Federal Employees Retirement SystemOpen Enrollment Act Implementation

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 846

RIN 3206-AG96

Federal Employees Retirement System--Open Enrollment Act

Implementation

AGENCY: Office of Personnel Management.

ACTION: Interim rule with request for comments.

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SUMMARY: The Office of Personnel Management (OPM) is issuing interim

regulations to implement the Federal Employees Retirement System Open

Enrollment Act of 1997. These regulations provide information about who

may make open-enrollment-period elections and the procedures that

employees must follow to elect Federal Employees Retirement System

(FERS) coverage during the 1998 open enrollment period, and that

agencies must follow in advising employees about such elections of FERS

coverage and in processing such elections of FERS coverage.

DATES: Interim rules effective: June 18, 1998; comments must be

received on or before August 17, 1998.

ADDRESSES: Send comments to Mary Ellen Wilson, Retirement Policy

Division; Retirement and Insurance Service; Office of Personnel

Management; P.O. Box 57; Washington, DC 20044; or deliver to OPM, Room

4351, 1900 E Street NW., Washington, DC.

FOR FURTHER INFORMATION CONTACT: Harold L. Siegelman, (202) 606-0299.

SUPPLEMENTARY INFORMATION: Section 642 of the Treasury and General

Government Appropriations Act, 1998, Pub. L. 105-61, approved October

10, 1997, as amended by section 348 of the Department of Transportation

and Related Agencies Appropriations Act, 1998, Pub. L. 105-66, approved

October 27, 1997, is entitled the Federal Employees Retirement System

(FERS) Open Enrollment Act of 1997. It requires OPM to issue

regulations under which individuals who are employed by the Federal

Government and covered by the Civil Service Retirement System (CSRS) as

of January 1, 1998, may elect to become covered by FERS.

Subsection (c) of section 642 prescribes certain requirements for

the regulations. Elections must be made during the period beginning on

July 1, 1998, and ending on December 31, 1998. OPM must provide for

notice of the right to make the election including information on a

comparison of the benefits an individual would receive under CSRS or

FERS. Treatment of such an election must be ``similar to the applicable

provisions of title III of the Federal Employees Retirement System Act

of 1986 (Public Law 99-335; 100 Stat. 599 et seq.).''

These regulations implement the FERS Open Enrollment Act of 1997 by

clarifying who is eligible to make an election under the Act and by

establishing the procedures for making such an election. They assign to

employing agencies the obligation to provide statutorily-required

notice and, if requested, additional information, including a

comparison of benefits, to employees about their election rights. How

the employing agencies provide that notice is generally up to them. In

addition, the regulations provide for belated elections as a safety

valve for instances in which the agency fails to provide the

statutorily-required notice. If an agency denies a request to make a

belated election, the agency is responsible for defending the denial,

including the adequacy of its notice, before the Merit Systems

Protection Board (MSPB).

Generally, an election of FERS coverage is effective on the first

day of the pay period beginning after the date the election (and, in

cases affected by the former spouse consent requirement, the required

supporting documentation) is received by the employing office. This is

required under section 301(c) of the FERS Act and is reflected in

section 846.703 of these regulations. The regulation also provides that

an election cannot be effective before the beginning of the open

enrollment period on July 1, 1998. For employees whose pay period is

monthly and thus begins on July 1, the election is effective on August

1, the first day of the next pay period.

An election to be covered by FERS can be revoked anytime before it

has become effective. Thus, an employee who submits an election to be

covered by FERS prior to July 1, 1998, may revoke an election anytime

before the beginning of the first pay period beginning after July 1,

1998.

An employee who does not want to elect FERS coverage does not need

to file a completed election form. Although the SF 3109 does provide a

space for an affirmative election not to be covered by FERS, such an

election has no legal effect. To emphasize this, the regulations

specifically provide that an election not to become covered by FERS may

be revoked at any time during the open enrollment period by filing a

new election. Agencies have no obligation to maintain records of

elections not to become covered by FERS.

