II

105TH CONGRESS

2D SESSION S. 1710

To provide for the correction of retirement coverage errors under chapters

83 and 84 of title 5, United States Code.

IN THE SENATE OF THE UNITED STATES

MARCH 4, 1998

Mr. COCHRAN (by request) (for himself, Mr. LEVIN, Mr. LEAHY, Mr. STEVENS, Mr. ROBB, Mr. WARNER, Mr. SARBANES, and Ms. MIKULSKI) introduced the following bill; which was read twice and referred to the Committee on Governmental Affairs

A BILL

To provide for the correction of retirement coverage errors

under chapters 83 and 84 of title 5, United States Code.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 That this Act may be cited as the ‘‘Retirement Coverage

4 Error Correction Act of 1998’’.

5 SEC. 2. FINDINGS AND PURPOSE.

6 The Congress finds that a number of Government

7 employees have been placed under erroneous retirement

8 coverage during the transition from the Civil Service Re9 tirement System to the Federal Employees Retirement
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1 System. When these errors are of significant duration,

2 they adversely affect an employee’s ability to plan for re3 tirement. It is the purpose of this Act to provide a remedy

4 that treats all such individuals fairly and reasonably, and

5 demonstrates the Government’s concern for its employees

6 who have been disadvantaged by a Government error in

7 their retirement coverage. Affected employees should have

8 a choice between corrected retirement coverage and the

9 benefit the employee would have received under the erro10 neous coverage, without disturbing Social Security cov11 erage law.

12 SEC. 3. DEFINITIONS.

13 For the purposes of this Act—

14 (1) ‘‘Annuitant’’ means an individual described

15 by section 8331(9) or 8401(2) of title 5, United

16 States Code;

17 (2) ‘‘CSRS’’ means the Civil Service Retirement

18 System established under subchapter III of chapter

19 83 of title 5, United States Code;

20 (3) ‘‘CSRS covered’’ means subject to the pro21 visions of subchapter III of chapter 83 of title 5,

22 United States Code, including full CSRS employee

23 deductions;

24 (4) ‘‘CSRS Offset covered’’ means subject to

25 the provisions of subchapter III of chapter 83 of
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1 title 5, United States Code, including reduced CSRS

2 employee deductions;

3 (5) ‘‘Director’’ means the Director of Office of

4 Personnel Management;

5 (6) ‘‘FERS’’ means the Federal Employees Re6 tirement System established under chapter 84 of

7 title 5, United States Code;

8 (7) ‘‘FERS covered’’ means subject to the pro9 visions of chapter 84 of title 5, United States Code;

10 (8) ‘‘OASDI employee tax’’ means the Old Age,

11 Survivors and Disability Insurance tax imposed on

12 wages under section 3101(a) of the Internal Reve13 nue Code of 1986;

14 (9) ‘‘OASDI employer tax’’ means the Old Age,

15 Survivors and Disability Insurance tax imposed on

16 wages under section 3111(a) of the Internal Reve17 nue Code of 1986;

18 (10) ‘‘OASDI taxes’’ means the sum of the

19 OASDI employee tax and OASDI employer tax;

20 (11) ‘‘former employee’’ means an individual

21 who formerly was a Government employee, but who

22 is not an annuitant;

23 (12) ‘‘Office’’ means the Office of Personnel

24 Management;
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1 (13) ‘‘Retirement coverage determination’’

2 means the determination by an agency whether em3 ployment is CSRS covered, CSRS Offset covered,

4 FERS covered, or Social Security only covered;

5 (14) ‘‘Retirement coverage error’’ means an er6 roneous retirement coverage determination that was

7 in effect for a minimum period of 3 years of service

8 after December 31, 1986;

9 (15) ‘‘Service’’ means a period of civilian serv10 ice that is creditable under section 8332 or 8411 of

11 title 5, United States Code;

12 (16) ‘‘Social Security-only covered’’ means em13 ployment under section 3121(b) of the Internal Rev14 enue Code of 1986, subject to OASDI taxes, but not

15 CSRS covered, CSRS Offset covered, or FERS cov16 ered; and

17 (17) ‘‘Survivor’’ means an individual described

18 by section 8331(10) or 8401(28) of title 5, United

19 States Code.

20 SEC. 4. ERRORS OF LESS THAN 3 YEARS EXCLUDED.

21 Except as otherwise provided in this Act, an erro22 neous retirement coverage determination that was in effect

23 for a period of less than 3 years of service after December

24 31, 1986, is not covered by this Act.
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1 SEC. 5. SOCIAL SECURITY-ONLY COVERED EMPLOYEES

2 WHO WERE ERRONEOUSLY CSRS COVERED

3 OR CSRS OFFSET COVERED.

4 (a) This section applies in the case of a retirement

5 coverage error in which a Social Security-only covered em6 ployee was erroneously CSRS covered or CSRS Offset cov7 ered.

