[Federal Register: July 2, 1997 (Volume 62, Number 127)]
[Proposed Rules]
[Page 35693-35696]

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Proposed Rules
Federal Register
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This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.

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[[Page 35693]]

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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 880

RIN 3206-AH75

Retirement and Insurance Benefits When an Annuitant Is Missing

AGENCY: Office of Personnel Management.

ACTION: Proposed rule.

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SUMMARY: The Office of Personnel Management (OPM) is proposing
regulations to establish a uniform standard that OPM will use in its
administration of retirement and insurance benefits in cases in which
an annuitant disappears. These regulations would establish procedures
to determine the status of the missing annuitant and to allow the
missing annuitant's dependents to obtain benefits until the missing
annuitant's status is resolved.

DATES: Comments must be received on or before September 2, 1997.

ADDRESSES: Send comments to John E. Landers, Chief, 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: These regulations are intended to establish
OPM's procedures for making payments of annuity during a period when an
annuitant is missing and until the annuitant is either found or
officially determined to have died. The regulations are aimed at
providing continuing support to the family of a missing annuitant,
while balancing the interest of the Government in protecting the
retirement system from unwarranted disbursements.
    These cases are uncommon, but about once a year a case arises under
Civil Service Retirement System (CSRS) or Federal Employees Retirement
System (FERS) in which an annuitant disappears. In some cases, the
circumstances of the disappearance are such that local authorities are
able to declare the missing annuitant legally dead (e.g., victims of a
plane crash with no survivors but bodies are not identifiable) and we
are able to begin survivor benefit payments to the affected families,
but, in other cases, a long waiting period is required before a missing
annuitant can be declared legally dead. However, over the years, our
experience has been that such missing individuals are not found alive.
Accordingly, the proposed regulations would provide for continuing
payment of the amount that would be payable as survivor annuity if the
missing annuitant were dead.
    Subpart A contains information of a general nature, including a
description of the type of case covered by the regulations, cross
references to related regulations, and definitions of terms used in the
regulations. Section 880.101 limits the scope of these regulations to
cases involving the disappearance of individuals who are already
retired.
    In the case of disappearance of a separated employee who has not
applied for annuity, we have no authority to pay an employee annuity,
as determined by the United States Court of Appeals for the Federal
Circuit in the case of Oshiver v. Office of Personnel Management, 896
F.2d 540 (Fed. Cir. 1990). The court found that no payments can be made
until the individual personally files an application. Accordingly,
section 880.101 excludes from the coverage of the regulations any case
in which the former employee has not applied for retirement.
    Section 880.102 is a research aid providing references to related
regulations.
    Section 880.103 defines terms used in this part.
    Subpart B establishes the procedures that we will follow in missing
annuitant cases. Section 880.202 establishes that the Retirement and
Insurance Service is the component of OPM that will receive and act on
any missing annuitant report.
    Section 880.203 establishes the procedure that OPM will follow to
determine that a retiree is missing and assigns to the Retirement and
Insurance Service the responsibility for suspending payment and
providing notice to affected individuals. That section also specifies
the types of information that the affected individual will receive in
the suspension notice.
    Section 880.204 provides for retroactive restoration of the annuity
and an offset for any disbursements made during the disappearance, in
the event that the annuitant is found. That section also provides that
we will consider issues of competency of the previously missing
annuitant and if necessary require a representative payee be appointed
before restoring the annuity.
    Section 880.205 establishes the standard of evidence required to
prove the death of a missing annuitant before we will authorize any
form of lump-sum death benefits under CSRS or FERS or a life insurance
payment. Although in routine CSRS and FERS death cases we accept other
forms of evidence to establish the death of an annuitant, in missing
annuitant cases before paying any lump-sum death benefit or life
insurance, we will require documentary evidence that an official with
legal authority to make determinations that an individual is legally
dead has made such a determination for the missing annuitant. The
individual claiming that the missing annuitant is dead has the burden
of proving that the official determining death is authorized to make
such determinations. We expect that such proof will generally consist
of appropriate State or other official documents authorizing the
official to make such determinations.
    Section 880.206 establishes a uniform date of death for the cases
covered by these regulations. This rule is needed to prevent
unjustified variations in benefits depending on local law. Under these
regulations, the date of disappearance will be used as the date of
presumed death.
    Section 880.207 establishes that we will review each missing
annuitant case after a determination of death to make certain that the
proper benefits have been paid and premiums collected consistent with
the date of death established under section 880.206.
    Subpart C establishes the methodology that we will use to determine
benefit levels while the annuitant is missing. Section 880.302 provides
for payment of CSRS and FERS survivor annuity as though the missing

[[Page 35694]]

annuitant were dead. In the usual missing annuitant case, the effect of
this rule is that the spouse will be paid at the survivor rate--55
percent (CSRS) or 50 percent (FERS) of the missing annuitant's benefit.
However, if the missing annuitant had children who would be eligible
for a survivor annuity, we would make payments at the child annuity
rate as well. Also, if a former spouse has been receiving a portion of
the a>
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