The Act provides that an individual must have been employed by the

Federal Government on January 1, 1998, to be eligible to make an open-

enrollment election. Because this statutory language is similar to the

language concerning who was eligible to participate in the 1987 open

enrollment period, we have interpreted the phrase ``employed by the

Federal Government'' to have the same meaning as it was given in the

1987 open enrollment period. Thus, anyone who (1) qualifies as an

employee under section 2105 of title 5, United States Code, (2) is

eligible for social security coverage, and (3) is not excluded from

FERS coverage may be eligible to make an election as provided in

section 846.711 of these regulations. This includes employees serving

under appointments generally excluded from CSRS coverage but not

excluded from FERS coverage, such as term appointments, as well as some

individuals who are treated as Federal employees for retirement

purposes, such as certain employees of the District of Columbia Courts.

It also includes employees serving under appointments generally

excluded under CSRS but who have CSRS coverage under section

831.201(b)(1) of Title 5, Code of Federal Regulations. Section

831.201(b)(1) provides that an employee serving in a position covered

by CSRS (other than an alien whose duty station is in a foreign

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country) retains CSRS coverage upon moving to employment in a position

in an excluded category if the move occurs without a break in service

(or after a separation of 3 days or less).

By statute, four groups of individuals who may be covered by CSRS

are not eligible to participate in the open enrollment opportunity.

These statutory exclusions are reflected in 846.712 and 846.713.

Section 846.712(a) excludes individuals employed by the government of

the District of Columbia except for certain groups of employees who are

permitted to be covered by FERS because by statute they are treated as

Federal employees for retirement purposes. The National Capital

Revitalization and Self-Government Improvement Act of 1997, title XI of

Public Law 105-33, 111 Stat. 251, allows FERS coverage for non-judicial

employees of the District of Columbia Courts and certain employees of

the District of Columbia Department of Corrections Trustee or the

District of Columbia Pretrial Services, Defense Services, Parole, Adult

Probation and Offender Supervision Trustee who meet the requirements of

section 831.201(g) of Title 5, Code of Federal Regulations. The

District of Columbia Financial Responsibility and Management Assistance

Act of 1995, Public Law 104-8, 109 Stat. 97, as amended, allows FERS

coverage for employees of the District of Columbia Financial

Responsibility and Management Assistance Authority who may make an

election under section 831.204 of Title 5, Code of Federal Regulations.

Section 846.712(b) excludes Members of Congress. Members were

eligible to participate in the 1987 open enrollment period; however,

section 348 of the Department of Transportation and Related Agencies

Appropriations Act, 1998, Pub. L. 105-66, approved October 27, 1997,

expressly excludes Members of Congress from the class of individuals

who can make an open-enrollment election.

Section 846.712(c) excludes individuals who are ineligible for

social security coverage. The definition of ``employee'' for FERS in

section 8401(11) of title 5, United States Code, permits only

individuals who are eligible for social security coverage to elect FERS

coverage.

Section 846.713 excludes individuals who are subject to the former

spouse consent requirement under section 301(d) of the FERS Act unless

they obtain the former spouse's consent or qualify for a waiver of the

consent requirement. The methods of proving consent or qualifying for a

waiver are discussed in connection with section 846.722, infra.

Section 846.721 establishes the actions that an eligible individual

must take to elect FERS coverage. Elections must be documented by a

completed SF 3109, the FERS Election of Coverage form, filed with the

employing office. However, any signed writing timely filed with the

employing office may be used as an election to establish the date of

the election, and thus the effective date of FERS coverage, as long as

the employing agency subsequently receives a completed SF 3109 to

confirm such election. For example, if an employee on leave without pay

or whose duty station is at a remote worksite, informs the agency by

letter that he or she elects FERS coverage, the letter constitutes a

valid election when confirmed with a completed SF 3109. The agency

should have the employee complete an SF 3109 and should process the

transfer of coverage effective at the beginning of the pay period after

it received the letter.