8 (b)(1) This subsection applies if the retirement cov9 erage error has not been corrected prior to the effective

10 date of the regulations described in paragraph (3).

11 (2) In the case of an individual who is erroneously

12 CSRS covered, as soon as practicable after discovery of

13 the error, and subject to the right of an election under

14 paragraph (3), such a individual shall be CSRS Offset cov15 ered, retroactive to the date of the retirement coverage

16 error.

17 (3) Upon written notice of a retirement coverage

18 error, an individual shall have 6 months to make an elec19 tion, under regulations promulgated by the Office, to be

20 CSRS Offset covered or Social Security-only covered, ret21 roactive to the date of the retirement coverage error. If

22 the individual does not make an election prior to the dead23 line, the individual shall remain CSRS Offset covered.

24 (c)(1) This subsection applies if the retirement cov25 erage error was corrected prior to the effective date of the

26 regulations described in subsection (b)(3).
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1 (2) Within 6 months after the date of enactment of

2 this Act, the Office shall promulgate regulations authoriz3 ing individuals to elect, during the 18-month period imme4 diately following the effective date of the regulations, to

5 be CSRS Offset covered or Social Security-only covered,

6 retroactive to the date of the retirement coverage error.

7 (3) If an eligible individual does not make an election

8 under paragraph (2) prior to the deadline, the corrective

9 action previously taken shall remain in effect.

10 SEC. 6. SOCIAL SECURITY-ONLY COVERED EMPLOYEES NOT

11 ELIGIBLE TO ELECT FERS WHO WERE ERRO12 NEOUSLY FERS COVERED.

13 (a) This section applies in the case of a retirement

14 coverage error in which a Social Security-only covered em15 ployee not eligible to elect FERS coverage under authority

16 of section 8402(c) of title 5, United States Code, was erro17 neously FERS covered.

18 (b)(1) This subsection applies if the retirement cov19 erage error has not been corrected prior to the effective

20 date of the regulations described in paragraph (2).

21 (2) Upon written notice of a retirement coverage

22 error, an individual shall have 6 months to make an elec23 tion, under regulations promulgated by the Office, to be

24 FERS covered or Social Security-only covered, retroactive

25 to the date of the retirement coverage error. If the individ-
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1 ual does not make an election prior to the deadline, the

2 individual shall remain FERS covered, retroactive to the

3 date of the retirement coverage error.

4 (c)(1) This subsection applies if the retirement cov5 erage error was corrected prior to the effective date of the

6 regulations described in subsection (b)(2).

7 (2) Within 6 months after the date of enactment of

8 this Act, the Office shall promulgate regulations authoriz9 ing individuals to elect, during the 18-month period imme10 diately following the effective date of the regulations to

11 be FERS covered or Social Security-only covered, retro12 active to the date of the retirement coverage error.

13 (3) If an eligible individual does not make an election

14 under paragraph (2) prior to the deadline, the corrective

15 action previously taken shall remain in effect.

16 SEC. 7. CSRS COVERED, CSRS OFFSET COVERED, AND FERS17 ELIGIBLE SOCIAL SECURITY-ONLY COVERED

18 EMPLOYEES WHO WERE ERRONEOUSLY FERS

19 COVERED WITHOUT AN ELECTION.

20 (a) If an individual was prevented from electing

21 FERS because the individual was erroneously FERS cov22 ered during the period when the individual was eligible to

23 elect FERS under title III of the Federal Employees Re24 tirement System Act of 1986, the individual is deemed to

25 have elected FERS coverage and will remain covered by
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1 FERS, unless the individual declines, under regulations

2 promulgated by the Office, to be FERS covered, in which

3 case the individual will be CSRS covered, CSRS Offset

4 covered, or Social Security-only covered; as would apply

5 in the absence of a FERS election, retroactive to the date

6 of the erroneous retirement coverage determination.

