entitled to a former spouse’s share of the employee annuity
contains the corresponding rules for
spouse survivor annuity. It provides that is sufficient to pay the entire cost, we
court orders awarding a portion of an
court orders affect our authority to pay will take the cost from the former
employee annuity. Sections 838.801,
benefits based on employee elections spouse’s share of the employee annuity.
838.803, and 838.805 correspond to
but do not affect the employee or Otherwise, the entire cost to provide the
§§ 838.301,838.302, and 838.305,
retiree’s rights to make survivor annuity former spouse survivor annuity must be
respectively.
elections. For example, a married taken from the employee annuity in
Section 838.802 states the statutory
employee who at the time of retirement accordance with section 8339(|) or
requirements under CSRS that a court
has a former spouse who is entitled to section 8417(a) of title 5, United States
order may award a former spouse
the maximum former spouse survivor Code.
survivor annuity only if the marriage
annuity by court order must elect (under Subpart 1 explains our understanding
terminated on or after May 7,1985, and,
§ 831.604 or § 842.604 of title 5, Code of of terms frequently used in court orders
if the retiree retired before May 7,1985,
Federal Regulations) a reduced annuity awarding former spouse survivor
the former spouse was the beneficiary of
to provide a current spouse survivor annuities and states whether use of the
a reduced annuity to provide a current
annuity to the spouse at the time of terms will satisfy specific requirements
retirement unless that spouse consents spouse survivor annuity on May 7,1985. of subpart H. When we process a court
to a different election. The employee These requirements result from section order, we must assume that the court is
annuity is reduced based on the court 4(a)(1) of CSRSEA, which controls the familiar with the meanings assigned the
order that awards the former spouse effective date of section 8341(h) of title terms defined in this subpart and have
survivor annuity. No additional 5, United States Code, the statutory used the terms in the way assigned by
reduction is necessary based on the authority for State court orders that this subpart.
election for the spouse at retirement award former spouse survivor annuities. Section 838.911 is similar to § 838.611
because that spouse will not receive a Section 838.804 states the requirement in most respects. It sets a similar
benefit as long as the former spouse’s that a court order must expressly award standard for provisions in court orders
entitlement under the court order a former spouse survivor annuity or that attempt to identify the retirement
continues. The benefit for the current expressly direct an employee or retiree system to satisfy the requirements of
spouse is discussed under § 838.733. to elect to provide a former spouse § 838.804 of these regulations. The only
Sections 838.731 and 838.732 survivor annuity. This continues the noteworthy difference is the effect that
implement statutory requirements under current requirement of § 831.1704(d) of we accord the term "maintain.” We
section 8341(h)(3) or section 8445(c) of title 5 and guideline II of appendix B to treat a provision in a court order that
title 5, United States Code, for subpart Q of part 831 of title 5, Code of requires a retiree to "maintain" the
commencing and terminating former Federal Regulations. Sections 838.303 survivor annuity coverage that the
spouse survivor annuities. and 838.304 are the corresponding former spouse had prior to the divorce
Section 838.733 establishes as a sections applicable to employee annuity. as sufficient to identify our benefits if
regulation for the first time our existing Section 838.806 contains the special the former spouse would have been
policy for determining the rights of a requirements applicable to an amended entitled to a survivor annuity as the
current spouse as defined in §§ 831.603 court order. Sections 8341(h)(4) and widow or widower except for the
or 842.602 of title 5, Code of Federal 8445(d) of title 5, United States Code, do divorce. For example, in the case of a
Regulations, for whom the retiree not allow us to accept court orders that post-retirement divorce, the retiree must
elected a reduced annuity to provide a contain modified provisions affecting have elected to provide a survivor
survivor annuity, or a former spouse survivor annuities if the modification is annuity for the spouse. Section 838.911
with a court order that cannot be issued after the retirement or death of continues the current rules under
honored because of a higher priority the employee. We explained these guidelines II and III.A of appendix B to
court order when a former spouse with statutory provisions in detail (at 53 FR subpart Q of part 831 of title 5, Code of
entitlement to a former spouse survivor 29057, August 2,1988, and 53 FR 46895, Federal Regulations. The court order
annuity by court order loses that December 5,1988) when we issued must clearly provide that it awards
entitlement. If the former spouse loses §§ 831.1704(e) and 841.903(d) of title 5, survivor annuity benefits paid by OPM.
entitlement while the retiree is living, Code of Federal Regulations. Section Court orders that award survivor
the annuity reduction would 838.806 continues to treat as prohibited annuity benefits paid by other agencies,
automatically continue to provide a modifications the same amended court most commonly military retired pay paid
survivor annuity to the current spouse or orders that were prohibited under by the Department of Defense, are not
other former spouse. If the former §§ 831.1704(e) and 841.903(d). In acceptable even if the other benefit
spouse loses entitlement after the death addition, § 838.806 establishes standards terminates to allow credit from the other
of the retiree, the spouse at retirement for determining whether orders that benefit to be counted toward the benefit
(if he or she qualifies as a widow or vacate or set aside divorces are pretexts paid by OPM.