Generally, the right to elect FERS may only be exercised personally

by the employee. Section 846.721(b) provides the only exception. It

allows the survivor of a deceased employee to sign and file the

completed SF 3109 on behalf of a deceased employee as long as the

employee had made an election, as described in section 846.721(b).

Section 301(d) of the FERS Act prohibits an election by an employee

whose former spouse has filed with OPM certain court orders affecting

the employee's retirement benefits. This restriction applied to

elections during the 1987 open enrollment period and currently applies

to all elections upon reemployment. We believe it would be consistent

to apply such a restriction to elections during this open enrollment

period. Accordingly, section 846.722 provides that the existing

procedures applicable to the former spouse consent requirement

generally apply to elections during the open enrollment period. In

addition, the regulations provide for automatic approval of an

extension of the time limit for election of FERS coverage until June

30, 1999, upon filing (before January 1, 1999) with the agency of a

properly completed SF 3111, Request for Waiver, Extension or Search,

requesting an extension.

Section 846.723 implements the requirement in section 642(c)(2) of

the Act that OPM issue regulations to provide ``notice and information

to individuals who may make such an election, including information on

a comparison of benefits an individual would receive from coverage

under [CSRS] or [FERS].'' Since comparisons of benefits are always

unique to an individual employee, notice will be more effective if made

by employing agencies directly. Accordingly, the regulations delegate

to employing agencies responsibility to provide the required notice and

information. Agencies may determine the exact form of the notice. See

discussion of section 846.724(a) on belated elections and agency

responsibility for defending the adequacy of its notice in any case in

which it denies a request to make a belated election.

Unlike the 1987 open season, we are not requiring that agencies

distribute paper copies of the FERS Transfer Handbook to each employee,

but each eligible employee who does not receive a paper copy must have

ready access to the Handbook. The Handbook is accessible on the OPM

website at www.opm.gov/fers__election. The Handbook also will be

distributed to agencies on a CD-ROM that mirrors the website.

The Handbook will be the primary tool employees will use in making

their decisions. For most employees, reading the comparison of benefit

provisions under the two systems and some of the scenarios contained in

the Handbook will provide the information they need to make a decision.

A transfer model is available on the FERS Election Opportunities

page (www.opm.gov/fers__election) of OPM's website and will be on the

CD-ROM. This is a computer model that will allow employees to estimate

their projected benefits under CSRS and FERS based on assumptions

unique to each employee. As with the Handbook, it should be made

available for use by all eligible employees. The revised computer model

is a user-friendly, interactive, Windows-based version that

employees are able to use themselves to compare and contrast benefits

under both systems. If the employing office cannot make the transfer

model available to some employees, the agency is expected to make

available an equivalent CSRS/FERS benefits estimate upon request.

While counseling employees who request it and assisting them in

understanding how the systems affect their individual circumstances,

agencies should emphasize that the final decision on which system the

employee chooses is a personal one.

An agency decision that an employee is not eligible to elect FERS

coverage or an agency's refusal to accept a belated election must be in

writing and must notify the employee of the right to appeal the

decision to MSPB and the 30-day time limit applicable to such

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appeals. The employing agency is also responsible for defending such a

coverage decision at MSPB. Each agency should keep such documentation

that it considers appropriate for that purpose.

Since the statute expressly requires notice and, if requested,

other information concerning the election including a comparison of

benefits be provided to employees, the failure to provide these

materials is a basis for tolling the time limit for making the

election. See e.g., Davies v. OPM, 5 M.S.P.R. 199 (1981). Section

846.724 empowers agencies (subject to review by MSPB under section

846.725) to determine on a case-by-case basis whether they failed to

provide sufficient information to justify acceptance of a belated

election. The employing office may accept a belated election of FERS

coverage without time limit if the employing office determines that the

agency did not provide the notice required under section 846.723 in a

timely manner, the agency did not provide access to the FERS Transfer

Handbook to the employee in a timely manner, or the employee was

unable, for cause beyond his or her control, to elect FERS coverage

within the prescribed time limit. A belated election of FERS coverage

is effective on the first day of the pay period beginning after the

employing office receives the completed SF 3109, the FERS Election of

Coverage form. Neither agencies nor OPM has any statutory authority to

approve a retroactive effective date for belated elections of FERS

coverage.