7 (b) In the case of an individual to whom subsection

8 (a) applies, who dies prior to discovery of the coverage

9 error, or who dies during the election period prescribed

10 in subsection (a) prior to making an election to correct

11 the error, without having the right to decline FERS cov12 erage, the individual’s survivors shall have the right to

13 make the election under regulations promulgated by the

14 Office that provide for such election in a manner consist15 ent with the election rights of the individual.

16 (c) This section shall be effective retroactive to Janu17 ary 1, 1987, except that this section shall not affect indi18 viduals who made or were deemed to have made elections

19 similar to those provided in this section under regulations

20 promulgated by the Office prior to the effective date of

21 this Act.
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1 SEC. 8. FERS COVERED CURRENT AND FORMER EMPLOY2 EES WHO WERE ERRONEOUSLY CSRS COV3 ERED OR CSRS OFFSET COVERED.

4 (a) This section applies to a FERS covered employee

5 or former employee who was erroneously CSRS covered

6 or CSRS Offset covered as a result of a retirement cov7 erage error.

8 (b)(1) This subsection applies if the retirement cov9 erage error has not been corrected prior to the effective

10 date of the regulations described in paragraph (2). As

11 soon as practicable after discovery of the error, and sub12 ject to the right of an election under paragraph (2), if

13 CSRS covered or CSRS Offset covered, such individual

14 shall be treated as CSRS Offset covered, retroactive to the

15 date of the retirement coverage error.

16 (2) Upon written notice of a retirement coverage

17 error, an individual shall have 6 months to make an elec18 tion, under regulations promulgated by the Office, to be

19 CSRS Offset covered or FERS covered, retroactive to the

20 date of the retirement coverage error. If the individual

21 does not make an election by the deadline, a CSRS Offset

22 covered individual shall remain CSRS Offset covered and

23 a CSRS covered individual shall be treated as CSRS Off24 set covered.
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1 (c)(1) This subsection applies if the retirement cov2 erage error was corrected prior to the effective date of the

3 regulations described in subsection (b)(2).

4 (2)(A) Within 6 months after the date of enactment

5 of this Act, the Office shall promulgate regulations author6 izing individuals to elect, during the 18-month period im7 mediately following the effective date of the regulations,

8 to be CSRS Offset covered, retroactive to the date of the

9 retirement coverage error.

10 (B) An individual who previously received a payment

11 ordered by a Court or provided as a settlement of claim

12 for losses resulting from a retirement coverage error shall

13 not be entitled to make an election under this subsection

14 unless that amount is waived in whole or in part under

15 section 12, and any amount not waived is repaid.

16 (C) An individual who, subsequent to correction of

17 the retirement coverage error, received a refund of retire18 ment deductions under section 8424, or a distribution

19 under section 8433, of title 5, United States Code, shall

20 not be entitled to make an election under this subsection.

21 (3) If an individual is ineligible to make an election

22 or does not make an election under paragraph (2) prior

23 to the deadline, the corrective action previously taken shall

24 remain in effect.
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1 SEC. 9. ANNUITANTS AND SURVIVORS IN CASES WHERE

2 FERS COVERED EMPLOYEES WERE ERRO3 NEOUSLY CSRS COVERED OR CSRS OFFSET

4 COVERED.

5 (a) This section applies to an individual who is an

6 annuitant or a survivor of a FERS covered employee who

7 was erroneously CSRS covered or CSRS Offset covered

8 as a result of a retirement coverage error.

9 (b)(1) Within 6 months after the date of enactment

10 of this Act, the Office shall promulgate regulations author11 izing an individual described in subsection (a) to elect

12 CSRS Offset coverage or FERS coverage, retroactive to

13 the date of the retirement coverage error.

14 (2) An election under this subsection shall be made

15 within 18 months after the effective date of the regula16 tions.