128 Federal Register / Vol. 57. No. 1 / Thursday, January 2, 19% / Proposed Rules
Section 838.912 corresponds to . , on a retiree's election to provide a annuity under this provision is effective
§ 638.612 in the sense that it contains survivor annuity for a new spouse and the employee annuity will be
information about provisions used to because the election is an event that will restored to the unreduced rate (unless a
identify former spouse survivor be documented in normal 0PM files, but reduction is still required as a result of
annuities to satisfy the requirements of a court order may not authorize a another court order or the retiree's
§ 838.804 of these regulations, just as reduction in the amount of a former election) effective on the first day of the
§ 838.612 contains information about spouse survivor annuity based on an month after OPM receives the election.
provisions concerning employee employee's or retiree's remarriage Section 838.933 contains information
annuities or refunds of employee because the remarriage is not an event about terminology used to describe the
contributions to satisfy the requirements that will be documented in normal OPM source of payment of the cost of a
of § 838.303 or § 838.502 of these files. As under the current guideline, former spouse sxuv'ivor annuity. It
regulations. However, as under current only the reduction opportunity is continues the current rule under
rules, the standards for identifying nullified; we treat the court order as guideline III.C of appendix B to subpart
survivor annuities are stricter than the awarding a former spouse survivor Q of part 831 of title 5, Code of Federal
standards for identifying employee annuity because that is the probable Regulations, tiiat court orders that
annuities or refunds of employee intent of the court. unequivocally award former spouse
contributions. Section 838.912 continues Section 838.922 establishes the new survivor annuities and direct the former
the current rules under guidelines i and term, “prorata share,” for the most spouse to pay the costs are acceptable
II1.B of appendix B to subpart Q of part common type of formula used to divide to award a former spouse survivor
831 of title 5, Code of Federal survivor annuity benefits, as S 836.621 annuity but the cost must be paid in
Regulations. Also, if the court order did for court orders dividing employee accordance with § 838.807 of these
awards the former spouse a survivor annuities. Court orders that use this regulations. On the other hand, court
annuity under the statute authorizing term instruct us to divide the benefits in orders that award a former spouse
survivor annuities to a person with an accordance with the formula provided in survivor annuity conditioned upon the
insurable interest in certain retirees, paragraph (a). The section also former spouse paying the cost are not
applicable statutes do not authorize us identifies other terms that award a acceptable unless the former spouse is
to comply with the court order. As in “prorata share.” also entitled to a sufficient portion of the
§ 838.611, the term, “maintain" is Section 838.931 continues our current employee annuity to cover the cost.
accorded special significance if the practice, which has not previously been Subpart J contains the current CSRS
former spouse is covered prior to the included in the regulations, concerning a regulations that will continue to apply to
divorce. divorce decree that provisionally court orders that are currently on file
Section ^8.921 contains information awards a former spouse survivor and that we receive prior to January 1.
about terminology used to describe the annuity until further order of the court 1993.
amount of a former spouse survivor can be acceptable. Such a court order
Paperwork. Reductk>n Act
annuity. Paragraph (a] continues the provides a survivor annuity imtil the
current rule under guideline IlLE of court issues a court order acceptable for The information collection
appendix B to subpart Q of part 831 of processing that changes it. However, if requirements contained in f § 836.221,
title 5, Code of Federal Regulations, that the new court order is issued after the 638.421, and 838.721 have been
court orders that award a former spouse employee retires or dies, it cannot submitted to the Office of Management
survivor annuity, but do not contain effectively change or terminate the and Budget for approval in accordance
express instructions for determining the provisional award. If the divorce occurs with the requirements of the Paperwork
amount of the former spouse survivor after the employee retires, section Reduction Act. It is estimated that there
annuity, award the maximum amount 8341(h] or section 8445 of title 5, United will be approximately 7000 responses
available. Paragraph (b) continues the States Code, does not permit us to annually, with an estimated average
current rule under guideline 111.D of accept a court order changing or burden of 6 minutes per response, for a
appendix B to subpart Q of part 831 of terminating the provisional award. total annual burden of 700 hours.
title 5, Code of Federal Regulations. The Effectively, that makes tlie provisional Comments regarding these proposed
rule is that a court order that provides award permanent collections of information through the
that the former spouse will keep or that Section 836.932 changes the rule under letters of application should be sent to
the retiree will maintain the survivor guideline ni.G of appendix B to subpart the Office of Information and Regulatory
annuity to whi<di the former spouse was Q of part 831 of title 5, Code of Federal Affairs, Office of Management and
entitled before divorce awards a former Regulations, that court orders cannot Budget, Washington, DC 20503,
spouse survivor annuity in the same authorize former spouses to exercise a Attention: Joseph Lackey, Desk Officer
amount as the former spouse had at the right to elect a former spouse survivor for the Office of Personnel Management.
time of divorce. Paragraph (c) restates annuity. The current guideline, under Comments should be received on or
the rule under guideline IU.F of which the election ri^t is nullified and before March 3,1992. All other
appendix B to subpart Q of part 831 of the court order is treated as comments should be sent to OPM as
title 5, Code of Federal Reg^ations, that unequivocally awarding a former spouse instructed above under "ADDRESSES.
the minimum former spouse survivor survivor annuity, deviates farther than
E.0.12291. Federal Regulation
annuity is $1 per month and that cost of necessary from the instructions of the
living increases must be added to court. Under § 638.932, a court order I have determined that this is not a
survivor annuities. Paragraph (d) providing for such an election awards a major rule as defined under section 1(b)
continues the current rule under former spouse survivor annuity until the of RO. 12291. Federal Regulation.
guideline III.G of appendix B to subpart former spouse notifies OI^ otherwise
Regulatory Flexibility Act
Q of part 831 of title 5, Code of Federal in a form prescribed by OPM. If the
Regulations, that a court order may former spouse elects no survivor I certify that this regulation will not
authorize a reduction in the amount of a annuity, the election ra irrevocable. A have a significant economic impact on a
former spouse survivor annuity based former spouse's election of no survivor substantial number of small entities