Section 846.724 also continues the current rules concerning

correction of administrative errors. Failure to begin employee

deductions and Government contributions on the effective date of

coverage must be corrected in accordance with section 841.505 of Title

5, Code of Federal Regulations.

Section 846.725 establishes the procedures for appeal of decisions

affecting elections of coverage under FERS. A person whose rights or

interests concerning an election of FERS coverage are affected by the

agency's final decision may request MSPB to review the decision in

accord with procedures prescribed by MSPB. MSPB regulations relating to

appeals are contained in chapter II of Title 5, Code of Federal

Regulations.

Section 846.726 specifically delegates to agencies authority to act

as OPM's agent for receipt of employee communications relating to

elections of FERS coverage (i.e., any documents that employees are

required by these regulations to file with OPM). Such documents are

deemed received by OPM on the date that the employing office receives

them. Such delegations are authorized under section 1104 of title 5,

United States Code.

Under section 553(b)(3)(B) and (d)(3) of title 5, United States

Code, I find that good cause exists for waiving the general notice of

proposed rulemaking and for making this rule effective in less than 30

days. The notice is being waived and the regulation is being made

effective in less than 30 days so that the regulation can be

implemented in time to meet the statutory requirements of the Federal

Employees Retirement System Open Enrollment Act of 1997. That statute

requires the OPM to issue regulations under which individuals who are

employed by the Federal Government and are covered by CSRS as of

January 1, 1998 may elect to become covered by FERS. Such elections

must be made between July 1, 1998 and December 31, 1998. This rule is

being made effective in less than 30 days in order to establish timely

election procedures and allow the regulation to be of maximum

effectiveness and assistance for Federal agencies and employees

considering their election options.

E.O. 12866, Regulatory Review

This rule has been reviewed by the Office of Management and Budget

in accordance with E.O. 12866.

Regulatory Flexibility Act

I certify that this regulation will not have a significant economic

impact on a substantial number of small entities because the regulation

will only affect Federal employees and agencies and retirement payments

to retired Government employees and their survivors.

List of Subjects in 5 CFR Part 846

Administrative practice and procedure, Air traffic controllers,

Firefighters, Government employees, Law enforcement officers, Pensions,

Retirement.

U.S. Office of Personnel Management.

Janice R. Lachance,

Director.

Accordingly, OPM amends 5 CFR part 846 as follows:

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

COVERAGE

1. The heading of part 846 is revised to read as set forth above.

1a. The authority citation for part 846 is revised to read as

follows:

Authority: 5 U.S.C. 8347(a) and 8461(g) and Title III of Pub. L.

99-335, 100 Stat. 517; Sec. 846.201(b) also issued under 5 U.S.C.

7701(b)(2) and section 153 of Pub. L. 104-134, 110 Stat. 1321;

Sec. 846.201(d) also issued under section 11246(b) of Pub. L. 105-

33, 111 Stat. 251; Sec. 846.202 also issued under section 301(d)(3)

of Pub. L. 99-335, 100 Stat. 517; Sec. 846.726 also issued under 5

U.S.C. 1104; subpart G also issued under section 642 of Pub. L. 105-

61, 111 Stat. 1272.

2. Subpart G is added to read as follows:

Subpart G--1998 Open Enrollment Elections

Sec.

846.701 Purpose and scope.

846.702 Definitions.

846.703 Effective date of FERS coverage.

846.704 Irrevocability of an election of FERS coverage.

Who May Elect

846.711 Eligibility to elect FERS coverage during the 1998 open

enrollment period.

846.712 Statutory exclusions.

846.713 Former spouse consent requirement.

Election Procedures

846.721 Electing FERS coverage.

846.722 Former spouse's consent to an election of FERS coverage.

846.723 Agency responsibilities.

846.724 Belated elections and correction of administrative errors.

846.725 Appeal to the Merit Systems Protection Board.

846.726 Delegation of authority to act as OPM's agent for receipt

of employee communications relating to elections.