17 (3) If the individual elects CSRS Offset coverage, the

18 amount in the employee’s Thrift Savings Plan account

19 under subchapter III of chapter 84 of title 5, United

20 States Code, at the time of retirement that represents the

21 Government’s contributions and earnings on those con22 tributions (whether or not this amount was subsequently

23 distributed from the Thrift Savings Plan) will form the

24 basis for a reduction in the individual’s annuity, under

25 regulations promulgated by the Office. The reduced annu26 ity to which the individual is entitled shall be equal to an
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1 amount which, when taken together with the amount re2 ferred to in the preceding sentence, would result in the

3 present value of the total being actuarially equivalent to

4 the present value of an unreduced CSRS Offset annuity

5 that would have been provided the individual.

6 (4) If—

7 (A) a surviving spouse elects CSRS Offset bene8 fits; and

9 (B) a FERS basic employee death benefit

10 under section 8442(b) of title 5, United States Code,

11 was previously paid;

12 then the survivor’s CSRS Offset benefit shall be subject

13 to a reduction, under regulations promulgated by the Of14 fice. The reduced annuity to which the individual is enti15 tled shall be equal to an amount which, when taken to16 gether with the amount of the payment referred to sub17 paragraph (B) would result in the present value of the

18 total being actuarially equivalent to the present value of

19 an unreduced CSRS Offset annuity that would have been

20 provided the individual.

21 (5) An individual who previously received a payment

22 ordered by a Court or provided as a settlement of claim

23 for losses resulting from a retirement coverage error shall

24 not be entitled to make an election under this subsection

25 unless repayment of that amount is waived in whole or
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1 in part under section 12, and any amount not waived is

2 repaid.

3 (c) If the individual does not make an election under

4 subsection (b) prior to the deadline, the retirement cov5 erage shall be subject to the following rules—

6 (1) If corrective action was previously taken,

7 that corrective action shall remain in effect; and

8 (2) If corrective action was not previously

9 taken, the employee shall be CSRS Offset covered,

10 retroactive to the date of the retirement coverage

11 error.

12 SEC. 10. PROVISIONS RELATED TO SOCIAL SECURITY COV13 ERAGE OF MISCLASSIFIED EMPLOYEES.

14 (a) REPORTS TO COMMISSIONER OF SOCIAL SECU15 RITY.—In order to carry out the Commissioner of Social

16 Security’s responsibilities under title II of the Social Secu17 rity Act, the Commissioner may request the head of each

18 agency that employs or employed an individual erroneously

19 subject to CSRS coverage as a result of a retirement cov20 erage error and retroactively converted to CSRS Offset

21 coverage, FERS coverage, or Social Security-only coverage

22 to report in coordination with the Office of Personnel

23 Management, and in such form and within such time

24 frame as the Commissioner may specify, any or all of the

25 following—
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1 (1) the total wages (as defined in section

2 3121(a) of the Internal Revenue Code of 1986) paid

3 to such individual during each year of the entire pe4 riod of the erroneous CSRS coverage;

5 (2) the excess CSRS deduction amount for the

6 individual; and

7 (3) such additional information as the Commis8 sioner may require for the purpose of carrying out

9 the Commissioner’s responsibilities under title II of

10 the Social Security Act.

11 The head of an agency or the Office shall comply with

12 such a request from the Commissioner. For purposes of

13 section 201 of the Social Security Act, wages reported pur14 suant to this subsection shall be deemed to be wages re15 ported to the Secretary of the Treasury or the Secretary’s

16 delegates pursuant to subtitle F of the Internal Revenue

17 Code of 1954. For purposes of this section, the ‘‘excess

18 CSRS deduction amount’’ for an individual shall be an

19 amount equal to the difference between the CSRS deduc20 tions withheld and the CSRS Offset or FERS deductions,

21 if any, due with respect to the individual during the entire

22 period the individual was erroneously subject to CSRS

23 coverage as a result of a retirement coverage error.

24 (b) ADJUSTMENT TO TRANSFERS UNDER SECTION

25 201 OF THE SOCIAL SECURITY ACT.—Any amount trans-
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1 ferred from the General Fund to the Federal Old-Age and

2 Survivors Insurance Trust Fund and the Federal Disabil3 ity Insurance Trust Fund under section 201 of the Social

4 Security Act on the basis of reports under this section

5 shall be adjusted by amounts previously transferred as a

6 result of corrections made (including corrections made be7 fore the date of enactment of this Act), and shall be re8 duced by any excess CSRS deduction amounts determined

9 by the Director of the Office of Personnel Management

10 to be remaining to the credit of individuals in the Civil

11 Service Retirement and Disability Fund or in accounts

12 maintained by the employing agencies. Such amounts de13 termined by the Director in the preceding sentence shall

14 be transferred to the Federal Old Age and Survivors In15 surance Trust Fund and the Federal Disability Insurance

16 Trust Fund in the proportions indicated in sections 201

17 (a) and (b) of the Social Security Act.

