This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

33231

Vol. 63, No. 117

Thursday, June 18, 1998

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.

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 openenrollment 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
33232 Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 /Rules and Regulations

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/ferslelection. 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/ferslelection) 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
Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 /Rules and Regulations 33233

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;

§ 846.201(b) also issued under 5 U.S.C.

7701(b)(2) and section 153 of Pub. L. 104–

134, 110 Stat. 1321; § 846.201(d) also issued

under section 11246(b) of Pub. L. 105–33,

111 Stat. 251; § 846.202 also issued under

section 301(d)(3) of Pub. L. 99–335, 100 Stat.

517; § 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

§ 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.

§ 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.
33234 Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 /Rules and Regulations

Qualifying court order means a court

order acceptable for processing as

defined in § 838.103 of this chapter or

a qualifying court order as defined in

§ 838.1003 of this chapter subject to the

following conditions:

(1) If OPM has not received (as

explained in § 838.131 of this chapter)

a copy of the court order and identifying

information required under

§ 838.221(b)(3), § 838.421(b)(3),

§ 838.721(b)(1)(iii), or § 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.

§ 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.

§ 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

§ 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 § 846.722) may elect FERS

coverage during the 1998 open

enrollment period.

§ 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 SelfGovernment Improvement Act of 1997,

title XI of Public Law 105–33, 111 Stat.

251, who meet the conditions of

§ 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 § 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.

§ 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

§ 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 § 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.

§ 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
Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 /Rules and Regulations 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.

§ 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 § 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.

§ 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 § 841.505

of this chapter.

§ 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 § 846.724, or an OPM decision

denying an extension or waiver under

§ 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.

§ 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

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 28

[CN–98–004]

Revision of User Fees for 1998 Crop

Cotton Classification Services to

Growers

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Final rule.

SUMMARY: The Agricultural Marketing

Service (AMS) is reducing user fees for

cotton producers for 1998 crop cotton

classification services under the Cotton

Statistics and Estimates Act in

accordance with the formula provided

in the Uniform Cotton Classing Fees Act

of 1987. The 1997 user fee for this

classification service was $1.40 per bale.

This rule would reduce the fee for the

1998 crop to $1.30 per bale. The

reduction in fees resulted from

increased efficiency in classing

operations. The fee is sufficient to

recover the costs of providing

classification services, including costs

for administration, supervision, and

development and maintenance of

standards.

DATES: Effective Date: July 1, 1998.

FOR FURTHER INFORMATION CONTACT: Lee

Cliburn, 202–720–2145.