Subpart G--1998 Open Enrollment Elections

Sec. 846.701 Purpose and scope.

This subpart contains OPM's regulations applicable to elections of

FERS coverage during the 1998 open enrollment period, including--

(a) The requirements that an individual must satisfy to be eligible

to make an election; and

(b) The procedures that--

(1) Employees must follow to make an election;

(2) Agencies must follow in advising employees about making an

election and in processing employees' elections; and

(3) OPM will follow in cases subject to the former spouse consent

requirement.

Sec. 846.702 Definitions.

In this subpart--

Election means an election of FERS coverage during the 1998 open

enrollment period.

Former spouse consent requirement means the condition that must be

satisfied under section 301(d) of the FERS Act for an employee with a

former spouse to be eligible to elect FERS coverage.

[[Page 33234]]

Qualifying court order means a court order acceptable for

processing as defined in Sec. 838.103 of this chapter or a qualifying

court order as defined in Sec. 838.1003 of this chapter subject to the

following conditions:

(1) If OPM has not received (as explained in Sec. 838.131 of this

chapter) a copy of the court order and identifying information required

under Sec. 838.221(b)(3), Sec. 838.421(b)(3), Sec. 838.721(b)(1)(iii),

or Sec. 838.1005(b)(3) of this chapter prior to the date on which the

employing office receives the election to be covered by FERS, the court

order is not a qualifying court order.

(2) If the former spouse loses entitlement to all CSRS benefits

under the court order, the court order ceases to be a qualifying court

order.

Social security coverage means coverage under the Old Age,

Survivors, and Disability Insurance program under the Social Security

Act.

1998 open enrollment period means July 1, 1998, through December

31, 1998.

Sec. 846.703 Effective date of FERS coverage.

An election under this subpart is effective on the later of--

(a) The first day of the pay period beginning after the date the

election and any required supporting documentation is received by the

employing office; or

(b) The first day of the pay period beginning after July 1, 1998.

Sec. 846.704 Irrevocability of an election of FERS coverage.

(a) An election to be covered by FERS becomes irrevocable on the

date it becomes effective.

(b) If, during the 1998 open enrollment period, an employee files

an election on an SF 3109 to remain covered by CSRS, the employee may

revoke such an election by filing another election during the 1998 open

enrollment period.

Who May Elect

Sec. 846.711 Eligibility to elect FERS coverage during the 1998 open

enrollment period.

An employee who is not covered by FERS, and who was an employee on

January 1, 1998, and who is not otherwise ineligible for FERS coverage

(under subpart A of part 842 of this chapter or Sec. 846.722) may elect

FERS coverage during the 1998 open enrollment period.

Sec. 846.712 Statutory exclusions.

(a) DC government employees. An individual employed by the

government of the District of Columbia is not eligible to make an

election, except--

(1) Non-judicial employees of the District of Columbia Courts,

District of Columbia Department of Corrections Trustee or the District

of Columbia Pretrial Services, Defense Services, Parole, Adult

Probation and Offender Supervision Trustee under the National Capital

Revitalization and Self-Government Improvement Act of 1997, title XI of

Public Law 105-33, 111 Stat. 251, who meet the conditions of

Sec. 831.201(g)(2), (3), and (4) of this chapter; and

(2) Employees of the District of Columbia Financial Responsibility

and Management Assistance Authority under the District of Columbia

Financial Responsibility and Management Assistance Act of 1995, Public

Law 104-8, 109 Stat. 97, as amended, who elected CSRS under

Sec. 831.201(g)(5) of this chapter.

(b) Members of Congress. A Member (as defined in section 2106 of

title 5, United States Code) is not eligible to make an election.

(c) Persons without social security eligibility. An individual is

not eligible to make an election if that individual is not eligible for

social security coverage.