18 (c) APPLICATION OF OASDI TAX PROVISIONS OF

19 THE INTERNAL REVENUE CODE OF 1986 TO AFFECTED

20 INDIVIDUALS AND EMPLOYING AGENCIES.—An individual

21 described in subsection (a) and the individual’s employing

22 agency shall be deemed to have fully satisfied in a timely

23 manner their responsibilities with respect to the taxes im24 posed by sections 3101(a), 3102(a), and 3111(a) of the

25 Internal Revenue Code of 1986 on the wages paid by the
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1 employing agency to such individual during the entire pe2 riod he or she was erroneously subject to CSRS coverage

3 as a result of a retirement coverage error. No credit or

4 refund of taxes on such wages shall be allowed as result

5 of the operation of this subsection.

6 SEC. 11. FUTURE CSRS COVERAGE DETERMINATIONS.

7 No agency shall place an individual under CSRS cov8 erage unless—

9 (1) the individual has been employed with

10 CSRS coverage within the preceding 365 days; or

11 (2) the Office has agreed in writing that the

12 agency’s coverage determination is correct.

13 SEC. 12. DISCRETIONARY ACTIONS BY DIRECTOR.

14 (a) The Director is authorized to take any of the fol15 lowing actions—

16 (1) extend the deadlines for making elections

17 under this Act in circumstances involving an individ18 ual’s inability to make a timely election due to cause

19 beyond the individual’s control;

20 (2) provide for the reimbursement of necessary

21 and reasonable expenses incurred by an individual

22 with respect to settlement of a claim for losses re23 sulting from a retirement coverage error, including

24 attorney’s fees, court costs, and other actual ex25 penses;
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1 (3) compensate an individual for monetary

2 losses that are a direct and proximate result of a re3 tirement coverage error, excluding claimed losses re4 lating to forgone contributions and earnings under

5 the Thrift Savings Plan under subchapter III of

6 chapter 84 of title 5, United States Code, and all

7 other investment opportunities; and

8 (4) waive repayments otherwise required under

9 this Act.

10 (b) In exercising the authority under this section, the

11 Director shall, to the extent practicable, provide for simi12 lar actions in situations involving similar circumstances.

13 (c) Actions taken under this section are final and con14 clusive, and are not subject to administrative or judicial

15 review on any basis.

16 (d) The Office of Personnel Management shall pre17 scribe regulations regarding the process and criteria used

18 in exercising the authority under this section.

19 (e) The Office of Personnel Management shall, within

20 six months after the date of enactment of this Act, and

21 annually thereafter for each year in which the authority

22 provided in this section is used, submit a report to each

23 House of Congress on the operation of this section.
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1 SEC. 13. THRIFT PLAN TREATMENT FOR CERTAIN INDIVID2 UALS.

3 (a) This section applies to an individual who—

4 (1) is eligible to make an election of coverage

5 under section 8 or section 9, and only if FERS cov6 erage is elected (or remains in effect) for the em7 ployee involved; or

8 (2) is an employee (or former employee, annu9 itant, or survivor, subject to conditions similar to

10 those in section 8 and 9) in the case of a retirement

11 coverage error in which a FERS covered employee

12 was erroneously Social Security-only covered and is

13 corrected to FERS coverage.

14 (b)(1) With respect to an individual to whom this sec15 tion applies, the Director shall pay to the Thrift Savings

16 Fund under subchapter III of chapter 84 of title 5, United

17 States Code, for credit to the account of the employee in18 volved, an amount equal to the earnings which are dis19 allowed under section 8432a of such title 5 on the employ20 ee’s retroactive contributions to such Fund. Such amount

21 shall represent earnings, on such retroactive contributions,

22 during the period of the retirement coverage error and

23 continuing up to the date on which the amount is paid

24 by the Director (and based on distributions from the em25 ployee’s Thrift Savings Plan account). Such earnings shall

26 be computed in accordance with the procedures for com-
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1 puting lost earnings under such section 8432a. The

2 amount paid by the Director shall be treated for all pur3 poses as if that amount had actually been earned on the

4 basis of the employee’s contributions.