Sec. 846.713 Former spouse consent requirement.

An election of FERS coverage cannot become effective unless the

election is made with the written consent of any former spouse(s)

entitled to benefits under part 838 of this chapter.

Election Procedures

Sec. 846.721 Electing FERS coverage.

(a) To elect FERS coverage, an employee must submit a completed

FERS Election of Coverage form (SF 3109) and any additional

documentation that may be required under Sec. 846.722 (relating to the

former spouse consent requirement) to the employing office no later

than the close of business on December 31, 1998.

(b) Any writing signed by the employee and filed with the employing

office may be treated as an election for the purpose of establishing

the date of the election of FERS coverage if the employee intends that

document to be an election, but the employee (or, if the employee dies

after filing the election but before completing the SF 3109, the

survivor) must submit a completed SF 3109 to confirm any such election.

Sec. 846.722 Former spouse's consent to an election of FERS coverage.

(a) Employee actions. (1) If the employee is subject to a

qualifying court order, the employee must submit to the employing

office a completed--

(i) SF 3110, Former Spouse's Consent to FERS Election, to document

the former spouse's consent to the FERS coverage; or

(ii) SF 3111, Request for Waiver, Extension, or Search, to request

a waiver of the former spouse consent requirement or to request an

extension of the time limit for obtaining a former spouse's consent or

amendment of the court order.

(2) If the employee states on the SF 3109, the FERS Election of

Coverage form, that he or she does not know whether he or she is

subject to a qualifying court order, the employee must submit to the

employing office a completed SF 3111, Request for Waiver, Extension, or

Search, to request OPM to determine whether it has a qualifying court

order relating to the employee.

(b) OPM actions--(1) Waiver of former spouse consent requirement--

(i) Grounds for waiver. OPM's authority to approve a waiver of the

former spouse consent requirement is limited to cases in which the

former spouse's whereabouts cannot be determined or exceptional

circumstances make requiring the former spouse's consent inappropriate.

(ii) Whereabouts cannot be determined. OPM will waive the former

spouse consent requirement upon a showing that the former spouse's

whereabouts cannot be determined. A request for waiver on this basis

must be accompanied by--

(A) A judicial or administrative determination that the former

spouse's whereabouts cannot be determined; or

(B)(1) Affidavits by the employee and two other persons, at least

one of whom is not related to the employee, attesting to the inability

to locate the former spouse and stating the efforts made to locate the

spouse; and

(2) Documentary corroboration such as newspaper reports about the

former spouse's disappearance.

(iii) Exceptional circumstances. OPM will waive the former spouse

consent requirement based on exceptional circumstances if the employee

presents a judicial determination finding that--

(A) The case before the court involves a Federal employee who is in

the process of electing FERS coverage and the former spouse of that

employee;

(B) The former spouse has been given notice and an opportunity to

be heard concerning this proceeding;

(C) The court has considered sections 301 and 302 of the FERS Act,

Pub. L. 99-335, 100 Stat. 517, and this section as they relate to

waiver of the former spouse consent requirement for an employee with a

former spouse to elect FERS coverage; and

[[Page 33235]]

(D) The court finds that exceptional circumstances exist justifying

waiver of the former spouse's consent.

(iv) Approval of a waiver. If OPM grants a waiver of the

requirement of paragraph (a) of this section, OPM will notify both the

individual and the employing office of its decision. OPM's notice to

the employing office is deemed to complete the individual's election,

which becomes effective with the first pay period after the employing

office receives OPM's notice that the waiver is granted.

(2) Extension of the time limit to obtain a former spouse's

consent--(i) First request. If an employee who is ineligible to elect

FERS coverage solely because of a qualifying court order files, prior

to January 1, 1999, a completed SF 3111, Request for Waiver, Extension

or Search, requesting an extension of the time limit to seek an

amendment of a qualifying court order, OPM is deemed to have approved

the extension through June 30, 1999.