5 (2) In cases in which the retirement coverage error

6 was corrected prior to the effective date of the regulations

7 under section 8(c) or section 9(b), the employee involved

8 (including an employee described in subsection (a)(2))

9 shall have an additional opportunity to make retroactive

10 contributions for the period of the retirement coverage

11 error (subject to applicable limits), and such contributions

12 shall be treated in accordance with the provisions of para13 graph (1).

14 (c) The Office, in consultation with the Federal Re15 tirement Thrift Investment Board, shall prescribe regula16 tions appropriate to carry out this section.

17 SEC. 14. AUTHORIZATION AND APPROPRIATION.

18 All payments permitted or required by this Act to be

19 paid from the Civil Service Retirement and Disability

20 Fund, together with administrative expenses incurred by

21 the Office in administering this Act, shall be deemed to

22 have been authorized to be paid from that Fund, which

23 is appropriated for the payment thereof.
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1 SEC. 15. SERVICE CREDIT DEPOSITS.

2 (a) In the case of a retirement coverage error in

3 which—

4 (1) a FERS covered employee was erroneously

5 CSRS covered or CSRS Offset covered;

6 (2) the employee made a service credit deposit

7 under the CSRS rules; and

8 (3) there is a subsequent retroactive change to

9 FERS coverage;

10 the excess of the amount of the CSRS civilian or military

11 service credit deposit over the FERS civilian or military

12 service credit deposit, together with interest computed in

13 accordance with paragraphs (2) and (3) of section 8334(e)

14 of title 5, United States Code and regulations prescribed

15 by the Office, shall be a paid to the annuitant or, in the

16 case of a deceased employee, to the individual entitled to

17 lump-sum benefits under section 8342(c) or 8424(d) of

18 title 5, United States Code, as applicable.

19 (b)(1) This subsection applies in the case of an erro20 neous retirement coverage determination in which—

21 (A) the employee made a service credit deposit

22 under the FERS rules; and

23 (B) there is a subsequent retroactive change to

24 CSRS or CSRS Offset coverage.

25 (2) If at the time of commencement of an annuity

26 there is remaining unpaid any excess of the CSRS civilian
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1 or military service credit deposit over the FERS civilian

2 or military service credit deposit, the annuity shall be re3 duced based upon the amount unpaid together with inter4 est computed in accordance with paragraphs (2) and (3)

5 of section 8334(e) of title 5, United States Code and regu6 lations prescribed by the Office. The reduced annuity to

7 which the individual is entitled shall be equal to an amount

8 that, when taken together with the amount referred to in

9 the preceding sentence, would result in the present value

10 of the total being actuarially equivalent to the present

11 value of an unreduced CSRS Offset annuity that would

12 have been provided the individual.

13 (3) If at the time of commencement of a survivor an14 nuity, there is remaining unpaid any excess of the CSRS

15 service credit deposit over the FERS service credit de16 posit, and there has been no actuarial reduction in an an17 nuity under the preceding paragraph, the survivor annuity

18 shall be reduced based upon the amount unpaid together

19 with interest computed in accordance with paragraphs (2)

20 and (3) of section 8334(e) of title 5, United States Code

21 and regulations prescribed by the Office. The reduced sur22 vivor annuity to which the individual is entitled shall be

23 equal to an amount that, when taken together with the

24 amount referred to in the preceding sentence, would result

25 in the present value of the total being actuarially equiva-
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1 lent to the present value of an unreduced CSRS Offset

2 survivor annuity that would have been provided the indi3 vidual.

4 SEC. 16. REGULATIONS.

5 (a) In addition to the regulations specifically author6 ized in this Act, the Office may prescribe such other regu7 lations as are necessary for the administration of this Act.

8 (b) The regulations issued under this Act shall pro9 vide for protection of the rights of a former spouse with

10 entitlement to an apportionment of benefits or to survivor

11 benefits based on the service of the employee.

12 SEC. 17. EFFECTIVE DATE.

13 Except as otherwise provided herein, this Act shall

14 be effective on the date of enactment.

Æ