(ii) Second request. OPM will grant one extension of the time limit

to seek an amendment of a qualifying court order to an individual who

has been granted an extension under paragraph (b)(2)(i) of this section

if the individual--

(A) Files an application for the extension (SF 3109) with the

employing office before July 1, 1999;

(B) Has initiated legal proceedings to secure the modification of

the qualifying court order on file at OPM to satisfy the former spouse

consent requirement;

(C) Demonstrates to OPM's satisfaction that the individual has

exercised due diligence in seeking to obtain the modification; and

(D) If seeking an extension beyond December 31, 1999, demonstrates

to OPM's satisfaction that a longer extension is necessary.

(iii) Expiration date of a second extension. An approved extension

under paragraph (b)(2)(ii) of this section expires on December 31,

1999, unless OPM's decision letter states a later expiration date.

(3) Search for a qualifying court order. (i) When an employing

office notifies OPM that it has received an employee's request for a

determination of whether OPM has a qualifying court order on file, OPM

will determine whether it has such an order.

(ii) If OPM does not have a copy of a qualifying court order in its

possession, OPM's notice to the employing office that it has no

qualifying court order completes the employee's election of FERS

coverage and the election becomes effective at the beginning of the

first pay period after the employing office receives OPM's

notification.

(iii) If OPM has a copy of a qualifying court order, OPM will

notify both the individual and the employing office that it has a

qualifying court order and that an extension until June 30, 1999, has

been granted.

Sec. 846.723 Agency responsibilities.

(a) The employing office must determine whether the employee is

eligible to elect FERS coverage.

(b)(1) As close as practicable to the beginning of the open

enrollment period, the employing office must provide each employee

eligible to elect FERS coverage with notice of that employee's right to

make an election.

(2) The employing office must provide each employee eligible to

elect FERS coverage with a copy of or ready access to the FERS Transfer

Handbook.

(c) An election received by an employing office before July 1,

1998, is deemed to have been received by the employing office on July

1, 1998.

(d) An agency decision that an employee is not eligible to elect

FERS coverage or refusing to accept a belated election under

Sec. 846.724 must be in writing, must fully set forth the findings and

conclusions of the agency, and must notify the employee of the right to

appeal the decision under this section to the Merit Systems Protection

Board, including all information required under the Board's

regulations. See 5 CFR 1201.21.

Sec. 846.724 Belated elections and correction of administrative

errors.

(a) Belated elections. The employing office may accept a belated

election of FERS coverage if it determines that--

(1) The employing office did not provide adequate notice to the

employee in a timely manner;

(2) The agency did not provide access to the FERS Transfer Handbook

to the employee in a timely manner; or

(3) The employee was unable, for cause beyond his or her control,

to elect FERS coverage within the prescribed time limit.

(b) Correction of administrative errors. Failure to begin employee

deductions and Government contributions on the effective date of

coverage must be corrected in accordance with Sec. 841.505 of this

chapter.

Sec. 846.725 Appeal to the Merit Systems Protection Board.

(a) A person whose rights or interests under this part are affected

by an agency decision that an employee is not eligible to elect FERS

coverage or an agency refusal to accept a belated election under

Sec. 846.724, or an OPM decision denying an extension or waiver under

Sec. 846.722, may request the Merit Systems Protection Board (MSPB) to

review such decision in accord with procedures prescribed by MSPB. MSPB

regulations relating to appeals are contained in chapter II of this

title.

(b) Paragraph (a) of this section is the exclusive remedy for

review of agency decisions concerning eligibility to make an election

under this subpart. An agency decision must not allow review under any

employee grievance procedures, including those established by chapter

71 of title 5, United States Code, and 5 CFR part 771.

Sec. 846.726 Delegation of authority to act as OPM's agent for receipt

of employee communications relating to elections.

The employing office is delegated authority to act as OPM's agent

for the receipt of any documents that employees are required by this

subpart to file with OPM. Such documents are deemed received by OPM on

the date that the employing office receives them.

[FR Doc. 98-16264 Filed 6-17-98; 8:45 am]

BILLING CODE 6325-01-P